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Flashcards · 9084 · AS Topic 1
English legal system (AS Level) flashcards
26 cards on AS Topic 1, subtopics 1.1 to 1.3. Pick a subtopic or study them all.
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1.1 Principles and sources of English law
- What is the rule of law?
- No one is above the law, everyone is equal before it, and the law should be clear, certain and applied fairly and consistently.
- What does parliamentary sovereignty mean?
- Parliament can make or unmake any law, no Parliament can bind its successors, and no other body (including a court) can set aside an Act of Parliament.
- What are the main sources of English law?
- Statute (Acts of Parliament, the supreme source), delegated legislation, case law (common law, through precedent), equity, and custom (very rare today).
- What are the stages of an Act of Parliament?
- First Reading, Second Reading (main debate), Committee Stage (clause by clause), Report Stage, Third Reading; the same in the other House; then Royal Assent.
- What is delegated legislation? Name three forms.
- Law made by a body other than Parliament under authority granted by an enabling (parent) Act. Forms: statutory instruments, byelaws, Orders in Council.
- How is delegated legislation controlled?
- Parliamentary control: affirmative or negative resolution procedures and scrutiny committees. Judicial control: judicial review, which can declare it ultra vires (beyond the powers granted) and void.
- What is the difference between ratio decidendi and obiter dicta?
- Ratio decidendi: the legal reason for the decision, which is binding on lower courts. Obiter dicta: things said “by the way”, which are only persuasive.
- What does the Practice Statement 1966 allow?
- The House of Lords (now the Supreme Court) may depart from its own previous decisions “when it appears right to do so”. It is used sparingly to keep certainty.
- What is the difference between distinguishing, overruling and reversing?
- Distinguishing: the material facts differ, so the earlier precedent does not apply. Overruling: a higher court declares an earlier decision in a different case wrong. Reversing: a higher court changes the outcome of the same case on appeal.
- What are the four approaches to statutory interpretation?
- Literal rule: plain, ordinary meaning. Golden rule: modify the literal meaning to avoid an absurdity. Mischief rule: what defect was the Act passed to remedy (Heydon’s Case, 1584). Purposive approach: give effect to Parliament’s purpose.
- What did Pepper v Hart (1993) decide?
- Courts may refer to Hansard (records of debates in Parliament) as an extrinsic aid where the Act is ambiguous, within strict limits.
- What is the ejusdem generis rule?
- Where general words follow a list of specific ones, the general words are limited to things of the same kind as the list.
1.2 Machinery of justice
- What is the route of appeal for a criminal case tried in the Crown Court?
- Crown Court → Court of Appeal (Criminal Division) → Supreme Court (on a point of law of general public importance).
- What are summary, either-way and indictable offences?
- Summary: tried only in the Magistrates’ Court. Either-way: tried in either court; the defendant may elect Crown Court trial. Indictable: tried only in the Crown Court, before a judge and jury.
- Where does a civil claim start and how is it allocated?
- In the County Court or, for higher-value or complex claims, the High Court. It is allocated to the small claims, fast, intermediate or multi-track by value and complexity.
- What are the three divisions of the High Court?
- King’s Bench Division, Chancery Division and Family Division.
- What is the difference between mediation, conciliation and arbitration?
- Mediation: a neutral third party helps the parties reach their own solution. Conciliation: similar, but the conciliator may suggest a solution. Arbitration: an arbitrator makes a binding decision (Arbitration Act 1996).
- What are the advantages of ADR over going to court?
- Usually cheaper, quicker, private and less formal; the parties keep more control, and relationships (e.g. business ones) are more likely to survive.
- What are tribunals?
- Specialist bodies outside the ordinary courts that decide disputes in particular areas, such as employment or immigration, more cheaply and informally, with expert members.
1.3 Legal personnel
- What is the difference between solicitors and barristers?
- Solicitors: general practice with direct client contact, increasingly with rights of audience. Barristers: specialist advocates and advisers, usually instructed through a solicitor, bound by the cab-rank rule.
- What is the cab-rank rule?
- A barrister must accept any case within their competence and availability, at a proper fee, whoever the client is.
- Who regulates solicitors and barristers?
- Representative bodies: the Law Society (solicitors) and the Bar Council (barristers). Independent regulators: the Solicitors Regulation Authority and the Bar Standards Board, a separation required by the Legal Services Act 2007.
- How is judicial independence protected?
- Security of tenure, protected salaries, immunity from being sued for judicial acts, appointment through the independent Judicial Appointments Commission, and the separation of powers.
- Who are lay magistrates and what are the criticisms of them?
- Unpaid volunteers with no legal qualification, usually sitting in threes, advised by a legally qualified clerk. Criticised as unrepresentative of the community and inconsistent between benches.
- What is the role of a jury in a Crown Court trial?
- Twelve people decide the facts and the verdict (guilty or not guilty); the judge decides points of law and the sentence. Deliberations are secret and no reasons are given.
- What does the Crown Prosecution Service (CPS) do?
- It decides whether to prosecute cases investigated by the police, applying the evidential test and the public interest test, and conducts the prosecution.