Pre-course study = english legal system

- Development and history

- How english legal system has changed
- How this has shaped sources of law
- Court system
- Statues and interpretation
- Parliamentary supremacy
- Importance and interpretation of statues
- Case law and precedent
- Common law jurisdiction
- Binding legal precedent - considering previous cases when deciding current cases
- Retained EU law
- Huge impact of EU law
- ECHR - european convention of human rights - not EU law
- Nothing to do with Brexit

UNIT 1 PART 1: ENGLISH LEGAL SYSTEM

- Where are we?
- British isles - geographic term - not including republic of Ireland
- United Kingdom - England, Scotland, Wales, Northern Ireland
- Great Britain = not including Ireland - Northern Ireland has had a degree of devolved power in
the form of an assembly
- Wales has its own assembly - Senedd
- Scotland has its own parliament
- Our legal system - that of England and Wales - Scotland has its own
- Legal duty:
- Law governs the relations between people and requires them to do or refrain from doing certain
things
- What people OUGHT to do
- Unlawful vs. illegal
- Difference between legal duties and other duties = legal duty carries with it sanctions
enforceable by the state
- Custodial sentence
- Damages
- Moral duties - do not carry sanctions enforceable by the state
- Separate the legal from the moral
- Types of Law:
- Contract law - agreements between individuals
- Criminal law - the right of the state to punish individuals
- Public - duties owed to the state
- Equity - based on duties owed to other individuals on the basis of a legal concept of conscience
- Obligations owed by individuals to each other as a consequence of the rules of equity -
under a trust, charities
- Private law - duties owed to or by individuals
- Contract law
- Tort law = obligations individuals owe to each other not to commit civil wrongs - not
voluntarily assumed unlike those in contract
- Land law - specific law relating to land ownership - overlaps with contract law
- Company law - law concerning companies - about their duties and the rights of
companies, their owners, and their officers - state not involved at this level
- Public law - duties owed to or by the state
 - Constitutional and administrative law
- Criminal law
-
Public law Private law

- Contract law - Criminal law

- Tort law - Constitutional law
- Land law - Administrative law
- Company law - EU law
- EU law

- Where does the law come from - emphasis on the so-called sources of law
- Two principal institutions which make law in English Legal system
- PARLIAMENT
- THE COURTS
- Parliament -
- Monarch
- House of Lords
- House of Commons - government usually has a majority in the House of Commons and
is responsible for introducing most of the laws made by Parliament
- Acts of Parliament, statue, legislation
- Parliament passes legislation - bills are considered, passed into law as Acts
- Legislature - a technical term to describe a body that creates legislation
- Delegated legislation - passed by government departments and local authorities
with the permission of parliament
- Government - the Executive
- Makes and implements policy
- Court -
- Independent, non-elected judges
- Decide legal disputes and dispenses the law - are called the Judiciary
- Equity - law made by courts
- Statute - law made by parliament
- Common law - law made by courts
- What is CASE LAW?
- Since 13th century - law made by the courts has coexisted with laws passed by Parliament
- Common Law developed a doctrine called PRECEDENT - later courts had to follow the
decisions of earlier courts
- Common Law suffered as its development became hindered by rigid precedent
- EQUITY -
- Equitable used to mean fair
- Technical legal meaning - body of law which supplements common law
- Two types of law working together - common law and equity
- Common law - the lay of the land
- Certain
- Reliable
- Predictable
- General application
- Will not produce a fair rule in every state - unconscionability
- Lawyers use equity to temper the common law
- Equity supplements common law - plugs gaps in common law
- Common law dates back to norman conquest 1066 - became rigid and inflexible
- system of equity developed to cover situations which inflexible common law
couldn't deal with
- Court of Chancery developed to deal with huge number of petitions
 - Principles of Equity - so it did not simply depend on the whim of a judge
- Now we have more settled principles of equity
- However - equity itself became inflexible as it developed certain doctrines - two parallel
systems of law, both fairly inflexible
- Since late 19thC - legal system has become much more manageable - same courts deal
with both law and equity (although still two separate sources of law)
- Both can adapt slowly over time
- Equity provides more flexible remedies
- But courts have complete discretion as to whether to dispense an equitable
remedy

Different types of legal rules:

- Public vs private law
public private

- Concerned with both relationships - Concerned with the private relationships

between individuals and the State, and between individuals (including
with State enforcing certain standards of companies)
behaviour - Enforced by individuals taking actions
- Criminal prosecution is an example of against one another in the courts
public law - Claim by a customer against a
- Local authority issuing a “stop” notice in manufacturer under a guarantee
respect of a home extension for which
planning permission was not obtained
- Civil vs criminal law
Civil law Criminal law

- Laws that concern the relationship - Laws that concern the relationship
between individuals in that community between an individual and the rest of the
and do not involve or concern the community as a whole
community as a whole
- Short film - MRS MORRISON’S DISASTROUS DAY
- Husband left her - civil law
- House up for sale - civil law
- Neighbour practising violin at 10 - civil and criminal
- Not well - not at her desk = sick days at work
- She is fired from her job for being ill most of the month - civil law
- Brand new toaster is crap - civil law
- Chocolates have a cockroach in - civil and criminal
- Does not have a tv licence - criminal law
- flowerpot hits him in the head - civil law and social rules
- Phone is disconnected - civil law
- Kicks her neighbour’s car because it is in front of her drive - social and criminal
- Served papers for divorce - civil law
- Calls for an ambulance
- Thief in shop - civil, criminal, social
- Stops the thief in the shop - chases him down the road - nearly hit by car
- Civil law and criminal law
- Criminal - to punish people and deter others- state bringing about a prosecution
- Civil law - to compensate people who have suffered a loss
- Criminal case - a prosecution - police and magistrate and crown court
- Civil case - action or a claim (between individuals) - county and high courts
- Huge overlap
History of English Legal system
- Sources of law -
- Historically - local customs and judges
- Since 18th Century - parliament taken over this role
- 1973 - European law became important
- European Convention on Human Rights - more recently
- Sources of law
- LEGISLATION
- CASE LAW
- RETAINED EU LAW
- ECHR LAW
- Development of the common law
- Post Norman conquest - William Conqueror super involved - gradually became delegated to
commissioners
- Used to be more about local customs but gradually became a more centralised universal law - a
law “common” to the whole country
- Common law became rigid and inflexible - led to the development of EQUITY - COURT OF
CHANCERY
- Chancellor not bound by the rigid procedures of the common law
- Became a separate branch of law with its own rules and procedure
- Eventually - equity did not merely supplement common law - but directly challenged it
- Earl of Oxford’s Case (1615) - James I decided that in cases of conflict - equity should
prevail
- Equity became as inflexible as common law
- Fusion of administration of Law and Equity -
- Supreme Court of Judicature Acts of 1873 and 1875 created a single court structure and
merged the separate court systems
- All civil courts can now grant both common law and equitable remedies in the same
action
- An injunction to stop continuing unlawful behaviour can be ordered, in addition to
damages for losses accrued to date
- Common law today -
- A civil law system is the generic description gives to those legal systems which are based on Roman
Law - in contrast to common law
systems which are based on case law
- Defining feature of a civil
law system is that it is
based on a written code -
role of the judiciary is to
apply the code
- In common law systems -
statute is an important
source of law but it is
NOT the only source and
there is no all
encompassing code
 - Case law - decisions in actual cases which have been considered by the courts
- Statute has always been supreme over case law - statute can amend case law - but case law cannot
amend statute
- Part of the modern doctrine of Parliamentary Supremacy
- Unlike case law - which only applies to England and Wales - in the absence of specific provisions,
statutes apply to the whole of the United Kingdom
- Legislation is often used as a synonym for statute
- HOWEVER - STATUTE IS AN ACT OF PARLIAMENT
- LEGISLATION IS A GENERIC TERM - includes other types of legislation eg. delegated or EU

Legislation:
- Most important source of English law is now legislation = unlike case law - this applies usually to the
whole of the UK
- A statute is an Act of Parliament (AP)
- Legislation - generic term which includes other types of legislation
- Functions of legislation = making, changing, repealing the law
- The creation of Acts of Parliament:
- The monarch, the house of commons, the house of lords - both houses involved in process of
creating AP
- Government publishes a Green Paper, which is a consultation document on possible new law
- White Paper, incorporates the government’s firm proposals for the new law
- AP begins its life as a Bill - Bills are then passed and become APs

-
- - the Doctrine of Parliamentary Supremacy - Parliament is the supreme law-making body in the
country
 - Parliament has the freedom to make laws of any kind
- Statute cannot be overridden by any body outside Parliament
- UK courts and international courts have no power under English law to declare
an AP invalid
- Statute always prevails
- Later parliaments can always repeal APs or change them
- Different types of legislation:

-
- Bills - whether private or public - are known as primary legislation
- Public bills - concern matters affecting the public as a whole
- The Protection from Harassment Act 1997 - which dealt with issues of stalking
- Private bills - affect particular persons or a particular locality
- Bill to build a new section of railway line or a reservoir
- Consolidating or codifying legislation:
- Legislation may also be consolidating or codifying - which does not necessarily make or
change law
- Consolidation -
- When one statute re-enacts law which was previously contained in several
different statutes - they tidy up the law
- Codification -
- Where all the law on some topic, which may previously been covered by
common law, custom, statues - is brought together in one new statute
- May, if necessary, change the pre-existing law -

- Delegated or Subordinate Legislation -

- Law made by bodies other than Parliament - such as local authorities, the Crown and ministers
- but with the authority of Parliament
 - This authority is usually a “parent” Act - which creates the framework for the law, then
delegates power to add the detailed provisions to others
- Statutory instruments - more efficient, more expertised
- Byelaws - made by local authorities to deal with local issues within their own area - cannot take
effect until they are confirmed by the appropriate Minister

UNIT 1 PART 2: THE COURT SYSTEM OF ENGLAND AND WALES

- THE MODERN COURT SYSTEM

- Courts operate throughout the whole of England and Wales to ensure that justice can be
administered locally
- Ministry of Justice is responsible for the organisation and smooth operation of the courts - under
HM Courts & Tribunals Service
- Supreme Court of Judicature Acts 1873 & 1875 - in order to replace separate Common law and
equity

-
- Now a formal separation between the UK’s senior judges and the upper House of Parliament
- 2009 - judicial functions of House of Lords was taken away
- Supreme Court - final court of appeal in UK
- Classification of Courts:
- Superior and inferior courts
- Superior = unlimited jurisdiction - geographically and financially - try the most important
and difficult cases (tiny proportion of cases)
- Supreme court
- Court of appeal
- High court
- Crown court
- Inferior courts = limited geographical and financial jurisdiction = deal with less important
cases
- Family court
- County court
- Magistrates’ courts
- Criminal and civil courts
- Criminal = decide guilt or innocence according to criteria laid down by criminal law - to
punish the wrongdoer
- Supreme court
 - Court of appeal (criminal division)
- High court
- Crown court
- Magistrates court
- Civil = decide disputes between members of society, between the State and individuals,
to grant an appropriate remedy to victim
- Supreme court
- Court of appeal (civil division)
- High court
- County court
- Family court
- Other courts all have civil and criminal jurisdictions
- Trial and appellate courts
- Trial courts = to hear cases at first instance - make a ruling on the issues of fact and
law which arise
- Crown court
- Magistrates’ Court
- Family Court
- High Court
- County court
- Appellate courts = reconsider the application of legal principles to a case which has
already been heard by a lower court - jurisdiction to reconsider disputed issues of fact
- The High court
- The Court of Appeal
- The Supreme Court
- Family Court
- Possible for a case to begin in county court and conclude in Supreme Court on appeal

- Civil Courts and Procedure

- Civil courts of first instance =
- County Court
- Family Court
- High Court
- County Court - deals with most civil actions
- Deals with a range of cases
- Financial disputes up to £100k
- Personal injury claims up to £50k
 -
County Court:
Where - all over country
Who sits - Circuit Judges
District Judges
(junior appointment) who are appointed by Lord Chancellor and
must have a five year general qualification.
Civil Jurisdiction -
General types of work;
Contract or tort actions
Equity jurisdiction (mortgages)
Disputes over wills
Recovery of land
Some family proceedings
Disputes under the Consumer Credit Act
1974
Some county courts have additional jurisdiction to deal
with more specialised work (divorce and bankruptcy)
DOES NOT HAVE CRIMINAL JURISDICTION (ONLY CIVIL)

The High Court

Where - at the Royal Courts of Justice, Strand, London (the Law Courts), and at
provisional centres (manchester)

Who sits - one High Court Judge will sit alone

- If necessary, a circuit judge, senior QC, Lord Justice, or retired judge, may sit
instead

The 3 Divisions - each division has a president

- King’s Bench Division
- Contract and tort actions
- Criminal appeals
- Applications to punish contempt’s committed to inferior courts
- Various specialised courts within - Commercial Courts
- Has some appellate jurisdiction - Divisional Court (two or more judges)
- Chancery Division (three specialised courts within)
- Disputes over wills and administration of estates
- Trusts
- Land and mortgage actions
- Company law
- Bankruptcy
- Has an appellate functions dealing with land appeals from county court
- Family Division
- Cases invoking the inherent jurisdiction (wardship)
- Certain international cases
- High Court Judges do sit in the separate Family Court

Family Court (BOTH PRIVATE AND PUBLIC LAW)

Where - national court. At least one in each Designated Family Judge area - but
business of the court will be conducted at variety of places within each area
“In the Family Court sitting in Croydon”
Who sits -
- Circuit and District judges, Magistrates,
- Judges are allocated according to difficulty and complexity so higher levels of
judge sitting include: Lord Chief Justice, Master of the Rolls, President of the
Family Division, Judges of the Court of Appeal, High Court Judges
Civil jurisdiction - all family cases must commence in the Family Court - with
exception of those invoking inherent jurisdiction (wardship)
- Parental disputes over upbringing of children
- Local authority intervention to protect children
- Decrees relating to divorce
- Financial support for children after divorce/relationship breakdown
- Adoption
- Some aspects of domestic violence
Criminal jurisdiction - all have limited criminal jurisdiction

- Overview of Civil Procedure:

-
- Stage 1 - pre-action steps
- Parties to a civil dispute should wherever possible reach agreement
and settle the dispute without using the courts
- Six different pre-action protocols relating to a different type of claim
- A set of written rules which state what a party must do before
deciding to issue court proceedings
- Vast majority of cases do not proceed to trial and are
settled/abandoned
- Stage 2 - commencement of proceedings
- Issuing proceedings - claimant commences proceedings by issuing a
claim form at the court office
- Two civil courts of first instance = High Court and county court -
claimant may commence proceedings in either (depending on
financial value of claim)
- Financial claims - high court if 100k or more
- Personal injury claims - 50k or more
- Service of proceedings and the Defence -
- Documents detailing the claimant’s case are then served on the
defendant usually by post
- Defendant will draw up written defence claim and send it to court and
to claimant’s solicitor
- Stage 3 - Interim matters
- Court give directions (meaning written instructions) as to the steps
which the parties must take to prepare the case for trial
- Disclosure and inspection of documents to each other
- Exchange of statements from the witnesses they intend to call
- Experts’ reports
- Stage 4 - trial
- Trial if settlement not reached (90% of civil cases do settle)
- Civil case - on the balance of probabilities
 - Judge at a civil trial - decides by applying the law to the facts of
the case whether the claimant has proved his claim on the
balance of probabilities.
- If judge finds the claimant has proved its case, he will award
judgement to claimant
- Losing party usually ordered to pay the winner’s legal costs
- Stage 5 - enforcement of Judgement or Appeal
- If the unsuccessful party does not pay then the winner must take
certain prescribed steps to obtain its money = enforcement of the
judgement
- If the unsuccessful party believes that the court’s judgement was
incorrect - then in certain circumstances - he may appeal against the
decision to an appellate court.
- The Civil Appeals System
- New system of civil appeals introduced in May 2000. - to provide a uniform
and rationalised system for civil appeals.
- General principles:
- Permission to appeal- party who wishes to appeal - appellant - requires the
permission of the court to appeal
- Appellant should first apply for permission - oral request to judge when
judge has delivered judgement
- If judge refuses - appellant must make a written request to appeal -
considered by the Court of Appeal (Civil Division)
- Civil Procedure Rules -
- Permission to appeal will only be given if the court believes the appeal has
real prospect of success
- Or if there is some other compelling reason why the appeal should be
heard
- Appeals are generally on points of law and not fact
- Appeal on point of law - saying that the court got the law wrong - more
straightforward to argue than facts
- Fact and Law:
- Points of fact are not a valid basis for an appeal - not an unreasonable
conclusion for the judge to reach
- Misstating the law is a point of law and could form the basis of an appeal
- The Appeal Courts:
- The High Court-
- High court is both a court of first instance and an appeal court - most
appeals from county court are heard in High Court
- The Court of Appeal:
- Court of Appeal (Civil Division) - dealt with 1269 cases in 2014
- Two divisions - one civil and one criminal
The Court of Appeal
Where - at the Royal court of Justice, Strand, London
Who sits? - usually 3, but sometimes 5 or even 7 Lords of Justices of Appeal
- Supreme Court Justices
- The Lord Chief Justice
- The Master of the Rolls
- High Court Judges
Jurisdiction - entirely appellate - one court divided into two divisions
- Civil division - Appeals in civil cases from:
- High Court
- County Court
- certain tribunals (employment appeal tribunal)
- Criminal division - Appeals in criminal cases from:
- Crown Court by the defendant
- References by the Attorney - on a point of law or against an unduly lenient
sentence
- Referrals by the Criminal Cases Review Commission
- Application for leave to appeal the Supreme Court
Procedure
- Court of Appeal does not receive evidence from witnesses
- Reads documents and heard arguments
- Majority decision prevails (so odd number of judges)

The Supreme Court (previously House of Lords)

Very few cases
Where - parliament square, westminster
Who sits? - 3-9 (but usually 5) Supreme Court Justices
Jurisdiction - almost entirely appellate - it is the final court of appeal
- Civil jurisdiction - appeals in civil cases from:
- Court of Appeal (Civil Division)
- High Court (leapfrog procedure)
- Scotland and Northern Ireland
- Criminal jurisdiction - appeals in criminal cases from:
- Court of Appeal (Criminal Division)
- KBD (Divisional Court)
- Northern Ireland (NOT scotland)
Procedure -
- Does not receive evidence from witnesses
- Reads documents and hears argument
Criminal Courts and Procedure
- Criminal courts of First Instance
- Magistrates’ courts
- Crown Court
Magistrates’ Courts
Where - 160 all over the country
Who sits? - lay magistrates (usually 3) or sole district judge
- Magistrates’ courts district judges are legally qualified and tend to sit in the inner
city courts
- Lay magistrates are assisted by the clerk to the justices (or his deputies or court
clerks) to advise them on questions of law, practice, procedure
Criminal jurisdiction -
- Issues of summonses and warrants for search or arrest
- Hearing bail applications
- Trial of summary offences
- Mode of trial procedure to decide whether case should be tried summarily in
magistrates’ court of in indictment in Crown Court
- Committal proceedings - certain cases formally sent up to Crown Courts for trial
sentence
- Youth Courts
Civil jurisdiction -
- Magistrates also have a limited civil jurisdictions - licensing

The Crown Court

Where - one court
- But the country divides into 6 circuits for admin convenience
- Midland and Oxford / Northern / South-Eastern
- Crown Court for City of London - Central Criminal Court - Old Bailey
Who sits? - depends on gravity and/or nature of work
- High Court Judge (KBD) or Circuit Judge or Recorder
- Magistrates may sit with judges on appeals and jury for trial
Criminal jurisdiction -
- Trials of indictment (with jury)
- Sentencing cases from magistrates’ courts where their sentencing powers are
inadequate (max 6 months imprisonment)
- Appeals by defendants convicted in magistrates’ courts
- Very limited civil jurisdiction - appeals on licensing from magistrates’ courts
- Criminal offences are divided into three categories:
- 1. Summary only offences, such as
- driving without insurance or common assault.
- These are minor offences and must be dealt with in the magistrates'
court.
- 2. Indictable only offences
- murder or robbery
- These are the most serious offences and can be tried only in the
Crown Court.
- 3. Either way offences may be dealt with in either court.
- These are typically offences which are capable of being more or less
serious depending upon the way in which they were committed.
- Theft may involve taking a chocolate bar from the local shop or a
sophisticated fraud involving millions of pounds.
- Police investigate -
- If police have reason to believe a criminal offence has been committed -
they will investigate
- Questioning
- Witnesses
- Forensic evidence
- Issue a charge or summons - formal documents in which prosecution set
out the offence of which they are accusing the defendant
- Charge- charge will be read out
- Summons - summons will be sent to a defendant by post - driving
offences
- Crown Prosecution Service - responsible for the prosecution
- Magistrates’ court
- If summary offence - careless driving etc - stays in magistrates’ court
- Lay magistrates - lay people - not qualified as lawyers
- In order to convict - the magistrates must be satisfied that the
prosecution has proved beyond all reasonable doubt that the
defendant committed the offence
- Indictable only offences - moves to Crown Court for trial
- Roles of Judge and Jury at Trial
- Juries - introduced by Henry II
- Provides a safeguard against the abuse of judicial power
- Jury judge the facts and the judge directs the jury on the law
- Jury do not hear legal arguments - Judge explains to jury was
the relevant law is
- Criminal case - jury state whether accused is guilty or not - then
the judge decides appropriate sentence
 - Criminal appeals - defendant can appeal against conviction or against
sentencing
- Prosecution can appeal against the decision of defendants being
acquitted
- Appeal after summary trial (magistrates’ court)
- Defendant can appeal to Crown Court against sentence and/or
conviction
- Can appeal to High Court but only on points of law - challenge
to the accuracy of the equipment used by police etc.
- Appeal after trial on Indictment (Crown Court)
- Can appeal to Court of Appeal - only if permission obtained
- May be on point of law/fact, or against the sentence
- Then goes to Supreme Court if not settled in Court of Appeal

Other Courts:
- Law of England and Wales is affected by the Privy Council and the European
Court of Human Rights
- European Court of Justice also had a significant role before Brexit and
retains a residual jurisdiction

The Privy Council

Where - parliament square, London
Who sits? - at least 3 (usually 5) of the following:
- Supreme Court Justices
- Lord President of the Council
- Members of the Privy Council
- Commonwealth Judges who are members of Privy Council
Jurisdiction -
- Appeals from certain commonwealth countries - these decisions are not binding
in English courts - are highly persuasive, because of the seniority of the Judicial
Committee’s personnel.
- Hearing questions relating to the competences and functions of the legislative
and executive authorities established in Scotland, Wales and Northern Ireland
Procedure -
- Judges read documents and hear arguments, then give ‘advice’ (not judgement)
to the King.
- Advice takes the form of one opinion
- Dissenting opinions are allowed
Role of the Privy Council is likely to decline - as New Zealand abolished this route of
appeal and the Caribbean Court of Justice has now been established.
The Court of Justice of the European Union
Where - Luxembourg
Who sits? - judges appointed by agreement among the governments of the Member
States (at least one judge from each)
- Judges are assisted by Advocates-General
Jurisdiction - the ECJ is one of two courts which make up the Court of Justice of the
European Union. ECJ’s jurisdiction includes:
- Ensuring European law is applied uniformly in all member states. Preliminary
rulings on the interpretation of Treaties, interpretation or validity of acts of EU
institutions, and interpretation of statutes of other EU bodies
- Actions against member states to determine whether they have failed to fulfil
their obligations under the Treaties. Brought either by the Commission or by one
member state against another for failure to fulfil its Treaty obligations.
- Limited power to deal with actions brought by individuals
Procedure -
- Only one collegiate judgement is delivered
- Advocate-General assigned to the case assists the court by presenting an
opinion (a detailed analysis of all the relevant issues of fact and law) together
with his recommendations to the court (which may or may not be followed)

The European Court of Human Rights

Where - Strasbourg
Who sits? - judges are appointed from each state which is a party to the European
Convention on Human Rights of 1950
Jurisdiction -
- Court was set up under the Convention - an international treaty which blinds
ratifying States to observe certain standards of behaviour towards individuals
(the right not to be subjected to torture and the right to a fair hearing)
- Individuals, can if necessary, complain of breaches to the ECHR - can be
extremely expensive and takes years
- 2 October 2000 - Convention rights now directly enforceable in our domestic
courts, Human Rights Act 1998
- Recent rulings - Turkey being ordered to settle property disputes arising from
1974 Cyprus invasion, ruling against the UK in relation to the ban on the vote for
prisoners

- Tribunals: as well as the court system, there is also a system of tribunals and
inquiries which operates in parallel to courts
- Not strictly courts
- Quasi-judicial role - mirroring the lower courts in the court system in
specific fields
- Tribunals are established by statute to deal with certain types of claims
only
- Members of tribunals, unlike judges, have extensive practical knowledge of
the types of cases which come before them
- Employment tribunals:
- Jurisdiction to hear complaints from employees who believe that they
have been unfairly or wrongfully dismissed from their jobs
- Complaints of sexual and racial discrimination
- Claims for redundancy payments and maternity leave
- In 2007, most tribunals were organised into a unified structure.
- First Tier tribunals are equivalent to trial courts (such as the County
Court) and appeals on questions of law are heard by Upper Tier
tribunals.
- Further appeals beyond the tribunal system are to the Court of
Appeal.
- Advantages of Tribunals over Courts:
- Quicker, cheaper and more convenient system of settlement than
courts
- Some tribunals have seen an increased involvement of lawyers and
greater procedural formality - bit more like modern courts
- Tribunals staffed by experts
- Regular courts are able to interfere whenever the legality of the tribunal’s
action has been called into question - appeal on point of law or the judicial
review procedure may be used
- Statutory Inquiries -
- Not to be confused with Judicial Inquiries
- Established by statutes to examine common specific situations where
courts may not necessarily have the expertise or appropriate
procedures
- Charity commission investigates misconduct in the
management of a charity
- Planning Inquiries - common means of hearing appeals in
relation to development of land
- Judicial inquiries are established on ad hoc basis to deal with specific
issues of public interest
- Run like court cases and run by senior members of judiciary
- Do not necessarily reach a ‘decision’ in the judicial sense - they
investigate facts and reach conclusions
- Established by parliament with wide ranging powers to call and
question witnesses
 - Bloody Sunday Inquiry in 1998, reported in 2010
- Sometimes launched by government -
- Chilcott Inquiry established to examine how and why UK’s
involvement in Iraq started and what lessons can be
learned.
- Leveson Inquiry - 2012 - role of the press and police in
phone-hacking
- How do Tribunals differ from Inquiries?
- Tribunals, like courts, reach their own independent decision by
applying established principles of the law
- Inquiries - designed to obtain facts and opinions from all parties
concerned
- After inquiry - then for some other person, such as the Minister for
State - to reach a decision, but from a fully informed standpoint.

Personnel within the Legal System:

- The Lord Chancellor - Secretary of State for Justice
- Continues to be the government minister responsible for the judiciary and
the courts’ system - no longer a judge or head of the judiciary
- This role has been taken over by the Lord Chief Justice
- Responsible for the new Ministry of Justice - formed as a consequence of
the division of the Home Office
- Secretary of State for Justice - responsibility for prisons, probation,
sentencing
- The judiciary - see diagram
- The Attorney-General and the Solicitor General
- Legal advisers to the Crown, assisted by junior counsel to the Treasury
(practising barristers)
- Both are usually barristers, although solicitors have held both positions
- Usually members of the House of Commons
- Attorney-General - a political appointee (member of the government of the
day)
- Represents the Crown in some civil proceedings and in criminal trials
where important constitutional or political issues arise (treason)
- Aso bring actions on behalf of the public - to restrain a public
nuisance
- Has a duty to represent the public interest in criminal matters
- Law officer for Scotland at Westminster Parliament is now called Advocate-
General for Scotland.
- The legal profession
- Barristers - the Bar Council
- Solicitors - Law Society and Solicitors Regulation Authority
UNIT 2 PART 1: SOURCES OF LAW - STATUTORY INTERPRETATION
- Statue is the primary source of law in England and Wales
- Parliamentary draftsmen have to give concrete statutory shape to what
often starts as political hot air
- Have to turn results of debate and compromise into unambiguous,
consistent, adaptable form
- Statutes need to be applied in a world beyond the imagination of the most
far-thinking draftsmen
- Sometimes statutes are confusing or downright absurd in their effects
- The importance of statutory interpretation
- Statute as primary source of law in England and Wales - one important
feature of parliamentary supremacy
- Even though this is a common law jurisdiction, no court may overrule
any statute
- Court can do no more than interpret it
- Detailed wording of the statute is critical - this is what courts will pore over
in difficult cases - slightest drafting error can have great ramifications
- Courts play a vital role - ascertain and apply the intention of Parliament
- Who is involved in the creation of statute:
- Minister - a Government Minister will promote a Bill - they or their
department will formulate the policy
- Act eventually passes will have been amended greatly from this initial
Bill
- Draftsmen - the Parliamentary draftsmen then try to put that policy into
concise legal language
- No formal role - just translate intent
- MPs in committee - the Bill spends a considerable time being discussed in
detail by MPs in committee
- Politically motivated
- MPs in House - Bill is voted upon by both Houses of Parliament at various
stages
- Politically motivated
- The Monarch - Monarch formally assents to the Bill - it is at that moment
that it becomes an Act
- Example - Goodwin vs Crown
- Goodwin, on a jet ski, hit a stationary jet ski - causing serious injury to that
person
- Is a jet ski a ship - was he employed as master of the ship
- Principles of interpretation - do not have to be applied in any order
- 1. Rules of Construction - reasons why a court of lawyer places a particular
construction on a statute
 - 2. Rules of Language - technical tools to help you use the language in a
statute to resolve any ambiguity
- 3. Aids to interpretation - resources outside the statute, such as
dictionaries, which a lawyer can use to help resolve problems
- 4. Presumptions assists lawyers by providing a set of assumptions about
the intent of Parliament - as a backdrop to their reasoning
- Rules of Construction
- The Literal Rule - applying the language of a statute using the ordinary and
natural meaning of the words
- Dictionary often helps - dog is a dog, never a wolf
- Literal rule can lead to unfairness in rulings - times and situations
change
- The Golden Rule - designed to mitigate problems which arise with Literal
Rule
- If Literal Rule leads to manifest absurdity or invidious result - then
court will depart from the literal meaning if there is any ambiguity -
there needs to be some ambiguity
- The Mischief Rule - strives to allow interpretation of a statute in line with
the intent of Parliament
- Looking at Hansard - official record of proceedings in Parliament
- Court will try to ascertain why the legislation was introduced with this
wording - seeks to resolve any ambiguity and reflect the legislative
intention
- The Purposive Approach - mainly used for laws from EU legislation
- Retained EU Law adapted from European Communities Act 1972 -
post Brexit
- Courts may interpret legislation bearing in mind the purposive
approach and mischief rules are interchangeable
- EU laws are written very differently to UK laws - EU: very broad
principles are set out - UK: exhaustive level of detail
- EU laws are meant to allow adaptability
- UK legislation seeks to cover every eventuality precisely
- UK courts will adopt an en explicitly aims-based or policy-driven
approach to Retained EU Law
- Rules of Language
- If Rules of Construction are about why courts interpret legislation as they
do - Rules of Language are about how they achieve these ends
- Crown vs. Goodwin - is a jetski a ‘ship’, a ‘vessel’, so that it comes under
Act 58 - court said it was not
- Judicious and judicial use of Rules of Construction helps decide which
meaning to five words
- Rules of Language explain how the words have the meaning they do
 - Together they can be used to resolve most ambiguities in the
statutes.
- Aids to Interpretation -
- Courts are prepared to use anything to ascertain the intention of
Parliament - place greater reliance on some sources than others
- Centre of attention is always statute itself - anything used in the same
Act is called Intrinsic Aid
- If intrinsic aids don’t do the trick, the courts can look beyond the statute -
Extrinsic Aids
- The interpretation acts -
- give us general assumptions for interpreting statutes - eg. that
the masculine includes the feminine in the absence of a
contrary express statement in an Act
- Hansard-
- record of the proceedings of Parliament, helps us determine the
intention of lawmakers (mischief rule)
- Previous statutes -
- Can be problematic
- Dictionaries
- Academic know how -
- Courts will derive assistance from articles written on
controversial areas of law by legal academics
- Previous judicial interpretation
- Others:
- Law commission
- Official reports
- Legal practice
- International conventions
- Other jurisdictions
- Historical setting
- Presumptions - certain rebuttab
- le presumptions that can guide courts and lawyers
- Loose rules that give lawyers a common starting point from which to depart
in their reasoning
- Rebuttable because a statute may expressly override
- Against alteration of common law
- The theory is that these two sources of law- statute and precedent
case law- should sit comfortably alongside one another.
- sometimes difficult when statute - for instance, the Sale of Goods Act
- is superimposed upon existing areas of law- in that case, the law on
contract terms.
- In a penal statute any ambiguity is construed in favour of subject
 - Any ambiguity is construed in favour of the defendant
- A man should not be given criminal liability if the law is genuinely
unclear
- No criminal liability without guilty intent
- Unless the statute expressly states otherwise - criminal liability will
accrue only if the defendant intended in some way to commit the
crime
- Only applies to criminal cases - not civil cases
- Against the retrospective operation of statutes
- Against ousting the jurisdiction of the courts

Introduction to statutory interpretation

- Why is statutory interpretation necessary -
- Statute is primary source of law in England and Wales
- To resolve ambiguities in order to find its true meaning
- Drunk on a bicycle - drunk in charge of a carriage
- object/intention of Act - protection of public and preservation of public order
- On this ground - carriage can include any vehicle capable of carrying a
person
- A carriage in my opinion because it carries - maybe bicycles unknown at
time but the intent of the legislature was to prohibit the use of any sort of
carriage in a manner dangerous to others
- “I am clearly of opinion that the words of the Licensing Act are wide enough
to embrace a bicycle under the expression ‘carriage’”
- Problems of interpretation - we need to interpret legislation to decide whether it
applies to a particular set of facts.

Rules of construction
- Although they are commonly referred to as rules - they have more in common
with general principles
- Construction in a legal context means the same as ‘interpretation’
- The Literal Rule
- Words must be given their plain, ordinary, and literal meaning
- If the words are clear, they must be applied, even though the intention of
the legislator may have been different or the result is harsh or undesirable
- "If the words of the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound those words in that
natural and ordinary sense. The words themselves alone do, in such a
case, best declare the intention of the law giver."
- Problems - the use of this rule may defeat the intention of Parliament and
lead to absurd results
 - Can lead to injustice - go against the intention of Parliament
- Whiteley v Chappell - illegal to impersonate a ‘person entitled to vote’
- if that person is dead - then there is no crime
- If Parliament does not like the literal interpretation, then it can always
amend the legislation - not the judge’s fault
- The Golden Rule -
- An adaptation of the literal rule. Provides that, where there are two
meanings to a word or words, they should be given their ordinary meaning
as far as possible, but only to the extent that they do not produce an
absurd or totally obnoxious result
- Think about the purpose and the intent of the Act
- Applied most frequently in a narrow sense where there is some ambiguity
or absurdity in the words themselves
- Also used in a wider sense - to avoid a result which is obnoxious to
principles of public policy - even if words have only one meaning
- R v. Allen (1872) LR 1 CCR 367 required an interpretation of s.57 of the
Offences Against the Person Act 1861. This section provided that:
'Whosoever being married, shall marry any other person during the lifetime
of his spouse . . .' shall commit the offence of bigamy
- Dual meaning of marry = took to mean ‘going through a marriage
ceremony’ - as you literally cannot get married twice
- The Mischief Rule -
- Requires the interpreter of the statute to ascertain the legislator’s intention
- Court considers what ‘mischief’ or defect the statute was intended to
remedy
- Rule is now used more widely - one could argue that every statute is
passed for a reason and that this rule could be applied to any statute.
- Apart from social reasons, which cover a very wide range, there are
economic and political reasons, and statutes are also passed in order to
remedy defects in previous legislation.
- Purposive approach -
- Judges look at the reasons why the statute was passed and its purpose,
even if it means distorting the ordinary meaning of the
- Has largely overtaken the Mischief Rule in relevance
- Widely used in EU law, which is drafted with the expectation that judges
will consider the policy behind the words.
- Legislation related to EU law -
- Under the European Communities Act 1972 (now repealed) - court had to
adopt a purposive approach in construing EU-related legislation and in
particular UK provision that implemented EU law.
- Ever since Brexit - courts have been expressly referred to the parent EU
legislation (under the EU Withdrawal Act 2018) - no longer mandatory
 - EU legislation is drafted with simplicity and a high degree of abstraction -
rather than exhaustive approach adopted in the UK
- Demands a purposive approach
- This approach did not disappear after Brexit - it is just no longer
mandatory

Rules of language
- Similar to rules of language - not rules in strict sense - more general principles
- Noscitur a Sociis
- Known by the company it keeps
- Recognition by associated words
- A word derives meaning from surrounding words
- Eg. clause in a lease agreement states : ‘only the following animals are
permitted in this block of flats - dogs, cats, hamsters and gerbils’ - would
this include a leopard? - NO -not the same type of animals
- Eiusdem Generis
- Of the same kind of nature
- If a general word follows two or more specific words, that general word will
only apply to items of the same type, as the specific words
- Common feature of the words
- Expressio Unius est Exclusio Alterius
- Expressing one thing excludes another
- Any mention of one or more specific things may be taken to exclude others
of the same type
Statutory aids and presumption
-

- Extrinsic aids:
- Interpretation acts
- Give definitions of words commonly found in legislation - the
Interpretation Act 1978 states that, in all legislation, the masculine
includes the feminine and the singular includes the plural - unless
stated otherwise
- Dictionaries
- Can be referred to when a word has no specific legal meaning
- Particularly valuable when using literal approach
- Other statutes
- Could be either earlier statutes replaced by current statute or any
other statute
- Just because a word has been interpreted in one statute does not
mean it will be interpreted the same way in another
- Hansard
- Records of Parliament proceedings
- Speeches by MPs
- Pepper v. Hart [1993] - House of Lords decided that the courts could
refer to Parliamentary material recorded in Hansard if
- The statute is ambiguous or obscure or its literal meaning leads
to an absurdity
- The material consists of clear statements by a Minister or other
promoter of the Bill
 - Presumptions - the courts apply certain presumptions in interpreting legislation
- It is always possible to rebut any presumption, i.e. to bring strong evidence
to prove that Parliament had a contrary intention
- Against alteration of the common law.
- Unless the statute expressly states an intention to alter the common
law, the interpretation which does not alter the existing law will be
preferred.
- Against the retrospective operation of statutes.
- Where an Act of Parliament becomes law, a presumption arises that
it will only apply to future actions.
- This is particularly important in relation to taxation and criminal law
cases.
- However, some legislation is specifically stated to have retrospective
effect and an example is that of the War Crimes Act 1991, which
allows the prosecution of those suspected of committing acts of
atrocity during World War II.
- Against criminal liability without guilty intention (mens rea).
- There is a presumption in favour of mens rea or guilty mind in
criminal matters.
- When creating new criminal offences, Parliament does not always
define the mens rea required.
- In these cases, the presumption will be applied.
- In Sweet v. Parsley [1970] AC 132, a school teacher was convicted
of drugs offences after her tenants were discovered growing
cannabis in her rented house. She was found guilty, despite her lack
of knowledge of the situation, but the decision was later overturned
by the House of Lords (now the Supreme Court) using this
presumption.
- Against deprivation of the liberty of the individual.
- Accordingly, any ambiguity in a criminal or penal statute will be
interpreted in favour of the citizen.
- Against deprivation of property or interference with private rights.
- Against binding the Crown.
- Unless there is a clear statement to the contrary, legislation is
presumed not to apply to the Crown.
- Against ousting the jurisdiction of the courts.
-

Statutory interpretation - a summary

- In conclusion:
- in addition to the three basic rules of construction, there are other rules of
language, aids and presumptions;
 - none of these is binding, there is no order of priority and judges may
choose which to apply;
- the choice of rule may affect the outcome of the case;
- sometimes more than one rule is used in the same case, even by the same
judge;
- At times, one rule is needed in order to reach a decision on another rule.
For example, intrinsic aids to support the mischief rule; or the mischief rule
to rebut the presumption of mens rea being required.
- Principles of interpretation to use:
- 1. Start with a Rule of Construction, initially the Literal Rule.
- 2. If EU or ECHR Law, use the Purposive Approach.
- 3. Support the reasoning with a Rule of Language (in particular for lists), or
an Aid to Statutory Interpretation.
- 4. Keep Presumptions in mind, if the statute is still ambiguous.

UNIT 2 PART 2 - PRECEDENT

Introduction to the Doctrine of Precedent

- England and Wales - common law jurisdiction
- Law is developed and interpreted by judges
- Very clear rules which judges must abide by when formulating decisions
- Traditionally judges do not make law - they decide cases in accordance with
existing rules
- Doctrine of precedent - stare decisis (let the decision stand)
- Developed slowly over centuries and requires that, in certain
circumstances, English courts are bound to follow decisions which have
been reached in previous cases (this is unlike EU courts)
- Important to common law and to the interpretation of legislation by judges
- When does the doctrine apply?
- A proposition states in one case is binding in a later case if it is:
- A proposition of law
- Part of the ratio decidendi of a case
- Decided in a court who decisions are binding on the present court
- There are no relevant distinctions between the two cases
- A case must be decided in the same way as an earlier one if its material
facts (which are legally relevant) are the same
- Part of the earlier case which is potentially binding is called the ratio
decidendi - ‘reason for the decision’
- The later court does not have to accept and follow everything the previous
courts said - only the principle going to the heart of the decision
 - Whether the ratio is binding depends upon both the hierarchy of the courts,
and the isolating of the ratio decidendi of the previous case
- Principles of fairness -
- Basic principle of justice that ‘like cases should be treated in like ways’ =
the consistency principle
- Also a basic principle of justice that people should be able to assume that
rules will be applied to them in a predictable way = the certainty principle
- The punishment should fit the crime = the proportionality principle
- In common law cases - courts formulate the ‘rules’ as they decide cases,
rather than having a rigid set of rules already in place (like a rugby match)
- It is more efficient to apply past precedents rather than ‘reinvent the wheel’ by
arguing a case from the beginning again
- Also ensures public know what law is - law must be respected by majority
of population if it is to remain credible

-
- The only winners, if the law is uncertain, are the lawyers
- Doctrine of precedent aims to ensure that the law is certain, and applied
consistently, with due regard for differences between cases and the context in
which the decisions are taken
- Certainty has its disadvantages - times change
- Society’s attitude towards cohabitation changed
- Simple answer is for Parliament to legislate to change the law to keep up
with the times
- But this is slow

Case Law and Precedent

- Common law vs. civil law
- Many differences in the ways in which common Law and civil Law
jurisdictions dispense law
- Common law - cases can create binding precedent
- Uses very specifically drafted legislation to cover all eventualities
 - A system of binding precedent
- Civil law - cases always non-binding
- Uses high-level principles interpreted on case-by-case basis
- An informal idea of consistency between judgements, but usually no
system of precedent
- Doctrine of precedent - court is bound to follow an earlier decision if all four
conditions are met

-
- Proposition of law -
- To be capable of forming part of case law, there must be a proposition of
law
- A statement for example about legal obligations - what someone ought, or
ought not to do
- Statement of fact, provable using evidence, is in a particular case the
reason for the statements of law
- Do not confuse facts with matters of law
- Part of the ratio decidendi
- Ratio decidendi is literally the reason for the decision
- Decision - In any court case, the most important thing for the parties is the
decision.
- In a criminal case, this will result in acquittal or conviction;
- In a civil case, it’s a question of liability.
- Material facts - the relevant or material facts are what courts must consider
- In the background of this - there is always the LAW
- The judge’s role is to apply those principles of law to the facts so as
to reach a reasoned decision
- The ratio - is the reasoning
- It is ratios from related cases which form the body of case law in any
area of law
- Obiter Dictum - obiter dicta
- Any reasoning in a judgement which is not part of the ratio decidendi
- ‘By the way’
- Any statement of law which is not necessary for the decision will be obiter
 - Not binding on any other court - they are persuasive = they influence but
do not decide later cases
- Need not be taken into account at all
- Ratio is anything which is part of the reasoning necessary for the decision
of the case
- Hypothetical views = obiter
- Binding Courts -
- Need a statement of law which is part of the ratio
- Statement must have been made in a court whose decisions are binding
on the court which is considering the precedent
- Issue of whether the law declared by one court will bind another
- The Supreme Court - binds all courts below it
- Is not bound by itself
- It can change its thinking on the law as it develops
- Rare for the court to depart from its own earlier decisions - because
of important of judicial consistency
- Court of Appeal - bound by courts above it
- Generally binds itself
- So that the law dispensed in Court of Appeal is consistent and it
binds all courts below it
- High Court - generally not a court that binds lower courts
- In its narrow appellate jurisdiction in theory binding on the Crown
Court and the Magistrates’ Courts in later cases
- Binds itself
- Bound by Court of Appeal
- Crown, County, Magistrates’ Courts
- None of them have any binding authority
- Binding and persuasive authority
- Judgements in many courts - not binding - does not mean they have no
effect on other courts
- Just like obiter dicta - they are persuasive in the sense that a court may
take notice of them and be influenced by them
- Judgements in lower courts, in foreign courts are persuasive
- Human Rights Act states that the decisions of the European Court of
Human Rights are persuasive in relevant matters
- European Court of Justice - used to be a binding court in UK - no longer
has that status - but judgements are very persuasive
- Binding in matters of EU law
- Factual Distinctions between Cases -
- Fourth and final element of doctrine of precedent
- Distinctions of fact between cases and how that affects precedent
 - A lower court will be bound to follow the decision of a high court if the
material facts are the same (and other conditions met)
- Material facts X, Y, Z
- Clever advocate will argue that there are material factual distinctions
between the precedent and the present case
- Material facts now X, Y, Q
- Advocate who wants to avoid the application of an earlier case - will try to
distinguish it, confine it to its facts - legal way of saying ‘that’s not relevant’
- However, people will disagree about the description of relevant facts - one
person may argue that the description is WIDER than their opponent’s
suggestion
- How courts apply precedent:
- ‘Distinguishing’ is the term used to describe the position where a court
declines to follow an earlier authority - where material facts are different

A Proposition of Law
- To form the basis of binding precedent - the proposition must be one of law and
not fact
- A distinction between fact and law is not one which one can intuitively perceive
on some kind of self-evident basis - it is historically derived
- Related to division of function between judge and jury
- Questions of law - decided by judges
- Questions of fact - decided by juries

Ratio Decidendi
- Forms part of the judgement of a case

- Judgement -
 - Precedent can only operate if the legal reasons for past decisions are
known
- So at the end of a case - judge gives a judgement
- Everything judge says is part of judgement - but need to distinguish
between the ratio, proposition of law which is binding, and obiter dictum
- For lawyers - vital part is where judges set out the reasons for that decision
- it is this legal principle which becomes the binding part of the judgement
and the precedent for future cases

- "The ratio decidendi of a case is any rule of law expressly or impliedly

treated by the judge as a necessary step in reaching his conclusion, having
regard to the line of reasoning adopted by him . . ." (Precedent in English
Law)
- Material facts - are what is is necessary to take into account when
determining the ratio of the case
- Finding the Ratio- very difficult
- Judgements are lengthy and ratio is not highlighted or labelled
- Judges frequently have more than one reason for their decision
- May be more than one judge - not necessarily giving the same reasons
- Multiple judge courts - distinguish between the ratio of the individual judge
and ratio of the court as a whole
- Material facts - it is the number of facts considered to be material which will make
the ratio either narrow or broader
- The more general the statement of facts, the greater the number of
subsequent cases which will be ‘caught’ by the principle and therefore the
 wider the ratio

- Difficulties in finding the ratio:

- Very old cases may state no reason for their decision, and their authority is
then weak
- Not all the reasons given for a decision are essential. Subsequent cases
may help clarify what is considered to be essential for the decision
- A judge may give more than one reason for his decision and a subsequent
case may decide that there was more than one ratio
- Cases may involve more than one judge
- Obiter Dictum - once ratio has been identified, the legal reasoning in the
remainder of the judgement is called ‘obiter dicta’ (other things said)
- Anything that does not form part of the ratio
- Not binding on future courts, but may be persuasive
Types of Obiter -
- Outside necessary reasoning -
- A proposition may be obiter if it is wider than necessary to decide the
particular case
- Speculation -
- Proposition may be obiter if a judge speculates about the decision he
would have made if the facts of the case had been different
- Statements outside binding precedent
- If the judge says what his decision would have been if he had not been
bound by judicial precedent
- Dissent
- If it forms part of a dissenting judgement
- A dissenting judgement = in appellate court where one judge (three judge
court) or one or two judges (five judge supreme court) = finds for the
opposite party to the majority of judges.
- Majority view prevails and the other judge is said to have produced a
dissenting judgement
Distinguishing Cases
- Final element of the doctrine of precedent - that a proposition stated in one case
will only be binding in a later case - if there are no relevant distinctions between
the two cases.

- If the earlier case was decided in a higher court then its ratio is binding on lower
courts
- The ratio is the application of the law to the material facts -
- it is the later court which determines both what is the ratio of the earlier
case and what are the material facts of the later case
- If the court considers the case before it to be different in some material way
from the precedent cited - on facts or the law - the earlier case need not be
followed.
- Present case will be distinguished and as a consequence = later court could
decide not to apply the ratio of the earlier case
 -

How to determine which court’s cases are binding

- A precedent will only be binding if it is from a binding court
- General principle is:
- All courts are bound by superior courts
- Some courts are bound by previous decisions of their own courts
- Courts are never bound by courts of a lower level
- Court of Justice of the EU
- ECJ
- Not bound by its own previous decisions - does not have a concept of stare
decisis
- System adopted by the court was based on that used in the national courts
of all original Member States of the EU - legal systems developed from the
civil law system
- Decisions of the courts of civil law countries do have an important effect -
judges and commentators consider carefully what has been said by
previous judges
- Courts in civil law countries - do not raise single decisions to the
theoretically high status which they have in English law
 - Decisions of ECJ are no longer binding in English law but are very highly
persuasive
- European Court of Human Rights
- ECHR
- Not bound by its own previous decisions - no concept of stare decisis
- Have an important effect on developing ECHR law
- UK Supreme Court
- Practice Statement 1966 - no longer bound by its own previous decisions
- Emphasising the need for certainty and dangers attached to departing from
its previous decisions
- Supreme Court has used this power sparingly - requires something more
than that a previous decision was wrong
- Used where the previous decision
- Causes injustice
- Impedes development of the law
- Itself caused uncertainty
- Even where it concludes that the law should be changed - Supreme Court
considers whether the departure from precedent is appropriate remedy
rather than legislation
- Court of Appeal (Civil Division)
- 1944 decided - Normally bound by its own decisions, but subject to three
exceptions:
- Where its own previous decisions conflict
- Court in second case maybe not aware of first case - only a few
days earlier or never officially reported
- Second case may have distinguished the first
- First decision not cited to the court or cited but misunderstood
by the second court
- Where its previous decision has been implicitly overruled by the
House of Lords/Supreme Court
- Where a case has by-passed Court of Appeal and gone straight
to Supreme Court (leapfrog)
- Where its previous decision was made per incuriam
- Per incuriam = through carelessness
- Construed narrowly - not enough that previous decision is
wrong
- Decisions given in ignorance or forgetfulness
- Since this decision - two further exceptions
- Where it was an interim decision by two judges
- Where one of its previous decisions is inconsistent with a subsequent
decision of the ECHR
 - Court of Appeal is free to (but not obliged to) depart from the
earlier decision
- Court of Appeal (Criminal Division)
- All exceptions which apply to Civil Division apply to the Criminal Division
- In addition - Court of Appeal has a wider discretion where the liberty of the
individual is at stake
- Are Civil and Criminal Divisions bound by each other -
- Has been no ruling as to whether they are
- Their predecessor courts were not - so it assumed they are not
- The High Court
- Dual jurisdiction - appellate and court of first instance
- Appellate - these decisions are binding precedents for magistrates’ courts
- Bound by its own decisions, subject to same exceptions as the Civil
Division of the Court of Appeal
- First instance - decisions of individual judges are binding on the county
courts but NOT on other High Court judges
- Judges do try not to depart from precedent
- The Crown Court
- Crown Court, like High Court – not bound by its own previous decisions
- But in interest of certainty in criminal matters - is strongly persuaded by
them
- Judge sits with a jury - judge’s decisions only points of law that is relevant
- Family Court
- Appeals will be either within the Family Court or to the Court of Appeal
- Appellate in its jurisdiction - operates much like High Court in appellate
jurisdiction
- County and Magistrates’ Courts
- ‘Inferior courts’ - do not bind any other courts and are not bound by their
own decisions
- Because decisions are all first instance
- Only one judge hears a case in county court
- There are hundreds of interior courts throughout the country
- Cases in these courts are not usually reported - no record of them kept at
the Public Records Office
- Thousands of cases through hundreds of courts each year - impossible to
keep track of the decisions of others
- Courts attempt to be consistent with the its own court or area - consistency
Persuasive authority
- If a court is not bound by any previous decision then it is free to reach its own
decision on that point
- HOWEVER - a court that is not technically bound is still entitled to consider
that authority and may be ‘persuaded’ by the reasoning
- Following authorities are not binding but are persuasive
- The decisions of non-binding courts
- Obiter dicta
- Decisions of Privy Council
- Hears appeals from commonwealth countries
- Its judgements can be highly persuasive
- Members of the Council - same as for the Supreme Court
- Likely Supreme Court would reach same decision in English court
- Foreign decisions with greatest influence are those in countries with
common law systems
- Decisions of foreign courts
- Scots law
- EU law - decisions of courts of other Member States may be of value
- Decisions of the ECHR
- Under s 2 of the Human Rights Act 1998, a court determining a
question which has arisen in connection with a Convention right must
take into account any judgement of the European Court of Human
Rights.
- This is tantamount to saying that such decisions are highly
persuasive.
- Statements in legal textbooks or periodicals