English Law And Most Important Legislation

Q1: English law can be divided into four main sources, Case Law also known as Common Law, Legislation or Statute Law, European Union Law and the European Convention on Human Rights. The aim of this essay is to explain these sources of English Law and evaluate the extent to which legislation is the most important.

Common or Case Law is the basis of the English legal system and its inception can be traced as far back as 1066 during the reign of William the Conqueror. Prior to this period, laws were largely regionalised. During the reign of Henry II from 1154 onwards a unified court system was created with judges travelling on circuits, thus moving away from localised justice to a judicial system on a national level. The aim of the judges was that there should be a common system of law throughout the land, the Kings Justice, hence the term “common law”. Common law is based on the system of precedent. To operate it requires the courts to be organised in a hierarchy, and the existence of accurate law reporting. Once a principle of law is established in one case it should be followed in similar cases in the future. The decisions of the higher courts bind the inferior courts. Case law has been changed by judicial decision making as illustrated by R v R [1992] 1 AC 599 HL in which the 250 year old immunity from the long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate and the defendant was found guilty of spousal rape.

One of the primary functions of the Houses of Parliament is to pass legislation or Statute Law. Green and White Papers outline proposals for legislative change and are open to public consultation. Green Papers may contain alternative policy options inviting public comment whilst White Papers are more detailed. Legislation starts in the form of a Bill of which there are two types; a Public Bill, which changes the law as it is applied to the general population and a Private Bill which changes the law as it applies to individuals or organisations. Private Members Bills may be proposed under the Ballot, the Ten Minute Rule and Presentation. These rarely end up in the Statute book although some notable exceptions are The Abortion Act 1967 and the Murder (Abolition of the Death Penalty) Act 1965. The Bill is then required to pass a series of stages in both the House of Commons and the House of Lords before it finally receives Royal Assent and becomes an Act of Parliament. Delegated legislation or subordinate or secondary legislation is made by bodies other than Parliament such as Government Ministers, Local Authorities or specific organisations. The authority to delegate legislation is contained within the parent Act, also known as the enabling Act. Most delegated legislation is in the form of Statutory Instruments, although other forms exist such as Orders in Council, byelaws, Court Rule committees and professional regulations. According to AV Dicey “Parliament may introduce any law it wishes”, affirming the supremacy of Parliament in the legislative process.

European Union law works alongside domestic law within member states. The UK signed up to the European Communities Act 1972 and under s2(1) of this Act relinquished part of its sovereignty agreeing to accept the supremacy of EU law and delegate some of its decision making roles to the EU. If there is legal dissonance, EU law takes precedence. The two Treaties on which the EU is now based are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) (previously the EC Treaty). The other sources of law made by the EU include regulations, directives and also the judgments and rulings of the Court of Justice of the European Union.

The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe and entered into force on 3rd September 1953. It has currently been ratified by 47 member states of the Council of Europe. The Human Rights Act 1998 (HRA 1998) incorporated the ECHR into UK domestic law on 2nd October 2000. This Act of Parliament provides a remedy under UK domestic law for a breach of a convention right without the need to refer the case to the ECtHR in Strasbourg.

In summary, it is demonstrable that legislation introduced by Parliament is the most important domestic source of English Law. In 2005 there were 24 general public Acts of Parliament passed and 3,699 Statutory Instruments, having a direct effect on UK domestic legislation. It may be argued that European Law has, to an extent, usurped Parliamentary sovereignty, although it should be remembered that this power was granted through an Act of Parliament.

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Treaties and Conventions:

European Convention on Human Rights

Treaty on European Union

Treaty on the Functioning of the European Union

Acts of Parliament:

Human Rights Act 1998

European Communities Act 1972

Abortion Act 1967

Murder (Abolition of the Death Penalty) Act 1965

Case Law:

R v R [1992] 1 AC 599 HL

References:

W200Understanding Law, Manual 1 (2011), Third Edition, The College of Law, SUP021173

The English Legal System, Eleventh Edition 2010-2011, Gary Slapper, David Kelly, ISBN 978-0-415-56695-7

Introduction to the Study of the Law of the Constitution (1885), A.V. Dicey

Q2: In the scenario presented Norman is to be charged under s47 of the Offences Against the Persons Act (OAPA) 1861. It is a “triable either way” offence and carries a maximum sentence of up to 5 years imprisonment. In addition he has received correspondence from Stacey’s solicitor stating that she will sue for damages.

There are distinct differences between Criminal and Civil Law Procedure. The purpose of criminal law is to uphold law and order and to protect society as a whole from the unlawful acts or omissions carried out by the defendant. In criminal law the procedure of the state taking action against the individual is called a prosecution. The Crown Prosecution Service (CPS) prosecutes the case on behalf of the Crown. There is also a different court system used in criminal law. A Magistrates Court deals exclusively with first-instance jurisdiction over summary offences and may try “either-way” offences summarily with the consent of the defendant, and send more serious offences for trial on indictment at the Crown Court. Summary offences involve a maximum penalty of six months imprisonment (12 months for more than one either way offence) and/or a fine of up to £5,000. Magistrates normally consist of a ‘bench’ of three (an experienced chairman with two other magistrates) and are accompanied in court by a trained legal advisor to give guidance on aspects of the law and appropriate sentencing options.

The Crown Court deals with all major criminal trials. Its judges are a mixture of High Court Judges, Circuit Judges and Recorders; they sit with a jury when trying cases on indictment, but with magistrates when hearing appeals from summary decisions.

The Crown Court has exclusive jurisdiction over trials on indictment and with “either-way” offences where the magistrates have declined jurisdiction and have “committed for sentence” due to insufficient sentencing powers.

To establish criminal liability the Crown must prove two elements. The Actus Reus or guilty act comprises of assault or battery which causes actual bodily harm. The Mens Rea or guilty mind is if the defendant intends to commit assault or battery, or is reckless as to that possibility, and harm results from his actions, it is no defence that he neither intended nor foresaw harm. The burden of proof rests with the prosecution and the standard of proof is beyond reasonable doubt.

Civil Law settles disputes between individuals (including companies and corporations). The person bringing the action is called the claimant (formerly the plaintiff). These may be in the form of torts or negligence. All civil proceedings are brought either in the County Court or the High Court, and the procedure is essentially the same in either case. The claimant must use the County Court for any claim worth under £15000 and for any personal injuries or contract claim under £50000. The first formal stage is normally the issue and service of a claim form (formerly called a writ or summons). This is a formal document issued by the court and delivered to the defendant. It identifies the parties and states the nature of the claim and the cause of action. If the defendant admits the facts but denies legal liability on a point of law, or admits liability but disputes the amount of damages, the case is allocated (by the court) to one of three tracks. The small claims track for under £5000, fast track for claims between £5000 and £15000 or multi-track for large monetary claims or difficult points of law. Most civil cases (on any of the three tracks) are tried by a judge sitting alone, who decides both questions of fact and questions of law.

In most civil cases, the claimant has the burden of proving the essential facts in the statement of claim. The standard of proof required to establish civil liability is “on the balance of probability”, but in cases based on assault (particularly serious assault) something more may be needed.

It should be noted that if a criminal prosecution is pursued, s45 of the OAPA 1861 states “in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause”.

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Acts of Parliament:

Offences Against the Persons Act 1861