The nature of law and the English legal system Flashcards
(319 cards)
1
Q
What is the distinction between enforceable legal rules and principles and other rules and norms of behaviour?
A
Enforceable legal rules and principles are rules that can be enforced by the courts, while other rules and norms of behaviour are social expectations that are not legally enforceable.
2
Q
What are the differences between criminal law and civil law?
A
- Purpose
Criminal law: aimed at trying to maintain law and order, to protect society. Civil law: upholds the rights of individuals. - Person starting the case
Criminal cases: usually the state through the Crown Prosecution Service. Civil cases: the individual or business which has suffered as a result of the breach of civil law. - Legal name for that person
Criminal = Prosecutor.
Civil = Claimant. - Courts hearing cases
Criminal: tried in either the Magistrates’ Courts or the Crown Court.
Civil: heard in the High Court and the County Court. - Standard of proof
Criminal = beyond reasonable doubt
Civil = on the balance of probabilities - Person making the decision
Criminal = Magistrates in MC + a judge & jury in CC.
Civil = Judge + very rarely a jury - Decision
Criminal = ‘guilty’ (convicted) or ‘not guilty (acquitted)
Civil = ‘liable’ or ‘not liable’. - Powers of the court
Criminal = prison, community order, fine, driving ban
Civil =an award of damages ( compensation) or injunction.
3
Q
Source of law
A
Custom
Statute
Common
4
Q
Custom law
A
A rule of behaviour which develops in a community without being deliberately invented historically.
5
Q
Statute law
A
Law created by Parliament and creates major new law, can change or revoke any laws.
6
Q
Common law
A
Unwritten law that developed from custom and the decisions of the judges.
7
Q
What is the role of law plays in society?
A
-Law can be described as a mechanism of social control.
-Comprises rules for keeping order in all societies and to protect
8
Q
What is the effect of law on enforceable rights?
A
9
Q
What is the balance required between competing interests (e.g. public and private)?
A
10
Q
What is the meaning and importance of fault in civil and/or criminal law?
A
11
Q
What is the distinction between law and morality and the diversity of moral views in a pluralist society?
A
12
Q
What is the relationship between law and morality and its importance?
A
13
Q
What is the legal enforcement of moral values?
A
14
Q
What is the meaning of justice?
A
15
Q
What are the theories of justice?
A
16
Q
Distributive justice
A
Concerned with the fair allocation of the benefits and responsibilities of life.
17
Q
What is Aristotle concerned with distributive justice?
A
18
Q
What is Thomas Aquinas concerned with distributive justice?
A
19
Q
What is Karl Max concerned with distributive justice?
A
20
Q
What is Claim Perelman concerned with distributive justice?
A
21
Q
What is the extent to which the law (civil and/or criminal) achieves justice?
A
22
Q
What is the rule of law
A
23
Q
What are Dicey’s three rules?
A
24
Q
The rule of law + law making
A
25
The rule of law + the legal system
26
The rule of law + substantive law
27
Green paper
28
White paper
29
Parliament
30
What is the role of HOC?
31
What is the role of HOL?
32
What is the formal legislative process in parliamentary law making?
1. First reading
2. Second reading
3. Committee stage
4. Report stage
5. Third reading
6. HOL
7. Royal Assent
33
First reading
34
Second reading
35
Committee stage
36
Report stage
37
Third reading
38
HOL
39
Royal Assent
40
What is a bill?
41
Government bill
42
Public bill
43
Private bill
44
Private members' bill
45
Hybrid bill
46
Advantages of law making in parliament
47
DIsadvantages of law making in parliament
48
What are the influences on parliamentary law making?
49
How the pressure groups influences on parliamentary law making?
50
Advantages of pressure groups
51
Disadvantages of pressure groups
52
How the political parties influences on parliamentary law making?
53
Advantages of political parties
54
Disadvantages of political parties
55
How public opinion influences on parliamentary law making?
56
Advantages of public opinion
57
Disadvantages of public opinion
58
How the media influences on parliamentary law making?
59
How the Law Commission influences on parliamentary law making?
60
Advantages of Law Commission
61
Disadvantages of Law Commission
62
What is the doctrine of parliamentary supremacy?
63
What are the limitations on parliamentary supremacy?
64
How the effect of the HRA 1998 limited on parliamentary supremacy?
65
How the devolution limited on parliamentary supremacy?
66
How the EU membership limited on parliamentary supremacy?
67
What is delegated legislation?
68
What are the types of delegated legislation?
1. Orders in council
2. Statutory instruments
3. By-laws
69
Orders in council
Made by the Queen and Privy council, in time of emergency ( when Parliament is not sitting).
70
Examples of Orders in council
-Foot and mouth disease breakout in August - law must be passed to kill off diseased cows.
-The Misuse of Drugs Act 1971 (Amendment) Order 2008
71
Uses of Orders in council
-Transferring responsibility between gov departments.
-Bringing Acts or parts of Act of Parliament into force.
-As a member of the EU, giving legal effect to the European directives.
72
Statutory instruments
Created by gov ministers in their department; often called 'regulation.'
73
Examples of Statutory instruments
- An increase in the maximum penalty for speeding.
-Give way to buses
-Codes of Practice under PACE
74
Uses of Statutory instruments
-Deals with a different areas of policy
-Can make rules
-Regulations in respect of matters it deals with.
-Can be very short, covering one point such as making the annual change to the minimum wage.
-Can be very long + detailed regulations.
75
By-laws
Made by local authorities make laws for a local area, may also made by some public corporations.
76
Examples of by-laws
-TFL enable to pass the law for wearing masks in the transport.
-A law rerouting a public footpath
77
Uses of by-laws
-Many local by-laws will involve the traffic control, such as parking restrictions.
-Other by-law may be for such matters, e.g. banning drinking in public places.
-Can also made certain companies for matters within their jurisdiction which involves the public.
78
What are the parliamentary controls on delegated legislation?
79
What is affirmative resolutions procedure?
80
What is negative resolutions procedure?
81
What are the judicial controls on delegated legislation?
82
Ultra vires
83
Procedural ultra vires
84
Substantive ultra vires
85
Why is delegated legislation used?
86
Advantages of delegated legislation
87
Disadvantages of delegated legislation
88
Why do we need statutory interpretations?
89
What are the three rules of statutory interpretation?
90
What is the literal rule?
91
Advantages of literal rule
92
Disadvantages of literal rule
93
What is the golden rule?
94
Advantages of golden rule
95
Disadvantages of golden rule
96
What is the mischief rule?
97
Advantages of mischief rule
98
Disadvantages of mischief rule
99
What is the purposive approach?
100
Advantages of purposive approach
101
Disadvantages of purposive approach
102
What are the internal aids (intrinsic) ?
103
What are the external aids ( extrinsic) ?
104
How do the European Union law impact statutory interpretation?
105
How do the HRA 1998 impact statutory interpretation?
106
What is the doctrine of judicial precedent?
107
What is the original precedent?
108
What is the binding precedent?
109
What is persuasive precedent?
110
What is the hierarchy of the courts?
111
What is stare decisis?
112
What is ratio decidendi?
113
What is obiter dicta?
114
What is law reporting?
115
What are the reasons for law reporting?
116
What are the operations of precedent?
117
What is following?
118
What is overruling?
119
What is distinguishing?
120
Advantages of judicial precedent
121
Disadvantages of judicial precedent
122
What is the law commission?
123
What Act was set up by?
124
Reform
125
Codification
126
Repeal
127
What are the success rate ( implementation rate) ?
128
Examples of implementation reformed
129
Advantages of reform through the law commission
130
Disadvantages of reform through the law commission
131
What are the institutions of the European Union?
132
What are the functions of the Council?
133
What are the functions of the Commission?
134
What are the functions of the European Parliament?
135
What are the functions of the Court of Justice of the European Union?
136
What are the different sources of European Union law?
137
Treaties
138
Regulations
139
Directives
140
What is direct effect?
141
What is horizontal direct effect?
142
How does European Union law impact the law of England and Wales?
143
What is civil claims?
144
What are the civil courts (highest - lowest)?
145
County Court
146
High Court
147
Queen's Bench Division
148
Chancery Division
149
Family Division
150
How to start a civil court case?
151
What is the three track system in civil courts?
152
Small claims track
153
Fast track cases
154
Multi track cases
155
What are the reforms of the civil justice system?
156
What is effect of the 1999 Lord Woolf's reforms stated?
157
What is effect of the Post - Woolf's reforms ?
158
What is effect of the Lords Briggs' proposals for the future?
159
What is effect of the 1999 Lord Woolf's reforms stated?
160
What is the appeal system in civil courts?
161
What is the appeals from the County Court?
162
What is the appeals from the High Court?
163
Advantages of using the court
164
Disadvantages of using the court
165
What are the other forms of dispute resolution?
166
What is the tribunal?
167
What is the tribunal structure?
168
What is the role of tribunals?
169
Advantages of tribunals
170
Disadvantages of tribunals
171
What is ADR stands for?
172
What are the roles of negotiation?
173
What are the roles of mediation?
174
Advantages of mediation
175
Disadvantages of mediation
176
Advantages of using ADR
177
How are offences classified? (lowest - highest)
178
Magistrates' Courts
179
What does the Magistrates' Courts deal with?
180
Crown Court
181
What does the Crown Court deal with?
182
What is the appeals from the Magistrates' courts?
183
What is the appeals from the Crown Court?
184
What Act sets out the purpose of sentencing?
185
What are the aims of sentencing?
186
What is retribution / punishment?
187
What is tariff sentences?
188
What is deterrence?
189
What is individual deterrence?
190
What is general deterrence?
191
What is rehabilitation？
192
What is reform?
193
What is protection of the public?
194
What is reparation?
195
What is denunciation?
196
What are the criminal court powers?
197
Custodial sentences
198
Fines
199
What are the other powers?
200
What are the sentences available for adult?
201
What is custodial sentences?
202
What is mandatory life sentences?
203
What is discretionary life sentences
204
What is a fixed term sentences?
205
What is suspended prison sentences?
206
What is community orders?
207
What requirements include in the community orders?
208
Unpaid work requirement
209
Prohibited activity requirement
210
Curfew requirement
211
Supervision requirement
212
What are fines?
213
What are the two discharges?
214
What is a conditional discharge?
215
What is an absolute discharge?
216
What are other powers of the court?
1. disqualifying D from driving for a certain length of time
217
What are the factors in sentencing?
218
What is aggravating mean?
219
What is mitigating mean?
220
What the matters that the court need to consider?
221
What are the aggravating factors in sentencing?
222
What are the mitigating factors in sentencing?
223
What is a reduction in sentence for a guilty plea?
224
What the courts look for the background of the offender?
Previous convinction
225
Previous conviction
226
Reports
227
What is lay magistrates?
228
What are the six key qualities to be a lay magistrate?
229
How the appointment work?
230
What is the training of lay magistrates?
231
What is the composition of bench?
232
What is the role and powers of magistrates?
233
What is the magistrates' clerk?
234
What is the history of the jury system?
235
What case established the independence of the jury?
236
What Act set out the qualifications of jury?
237
What are the qualifications to qualify a jury?
238
What are the disqualifications permanently for a jury?
239
What are the categories disqualified for 10 years?
240
What Act defined a mentally disordered person?
241
What is the definition of a mentally disordered person?
242
Excusals
243
What is discretionary excusal?
244
Selection of the jury
245
What is vetting?
246
2 types of vetting
247
Challenging
248
What is challenge to the array mean?
249
What is the role of jury?
250
How the verdict works?
251
Advantages of jury trial
252
Disadvantages of jury trial
253
What are the alternatives to jury trial?
254
What are the types of legal personnel?
255
What are the roles of barristers?
256
How the barristers get trained?
257
What is advocacy?
258
What is rights of audience?
259
What are the roles of solicitors?
260
How to become a solicitor (training)?
261
What is advocacy for solicitor?
262
What is Queen's Counsel?
263
What are the legal executives?
264
How to become a legal executive?
265
What are the roles of legal executives?
266
What is advocacy of legal executives?
267
What is the representative body for barristers?
The General Council of the Bar
268
What is the representative body for solicitors?
Law Society
269
What is the representative body for legal executives?
CLIEx ( Chartered Institute of Legal Executives)
270
What is the regulatory body for barristers?
Bar Standards Board
271
What is the regulatory body for solicitors?
Solicitors Regulatory Authority
272
What is the regulatory body for legal executives?
CLIEx Regulation Board
273
What is the Legal Ombudsman?
deal with complaints against the legal profession.
274
Who set up the Legal Ombudsman?
the Office for Legal Complaints
275
What can the Legal Ombudsman order?
an apology to the client, putting things right, refund or reduce the legal fees / pay compensation of up to £30000
276
What are the two types of judges?
-Superior judges
-Inferior judges
277
What are the superior judges?
Those are in the High Court above.
278
What are the inferior judges?
Judges who sits in Crown Court below.
279
What type of judges sit in Supreme Court ?
-Justices of the Supreme Court
-Head of the Supreme Court: President of the Family Division
280
What is their role in Supreme Court?
Hear appeals on points of law in both civil and criminal cases.
281
What type of judges sit in COA?
-Lord Justice of Appeal
-Criminal Division Head: Lord Chief
-Civil Division: Master of the Rolls
282
What is their role in COA?
-Hear appeals in criminal cases against conviction and / or sentence.
-Hear appeals in civil cases on finding of liability and/or amount awarded.
283
What types of judges sit in the High court?
-High court judges (Puisne Judge)
-Head of Chancery division
-Head of Family division
-Head of Queen's bench division
284
What is their role in the High court?
-Judges sit in one of three high court divisions.
-Hear large value, first instance civil cases to decide liability and remedy.
-Hear appeals from lower courts in both civil + criminal cases.
285
What type of judges sit in the Crown court?
-High court judges ( for serious case)
-Recorders (part time)
-Circuit judges
286
What is their role in the Crown court?
-Hear complex and serious criminal cases
-Hear appeals from Magistrates' Courts
-Try criminal cases with a jury
-Decide the law
-Assist the jury on points of law
-Sentencing
287
What type of judge sit in the County Court?
-Circuit judges
-Recorders (part time)
-District judges (small claims court)
288
What is their role in the County court?
-Hear civil cases
-Decide liability and remedies
289
What type of judge sit in the Magistrates' Court?
-District judges (Magistrates' court)
290
What is their role in Magistrates' court?
-Hear summary or triable either way criminal cases
-Decide verdict
-Sentencing
-Hear civil cases = family work, licensing appeals.
291
What type of judge sit in tribunal?
-Tribunal judges
-Head = Senior president of tribunals
292
What is their role in the tribunals?
-Hear cases on specific civil issues, such as employment disputes.
293
What is the independent judiciary?
294
What are the reasons for judicial independence?
295
Advantages for judicial independence
296
What is access to justice mean?
Where a person cannot get the help he or she needs, they are being denied access to justice.
297
What are the alternative sources of legal advice?
-Help lines
-Citizens Advice Bureaux
-Law centres
-Trade unions
-Schemes run by lawyers
298
Help lines
299
CABx
300
Law centres
301
Trade union
302
Schemes run by lawyers
303
Advice in criminal cases
304
What are the private funding options for legal cases?
305
Own resources
306
Insurance
307
Conditional fee agreement
308
How conditional fees work?
309
What is success fee?
310
What is insurance premiums?
311
What is public funding for civil cases?
312
How does availability of legal aid work?
313
How does means testing work?
314
What is disposable income?
315
What is disposable capital?
316
What is public funding for criminal cases?
317
How interests of justice work?
318
How the Magistrates' Court means testing work?
319
How the Crown Court means testing work?
