English for Lawyers 1

1. English for Lawyers 1 Lecturer: Miljen Matijašević G10, room 6/I, Tue 11:30-12:30 e-mail: miljen.matijasevic@gmail.com Session 6, 22 Nov 2013

2. Today’s session • Revision of the last session • The Doctrine of Precedent • Vocabulary work • Casestudies

3. Revision of the last session The British Judiciary

4. Answer these questions • Outline the system of civil courts in the UK. • Outline the system of criminal courts in the UK. • Who are justices of the peace? • What was the highest court in the UK before 2009? • Who is responsible for judicial appointments?

5. Answer these questions • What role(s) did the Lord Chancellor use to have in: • the executive • the legislative • the judiciary • What have the reforms changed with regard to the Lord Chancellor?

6. The Old Bailey(central Crown court in London)

7. The Royal Courts of Justice

8. Divisional Court ofthe QB (HCJ)

9. The Doctrine of Precedent Unit 5

10. The Doctrine of Precedent • The foundation of the common law system • Judge-made law – court rulings that have the strength of the law • It can have the same importance as the law enacted by Parliament (Parliament-made law) • It can react more quickly to insufficiently clear legislation or make up for the unexpected circumstances of a case, not provided for in statutes

11. The Doctrine of Precedent • The principle of precedent is also known as stare decisis (‘to stand by decisions’) • This means that a judge will consider previous similar cases with matching circumstances and abide by the ruling (judicial precedent) arrived at in the previous trial • The aim is to be consistent in the points of law, derived from the facts of the case • If fact or circumstance A was relevant in reaching decision X, then a new case featuring fact or circumstance A must be ruled in the same way, i.e. follow decision X

12. The Doctrine of Precedent • Thekey criterion in abiding by judicial precedents is the hierarchy of courts • As a rule – a decision made by a higher court will become a BINDING precedent for the lower courts (andusually on the higher court itself as well) • A BINDING precedent – that which must be followed

14. The Doctrine of Precedent • Rulings made by lower courts (Magistrates’ Courts, the County Court, the Crown Court) are not binding, but may be considered as PERSUASIVE (having good grounds and possibly helping to reach a decision in the case at hand) • Decisions (precedents) made by courts in other common law countries may also be considered in adjudication, but are only treated as PERSUASIVE

15. The Doctrine of Precedent • The highest court of authority forthe UK are the Court of JusticeoftheEuropean Union and the European Court of Human Rights • The highest court of authority withinthe UK is the Supreme Court of the UK (used to be the House of Lords) • Its decisions are BINDING on ALL lower courts, except on itself • Justices of the Supreme Court can OVERRULE a precedent established by their predecessors • The doctrine of precedent generally more strictly followed in civil law trials

16. Elementsof a Judgment • Ratio/rationes decidendi (reason for the decision) – the part of the ruling which states the legal principle applied in the ruling – treated as BINDING, if applicable • Obiter dictum/dicta (things said by the way) – the remaining part of the judgment explaining cases cited and legal principles argued before the court – considered PERSUASIVE • Precedents recorded in Law Reports and other sources (other collections of court rulings, specialized journals, etc.)

17. The Doctrine of Precedent Ways to treat a precedent: • CITE a precedent, acase – bringaprecedent to theattentionofthe court • FOLLOW – establishthattheprinciples applied intheprecedentcorrespond to thecaseinhandandabidebytheprecedent • DISTINGUISH (thecase) – findthatthefactsofthecase are differentandthatthe same principles, i.e. precedentcannot or shouldnotbe applied

18. The Doctrine of Precedent An appellate court can: • APPROVE – accept a precedent/decision • OVERRULE (the principle of law) • REVERSE (the decision of a lower court)

19. The Doctrine of Precedent In litigation... • Attorneys’ (solicitors and barristers’) task is to CITE precedents and either try to DISTINGUISH the case in hand from potential binding precedents, or establish that the points of law established in a precedent are APPLICABLE to the case at hand • This is done depending on the interest of the client • The art of PERSUASION is crucial to the work of attorneys

20. The Doctrine of Precedent ADVANTAGES OF THE DOCTRINE • Consistency in application and predictability of the outcome of cases • Flexibility – easy adaptation to new circumstances (when statutes do not provide an answer, creating a new precedent provides for future rulings in similar cases; e.g. Do silent phone calls represent harrassment?) • Age-long recording of cases provides for a huge amount of details, circumstances, points of law, that enhance precision in the creating of law

21. The Doctrine of Precedent DISADVANTAGES OF THE DOCTRINE • May restrict judicial decisions and lead to illogical conclusions by judges • Can be difficult to understand what exactly the ratio decidendi was • Increasing complexity and volume of precedents, makes it difficult and impractical do deal with cases

22. Vocabulary work TheDoctrineofPrecedent

23. Vocabulary work Complete the table with the words from the same family

24. Vocabulary work Complete the table with the words from the same family

25. Vocabulary work Complete the sentences with the words from the table above: • That decisionofthe Court ofAppeal is going to be .............. on the case we’ve got at trial just now. • We need to be able to convince the judge that the rule in Meah v Roberts is .............. to this case. • Can you check the case ..............? I think the year is wrong. • Should we add to our argument that Edwards v Peck is a .............. precedent given the legal issues, although the judge isn’t bound to follow it?

26. Vocabulary work Complete the sentences with the words from the table above: • That decisionofthe Court ofAppeal is going to be BINDING on the case we’ve got at trial just now. • We need to be able to convince the judge that the rule in Meah v Roberts is APPLICABLE to this case. • Can you check the case CITATION? I think the year is wrong. • Should we add to our argument that Edwards v Peck is a PERSUASIVE precedent given the legal issues, although the judge isn’t bound to follow it?

27. Casestudies

28. Fagan v Metropolitan Police Commissioner [DC 1969] FACTS OF THE CASE • Mr. Faganwas parking his car when he wasapproachedby a police officer, askinghim to park the car inanother spot. • While he wasgivinghimdirections, Mr. Faganaccidentallyrolledthe car ontothe police officer’s foot. • Thep.o. yelled at himtellinghim to takethewheeloff his foot. Fagancursedbackandrefused. Eventually, he complied.

29. Fagan v Metropolitan Police Commissioner [DC 1969] FIRST INSTANCE TRIAL (R v Fagan) • Mr. Faganconvictedof “Assaulting a constableinexecutionof his duties” • Criminaloffence: assault

30. Fagan v Metropolitan Police Commissioner [DC 1969] APPEAL (Divisional Court ofthe Queen’s Bench) • Requiredelements for assault: actusreusandmens rea • Mr. Faganappealed on thegroundsthattheactusreusinassaultcannotconsistinomitting to act • Theactofdrivingontothep.o.’s footwascompletelyaccidental, thereforelackingthenecessarymens rea

31. Fagan v Metropolitan Police Commissioner [DC 1969] • An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence. • Held: Failure to act could not constitute an assault, but the actusreuswas a continuing act and coincided at some point with the requisite mensrea.

32. Fagan v Metropolitan Police Commissioner [DC 1969] "A mere omission to act cannot amount to an assault.“ "For an assault to be committed both the elements of actus reus and mensreamust be present at the same time.'  “It is not necessary that mensreashould be present at the inception of the actusreus; it can be superimposed upon an existing act.“ "On the other hand, the subsequent inception of mensreacannot convert an act which has been complete without mensreainto an assault."

33. Chester v Afshar [HL 2004] FACTS OF THE CASE • Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was the solution. She suffered a complication, calledcaudaequinasyndrome. • TORT LAW – CLINICAL NEGLIGENCE • Requiredelements – negligentactandcausation (causal link betweentheactandthedamage)

34. Chester v Afshar [HL 2004] FIRST-INSTANCE TRIAL • ThejudgefoundthatDrAfshardidnotinformMissChester ofthe 1-2% riskoftheseoperationsgoingwrong. • ISSUE: Eventhoughtheoperationmighthave gone wronganyhow, wasthere a causal link betweenthecomplicationsandthefactthatDrAfsharfailed to inform her oftherisks?

35. Chester v Afshar [HL 2004] FIRST-INSTANCE TRIAL • The judge found that there was a causal connection between the failure to inform and Miss Chester's injuries - if she had been informed, she would have sought further advice or alternatives. APPEAL TO THE COURT OF APPEAL • Decisionofthe HCJ upheld

36. Chester v Afshar [HL 2004] THE HOUSE OF LORDS • 3 Lordsupheldthedecisionofthe CA • 2 Lordsdissented

37. Chester v Afshar [HL 2004] THE HOUSE OF LORDS • LordSteyn, Lord Hope and Lord Walker held that the "but for" test was satisfied (causationproved) • it was the duty of the doctor to warn her • a basic principle of good medical practice is that adults should consent on a fully informed basis to surgery, aware of all risks • Dr Afshar had violated her right to choose • Theyheldthat if damages were not awarded, that duty to informthepatientoftheriskswould be a hollow one

38. Chester v Afshar [HL 2004] THE HOUSE OF LORDS – DISSENTS (Binghamand Hoffman) • Lord Bingham felt that even though Dr Afshar had been found not to have informed Miss Chester about the 1-2% risk of surgery failure, this did not mean that causation had been shown. • It was necessary to say that if Miss Chester had been informed of the risk, that she would not have undertaken the operation at all. • The risk was inherent in surgery, no matter who performed it.

39. Thank you for your attention!