Modern English Legal System PDF

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Modern English Legal System Constitution – society is based on this legally. Stable statute. Statute= Stability. Lets have a law, not change it, lets keep everything stable. Law doesn’t want you to rebel, or do anything different.

Sources of Law:

Legislation Law is passed by parliament, passed by the crown in parliament, legislation or statutes are discussed in parliament, go through a form of process, ultimately passed by parliament. At that point, it Is said that the crown in parliament speaks and that gives us the law. This is the parliamentary system. • • •

Passed by the elected representatives & Lords Uses technical language to try to ensure clarity Often sets out a general framework

Regulations Secondary legislation or statutory instruments. Statutory instruments come from statutes. Statutory instrument is passed by a minister in the government. A way that the parliament can give authority to a minister to give further detail. Example: all drugs numerated by the minister for the interior shall be illegal. Gives power to the minister to enumerate which drugs are illegal, which drugs are class A, B and C. Empowers particular officers in order to take particular decisions. Usually given under a statute – so a statue is what empowers a particular officer. • • •

Made by ministers or some empowered office holder Usually empowered under particular statutory provisions Gives specificity to legislation

Case law Common law system is one which places a huge amount of emphasis on the judiciary. It has several different meanings. Common law offences and statutory offences – Common law offence – starts with a particular decision back in time, and gradually over time, that particular offence is developed by the judiciary, cases develop and flower, so we have a complex area of law.

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Judge-made law, sometimes called ‘common law’ – It may be used to interpret statutes or it may be orignin of particular area of law. Extract & apply principles to new facts Evolving nature – because the judges are constantly interpreting the law, (where as a statue gets set down by parliament on a particular date. Words are written on wellum, at that point the law is given. Where as with common law it’s consytantly developing). Judicial creativity & restraint

Human Rights? There are 2 competing human rights system within the uk system. • • •

Centuries of common law civil rights (protection from over-weaning state) – Habaus corpus – right to appear before a judge if you have been arrested. European Convention of Human Rights (ECHR) & Human Rights Act (HRA) which establishes particular rights Interpretative function: HRA Is to be used to interpret all other forms of law

A legal problem :

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You are a solicitor in Coventry dealing with criminal work. PC Plod telephones you to say that Fred Smith was involved in a fight in Coventry city centre last night. He was arrested and detained at the local police station. Fred then speaks to you: He tells you that he suffers from paranoid schizophrenia, that it was his twin brother who was involved and not he, and that he wants you to come down to the police station. Assault? (Criminal Justice Act 1988) – originally it was common law, gradually the crime of assault became constrained by statute. Breach of the Peace (Case law/Common Law) Arrest & Detention? Police & Criminal Evidence Act (1984) PACE Codes of Practice (Regulations) covered under statute Defence? (Criminal Procedure Act 1981 & Caselaw) Innocence? Questions of fact

Material facts – facts that will help you come to a decision or give advice. ( e.g. doesn’t matter if happened in Coventry or elsewhere. Point is THE FIGHT). Abstract particular elements from a complex scene - Pick out relevant facts, give relevant principles/ rules. Those 2 things added together give you the decision. The Syllogism: Rules + Facts = Conclusion All men are mortal (the rule) Socrates is a man (the facts) Socrates is mortal (the conclusion)

PAY ATTENTION TO AND / OR

Statutory Interpretation

Drafting statues is incredibly hard. Potential Problems? • • • • 

Language of statutes is formal, technical and not immediately clear, with no inflection or stress as in a conversation Language is in itself inherently limited Cases involve specific sets of circumstances, and wording may seem clear at the time but Parliament cannot foresee future cases Statutes are designed in the same way as the rules of a game, but there is no conversation through which we can ask ‘what did you mean?’ Reader has to give life to words by interpreting what they mean in particular situations

How a statue starts its life: 1) 2) 3) 4)

General rule Then exceptions Then definition Some words have definition elsewhere (e.g. vehicle defined under 1978 interpretation act, which is an act which lists lots of different words used regularly in statutes and unless the statutes defines them in a different way, those words have a particular meaning given in the statute interpretation act.

Statutory Interpretation: 1. Read carefully and slowly 2. Pay close attention to ‘and’ and ‘or’ a. Unless it is drafted in the alternative (i.e. ‘or’), each element has to be fulfilled b. Unless otherwise stated, subsections should be read independently 3. Don’t start from the Act as a whole, focus on the relevant section 4. Does the Act provide interpretive tools and definitions? 5. Cases help us see how the section has been interpreted

To decide whether it was an offence or not by statue you have to make sure that it fulfills all the sections laid out under the act unless stated otherwise.

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Where there is ambiguity, uncertainty or absurdity, the law has developed a number of techniques of reading statutes (sometimes erroneously called ‘rules’). The ‘Mischief Rule’ • The court asks what was the mischief (the problem) at common law that the statute sought to remedy The ‘Golden Rule’ • Legislation to be construed literally unless this would lead to an absurdity which the legislature is unlikely to have intended. The Literal Approach • Gives words their plain, literal meaning The Purposive Approach • Asks what was the purpose of the legislation as expressed by the proposer of the Bill in parliament The Teleological Approach (for EU legislation) • Due to the particular nature of some EU legislation, courts must understand the ends (telos) toward which the legislation was aimed, and understand it in that context

When a judge is faced with an unclear statute or the meaning is ambiguous. The judge’s job is to decide whether or not to stick with the words that are printed on the page i.e. be literal about the text in front of them and figure out what the most plain, ordinary meaning is or whether or not to depart from the text and find out the purpose of the legislation. Danger with the purposive approach - going all of the way to departing the statue is that it’s sometimes not particularly clear. Danger is that judges become law makers, they are departing from what the legislator has said and instead producing rules of their own and that reaches the separation of power.

The Mischief rule – • • • •

What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, The true reason of the remedy;

Problem of common law is that in the 16th century, there was small number of statutes in comparison, now we have loads of legislation and less common law. Second problem of mischief rule is that in that time the legislation will tell what the purpose of the act was, will explain the mischief of act was to resolve. When you would apply mischief rule you could just look at that and decide what the meaning/ purpose of the act was. Mischief rule only allowed you to go the sections around the problematic sections. It’s quite a limited rule. Allows judges to part from the words of the legislation in front of them. Golden rules allows to depart from statute completely. So the way you determine whether golden rule applies is: You begin reading statute as a whole, look at the purpose of the statue/ idea behind the statute. Golden rule is rarely applied, only applied when there is some fundamenyal policy problems – absurdy between the provisions. E.g if a son killed mother and in mother’s will all money goes to son – then even though act says that money should go to whoever mum said, it is absurd to give the murderer the money. So golden rule is applied and you move away from the literal meaning CAUSE IT IS ABSURD.

What happens when a bill 2which is before it is passed by parliament becomes an act – is that the 3 parts of the constitution – the commons, lords and crown speak as one and in that unitary voice they perform an act of parliament. Act of parliament = giving us law. Basically problem in common law is that they don’t know whether to read statue literally word to word or be able to change it according to them. Courts are slow to depart from the words used by parliament.

Preamble = introduction of statute

The technical question then becomes, how to understand the wishes of parliament? This does not mean intuiting or making it up. It means examining what are called ‘extrinsic’ aides in interpretation, aides that are outside the text of the statute.

Extrinsic Aids – material outside the Act  White Papers (Black-Clawson Case (1975) – are the government discussion papers which are the basis from which a proposed bill comes out, usually involve policy considerations, discussion of the previous law and suggestions for the law of reform. They help understand history of act.   Explanatory Notes – notes with statutory instruments to explain what instrument is about.   The Interpretation Act 1978   Academic Articles – help to understand what words of parliament mean in the context of various policy or theoretical consideration.   Other Statutes in pari materia – pari materia means equal material.   Hansard (Parliamentary Debates) – reporting of debates in parliament. Problem with parliamentary debates is the constitutional question. Crown in parliament speaks when the bill becomes an act. That is the moment law is created. All of the discussion up till then ARE NOT parliament speaking. Those are just opinions influencing the direction of the bill moving, trying to change the bill in some way – they are not authoritative explanations of what the bill actually means. Often these debates go on for months and spread of various special interest groups. LOT OF MATERIAL for lawyers to read. May cost clients more and takes lots of time in court, thereby slowing down the entire process.

*Pepper v Hart states Hansard debates are allowed to be discussed before court. 3 conditions:

a. Legislation is ambiguous, obscure or leads to absurdity b. The material consists of one or more statements by the minister/promoter of the Bill (together with other material if necessary) c. The Statements relied upon are clear

This opened flood gates. From 2000 onwards courts have roared back from allowing hansard debates. First the hurdle of what ambiguous absurdity obscure means. So FIRST PROVE THAT: a. Internal inconsistencies in the Act b. Demonstrating the consequences of the interpretation are problematic for the Act itself c. Show the case law interpreting the Act is divided.

The material from Hansard must consists of one or more statements by the minister who promoted the Bill, or if a private members bill, the non-ministerial promoter. It is not permissible to admit general argument in the House of Commons, nor are general arguments relevant. The court is searching for the understanding that Parliament had when it voted on the Bill. But, what if the comment was made at 3am in front of seven members of the house, two of whom were asleep and the others were on twitter? Can this be said to have informed parliament’s intentions when it passed the legislation, or does it simply give undue weight to the minister’s interpretation of the provision?

In a sense the Golden and Mischief rules are subsumed by a more permissive approach to the admissibility of extrinsic materials evidenced by Pepper v Hart.  Quite clearly, Pepper v Hart’s inclusion of ‘absurdity’ is a nod to the Golden rule. Which allowed the ‘purpose’ of an Act to be discovered if there was absurdity.  Equally, the fact that Hansard is allowed to establish the purpose of a particular provision is a way of dealing with the question of the Mischief that the act sought to resolve. But, there is still space for these approaches to facilitate the use of other extrinsic materials aside from Hansard. Taken together, they provide a set of tools that permit judges to examine extrinsic aides, without departing from the words used in parliament.

PrecedentsThe system of precedent – judges rely on previous cases on principles established by previous cases in order to make their decision in the next case. Makes up the common law. Precedent is the common law. Specific precedent – specific decisions and principles that we can draw from them. So when we talk about ‘precedent’ we are talking about a system of ‘precedents’ (or the principles established in each of the hundreds of relevant previous decisions) incrementally built up over the last hundreds of years. In other words, ‘precedent’ has two meanings:  The process by which judges follow previously decided cases  The case itself is ‘a precedent’ which may be relied upon in the future

 Stare Decisis • ‘To stand by that which has been decided’ – system whereby previous decisions of high courts have a binding authority. One of the key aspects of common law is that its backward looking- structure doesn’t ask the judge to think what is the best policy in this particular situation / the most efficient judgement / most just in the circumstance between the parties / which best serves principles like equality. Common law looks BACKWARDS to previous cases and tries to decide whether they hav to be applied in the current case before the court. • The system of binding precedents

 Ratio Decendi – principle established by a case. • ‘The reason for the decision’ • The principle(s) used to make the decision • This is the binding element of the decision – material facts + principles + reasons given.

Ratio of the case in the headnote of the case.( but gives only one interpretation so risky) If by changing the material fact makes a difference then original ratio shouldn’t be applied.

 Obiter Dictum • The judge’s comments that are made ‘by the way’ • Does not form part of the essential reasoning of the decision • The obiter dictum is persuasive but not binding

An example of this would be something like a court trying to decide whether or not jures was a defense to murder ( someone killing someone else cause the had a gun on their head saying if you don’t kill them we kill you) In that circumstance the judge might say in this circumstance it was essential as the person had no choice so it is ok tio kill the other person BUT IF the person didn’t believe that the gun was fully loaded or if they were a soldier in the context of war – so then not ok to sacrifice the othr person before you sacrifice your own life. Extra statements the judges say but aren’t essential in making the decision. Principle is jures is a defence to murder if you truly believe your life is at risk. Obiter statements are if you DON’T believe, if the gun ISN’T loaded etc. Obiter Dictum is merely persuasive. If the next case comes along and someone puts gone on someone else’s head but the person with the gun on head doesn’t think the gun is loaded then the question before court is do we have to follow the obiter statements of the previous judge. ANSWER IS NO, because the binding element is the ratio and if the person doesn’t believe the gun is loaded then material facts of this case are different from the material facts of the last case and therefore court needs to decide a fresh what the rules governing this case actually are. OBITER STATEMENTS ARE PERSUASIVE BUT NOT BINDING.

Judges don’t label their statements on cases obiter or ratio. Task of common law layer is to put different authorities or persuasive statements together in order to convince the judge in the next case.

Below the high court, the courts do not set binding principles/ precedents. Their decisions may be persuasive but not binding. Senior Judges may be persuaded by the lower courts, or the obiter dicta comments of their own court. Persuasivity of judgements depends on many things – where the decision was taken, the judges that made the decision – some judges are famous for writing superb opinions . Some judges are just controversial like Lord Denning.

The Supreme Court, Court of Appeal and High Court (sitting as an appeal court) are all superior courts, capable of making binding precedents. The ‘weight’ of their decision is based upon where they are in the hierarchy of the courts. So, Court of Appeal decisions bind the High Court but not the Supreme Court. Persuasive Decisions that are not binding, are persuasive. In other words, the more senior judges may be persuaded by the reasoning of the lower courts, or the obiter dictum statements of higher courts might persuade the lower court, * despite it not being bound to follow that comment.

Hierarchy of the Courts Supreme Court / House of Lords (binds all courts below, but not itself, hears appeals only) Court of Appeal (binds all courts below and usually itself, hears appeals on points of law only) High Court (3 Divisions – Queen’s Bench, Chancery, Family) (binds all courts below, but not itself) Crown Court (not binding) Magistrates Court/Tribunals* (not binding) * However, some Tribunals have a starring system to indicate cases which ought to be followed

1. Elements of Judgment  Case name & Court

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Citation (Year/Court abbreviation/Case Number for recent cases) Law report citation (Year/Report Volume/Report Series/page no.) Date(s) of the Hearing and Judgment Judges Subject Matter - italics Headnote - first 3 paragraphs ae short description of case and what was decided and some of the reasons on why it was decided. Facts Discussion of the case law Decision Other Judge’s concurring or dissenting opinions (sometimes this comes first)

Case Reporting Most cases come from law reports. Law reports are where reporter goes into a case hearing, makes note of the arguments made and makes notes of what the decision was and wirtes. Case report is not the actual words of the judge, it’s a summary. Without case report, a system of precedent can’t be established. Obviously to have a system of precedents, there must first be a way of recording and communicating the principles:  Early case reporting was sketchy: (i.e.: 1627)  The late 18th and 19th centuries began a process of rationalization of the common law. A significant part of this was a development of how cases were reported, the recording of facts, discussion and decision. (Donoghue v Stevenson)  In the mid to late 20th century, again the process of judgment was reformed again giving us our current way of writing decisions and reporting them, (In transcript: Austin v Commissioner of the Police of the Metropolis; and in report R (Evans) v The Attorney General)

Problem with the common law system :

Separation of Powers Legislature - decides what the law is  Law-making power  Elected Representatives Executive – manage the state. Controls the legislature.

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‘The Government’ – party which carry majority in house of commons Management of the state

Judiciary –...