English Legal System

• Nature of Law

  Law is a formal mechanism of social control. Legal rules can change instantly and must be obeyed. Legal duties apply to everyone in a particular society. Legal rules are imposed and enforced by the state. There is a system of courts which apply and enforce the law. In criminal law there are penalties for breaking the law. The most severe penalty is imprisonment for life. In civil law the courts can order the party who has broken the rules to compensate the innocent party, or the courts can make some other order trying to put right the wrong that was done.
• Civil law is about private disputes between individuals and/or businesses.

  • Contract law, where the parties have made an agreement, and each side has put something into the agreement.
  • Tort law, even though there is no contract between them, one person owes a legal duty of some kind to another person, and there has been a breach of that duty. (tort of negligence, occupiers' liability)
• What is the definition of law?

  Law is a formal mechanism of social control.
• What is the purpose of Criminal law?

  Criminal law sets out the types of behaviour which are forbidden at risk of punishment.
• WHAT ARE THE DIFFERENCES BETWEEN CRIMINAL AND CIVIL LAW?

  Criminal:Maintain law and order, to protect society. Civil Law:to resolve private disputes
• What is the standard of proof in Civil Law?

  On the balance of probabilities.
• Type of laws:

  Common law is the basis of our law today. It was developed from custom and the decisions of the judge.
• Type of law:

  An Act of Parliament (or statute) is law that has been passed by both Houses of Parliament and received Royal Assent from the king or queen.

  As Parliament contains our elected law makers, statute law can create, change or revoke any law. It is useful for wide-ranging changes to the law.
• What is the Literal Rule?

  Judges using the literal rule give words in statutes their ordinary dictionary meaning, even if it results in an absurd outcome to cases: WHITELY v CHAPPELL.
• ADVANTAGES OF THE LITERAL RULE

  • it respects the supremacy of Parliament and leaves law making to those elected for the job.
  • It also encourages certainty in the law, as the judges are not allowed to alter the meaning of words in Acts to suit themselves. The predictable result makes it easier for people to know what the law is and how judges will apply it.
• DISADVANTAGES OF THE LITERAL RULE

  • However, where use of the literal rule does lead to an absurd conclusion, it can hardly be said to be carrying out the intention of Parliament. It cannot have been Parliament’s intention to allow someone to get away with an extra vote as happened in WHITELY v CHAPPELL.
  • The literal rule assumes that every Act will be perfectly drafted, and this is not always the case. Words often do not have one plain ordinary meaning, or meanings can change over time.
• What is the definition of the GOLDEN RULE?

  It is used when a judge considers that the literal rule would lead to an absurd outcome.
• What is the Golden Rule?

  • where words are capable of having more than one meaning, the meaning that is least absurd should be used: ADLER.
  • Here the golden rule is used to modify clear words in a statute to avoid an absurdity: RE SIGSWORTH. (In the case a son had murdered his mother, and the court had modified the clear wording of the Act to prevent the son inheriting the estate.)
• ADVANTAGES OF THE GOLDEN RULE

  • The judges can use it to prevent the absurdity and injustice caused by the literal rule.
  • The judges put into practice what Parliament really means. Parliament’s intention would not have been to create an absurd situation. It would clearly have been unjust to allow the son in RE SIGSWORTH to benefit from his crime.
• DISADVANTAGES OF THE GOLDEN RULE

  • However, the main problem is in deciding when a literal interpretation produces an ‘absurd’ result, requiring modification by the golden rule. This means that it will be difficult for a lawyer to advise their client what the result of a case may be.
  • The unelected judges are beginning to make law. The golden rule can be said to be undemocratic.
• The Mischief Rule was used in SMITH v HUGHES (1960) to interpret the offence of a prostitute soliciting ‘in a street or public place’.

  The mischief aimed at by the statute was to enable people to walk along the streets without being harassed by prostitutes. Thus, the statute was interpreted to stop this ‘mischief’.
• what problem, or ‘mischief’, was the statute trying to remedy?


  The judges should then interpret the statute in such a way asto put a stop to the mischief
• Advantages of Mischief Rule

  • The mischief rule helps to avoid absurd and unjust outcomes to cases, where the literal rule is used. It recognises that to look only at the words of a statute is inadequate.
  • The mischief rule attempts to follow the will of Parliament rather than the exact words written by Parliament.
• Disadvantages of the Mischief Rule

  • Its use relies on being able to find out what mischief in the common law Parliament was trying to remedy. Given the limited external aids that the judges can use to interpret a statute, this can be a very difficult task for the judges.
  • This rule increases the law-making power of the unelected judges at the expense of Parliament which is undemocratic. Judges are trying to fill the gaps in the law with their own views.
• Purposive approach

  The purposive approach requires the court to work out the general purpose of Parliament in passing the Act and then interpret the Act to fulfil that purpose. The courts look at the wording in the Act, but are also willing to look outside the Act for meaning – e.g. Hansard may be available.

  This approach allows the courts to read words into an Act where there are gaps. The court may look at the purpose of the Act even where the words used are clear.
• Purposive approach

  In COLTMAN v BIBBY TANKERS (1978) an Act imposed liability on an employer for the death of an employee caused by defective equipment supplied by that employer. C died when a ship he was working on capsized because it had a defective hull, and the court had to decide whether a ship was ‘equipment’.

  The company was liable because the general purpose of the Act was to make the employer liable for harm caused by defects in anything provided by the employer.
• Advantages of Purposive approach

  • This modern approach helps to avoid an absurd and unjust outcome to a case. It is more likely to respect the wishes of Parliament since it seeks to find and fulfil the general purpose of Parliament.
  • It promotes flexibility in the interpretation of legislation and enables the law to be kept up to date by the judges filling in the gaps, as the judges did in COLTMAN v BIBBY TANKERS. It is particularly useful where there is new technology which was unknown when the Act was passed.
• Disadvantages of Purposive approach

  • The purposive approach enables unelected judges to take over the function of Parliament in making new law, as the judges did in the EX PARTE SMITH case. The purposive approach also leads to uncertainty in the law. It is impossible to know when judges will use this approach or what result it might lead to.
  • Critics argue that it is impossible to discover the general purpose of Parliament in passing legislation; only the words of the statute can show what Parliament wanted. It is not for a judge to argue that ‘Parliament said one thing but meant another’.
• WHAT ARE EXTERNAL (OR EXTRINSIC) AIDS TO INTERPRETATION?

  External aids are materials which are outside of a statute which the judges may use, to help them interpret that statute. These include:

  • authorised dictionary
  • A report from the Law Commission proposing reforms to the law and on which the statute is based.
  • Hansard can be consulted where the word or phrase being interpreted was discussed in a parliamentary debate. The case of PEPPER v HART (1993) allowed Hansard to be consulted in limited circumstances.
• WHAT ARE INTERNAL (OR INTRINSIC) AIDS TO INTERPRETATION?Internal aids are clues within the statute itself that may help to make its meaning clearer. These include:

  • The short and long title of the statute.
  • Definition sections.
  • Schedules towards the end of the statute which give extra detail required by earlier parts of the statute.
• WHAT IS THE IMPACT OF EUROPEAN UNION LAW ON STATUTORY INTERPRETATION IN ENGLAND AND WALES?

  • The English courts accepted that for national law which was passed because of having to conform to a European law, the purposive approach was the correct one to use.
  • Judges have had to use the purposive approach for European law for over 50 years. This has made them more accustomed to it and, therefore, more likely to apply it to national law.
• WHAT IS THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON STATUTORY INTERPRETATION?

  • The HUMAN RIGHTS ACT 1998 says that, if possible, legislation must be interpreted in a way which is compatible with the rights in the European Convention on Human Rights. This only applies to a case where one of the rights is a human right.
• What is a Binding Precedent?

  A binding precedent is a statement of law from an earlier case which must be followed even if the judge in the current case does not agree with the law. A binding precedent is only created when the material facts (main events) of the second case are sufficiently similar to the precedent and the decision made by the court.
• Judicial precedent

  • A system of law reporting is needed both to publicise a judgment to ensure there is an accurate record
  • In a judgment, the judge will explain the principles of law he is using to decide why a particular party won
  • These principles are the important part of the judgment and are known as the ratio decidendi and judges follow in later similar cases
  • All the other points of law in the judgment which are not ratio are called obiter dicta
  • These comments are not vital to the outcome of the case
• Judicial precedent

  • In R v HOWE that duress could not be a defence to the crime of murder