4. The Legal System of England and Wales

Court Hierarchy

Crown Court:  In the context of creating binding precedent, it is an inferior court.  In the context of judicial review, it is often a superior court.

Some of these courts combine both trial and appellate proceedings

• Trial: hears cases at “first instance” (hears facts + law and makes a ruling)

• Appellate: considers the law (and sometimes fact) for a case that has already been heard in a lower court

Comparison: Superior vs Inferior Courts

Jurisdictions

Civil Division

Criminal Division

Leapfrog Appeal System

A rare appeal directly from the High Court (as trial or appellate court) to the Supreme Court, skipping the Court of Appeal — conditions:

• Case involves an important point of law of public or national importance; or

• The point is of such general significance that the Supreme Court should decide it directly

Process for making a leapfrog appeal

1. Application for a certificate must be made within 14 days of the High Court judgment.

2. Application to the Supreme Court within 1 month of certificate date

   • Application will be considered by a panel of three justices → if permission is granted, the appeal proceeds directly to the Supreme Court

Rights of Audience

The legal right to appear before a court and advocate for a client

• Barristers have an automatic right of audience in all courts

• Solicitors only have an automatic right in lower courts (Magistrates, County)

  • Higher Rights of Audience (HRA qualification) must be obtained to have a right to audience in any higher courts (unless a judge grants a specific exemption allowing a solicitor to appear)

External Courts

ECtHR

1. Judgments are not binding on UK courts:

They do not have to follow or implement them, but merely must only “take into account” ECtHR decisions

2. You can only apply to the ECtHR after you exhaust domestic remedies

A person must take their case through all UK courts (including the Supreme Court), or show there is no effective domestic remedy

3. ECtHR cannot overturn UK court decisions

It can only declare the UK’s actions incompatible with the European Convention on Human Rights

Privy Council

This is a remnant of the British Empire – acts as the final appellate court for many Commonwealth countries

• Decisions are not binding on English and Welsh courts but may be highly persuasive

Personnel of the Judiciary

The Doctrine of Precedent (Stare Decisis)

Stare Decisis (“Stand by their decision”) – A higher court’s decision usually sets a binding legal principle (ratio decidendi) that lower courts must follow if:

• The facts of their case are materially similar; or

• The legal issue is the same.

If facts are sufficiently different, the case may be “distinguished” and the earlier precedent not applied → ANY COURT MAY APPLY THIS EVEN IF SUPPOSEDLY BOUND

Obiter Dicta — non-binding but persuasive statements

• These are remarks “by the way” made by judges + are not essential to the final decision

• e.g. judges discussing the law without making a decision, a minority judge’s dissenting reasoning, comments not directly applied to the case’s facts.

Three-Part Test for Binding Precedent:

1. Are the material facts similar?

2. Was the earlier case decided by a superior court? Only decisions of higher courts bind lower courts

3. Was the statement binding (ratio) or merely obiter? Courts follow binding ratio only, not obiter dicta

Supreme court can depart from own decisions in "exceptional circumstances”:

1. Decision conflicts with the Supreme Court.         

2. Two COA decisions conflict (must choose one).         

3. Per incuriam: The decision was based on a fundamental legal mistake.

Primary Legislation: Structure of an Act of Parliament

• Act Components:     * Short Title: The name of the Act.     * Citation: Year and chapter number (e.g., $2010\,c.\,30$ means the $30^{th}$ and was passed in 2010).     * Long Title: General scope and purpose.     * Royal Assent: Date the Act becomes law officially.     * Enacting Formula: Statement that both Houses and Monarch passed it.     * Body: Sections, subsections, paragraphs.     * Interpretation Section: Definitions of terms.     * Commencement/Extent Sections: When and where (e.g., territory) it applies.     * Schedules: Detailed tests, calculations, and explanations following the main body.

Rules of Statutory Interpretation

• Literal Rule: Words are given their plain, ordinary meaning (e.g., displays of knives in windows are "invitations to treat," not "sales").

• Golden Rule: Extension of the literal rule used to avoid absurd results. Words are given ordinary meaning unless it results in an absurdity, in which case context is used to find Parliament's intent (e.g., "vicinity of a barracks" interpreted to include "within" the barracks).

• Mischief Rule: Focuses on the gap in common law the Act intended to fix. Asks: i) What was common law before? ii) What was the mischief/defect? iii) What was the remedy proposed? iv) What was the reason for the remedy? (e.g., "carriage" interpreted to include "bicycle" to prevent drunk driving).

• Purposive Approach: Modern standard. Interprets based on general purpose, considering social/political context. Uses external sources like explanatory notes or Hansard.

Linguistic and Statutory Presumptions

• Linguistic Presumptions:     * Eiusdem Generis: "Of the same kind." A list of specific items followed by general words (e.g., "prawns, molluscs, and other such things"); "others" must be of the same category (e.g., shellfish).     * Expressio unius est exclusio alterius: "Expression of one is the exclusion of others." A specific list with no general words excludes anything not listed (e.g., tax on "phones and tablets" excludes laptops).     * Noscitur a sociis: "A word is known by its associates." Meaning is derived from surrounding words (e.g., "floors" in a list of walkway terms like "passages" refers to transit areas, not storage).

• Statutory Presumptions (Rebuttable):     * Presumption against retrospective operation.     * Presumption against criminal liability without mens rea (intent/recklessness).     * Presumption against deprivation of liberty or property.     * Presumption against change to common law unless express.     * Presumption against exclusion of judicial review.

Welsh Law and the Senedd

• Legislative Competence: Under the Reserved Powers Model, the Senedd passes laws (Acts of Senedd Cymru) on non-reserved areas (Education, Health, Housing, Agriculture, Local Government). Reserved areas (Defence, Foreign Policy, Fiscal/Monetary Policy) remain with Westminster.

• Senedd Procedure:     * Stage 1: Committee considers Bill; Senedd agrees on general principles.     * Financial Resolution: Required if spending is involved.     * Stage 2: Detailed scrutiny/amendments by Committee.     * Stage 3: Senedd considers Bill and amendments.     * Stage 4: Final text vote. Royal Assent follows a $4-week$ period for legal challenge.

• Welsh Statutory Interpretation:     * Legislation is published in English and Welsh (both equal).     * Proportionality and limits of Senedd power (reserved model) must be considered.     * Conflicting Westminster Acts take priority (Westminster supreme).     * Non-compliant Acts can be struck out as void (rather than declarations of incompatibility).

Taxation in Wales

• Welsh Income Tax:     * Welsh Government sets "Welsh rates" for non-savings income.     * Collected by HMRC; personal allowance set by UK Government.     * Does not apply to savings or dividend income.

• Land Transaction Tax (LTT):     * Replaces Stamp Duty Land Tax (SDLT) in Wales.     * Current residential threshold: \text{#}225\text{k}.     * LTT return must be sent to the Welsh Revenue Authority (WRA) within $30\,days$ of completion.

Welsh Language in Litigation and Specific Laws

• Criminal Proceedings: Right to speak Welsh. Notice for Crown Court must be given at/before plea and trial preparation hearing. CPS should provide Welsh-speaking prosecutors.

• Civil Litigation: Practice Direction allows hearings entirely in Welsh with consent. Documents (e.g., particulars of claim) can be in Welsh. Failure to inform the court of Welsh usage can lead to costs sanctions.

• Planning Law Divergence (as of 25 April 2024):     * England: $10-year$ enforcement period for all breaches (with transitional 4-year protections for works before the date).     * Wales: $4-year$ period for building works and changes to private dwellings; $10-year$ period for other breaches.     * Concealment: No time limit for deliberate concealment in either jurisdiction.