A Short Introduction to the Legal System of England and Wales and Legal English

1. A Short Introduction to the Legal System of England and Wales and Legal English Pamela Gliniars Pamela Gliniars

2. Preliminaries • Obligatory foreign language qualification to satisy the requirements in the law degree course regulations (JAG §15). • End-of-term test (practice test see STUDIP) • Course Coordinator for any queries connected with the organisation of the course: Christiane Groß christiane.gross1@uni-bielefeld.de Pamela Gliniars

3. English Language Sources • Radiowww.bbc.co.uk/radio4>Listen again >Law in Action (or News or any other programme). • Films in English (eg Cinema OV,DVDs) • Mediothek C01-244 (LiLi Faculty) • Newspapers: library or online. The Times www.timesonline.co.uk The Telegraph www.telegraph.co.uk Guardian Unlimited www.guardian.co.uk, The Independent http://news.independent.co.uk Washington Post www.washingtonpost.com Pamela Gliniars

4. Grammar Books|Dictionaries • Advanced Grammar in Use with Answers by Martin Hewings. Cambridge University Press, 2005 • [Essential Grammar in Use German edition with answers and CD-ROM by Raymond Murphy and Almut Koester. Cambridge University Press, Jan. 2009] • Practical English Usage, Third Edition by Michael Swan. Oxford University Press. • LEO (Link Everything Online) German-English Dictionary http://dict.leo.org • DICT.CC Deutsch-Englisches Wörterbuchwww.dict.cc/deutsch-englisch • (Amongst others) Köbler,G., Rechtsenglisch –deutsch-englisches u. englisch-deutsches Rechtswörterbuch für jedermann, 2007 (one copy in Semesterapparat) Pamela Gliniars

5. Useful books for this lecture 1) English Law and Terminology by Vanessa Sims, 3rd ed., Nomos, 2010 2) The English Legal System by Jacqueline Martin, 6th ed., Hodder Arnold, 2010 Semesterapparat (Gliniars: UB Rechtswiss.) [includes one copy of each of above books] Pamela Gliniars

6. Sources of British (UK) law The four different parts of the United Kingdom of GreatBritainand Northern Ireland (i.e. England, Wales, Scotland and Northern Ireland) do not have one unified legal system • England and Wales - main sources: common law, statute law, EU (European Union) law • Northern Ireland has a similar system • Scotland has its own independent legal system modelled on both Roman and English law Pamela Gliniars

7. Common Law A bit of history: 55-54 BC Roman expeditions AD 43 Roman conquest begins Romans until end of 4th century (not very much influence on law) Followed by Germanic tribes e.g.Jutes, Angles, Saxons (Anglo-Saxons) at beginning of 5th century. Towards end of 8th century (Vikings) ‘Northmen‘ begin raids. By mid-9th century in control of large parts of N. and E. England (Danelaw) Pamela Gliniars

8. Common Law (2) • 1066 Norman Conquest. William theConqueror, Duke of Normandy and vassal to the French king, enters the scene. • Considers himself to be the rightful King of England. Did not attempt to impose French law. • Mainly interested in establishing a strong central administration (and collecting money i.e. safeguarding the royal revenues) • Curia Regis (King‘s Council) advises King. First permanent royal court at Westminster, Court of Exchequer - emerges out of this Council. Pamela Gliniars

9. Common Law (3) • Under Henry II (reigned 1154-89) itinerary justices sent out on tours (known as circuits) of country. • During this time emergence of 2nd permanent royal court in Westminster, Court of Common Pleas • At end of 12th century references to customof the kingdom • A third royal court Court of King‘s Bench emerged. Common law administered in the three courts of common law (i.e.Exchequer, Common Pleas and King‘s Bench) until Judicature Acts 1873-75. Pamela Gliniars

10. Equity (1) • Branch of law applied and administered by the Court of Chancery (presided over by Lord Chancellor) until Judicature Acts 1873-75. • In medieval times Lord Chancellor “Keeper of the King’s conscience” Pamela Gliniars

11. Equity (2) • Hardship often caused by the rigid writ system. Royal writ necessary to begin an action in law. • Only remedy available in common law was damages • Chancellor tried to find a fair solution (to grant or withhold relief) Pamela Gliniars

12. Equity (3) • “Equity is a roguish thing. For law we have a measure, know what to trust to. Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ‘Tis all one as if they should make the standard for the measure we call a foot to be the Chancellor’s foot; what an uncertain measure would this be; one Chancellor has a long foot, another a short foot, a third an indifferent foot; it is the same thing in the Chancellor’s conscience” (John Selden 17th century) Pamela Gliniars

13. Equity (4) • Maxims of Equity: e.g“Equity will not suffer a wrong without a remedy” or “He who comes to Equity must come with clean hands” • Earl of Oxford’s case (1615) “Where Common Law and Equity are in conflict Equity prevails” Pamela Gliniars

14. Common Law and Equity today Common law is that body of law which is based upon rules developed, before 1873, by the common law courts. Equity is that body of law which is based upon rules developed, before 1873, in the Court of Chancery • Judicature Acts 1873-75 created the High Court of Justice. • Most of work of Chancery Court now in the Chancery Division of the High Court • Legal rights and equitable rights now administered in the same court. Pamela Gliniars

15. Different meanings of common law? • law ‘common’ to the country as opposed to local customary law before 1066 • ‘unwritten’ judge-made law as opposed to written statutory law • law developed in the common law courts as opposed to Equity • common law systems as opposed to civil law systems Pamela Gliniars

16. Judicial Precedent • No comprehensive system of codified law (but many areas of law codified through statutes i.e. Sale of Goods Act) • Doctrine of binding precedent or stare decisis [=`stand by your decisions´or `keep to the decisions in past cases´] Pamela Gliniars

17. Hierarchy of the Courts [since 1st Oct. 2009] The Supreme Court of the UK Pamela Gliniars www.hmcourts-service.gov.uk

18. TheSupreme Court of the United Kingdom • The UK Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the UK on 1st Oct.2009. • It is the final court of appeal in the UK and hears appeals in both civil and criminal cases from all parts of the UK (with the exception of criminal cases from Scotland). • It only hears appeals on `arguable points of law of the greatest public importance‘. • An appeal may only be brought with permission from the Court of Appeal or The Supreme Court. (www.supremecourt.gov.uk) Pamela Gliniars

19. House of Lords and Practice Statement “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.  This announcement is not intended to affect the use of precedent elsewhere than in this House.” Statement read by Lord Gardiner in the House of Lords (26th July 1966) Pamela Gliniars

20. Court of Appeal, Civil Division Mainly hears appeals in civil and family cases from - the three divisions of the High Court (Chancery, Queen's Bench and Family Division) • 1971 Court of Appeal does not follow House of Lords decision. Broome v. Cassell 1971 (cf. Rookes v. Barnard 1964) • But reaction of House of Lords very strong. Lord Hailsham: “The fact is, and I hope it will never be necessary to say so again, that, in the hierarchial system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.” ([1972] AC 1027) Pamela Gliniars

21. Court of Appeal, Civil Division (2) • In Young v Bristol Aeroplane Co. Ltd (1944) judgereaffirmed basic rule: “that this court [i.e. Court of Appeal, Civil Decision] is bound to follow previous decisions of its own” (but there are very few, clearly defined exceptions) Pamela Gliniars

22. Court of Appeal, Criminal Division Mostly hears appeals from the Crown Court • Basically subject to the doctrine of binding precedent in same way as Civil Division but not quite as rigid when dealing with questions involving the liberty of a subject (i.e. a real person) Pamela Gliniars

23. Divisional Courts ..every divisional court is simply a court, constituted of not less than two judges, held for the transaction of business of the High Court, which is (by rules of court or by statute) required to be heard by a divisional court (Goff LJ in R v Manchester Coroner, ex parte Tal, QBD 1985) • Queen‘s Bench Divisional Court hears appeals on points of law from magistrates‘ courts, tribunals and the Crown Court. As the Adminstrative Court it also exercises judicial review and hears applications for habeas corpus. • Chancery Divisional Court hears appeals from Inland Revenue (income tax etc.) and from county courts (bankcruptcy cases etc.) • Family Divisional Court hears appeals from decisions of magistrates‘ courts and county courts in family matters. Divisional courts are bound by decisions of the Supreme Court and by the Court of Appeal. In their appellate capacity they are bound by their own past decisions (with similar exceptions as Court of Appeal) Pamela Gliniars

24. Courts of First Instance (1) • The High Court of Justice (sits mainly in London, but can sit in other cities and towns in England and Wales) is divided into three divisions which have original jurisdiction in civil cases involving claims for higher amounts of money or complicated civil law proceedings. -Queen’s Bench Divisiondeals with civil disputes for recovery of money, including breach of contract, personal injuries, libel/slander,- but also has specialist courts such as the Administrative Court (judicial review, habeas corpus) or Commercial Court amongst others. - Chancery Division deals mainly with insolvency matters, land sales, trusts etc. Specialist courts e.g. Bankcruptcy and Companies Court -Family Division deals mainly with disputes involving family matters. Cases are tried by a single judge (with the very rare exception of jury trials in libel/slander cases in QBD). The High Court binds the lower courts and High Court judges usually follow each other’s decisions although they do not have to. Pamela Gliniars

25. Courts of First Instance (2) • The Crown Court (based at 77 centres in England and Wales) deals with serious criminal cases committed for trial by Magistrates Courts. Cases for trial are heard before a judge and jury. (also has some minor civil jurisdiction) [ It also acts as an appeal Court for cases heard and dealt with by the Magistrates and so it could possibly create a precedent on a point of law for the Magistrates’ Courts ( but rulings rarely reported anyway)] • The inferior courts -Magistrates’ Courts (about 430 in England and Wales) deal with over 95% of all criminal cases, plus some civil jurisdiction --family matters, licences to sell alcohol etc. - County Courts (216 in England and Wales) deal with most civil law cases at first instance except the most complicated [Tribunals such as employment tribunals, immigration tribunals etc. operate alongside the court system but are subject to control by the courts for example through judicial review] Pamela Gliniars

26. European Courts • European Court of Justice(ECJ) (Luxembourg) has supremacy over national law (UK entered the European Community in 1973) • European Court of Human Rights(ECtHR) (Strasbourg): Human Rights Act 1998 makes it unlawful for a public authority ‘to act in a way which is incompatible with a Convention right’ Pamela Gliniars

27. Judicial Committee of the Privy Council • The Privy Council was originally a kind of cabinet advising the King (last remaining part of the Curia Regis) • The Judicial Committee of the Privy Council is highest court of appeal for UK’s overseas territories and crown dependencies and for a few former or current Commonwealth countries. -decisions not binding on UK courts -but decisions of the Privy Council are of highlypersuasive authority and are often followed by UK Courts Pamela Gliniars