ELEVENTH EDITION English Legal System ‘The book has several strengths welcome to students and lecturers alike: up to date, well-written and comprehensive. It provides clear exposition of the central themes whilst the delightful layout makes the information readily accessible.’ Dr. Jackson Maogoto, Senior Lecturer, University of Manchester English Legal System is the best-selling undergraduate text on this subject, providing an authoritative and engaging account of the structure and mechanisms of the law in England and Wales. The authors skilfully present a thought- provoking analysis of the subject, making this the defi nitive introduction to the area and the fi rst choice for students year after year. Annually revised and fully updated, Elliott and Quinn’s English Legal System continues to keep you fully informed of progress and changes premium within this constantly evolving topic. Some key recent developments covered in this eleventh edition include: • The establishment of the Supreme Court • Planned reforms in the Constitutional Reform and Governance Bill Do you want to give yourself a head start come • Changes to the regulation of the legal profession, including the exam time? establishment of the Legal Services Board Visit www.mylawchamber.co.uk/ElliottELS • The opening of family courts to the media to access the accompanying Pearson eText, an • Police tactics following the G20 demonstrations electronic version of English Legal System. The eText is fully linked to interactive quizzes, This eleventh edition offers: sample exam questions with answer guidance, • Comprehensive exposition of the legal system of England and Wales and fl ashcards – all designed so that you can test yourself on topics covered in this book. • Unrivalled clarity of explanation • Over eighty questions with answer guidance in the book and within There are also live weblinks and regular legal updates to help you impress lecturers and mylawchamber, alongside a dedicated appendix on answering examiners with your knowledge of the latest exam questions to help support your revision developments in the English legal system. premium Lecturers: Register online for access to a testbank The book also draws on a number of innovative learning features to of multiple-choice questions that can be customised develop your knowledge of the subject even further, such as: and used to assess students’ progress. • Key Case boxes which help you identify and remember important ELLIOTT & QUINN CATHERINE ELLIOTT & FRANCES QUINN cases and rulings • Topical Issue boxes which put the legal system into context and support understanding • Figures and diagrams which offer a visual description of various aspects of the legal system ABOUT THE AUTHORS Catherine Elliott is a qualifi ed barrister and senior lecturer in law at City University, London. She has English extensive experience of teaching and writing about law. Frances Quinn is an award-winning journalist, with a particular interest in and experience of the law. Legal System premium ELEVENTH EDITION www.pearson-books.com Cover © iStock CVR_ELLI0565_11_SE_CVR.indd 1 8/2/10 10:23:19 English Legal System Eleventh Edition Catherine Elliott and Frances Quinn Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 1996 Second edition 1998 Third edition 2000 Fourth edition 2002 Fifth edition 2004 Sixth edition 2006 Seventh edition 2006 Eighth edition 2007 Ninth edition 2008 Tenth edition 2009 Eleventh edition 2010 © Pearson Education Limited 1996, 2010 The rights of Catherine Elliott and Frances Quinn to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. All trademarks used herein are the property of their respective owners. The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of the Click-Use Licence. ISBN: 978-1-4082-3056-5 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Elliott, Catherine. English legal system / Catherine Elliott and Frances Quinn. – 11th ed. p. cm. ISBN 978-1-4082-3056-5 (pbk.) 1. Law–Great Britain. 2. Justice, Administration of–Great Britain. 3. Courts–Great Britain. I. Quinn, Frances. II. Title. KD662.E45 2010 349.42—dc22 2009047335 1098765432 14 13 12 11 10 Typeset by 35 Printed and bound in Great Britain by Ashford Colour Press Ltd, Gosport, Hants Brief contents Guided tour x Preface xiii Acknowledgements xiv Table of cases xv Table of statutes xxiii Table of statutory materials xxvii Cases, law reports and case references: a guide xxix Introduction 1 Part 1 SOURCES OF LAW 1 Case law 11 2 Statute law 41 3 Statutory interpretation 52 4 Delegated legislation 78 5 European law 90 6 Custom 115 7 Equity 120 8 Treaties 128 9 Law reform 131 Part 2 PEOPLE WORKING IN THE LEGAL SYSTEM 10 The judges 153 11 The legal professions 188 12 The jury system 232 13 Magistrates 270 14 Administration of justice 290 Part 3 HUMAN RIGHTS 15 Introduction to human rights 299 16 Remedies for infringement of human rights 325 iv Brief contents Part 4 DISPUTE RESOLUTION 17 Paying for legal services 339 18 The police 377 19 The criminal trial process 424 20 Sentencing 462 21 Young offenders 504 22 The civil justice system 530 23 Tribunals 571 24 Appeals and judicial review 585 25 Alternative methods of dispute resolution 621 Part 5 CONCEPTS OF LAW 26 Law and rules 639 27 Law and morals 650 28 Law and justice 667 Appendix: Answering examination questions 675 Glossary 681 Select bibliography 684 Index 697 Contents Guided tour x 3 Statutory interpretation 52 Preface xiii Introduction 53 Acknowledgements xiv How are statutes interpreted? 54 Table of cases xv Rules of interpretation 54 Table of statutes xxiii Interpreting European legislation 63 Table of statutory materials xxvii Aids to interpretation 63 Cases, law reports and case How do judges really interpret references: a guide xxix statutes? 70 Reform of statutory interpretation 73 Introduction 1 Answering questions 74 The unwritten constitution 2 Summary of Chapter 3 75 A written constitution? 6 Reading list 76 Reading on the Internet 77 Part 1 SOURCES OF LAW 4 Delegated legislation 78 Introduction 79 1 Case law 11 The power to make delegated Historical background 12 legislation 79 Judicial precedent 15 Why is delegated legislation The hierarchy of the courts 16 necessary? 80 How judicial precedent works 23 Control of delegated legislation 81 Criticism of delegated How do judges really decide cases? 24 Do judges make law? 28 legislation 85 When should judges make law? 30 Answering questions 86 Advantages of case law 33 Summary of Chapter 4 88 Disadvantages of case law 34 Reading list 89 Answering questions 37 Reading on the Internet 89 Summary of Chapter 1 39 Reading list 40 5 European law 90 Reading on the Internet 40 Introduction 91 The aims of the European Union 91 2 Statute law 41 Modernising the European Union 93 Introduction 42 The institutions of the European Union 93 House of Commons 42 Making European legislation 101 House of Lords 42 Types of European legislation 101 Making an Act of Parliament 43 How does EU law affect the UK? 107 Answering questions 49 Answering questions 111 Summary of Chapter 2 50 Summary of Chapter 5 113 Reading list 50 Reading list 113 Reading on the Internet 51 Reading on the Internet 114 vi Contents 6 Custom 115 Appointments to the judiciary 159 Introduction 116 Wigs and gowns 165 When can custom be a source of law? 116 Training 166 Answering questions 118 Pay 166 Summary of Chapter 6 119 Promotion 167 Reading list 119 Termination of appointment 167 Independence of the judiciary 169 7 Equity 120 Criticisms of the judiciary 170 Introduction 121 Reform of the judiciary 181 How equity began 121 Answering questions 183 Common law and equity 122 Summary of Chapter 10 185 The Judicature Acts 123 Reading list 186 Equity today 123 Reading on the Internet 187 Answering questions 126 Summary of Chapter 7 126 11 The legal professions 188 Reading list 127 Introduction 189 Solicitors 189 8 Treaties 128 Barristers 198 Introduction 129 Background of barristers and Implementation of treaties 129 solicitors 203 Answering questions 130 Performance of the legal Reading on the Internet 130 professions 208 The future of the professions 210 9 Law reform 131 Fusion of the professions 219 Introduction 132 Other legal personnel 224 Judicial change 132 Do we need legal professionals? 225 Reform by Parliament 133 Answering questions 226 Pressures for reform 134 Summary of Chapter 11 228 Agencies of law reform 136 Reading list 230 Performance of the law reform Reading on the