English Legal System Introductory Lecture

1. English Legal SystemIntroductory Lecture Katarzyna Gromek Broc University of York

2. Overview of the course 1) Introducing myself, 2) Teaching methods: interactive, student –centred, enhancing students’ participation and student- active learning 3) My expectations/ your expectations 4) Assessment: addressing the question, supporting your idea by evidence, developing legal reasoning

3. English Legal System • Purpose of the module • To grasp the basic knowledge about the English Legal System and its operation • To see the interdisciplinary character of law and legal scholarship • Should help you develop some important skills and techniques which will be useful across all courses on English Law

4. English Legal System: The course Choice for the course There is no a single way of teaching English Legal System English Legal system could be defined as a mixture of various processes, institutions, and the personnel involved in the resolution (formal and informal) of legal disputes. It is more about procedure than substantive Law

5. English Legal System • 1. Introductory remarks • English Legal System covers the law making machinery and the rules governing it, • It covers people involved in decision-making and operation of the system • English Legal System refers to England and Wales. Scotland and Northern Ireland have separate legal systems.

6. English Legal system • Cownie and Bradney define legal system as a system constructed around the resolution of legal disputes: • 'Legal systems are there to determine what will happen when people have disputes. Legal rules are also there so people can order their lives in such a way as to avoid such disputes' English Legal System in Context

7. English Legal system in context an ‘interdisciplinary’ character of law • Law is not just a set of legal rules • It is informed by underlying philosophical, political, social, cultural, economic and other ideas and it also informs those disciplines • Law is to ensure particular social order through civil and criminal institutions and procedures.

8. English Legal System in Context • The Law is political construct: • Why political? • Governed, influenced, dominated, often created by current political establishment’ • Law is a social construct: • Social order is continuously created and recreated by law it is one of the mechanisms through which the social order was established and has been shaped.

9. English Law in Context • Law is about choice... who makes the choice? why those who are entitled to do so make a particular choice? • who gives them power? • to what extent they are accountable for their decisions? • Why judges’ voice has become so important?

10. Shortcomings of the Legal Language • There is a particular problem with the language that might justify the role of the judges, giving interpretation and making sense of statutes. Here we have to consider some difficulties in linguistic communication, obscurity of the language, the lack of clarity, absence of indications on a particular point.

11. Legal language • Legal Language in judicial decisions: • Common law refers to substantive law and procedural rules that have been created by the judiciary through the decisions in the cases they have heard. • Legal language in Statutes • Statutes are created by the Parliament in the form of legislation.

12. 2. How is the course structured? • An element of flexibility: (law in society, institutions, personnel) Syllabus and four themes: natural law/legal positivism, duty of care, homosexuality, terrorism • 1.Introduction to English Legal System: Structure and operation: •  the purpose and functions of the law; law as a public, political, social, economic order.

13. Syllabus • 2. Law as a subject in England and Wales • The main classification of law in England and Wales: • criminal/civil law; public/private and public international/private international law. • How different perceptions of the role of law in society inform English Legal System? (natural law, legal positivism, Hart, Dworkin) • 3. Sources of Law: A general Overview: Common Law, Statute, delegated legislation, Custom, EU and international Law

14. Syllabus • 4.Common law • a) Authority of judicial decisions, Do judges make law? How do judges decide cases?  • b) Judicial Precedent • The doctrine of Stare Decisis. Nature and authority of precedent with examples.

15. Syllabus 5. Common Law: Judicial Precedence applied in medical cases 6. Sources detailed analysis : Parliament’s Acts: • Delegated Legislation • Statutory Interpretation: • 7. Institutions: Privy Council, Supreme Court, The Courts Structure • 8. Criminal Justice System: CPS, Magistrates’ Courts. • 9. People operating the system: the juries, the magistrates, the judiciary • 10. People operating the system: legal profession; Civil Justice System, reforms

16. How is the course structured? • setting the scene • getting to grips with key legal sources – reading and understanding cases; reading and interpreting statutes, reading academic literature • describing some basic characteristics of the legal system of England and Wales (eg. courts)

17. Course Learning Outcomes • That is, By the end of the course, you should be able to …

18. Course Learning Outcomes • demonstrate knowledge and understanding of some of the fundamental principles and institutions of the legal system of England and Wales

19. Module Learning Outcomes • demonstrate knowledge and understanding of a variety of roles played by law in society

20. Module Learning Outcomes • identify, retrieve and discriminate among sources of law and sources of information relevant to law

21. Module Learning Outcomes • synthesise and analyse a variety of information sources to develop further knowledge, construct arguments and draw conclusions supported by appropriate authority

22. Lecture 1: The functions of the Law • To understand the operation of English legal system we need to start with questioning what is the law for? If the answer is to maintain the order, we can ask which order? • There is no one order but variety of them depending of the angle, public order and political order, social order, economic order, international order and moral order

23. Functions of the Law • The relationship between the law and different orders can only be understood in its social, political and economic context • Macro functions of the law • Relationship between law and orders

24. Macro functions • Public order • Maintaining public order; the purpose of the law is to set up boundaries of acceptable behaviour and to prescribe sanctions for breaches of those boundaries, • Maintain a balance between civil liberties and protecting public order

25. Macro Functions of the Law • Political order: • lack of the written constitution, Accession Act, devolution, Human Rights Act 1998 • Social Order: • Escaping stereotyping and inequality looking forward towards endorsing equality and eradicating social exclusion, developing the concept of welfare state

26. Macro Functions of the Law • Law and economic order • Right to ensure property and to secure rights around, different rights coexisting, contract law, employment law, maintaining parties to freedom of contract, competition law, consumer law, housing law • International order: • International Law, Conventions, ILO, Human Rights, asylum, immigration law

27. Macro Functions • Law and moral order • The law and moral order is a very controversial subject. How far should the law intervene into moral orders? For example homosexuality, intervention into religious orders?

28. Micro Functions of Law • 1. Creating the boundaries of acceptable behaviour This would be the role of criminal law that prescribes the limits of acceptable behaviour, • manslaughter or murder, smoking, drinking alcohol • Law of negligence defines the amount of damage

29. Micro Functions • 2: Defining the consequences of certain forms of behaviour. • Different consequences could incur in the same accident, fire in the house, action for damage against insurance company, action for breach of health and safety against a gasman, action against the ambulance, it did not come within the reasonable time

30. Micro Functions • 3. Elaborating the processes for some activities and transactions Contract, fraud transactions, procedural irregularity. • 4. Creating Regulatory Framework • The framework to regulate the financial activities. Regulate financial services to prevent fraud, telecommunications, utilities and transport, planning law and protecting the land.

31. Micro Functions 6. Giving the authority to the agent of the state to take action • Power of the police to stop, search question or arrest, • Power of a doctor to detain under Mental Health Act • Power of social workers to remove children from the families

32. QUIZ • A few questions to see what you know already, and which we can use to help us to make work most effectively… • Not a test • Hopefully fun

33. Question 1 • True or false? The House of Lords is the highest appeal court in the jurisdiction of England and Wales…

34. Question 2 • Which government department is responsible for administering the courts? Is it.. • The Home Office • The Ministry of Justice • The Ministry of Courts and Tribunals • The Department of the Judiciary?

35. Question 3 • Who is the person in government responsible for the department referred to in question 2? • David Cameron • Nick Clegg • Theresa May • Kenneth Clarke

36. Question 4 • The police have banned a protest march you were wanting to take part in. You feel that your right to freedom of assembly under the European Convention has been violated. Where would you go to have your case heard? • The European Court of Human Rights • The normal court system of England and Wales • The International Court of Justice

37. Question 5 • What percentage of criminal trials are heard by a jury? • More than 95% • 45 – 50% • 20 – 25% • Less than 5%

38. Question 6 • What percentage of criminal offences committed result in a conviction? • Around 80% • 45 – 50% • 24.6% • Around 2%

39. Question 7 • True or false. Most magistrates who hear cases in magistrates’ courts have no legal qualifications …

40. Question 8 • You are a judge in the Court of Appeal (Civil Division) hearing a (fictitious) case about the level of damages for negligence. A (fictitious) decision of the House of Lords in 2005 on similar facts set out some principles for quantifying damages in these cases. You think those principles are not fair to the claimant in your case. Do you …

41. Question 8 (cont…) • Follow the House of Lords decision despite your sense of unfairness • Find a relevant distinction between the House of Lords case and your case and decide in line with your view of what’s fair • Ignore the House of Lords case and make your decision based on your view of what’s fair?

42. Question 9 • ‘European Law’ (the Law of the European Union) is enforceable in which of the following courts? • The European Court of Human Rights • The European Court of Justice (CJEU) • The Court of Appeal • The Queen’s Bench Division of the High Court

43. Question 10 • On whose behalf does the Crown Prosecution Service act? • The defendant • The police • The public • The victim • The court

44. Question 1 • True or false? The House of Lords is the highest appeal court in the jurisdiction of England and Wales…

45. Question 1 • False • The highest appeal court in the jurisdiction of England and Wales is now the Supreme Court of the UK

46. Question 2 • Which government department is responsible for administering the courts? Is it.. • The Home Office • The Ministry of Justice • The Ministry of Courts and Tribunals • The Department of the Judiciary?

47. Question 2 • The Ministry of Justice

48. Question 3 • Who is the person in government responsible for the department referred to in question 2? • David Cameron • Nick Clegg • Theresa May • Kenneth Clarke

49. Question 3

50. Question 3