Week 4 reading - Notes on \'English Legal System\'- Catherine Elliott and Frances Quinn PDF

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Notes on 'English Legal System'- Catherine Elliott and Frances Quinn...

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Images of Crime- Week 4 reading English Legal System- Catherine Elliott and Frances Quinn 11/10/17

Chapter 1- Case Law Historical Background: When William the Conqueror came gained throne in 1066, he started to standardise the lawchecked local administration and adjudicated in local disputes, formed a consistent body of rules. By 1250, a ‘common law’ had been produced- contained things like the fact that murder is a crime. Principles used today in case law- judge must follow decisions made in courts which are higher up hierarchy than their own. Body of decisions made by higher courts and respected by lower= case law

The Supreme Court: Labour gov announced they were abolishing the House of Lord in 2003, Constitutional Reform Act 2005 was passed. Established in 2009 replacing House of Lord committee sitting as a court, upper chamber still exists. Gov believe the time came to establish a new court separate from Parliament… Separation from Parliament: Led to growth of judicial review case and passing of Human Rights Act 1998 Due to concern that they were dependent on the legislature Not based in the Palace of Westminster= good because lack of space Disadvantage= cost Jurisdiction: Supreme court can hear appeals (civil and criminal) from whole UK European court of Human Rights = hear about human rights issues Court of justice of the European Union= hear about law issues Case only heard by Supreme court if they (SC) give permission to appeal Supreme court doesn’t have power to overturn legislation Membership: Members of SC= Justices of the Supreme Court Approx 70 cases a year Usually 5 judges, 7-9 for important cases The Supreme Court at work: More accessible to public than House of Lords, media friendly Gradually getting a higher profile In 2014 the court heard 68 cases and half of the appeals were successful Physical layout means it’s easier for judges to discuss Only 1/5 cases in 2014 caused a dissenting judgement

Judicial precedent: Deciding a case= know what happened and how the law applies, must treat similar cases in the same way (bound by themselves), forming a judgement Judge must follow decision that has been made by a higher court on a similar case Judicial precedent= rules concerning which courts are bound by which When faced with a case with an earlier decision the judges can either: follow, distinguish, overrule, reverse

Images of Crime- Week 4 reading English Legal System- Catherine Elliott and Frances Quinn 11/10/17

The Hierarchy of the courts: Court of Justice of the European UnionDecisions bind on all English courts Supreme CourtDecisions bind on all English courts Apart from matters concerning European law, SC is the highest appeal court on civil and criminal matters House of lords only overruled one previous decision- R v Caldwell Privy CouncilEstablished by Judicial Committee Act 1833 Judges of SC sit in PC but they remain separate organisations 43 appeals in 2014 Decisions do not bind English courts but have strong authority because of the superior judges Can directly express that previous decision was wrong and domestic courts should treat privy council decision as representing English law. Objective tests- would a reasonable person react in the same way as a defendant?? Problematic as a reasonable person would almost never kill… SO would a depressed, low intelligence reasonable person react in the same way as the defendant? Court of AppealSplit into civil and criminal decisions Both bound by old House of Lords and new Supreme Court In criminal division, the court is more flexible about previous decisions and does not follow them if it would cause injustice. High CourtDivisional courts and the ordinary high court Bound by court of appeal and supreme court Divisional court of Queen’s bench deal with criminal appeals and judicial review (more flexible about previous decisions), the chancery and family divisions deal with civil appeals (bound by previous decisions) Ordinary high court not bound by its previous decisions, but can produce precedents for courts below it. Crown CourtBound by all courts above it Decisions do not form binding precedents but form persuasive precedents Magistrates’ CourtMainly here summary criminal cases Bound by High Court, Court of Appeal, Supreme Court Cannot produce binding or persuasive precedents County CourtHears low- value civil cases Can set precedents for itself but not for higher courts Bound by High Court, Court of Appeal and Supreme Court

Images of Crime- Week 4 reading English Legal System- Catherine Elliott and Frances Quinn 11/10/17 European Court of Human RightsInternational- based in Strasbourg Hears cases alleging neglect of human rights English courts ‘must take account of’ the decisions they make... suggesting it is not completely binding on UK courts Supreme court has on occasion refused to follow an earlier decision of ECtHR on the basis that they didn’t fully understand the UK common law on this subject If there is conflict between ECtHR and a national court binding a lower court, the lower court should follow the higher national one, but give permission to appeal Conflict between Court of Appeal and ECtHR, similar tensions between SC and ECtHR One exception where usual English rules of precedent will not apply and the decision of the ECtHR will be followed not the House of Lords e.g in case of D v East Berkshire Community NHS Trust

Images of Crime- Week 4 reading English Legal System- Catherine Elliott and Frances Quinn 11/10/17 How do Judges really decide cases? Act of Settlement 1700- ensures independence of judiciary Judges have to make decisions that are not spelled out by precedents Ways judges can avoid awkward precedents: argue the facts are different, distinguish the point of law, precedent has been outdated, no clear ratio and decidendi for the decision, claim that the decision was inconsistent with later ones therefore overruled, previous decision failed to consider precedents Ronald Dokwin argues that the judges look at the case, consult their own sense of justice and community’s view on justice Interpretive approach Heavily criticised as unrealistic- they look at facts not principles Critical legal theorists e.g David Kairys take a different view- judges have considerable freedom, decisions are based on a mixture of social, political, institutional, experimental and personal factors and references are made to previous decisions to justify it Griffith argues that the judges make decisions based on public interest, traditional values should be maintained. But interests in society can be completely opposite, therefore not neutral Waldron argues judges are politically influenced but it is not a bad thing. Unrealistic to expect judges to expect a judge to be politically neutral...