Graduate Diploma in Law
Full-time and Part-time Preliminary Study Pack
Graduate Diploma in Law
Full time 2012/ 2013
Part Time 2012 / 2014
Summer 2012
Dear Student
Graduate Diploma in Law
Welcome to the GDL course at UWE. This Preliminary Directed Study course will
prepare you for the Legal Method, System and Skills induction sessions that will be held
at UWE in the week beginning on 12th-14th September 2012 for Year1 Part-time
students. The purpose of the preliminary reading is to introduce you to issues that are
central to your legal studies. The aim is to lay the foundation for the skills you will
continue to develop throughout your GDL studies and beyond, and to put the
substantive law that you will study into its practical and procedural context.
In order to complete the Preliminary Directed Study, you must
1
Obtain your own copy of the prescribed book for the Preliminary Directed
Study, namely:
Elliott and Quinn, English Legal System,13th edition (2012) Longman Pearson
Please do not purchase older editions of this book. The 13th edition should be in
the shops and on Amazon from June 2012 onwards.
Blackwell University Bookshop (on the Frenchay Campus) can supply the book for
£25.99 plus free postage and packing (catalogue price is £30.99). It should also be
available on sites such as Amazon and through good academic bookshops around
the country. Blackwell can be contacted by email on uweb@blackwell.co.uk and by
Bristol Institute of Legal Practice
Graduate Diploma in Law
phone on 0117 965 2573. Please identify yourself as a GDL student if you contact
them. You are NOT required to buy the accompanying Cases and Materials book.
2
Read the chapters specified in the different sections of this Pack and
complete the tasks identified in this study pack. In addition you will find helpful
banks of Multiple Choice Questions (MCQs) on the website associated with
the ELS book. You are strongly advised the use these MCQs to test your own
understanding as you go through the reading material.
3
Be ready to sit the English Legal System assessment on the morning of
Friday 12th October 2012 (Part-time Year 1 students).
We would like to emphasise that the aim of this pre-reading is not to make you proficient
in procedure and practice - that should come later, at the vocational stage of training.
Rather, it is to explain some references to procedure and terminology, so that when you
come to read a law report, an Act of Parliament, a journal article or a legal textbook you
can understand the context - and know where you can go to find an answer to queries
that you may have. In addition, the course should help you to begin to develop the skills
of legal argument, both oral and written, and skills necessary for the analysis of legal
problems. You are not expected to understand and remember all that you read, but we
hope that you will begin to appreciate the procedural backdrop of the legal principles
that you will be studying on the CPE.
Some of you may already be very well versed in certain areas of law and procedure and
legal method, but the majority of GDL students will have no background legal
knowledge at all. Whether during induction or throughout the course, you will be able to
help each other because co-operation and development through participation in small
group work is very much a part of the pattern of the GDL at UWE. The object of the
introductory sessions in the induction period is to set you on course for a demanding
period of study, and it also has the important, but non-academic, aim of helping you to
get to know your fellow students - and the teaching team - early in the course.
You will be required to sit a short English Legal System assessment early in the course.
The assessment will take the form of a series of MCQs to be completed in one and a
half hours. You can practise for this ELS assessment by working through the MCQs
provided on the website for the ELS book.
Failure to attend an assessment is regarded as a failed attempt at that assessment
unless there are properly documented, extenuating circumstances that are accepted by
the GDL Examining Board.
For Part-time Year 1 students this assessment has been timetabled for the
morning of Friday 12th October 2012.
It will take the form described above, marked on a pass / fail basis only. Please
ensure that you are free of avoidable commitments on this day. The pass mark is
40%.
Failure to attend an assessment is regarded as a failed attempt at that assessment
unless there are properly documented, extenuating circumstances that are accepted by
the GDL Examining Board.
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Graduate Diploma in Law
The English Legal System assessment is “open-book” in the sense that you will be
permitted to take reference materials into the assessment room but please note that
your tutors will not expect you to have undertaken wider preparation for the assessment
than to have
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read the specified chapters in the set book,
checked the associated website for any updates,
read the papers included in this pack,
read any tutor’s handouts, or lecture notes on the preliminary study topics that
are provided during the Induction period.
Your “reference materials” should therefore be limited to
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the set book,
this Preliminary Study Pack (PSP),
any relevant tutor’s materials that you receive during Induction,
your own preparatory answers to questions, or tasks set as part of the PSP, or to
support discussion at the induction classes, and
your own notes made during the induction classes.
For the purposes of the GDL Assessment Regulations the ELS assessment is
coursework taken under controlled conditions and not an examination.
The ELS assessment is marked on a Pass / Fail basis only but it must be successfully
completed as part of the overall assessment of the GDL. In common with other GDL
assessments, a student is permitted three attempts to reach the pass standard, if
needed. If required, the second (and third) attempts will have to be scheduled as soon
as feasible after the results of the first assessment are available.
We expect your understanding of the English Legal System, and your skill at legal
argument to continue to develop throughout the whole course. Please note that your
GDL tutors will be looking for evidence of your legal method skills in all coursework,
examination answers and contributions to group activities throughout the course.
We hope that you will find the content and style of the set book to be both stimulating
and challenging. A critical and evaluative approach to the strengths and weaknesses of
the English Legal System will be encouraged throughout the GDL course.
We look forward to welcoming you for the start of the GDL at UWE in September.
The GDL teaching team
June 2012
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© Bristol Institute of Legal Practice
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Graduate Diploma in Law
This pack comprises:
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Introduction to Legal Method
Introduction to the Civil Justice System
Introduction to the Criminal Justice System
Introduction to European law
Introduction to Equity & Trusts
Introduction to the English Legal System (Concepts and Definitions)
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© Bristol Institute of Legal Practice
Bristol Institute of Legal Practice
Graduate Diploma in Law
CPE - Graduate Diploma in Law
Full Time 2012 / 2013
Part Time 2012 / 2014
LEGAL METHOD
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Graduate Diploma in Law
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PREPARATION FOR LEGAL METHOD
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The aim of the introductory legal method session is to help you develop your legal
reasoning skills. The starting point will be the English Legal System and the sources of
law. The plenary sessions will introduce you to both the main sources of law and the
fundamental skills required to apply these legal rules.
The focus of your pre-reading for Legal Method should be the Introduction and
Chapters 1-5 of Elliot and Quinn’s English Legal System. You will also find it useful to
read Chapters 6-9
You are also asked to prepare the Exercise (below) and to bring your answers to the
induction week sessions. Please make sure that you have your own copy of the Elliott
and Quinn text with you during the induction sessions. We normally programme a
lecture on Legal Method for the first day of the induction session.
EXERCISE: MATERIAL FACTS AND RATIO
In each of the following cases the defendant was convicted of a drink-driving offence.
The relevant statutory provision provided that upon such conviction:
"the court shall order (the defendant) to be disqualified for such period not less
than 12 months as the court thinks fit, unless the court for special reasons thinks
fit to order him to be disqualified for a shorter period or not to order him to be
disqualified."
Please read the following extracts from a sample of cases and answer the questions
stated:
1. What are the material facts in each case?
2. Formulate a ratio for each case.
3. Identify any obiter dicta.
A v B 1947
1.
"Nov 12 LORD GODDARD C.J. read the following judgment. The court has
already allowed this appeal and now proceeds to give their reasons.
The respondent in this case was charged before a court of summary jurisdiction
for the City of Birmingham.... with driving a motor vehicle, to wit a lorry, while
under the influence of drink to such an extent as to be incapable of having
proper control of the vehicle contrary to s.15 of the Road Traffic Act, 1930, He
pleaded guilty ... ....the justices imposed a fine of £20 and ordered his driving
licence to be endorsed, but in consideration of certain facts which they state in
the case they refrained from ordering that he should be disqualified from holding
a driving licence, and the question raised by the case is whether on the facts
found by them there were any special reasons within the meaning of s.15 subs.2 of the Act which would justify the justices from refraining from imposing a
period of disqualification..."
2.
"The reasons given in the present case by the justices as the ground on which
they refrained from ordering disqualification are:
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Graduate Diploma in Law
a)
that they had no knowledge of any previous motoring convictions against
the respondent;
b)
that the retention of the licence was essential for obtaining his livelihood,
and further that they had imposed a substantial penalty for the offence
and in assessing that penalty they took into account that they did not
intend to disqualify him. It is quite clear that the two main reasons which
influenced the bench were that the respondent was a first offender
against the Road Traffic Acts and that he earned his living as a lorry
driver, and that his employment would be jeopardised by the suspension
of his licence."
3.
"It is to be observed that the sections are mandatory and that Parliament has
provided that a period of disqualification shall be imposed ... they have given a
discretion to the court which obviously is a limited discretion to be exercised only
for special reasons. The limited discretion must be exercised judicially. The
reasons inducing the court to exercise it must be special, and special is the
antithesis of general. The fact that a man is a first offender or that he has
committed no motoring offence for many years are reasons of the most general
character that can well be imagined. Every year hundreds of first offenders are
brought before courts. It frequently happens that people who have driven for
very many years have been doing so without offending against the provisions of
the Act. That a man is a professional driver cannot, as it seems to me, by any
possibility be called a special reason. The fact that drivers are professional
drivers would of itself indicate that they are more likely to be habitually on the
roads than people who drive themselves, so there is all the more reason for
protecting the public against them. By exercising discretion in favour of an
offender because he is a professional driver or merely because he drives
himself for business purposes, it is obvious that the court is taking into account
the fact that in such cases disqualification is likely to work greater financial
hardship than in the case of a person who uses his car for social or casual
purposes. There is no indication in the Act that Parliament meant to draw any
distinction between drivers who earn their living by driving or who drive for
purposes connected with their business and any other users of motor cars. That
in many cases serious hardship will result to a lorry driver or private chauffeur
from the imposition of a disqualification is no doubt true, but Parliament has
chosen to impose this penalty and it is not for courts to disregard the plain
provisions of an Act of Parliament merely because they think that the action that
Parliament has required them to take in some cases causes some or it may be
considerable hardship. Had Parliament intended that special consideration was
to be shown to professional drivers or first offenders it would have so provided.”
4.
"What then can be said to be a special reason beyond saying that it must be
one that is not of a general character? This was expressly considered by the
King's Bench Division of Northern Ireland in the case of R v Crossan. In that
case the court adopted a test that I had ventured to use in an address that I
gave to the magistrates assembled at the Summer Assizes for Essex in 1937. I
suggested that the reasons must be special to the offence, and not to the
offender, and the court in adopting what I had said used these words: "A
`special reason' within the exception is one which is special to the facts of the
particular case, that is, special to the facts which constitute the offence. It is, in
other words, a mitigating or extenuating circumstance, not amounting in law to a
defence to the charge, yet directly connected with the commission of the
offence, and one which the court ought properly to take into consideration when
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imposing punishment. A circumstance peculiar to the offender as distinguished
from the offence is not a `special reason' within the exception".
I respectfully and entirely agree with and adopt this passage. While it is
impossible to enumerate or define everything that can amount to a special
reason, ......... in the case of driving under the influence of drink or drugs,
perhaps one might be found if the court was satisfied that a drug had been
administered to a driver without his knowledge, as for instance where a driver
had taken a dose of medicine which he believed to be an ordinary tonic but
which in fact contained a powerful drug.”
C v D 1970
"Lord Parker C.J. This is an appeal from a decision of Essex Justices sitting at Harlow,
who, on the defendant pleading guilty to an offence contrary to section 1(1) of the Road
Safety Act 1967, found special reasons for not ordering him to be disqualified.
The facts matter little: at 20 minutes past midnight on 12 January 1969 the defendant's
driving of a vehicle attracted the attention of the police. They stopped him and asked
for a breath test, and all the conditions were properly fulfilled leading up to the
admission of an analyst's certificate showing 91 milligrammes of alcohol per 100
millilitres of blood. The defendant himself gave evidence that, the afternoon before the
midnight in question, he had a cold and went to bed. His wife gave him a glass of
whisky and ginger at that time. He did not know how much whisky there was in the
glass, but the next day learned from his wife that it was a generous amount. In the
evening he went to a friend's house to arrange about a holiday. He tried to obtain a taxi
but could not get one, so went out in his own car. During the evening he had two pints
of beer and a glass of ginger wine. At the time when he was stopped, during the early
hours of 12 January, he was taking a friend home.
The justices find five special reasons, but on analysing them it is quite clear they fall into
three categories....
The second category is in this form:
‘(b) the defendant was a careful person who would have not risked driving with more
than the prescribed level of alcohol had he known', and `(c) there had been no
necessity for him to give his friend a lift and he would not have done so if he had had
any idea that he was not in a fit condition to do so’.
There again it is, in my judgment, quite clear from the many cases on this subject, not
merely under the Act of 1967 but under the Road Traffic Act 1960, that that could not
conceivably be a special reason. The facts are special merely to the offender and not,
as they must be, special to the offence.
Finally, and no doubt this was the real point which influenced the justices, they state:
‘(e) the defendant was served his whisky in bed by his wife for medicinal purposes and
did not know the strength of the drink’.
For my part I am quite unable to think how that can be a special reason. No doubt the
wife, as any wife would on such an occasion, did give her husband a generous measure
of whisky for his cold, but he knew full well that he was drinking whisky, and drinking
whisky for a cold. It is quite different, it seems to me, from the case which may arise
and may amount to a special reason though I am not saying that it does, where a man
thinking he is drinking, we will say ginger ale, has, unknown to him, strong drink put into
it behind his back. Ignorance of the quality of the drink may amount to a special reason,
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Graduate Diploma in Law
but ignorance of the exact quantity that he is drinking cannot in my judgment do so.
Justices very naturally strain to find special reasons in these cases, but it must now be
known that special reasons for the purpose of section 1 of the Road Safety Act 1967
must be very rare indeed. I would allow this appeal and send the case back to the
justices with a direction to disqualify".
E v F 1971
"Sir John Widgery L.C.J. gave the judgment of the court. The appellant pleaded guilty
at South-East London Quarter Sessions to one count of driving with an excess of
alcohol in his blood, and he was fined £35 to be paid at £5 per week and he was also
disqualified, his licence being endorsed. He now appeals against his sentence.....
What happened at the trial was this. The evidence of the blood test showed that the
appellant had 84 milligrammes over the authorised maximum of 80. He gave an
account of his movements on the day in question, the broad effect of which was that he
had been out with two friends, that they made a practice of detailing one as the driver
when they went out together, and it was the custom for the man detailed as driver to
restrict his drinking severely. On this occasion, said the appellant, he was detailed as
driver, and all that he had in the whole evening was two half-pints of lager and lime, but
he said that he had discovered since the event that one of his friends with a misguided
sense of humour had put some vodka into the lager and lime, and in due course the
friend in question told the deputy chairman so......
The deputy chairman went on quite correctly to say that if a man's drink has been laced
unknown to him and if, as a result of that act by a third party he commits an offence, that
is to say, the alcohol content of his blood goes above the permitted maximum, that is a
special reason which justifies the court in its discretion in not disqualifying the driver
from further driving. The deputy chairman understood that..... but he seemed to have
erred in this way. He seems to have thought that a special reason would not have been
provided by the insertion of the vodka into the appellant's drink unless the vodka alone
amounted to 84 milligrammes of alcohol per 100 millilitres of blood.
What in our judgment he should have considered was whether the vodka resulted in the
total alcohol content exceeding the statutory limit. In other words, he should have
asked himself whether on the facts of this case the vodka had caused an alcohol
content which was below 80 milligrammes to become a content in excess of 80
milligrammes. Looking at it in that way, no one could doubt at the end that the vodka
may have produced, and almost certainly did produce, a sufficient increase in the
alcohol content to bring the appellant's alcohol content above 80 milligrammes and up
to 84 milligrammes. Accordingly there was a special reason ....."
G v H (1975)
"Lord Widgery C.J. This is an appeal by case stated by Essex Justices..... where.....
they had before them an information..... that the defendant on 14 February 1974 at
Chelmsford drove a motor vehicle having consumed alcohol in such quantity that the
proportion thereof in his blood exceeded the statutory maximum contrary to section 6 of
the Road Traffic Act 1972. The justices received a plea of guilty to the charge..... and
the only argument..... is whether this was or was not a case in which it was compulsory
to disqualify the defendant..... The justices found that there were special reasons which
excused their imposing that disqualification. The question for us is whether as a matter
of law those special reasons could be said to exist in this case..... He (the defendant)
had gone with two colleagues to attend a business meeting at a club and the meeting
lasted from 8pm to 11.45 pm, nearly four hours. During that time, the defendant said
and the justices accepted his evidence, he had drunk two pints of lager and no more.
He had one pint at about 8.20 pm and the other at about 9.30 pm. He had not,
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Graduate Diploma in Law
according to the facts found, gone to the bar to obtain those drinks. Someone else had
obtained them for him and, as I understand it, had paid for them on his behalf. Thus the
pints of lager were delivered, as it were, anonymously in front of him at wherever this
business meeting was taking place. He had no other drinks beyond those two pints.
At that club there were normally two types of lager on sale. One was called `Stella' and
the other was `Carling Black Label'. `Stella' was the more expensive and the stronger,
and the defendant says that he would not have drunk `Stella' had he known that that
was what he was being offered because his preference was for the other, cheaper and
milder beer .....
The justices obviously gave careful attention to this case..... They came to the
conclusion that two pints of lager would not normally produce 90 milligrammes of
alcohol per 100 millilitres of blood, and they looked for a reason why that should
happen. They expressed as their opinion that the fact that the defendant's alcoholic
content had reached 90 milligrammes is to be explained by the fact that he had drunk
the stronger `Stella' instead of `Carling Black Label' lager.
The principle on which this type of case has to be decided is now clearly laid down. It
has been said over and over again that a man who chooses to combine in one evening
both drink and driving a motor car does so at his peril, and it is for him to see that the
amount of alcohol which he consumes does not bring the content in his blood above the
statutory maximum. It is his duty to observe the quantity and quality of the drink that he
consumes, and if he makes a mistake and in fact takes more alcohol than is justified by
the statutory limit, then he is guilty of the offence and prima facie has no excuse to offer
against the suggestion that he be disqualified.
There has, however, grown up a gloss on this doctrine which is concerned with the socalled `laced-drinks' cases. We have had in this court at least half a dozen cases in the
last year or so in which a motorist with too much alcohol in his blood has pleaded as an
excuse for what has happened that someone else has put strong spirit into an otherwise
innocuous drink, or `laced it', as the vernacular would have it at the present time. In
those cases, however, there has always been an element of intervention by a third party
or a misleading of the motorist by a third party. They have all been cases in which the
driver has been induced to take stronger drink than he normally would by reason of
someone having misled him or given him false information..... This, I fear one must say,
is a perfectly straightforward instance of a man who made no inquiry about what he was
consuming and merely received and drank the two pints of lager which were delivered
to him. It seems a harsh thing to blame him for not having made further inquiry, but the
purpose and scheme of the Act is perfectly plain. It throws on anyone who chooses to
drink and drive the obligation to see that he does not take drink in excess of the amount
laid down.
Hence, although, as I have said more than once, I think that the defendant was unlucky
and I have sympathy with him, I am of the opinion that the justices' conclusion that there
were here special reasons cannot be sustained. I would allow the appeal ....."
Shomon Khan
June 2012
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© Bristol Institute of Legal Practice
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Graduate Diploma in Law
____________
Graduate Diploma in Law
Full time 2012/2013
Part Time 2012/2014
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INTRODUCTION TO THE
CIVIL JUSTICE SYSTEM
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Graduate Diploma in Law
Introduction to the Civil Justice System
The aim of your introductory study of this area is to provide you with a general
understanding of the structure and workings of the civil justice system as part of your
study of the English Legal System.
It is also intended to provide you with an understanding of the practical context within
which the principles of tort and contract (and other areas of your CPE course) are
developed and tested through the civil court system.
Sessions in September
There will be a lecture and a workshop (or seminar) about the civil justice system
Pre-reading for the lecture and workshop (FT) / seminar (PT)
Please read the following Chapters in English Legal System – Elliott and Quinn:
The Civil Justice System. This will give you an overview of the history and
procedure of the civil system.
Paying for Legal Services. You should read the whole chapter but for the
purposes of this aspect of the course pay particular attention to the sections dealing
with the funding of civil claims.
Alternative Methods of Dispute Resolution. This will introduce you to the
principles and methods available to settle civil claims without the need to use the civil
court system fully or at all.
Other chapters in the book would also be useful reading as a general background to
your studies, in particular the chapter about Tribunals and the sections dealing with
the judiciary. Due to the limited time we will have in the lecture and workshop we will
not discuss these areas in depth in the sessions however.
Preparation for the workshop (FT) / seminar (PT)
Part A
Please prepare short answers to the questions set out below and bring them with you
to your workshop.
1.
What is the main purpose of civil law and proceedings to enforce it, how does
this vary from criminal law and proceedings?
2.
Can you identify any implications of such difference in purpose in the way in
which the law and procedure operates in the civil system as opposed to the
criminal system? (You need not write a thesis here! Just try and think of one
or two examples.)
3.
What is the purpose of the overriding objective? (This is set out in the book
but you may like to find a copy by accessing the civil procedure rules from the
Ministry of Justice website at justice.gov.uk. It appears at Part 1 of the Civil
Procedure Rules – it will give you a sense of what is going on in the system if
you have a little look at the MoJ website.)
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Graduate Diploma in Law
4.
What are “pre-action protocols” and what is their purpose within the civil
justice system?
5.
What are the case allocation tracks? Identify one feature of each track which
would affect a case allocated to it.
6.
What are the main incentives or pressures on parties to settle civil court
proceedings without proceeding as far as a trial?
7.
What is A.D.R? Explain how a case could be resolved using this method as
opposed to through a trial in a civil court.
8.
What are the alternative methods by which civil litigation may be funded?
Part B
Please read the three short case studies which are attached to these instructions.
What issues can you identify that will affect the way in which the civil courts will deal
with each case? Please prepare short notes of your thoughts.
During the session you will be asked to discuss one or more of the case studies with
a sub-group of students with a view to preparing a short presentation on the advice to
be given to each client.
Other suggested activities

If you are able to do so visit your local county court and sit in on part of a county
court or high court matter which is being tried. If you ring in advance the court
clerks will be able to tell you what matters are listed for hearing in what courts.

Keep an eye out in the press for articles about topics such as reform civil costs or
changes which may be made to the system due to the appointment of a new
government.
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Keep an eye out in the press for articles about topics such as proposed
reforms to civil costs or other changes to the civil justice system.
I look forward to meeting you in September!
Rachel Wood
June 2012
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Part B – Preparation for Civil Procedure Workshop (FT) / seminar (PT)
You are an assistant solicitor in the Dispute Resolution Department of the firm Baxter
and Partners. Today you have a very busy diary, three potential clients are coming
in to see you for an initial interview about disputes they are involved in.
Consider the scenarios they present to you. What advice would you give in each
case about how the civil courts would deal with their cases? Also consider any
particular problems or questions that the potential client raises. (You do not need to
consider the legal principles relating to each cause of action when carrying out this
exercise – you should focus on the procedural and practical issues raised.)
Claire Cookson
Claire entered into a contract five months ago with Steam and Spa Limited for the
supply and fitting of a hot tub in her back garden. Although the tub worked well for a
few weeks it then sprang a leak. Steam and Spa promised to come and repair it
several times but did not turn up. When eventually someone did turn up he told
Claire that she must have been misusing the tub and that it was not the company’s
problem.
You consider that Claire has a potential claim for breach of contract against Steam
and Spa Limited. Claire’s enquiries to other hot tub suppliers suggest that the tub will
have to be replaced at a cost of £3,000.
Claire wants to pursue Steam and Spa because she thinks they should not be
allowed to get away with providing such shoddy service and products, however she
is very concerned about being involved in a formal court trial as she gets very
nervous if she has to speak publicly.
James Powell
James was involved in a car accident three months ago. He was a passenger in his
friend Tim Johns’ car. Tim lost control of the car and hit the central barrier on a dual
carriageway. No-one else was involved in the crash. Tim is being prosecuted for
driving without due care and attention and is due for trial at Bath Magistrates Court
next week.
James suffered back and neck injuries in the accident. You advise that he has a
potential claim in negligence against Tim. Based on the limited information James is
able to give you, you estimate that the claim for pain and suffering and loss of
earnings will be in the region of £10,000, should he succeed at trial.
James is very distressed and upset with his friend, he says to you
“ I want this sorted out as soon as possible, he is clearly out of order, I want you to
get me legal aid to pay for my case. Anyway he is up before the court next week so
surely it can be sorted out then? The magistrates can deal with my claim can’t they.
I need the money soon, I am not working and I can’t pay my mortgage. It won’t take
long will it?”
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Graduate Diploma in Law
Helen Winter
Helen is an architect. Her practice has been served with a claim issued in the High
Court alleging professional negligence relating to the design of a private house for a
local businessman, Michael Taylor.
Helen believes that the major part of the problem lies with Mr Taylor and the builder,
not the plans, she is aware that Mr Taylor has been putting pressure on the builder to
make changes to the build without consulting her. However she is concerned about
the work of a junior architect on the project and thinks that it could have contributed
to the problems. The project is costing several hundred thousand pounds and a
conservative estimate suggests that if Mr Taylor’s claim were to succeed damages
could be in the region of £250,000.
Helen is very anxious to deal with the claim without the need to proceed to a trial.
From what she knows of Mr Taylor, Helen thinks that he will also want to settle the
matter without the fuss of a trial. He can be full of bluff but is essentially a fair man
who is always keen on a deal in his business life.
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Graduate Diploma in Law
CPE – Graduate Diploma in Law
Full Time 2012-2013
Part Time 2012-2014
CRIMINAL JUSTICE SYSTEM
PRE COURSE PREPARATION
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CRIMINAL JUSTICE SYSTEM
Introduction
The aim of this part of the introductory course is to provide you with a general
understanding of how the system works, in the context of the English Legal System
as a whole. We will look at some relevant evidential and procedural issues, which in
turn will enhance your study of criminal law and not leave you distracted by confusion
or non-recognition.
The objectives of the preliminary study of the criminal justice system are as follows:
*
to gain an understanding of how the criminal justice system works in practice;
*
to identify which courts have jurisdiction over criminal cases;
*
to appreciate how the appeal system operates in criminal cases;
*
to develop a critical approach to reading material (especially in the press)
concerning criminal justice issues;
*
to be able to suggest and to evaluate proposals for reform of the criminal
justice system;
*
to recognize the characteristics of summary trial and trial on indictment (jury
trial); and
*
to equip you to study substantive criminal law, being aware of the law in
action as well as in theory.
September sessions
There will be a lecture and workshop for Full Time students and a lecture and a
seminar for Part Time Students. These sessions will pick up some of the issues that
you will have read about.
Preparation
*
Read Elliott and Quinn’s English Legal System, Chapters 12, 13, 19 and the
criminal justice element of Chapter 24.
As relevant background reading, please also read Chapters 10 and 11.
We are aware that this is a great deal of reading and suggest that you read
one chapter per week, perhaps make notes, and absorb it fully before moving
on to the next chapter the following week.
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*
Prepare answers to the questions set out below for discussion at the
Workshop or Seminar
*
Please fill in the Feedback sheet at the end of this section, ready for handing
in at the end of the lecture. Some of the issues raised will be picked up on in
discussion in the workshop or seminar
Other suggested activities
*
If you are able to do so, visit a magistrates'' court or a Crown Court and note
your reactions to what you see and hear there. Better still, visit both and
compare them. It is worth enquiring in the court office about which specific
court may be best for you to visit. Let them know you are a law student –
generally the members of staff are very keen to help.
*
Begin to take particular note of what you read concerning criminal justice in a
quality newspaper (most are readily available on-line). Note how often
criminal justice matters are mentioned in the popular press and in political
discussions and generally
*
You could try visiting some of the websites noted in Elliott and Quinn’s
English Legal System.
*
There are some multiple-choice questions, and practice exam questions
available on the Companion website provided by Pearson’s. Access is
detailed on the inside front cover of Elliott and Quinn’s English Legal System.
We look forward to meeting you in September
Liz Beckerlegge
June 2012
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Graduate Diploma in Law
CRIMINAL JUSTICE SYSTEM
QUESTIONS FOR DISCUSSION IN WORKSHOPS (FT) / SEMINARS (PT)
1
How do Crown Prosecutors decide whom to prosecute and for what offence?
2.
What does the phrase “triable either way” mean?
3
Alan pleads not guilty in the magistrates' court. To which court(s) may he
appeal and on what grounds?
4
What routes of appeal are open to the Crown in criminal cases?
5
What do you consider to be the practical significance of trial by jury?
6
What reform of the criminal justice system would you advocate? Be prepared
to present a reasoned argument in favour of your proposal.
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Graduate Diploma in Law
CRIMINAL JUSTICE SYSTEM
FEEDBACK
On this sheet, please make notes on your overall reaction to what you have read
concerning the operation of the Criminal Justice System. What, if anything, surprised
or baffled you? Is there any aspect of the system which you would like to see
altered, and why? If you have had any experience in the system in any way, does
what you have read accord with that experience?
You will be asked to hand in your notes on this sheet at the lecture and then we will
discuss your reactions with other students during the introductory sessions. Your
reactions to the mode of study as well as to the substantive material will be most
appreciated.
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Graduate Diploma in Law
EU
PRE COURSE PREPARATION
Please note that you will study the Law of the EU in detail as a Foundation subject in
the second half of your course (either teaching Block 2 for Full-time students or Year
2 for Part-time students). This material is to provide a short background to your study
of the English Legal System.
Chapter 5 in Elliott & Quinn is the recommended reading
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CPE GRADUATE DIPLOMA IN LAW
2012/2013 Academic Session
Creation of the European Community and Union
Introduction
The idea of the creation of a united Europe is not a new one; yet, until the end
of the Second World War all plans to establish such a union failed. The
Second World War served as a catalyst: States realised the full impact of two
wars on the European continent. In 1946, Sir Winston Churchill famously
made a speech calling for the creation of a United States of Europe, to be
based on reconciliation between France and Germany.
Motives for the European Integration
There were three main reasons that led States to create a number of
international organisations on the European continent:
-
The States were eager to build a peaceful and more stable future for
Europe and themselves. The result of this wish to prevent further
conflicts and to provide human rights to those living in European States
was the creation in 1949 of the Council of Europe (CoE), a forum within
which the states of Europe could co-operate together, especially on
social, cultural and legal matters. Its greatest success was the creation
of the European Convention on Human Rights and its enforcement
machinery.
-
The economies of the European States had been devastated by two
wars and needed to be rebuilt. It was understood that cooperation was
essential for economic growth. The US provided financial assistance
under the Marshall Plan, a European recovery programme that was
administered by the Organisation for European Economic Cooperation
(1948) which later became the Organisation for Economic Cooperation
and Development (OECD). Undoubtedly this prompted States to
cooperate in the economic field.
-
Security issues were also high on the agenda after the Berlin blockade
and the rising Soviet threat. The North Atlantic Treaty Organisation
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(NATO) whose primary objective was to defend European States was
created in 1949. Years later European States unsuccessfully tried to
build an international organisation with the aim to have a political and
defence union.
The Creation of International (European) Organisations
These three organisations are international organisations, i.e. structures
established by States in order to fulfil a certain role (CoE: peace,
cultural/social/legal cooperation, protection of human rights; OECD: economic
cooperation; NATO: military defence). Likewise the European Union has been
set up to provide peace, security and wealth to those living on the European
continent. International organisations are usually based on a treaty, an
agreement between States that binds them on the international level once
they have ratified it. International organisations are endowed by States with
powers (through a mechanism of transfer of sovereign powers) in order to
reach the aims and objectives set in the specific treaty. As a result an
international organisation can only act if it has received such (delegated)
powers. This explains why it is important to read the treaty that establishes an
international organisation.
Many organisations go through a dynamic process in the sense that their
powers and competences change over time as treaties can be amended. For
example, the Organisation for European Economic Cooperation mutated into
the OECD. Likewise, the 1951 European Coal and Steel Community became
the 2007 European Union. The European Union has transformed mainly
through two mechanisms:
-
Functional integration: the European organisation has been given more
and more sectors/areas of competences;
-
Spill-over effect: the European organisation was allowed to act in a
certain field that had however effects on another one. States then
endowed the European organisation with the powers to act in the latter
field.
That being said, it must be borne in mind that this process was developed by
States without the involvement of its citizens. Consequently, a pending and
recurrent issue is the involvement of European citizens in the European
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integration project and the challenge of making the European Union more
democratic.
Deepening Cooperation
The story of the European integration project started with the creation of the
European Coal and Steel Community (ECSC) in 1951. A year earlier
Schuman, the then French Foreign Minister, suggested a scheme (known to
history as the Schuman plan although it was drafted by Jean Monnet) with the
following aims:
-
Help the economic recovery and boost economic growth in Europe;
-
Remove competition between France and Germany that had led to two
world wars;
-
Put the coal and steel industries of both Germany and France under
the control of a supra-national body, i.e. a body which would be able to
tell States what they could and could not do. This would ensure that
Germany could not start producing armaments.
Germany was happy to accept the scheme and other States were invited to
join. Italy, Belgium, The Netherlands and Luxembourg all agreed. But Britain
refused to join, partly out of insularity and partly because the then Labour
Government had just nationalised both industries. In 1950, the 6 States
signed the Treaty of Paris, bringing into operation the European Coal and
Steel Community (ECSC), the first genuinely supra-national body with a High
Authority, an Assembly, a Council and a Court, organs that will later become
the Commission, the European Parliament, the Council and the Court of
Justice of the European Union. The aim of the ECSC was to remove barriers
to trade in these commodities and set up and manage common policies.
As the ECSC had proved very successful in revitalising the economies of the
Member States, an intergovernmental Committee, headed by Paul-Henri
Spaak presented a report in 1956 suggesting an economic community and an
atomic energy community. The result of this report was the creation of the
European Economic Community (EEC) and the European Atomic Energy
Community (EURATOM) in Rome in 1957. The aim of the EEC was to
establish a common market, including a free trade area, a customs union and
eventually a single market. It was decided that these three international
organisations, the ECSC, the EEC and EURATOM, would have their own
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institutions but would share the Court of Justice and the Parliamentary
Assembly. Later, in 1965, the Merger Treaty saw the creation of a single
Council (of Ministers) and Commission. Slowly but assuredly the three
organisations were becoming one.
The 1986 Single European Act was the first substantial revision of the original
EEC Treaty. The SEA amendments attempted to ensure increased efficiency
(use of qualified majority voting) and democracy (increased powers given to
the European Parliament) in the European Union and introduced an internal
market, known as the common market, to be attained by 31 December 1992.
The next major step was the Maastricht treaty in 1992 that created the
European Union with increased powers and expanded areas of competences.
A pillar structure was adopted to delineate these powers and competences.
The first pillar included the ECSC, EURATOM and the European Community,
i.e. the European Communities. The second pillar dealt with the Common
Foreign Policy and Security whilst the third one addresses issues relating to
Justice and Home Affairs. At this juncture it was obvious that States
cooperation went beyond mere economic collaboration. After two further
amendments, the Treaty of Amsterdam 1997 and the Treaty of Nice 2000, the
States agreed in the Laeken Declaration in 2001 to set up a committee called
“European Convention” to draft a constitution for Europe. The European
Constitution would have simplified all this since it incorporates all these
European Treaties into a single legal document. Although a text was agreed
upon in 2004 it could not enter into force as it failed to be ratified by all
Member States. In 2007 the proposed treaty was formally abandoned and
efforts were directed towards amending the Treaty of Nice. A reform treaty
was adopted in Lisbon in 2007 and took effect in December 2009.
The Lisbon treaty has amended the founding treaties by renaming the
European Community Treaty as the Treaty on the Functioning of the
European Union (TFEU) and renumbering the Treaty of the European Union
and TFEU. The TEU is a framework treaty. Among the main changes
introduced are the creation of the High Representative of the Union for
Foreign Affairs and Security Policy, the recognition of the vital role played by
the European Council, the new definition of secondary European Union law,
and the insertion of the Charter of Fundamental Rights of the European Union
into the treaty and given the same legal values as the Treaties, the increased
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involvement of national parliaments in the decision-making process, the
termination of the three pillar structure.
Widening Participation
The European project started with 6 States (France, Germany, Italy, The
Netherlands, Belgium and Luxembourg) and is now comprised of 27 States.
The United Kingdom, Ireland and Denmark joined in 1973. Norway had also
agreed terms for entry, but the people rejected EC membership in a
referendum, mainly because of concerns about their principal industries, oil
and fishing. Greece started accession negotiations in 1976 after the fall of the
military junta and the restoration of democracy. It became a member in 1981.
Two former dictatorships, Spain and Portugal, joined in 1986 after eight years
of negotiations, complicated by the fact that Portugal was very poor, Spain
had a huge fishing fleet, and both countries, as large-scale producers of fruits
and vegetables, would compete with France and Italy. The next round of
enlargement was straightforward with the accession of Austria, Sweden and
Finland in 1995. Norway also participated in the negotiations, but yet again
the people rejected the proposal for membership. The Czech Republic,
Slovakia, Latvia, Lithuania, Estonia, Hungary, Poland and Slovenia, all former
Communist states, and Malta completed the process of preparing for EC
membership, and were admitted as member states in 2004. Cyprus was also
admitted in 2004. But the island is still divided between the Greek dominated
south, whose government is legally recognised internationally as the only
legitimate government of the whole island, and the Turkish dominated north,
whose government is not legally recognised by anyone except Turkey. It was
hoped that enough pressure could be exerted by the EU to achieve a political
settlement before Cyprus' entry, but this has not happened. In theory, the
whole of Cyprus is part of the EU, but in practice only the Greek part is subject
to EU law. Romania and Bulgaria were allowed to join in 2007.
In order to become a Member State of the European Union, a State must fulfil
a number of requirements that were set at the Copenhagen Summit in June
1993. The criteria are: to have a stable government and institutions that is
democratic and based on the rule of law and human rights (including the
protection of minorities). The State must also have a functioning market
economy that is able to cope with the single market. Moreover, the State must
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be able to accept the acquis communautaire. A number of these requirements
are enshrined in the Article 2 TEU. A further criterion was set at the Helsinki
Summit in 1999: good neighbourhood.
Turkey made repeated applications to join the EC but until 2005 these were
always rejected for 3 main reasons; its economy is undeveloped, its human
rights record is poor, and, most importantly, Greece would not contemplate its
admission until there is a settlement of the Cyprus problem. Turkey has now
been allowed to begin negotiations and the prospect of being admitted one
day is being used as a bargaining counter in the tortuous progress towards a
settlement of the Cyprus problem. As Cyprus is now a member state it has the
power to veto Turkish membership. Further enlargement is possible: Croatia
has been given the go-ahead in June 2011 and its accession on 1 January
2013 was approved by the European Council on 22-23 June 2011. The
Former Yugoslav Republic of Macedonia, Montenegro, Iceland, Albania,
Bosnia-Herzegovina, Kosovo, and Serbia are also candidates. Ukraine has
also expressed an interest in joining some day.
The only European States which seem happy to stay outside the EU are
Norway and Switzerland. Norway is however a member of the European
Economic Agreement and Switzerland has signed an agreement with the EU
and both are part of the Schengen area and cooperation mechanism.
Conclusion
The initial aims of the original European Community have, by and large, been
achieved.
-
Undoubtedly since WWII no war has been waged in a member State of
the European Union. However, the accession of Cyprus reminds that
some States are not fully at peace, for United Nations peacekeeping
forces are monitoring the cease-fire agreement between the north and
the south.
-
Security and defences issues have been resolved. However it was the
end of the cold war and the fall of the Soviet Union and not the
European integration process that made Europe a more secure place
to live in.
-
Member States of the European Union have certainly drawn economic
profits from their association. However, the enlargement process and
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the current financial crisis that is having a considerable impact on the
monetary union present significant challenges for the continuation of
the European integration process.
Undoubtedly, the European Union is a unique entity and has a complex
structure. Often based on similarities rather than differences, the Member
States have managed to create an integrated Europe. However, they do not
always agree on the extent of such integration or ‘deepening’ of the
Communities or the Union. Furthermore, the European integration process
seems to remain led by States rather than the people it is supposed to bring
together.
Summary
-
The European Union is an international organisation created by States.
-
It has evolved through a dynamic process involving further integration
and expansion
If you have any questions regarding EU Law module please do not hesitate to
contact your tutors and ask for help.
Further reading:

Kaczorowska, European Union Law (Routledge-Cavendish, 2d edn,
2010) Chs. 1, 2 & 3.
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CPE - Graduate Diploma in Law
Full Time 2012 / 2013
Part-time 2012 / 2014
__________________________________
INTRODUCTION TO EQUITY & TRUSTS
Please note that you will study the Equity and Trusts in detail as a Foundation
subject in the second half of your course (either teaching Block 2 for Full-time
students or Year 2 for Part-time students). This material is to provide a short
background to your study of the English Legal System and to identify the importance
of the development of Equity in particular.
Chapter 7 in Elliott & Quinn is the recommended reading
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Equity and Trusts is one of the Foundations of Legal Knowledge and the subject is
studied in depth on the CPE either during Teaching Block 2 of the Full-time course or
in year 2 of the Part-time course. That course will concentrate upon Equity’s greatest
invention – the trust. These materials should be read as part of your introduction to
the English Legal System at the beginning of the course.
Historical Background of Equity
In everyday usage, the term “equity” conveys the idea of “fairness”: in the legal
sense, it denotes a body of law that is supplemental to the common law – as
Maitland described it, a body of rules and principles that form an appendage or gloss
on the common law. Equity developed as a response to the rigidity of the common
law: those without redress under the writ system developed in the early centuries of
the last millennium began to petition the King and his Council, who referred them to
the Chancellor as the King’s most important adviser. In time, the Chancellor began to
make decrees upon his own authority through the Court of Chancery over which he
presided. Originally, the Chancellor’s powers were rather vague but gradually a
systematic approach was developed based most notably upon the concept of
“conscience” – a not entirely surprising importation from Canon Law since all the
medieval Chancellors were ecclesiastics. In theory, this concept was founded upon
ideas of universal “natural justice” rather than the subjective opinion of the Chancellor
of the day: however, in practice, the standards applied tended to vary – in the famous
saying – according “to the measure of a chancellor’s foot”.
By the 17th Century, a body of precedent had begun to be developed and it had
become established that the rules of Equity would prevail over those of the common
law where there was a conflict between them. [This position has been preserved by
statute now that, by virtue of the Judicature Acts 1873 and 1875, all courts
administer both sets of rules.] The result is that, whilst the idea of “conscience” can
still be said to be the basis of Equity’s approach, its “intervention” is made in
accordance with a body of settled principles. No claimant has a right to equitable
relief (equitable remedies always have been and remain discretionary), and the
claimant’s conduct and other circumstances will be taken into account in determining
whether an equitable remedy should be granted in the particular case before the
court.
Equitable estates (effectively interests in land recognised by Equity) were developed
to deal with deficiencies in the common law system. The Chancellor could not, of
course, ignore the existence of a legal estate in land, but he could compel the estate
owner to exercise the incidents of his “legal ownership” in a particular way because
“conscience” so required. Thus, where a knight was preparing to go off to the
Crusades it became the practice to vest that knight’s estate in land in a friend to hold
“to the use of” the knight and (until his return) the knight’s lady and children, or if he
died abroad to the use of the knight’s eldest son. If the friend, on the knight’s return,
refused to re-transfer the land to the knight there was no common law remedy
available (because the friend would be recognised as the estate owner). The
intervention of Equity was needed to provide appropriate redress. A similar situation
also arose where (for example) vows of poverty prevented land being conveyed
directly to a monastic order, so that it was conveyed to a knight to hold to the use of
the order. If the knight retained the benefits for himself, he could be forced to convey
the land to someone else to hold to the use of the order. The “use” was also
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employed to “circumvent” the rule that land could not be devised by will and thus
avoid feudal dues that would otherwise arise on death.
What began life as the “use” has evolved over time into the “trust” as we know it
today. Developed originally in relation to interests in land (in earlier times the primary
source of wealth), as other forms of property have also become significant sources of
wealth (for example stocks and shares, antiques, works of art), the principles that
now regulate the modern trust have proved equally viable and effective in relation to
these other forms of wealth.
Legal and equitable ownership
A feature that is peculiar to English law (and to those systems derived from it) is that
it has developed two different concepts of “ownership” of property, rooted in the
historical evolution of the common law and Equity briefly outlined above. Both types
of ownership can exist simultaneously in the same item of property, and an
appreciation of this phenomenon is central to an understanding of how a trust
“works”.
The two types of ownership are conveniently categorised as “legal” and “equitable”.
Historically, the former would have been recognised by the common law courts and
the latter by the court of Chancery (which prior to the fusion brought about by the
Judicature Acts 1873 & 1875 administered the rules of equity). In the case of the
trust, the legal ownership resides in the trustee whose role is essentially one of
management: it involves burdensome duties of a fiduciary nature, which we shall be
exploring during the Trusts course. A trustee must act in the interests of the
beneficiaries under the trust and the trustee is not permitted to make a personal profit
for him/herself. The equitable owner is the beneficiary, who is entitled to the
enjoyment of the property: his or her position is therefore closest to being what might
be termed “real” ownership and has real value. Anything that is capable of being
owned is capable of being held on trust.
Legal and equitable remedies
Legal and equitable remedies are still generally considered to be distinct, despite the
fusion of the legal and equitable systems. The common law remedy is usually a
monetary one – damages for breach of contract or in the tort of negligence, for
example. However, in some cases damages will not be a sufficient remedy and the
claimant may be able to obtain an equitable remedy such as an injunction to restrain
a threatened breach of contract or a threatened nuisance. It is important to realise
that such equitable remedies are not available in respect of breach of a common law
duty where a monetary award would be sufficient compensation for the claimant.
Equitable remedies are always at the discretion of the court and are usually only
awarded in cases where traditionally an equitable remedy has been available. The
doctrine of precedent applies just as it does to common law rules and remedies.
Equitable remedies could be said to be more complex than the common law ones
and extend not only to injunction and specific performance but also, for example, to
rescission, rectification, equitable tracing or the imposition of a trust.
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The equitable maxims
You will come across these occasionally in Block 1/Year 1 and more particularly in
Property and Trusts in Block 2/Year 2. They are a series of fundamental principles
underpinning equitable intervention in the various areas of law and they highlight the
ecclesiastical origins of the jurisdiction, its emphasis on conscience and its flexibility.
They are not to be regarded as binding rules which will determine the outcome of
specific cases.
Most textbook writers list 12 or 13 “core” maxims or principles though you may these
lists differ slightly in their composition.
Here are some of the main examples (in italics, with some brief explanation
following):
Equity will not suffer a wrong to be without a remedy
Underpins the whole equitable jurisdiction and particularly illustrates the historical
development of the trust, but should not be taken as an indication that an equitable
remedy will always be available!
Equity follows the law
Highlights the supplementary nature of the jurisdiction – equitable rules do not
generally form a complete system in themselves. In most cases, equitable rules are
in line with the common law and do not contradict it.
Delay defeats equities
Relevant to equitable remedies, where the usual statutory limitation periods do not
always apply but instead the claimant may be barred by unreasonable delay –
another illustration of equity’s emphasis on conscience, in which the claimant’s, as
well as the defendant’s, behaviour is relevant.
He who seeks equity must do equity
Can be seen in the field of remedies for example the principle that a claimant who
seeks rescission of a contract must be prepared to return all benefits received under
it.
He who comes to equity must come with clean hands
Closely related to the previous maxim but referring primarily to the court’s approach
to the claimant’s past behaviour, for example the denying of a remedy to a claimant
who has committed an illegal act. The clean hands do not however refer to bad
character generally but must relate to the matter in hand!
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Equity looks to the intent rather than to the form
The court will look at the substance of the transaction rather than at its form or
appearance. An example in the law of trusts is that the court may still enforce an oral
declaration of trust relating to land (which statute usually requires to be evidenced in
writing) in order to prevent fraudulent or unconscionable behaviour on the part of the
defendant.
Terminology
In your reading you may encounter the word “equity” used in a number of difference
senses and this can be confusing.
As we have seen above, equity is the term often used to describe the body of law
developed originally in the courts of equity.
An equity is the right to seek an equitable remedy (such as the right to rescission on
the ground of undue influence or the right to have a document rectified) as distinct
from an equitable interest such as that of the beneficiary under a trust, which
amounts to a property right which is capable of being sold or assigned by the
beneficiary. However, to confuse the picture mere equities are also sometimes
called equitable rights!
Try not to worry if you do occasionally become confused: you are in good company
as even members of the judiciary have sometimes expressed their exasperation at
the lack of clear definitions in this area of law!
Conclusion
In recent cases such as Westdeutsche Landesbank Girozentrale v Islington LBC
[1996] AC 669 the court has reiterated the role of conscience in the development of
equity and trusts. Hudson in Equity and Trusts (3rd edition at page 7) says that:
“equity is an ethical response which English courts deploy in circumstances in which
other legal rules would otherwise allow a defendant to act unconscionably.”
And later at page 8:
“Thus, equity exists to rectify what would otherwise be errors in the application of the
common law to factual situations which the judges who developed common law
principles or the legislators who passed statutes could not have intended.”
Equity and Trusts team
June 2012
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Graduate Diploma in Law
CPE - Graduate Diploma in Law
Full Time 2012 / 2013
Part Time 2012 / 2014
ENGLISH LEGAL SYSTEM
CONCEPTS AND DEFINITIONS
This document supports a lecture that will be given during the Induction Week (Fulltime) and Induction tuition session (Part-time Year 1). It primarily offers explanations
of certain key words and phrases, the meaning of which may vary according to the
context in which they appear.
The recommended reading in Elliott & Quinn -Chapters 6 and 9, also all of Parts 3
and 5
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1
Graduate Diploma in Law
NATURE OF LAW
▫
“Law is a formal mechanism of social control” Smith & Keenan, English Law,
page 1
▫
“Law is the cement of society and also an essential medium of change” Glanville
Williams, Learning the Law, 11th ed page 1
▫
“We conduct our lives according to all manner of learned or agreed rules of
conduct. These include our own internalized moral code, unconsciously followed
rules of etiquette and civilized behaviour…” Legal rules are those that are backed
by a sanction if they are broken, enforceable by a court of law, a tribunal or
arbitration. Eddey & Darbyshire. The English Legal System,7th edition, p 3
▫
General public’s attitude to law often focuses on the role of the criminal law in
maintaining public order but the law also provides mechanisms for settlement and
resolution of disputes between individual members of the society eg when
contractual promises are not kept, neighbours get into a dispute about the height
of a boundary hedge; employer/employee disagreements and disposal of
property in life and after death.
2
CATEGORIES OF LAW
Note how the context can affect the meaning of a phrase such as "common law"
2.1
Common law and Civil Law
This categorisation refers to distinct legal systems ie
Common law
Civil law
English; US and Commonwealth
Those systems influenced to a greater
extent by Roman law and Germanic
thinking, leading to the codes of
continental Europe and those countries
once in their respective control
Arguably offering greater opportunities
to the judiciary to be flexible to novel
situations (plus stare decisis)
Codification of abstract principles with
arguably fewer opportunities for the
exercise of judicial discretion
NB
in some contexts “civil law” means specifically Roman law. Hence the word
“civilian”.
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2.2
Graduate Diploma in Law
Common Law and Equity
This distinction refers to a division within the English Legal system itself. Sometimes
the contrast is simply drawn between “law” (meaning common law) and equity.
2.2.1
Common law
What we now call common law began to emerge after 1066 when the centralized,
sovereign power of the king could be enforced throughout the country for the first
time. Judges were sent out from Westminster to impose laws that were “common”
rather than local to a given region. The King’s Council (Curia Regis) was the origin of
the early principles but gradually its jurisdiction was divided up into different courts –
King’s Bench (now QBD); Exchequer; Common Pleas (These last two courts no
longer exist). Petty distinctions in formalities and procedures came to be more
important than the substance of the claim and injustices abounded.
2.2.2
Equity
The King was considered the “fountain of justice” and it was possible to petition the
king directly. Such pleas would be handled by the Lord Chancellor, the “Keeper of
the King’s conscience”. He was not constrained by the formalities of the common law
courts and could dispense justice according to the merits of the case (hence the
phrase that Equity varied with the “length of the Chancellor’s foot”) – but this flexibility
could have the consequence of lack of clarity and consistency. Eventually these
matters were handled by the Court of Chancery (still Chancery Division). Jarndyce v
Jarndyce in Bleak House by Charles Dickens is an indictment of the workings of the
Court of Chancery. It became a byword for inordinate delays and costs. However, the
word “equity” itself retains the meanings of fairness and justice.
2.2.3
Judicature Acts 1873 – 1875
All judges in the newly established Supreme Court of Judicature were empowered to
administer both principles of common law and those of equity ie procedural fusion
was achieved but whilst the “two streams” were said “to have met and run in the
same channel” - their waters did “not mix”.
Also in s 25(11)
“Generally in all matters not hereinbefore particularly mentioned in which there is any
conflict or variance between the rules of equity and the rules of common law with
reference to the same matter, the rules of equity shall prevail.”
2.2.4
Remedies
CPE students may come across the distinction between common law and equitable
remedies before they deal with the Foundation subject “Equity and Trusts”.
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Graduate Diploma in Law
Common law remedies
Equitable remedies
As of right, if claim proved
Discretionary
Claimant’s behaviour only partially
relevant
He who seeks Equity must come
with clean hands
Damages [monetary compensation that
passes from the wrongdoer to the victim]
Injunctions (Tort)
Specific Performance
Rectification of documents
Recission (see Contract)
2.3
Common Law and Statute
This distinguishes between sources of law
Common law – consists of those legal rules created by either custom of the people or
the judiciary whereas Statute law is that created by Parliament (legislation). Look at
any Statute book to see the increase in legislation from the mid 20th Century
onwards. Even this quick test does not disclose the extent of secondary and tertiary
legislation. Contract and Tort principles are heavily dominated by judge made legal
principles.
2.4
Private Law and Public Law
2.4.1 This distinction is often used to denote the difference between those legal
rules and principles that regulate dealings and disputes between citizens (private
law) and those by which the organs of the state administer the relationship between
the State and its citizens (public law – which is studied as a CPE subject)
2.4.2 An alternative meaning can arise in sense of those matters that are within the
private sphere and which individuals should regulate as opposed to those which are
within the public sphere and in which the state should interfere to regulate eg criminal
law whereas Contract is sometimes argued to be an illustrative example of private
law. However, this fails to acknowledge the extent of state intervention in areas of
contract where consumer protection is thought to be good for society as a whole.
2.5
Civil Law and Criminal Law
This distinction will be immediately obvious to any student starting the CPE course.
Civil law (eg Contract and Tort) regulates the relationships between individuals and
enables them to settle disputes without resort to personal violence! Crimes affect
society as a whole as well as the individual victim and the State re-enforces desirable
behaviour by punishing those found guilty of committing crimes. The distinction
cannot be found merely by looking at the conduct of the accused by itself because
many acts can be both criminal and tortious. For example, the crime of rape is also
the tort of trespass to the person. If the victim sues the wrongdoer in the civil courts,
certain procedures would be followed and the remedy would be a civil remedy; if the
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rapist was prosecuted in the criminal courts, differences in procedure and available
remedies would become apparent.
Civil law
Criminal law
Standard of proof:
Balance of probabilities
Standard of proof:
Beyond reasonable doubt
Civil courts and related procedures
Criminal courts and related procedures
Action brought by the aggrieved
Individual, often at own expense
Action normally brought by the State
Civil remedies to redress the wrong
Criminal remedies (eg fines and
imprisonment - elements of punishment,
deterrence and rehabilitation)
2.6
Substantive and Adjectival (or Procedural) Law
Substantive law – tells us what a person’s rights and duties are, under the law.
Adjectival law – tells us how those rights and duties will be enforced, most obviously
through the rules of procedure and evidence.
Very broadly, the CPE is concerned with substantive law and your knowledge of
procedure and evidence will be developed at the vocational stage of training
(whether LPC or BVC)
3
SEPARATION OF POWERS
This phrase describes the principle that the three functions of government should be
kept distinct and separate – legislative, executive and judicial. (Note the problem with
the role of Lord Chancellor within the English Legal System)
3.1
Parliamentary sovereignty
After the Civil War, Parliament became sovereign ie it can make and unmake any law
it chooses but the independence of the judiciary was secured in the Act of Settlement
1701.
3.2
Judicial independence
To what extent should the legal system operate autonomously, independent of the
power of the State? Opinion has differed over the role of the Lord Chancellor, who
straddles both the executive and the judiciary.
“Rather than being the voice of the judiciary in Cabinet, he (Lord Irvine of Lairg) is
suspected by some, as was his predecessor (Lord Mackay of Clashfern), as being
the voice of the Cabinet in the judiciary.” Smith and Keenan, p10. [Names added]
These matters will be explored in more detail in the Foundation subject of Public Law
which is studied in Teaching Block 1 (Full-time) and year 1 Part-time.
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4
Graduate Diploma in Law
THE RULE OF LAW
Not a precisely defined concept but a measure by which State practices can be
assessed. During the 20th Century and ongoing, there has been extensive
encroachment of the State in the lives of individuals / citizens, with wide-ranging
delegation of enforcement to various groups / quangos.
4.1
Human Rights Act 1998
The explicit recognition of “human rights” shows a realm beyond the sovereignty of
Parliament. Before this Act, many judges saw it as part of their role in the
maintenance of the Rule of Law, to protect fundamental human rights by reference to
the Convention. In English law this had been seen as a person’s right to do what they
chose unless it was forbidden or prescribed by the law.
1950 UK – was one of the original signatories to the European Convention on
Human Rights
1966 recognition by UK of power of ECHR to hear, and adjudicate upon,
complaints from UK citizens.
1998
Human Rights Act enacted and came fully into force from 3rd October 2000.
The impact of the HRA will be examined within the Foundation subjects throughout
the CPE course.
5
INDICATIVE CHARACTERISTICS OF THE ENGLISH LEGAL SYSTEM
▫
The Common Law – major contribution by the judiciary over several centuries
▫
Lack of Codification – compared with most civil law countries
▫
Adversarial procedure – a superficial comparison is often made with the
inquisitorial procedure of continental European countries
▫
Jury trial – now very rare in civil cases and under threat in some criminal trials
▫
Lay Magistrates – very heavy volume of work is done by “lay” people within the
legal system. Add to the lay magistrates, all those lay people involved in
arbitration, tribunal work and those who sit as jurors.
June 2012
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