F4-01 English Legal System

Session 1
English Legal System
FOCUS
This session covers the following content from the ACCA Study Guide.
A. Essential Elements of the Legal System

1. Law and the legal system
a) Define law and distinguish types of law.
b) Explain the structure and operation of the courts.
2. Sources of law
a) Explain what is meant by case law and precedent.
b) Explain legislation and evaluate delegated legislation.
c) Illustrate the rules and presumptions used by the courts in interpreting
statutes.
d) Identify the concept and impact of human rights law.
Session 1 Guidance
Learn the terms and definitions, the types of law and the roles of the courts. Question 1 in the
examination is usually drawn from this part of the syllabus and these concepts will recur throughout
the syllabus.
Pay attention to the structure and operation of the English courts (s.1).
(continued on next page)

F4 Corporate and Business Law (ENG) Becker Professional Education | ACCA Study System
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VISUAL OVERVIEW
Objective: To outline the key features of the English legal system and explain how law
is administered.
BACKGROUND
• Jurisdiction
• Nature of English Law
• Constitutional Matters
• What is Law?
• Branches of Law
• The Judiciary
SOURCES OF LAW COURTS

• Main Sources • Circuits
• Case Law • General Hierarchal Structure
• Common Law and Equity of the Courts
• Terminology • Civil Courts
• Statutes and Delegated • Criminal Courts
Legislation
• EU Law
INTERPRETING THE LAW HUMAN RIGHTS

• Role of Judiciary • The concept
• Judicial Precedent • Principal Contents
• Interpreting Statute • Effect on English Law
• Rules and Maxims
Session 1 Guidance
Understand the roles of case law (s.2), the judiciary (s.3.1) and judicial precedent (s.3.2) in the
development of common law and in equity.
Learn the rules for interpreting statute (s.3.3).
Appreciate the concept of human rights and understand the impact of human rights law on
statutory interpretation.
© 2014 DeVry/Becker Educational Development Corp. All rights reserved. 1-1

Session 1 • English Legal System F4 Corporate and Business Law (ENG)
1 Background
This session examines:
*An understanding
 What law is and how it is made and interpreted; of the interaction of
 The basic structure and processes of the court system. the different types of
laws—particularly case
law and statute—is
1.1 Jurisdiction invaluable to later
The syllabus deals with the law as it applies in England and study of specialised
Wales—commonly referred to simply as "English law". Other areas of law and to
parts of the United Kingdom, particularly Scotland and Northern using them in business
Ireland, have some local variations in the administration of laws practice.
and their own local variants of some of the finer
points of English law. The principles covered
by the F4-ENG syllabus are almost entirely
consistent across the whole of the UK.*
1.2 Nature of English Law

English law is a predominantly "Common Law"
system, which may be distinguished from the
Continental models founded in Roman law. Two
important features of the English Common Law
system are that:
 it is based on fundamental principles of law
identified and expounded by the judiciary; and
 in criminal cases, the accused has the right
to be tried in front of a jury, which decides,
on the basis of the evidence presented,
whether he is guilty or not guilty.
The Common Law principles of England and
Wales provide the model for the laws of many
countries around the world, including those of
the United States and many former members
of the British Empire, including India, Australia, Canada and
South Africa.
English law is frequently the jurisdiction of choice in international
transactions and in shipping and insurance contracts.
1.3 Constitutional Matters

1.3.1 Constitutional Monarchy
The UK is a constitutional monarchy: The reigning monarch,
currently Queen Elizabeth II, is the head of state. The monarchy
There is no single
in its constitutional function is referred to as the Crown. The
UK constitution
position of the Crown is apolitical.
document.
1-2 © 2014 DeVry/Becker Educational Development Corp. All rights reserved.

F4 Corporate and Business Law (ENG) Session 1 • English Legal System
1.3.2 Parliament
The legislature or Parliament of the UK is made up of the Crown
and two "houses" of Parliament: the House of Commons and the
House of Lords. Members of the House of Commons—known
as Members of Parliament, or MPs—are elected by universal
adult suffrage at periodical general elections, representing 646
geographical constituencies across England, Wales, Scotland and
Northern Ireland.
MPs are elected for each constituency on a first-past-the-post
basis. Following a general election, the leader of the majority
political party in the House of Commons is invited by the monarch
to form a government, and becomes prime minister.
There are about 830 members ("peers") of the House of Lords
(there is no set upper limit). Historically, membership of the Lords
was hereditary, and limited mainly to men. The Life Peerages Act
1958 reformed the situation to introduce women as well as people
from different backgrounds and occupations as Life Peers: They
are appointed for their lifetime by the Queen, on the advice of the
prime minister; and the House of Lords Act 1999 ended the right of
most hereditary peers to sit and vote in the House.
Most members of the Lords today are Life Peers. There are 92
remaining Hereditary Peers, elected from among those who were
members in 1999. Twenty-six Church of England archbishops
and bishops also sit in the House, unaligned to political parties.
Further reform legislation is expected.
1.3.3 Regional and Local Government

Northern Ireland, Wales and Scotland each has a Regional or
National Assembly, elected by proportional representation,
to whom some of the powers of central government have been
devolved (e.g. to regulate the state provision of health and
education services).
Throughout the UK, locally elected Local Councils ("local
authorities" or "local government") have power to make
local rules on matters such as building policy and public hygiene
and to raise local taxes to fund local highway maintenance,
environmental management, community housing and the like.
1.3.4 European Union

The UK is a member of the European Union (EU). Eighty-seven
UK Members of the European Parliament (MEPs) are elected by
proportional representation across 12 geographical electoral regions.
1.3.5 Status of the Judiciary (Judges)

Judicial decisions are taken by an independent judiciary,
appointed on professional merit. The Constitutional Reform
Act 2005 imposes a duty on government ministers to uphold
the independence of the judiciary, barring them from trying to
influence judicial decisions through any special access to judges.

1.4 What is Law?

Law serves two functions, public and private.
1.4.1 Public Law Law—a set of rules

Public law regulates public administration, including the following: of conduct recognised
and applied by a
 Constitutional and administrative law: the rules of State to members of
government and of the administration of justice. the community, and
 Criminal law: rules of conduct imposed to protect and enforced through the
courts.
regulate society. If the criminal law is broken, the wrongdoer
may be punished (e.g. by imprisonment or financial penalty,
called a "fine", to be paid into the public purse). A person is
guilty of a crime if he has broken the rules in circumstances
in which he can be considered to have done so wilfully or
knowingly—he must have a "guilty mind" as well as having
performed a wrongful action.
1.4.2 Private Law

Private law is concerned with relationships between individuals.
It gives them opportunities to seek remedies (such as monetary
compensation) from one another if those relationships break
down. Unlike criminal law, motivation is not always a necessary
attribute of liability. Private law includes:
 The "law of obligations"—arising out of relationships between
persons. This includes:
 Contract law: the law governing enforceable agreements
between individuals (see Sessions 3–5);
 Tort law: a system of rules providing individuals with
remedies against one another for recognised wrongs such
as negligence and fraud (see Session 2);
 Company law: the laws regulating the rights and obligations
of corporations created under the Companies Act 2006 (see
Sessions 9–17); and
 Insolvency law: the laws governing the management and
distribution of the assets of debtors who are formally unable
to meet their liabilities (see Session 18).

1.5 Branches of English Law

Administratively, there are two branches of law, criminal and civil.
1.5.1 Criminal Law

Criminal law and its courts handle accusations of criminal
wrongdoing by offenders. The process of establishing in the
courts whether the accused is guilty is called the prosecution of
the case against the accused.
 The accused person will be convicted if the evidence against
him establishes "beyond reasonable doubt" that he is guilty.
 It is a principle of English law that an accused person is
"presumed innocent" until proved to be guilty (this does not
prevent suspects being kept in custody pending trial).
Prosecutions are most usually brought on behalf of the Crown
by the Crown Prosecution Service (CPS)—the government
department responsible for prosecuting criminal cases investigated
by the police in England and Wales. It is responsible for:
 advising the police and reviewing the evidence on cases for
possible prosecution;
 preparing cases for court; and
 presenting cases at court.
Certain public bodies are given statutory rights and the
responsibility to prosecute in their own specialist areas. For
example, the Financial Conduct Authority (FCA) has the power to
prosecute in matters such as insider trading and market abuses,
and the tax authorities can prosecute for evasion of liabilities.
Private individuals can bring private prosecutions, exercising
their public right/duty to see the law upheld. There are very few
private prosecutions.
1.5.2 Civil Law

In English law, the expression civil law is used to describe the
non-criminal law and its courts—including the "law of obligations"
arising from private relationships between people. Just as with The Continental
the criminal law, a party has no liability unless and until the model does not form
case is proved against him, although the burden of proof here part of the ACCA
is rather less heavy. A civil court makes its decision on the basis F4-ENG syllabus.
of the balance of probabilities as established in the evidence
presented to it. In Continental systems, the expression "Civil
Law" describes the codified nature of the system.
1.5.3 Parallel Proceedings

If a person's activities raise both criminal and civil issues, the
criminal aspects will be dealt with in the criminal courts and the
civil aspects will be dealt with separately in the civil courts.
For example, a fraudster might face criminal proceedings
brought by the state, leading to possible imprisonment, and civil
proceedings brought by the people he has defrauded, who will
seek financial compensation ("damages").
If a person is found guilty or liable in one system, this may be
used in evidence in the other system.

1.6 The Judiciary

The judiciary is independent of the other limbs of government.
This reflects one of the cornerstones of democracy: the separation
of the government powers of the executive (the head of state and
the government officers), the legislature (Parliament) and the
judiciary.
Read the Technical Article on the Supreme Court and the separation
of powers by F4-ENG Examiner David Kelly (January 2010) at www.
accaglobal.com/pubs/students/publications/student_accountant/
archive/sa_jan10_kelly.pdf
Judicial appointments are based on professional legal expertise

and experience and not on the political allegiances of the
candidates. The judiciary generally come from the mainstream
legal profession. The main ranks of judges are:
 District judges, who sit in the lowest level courts. They must
have at least seven years' experience as advocates before
being appointed.
 Circuit judges, who preside at the next level up from district
judges. The minimum qualification for appointment as a
circuit judge is 10 years' advocacy practice, together with
experience as a district judge.
 High Court judges, whose minimum professional experience
is significant experience as a High Court advocate and/or
service as a circuit judge for at least two years.
 Appeal Court judges, selected from the ranks of the High
Court judges. They include the Lord Chief Justice of England
and Wales ('LCJ'); and a number of formally appointed "Lords
Justices of Appeal" (the abbreviation of the title being LJ if
singular and LJJ if plural).
 Twelve justices of the Supreme Court of the United
Kingdom appointed from each jurisdiction of the UK in
recognition of their superior expertise as High Court and/or
Court of Appeal judges.
Until October 2009, the functions of the Supreme Court were *The hierarchy of the
administered as a non-political function of the House of Lords. courts is dealt with
The transfer of the judicial function to the new, separate Supreme later in this session at
Court in October 2009 further underlines the separation of judicial section 4.2.
and executive functions in the UK.*

2 Sources of Law
2.1 Main Sources

The law which applies in England and Wales is mainly derived
from the following:
 Case law—judicial decisions, which serve as precedents in Case law—the
later cases; judicial interpretation,
 Statute—laws enacted directly by Parliament or indirectly explanation and
application of law by
under Parliament's authority;
reference to individual
 European Union law—EU Treaties and their secondary cases.
legislation, and decisions of the European Court of Justice.
2.2 Case Law

As far as possible a judge will follow principles enunciated by his
predecessors of equal or higher rank in earlier cases. This is the
doctrine of precedent. Case facts, the decisions made and,
most important, the legal reasoning behind those decisions, are
recorded and used as precedents for dealing with similar issues in
future. Details of significant cases are published in law reports.
2.3 Case Law—Common Law and Equity

2.3.1 Development
The development of case law can be traced back to travelling
justices appointed by the Crown in the 12th century to identify
and apply fundamental principles of law, and thus to develop a
consistent common law throughout the realm. Legislation was
passed later to narrow the scope of the courts to recognise claims.
In response, lawyers adopted an additional form of reasoning,
equity, as a "gloss" on the common law, to allow for the application
of natural justice where there are gaps in the common law.
 The common law governs the basic principles of business law:

the law of contract and the law of tort are based substantially in
common law. It is based in case law. The concept of damages—
money compensation for harm suffered in consequence of
wrongdoing—is a common law feature. "Equitable" principles
modify the common law.
 Equity is a branch of case law, underpinned by principles of
fairness and good conscience rather than by strict adherence Trust—a relationship
to the general principles of the common law. in which a person owns
and manages assets
for the benefit of
Equity recognises fiduciary duties and responsibilities which
another person.
arise out of positions of good faith (bona fides). For example,
Trustee—the person
equity recognises the concept of the "trust", an arrangement in
who owns and
which a person receives assets for the benefit of another person
manages the assets.
(the "beneficiary"). The recipient or "trustee" is obliged in equity
Beneficiary—the
to manage the assets for the benefit of the beneficiary, and
person on whose
not for himself. This extends into company law; the company
behalf the trustee
directors are expected to use their powers for the benefit of the manages the assets.
company as a whole.

2.3.2 Remedies at Common Law and in Equity

Equity offers remedies and defences to augment the common law
remedy of compensation, such as:
 Injunctions—court orders compelling a person to do something The principal common
or to cease doing something required to remedy the claimant's law remedy is
problem. An injunction might be granted, for example, to damages.
prevent an employee breaking a non-compete agreement.
 Rescission—a declaration that a defective contract is void
(i.e. legally ineffective from its inception) so that the parties
must return to one another any money or other assets which
had changed hands between them under the contract. This
might arise, for example, where the contract was based on
fraud or misrepresentation. The law of
misrepresentation is
 Specific performance—a court order compelling a party to not examinable.
a contract to perform his obligations under the contract. This
might arise, for example, where the seller of a unique item
wrongly refuses to deliver it to the buyer.
 Estoppel—a civil court has power in exceptional
circumstances to estop (i.e. prevent) a person going back on
something he has said or promised, even though he would not
be strictly bound by it in contract or other law. For example,
if a creditor encourages his debtor to believe that the creditor
is cancelling the debt, the creditor may be estopped by the
court from trying to enforce it at a later stage. (Examples
of estoppel will be encountered later in contract law and
partnership law.)
Equitable remedies and defences are only available where a
money award of compensation would not be adequate to resolve
matters. They are awarded only at the court's discretion. The
motives of the parties as well as their actions are relevant in
deciding whether to award equitable remedies and defences, so if
the claimant has acted in an unfair or unconscionable way, or has
delayed unduly before making a claim, he will not be entitled to
equitable relief.
Illustration 1 'Delay Defeats Equity'
Allcard v Skinner (1887)

A civil court will
Facts: Miss Allcard joined a religious sisterhood in 1868. The be aware of both
rules of the sisterhood demanded total obedience and required the common law
sisters to hand over all their property to the Mother Superior, Miss and equitable
Skinner. In 1879, Miss Allcard left the sisterhood. Her brother considerations when
and her solicitor advised her in 1880 that she might be entitled in deciding cases. If
Equity to reclaim her assets (on the grounds that the sisterhood there is a conflict,
had taken undue advantage of her naivety when she joined). equitable principles
She did nothing until 1885, when she started a claim to recover prevail.
her assets.
Miss Allcard might theoretically have had a right to reclaim her
money. However, the long delay between her receiving advice
and acting on it was unreasonable. The sisterhood was therefore
entitled to keep the gifts that she had made.

2.4 Case Law Terminology

2.4.1 Case Names
Cases are commonly referred to by the names of the parties
and the year of the decision. The person bringing the case—the
claimant or plaintiff—is named first. So a famous case brought by
a woman called Mrs Donoghue in 1932 against a company called
Stevenson & Co is referred to in textbooks, advice documents, etc
as Donoghue v Stevenson (1932). In spoken references the case
is called "Donoghue and Stevenson".
Shipping cases are routinely designated by the name of the vessel
and the date of the case, e.g. The Wagon Mound (1961).
Cases brought to seek clarification about the handling of the
finances or other interests of a person or company, rather than
being brought by or against them, are listed as being "Re" (that
is, "relating to") that person or company. For example, the case
of Re Sigsworth (1935) concerned the management of the assets
of a woman, Mrs Sigsworth, who had died.
References also may be made to a case having been brought on
behalf of—ex parte—a person (e.g. where that person is incapable
of acting on their own account). If a court case is brought by
the Crown (e.g. in a prosecution for a criminal offence) it will be
listed by the abbreviated reference "R" (from the Latin Regina or
Rex—Queen or King) versus the other party with the date of the
decision. For example R v Clarke (1927).
2.4.2 Parties
The person who brings a case is usually described as the
claimant or plaintiff in a civil case, or the prosecution in a
criminal case.
The person against whom a case is brought is the defendant (or,
in criminal cases, the accused).
After judgement either side may be entitled to raise an appeal
in a higher court. The person lodging the appeal is called the
appellant, and the other party is the respondent. At this stage
the appellant's name may move into first place in the case name.
2.4.3 Recording and Reporting the Decision

In the higher courts a complete transcript of the proceedings,
including the pronouncement of judgements, is recorded by a
professional shorthand writer of all the proceedings.
In addition, the Incorporated Council of Law Reporting for England
and Wales publishes definitive, official, professional law reports
of cases of note, summarising the material facts and law (so
that the case can be followed or distinguished appropriately in
later cases), giving a transcript of, or verbatim extracts from, the
judgement, and noting whether the claim has succeeded. The
decision is described as having been "held" by the court.

2.5 Statutes and Delegated Legislation

2.5.1 Statutes ('Acts of Parliament')
Each Parliament is "sovereign": It cannot be bound by acts of its Statutes are sets of
predecessors and is therefore free to use statutes to introduce rules and regulations
new rules or repeal old rules; or to consolidate and codify existing formulated and
rules by drawing them into one collected set. imposed by
Parliament.
Statutes are absolutely binding on everyone within their
jurisdiction, and can override case law. The individual, numbered
provisions of a statute are its sections, divided into subsections.
Exhibit 1 SECTION AND

SUBSECTIONS
The following is an extract from the Contracts (Rights of Third
Parties) Act 1999:
1.—(1) Subject to the provisions of this Act, a person who

is not a party to a contract (a "third party") may in his own
right enforce a term of the contract if—
(a) The contract expressly provides that he may; or
(b) Subject to subsection (2), the term purports to confer a benefit
on him.
Provisions are commonly referred to by section number, statute

name and year. For example, Exhibit 1, section 1(1), Contracts
(Rights of Third Parties) Act 1999.
2.5.2 The Legislative Process

Parliament comprises three bodies:
1. the House of Commons;
2. the House of Lords;
3. the Crown.
Proposed statutes ("Bills") are introduced by members of either
House and are considered by each House in turn in a series of
"readings" (usually three) and debates and in committees set up
to hammer out the fine detail. Once a Bill has been approved by
both Houses it is put before the Queen for formal Royal Assent,
to become an Act of Parliament.
An Act of Parliament comes into force at such time as the Act
itself specifies—its "commencement date". It may come into force
piecemeal, with different portions of the Act coming into effect at
different times. For example, the Companies Act 2006 came into
effect in stages between April 2007 and October 2009.

2.5.3 Delegated Legislation

Parliament does not have enough time to deal with all matters
needing legislation, and routinely delegates some matters.
"Delegated legislation" describes rules which have the authority
of statutes but which are made indirectly, under parliamentary
authority.
 Statutory instruments are rules and regulations made by
government departments under the authority of Parliament.
Many statutes provide that the fine details of the rules are to
be dealt with by statutory instrument. For example:
 Tax legislation permits the Treasury to issue statutory
instruments setting the rates of interest payable on
overdue taxes;
 The Companies Act delegates authority and responsibility
to the secretary of State for Business, Enterprise and
Regulatory Reform (i.e. the trade minister) to make
regulations relating to company and business names, to
company constitution documents, etc.
 The Privy Council (essentially, the most senior government
ministers) has authority under royal prerogative to issue
Orders in Council. These Orders do not need further reference
to Parliament and are therefore a valuable tool to see through
routine matters or in times of emergency when it might not be
expedient to go through the full parliamentary process. For
example, the Emergency Powers Act 1920 allows a national
emergency to be declared by Order in Council.
The Privy Council also deals with the regulation of chartered
bodies, institutions and associations (e.g. ACCA) and other matters.
The Privy Council goes back to the earliest days of the monarchy,
when it comprised a group appointed by the king or queen to
advise on matters of state. As the constitution developed into
today's constitutional monarchy, under which the Sovereign acts
on the advice of ministers, so the Privy Council adapted. Its
day-to-day business is transacted by the government's Cabinet
ministers together with some junior ministers.
 Delegated powers are given to:
 the
Welsh Assembly (under the Government of Wales
Act 2006) to create "measures" (essentially, statutory
instruments) for Wales; and
 local councils throughout England and Wales to create
byelaws (i.e. municipal or provincial secondary laws),
for example, in relation to local taxation and local
environmental regulation. Byelaws usually have to be
confirmed by the Home Secretary or by the relevant
secretary of State.
 Some autonomous bodies, such as the ACCA and the General
Medical Council, have powers granted by Parliament to create
their own byelaws for the regulation of their members.

2.5.4 Controls on Delegated Legislation

 Domestically, Parliament is the sovereign, supreme law-
making body. Therefore, Parliament can revoke or vary
the powers it delegates by revoking or varying the statute
under which it was granted.
 Ministers are accountable to Parliament for the rules and
regulations made by their departments.
 Statutory instruments must be laid before both Houses
of Parliament for approval. Depending on the terms of
the statute authorising their creation they may need positive
approval, or merely negative approval (acquiescence)—in
which case either House has 40 days to vote to disallow the
regulations.
 Delegated rules can be declared void by the courts if
they are created ultra vires (i.e. "beyond the powers") of
the relevant body. For example, a local authority in Greater
London proposed that rubbish bins be fitted with microchips
in order to monitor compliance with recycling requirements.
However, the legislation that might permit this was enacted
to prevent acts of terrorism. The application of the law to
environmental protection was regarded as outside the powers
of the local authority (ultra vires).
2.6 European Union Law

2.6.1 Introduction
As a member state, the UK is bound by the provisions of EU The UK is a member
of the European
treaties, such as the Treaties of Rome and of Maastricht, and
Community (EC)
by subordinate rules deriving from its membership. EU law and of the European
takes precedence over domestic law. UK law has been moving Union (EU).
towards harmonisation with the law of the rest of the EU since
the UK acceded to the Treaty of Rome in 1972. To that extent,
Parliament is no longer sovereign.

2.6.2 Sources of EU Law

The primary sources of EU law are the Treaties made between
the member States, which set down the framework for future
laws and, in some cases, make provisions which have direct effect
throughout the EU. For example, Articles 81 and 82 of the Treaty
of Rome prohibit anti-competitive business practices.
The detailed law affecting member states comes from the
following secondary sources:
 Regulations issued by the Council of Ministers or the EU
Commission, are designed to achieve uniformity of law within
the EU. They are self-executing and therefore directly applicable
in each member state without further national legislation.
 Directives of the EU Council or Parliament are instructions to
member states to bring their law into line in a particular way
by a particular date, with a view to harmonisation. Directives
do not in themselves have the force of law: they become
law only once they are adopted by the member states in
accordance with their own legislative processes. For example,
the UK's Money Laundering Regulations 2007 implement the
EU Third Money Laundering Directive.
In Francovich v Italy (1991), it was held that individuals
disadvantaged by a member state's delay in implementing
directives can claim compensation from the state.
 Decisions of the Council or the Commission are addressed
on matters of policy to member states, companies or
individuals. They are binding on the recipients, and may also
expressly give third parties the right to rely on them in legal
proceedings. For example, a Commission decision in 1998
against anti-competitive selling practices of Volkswagen GmbH
stated that customers prejudiced by this conduct could cite the
decision when seeking redress in their domestic courts.

3 Interpreting the Law
3.1 The Role of the Judiciary

In passing judgement the judge summarises the facts and
arguments which have been presented to him, and then gives his
reasoned decision. The duty of a judge
in England and Wales
The specific legal reasoning behind the decision is described as
is not to "make" the
the ratio decidendi and is looked to as a precedent in later cases.
law but to identify,
Statements which go beyond the ratio—obiter dicta—are not interpret and apply
binding in future decisions, but can be referred to as persuasive both case law and
authority. These dicta might take the form of a dissenting statute.
judgement, or a statement of hypothetical circumstances which
would have led to a different decision.
3.2 Judicial Precedent

The essential hierarchy moves downwards from the Supreme
Court of the United Kingdom (formerly the House of Lords) to
the Court of Appeal, then to the High Court and then the lower, General rule:
inferior, courts). Precedents set by
higher courts bind
However, this rule is not rigid. A precedent will not be binding in judges in lower
a later case if: courts.
 The original decision was subsequently reversed on appeal
to a higher court: in that situation, the appeal decision will
become the precedent.
 The original decision was subsequently overruled in another
case decided at a higher level than the original. For example,
the Court of Appeal can overrule an earlier High Court
decision. Overruling may arise because the previous court
did not correctly apply the law, or because the later court
considers that the rule of law supported in the earlier ratio
decidendi is no longer appropriate.
 The facts of the case are materially different, so that it can be
distinguished from those before the court in the later case.
 It was made per incuriam—with a lack of proper attention to
relevant laws or facts.
This gives a useful degree of flexibility to the system—although it
does lead to complaints that case law has developed into a bulky
and complex field.

3.3 Interpreting Statute

The wording of statutes (and statutory instruments) is sometimes
obscure or ambiguous. The outcome of a case might hinge on the
correct meaning.
Therefore, a number of presumptions, statutory aids and
established rules and maxims of interpretation exist.* Unless a
*Statute also has to
statute provides otherwise, it is presumed that:
be interpreted in line
 The Crown is not bound by it; with the European
Convention on Human
 It applies throughout but not beyond the UK (it may contain
Rights (see s.5.3).
separate parts to deal with regional variations within the UK);
 It does not have retrospective effect.
3.3.1 Aids to Interpretation

 A statute will sometimes contain an introductory preamble to
explain its purpose and content.
 Statutes often contain interpretation provisions, defining
words and phrases used within them.
 The Interpretation Act 1978 interprets general words and
phrases commonly used in statutes (e.g. providing that
where relevant the word "he" should be interpreted to mean
"he or she").
3.3.2 Rules and Maxims of Interpretation

Judges have devised a number of conventions by which they
interpret words and phrases not clearly defined within the statute
itself. These rules and maxims sometimes overlap, but together The duty of the judge
form a consistent framework. is to interpret the
words used by the
 Under the "Literal Rule", words are given their plain, literal, draftsman.
everyday meaning.
Illustration 2 Literal Rule
Magnohard v Earl Cadogan and Cadogan Estates (2012)
The case concerned the interpretation of right-to-buy legislation

for long-term tenants of rented houses. The legislation referred
explicitly to "houses". Would this include a flat in a purpose-built
apartment block? The Court of Appeal held that it would not,
observing that a purpose-built block of flats cannot reasonably be
called "a house".
 The "Golden Rule" modifies the Literal Rule. The Golden

Rule requires judges to avoid interpreting in such a way as to
produce an absurd or repugnant result.
Illustration 3 Golden Rule
Although inheritance legislation provides that if a person dies without

leaving a will, his assets pass to specified "next of kin" (closest
relative), this has been interpreted not to include a next of kin who
had killed the deceased person [Re Sigsworth (1935)].

 Words should be interpreted contextually:

 Where lists of words conclude with a general, summarising
word, this word is interpreted only to cover things that are
of the same kind as those in the list. So "signals, warning
signposts, direction posts and signs and other devices" in
a piece of road traffic legislation were held not to include
lines painted on the road, because painted lines on the road
could not be construed as being of the same kind as signs,
signposts, etc [Evans v Cross (1936)].
 Words should be interpreted within the context in which
they appear. The word "firm" is used in places in the
Partnership Act 1890. The Act explicitly governs business
partnerships. Therefore the references in the Act to a "firm"
will be interpreted as references to a business partnership,
and not to any other sort of business or organisation.
 Under the "Purposive rule" words are increasingly interpreted
according to the purpose of the legislation. This approach
was first recognised in Heydon's case (1584) as the "mischief
rule"—judges should assume that legislation was introduced to
cure an error or "mischief" in the pre-existing law, and should
interpret the statute in line with that purpose.
Illustration 4 Purposive Rule
Gardner v Sevenoaks RDC (1950)
Safety regulations for the "premises" (i.e. the "building" or "place")

for storing inflammable cinema film were interpreted purposively
(under the mischief rule) to include a cave where film was being
stored. Although a cave is not a building, the law was designed to
regulate safety in the place of storage.
 The courts will not extend a statute beyond the words it uses:
They cannot interpret it to cover situations for which it did not
provide explicitly.
For example, the Highways Act 1980 requires highways
authorities to "maintain" public highways (i.e. keep the
fabric of the road in good repair). In Goodes v East Sussex
County Council (2000), the House of Lords (the UK Supreme
Court) held that the meaning of "maintenance" should not be
judicially extended to impose a duty to do further things such
as gritting against snow and ice.
Similarly, the Hunting Act 2004 outlaws the hunting of foxes
with dogs. In Director of Public Prosecutions v Wright (2009),
the High Court ruled that the words "hunt", "hunting", etc
would not include merely searching for an unidentified wild
mammal to force it out of hiding.
Explicit mention of one thing in a statute impliedly excludes
others not mentioned. For example, the Matrimonial Causes
Act 1973 would not apply to unmarried couples.

4 Courts
4.1 Circuits
England and Wales is divided into seven geographical regions or
circuits for the purposes of the administration of justice. Circuits
have been part of the English legal landscape since the 12th
century and the term "circuit" represented the tour of particular
towns carried out by the king's judges.
Each circuit has its own designated judiciary and administrators
who are responsible for cases within their circuit. The seven
regions are Midlands, North Western, North Eastern, South
Eastern, London, South Western and Wales.

4.2 General Hierarchal Structure of the Courts*

The basic hierarchical structure of the courts of England and Key: CR= Criminal jurisdiction
Wales is as follows: CIV= Civil jurisdiction
CR Supreme Court of the United Kingdom CIV

The final court of appeal for all UK civil cases and for
criminal cases from England, Wales and Northern Ireland
CR Court of Appeal CIV

Criminal Division Civil Division
Appeals from the Crown Court Appeals from the High Court
and certain cases from county
courts
High Court
Queen's Bench Division Family Division Chancery Division
Contract and tort, etc. Equity and trusts,
Commercial Court contentious probate, tax
Admiralty Court partnerships, bankruptcy
and Companies Court,
CR CIV
Patents Court
Administrative Court Divisional Court Divisional Court
Supervisory and appellate Family law Appeals from the county
jurisdiction overseeing the appeals from courts on bankruptcy and
legality of decisions and magistrates land
actions of inferior courts, courts and county CIV
local authorities, Ministers courts
of the Crown and other CIV
public bodies and officials
CR Crown Court County Courts CIV

Trials of indictable offences, Majority of civil litigation
appeals from magistrates' subject to nature of
courts, cases for sentence the claim
CR Magistrates' Court CIV

Criminal trials of minor
offences; committal of more
serious offences to Crown Court.
A little civil jurisdiction (e.g.
enforcement of local taxes)
*The Ministry of Justice website www.justice.gov.uk/about/hmcts/ Civil and criminal

offers useful information and links on the administration of the courts matters are dealt with
in England and Wales. in separate streams
within the hierarchy.

If a person's activities raise both criminal and civil issues, the

criminal aspects will be dealt with in the criminal courts and the
civil aspects will be dealt with separately in the civil courts—
although a finding of guilt or of liability in one system may be
used in evidence in proceedings in the other venue.
4.3 Civil Courts—Non-Criminal Cases

4.3.1 ''Better to Settle Than to Go to Law''
Most civil cases are resolved by the parties settling the matter Between civil and
between themselves, without the matter going to court. Judges criminal courts, civil
in the civil courts actively encourage parties to enter into dispute courts are the most
resolution processes such as arbitration, mediation or conciliation important for the
rather than going to trial. Where matters do go to a full hearing, ACCA F4 exam.
they will usually proceed in the County Court or the High Court.
4.3.2 Magistrates' Courts

Magistrates' Courts have limited civil jurisdiction. They have some
authority to hear family law matters and to enforce payment of
council tax and business rates, and the licensing of premises for the
sale of liquor. Magistrates' Courts operate in most towns, hearing
local cases, and are presided over by salaried district judges of
the Magistrates Court, or by volunteer panels of non-professional
magistrates assisted by a professionally qualified clerk.
4.3.3 County Courts

County Courts operate within each circuit, dealing exclusively with
civil matters. Disputes can be heard relatively speedily and in the
local area of the parties.
Most cases are dealt with by full-time district judges and circuit
judges who are appointed to a particular circuit and may sit at
any of the County Courts or district registries of the High Court on
that circuit.
There are three administrative "tracks" for procedure. Each claim
will be allocated to one of these "tracks" depending on the nature
and size of the claim:
1. Small claims (up to £10,000)
Claims that have a financial value of not more than £10,000 are
allocated to the small claims procedural track (higher value claims
*If part of a claim
can also use the small claims track if both parties consent and the
is for damages for
court agrees to hear the case).*
personal injury that
Small claims hearings are presided over by a district judge, or the part cannot exceed
judge may refer them to an arbitrator agreed by the parties. The £1,000.
hearing is relatively informal. Parties in small claims hearings
are encouraged to act in person: they are discouraged from using
professional representatives, and only limited costs are awarded
to either party.
Appeals are only available on the grounds of misconduct by the
judge or an error of law.

2. Fast track hearings (up to £25,000)

Claims with a financial value of up to £25,000 which are capable
of being resolved within a one-day hearing are allocated to the
fast track procedure of the County Court, for more formal hearing *Most, but not
before a circuit judge.* all, claims exceed
The level of legal fees which either party can claim is strictly £10,000.
limited, as an incentive to the parties to settle out of court.
3. Multi-track
Higher value and more complex cases are allocated to the "multi-
track" procedure of the High Court. The trial will be in the High
Court, but the pre-trial arrangements will be case-managed by a
district judge until coming to trial (e.g. arranging how and when
the parties should exchange information and evidence pre-trial).
4.3.4 The High Court of Justice

The High Court is based in London at the Royal Courts of Justice
in the Strand. It is served by a number of district registries
across England and Wales, often co-located at county courts when
the district judges sitting there will case-manage High Court cases
which are begun there, until they come to trial.
The High Court has jurisdiction:
 to hear civil cases allocated for multi-track hearing;
 to hear appeals from lower civil and criminal courts; and
 to supervise and regulate the conduct of the lower courts, Tribunals will not be
tribunals and public bodies. examined in their own
right.
4.3.5 Divisions of the High Court
High Court responsibilities are shared between judges in three
specialist "Divisions"; each dealing with a particular branch of the
law. Each division has a court "of first instance" to hear multi-
track cases allocated to the High Court, and a separate Divisional
Court to hear appeals from the lower courts.
1. The Chancery Division deals with Equity-related matters.
It has responsibility for, among other things, trust law,
company and partnership matters, and certain taxation cases.
Its Divisional Court jurisdiction includes bankruptcy appeals
from the County Court and tax appeals from the Inland
Revenue Commissioners.
2. The Family Division is concerned with matrimonial and family
law matters. Its Divisional Court jurisdiction is to hear appeals
from the Magistrates' Court and the County Court in such
matters.
3. The Queen's Bench Division ("QBD") deals with common
law civil matters, such as contracts and torts (it also deals with
criminal cases). The Divisional Court of the QBD hears appeals
from the Magistrates' and County Courts.

Judicial review: The Divisional Court of the QBD also sits as the
Administrative Court, to review decisions and proceedings of the
inferior courts, government departments and public bodies. It
can cancel decisions and/or order that proceedings be reheard
if the original decision is held to have been illegal, irrational or
procedurally improper.
Appeals can be made from decisions of the High Court either
to the Court of Appeal or, with leave of all concerned and on a
matter of general public importance, direct to the Supreme Court
of the United Kingdom (formerly the House of Lords).
4.3.6 The Civil Division of the Court of Appeal

The Court of Appeal is based at the Royal Courts of Justice in
London, but has occasional sittings elsewhere in England and
Wales. It consists of a Civil Division and a Criminal Division,
which between them hear appeals in a wide range of cases
covering civil, family and criminal justice matters.
The Civil Division hears civil law appeals from the High Court,
county courts and certain tribunals including the Employment
Appeal Tribunal.* Its president is formally known as the Master of
the Rolls (a reference to the historic function of the office holder
*Although this tribunal
of maintaining the judicial records, which were written on rolls of
is not examinable in its
parchment). Cases are generally heard by three judges. Majority own right it is relevant
decisions prevail. to employment actions
Appeal is, with leave, to the Supreme Court of the United Kingdom (e.g. unfair dismissal)
(formerly the House of Lords), but in practice the Court of Appeal that are examinable
(see Session 6).
is the final avenue of appeal for the great majority of cases.
4.3.7 The Supreme Court of the United Kingdom

Historically, appeals from the Court of Appeal were heard by an
appeal committee of senior judges appointed on professional
merit and expertise to the House of Lords in a non-political
function. The Constitutional Reform Act 2005 replaced this
ancient arrangement with the Supreme Court of the United
Kingdom, which took over the role of the appellate committee of
the House of Lords from October 2009, in its own building. This
change emphasises the separation of judicial power from other
branches of government.
There are 12 permanent justices of the Supreme Court,
appointed from the ranks of the senior appeal court judges in
England and Wales, Scotland and Northern Ireland. The 11
serving Law Lords became the first justices of the Supreme
Court, together with Sir Anthony Clark, formerly Master of the
Rolls 2005–2009. Other senior judges from the Court of Appeal
or its Northern Irish and Scottish equivalents may sit as "acting
judges" of the Supreme Court.

The justices:
 Hear civil and criminal appeals on points of law. Appeals
come from the Court of Appeal or, if they raise matters of
general public importance and all parties consent, direct from
the High Court;
 Decide cases relating to the powers of the devolved
administrations in Northern Ireland, Scotland and Wales—most
commonly about compliance with rights under the European
Convention on Human Rights, brought into national law by the
Devolution Acts of the late 12th century and the Human Rights
Act 1998.
The justices also have authority to sit as members of the Judicial The Human Rights Act
is not examinable.
Committee of the Privy Council, which is the final appeal court for
cases from the Church of England ecclesiastical courts, from the
Channel Islands and a number of participating Commonwealth
countries. These decisions are not binding in English and Welsh
cases but may be looked to as persuasive precedents.
4.4 Criminal Courts

4.4.1 Magistrates' Courts
Magistrates' Courts are a network of about 300 courts across
England and Wales. They handle criminal cases arising locally,
and refer more serious criminal cases to the higher courts.*
Magistrates:
*Magistrates deal with
 decide less serious criminal cases, public disorder and more than 95% of all
motoring offences; criminal cases, in adult
 "commit" (i.e. refer) serious cases to the higher courts; courts and separate
youth courts.
 consider bail applications; and
 deal with enforcement of fines and grant search warrants
and right-of-entry applications.
Magistrates cannot normally impose sentences of imprisonment
that exceed six months (or 12 months for consecutive sentences)
or fines exceeding £5,000.
The courts are presided over by lay magistrates and by district
judges of the Magistrates' Court.
 Lay magistrates are unpaid, trained members of their local
community. The majority of magistrates are lay magistrates.
They usually sit as panels of three, mixed in gender, age and
ethnicity whenever possible to bring a broad experience of life
to their work. A qualified clerk assists them and gives legal
advice to the panel. Lay magistrates do not need to have
legal qualifications, but undertake a compulsory programme of
practical training which prepares them to sit in court.
 District judges (Magistrates' Courts)—formerly known as
stipendiary (i.e. salaried) magistrates—are legally qualified
and professionally appointed. They usually deal with
the longer and more complex matters coming before the
Magistrates' Courts. They are salaried by the state. Some are
authorised to deal with extradition proceedings and terrorist
cases. District judges (Magistrates' Courts) usually hear cases
alone, with a clerk to deal with administrative matters.

4.4.2 Categories of Offences

All criminal offences currently fall into one of three categories:
1. Summary offences, which include most motoring offences
and other relatively minor matters such as drunkenness,
common assault and prostitution, can be tried only in a
Magistrates' Court.
2. Indictable-only offences, such as murder, rape and robbery,
must be tried by the Crown Court ("indictment" is the formal
phrasing of the criminal charge against the accused).
3. Offences which can be tried "either way", including theft,
drugs offences and some involving violence against the person,
are tried either by a Magistrates' Court or by the Crown Court.
It is for the magistrates to opt whether to deal with the case
or to refer it up—this often will be on the basis of the scale and
complexity of the charge. If they opt to keep a case, however,
the accused can elect for Crown Court trail.
Indictable offences, and either-way cases which are referred
up, are only tried in the Crown Court after a committal
hearing. This is a preliminary hearing of the prosecution
evidence by the magistrates to establish that there is a case to
answer—that is, that the prosecution has produced sound and
coherent evidence against the accused which, if not rebutted
by the accused, would indicate that he is guilty of the matter
with which he is charged. If there is a case to answer, the case
is committed for trial to the Crown Court. If there is not, the
defendant is discharged.
Exhibit 2 INSIDER DEALING

PENALTIES*
The following extract shows insider dealing penalties under
section 61, Criminal Justice Act 1993: *Exhibit 2 shows an
offence which can be
61. (1) An individual guilty of insider dealing shall be tried "either way".
liable—
(a) on summary conviction, to a fine not exceeding the
statutory maximum or imprisonment for a term not
exceeding six months or to both; or
(b) on conviction on indictment, to a fine or imprisonment for
a term not exceeding seven years or to both.
Part V, Criminal Justice Act 1993
4.4.3 The Crown Court

If the magistrates commit (i.e. refer) an indictable offence to the
Crown Court, the hearing will be presided over by a circuit judge,
or in serious cases by a High Court judge of the Queen's Bench The basis of English
Division. The judge sits alone and is responsible for determining law is that a person is
the law and passing sentence. There are Crown Court venues in presumed innocent
most large towns. unless he is found
If the accused person pleads "not guilty", the decision of whether guilty. The burden
of proof is on the
he is guilty will be made by a jury of 12 adults (ages 18 to 70),
prosecution to prove
selected randomly from within the geographical area served by the case against the
the court. The jury will listen to the evidence against and for the accused beyond
accused, receive guidance on legal matters from the judge, and reasonable doubt.
then consider their verdict in private.

4.4.4 Appeals in Criminal Cases

The defendant may appeal from the Magistrates' Court to the
Crown Court against conviction (if he originally pleaded not guilty)
or against sentence. The Crown Court may confirm, reverse or
vary any part of the decision under appeal, and can impose any
sentence which the magistrates could have imposed, including
one which is harsher than the one originally imposed.
The Administrative Court of the Queen's Bench Division
of the High Court hears appeals on points of law from the
Magistrates' and Crown Courts, with a view to ordering a retrial,
and also has jurisdiction to consider applications for judicial
review in respect of the administration of the Magistrates' and
Crown Courts.
The Criminal Division of the Court of Appeal hears appeals
from the Crown Court on questions of law or fact, against
conviction or sentence. It can quash a conviction, or reduce or
substitute a sentence, or order a new trial; in limited situations
it can increase sentence on application by the Attorney General
(whose office is responsible for all crown litigation).
The Supreme Court of the United Kingdom (formerly the
House of Lords) hears appeals on criminal matters raising issues
of general public importance on a point of law, from the Court
of Appeal and from the Administrative Court of the Queen's
Bench Division of the High Court. The right of appeal is not
automatic. The matter will have to raise a matter of general
public importance, and permission to appeal must be given by the
Supreme Court itself or by the Court of Appeal or Divisional Court
from which the appeal is made.

Example 1 Legal Terminology

Match the following terms and expressions to the correct meanings:
Solution
Terms and expressions Meanings (not correctly matched)
1. Master of the Rolls A lay justice
2. Magistrate The specific reasoning behind a judicial decision
A criminal offence which is so serious that it must be heard

3. Injunction
in the Crown Court
Statements made by a judge which are ancillary to the main
4. Damages
reasoning of the decision
Interpretation of words used in a statute so as to avoid
5. Fine
manifestly absurd or repugnant effects
A geographically defined area for the administration of
6. Indictable offence
justice in England and Wales
The collective term for judges of every rank in England and
7. Summary offence
Wales
Legal principles which apply subjectively to cases by reason
8. Ratio decidendi
of principles of fairness and good conscience
The rules based on fundamental principles which apply
9. Obiter dicta
consistently throughout England and Wales
Interpretation of words used in a statute by reference to
10. Supreme Court Justices
Parliament's intention in passing it
Agreement by the Crown to legislation promulgated by the
11. Lords Justices of Appeal
Houses of Commons and Lords
12. District judges A financial penalty for a crime
The collective term for the Houses of Parliament and the

13. Purposive Rule
Crown
14. Literal Rule Judges of the Supreme Court of the United Kingdom
15. Golden Rule The senior judge in the Civil Division of the Court of Appeal
16. Common law Money compensation
A set of rules and regulations issued with statutory status by

17. Equity
a government minister or department
Professional judges in the Magistrates' Court and County
18. The judiciary
Court
19. Parliament A statute which has been enacted
20. Royal Assent Judges of the Court of Appeal
21. A Bill A criminal offence which will be decided by local magistrates

22. An Act
their ordinary literal meaning
One of the areas of judicial competence and responsibility in
23. A Statutory instrument
the High Court and Court of Appeal
A court order commanding a person to do something or to
24. Circuit
desist from doing something
25. Division Proposed legislation

5 Human Rights
5.1 The Concept
Human rights—the inalienable fundamental rights to which a

human being is entitled.
Although the
These absolute moral claims include cultural, economic and
Human Rights Act
political rights, such as:
is not specifically
 the right to life, liberty, dignity, education and equality before examinable you
the law; should be aware
that the effect
 the right of association, belief, free speech, information, of the legislation
religion, movement and nationality. is pervasive and
The Human Rights Act 1998 came into effect in 2000 to may therefore be
incorporate in UK law most of the rights granted by the European a consideration on
Convention on Human Rights (ECHR). specific aspects
of law.
 Prior to this, UK citizens had to take their cases to the
European Court of Human Rights (ECtHR) because ECHR was
not officially recognised in UK law.
 Now UK citizens can settle their claims for violation of human
rights in domestic courts.*
5.2 Principal Contents *The European

The Convention consists of a number of articles detailing rights Court will only
and freedoms, which are incorporated into the legislation of each consider a case after
country. The most important are the following: it has been through
the UK courts.
 Absolute and inalienable rights:
 The right to life;
 Prohibition of torture;
 Prohibition of slavery and forced labour;
 No punishment without relevant criminal law;
 Prohibition of discrimination.
 Rights which are subject to derogation (i.e. may be adapted to

the circumstances of each country) include:
 The right to liberty and security; Specific rights will not
 The right to a fair trial; be examined.
 The right to privacy;
 Freedom of thought and expression;
 Freedom of association (e.g. the right to join a trade union);
 The right to marry;
 The right to education;
 The right to free elections;
 The right not to be subject to the death penalty.

5.3 Effect on English Law

The main effects are:
 Statute has to be interpreted in line with the rights under the
Convention: If it is impossible to do so, the court may not
declare the legislation invalid, but it can make a declaration
that the legislation is incompatible with the rights protected
under the Act.
 Any judicial precedent which conflicts with a decision of the
ECtHR will no longer be valid.
 Judges must look to decisions of the ECtHR as binding
precedent in future cases.
 If a court declares that a provision in UK legislation is
incompatible with the Convention, a minister may amend the
legislation to remove the inconsistency.
Ministers presenting Bills to Parliament must state that the Bill is

compatible with the Convention.
The rights can sometimes conflict and a balance has to be struck.

For example, the right to privacy can conflict with freedom of
expression (e.g. regarding investigative journalism).
Illustration 5 Right to Privacy versus

Freedom of Expression
Mosley v News Group Newspapers Ltd (2008)
The claimant, Max Mosley, was president of the Fédération Internationale de
L'Automobile. News Group ran a story in its now-defunct tabloid newspaper,
the News of the World, and online, exposing lurid details about a private party
which he attended. The story was headlined, "F1 boss has sick Nazi orgy with 5
hookers".
Mosley acknowledged that the event had taken place and that there had been a
militaristic theme to the party, but he denied that there was a Nazi element. No
evidence was produced by News Group to support the Nazi suggestion.
Held: The publication violated the right to respect for the private life of all those
involved and publication could only be justified if it were in the public interest.
The court commented that there could be a public interest in publishing evidence
that would call into question the suitability of a person in an organisation to
which he was accountable, and that this might have been the case if there had
in fact been a Nazi theme to the event; however, the evidence did not support
the conclusion that there was in fact a Nazi theme to the event. Mosley was
awarded £60,000 in damages.

Illustration 6 Shambo the Bull and the Hindu Monks

of Skanda Vale (2007)—Balancing the
Right to Manifest Religion with Other
Public Imperatives
Background: Under UK public and animal health legislation, cattle testing positive for bovine
tuberculosis must be slaughtered. In 2007, a bull named Shambo, revered as sacred by a Hindu
community at Skanda Vale in rural Wales, tested positive. The fate of Shambo became a national
cause célèbre.
The Claim: The Skanda Vale Community applied to the Welsh Minister of Rural Development,
asking her to exercise ministerial discretion provided under Animal Health Act 1981 to not have
the animal killed. They argued that killing the bull would contravene their human right of freedom
of religious expression. The minister decided against them on the following grounds:
"Under the Animal Health Act 1981, I have discretion as to whether to have an animal with bovine
tuberculosis put down or not. I am also committed to operating within the European Convention
on Human Rights, article 9 of which protects the right to manifest religion. The Convention does
however provide clearly that the right can be limited if necessary to protect health. In deciding
how to use my discretion I have therefore considered extremely carefully whether the rights of
the Community to manifest their religion should override the duty on me to protect animal and
human health. In the light of the veterinary, medical and legal assessments, I am minded to
conclude that they should not, and that the normal policy for controlling bovine TB should be
upheld in this case."
The commune applied to court to have the minister's decision quashed, arguing that the decision
was unlawful. Judge Gary Hickinbottom ruled that the order that Shambo be destroyed was
unlawful and infringed the human rights of monks at the community's Hindu temple.
He said that the minister had failed to consider the full circumstances and alternatives to
slaughter. However, he added: "This judgment does not guarantee that—as the Hindu community
wishes—Shambo will live until he dies a natural death. This judgment merely rules that the
decision to issue the slaughter notice was unlawful and will be quashed."
Final Decision: The Welsh Assembly Government successfully appealed against the decision.
Lord Justice Pill, one of the panel of three judges hearing that appeal, said: "I have come to the
conclusion that the [Welsh Assembly] minister was entitled to make the decision she did, having
regard to the very considerable problem presented by bovine tuberculosis.
"The decision to eliminate the risk presented by the bullock by slaughter, and not permit an
exception to the slaughter policy, was in my judgment justified."
He added that the move was justified even though the Hindu community would consider it a
"serious interference with their religious rights".
Example 2 English Legal System

Fill in the gaps in the paragraph below, which considers the constitutional and administrative law
relevant to the events in Illustration 6:
Solution
The Animal Health Act 1981 and the Human Rights Act 1998 are examples of
law, enacted by . It is the superior source of
law, taking precedence over .
The courts have jurisdiction to rule in cases where a public body or official acts in a way that is
.
The process of applying to the courts to question the legality of the acts of a public office or body
is called .
The court to which the request for review is made is the Division of
the Court. The judge has the authority in such cases to cancel an
improperly made decision, and/or refer it back for reconsideration.
Further appeal can be made to the or, with the
agreement of all concerned and if the matter is one of general public importance, to the
.

Session 1
Summary
 English law is a predominantly "Common Law" system with two important features:
• It is based on fundamental principles of law identiﬁed and expounded by an independent
judiciary; and
• The accused in a criminal case has a right to a jury.
 Common law principles provide a model for laws internationally.
 The UK is a constitutional monarchy ("the Crown"). UK legislature is made up of the
Crown and two "houses" of Parliament: the House of Commons and the House of Lords.
The monarch invites the leader of the majority political party in the House of Commons to
form a government and this person becomes prime minister.
 Law serves two functions: public and private.
• Public law regulates constitutional, administrative and criminal law.
• Private law regulates the "law of obligations" (contract and tort law), company and
insolvency law.
 There are two branches of English law: criminal and civil.
• Criminal law prosecutes those accused of criminal wrongdoing. Guilt must be proved
"beyond a reasonable doubt" and the accused is "presumed innocent until proven
guilty".
• Civil law describes the "law of obligations" between citizens and a party has no liability
unless the case is proved against him.
 Judges are ranked in the following order from lowest level: District; Circuit; High Court;
Appeal Court; (12) justices of the Supreme Court.
 The main sources of English law are: i) case law; ii) statute; and iii) EU law.
• Case law applies principles of common law and equity.
• The common law remedy is damages; equitable remedies are only available when a
monetary award is inadequate.
• If common law and equity conﬂict, equitable remedies prevail.
 Enacted legislation ("statutes") are the primary binding authority in the jurisdiction they
control. A proposed statute ("Bill") is enacted (i.e. becomes an Act) when it receives Royal
Assent after approval by both Houses of Parliament.
 The UK is a member of the European Community (EC) and the European Union (EU),
bound by the provisions of EU treaties. EU law takes precedence over domestic law. The
primary sources of EU law are: treaties, regulations, directives and decisions.
 A judge's duty is to identify, interpret and apply both case law and statute. Generally,
precedents set by higher courts bind lower courts; however, a precedent will not be binding
if the original decision was reversed, overruled, distinguished or made per incuriam.
 Where legislation is ambiguous the judge interprets the draftsman's words using, for
example, the Literal Rule, the Golden Rule and the Purposive Rule.
 The Human Rights Act 1998 allows the European Convention on Human Rights to be
enforced directly in English courts.
• Absolute rights include: right to life; prohibition of torture; prohibition of slavery; no
punishment without relevant criminal law; and prohibition of discrimination.
• Other rights include the right to liberty, privacy and freedom of thought.

Session 1 Quiz
Estimated time: 30 minutes
1. Distinguish between public and private law. (1.4)
2. State the difference between criminal and civil law. (1.5)
3. List the THREE main sources of law in England and Wales. (2.1)
4. State how the doctrine of precedent operates. (2.2)
5. Explain how equity modifies the operation of common law. (2.3)
6. True or false? "Statute law overrides case law." (2.4)
7. Give THREE examples of delegated legislation. (2.5.3)
8. Distinguish between European Regulations, Directives and Decisions. (2.6.2)
9. What is the ratio decidendi of a decided case? (3.1)
10. What is the significance of statements made obiter dicta by a judge? (3.1)
11. List THREE circumstances in which a judicial decision need not be followed in a later case. (3.2)
12. Distinguish between literal and purposive interpretation of words used in statutes. (3.3.2)
13. Outline the hierarchy of the civil courts in England and Wales. (4.2)
14. List the FIVE ways in which the Human Rights Act affects the law generally in England and
Wales. (5.3)
Study Question Bank

Estimated time: 40 minutes
Priority Estimated Time Completed
MCQs – Session 1 20 minutes
Q1 Sources of Law 20 minutes

Additional
Q2 Definitions
Q3 Powers of the Courts

EXAMPLE SOLUTIONS
Solution 1—Legal Terminology
1. Master of the Rolls 2 A lay justice
2. Magistrate 8 The specific reasoning behind a judicial decision
A criminal offence which is so serious that it must be heard

3. Injunction 6
in the Crown Court
Statements made by a judge which are ancillary to the main
4. Damages 9
reasoning of the decision
Interpretation of words used in a statute so as to avoid
5. Fine 15
manifestly absurd or repugnant effects
A geographically defined area for the administration of
6. Indictable offence 24
justice in England and Wales
The collective term for judges of every rank in England and
7. Summary offence 18
Wales
Legal principles which apply subjectively to cases by reason
8. Ratio decidendi 17
of principles of fairness and good conscience
The rules based on fundamental principles which apply
9. Obiter dicta 16
consistently throughout England and Wales
10. Supreme Court Justices Interpretation of words used in a statute by reference to
13
(Formerly the Law Lords) Parliament's intention in passing it
Agreement by the Crown to legislation promulgated by the
11. Lords Justices of Appeal 20
Houses of Commons and Lords
12. District judges 5 A financial penalty for a crime
The collective term for the Houses of Parliament and the

13. Purposive Rule 19
Crown
14. Literal Rule 10 Judges of the Supreme Court of the United Kingdom
15. Golden Rule 1 The senior judge in the Civil Division of the Court of Appeal
16. Common law 4 Money compensation
A set of rules and regulations issued with statutory status by

17. Equity 23
a government minister or department
Professional judges in the Magistrates' Court and County
18. The judiciary 12
Court
19. Parliament 22 A statute which has been enacted
20. Royal Assent 11 Judges of the Court of Appeal
A criminal offence which will be decided by local

21. A Bill 7
magistrates
22. An Act 14
their ordinary literal meaning
One of the areas of judicial competence and responsibility
23. A Statutory instrument 25
in the High Court and Court of Appeal
A court order commanding a person to do something or to
24. Circuit 3
desist from doing something
25. Division 21 Proposed legislation

Solution 2—English Legal System
The Animal Health Act 1981 and the Human Rights Act 1998 are
examples of statute law, enacted by Parliament. It is the superior
source of law, taking precedence over case law.
The courts have jurisdiction to rule in cases where a public body or
official acts in a way that is illegal, irrational or procedurally improper.
The process of applying to the courts to question the legality of the acts
of a public office or body is called judicial review.
The court to which the request for review is made is the Queen's
Bench Division of the High Court. The judge has the authority in such
cases to cancel an improperly made decision, and/or refer it back for
reconsideration.
Further appeal can be made to the Court of Appeal or, with the
agreement of all concerned and if the matter is one of general public
importance, to the Supreme Court of United Kingdom.

NOTES

F4-01 English Legal System

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Session 1

English Legal System

A. Essential Elements of the Legal System

(continued on next page)

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SOURCES OF LAW COURTS

INTERPRETING THE LAW HUMAN RIGHTS

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1.2 Nature of English Law

1.3 Constitutional Matters

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1.3.3 Regional and Local Government

1.3.4 European Union

1.3.5 Status of the Judiciary (Judges)

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1.4 What is Law?

1.4.1 Public Law Law—a set of rules

1.4.2 Private Law

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1.5 Branches of English Law

1.5.1 Criminal Law

1.5.2 Civil Law

1.5.3 Parallel Proceedings

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1.6 The Judiciary

Judicial appointments are based on professional legal expertise

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2.1 Main Sources

2.2 Case Law

2.3 Case Law—Common Law and Equity

 The common law governs the basic principles of business law:

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2.3.2 Remedies at Common Law and in Equity

Illustration 1 'Delay Defeats Equity'

Allcard v Skinner (1887)

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2.4 Case Law Terminology

2.4.3 Recording and Reporting the Decision

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2.5 Statutes and Delegated Legislation

Exhibit 1 SECTION AND

1.—(1) Subject to the provisions of this Act, a person who

Provisions are commonly referred to by section number, statute

2.5.2 The Legislative Process

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2.5.3 Delegated Legislation

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2.5.4 Controls on Delegated Legislation

2.6 European Union Law

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2.6.2 Sources of EU Law

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