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Sources of Law _______________________________________________________????

Case law Acts of Parliament Statutory interpretation Delegated legislation EU law Custom Equity Treaties

Case Law Definitions:
? Common law = collection of case law (decisional law)
? Civil law = principles codified in a written system Historical development:
? Pre-1066: regional laws lacking consistency
? 1066: William the Conqueror set up a strong central government o Representatives of the King sent to countryside: itinerant justices o Stare decisis = let the decision stand
? Decisions -> rules
? 1250: common law system established Supreme Court:
? Labour introduced Supreme Court in 2009 replacing HL o Constitutional Reform Act 2005
? Making the separation from executive & legislative totally clear o Totally separate from Parliament (Art 6 HRA pressure) o Moved into new building
? Supreme Court has jurisdiction over whole of UK, including over devolution issues
? 12 Justices of the Supreme Court (Law Lords)
? Lord Chancellor no longer had a right to sit in Supreme Court
? Judges do not become lords automatically - new appointments 'Sir' &
'Dame'
? 5, 7 or 9 hear the cases depending on its importance Judicial precedent:
? Jury decisions don't make case law
? stare decisis: principle of deciding cases on decided cases of similar facts

???

ratio decidendi: 'reason for deciding' given by judge that forms binding precedent: this is the only part of the decision that forms a binding precedent. Application of legal principles. obiter dicta: other parts of the summary judgement said along the way (can offer clarity and offer advice to future judges). Persuasive rather than binding. Courts are bound by those above (and some courts bound by themselves) When given a case, the judges have the following options: o Follow o Distinguish o Overrule (original decision remains, but not followed) o Reverse (original decision of lower court changed) There is a duty to be careful with precedent - in R v Erskine CA advocated the specific use of cases where application is cited, not illustration of application

Hierarchy of the courts:
? EU CoJ o European Communities Act 1972 - CoJ decisions binding on all English courts
? Supreme Court o From 1966 House of Lords not bound by own decisions; Supreme Court not bound
? R v Caldwell overruled by R v Gemmell & Richardson
? Privy Council o Judicial Committee Act 1833 o Final appeal court for many Commonwealth countries o Sits in Supreme Court building o PC decisions do not bind English courts but have persuasive authority because of seniority of judges
? However: R v James and Karimi (2006) - defence of provocation case where HL R v Smith (Morgan James) used subjective test & PC A-G for Jersey v Holley used objective test - PC decision given precedent over HL, but explained by special sitting of 9 judges (and arguably was used to manipulate the outcome of the case)
? Court of Appeal o Can follow PC decisions rather than domestic court rulings if they believe SC would make the same decision o Split into Civil and Criminal Divisions which do not bind each other o CA Civ:
? Bound by its own previous decisions unless
? Per incuriam: previous decision made in ignorance of a relevant law/material & argument
? Two conflicting decisions
? HL/SC decision that conflicts
? Proposition of law was presumed to exist without being properly tested in earlier decision o CA Crim:
? More flexible - can overrule itself to avoid causing injustice
? High Court

Ordinary High Court
? Bound by CA & HL/SC
? Can overrule itself
? Produces precedents for lower courts (though at a lower level that CA/HL/SC) o Queen's Bench Division (criminal appeals and judicial review)
? Bound by CA & HL/SC
? Can overrule itself o Chancery Division (civil appeals)
? Bound by CA & HL/Sc
? Bound by itself o Family Division (civil appeals)
? Bound by CA & HL/SC
? Bound by itself Crown Court o Serious criminal cases & appeals o Does not form binding precedent o HC judge sitting in CC: persuasive precedent (non-binding) o Circuit/district judge sitting: no precedent formed o Does not bind itself (as it does not produce precedent) Magistrates' and county courts o Magistrates = criminal o County court = civil o The 'inferior courts' o Bound by SC/HL/CA/HC o Do not bind themselves (as they do not produce precedent) European Court of Human Rights o Sits in Strasbourg hearing cases of breach in ECtHR o S.2 HRA 1998, English court 'must take account of' ECtHR (not totally binding but often followed)
? Morris v UK 2002: HL refused to follow ECtHR on basis that ECtHR did not fully understand UK domestic process
? R v Horncastle 2009: HL refused to follow ECtHR's decision in Al-Khawaja and Tahery v UK 2009 where it was decided convictions could not rest solely/to a decisive extent on hearsay evidence (evidence given by a witness not available for cross-examination) o Where there is a conflict between ECtHR and a binding national court, the lower court with the case in hand should be bound by the higher national court but give permission to appeal o Can follow ECtHR over HL/SC if decision was made without knowledge (i.e. before) HRA 1998
? e.g. D v East Berkshire Community NHS Trust 2003 o?Civil procedure: County court -> High Court -> Court of Appeal (Civ.) -> Supreme Court -> EU CoJ (where there is competence) Criminal procedure: Magistrates court -> Crown Court -> High Court (QB) -> Court of Appeal (Crim.)
-> Supreme Court

How do judges make decisions?
? Act of Settlement 1700 transferred powers of dismissal from Crown to Parliament - foundation of independent judiciary
? William Blackstone 'declaration theory of law': judges don't make law but declare the laws that already exist o This is a view that is criticisable in that it relies on an objective standard of interpretation & would not explain why so many cases make their way up the appeal process o Blackstone's theory also does not account for the ways in which courts can circumvent precedent:
? Distinguishing on facts/point of law
? Arguing narrow ratio decidendi & the clashing points obiter
? No clear ratio - jarring judgements from judges coming to the same conclusions
? Outdated/implicitly overruled precedent
? Precedents out of date with modern thinking
? Decision made per incuriam
? Prof Ronald Dworkin: 'seamless web of principles' o Legal principles are sufficient for all decision-making processes, unlike rules o 'Interpretive approach'
? Look to previous cases & deduce principles
? Look to facts of case
? Consult own sense of justice
? Consult community sense of justice
? If there is conflict at this stage, questions whether it is fair to impose own sense of justice over that of the community o Heavily criticised as unrealistic
? The interpretive approach seems out of kilter with pragmatic approach (finding the right match of facts of the present case with precedent)
? David Kairys: precedent as legitimation for judicial decision o Subjectivity of the mind & confirmation bias o Critical legal theorists -> propagation of existing power dynamics through falsely labelled objective legal reasoning
? J. A. G. Griffiths: Politics of the Judiciary o The deception of the 'public interest' mode of legal reasoning is that the narrow social background of the judiciary paints a subjective picture of what really is in the public interest - they will favour maintenance of existing power structures as they are, themselves, a member of the elite
? Jeremy Waldron: support for politicised judiciary o Subjectivity is indisputable, and so judges should be more transparent about their own biases affecting their decision-making processes, which will in turn allow the public to scrutinise those biases & also will encourage the judges themselves to scrutinise their own biases
? Arthur JS Hall & Co v Simmon 2000, per Lord Hoffmann, support for this way of thinking Do judges make law?

Yes:??

No:?

Common law system -> many points of law come from case law o Contract and tort largely judge-made law (e.g. development of negligence as a tort) Interpretation of statute o Statutory vagueness o New social developments Statutory gaps o Law Lords forced to make a decision despite lack of statutory certainty (on life support turn offs) in Airedale NHS Trust v Bland 1993 - this is clearly an example of law making o Judges can't rely on slow, cumbersome parliament Control of case law o 1966 Practice Direction -declaring HL would not bind itself - was done by the courts with no permission from Parliament Cautious use of power o Lord Devlin in C (A Minor) v DPP 1995: judges should avoid dynamic law-making in cases of:
? Indefinite/debatable solution
? Where Parliament has chosen not to legislate
? Contentious social policy
? When there is a legal doctrine in place already
? Judges should not change the law unless they can achieve finality & certainty o Though this is not always the case - R v Dica 2004 overruled R v Clarence 2004 imposing liability for the knowing transmission of HIV despite the fact the Home Office had declined to legislate in the area, knowing to do so would have had wide-reaching implications Francis Bennion: overstretching the boundaries of judicial power o Appetite for changing the law themselves, instead of waiting for Parliament o The lack of clarity case law often provides because it has retrospective effect o Taking powers to which they are not constitutionally entitled

When should judges make law?
? Adapting to social change o Lord Denning The Need for New Equity - Parliament's sluggishness when adapting to a changing social climate o Paterson's survey 1982 - 12/19 Law Lords felt they had a duty to develop common law according to changing social conditions o Fitzpatrick v Sterling Housing Association Ltd - HL changed the law, without a statute, that a homosexual couple could supply the necessary familial link under the Rent Acts 1977 where previously this was exclusively designed around heterosexual couples
? Lord Reid suggested basic areas of common law suited to case law, whereas property, contract & criminal are more suited to Parliament.

??

Lord Devlin & consensus law-making: social change occurs in two stages. Firstly split of opinion & controversy, and secondly consensus &
acceptance. o Dynamic law-making = changing the law during the first phase o Activist law-making = changing the law during the second phase
? Yet naturally cases will fall before consensus has been reached on an issue, and the court will be forced to engage in dynamic law-making. Gillick v West Norfolk and Wisbech Area Health Authority where HL were forced to make a decision about the age at which children can take contraceptives. They held that a girl under 16 does not need parental consent, but such a decision was controversial Respecting parliamentary opinion o President of India v La Pintada Compania Navigacion SA 1984 - courts felt it was a strong case to overrule on a point of contract law, but did not do so because Parliament had rejected advice to abolish the rule from the Law Commission Protection for the individual through case law rather than statute o Anthony Lester QC urges the further development of judges to temper the effects of Parliament on the individual & ensure justice is enacted on a micro level

Advantages of case law:
? Faith in the system
? Certainty
? Forms body of detailed practical rules
? Hayek argued for 'free market' in legal ideas i.e. letting ratio play out - if it doesn't work it will be replaced per demand Disadvantages of case law:
? Complexity & volume
? Rigidity - judges must follow a precedent even if they think it is bad law/inappropriate
? Illogical distinctions between cases to get around precedent
? Unpredictability as a result of illogical distinctions
? Chance - case law develops on a case by case basis, which could leave big gaps
? No comprehensive code applicable
? Lack of research - judges are only to use case law & relevant statute. What about social/economic reactions?
? Retrospective effect - unfair to parties who would not benefit from later case law as they would have been blind to it at the time Statute Law?Parliament = Commons, Lords & Monarch Commons = democratically elected 646 Lords = revising chamber for legislation, 800+ made up of: o Life peers

Retired HL judges Bishops Elected hereditary peers
? White Paper and House of Lords Reform Draft Bill announced 2011
? 80% of Lords to be elected (on same day as general election) and 20% by an Appointments Commission Statute = Act of Parliament US courts can declare legislation unconstitutional - ours can't o o o?

How an Act of Parliament is implemented:

1. Identification of policy objective by Government of the day a. Manifesto or; b. Green Paper (consultation document)

2. White Paper with specific reform plans

3. Bill: proposal of legislation a. Public Bills :written by parliamentary counsel and presented by a minister to Parliament b. Private Members' Bills: prepared by individual backbench MP who must win a ballot for right to present and persuade Gov. to give parliamentary time over. Hardly ever become an Act; with notable exception of Abortion Act 1967 c. Private Bills: proposed by local authority, public corporation or large public company for a very specific thing like the right to build a bridge (usually only effects them)Parliamentary counsel = expert draftsmen who prepare Bills

4. House of Commons, First reading: notification stage

5. House of Commons, Second reading: full debate & amendments & vote

6. House of Commons, Committee stage: examination & proposal of amendments

7. House of Commons, Report stage: committee reports back proposed amendments & vote

8. House of Commons, Third reading: short debate & vote

9. 3 readings in Lords (any amendment from Lords returns it to the Commons who can agree/reasons for disagreement/proposals for alternative changes)Parliament Acts 1911 and 1949 make it possible for the Commons to ignore the Lords after a certain amount of time if the Lords simply won't approve their bill, by going for Royal Assent o e.g, Hunting Act 2004

10.Royal Assent (the convention is that the Queen would never refuse her consent, though technically it must be sought for all legislation to become law)

11.The Bill becomes an Act of Parliament, usually taking effect on a specific date, sometimes by a commencement orderAccelerated procedures: three readings in Lords THEN three in Commons; only for uncontroversial issues (and for Private Bills)

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