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

  • Representatives of the King sent to countryside: itinerant justices

  • Stare decisis = let the decision stand

    • Decisions -> rules

• 1250: common law system established

Supreme Court:

• Labour introduced Supreme Court in 2009 replacing HL

  • Constitutional Reform Act 2005

• Making the separation from executive & legislative totally clear

  • Totally separate from Parliament (Art 6 HRA pressure)

  • 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:

  • Follow

  • Distinguish

  • Overrule (original decision remains, but not followed)

  • 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

  • European Communities Act 1972 - CoJ decisions binding on all English courts

• Supreme Court

  • 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

  • Judicial Committee Act 1833

  • Final appeal court for many Commonwealth countries

  • Sits in Supreme Court building

  • 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

  • Can follow PC decisions rather than domestic court rulings if they believe SC would make the same decision

  • Split into Civil and Criminal Divisions which do not bind each other

  • 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

  • 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)

  • Queen's Bench Division (criminal appeals and judicial review)

    • Bound by CA & HL/SC

    • Can overrule itself

  • Chancery Division (civil appeals)

    • Bound by CA & HL/Sc

    • Bound by itself

  • Family Division (civil appeals)

    • Bound by CA & HL/SC

    • Bound by itself

• Crown Court

  • Serious criminal cases & appeals

  • Does not form binding precedent

  • HC judge sitting in CC: persuasive precedent (non-binding)

  • Circuit/district judge sitting: no precedent formed

  • Does not bind itself (as it does not produce precedent)

• Magistrates' and county courts

  • Magistrates = criminal

  • County court = civil

  • The ‘inferior courts’

  • Bound by SC/HL/CA/HC

  • Do not bind themselves (as they do not produce precedent)

• European Court of Human Rights

  • Sits in Strasbourg hearing cases of breach in ECtHR

  • 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)

  • 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

  • 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

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

  • 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

  • Blackstone’s theory also does not account for the ways in which...

Buy the full version of these notes or essay plans and more in our GDL English Legal System Notes.