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Sources of Law – Case Law (SOLC)ORIGINS OF THE COMMON LAW What is law? “The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties”  Many functions that the law plays: o Maintains peace an...

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Sources of Law – Case Law (SOLC)  

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ORIGINS OF THE COMMON LAW What is law? “The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties” Many functions that the law plays: o Maintains peace and safety in society o Regulates the relationship between individuals and other legal entities o Protects human rights and liberties o Ensures the smooth running of economic and political activities Body of rules designed to promote the orderly conduct of society – the law must reflect the wishes or tolerance of the broad majority of the population in order to be credible and enforceable Must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’ The law that we have today is a by-product of a long history of legal development

Time Period Pre – 1066 (Norman Conquest) 1066-1485 1485-1870s 1870s – present

Development Locally based systems and customs of Anglo-Saxon society The formation of common law and its imposition over and above local systems and customs Development of equity; two separate legal systems co-exist  Joint jurisdiction for common law and equity  Massive development in statute law  Growth of governmental and administrative bodies  Influence of European Union law (post- 1973)

The monarch as source of justice Today’s legal system has its origins in the King and Queen’s Courts Following the Norman Conquest: gradually became possible to dispense a more centralised form of justice, with the King as the central figure In the Norman period, the Curia Regis (the King’s Council) played the role of an itinerant court, allowing the monarch to exercise his personal power – ‘High Justice’ – in the most important of cases This prototype central court existed alongside the local courts (in shires and hundreds) The King was aided in the administration of justice by a group of semi-professional, skilled clerics These clerics eventually took on the function of deciding disputes themselves - became autonomous from the King and established themselves at Westminster The establishment of a fixed King’s Court was required by the Magna Carta in 1215 The King’s Council gradually developed and different ‘branches’ of the court evolved to deal with different types of dispute

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The three courts Three courts developed from the King’s Council: The Court of Exchequer: dealt w royal finances Court of Common Pleas: ownership/possession of land The Court of King’s Bench: serious criminal matters These courts remained until the Judicature Act 1873 To administer law outside London: royal justices were dispatched with a royal commission to hold ‘assizes’ (or sittings) of the royal courts Initially the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters Continued until the Courts Act 1971 An appeal court also emerged in the form of the Court of Exchequer Chamber – it was abolished in 1875, when its jurisdiction was transferred to the new Court of Appeal

Different meanings of ‘common law’ The King’s Court became essential to the resolution of disputes between citizens The law which the King’s judges applied was based upon the common customs of the country, hence the term common law Important to be aware of different meanings of the term ‘common law’ and to identify which meaning the term bears in the particular context in which it is used. The term common law may be used: o To historically distinguish the law of the King’s judges as opposed to the law as applied by local customary courts o To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery o To distinguish case law – that is, law as developed by judges through the system of precedent – from statute law o To identify the law as applied by common law countries (such as the Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law (as, for instance, in most of mainland Europe) o Commonwealth jurisidctions = Scotland, Republic of Ireland, the USA, Australia, New Zealand, Canada

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The common law developed by the King’s Courts was a procedural system involving writs A writ: document with a royal seal that constituted a royal demand for the defendant to appear before Court Contained the foundation of the complaint, with a different form of writ being used for each form of action The forms of these writs became fixed, and only Parliament could allow a new type of writ to be issued If a claimant could not find an existing writ to cover his case, he had no claim which the court would try The rules of procedure (pre-existing form of action) = stultified the growth of substantive law

Different forms of writs Type of writ Writ of right

Debt Detinue Covenant Account Trespass Case

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Remedy Recovery of land

Damages Damages Damages Damages Damages Damages

Problems with this emerging common law: too procedural The writ system exemplifies how the common law became hidebound by complex and restrictive procedures For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed Process, rather than principles, rights and duties, was paramount, therefore Reason was common law developed largely as a means by which a dispute could be resolved The courts came into existence as part of the development of centralised royal power, with the aim to conclude disputes rather than necessarily to resolve them in a just way – did not develop from a concept of ‘rights’ and ‘wrongs’ Another problem: in personal actions, it offered only the remedy for damages E.g. when one breached a covenant (a legally binding promise), the aggrieved party would not be able to compel the breaching party to fulfil the promise Such issues combined together to encourage the emergence of the law of equity

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Description/Function First form of ‘real action’ – developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes) “Personal Actions” – all writs below Recovery of fixed sum Return of chattel Breach of promise Accounting for a payment Against persons, goods or land – jury trial Remedy where no current action – later influential in development of tort law

CASE LAW ‘Case law’ and ‘common law’ are used interchangeably – refers to body of case law decided by judges Common law system = governed by rules of precedent This means = the decisions of judges of high courts/tribunals are 'binding' on those lower down Judges: Decide cases but in UK do not, of their own accord, start cases or investigate legal issues In order to decide a case, a judge will: o Consider the evidence brought by the parties and decide which evidence they find credible o Consider the how case law/statute should be applied in the given case and give judgment o Apply the law to the facts of the case and reach a decision on which party should succeed o Decide what remedy the successful party is entitled to, e.g. damages

Retrospective nature of precedent Do judges make law? Traditional theory = they do not do so but merely declare what the law has always been Linked to this – idea of the retrospective nature of precedent The view is that judicial decisions are based on statements of legal principle which have always been in existence, but which are not fully expressed or delivered until an appropriate case is brought before a court

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Prospective nature of statute law Statutes (Acts of Parliament) set out the law for the future and rarely have retrospective effect

‘Stare decisis’ (‘stand by what has been decided’)  Distinct characteristic of the English common law – employs the doctrine of stare decisis (binding precedent)

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If a principle of law is laid down, future cases with same material facts must be decided in the same way Contrast to civil legal systems, where courts concentrate on interpreting detailed written codes of the law Previous decisions, or precedents in civil systems are simply examples of the application of codes It is necessary for it to be persuaded that: o The earlier case was decided in a court which binds it, and o The relevant part of the earlier case is binding, rather than merely ‘persuasive’

What part of a judgement is binding? As soon as a ‘point of law’ has been decided by any superior court, it establishes a precedent A precedent may be binding (must be followed) or persuasive (may be followed) Not every aspect of a judgement is binding A judgement consists of: summary of facts, statements of law (ratio decidendi, obiter dicta), decision on remedy Ratio decidendi (binding) ‘Ratio decidendi’ means “reasons for the decision” It is the principle/rule established in a case but as applied to the material facts of the case. If the material facts were different, the court’s decision may be different The ratio of a judgement is the part which is binding on other courts Determining a ratio = an art rather than a science Narrow proposition: a ratio would apply only to very specific facts Wide proposition: it could be treated as establishing an entirely new, wider principle

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Obiter dictum (not binding) A judge’s expression of opinion uttered in court, but not essential to the decision and not legally binding Consist of: o Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material Re Grosvenor Hotel, London (No. 2) (1964): “A battery of howitzers off the target is more impressive than a pop-gun on it. Powerful ober dicta by the House of Lords may sometimes be regarded as so persuasive as to be practically binding”

Departing from own precedent Until 1966 this was not formally recognised as being possible In that year, the former Appellate Committee of the House of Lords – the “law lords” – recognised that this may be necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234. In this Lord Gardiner L.C. stated that the law lords “recognise[d] that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.” In modifying the old practice, he warned that they would “bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” Austin v Southwark LBC (2010): Lord Hope confirmed that the (new) Supreme Court would maintain the same guarded but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court.

Court of Appeal – Departing from own precedent A similar approach is taken in the Court of Appeal (“CA”). The Court is generally intent on maintaining its own precedents but in the case of Young v Bristol Aeroplane Co. Ltd (1944), Lord Greene MR outlined three exceptions: o If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow o If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or House of Lords, it need not be followed o If the CA’s previous decision was made per incuriam. Note that per incuriam does not simply mean that the earlier CA made an error. It only applies when the previous court was not aware of a relevant authority (in case or statute) which would have been binding on the court’ and that ignorance led to faulty reasoning by the court.

Supreme Court

Rules of Precedent Binding on all inferior courts and itself (subject to 1966 Practice Statement)

Court of Appeal High Court Upper Tribunal First Tier Tribunal Family Court Crown Court County Court Magistrate Court

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All inferior courts and itself (subject to Young v BA exceptions) All inferior courts, and itself (except for decisions take by a single Judge) The First Tier Tribunal, inferior courts, and itself Not binding but may be persuasive Not binding Not binding Not binding Not binding

EQUITY As a consequence of some of the problems created by the common law (outlined in element 1), aggrieved litigants, who felt that justice was not served in the King's Courts, began to petition the King to do justice in particular instances. The King, part of whose coronation oath was 'to do equal and right justice and discretion in mercy and truth', was known as the 'fount of all justice'. These petitions were passed on to the Chancellor, a cleric seen to be the 'keeper of the King’s conscience' for a decision. By the end of the 13th century, such petitions were dealt with through a more formal procedure by the Court of Chancery, presided over by the Lord Chancellor Equity can be defined as the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875. Even though the court system has changed since the 19th century, it is significant that the underlying rules and principles of equity are still applicable today.

Discretionary nature of equity The key feature and benefit of this emerging set of principles was its greater flexibility. Initially, Lord Chancellors decided claims from their own conscience without considering earlier decisions. Over time, though, they tended to come from a legal rather than clerical background, and so were accustomed to adhering to the doctrine of precedent that was used by their common law counterparts. Consequently, equitable precedents grew, and equity developed/maintained its own separate system of rules Supplements not usurps the common law – represents ‘a gloss on the common law’ (F.W Maitland) Equitable remedies remain discretionary in modern law.

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Conflicts between equity and common law Considerable friction developed at times. This was most intense at the end of the 16th early 17th century when it became one of the main sources of tension between the Stuart monarchy and Parliament. The conflict was referred to the monarch, James I, in the Earl of Oxford’s Case (1615) James decided that, in cases of conflict, equity should prevail over common law. This was enshrined in s.25 of the Judicature Act 18731875/ now in s49(1) of the Supreme Court Act 1981. The judgment also stressed equity was to supplement not supplant common law (equity follows the law)

Two systems? Until the latter half of 19th century, a single court, the Court of Chancery, applied equity exclusively. Two systems of law created problems for litigants (double action required for both equitable remedy and damages required – onerous and time consuming) Judicature Acts 1873-75: introduced fundamental reforms This series of Acts abolished the old division between the three common law courts + the Court of Chancery Created a single High Court and Court of Appeal which could apply the rules/remedies of both common law and equity.

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Common law (legal) rights v Equitable (or beneficial) rights Equitable remedies = discretionary in nature/ Common law damages = available as right Equitable remedies are therefore awarded only if damages would not be an adequate remedy Equitable remedies are: o Specific performance o Recission o Injunction. o Rectification THE CRIMINAL COURTS o Declaration  Criminal law = part of public law (concerns the relationship between the individual and the State)  Criminal cases are brought by the prosecution, representing the State, against the defendant (accused)

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Immediate objective: to punish people who have committed offences against society Wider sense: to establish standards of behaviour for a peaceful and productive society and to provide a deterrent against those who might breach these The prosecution is generally brought in the name of the Crown, e.g. R v Brown (1970) (R = Regina) Correct way to express case name – ‘the Crown against Brown’ or merely ‘Brown’ Parties = prosecution (the Crown) and the defendant. Crown Prosecution Service (CPS: body that initiates criminal proceedings in England/Wales This is independent from the police and any other investigative authorities.

Standard and burden of proof = level of certainty a party must provide to succeed at trial One of the key differences between criminal and civil law is the standard of proof. Criminal law = "beyond reasonable doubt" / Civil law = “balance of probabilities”

Magistrates’ Court (Lowest Court) Lowest court in the hierarchy of criminal courts (almost all cases start there and around 95% will end there Tries all summary offences (minor offences) + some triable either way offences (tried at either Magistrate/Crown Court) The court has some civil jurisdiction: power to impose fine up to £5,000/6 month prison sentence for single offence Where Magistrates do not dispose of a case because they don’t have power to impose higher sentence or a Crown Court trial is thought more appropriate, they will commit the defendant to the CC for sentence or trial This court does not create precedent – bound by Administrative Court/Court of Appeal/Supreme Court

Appeals from the Magistrates' Court  A convicted defendant can appeal to the Crown Court against their conviction, or their sentence, or both.  If the defendant appeals against conviction, their trial will be heard 'de novo’ (afresh)  The prosecution has no such corresponding right of appeal – considered too lenient  The risk the defendant takes: sentencing powers of the Crown Court are greater/may be increased  If either the prosecution or the defence consider that the Magistrates' decision was legally flawed (as opposed to flawed in its assessment of evidence, or on sentence), it may appeal to the Administrative Court, a specialist court within the Queen’s Bench Division of the High Court. This is known as an appeal 'by way of case stated'.

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Crown Court Senior court of first instance in the criminal law – hears “indictable only” offences Process – Magistrates hear case first – generally decide whether to grant bail, consider other procedural issues such as reporting restrictions, and then pass case on to the Crown Court for trial CC will also hear ‘either way’ offences transferred from the Magistrates’ Trials in CC involve juries in almost all cases The court is administered by an executive agency of the Ministry of Justice, HM Courts and Tribunal Service

Appeals from the Crown’s Court  A defendant convicted and sentenced in the Crown Court may, with the permission of the Court of Appeal (Criminal Division), appeal: their conviction, their sentence (or both)  The Criminal Justice Act 2003: enables the prosecution (with the consent of the Director of Public Prosecutions) to apply to the Court of Appeal for an order quashing the acquittal of anyone found not guilty of a 'serious offence'.  The Attorney General may appeal, in some limited circumstances, against an 'unduly lenient' sentence imposed by the Crown Court.

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Grounds for appeal against conviction NO AUTOMATIC RIGHT of appeal from the Crown Court to the Court of Appeal The appellant has to apply, on paper, for permission to

Grounds for appeal against sentence Grounds for appeal against sentence  With permission, defendant may appeal against the sentence imposed by the Crown Cour...