ELS key terms

English common law

system of law created by judges through their written court decisions and precedents instead of complete written codes made by parliament

Common (within English common law)

indicates that the law applies to the entire country rather than rules for each local region

Judge made law

laws developed case by case rather than code, judges decide by looking at past rulings

Doctrine of precedent - stare decisis

binding on lower courts- directly translated to “to stand by things decided” – this is a legal rule where courts must follow earlier judicial decisions when dealing with cases that have similar facts – standing by previous rulings to keep the law fair and consistent

Ratio decidendi binds

aka ‘reason for deciding’ behind a judges decision which creates the binding rule for future cases

Obiter dicta

remarks or opinions said by a judge in passing that are not essential to the final decision ad act only as persuasive authority than a mandatory rule

Adversarial system

English common law operates through an adversarial system which is a legal framework where two opposing parties present their arguments and evidence before a neutral arbiter eg judge or jury who then makes a decision – the parties drive the case as the judge empires like an impartial referee ensuring that the courtroom procedures are followed

UK parlimentary sovereignty

means that statute law made by parliament is the highest legal authority and always overrides common law created by judges

Can repeal the acts of any previous parliament

It cannot bind a future parliament

Courts cannot override its legislation

Parliamentary sovereignty quote - A.V. Dicey 1885

Parliament has “the right to make or unmake any law whatever” and no body may override its legislation

Staute law

acts and legislation passed by UK palriaments eg. House of Commons, Lords ad Monarch

Common law

judge made law through court rulings and legal traditions

Statute law overrides common law

How does statute law overrides common law RoS

Rule of supremacy – if an act of parliament conflicts with an existing common law the statute prevails and common  must give way or change to match the statute – courts have no legal power to strike down or invalidate a clear act of parliament

Principle of legality

if parliament wants to override fundamental common law rights it must use clear and explicit language in the statute

Unwritten constitution

a system of government where fundamental rules and principles are not gathered into a single supreme document- intead of one master file the framework relies on a collection of various sources

Eg. magna carta, bill of rights etc.

Common law (vs civil)

Origin : England 11th century

Main source of law: case law - judicial precedent

Precedent : binding

Judges role : interpret and make law

Trial style: adversarial

Civil law (vs common law) - not really used in the UK

Origin : Roman law, napoleonic code

Main source of law: codified statutes

Precedent: persuasive only not binding

Judges role: apply the code

Trial style : inquisitorial

Statutory instruments (sources of law)

An act makes provision for another body to provide regulations

This leads to secondary legislation

Simpler term- form of delegated legislation (law made by gov under specific powers given to them by an act of parliament) in the UK legal system that allows the government to make or change laws without passing a completely new act of parliament

They exist to save parliamentary time SIs handle day to day mechanics, they are also flexible and fast

Bills (sources of law)

A law proposal put forward in parliament and that is being discussed

Not a law yet - “draft law”

Becomes an act if passed by both houses + Royal assent

Stays in force until parliament repeals it

3 types - public private and private members bills

Case law (sources of law)

When a point of law is discussed by a binding court

Point becomes part of the common law

Simpler- body of law created by judges decisions in court cases rather than laws written by legislative bodies

International treaty (sources of law)

The executive ( PM or Cabinet) sign an international treaty and it becomes binding

legally binding agreement between countries or international organizations

UK parliament structure list

House of Commons - elected chamber

House of lords - unelected chamber

The crown - king charles III

“Parliament is tripartite : all 3 must agree”

The king in parliament - sovereign legislator an act needs all 3

House of commons

Elected chamber

650 MPS

First past the post

Government drawn from it

Controls money bills

Primary : parliament scts

House of lords - small list

Unelected chamber

Approx 805 members

They are life peers (1958 act)

26 lords spiritual

Hereditary peers removed - by 2025 act

Goal - revise and scrutinise bills from the commons

Strong criticism - undemocratic because non elected and lack of diversity

The crown

King charles III

Head of state

Opens parliament

Grants royal assent

Acts on ministerial advice

Last refusal 1708

Reforms that shaped parliament short

Parliamentary act. 1911 and 1949

Constitutional reform 2005

Parliament acts 1911 n 49 shaping parliament

• set procedures parliament follows

• Shift power to elected commons

• 1911 - lords lost the veto - took away HoLs power to block most general laws

• Commons can bypass the lords royal assent

Constitutional reform act 2005 in terms of shaping parliamenr

Removed the office of lord chancellor

Modernised UK government by introducing a clearer separation of powers

Created the secretary state for justice

Guarantees judicial independence

Create the UK supreme court

The separation of powers

Executive government- power to put law in action

Parliament power to make and change the law

Judiciary - power to make judgements of law

Theory: divide state power so each branch checks each other

Aim : to avoid tyranny

Quote : when the legislative and executive powers are united there can be no liberty

Devolution

The decentralisation of power from the Uk to Scotland Wales and Northern Ireland

Does not affect supremacy of UK parliament

Primary legislation

Acts of parliament

Full legislative stages

Slow and deliberate

Fully scrutinised

Fully binding

Secondary legislation

Rules and regulations

Taken by ministers under an act of parliament

Little or no debate

Fast and flexible

No scrutiny

Fully binding

How much new law dies the UK make each year

Primary - 36 a year

Secondsry - 2000 a year

For every act 50 Sis are made

Issues with too many SIs

Many get no parliamentary scrutiny at all

Parliament cannot amend SIs only accept or reject them

House of commons has not rejected an SI since 1979

Unelected ministers make most new law

Volume makes the law hard to know

Rushed drafting leads to errors

Courts csn only check SIs are within the parents acts powers

Types of rules

Literal rule

Golden rule

Mischeif rule

Purposive approach

Literal rule

Words get their plain ordinary meaning, applies what parliament said not meant

Upholds parliamentary sovereignty

Criticism - leads to absurd unjust results + assumes perfect drafting

Literal rule judicial statement + case examples

Duport steel v Sirs 1980

Lord Diplock: where the meaning is plain judges must not invent ambiguities just because they dislike the outcome, even if it leads to an unjust result

Case example

Whiteley v Chappell 1868 - impersonating a dead voter leads to no offence

R v Bentham 2005- a hand inside a jacket made tk look like a gun was not an imitation firearm on the plain words of the firearms act 1968 - conviction quashed

Literal rule - simple terms

Judges read the words of an act of parliament literally and apply their plain ordinary everyday meaning

Golden rule

Modifies literal rule

Departs form plain meaning to avoid absurd repugnant result

Focuses on justice not word games

Flexible and investigative

Golden rule disadvantages + case example

May reach meanings parliaments never intended

Risk of judicial activism

Blurs line between courts and parliament

Depends on individual judge

Adler v George 1964:

Offence to obstruct forced in the vicinity of a prohibited place

Adler was inside the airfield not near it

Literal reading - no offence

Court read it as in or in the vicinity of

Conviction was upheld

Mischief rule

Interperet to suppress the mischief

Origin 1584

To interperet unclear laws by looking at the specific problem the law was originally written to fix

The judge asks:

What was the common law before what was the problem

What remedy did parliament intend

How can i rule to fix that problem

Case example mischief rule

Smith v Hughes 1960

Prostitutes soliciting clients whilst on balconies but not on the street - court upheld the conviction because the mischief was public annoyance

Purposive approach

A modern development of the mischief

Looks at the spirit of the statute

Most ‘far reaching approach’

Dominant modern method

Influenced by - EU law methodology - Human rights act 1998 and broader constitutional reasonimg

Modern courts favour this approach

Purposive approach case

Ex parte Smith 1990

Despite mandatory statutory language, the court refused to provide the applicant his adoption records, because he was likely to harm his birth mother which defeats the acts purpose - purpose override the literal words

Why does the court system matter?

“Without a set of institutions to enforce legal rules there would be no legal system”

Parliament makes the rules but rules on paper do nothing on their own

The courts are the institutions that apply, enforce and develop those rules

Judicial system of england and wales

Domestic courts

Specialist tribunals and two international courts sitting above them

Structure of England and wales courts

First tier and upper tribunals —> county court and magistrates —> high court and crown court —> court of appeal —> supreme court

Classification of the courts

Superior and Inferior

Superior courts

• Wide jurisdiction: They can hear a wide range of cases andare not generally restricted to specifictypes of cases.

• No limit on compensation: They can award any amount ofmoney, depending on the case.

• Supervisory powers: They can oversee lower courts to makesure the law is applied correctly.

• Examples: The Supreme Court, Court of Appeal, High Court,Crown Court, Privy Council andEmployment Appeal Tribunal.

Inferior courts

• Limited jurisdiction: They can only hear certain types of cases.

• Limits on awards: Some have a maximum amount of moneythey can award.

• Limited powers: They generally have less authority than superiorcourts and may be subjectto supervision by higher courts.

• Examples: Magistrates’ Courts and County Courts.

Examples of superior courts

Supreme

Court of appeal

High court

Crown court

Privy council

The employment appeal tribunal

Inferior courts examples

Magistrates courts

County court

First instance tribunals

Courts of first instance

• Limited jurisdiction: They can only hear certain types of cases.

• Limits on awards: Some have a maximum amount of moneythey can award.

• Limited powers: They generally have less authority than superiorcourts and may be subjectto supervision by higher courts.

• Examples: Magistrates’ Courts and County Courts.

Appellate courts

An appellate court hears an appeal against a decision made by a lower court.

• It checks whether the lower court made a legal error or whether something went wrongwiththe procedure.

• It does not usually rehear the entire case or simply reconsider all the evidence.

• It may uphold the original decision, change it or order a new hearing.

Example: A person appeals because the original judge applied the law incorrectly.

What is an appeal

An appeal is not a second chance to argue your case just because you disagree withthe outcome.

You generally need a valid ground of appeal, such as:

• Error of law: The judge applied or interpreted the law incorrectly.

• Procedural irregularity: Something went wrong during the hearing, such as importantevidencebeing wrongly excluded or a risk of bias.

In most cases, you also need permission to appeal. This is usually granted if the appeal hasa realprospect of success or there is another compelling reason for the appeal to be heard.

Can a court do both appellate and instance

Yes. Some courts can act as both a court of first instance and an appellate court.

For example, the High Court can hear certain cases for the first time and can also hear appealsfromlower courts.

Easy way to remember:

• First instance = hears the case and makes the original decision.

• Appellate = reviews the decision to check whether a legal or procedural error occurred.

Tribunals

•Courts are not the only route. Tribunals resolve disputes in defined specialist fields

•For certain disputes, going to a tribunal first is a mandatory step before court

•They grew up across the 20th century as centres of expertise, bringing a better understanding of the problems that arise and the laws that govern them.

Three types of tribunals - in order.

First tier tribunal - first instance, organised into chambers

Upper tribunals- hears appeals from the first tier

Court of appeal - civil division, on a point of law

Three of the major tribunals

Employment

Immigration and asylum

Mental health

what do employment tribunals do

Employment Tribunals deal with legal disputes between employees and employers, usually relating to problems at work.

what types of cases do employment tribunals hear?

• Unfair dismissal: When an employer dismisses an employee without a fair reason or following a fair procedure.

• Constructive dismissal: When an employee resigns because their employer has seriously breached their employment contract.

• Redundancy: Disputes about whether redundancy has been handled lawfully.

• Unpaid wages and holiday pay: When an employer fails to pay money an employee is legally entitled to.

• Unlawful discrimination: When an employee is treated unfairly because of a protected characteristic, such as race, sex or disability.

• Whistleblowing: When an employee suffers unfair treatment or dismissal for making a legally protected disclosure about wrongdoing.

organisation of ET and what happens if someone disagrees w a decision

organised - led by a president

An appeal can be made to the Employment Appeal Tribunal (EAT), usually on a point of law rather than simply because someone disagrees with the outcome.

Example: An employee believes they were dismissed because of their disability. They bring a claim to the Employment Tribunal. If they believe the tribunal made a legal error,they may be able to appeal to the EAT.

Remember: ET = deals with the original employment dispute. EAT = hears appeals on legal issues.

Immigration and asylum tribunals - what do they do

These tribunals deal with certain legal challenges to decisions made by the HomeOffice about immigration, asylum and human rights.

The Home Office is the government department responsible for immigration andrelated matters.

immigration and asylum and tribunals - what types of cases do they hear

• Permission to stay: A person challenges a decision refusing their applicationto remain in the UK.

• Deportation: A person challenges a decision to deport them from the UK.

• Entry clearance: A person challenges certain decisions refusing permission toenter the UK,such as a visa refusal.

• Human rights applications: A person argues that an immigration decision breachestheir human rights.

• Immigration bail: Applications concerning release from immigration detention,subject to anyapplicable conditions.

Immigration and asylum tribunals - what happens if someone disagrees w decision

An appeal against a decision of the First-tier Tribunal can, where the legal requirements are met, goto the Upper Tribunal (Immigration and Asylum Chamber).

The Upper Tribunal generally considers whether the First-tier Tribunal made an error of law.

Example: A person applies for a visa to join their spouse in the UK, but the applicationis refused. Ifthe law gives them a right of appeal, they may challenge the decisionbefore the relevant tribunal.

Remember: Immigration and Asylum Tribunals = deal with certain disputes aboutimmigration, asylumand human rights decisions.

Mental Health tribunals - what do they do

Mental Health Tribunals consider cases involving people whose freedom is restricted under mental health legislation, particularly the Mental Health Act 1983.

Their role includes reviewing whether a person should continue to be detained for treatment or remain subject to certain legal restrictions.

Mental health tribunals - who can apply

• Detained patients: People held in hospital under the Mental Health Act.

• Restricted patients: Certain patients subject to additional legal restrictions, often connected with criminal proceedings.

• Community patients: People living outside hospital but subject to particular legal requirements, such as community treatment orders.

Mental health tribunal powers

• Decide whether a patient should continue to be detained.

• Order the discharge of a patient from detention in circumstances permitted by law.

• Review certain legal restrictions applying to patients.

However, the tribunal does not generally control a patient's medical treatment ordecide which medicines their doctors should prescribe.

who sits on the tribunal - mental health

1. A legal member: A judge who chairs the tribunal.

2. A medical member: A psychiatrist who provides medical expertise.

3. A specialist lay member: Someone with relevant experience of mental healthmatters who isnot acting as the legal or medical member.

The combination helps the tribunal consider the legal, medical and personal aspectsof the case.

Example: A patient is detained in a psychiatric hospital but believes they no longerneed to be detained.They apply to the Mental Health Tribunal, which reviews the legalcriteria and evidence to decide whetherdischarge is appropriate.

Remember: Mental Health Tribunal = reviews detention and certain restrictions affectingpeople undermental health legislation.

Magistrates court - SIMPLE TERMS

• deals mainly with less serious criminal offences

• an inferior court - lower hierarchy

who sits in Magistrates

Magistrates are also known as Justices of the Peace (JPs).

• Lay justices: Most magistrates are ordinary members of the public who are notprofessional judges.

• Volunteers: They are generally unpaid, although they can claim expenses andcertain allowances.

• No formal legal qualification required: They do not need to be qualified lawyers.

• Legal adviser: A legally qualified adviser assists the magistrates by explainingrelevant law andlegal procedures. The magistrates make the decision.

• Training: Magistrates receive training to prepare them for their role. This can includevisiting courtsand prisons to help them understand the justice system.

Example: A magistrate might be a teacher or a retired person who volunteers to helpdecide cases in court.

what cases does magistrates courts hear - list

• criminal cases

• civil matters

criminal cases within the magistrates court

The Magistrates’ Court mainly deals with less serious criminal offences, including:

• Driving offences: For example, speeding or driving without insurance.

• Minor criminal damage: For example, damaging someone’s property.

• Other summary offences: These are offences that are generally dealt with inthe Magistrates’ Court.

Magistrates usually hear cases without a jury. They listen to the evidence, apply thelaw and decidewhether the defendant is guilty.

Some more serious offences are sent to, or dealt with by, the Crown Court.

Civil matters

it can decide certain non-criminal matters where legislation gives it the power to do so.

Examples include:

• Licensing: Certain decisions about licences, such as alcohol licences.

• Recovery of civil debts: For example, certain proceedings relating to unpaid council tax.

Key point: The Magistrates’ Court can only deal with civil matters where the law specifically gives it that power.

Key statutes - Magistrates’ courts act 1980

• important piece of legislation governing magistrates courts

2 provisions:

Section121

Cases are normally heard by a bench of two or three Justices of the Peace. A bench means the group of magistrates hearing the case.

Section16A

A single Justice may deal with certain summary offences on the papers, without thedefendant attending court, where the statutory conditions are met. This applies to offences that are not punishable with imprisonment.

UnderstandingSection 16A

Imagine someone receives a notice for a minor offence. In certain circumstances, asingle magistrate canconsider the case using written information rather than holdinga traditional hearing with everyone present.

This is sometimes called a single justice procedure.

The important point is that it is only available for eligible offences and where the legal requirements are satisfied.

County court

The County Court is a court in England and Wales that deals exclusively with civil cases.

Civil cases are disputes between individuals, businesses or other organisations, rather than criminal prosecutions.

The County Court is governed by the County Courts Act 1984.

Example: If someone is injured in a car accident and claims compensation, or a business is trying to recover money owed to it, the case may be heard in the County Court.

what kind of cases does the county court hear

• Debt recovery: When a person or business is owed money and wants to recover it.

• Personal injury claims: When someone seeks compensation for an injury causedby anotherperson's negligence.

• Landlord and tenant disputes: For example, disputes over rent, possession ofproperty ortenancy agreements.

• Contract disputes: When someone fails to fulfil an agreement, such as not payingfor goods or services.

• Land and property disputes: Certain cases involving ownership, possession orrecovery of land.

• Equity claims: Certain claims involving equitable rights and remedies, such asspecific performanceor injunctions.

who sits in the county court

Under section 5 of the County Courts Act 1984, the court may be presided over by different types of judges, including:

• Circuit judges: Judges who hear a range of civil cases, including more complex cases.

• District judges: Judges who commonly deal with many civil claims andprocedural matters.

• Deputy district judges: Qualified individuals appointed to act as district judges when required.

• usually no jurry

the overriding objective - county court

The overriding objective is a key principle in civil procedure. Under the Civil Procedure Rules (CPR),the court must deal with cases justly and at proportionate cost.

In simple terms, this means cases should be handled fairly, efficiently and without unnecessary expense.

The judge actively manages the case to help achieve this objective.

what does the judge do in practice - county court

• Encourages cooperation: Makes sure parties follow court rules.

• Encourages settlement: Helps parties resolve disputes without a trial.

• Promotes mediation and negotiation: Encourages both sides to reach an agreement.

• Manages the case: Sets deadlines and controls progress.

• Controls costs: Ensures costs are reasonable for the case.

what is a meditation

Mediation is when an independent person helps both sides reach an agreement. Themediator doesnot decide who wins.

Example: A landlord and tenant use mediation to agree on repayment of unpaid rent.

litigation

• a last resort

• Litigation means resolving a dispute through court proceedings. The parties shouldconsidernegotiation or mediation first, where appropriate, to avoid the cost and time of a trial.

The crown court

The Crown Court deals mainly with serious criminal cases in England and Wales. It is part of the Senior Courts, although it is not a superior court in the same sense as the High Court or Court of Appeal.

It is bound by relevant decisions of courts above it in the court hierarchy.

what cases does the crown court hear

• Indictable offences: Serious crimes, such as robbery or murder, which are tried in the Crown Court.

• Either-way offences: Offences that can be tried in either the Magistrates’ Court or Crown Court.The defendant may have the right to choose a jury trial in the Crown Court.

• Sentencing: Cases sent from the Magistrates’ Court when magistrates' sentencing powers are insufficient.

• Appeals: Appeals from the Magistrates’ Court against conviction or sentence.

Who sits in the crown court

• Judge: Usually a single judge presides over the case.

• Jury: In a trial on indictment, a jury usually decides whether the defendant is guilty, while the judge deals with legal issues and sentencing.

Under section 46 of the Senior Courts Act 1981, the Crown Court has jurisdiction to try cases on indictment.

The jury exception Crown court

Under the Criminal Justice Act 2003, a judge may exceptionally order a trial without a jury where there is a serious risk of jury tampering and the statutory conditions are met.

Example: If jurors are threatened or offered bribes, a judge may allow the trial to proceed without a jury.

How are criminal offences classified by their severity

through 3 tips of ways

1- Indictabe only

2- triable either way

3- summary only

• these help decide which court hears them

• a defendant charged with a summary offence has no right to trial by jury. Magistrates may impose up to six months' imprisonment (s 224 Sentencing Act 2020), or twelve months for two or more either way offences

Indictable only offences

•The most serious offences

•Murder, manslaughter, rape, robbery, wounding or causing GBH with intent

•High penalties, sometimes life

•Always tried in the Crown Court, with a jury

Triable either way

•Offences of medium seriousness

•Theft, ABH (Actual bodily harm) , wounding or inflicting GBH (Grievous bodily harm), burglary

•The facts of the incident usually determine the severity

•Crown Court with a jury, or magistrates' court without one

Summary only offences

•The least serious offences

•Driving offences, assault, battery

•Penalties from licence points to a fine or a short sentence

•Tried in the magistrates' court, without a jury

The high court of justice

The High Court is a senior court in England and Wales that deals mainly with important or complex civil cases. It also has some criminal jurisdiction.

It is governed partly by the Senior Courts Act 1981 and partly by powers developed through common law.

what cases does the high court hear

• First instance: Hears a case for the first time. It has extensive civil jurisdiction,including casesthat are complex or high-value.

• Appellate: Hears appeals from certain lower courts and tribunals.

the 3 divisions of the High court

King's Bench Division

• Deals with contract and tort claims, including negligence.

• Includes specialist areas such as the Commercial, Administrative, Admiralty, Technology and Construction courts.

• Has limited criminal jurisdiction.

• around 71 judges

Chancery Division

• Deals with disputes involving trusts, land, wills and probate, companies and insolvency.

• Includes the Patents Court, which deals with certain patent disputes.

• •Around 17 judges

Family Division

• Deals with serious and complex family matters.

• Includes cases involving wardship and international child disputes.

• Around 20 judges

Precedent position of the High court

The High Court is not bound by its own previous decisions.

Its decisions bind all the courts below it.

They do not bind upwards: the Court of Appeal and the Supreme Court are free to depart from them.

High court - two functions

Appellete jurisdiction - hearing appeal

Supervisory jurisdiction - judicial review

Appellate jurisdiction - hearing appeals - High court

1. Appellate jurisdiction – hearing appeals

The High Court reviews decisions made by lower courts to check whether a legal mistake has been made.

• Criminal appeals: Appeals from magistrates’ courts can be made using case stated if there is an error of law or the court acted outside its powers.

• Crown Court: Appeals from magistrates’ courts can also use the case stated procedure under s.28 Senior Courts Act 1981.

• Civil appeals: Appeals from County Courts usually require permission.

• Permission test: The appeal must have a real chance of success or another compelling reason (CPR 52.6).

• Powers: The High Court can uphold, change or overturn a decision, or send the case back to be reconsidered.

Supervisory jurisdiction – checking decisions are lawful- high court

The High Court uses judicial review to check whether public bodies and lower courts have acted lawfully.

• Who is reviewed? Lower courts, tribunals and public bodies exercising public functions.

• What is checked? Whether the decision-maker acted within their legal powers, considered relevant factors and followed a fair process.

• Natural justice: People should receive a fair, impartial hearing and a proper opportunity to present their case.

• Important: The court checks how the decision was made, not whether it agrees with the outcome.

• Remedy: The High Court can quash (cancel) an unlawful decision and send it back to be reconsidered.

The court of appeal - general role

General role

• Position: Second-highest appeal court, below the Supreme Court.

• Role: Only hears appeals from other courts and tribunals; it does not usually hear cases for the first time.

• Judges: Called Lord or Lady Justices of Appeal (LJ).

• Hearings: Usually 3 judges; 5 may hear particularly important or complex cases.

• Decisions: Bind all lower courts.

Court of Appeal - precedent position

• Bound by: Decisions of the Supreme Court.

• Binding on: All courts below the Court of Appeal.

• Its own decisions: Generally must follow its previous decisions, with some exceptions.

Court of Appeal - criminal division

• Hears appeals from the Crown Court against convictions or sentences.

• Deals with applications for permission to appeal.

• Hears Attorney General references when a Crown Court sentence is considered too lenient.

Court of Appeal - Civil division

• Hears appeals from all three divisions of the High Court.

• Hears appeals from the County Court and Family Court.

• Hears appeals from tribunals on points of law.