The Barrie Guide to the English Legal System and Legal Method 2021 Barrie Goldstone Head of the School of Law London Metropolitan University 0 CONTENTS INTRODUCTION FURTHER READING PART ONE: LEGAL LANGUAGE AND PROCEDURE 1 The Categories of Law 2 The Language of the Law 3 The Overlap of Criminal and Civil Law 4 The Hierarchy of the Criminal and Civil Courts Exercise One: The Overlap of Criminal and Civil Law PART TWO: THE SOURCES OF ENGLISH LAW 5 Statute Law: Introduction 6 Statute Law: The Legislative Process 7 The Common Law: Introduction 8 The Common Law: The Law Reports 9 The Common Law: Ratio Decidendi and Obiter Dicta 10 The Common Law: The Hierarchy of the Courts 11 The Common Law: Disregarding Precedents Exercise Two: Case Analysis Exercise Three: Advanced Case Analysis 12 The Doctrine of Equity 13 Law of the European Union 14 Subsidiary Sources of Law 15 Statutory Interpretation: Introduction 16 Statutory Interpretation: The General Rules 17 Statutory Interpretation: Other Rules 18 Statutory Interpretation: Literal Approach v. Purposive Approach 19 Statutory Interpretation: The Use of Extrinsic Sources 20 Statutory Interpretation: Human Rights Exercise Four: Statutory Analysis 1 PART THREE: CRIMINAL LAW AND PROCEDURE 21 Sources of Criminal Law 22 Categories of Crime 23 The Police and the Crown Prosecution Service 24 The Magistrates’ Courts 25 The Crown Court 26 The Court of Appeal (Criminal Division) 27 The Supreme Court 28 Appeals by way of Case Stated 29 Elements of Criminal Procedure PART FOUR: CIVIL LAW AND PROCEDURE 30 Introduction 31 Categories of Civil Law 33 Civil Litigation: Introduction 33 Civil Litigation: Alternative Disupte Resolution 34 Civil Litigation: Arbitration 35 Civil Litigation: Mediation and Conciliation 36 Civil Litigation: Going to Court 37 Civil Litigation: Elements of Civil Court Procedure PART FIVE: THE ENGLISH LEGAL PROFESSION 38 Solicitors 39 Barristers 40 The Judiciary 41 Magistrates 42 Other Legal Practitioners PART SIX: LEGAL PRACTICE AND LEGAL SCHOLARSHIP 43 Legal Practice 44 Legal Scholarship 2 PART SEVEN: LEGAL REASONING 45 Introduction 46 Methods of Reasoning 47 Views on Legal Reasoning 48 Syllogistic Logic PART EIGHT: MATTERS OF FACT v. MATTERS OF LAW 49 Fact and Law PART NINE: LEGAL WRITING 50 Cementing the Foundations of Law 51 Preparing Written Legal Work 52 Dissertations and Coursework 53 Summary 54 What not to do when writing a law essay PART TEN: LEGAL RESEARCH 55 Textbooks, Journals and Encyclopaedias 56 Databases 57 OSCOLA Referencing PART ELEVEN: JUDICIAL ETHICS 58 Justice, Not Truth 59 Judicial Bias 60 Judicial Prejudice in Resolving a Factual Dispute 61 Judicial Prejudice in Resolving a Legal Dispute 62 Clarity and Certainty in Judgments 63 Dissenting Judgments 3 APPENDIX A: PRIMARY SOURCE MATERIALS 1. Adler v. George [1964] 2 QB 7 2. Builders’ Skip Case (1986) 3. Regina v. Brown (Anthony) [1994] 1 AC 212 4. Carlill v. The Carbolic Smoke Ball Company [1892] 2 QB 484 (High Court) 5. Carlill v. The Carbolic Smoke Ball Company [1892] 2 QB 484 (Court of Appeal) 6. Fisher v. Bell [1960] 3 WLR 919 7. Hammond v. Mitchell [1991] 1 WLR 1127 8. Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] AC 465 9. Hinz v. Berry [1970] 2 QB 40 10. Regina (Jackson and others) v. Attorney General [2006] 1 AC 262 11. Partridge v. Crittenden [1968] 1 WLR 1204 12. Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd. [1953] 1 QB 401 13. Smith v. Hughes [1960] 1 WLR 830 14. Whiteley v. Chappell (1868-69) LR 4 QB 147 15. The Noise Act 1996 (as amended) 16. The European Convention on Human Rights APPENDIX B: CASE ANALYSIS GUIDANCE APPENDIX C: TEST YOUR KNOWLEDGE OF THE ENGLISH LEGAL SYSTEM 4 INTRODUCTION This manual is designed to familiarise you with some basic ideas about the system of law in England and Wales. It is largely English law that you will be learning and applying in this course. The law of any country is much more than a “set of rules”. The rules are what we perceive on the surface, but creating and underpinning them is a “legal culture” or way of thinking. The way the rules work can only be understood by considering the context in which they are generated and applied. If you have not studied or worked with English Law before, you will find it invaluable to gain a basic knowledge of legal structure, legal language, legal research and legal analysis, before looking at the substantive law which forms the main body of this course. Throughout this text you will find formative exercises, some of which you will attempt in the tutorials and as homework. Good luck with the course. We hope you find it enjoyable, interesting and useful. Best wishes, Barrie Goldstone Head of the School of Law, London Metropolitan University 5 FURTHER READING General Reading There are many excellent text-books which give a clear account of the English Legal System. We would recommend the latest editions of any of the following: The English Legal System (Gillespie, OUP) The English Legal System (Slapper and Kelly, Routledge) Smith and Keenan’s English Law (Keenan, Pearson) (Especially part one. This book also contains a useful summary of many areas of substantive law.) There are also several useful guides to studying the law, including: Glanville Williams: Learning the Law (Smith, Sweet and Maxwell) You may also wish to have a law dictionary to clarify the many strange words and phrases beloved of lawyers. There are many fine ones on the market, including: Osborn’s Concise Law Dictionary (Bone, Sweet and Maxwell) Cases In addition to reading text-books, you must get used to reading the judgments in decided cases. In the Common Law system of England and Wales, judgments do not just illustrate an application of the law: they often create it. n.b. The word ‘judgment’ is spelt without the middle ‘e’ when it means court judgment. You must NEVER spell it ‘judgement ’in this context… EVER! Statutes and Treaties You must also get used to reading statutes (Acts of Parliament) and treaties, as they are the primary source of English Law. Even areas of law that are largely based on the Common Law (such as the Law of Contract) involve the intervention of several important statutes. n.b. The word ‘Act’ is always spelt with a capital ‘A’ when it refers to an Act of Parliament, even if it appears in the middle of a sentence. Similarly, the word ‘Bill’ is always spelt with a capital ‘B’ when it refers to a Bill of Parliament (i.e. a statute before it has received the Royal Assent). Authorial Note This manual has been complied and written by Barrie Goldstone, with acknowledged reference to - and inclusion of - primary and secondary sources. Sections 29-30 are based on a text by Silas Beckwith Parts 6 and 7 are based on a text by Michael Meehan 6 PART ONE: LEGAL LANGUAGE 1 THE CATEGORIES OF LAW General Categories 1.1 There are numerous ways of categorising English Law, including: • Commercial Law (such as Contract, Company Law and Property Law); • The Law of Tort (such as Negligence, Trespass, Defamation and Private Nuisance); • Family Law (such as Divorce and Adoption Law); • Chancery Law (such as Testamentary Law, Trusts, Patents and Settlements). 1.2 Although such branches of law are taught – and often practised – as discreet areas of law, they all constantly overlap and cannot be understood or practised in isolation. Criminal and Civil Law 1.3 The key division in English Law is between CRIMINAL LAW and CIVIL LAW. Depending on whether a case falls within one branch or the other will determine a host of essential matters, including: • The procedure to be followed in pursuing a case • The courts which may be asked to decide the case • The personnel involved in the case • The required standard of proof • The possible outcomes of the case • The terminology and legal language appropriate to the case Private Law and Public Law 1.4 Another key division that is often made is between PRIVATE LAW and PUBLIC LAW. As the names suggest, PRIVATE LAW concerns matters between private individuals, whereas PUBLIC LAW concerns matters of state. 1.5 Private Law covers the following: • The Law of Contract: consensual obligations arising by way of an agreement • The Law of Tort: non-consensual obligations arising as a matter of general law • The Law of Property: real (land) personal and intellectual • The Law of Equity and Trusts: including wills and succession • Family Law: including marriage, divorce, adoption and custody 1.6 Public Law covers the following: • Administrative Law: the functions and control of governmental powers1 • Constitutional Law: the relationship of the State, the government and the citizen2 • Criminal Law 1 Such as Judicial Review before the Administrative Court. 2 Such as Parliamentary sovereignty; the Rule of Law; the separation of powers; and the structure of government. 7 2 THE LANGUAGE OF THE LAW Criminal Law and Civil Law Terminology 2.1 As well as using different courts, criminal law and civil law cases have different procedural rules and, to some extent, use different terminology. Some of the differences between civil and criminal cases are as follows: CRIMINAL CASES CIVIL CASES Crimes are also called ‘offences’ Civil wrongs are not called ‘offences’ Prosecutions are brought by the Suits are brought by private individuals, known as State in the name of the Crown, claimants (known pre-1999 as plaintiffs). the Crown Prosecution Service or the Director of Public Prosecutions. Only the wronged person may sue. The defendant in a criminal case is The defendant in a civil case is always called sometimes called ‘the accused’ ‘the defendant’ The victim of a crime may not decide The claimant may discontinue the case at any time.