LECTURES 12 ENGLISH LEGAL SYSTEM1 1

Faculty of Business and Law

Business School

BA Accounting & Finance Level 5 - Course Code 5R5Z0020 (30 Credits)

Law Lecture Notes 2015/16 English Legal System Lectures 1-2

BA Accounting and Finance: Year Two (Level 5)

Law 2015/16

LAW LECTURE 1 INTRODUCTION TO THE ENGLISH LEGAL SYSTEM 1.1 INTRODUCTION This topic is an introduction to the basic concepts, classification, and sources of English law; it is also an introduction to the concept and sources of human rights law in the country. At the end of the topic, you are expected to be conversant with:     

The meaning and classification of law Some important terminologies associated with law The court system and the hierarchy of courts The sources from which English law is derived The notion of human rights and the sources of human right law. 1.2 MEANING AND CLASSIFICATION OF LAW

Law may be defined as rules of conduct imposed and enforced by the state. It may also be defined as rules of conduct which are obligatory. Law is divided into many conceptual branches for the convenience of teaching and understanding. For example, we have public law, criminal law, contract law, the law of torts, equity, company law etc. But certain distinctions are more fundamental, for example that between criminal law and civil law. Despite the classifications, however, real life problems may crisscross all or some of these of these branches. Some words and terminologies are common to all areas of law even though they may at times have different significations depending on the context in which they are used. This is a situation we will encounter regularly in the course. 1.2.1 Criminal law and Civil law Criminal law deals with the prohibition of certain conduct within a state. Infringement of these prohibitions are enforced by criminal prosecution of the offender by the state authorities (e.g. the police) because the offences are deemed to be committed against the whole society. Examples of criminal offences are burglary, fraud, and murder. For an act to be regarded as a crime it must be proclaimed as such in a written law; there is no crime unless the conduct in question was prohibited before it took place.

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If found guilty an offender will be punished either by fine, or imprisonment, or both. Criminal offences are tried in criminal courts, namely Magistrate courts and Crown courts, at first instance. In order to convict somebody of a criminal offence, the allegations must be proved beyond reasonable doubt. Civil law regulates relationships and conduct among individuals in their private, social, or business lives. It deals with personal rights which are enforceable by personal action by one person against another. Examples of civil law include company law, commercial law, contract law, and tort law. Civil law also refers to law that can be enforced by individuals, and not by the state. The person who brings a claim in civil law is usually referred to as the plaintiff, claimant, or petitioner, as the case may be; the person against whom the claim is brought is referred to as the defendant. Remedies in civil cases include monetary compensation (damages) or an order to do something (specific performance) or an order not to do something (injunction). The standard of proof in civil cases is on a balance of probabilities'. Civil cases are mostly dealt with by the county courts and the High courts at first instance. Note: one incident may be both a crime and a civil wrong. Can you think of any? 1.2.2 Private Law and Public Law Law may be further divided into public law and private law. Private law deals with relationships and interactions between individuals as seen above. Most areas of law are private law; e.g. company, business, commercial, contract, and tort law. Public law refers to law regulating the relationship between the state and the people, e.g. administrative law and human rights law. It also refers to law which can only be enforced by, or with the permission, of the state, e.g. criminal law.

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Law 2015/16

1.2.3 Civil Code and Common Law There are different systems of civil law generally dependent upon whether a country was ruled in the past by France (Civil) or England (Common Law). Examples of Common Law systems are the Commonwealth countries and USA. Most of Continental Europe operate the Civil Code system. The civil Code consists of codified legal principles, often in general terms interpreted and reinterpreted by courts. The Common Law refers to the system developed by judges on the basis of customs and traditions and established by the doctrine of judicial precedent or 'stare decisis.' This is the principle that previous court decisions bind lower future courts as to the 'ratio decidendi' (the legal reason for the decision) of the case. Common law operates in the England and countries in the Commonwealth. 1.2.4 Common Law and Statute This is a classification within English Civil and Criminal Systems that distinguishes between judgemade law and law enacted by Parliament. However, much of the latter are actually enacted by Statutory Instruments drawn up under general powers given to Ministers of the Crown. 1.2.5 Common Law and Equity This is a historic distinction within English Civil system. The Common Law was the oldest law system in the country. It was developed from customs and traditions of English people and established through judicial precedent (See Judicial Precedent below). Common law was originally administered by the King’s/Queen’s Bench. Equity on the other hand was a system of law developed by the Lord Chancellor to ensure justice in circumstances where the Common Law was unable or unwilling to provide a remedy. Equity was originally administered by the Chancery (see Equity below). Since the enactment of the Supreme Court of Judicature Act 1873 both Common Law and equity are administered under a unified court system.

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Law 2015/16

1.3 Some important concepts/terminologies 1.3.1 Law and Fact Law refers to legal principles that regulate conduct. Facts refer to what actually happened in a given situation. This distinction is important in three areas: 

In criminal trials, facts are a matter for the jury, while law is a matter for the judge

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Ratio decidendi – Lower courts bound as to the law

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Most rights of appeal exist only on matters of law but not of fact.

The distinction is not always clear-cut because a situation may involve a mixture of law and fact. E.g.: 

What happened? - Fact

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What is the rule? - Law

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Does the law apply? Often definitional problem, words like 'unreasonable', 'dishonest', 'insulting' - mixed law and fact

1.3.2 Evidence Evidence refers to materials, statements, or documents used to prove a claim or charge in court. The basic rule is that only direct evidence of facts is admissible; opinions and hearsays are not normally admissible in court as evidence. But there are two important exceptions: (a) Expert witnesses can give opinions with leave of court and prior disclosure to other side. In the past often led to battle of experts. (b) Hearsay (someone reporting what someone else thought or said) is permitted in civil trial on certain conditions. There are rare exceptions where hearsay may be admissible in criminal trials as well, but generally criminal law requires direct evidence. 1.3.3 Who Can Sue/Be Sued (a) Individuals who are adults may sue or be sued. But children have limited capacity; they can have no legal estate in land and have no criminal capacity when under 10 years. Full criminal capacity does not apply until 14 years. (b) Companies can sue or be sued in their own name. They are not the same as the controlling shareholders but separate, albeit artificial, persons in law. In some circumstances, however, this legal

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personality will be ignored (we shall see how and when latter). (c) Other corporations – e.g. local authorities, bishops of the Church of England, have separate legal personality and can be sue and be sued. (d) Partnerships – no distinction from their constituent partners, therefore cannot generally sue or be sued in the firm name. However, limited liability partnerships can now be formed under the Limited Liability Partnerships Act 2000. Such partnerships can sue/be sued in its own name. (f) Unincorporated associations cannot generally sue/be sued in their own name. However, certain unincorporated associations such as clubs and trade unions have special statutory regime and may sue/be sued in own name. (g) States/the Crown – Under the Crown Proceedings Act 1947, the Crown can sue/be sued in contract and tort though in theory the Crown could refuse enforcement against itself. Other countries and the European Union also have legal personality and may be sue and be sued. 1.3.4 Appeals; Judicial Review; Preliminary Rulings Appeal – Most decisions can be appealed to at least one higher court, although sometimes this is only allowed to challenge the interpretation or application of the law, rather than challenging the findings of fact. Appeals may be done as of right or with the leave of the original or higher court. Judicial review – This particularly applies to tribunal and private body decisions, like disciplinary committees, and employment tribunals. It is not strictly an appeal of the decision, but a challenge to the way it was made, e.g. the body hearing the case had no right to, or that the way the case was heard was unfair, or (and this is very like an appeal) that the decision was so irrational that it must be improper. Preliminary ruling – This can be a critical point at issue that is isolated from the rest of the case and heard first. It is also now a matter of European law that is sent to the European Courts for guidance on that point of law before the case can be decided by local court.

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1.4 SOURCES OF ENGLISH LAW There are five principal sources of English law namely: 

Common law

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Equity

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Judicial precedent

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Statute (including subordinate legislation)

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Treaty of Rome; Lisbon Treaty (including regulations, directives, decisions of the European Court of Justice).

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European Convention on Human Rights (including decisions of the European Court of Human Rights)

1.4.1 Common Law Common law refers to laws that developed from the customs and traditions of the people of England. Rights of individuals or other legal persons against each other are still primarily judge-made law, e.g. contracts, torts. Common law remedies are granted as a matter of right, often expressed in the maxim ubi jus ibi remedium (where there is a right, there is a remedy). 1.4.2 Equity As we saw earlier, the Common Law was the oldest source of law in England. But by the 16th century, the Common Law had become very rigid, inflexible, and obsessed with form rather than substance. Many people failed to get any or satisfactory remedy in the Common Law courts (The King’s/Queen’s Bench).. It came to pass, that any claim not covered by existing precedent or which did not follow the prescribed form would be rejected by the court. In time, people who were not satisfied with the Common Law began to appeal directly to the King/Queen for justice. The King usually delegated such petitions to the Lord Chancellor – his spiritual adviser -- for solution. The chancellor would, in deserving cases, ignore the rigid strictures of the common and mete out justice as the cases deserved. Subsequently, petitions began to be made directly to the chancellor. The petitions to the Chancellor to overrule strict application of common law became a separate body of law called Equity. Equity introduced: (a) Special relationships: It recognized that duties owed in special relationships by the likes of trustees, partners, agents should go beyond the normal strict legal rights

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(b) New remedies: It developed discretionary remedies (only allowed if fair) like restitution, injunctions, specific performance, rectification, declarations , estoppel -- compared to the absolute right at common law to damages. The two systems were unified in the 1873 by the Judicature Act to have a single system of civil court applying both Common Law principles and the principles of equity. However, where there is a clash of principles, equity overrules the common law. Because equity is primarily concerned with doing justice in individual cases, its remedies are discretionary. This means that the court may not grant a remedy unless it considers it just and equitable to do so in a particular case. Certain principles have been developed to help equity achieve its objectives. The principles, which are commonly referred to as ‘maxims of equity’, include: 

Equity suffers no right to be without a remedy

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Equity regards the substance rather than the form

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Equity considers as done that which ought to have been done

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Equity aids the vigilant and not the indolent

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Equity does not aid a volunteer

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Where the equities are equal, the first in time prevails

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He who seeks equity must do equity

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He who comes to equity must come with clean hands

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Equity will not permit a party to profit by his own wrong.

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Equity delights to do justice and not by halves

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Equity looks upon that as done which ought to have been done

1.4.3 Statute law Also know as Act of Parliament or legislation, this is law made by, or with the authority of, parliament. Many Acts of Parliament merely provide a framework upon which detailed rules in statutory instruments, byelaws etc. are based. The Parliament in the UK is said to be sovereign; this means that it is not answerable or subject to any other authority. Sovereignty of Parliament is based on the principle that neither the courts nor the Crown can challenge a law passed by the Parliament. However, this position has changed slightly since the accession of the

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UK to Treaty of Rome. Delegated Legislation Laws made pursuant to a statutory authority are known as subordinate or delegated legislation. These include Orders in Council, Proclamations, Regulations, Rules, Orders, Schemes, and Warrants, and byelaws. Most subordinate legislations are governed by the Statutory Instruments Act 1946. Byelaws are governed by the Local Government Act 1972. Procedures for making subordinate legislation are varied; but usually laid in draft. It may be affirmative (only if Parliament agrees) or negative (only if Parliament rejects). Advantages -- the use of delegated legislation: 

enables quick enactment of laws

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allows those with technical expertise to make relevant laws

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ensures flexibility of the law in dealing with local matters; saves Parliamentary time.

Disadvantages 

Delegated legislation leaves law-making in the hands of unelected officials.

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Because of the sheer volume of laws involved and the relative privacy under which the laws are made make it difficult to monitor/follow.

Subordinate/delegated legislation can be challenged in court for: 

ultra vires (beyond the power granted)

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unreasonableness

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procedural impropriety

1.4.4 Judicial Precedent Judicial precedent refers to a system where later courts are bound to follow the decisions of higher courts in previous cases if the facts are similar. To permit rational judge-made law there is need for consistency and therefore law reporting. The process of law reporting was somewhat erratic but from 1866, and following the re-organization of the English legal system by Judicature Acts of 1873 – 1875, a reliable system of law reporting was established. Many law reports now exist in all areas of the law.

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Court judgments largely consist of 4 parts: (a) Finding of material facts (b) Review of precedents and statutes for principles in area (c) Application of the relevant principles to the facts (d) Consequent judgment and orders Only number (c), the ratio decidendi (i.e. the rule of law applied) can be binding under stare decisis. Number (b) can be persuasive obiter dictum. Court hierarchy is central to system of stare decisis as higher courts bind lower courts. Below is how the court hierarchy and precedent work: The European Court of Justice/European Court of Human Rights – has jurisdiction in matters covered by the Treaties of the European Union, but in that area binds all UK Courts but not itself (i.e. it can change its mind in future). The Supreme Court – binds all other UK Courts but not itself since 1966. It is bound by the judgment of the ECJ and ECHR on matters of EU law. In matters of domestic law, the Supreme Court binds every other court in the UK but is not bound by any other court. The court is also not bound by itself. The Court of Appeal - Binds the High court and other lower courts. The court also binds itself except in the following situations: 

Where there are conflicting Court of Appeal decisions on the same issue;

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Where a decision is inconsistent with a later House of Lords (or if relevant Privy Council) decision;

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Where a previous decision was per incuriam a statute or binding precedent;

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In a criminal case where the law has been misapplied or misunderstood.

See: Young v Bristol Aeroplane Co Ltd [1944] KB 718 at 729.

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The High Court is bound by the decision of the Court of appeal and the Supreme Court. The High Court binds magistrates and County Courts and tribunals, but not themselves. It may also, in special cases, bind the Crown Court. 

The Magistrate courts, County Courts, and tribunals do not create binding precedents.

When Binding Precedent may not be Followed (a) If the facts of the present case are significantly different from those of the previous case. This means that the facts of the present can be distinguished from the facts of the precedent. (b) Where the ratio decidendi is not clear (i.e., obscure). This may be case where the different judges that decided the case gave different reasons for their decision. (c) Where the previous decision was reached per incuriam, i.e., without care. This will be the case, for example, if the Court to Appeal reaches a decision without taken account of a relevant Supreme Court judgment. This will also be the case where a relevant statute was not considered. (d) Where the previous judgment is inconsistent with a relevant statute, or a fundamental legal principle. (e) Where the ratio decidendi in the previous case is considered to be too wide. Advantages of Judicial Precedent: These include: (f) Certainty in the law – Stare decisis makes the law fairly settled and predictable. Judges are not free to modify the law as they see fit in different cases. If they were to do so, many mistakes might be made and the law might become uncertain. (g) Uniformity of the law – Stare decisis enables like cases to be decided alike. Prospective litigants are therefore able to assess the chances of success by reference to previous cases. (h) Law Reporting -- The system of elaborate law reporting on which precedent is based has

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enabled the building up of a treasure trove of accessible case law. It is easy to locate cases decided a very long time ago (in some cases up to 200 years). Disadvantages include: 

Lack of sufficient flexibility – The requirement to follow previous decisions might prevent judges from using their discretion in individual cases.

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Perpetuation of wrong decision – a wrong decision may have to be followed by lower courts until overturned by the court which made it or by a higher court. This may have the effect of perpetuation a miscarriage of justice.

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Lower courts might employ the principle of distinguishing wrongly in order to avoid following a precedent. This may lead to illogical decisions.

1.4.5 Treaties of the European Union EU treaties are now a major source of English since the country joined the EU in 1973. The 1957 Treaty of Rome formed the European Economic Community and European Atomic Community. It established the main institutions of the union and is also known as the Treaty of the European Union. In 1992, the Maastricht Treaty extended the Treaty of Rome and renamed the European Economic Community as the European Union with a separate treaty adding two pillars of foreign affairs/Security and Justice/Police. The Amsterdam Treaty came into force in 1999. The treaty substantially amended the Maastricht treaty. The Maastricht and Rome treaties were further amended by the Nice treaty of 2001 (which come into force in 2003). The Maastricht and Rome treaties have now been amended by the Lisbon Treaty of 2007. The treaty came into force on 1 December 2009.

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The European Union may impact English law through: (a) Treaty provisions to which the UK is a party – these may be directly binding or must be adopted by national legislation. (b) EU regulations – these are mandatory and supersedes any national law on the subject. (c) EU directives – these require member states to enact laws to implement EU policies. (d) Decisions of European courts – these are binding precedents on national courts and individuals affected. The legal effect of membership of the EU is that UK legislations are now subordinate to those of the EU on matters of community law. Under s. 2(4) of the European Communities Act 1972, English law should now be interpreted, and have effect, subject to the principle of supremacy of EU law. R v Secretary of State for Transport, ex parte Factortame [1990] The UK Parliament passed the Merchant Shipping Act 1988 in order to prevent Spanish and other European fishing boats from registering in England and therefore taking advantage of UK fishing quota as agreed by the EU member states. Spanish fishing boat owners challenged the Act on the ground that it contravened the freedom of EU citizens to set up business in any state of the EU. It was held by the House of Lords that the Merchant Shipping Act was incompatible with the European communities Act 1972. According to the court: Under the European communities Act of 1972, it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of community law. Similarly when decisions of the court of justice have exposed areas of UK law which have failed to implement Council Directives, Parliament has always loyally accepted the obligation to make appropriate and proper amendments. Stoke-on-Trent County Council v B & Q plc [1991] 2 WLR 42: The EEC treaty is the supreme law of this country, taking precedence over Acts of Parliament. Our entry into the European Economic Community meant that […] Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty on matters of social and economic policy which it regulated – per Hoffmann J. In R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994], it was held by the House of Lords that certain parts of the UK’s Employment Protection (Consolidation) Act 1978 (which gave less rights to part-time workers, than their full time counterparts) were incompatible with EU law on non- discrimination between male and female employees. This was because most part-time employees were women and were therefore more widely affected by the Act than men were.

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1.4.6 The European Convention on Human Rights Human rights are rights that are regarded as natural and inalienable to human beings. Modern human rights law in the UK has its origin in the EU Convention on Human Rights 1950. The UK Human Rights Act 1998 was enacted pursuant to the Convention. The Human rights Act, which came into force in the year 2000, does not entrench European Convention of Human Rights into UK law; instead it implemented the convention by modelling the UK human rights law on it. The main rights enshrined in the ECHR (HRA 1998) include: 

Right to life – article 2

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Freedom from torture, inhuman or degrading treatment – article 3

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Freedom from slavery or servitude – article 4

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Right to personal liberty and security – article 5

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Right to fair hearing – article 6

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No criminal offence without law/retrospective punishment – article 7

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Right to private and family law – article 8

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Right to freedom of thought, conscience and religion – article 9

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Right to freedom of expression – article 10

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Right to peaceful assembly – article 11

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Right to marry – article 12

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Right to remedy for contravention – article 13

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Freedom from discrimination – article 14

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Right to peaceful enjoyment of possession – article 1, protocol 1

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Right to education – article 2, protocol 1

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Freedom from imprisonment for breach of contract – article 4, protocol 1

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Right to freedom from expulsion from one’s country; right not to be prevented from entering one’s country – article 1, protocol 4.

The government of the UK and public bodies are now required to make laws and policies consistent with the EU human rights convention. Any law made by parliament and any act of a public authority which is inconsistent with the convention will have to be changed. A citizen whose rights have been infringed may also sue the government in a domestic court or the European Court of Human Rights for redress.

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LAW LECTURE 2 INTERPRETATION OF LEGISLATION / THE COURT SYSTEM 2.1 INTERPRETATION OF LEGISLATION 2.1.1 Introduction It is the responsibility of the courts to apply laws made by Parliament to relevant circumstances while deciding the cases that come before them. This application of the law calls for the interpretation of the applicable statutes. Sometimes, this procedure may be straightforward, at other times less so. Difficulties of interpretation may arise from poor draftsmanship, typing errors, omissions, the use of ambiguous words/expressions, or from new developments that were not envisaged when the statute was enacted. Generally, the purpose of statutory interpretation is to give effect to the (presumed) intentions of the Parliament. 2.1.2 Presumptions relating to legislation In interpreting legislation, it is presumed that the legislation should not: (i) have extra-territorial application – Legislations are presumed to apply only within the UK (ii) bind the crown unless otherwise expressly stated – the crown is presumed to be sovereign. (iii) alter the common law unless expressly stated – the common law cannot be amended or nullified by implication. (iv) impose strict liability for a criminal offence – criminal intent (mens rea) must be present before a crime could be committed. Strict liability must be expressly enacted. (v) remove a vested right in property – express provisions are needed to remove a person’s right to enjoy his/her property (vi) have retrospective effect. This means that any new legislation will have effect only from a period after its enactment. 2.1.3 Rules of Legislative interpretation The following are the main rules of statutory interpretation: (a) The Literal Rule – the provision of the statute is to be interpreted according to the plain and

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ordinary meaning of the words used where these words are clear and unambiguous. This would still be the case even if the result appears absurd. R v City of London Court Judge [1892] If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity”. The literal approach was adopted in the following cases: Whitely v Chapell [1868]. A statute provided that it was an offence to impersonate “any person entitled to vote” at an election (the statute was intended to prevent electoral malpractice). The defendant was charged with impersonating a dead man in order to vote in an election. The defendant was held not guilty since a dead person was not entitled to vote in an election. London & North Eastern Railway Co v Berriman [1946] – It was held that a statute that provides for the payment of compensation to employees killed while “relaying or replacing” railway tracks did not apply to an employee who was killed while undertaking routine maintenance and oiling of the tracks. If the literalist interpretation of the clear words of a statute produces an absurd result, it is up to the legislature, and not the court, to rectify it. Duport Steels Ltd v Sirs [1980] ICR 161 at 177: It is at least possible that Parliament… did not anticipate [disruption]… but if this be the case, it is for Parliament, not the judiciary, to decide whether any changes to the law should be made (Lord Diplock). The literal rule is therefore usually the starting point of statutory interpretation. Advantages 

The literal rule of interpretation tends to maintain the sovereignty of Parliament.

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The rule also maintains the separation of judicial and legislative functions of government.

Disadvantages 

The rule may lead to absurd judgments

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An absurd judgment may be tantamount to an unjust or unfair judgment.

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The rule may fail to bring out the real intentions of Parliament since it assumes that the drafting of the statute was perfect. It also assumes that the meaning of words can always be precise. These assumptions might not be founded in some cases.

(c) The Golden Rule This is a rule that allows for the constructive interpretation of an ambiguous statutory provision in such a way as to avoid an absurd outcome where a literal interpretation would lead to such absurdity that could not have been intended by Parliament. Golden Rule therefore looks to actualize the intention of Parliament as could be deduced from the context of the statute. The rule, however, is not a license to the courts to substitute their own law for the one made by Parliament. The rule was explained in Grey v Pearson [1857]: The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistence, but no further. Lord Simon suggested the test for the application of the golden rule in Stock v Frank Jones (Tipton) Ltd [1978] 1 AllER 948 at 954. According to him, the rule should only be used where: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly'. In Inco Europe Ltd v First Choice Distribution [2000], the Supreme Court (House of Lords) held that a judge can add words to a statutory provision in order to give effect to the intentions of Parliament.

The Golden Rule was applied in the following cases:: R v Allen [1872] -- A statute which prohibited bigamy provided as follows: “whosoever being married shall marry any other person during the life of the former husband or wife … shall be guilty of bigamy”. The court held that the phrase “shall marry” should be interpreted to mean “shall go through a marriage

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ceremony” since it was impossible for a person who was already married to validly marry another person. Adler v George [1964] – Under the Official Secrets Act 1920, it was unlawful to obstruct a member of the armed forces “in the vicinity of any prohibited place”. The defendant was charged with the offence but argued that he was not guilty since the prohibition occurred in an Air Force base which was the prohibited place instead of the vicinity thereof. It was held that “in the vicinity of” included the prohibited place itself; a literal interpretation would lead to absurdity not intended by Parliament. Advantages – the rule 

Helps to prevent absurdity and injustice

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Helps to bring out the intentions of Parliament

Disadvantages – the rule 

might lead to undue judicial interference in legislation since the phrase “absurd result” has not been given a clear or specific meaning.

(c) Mischief Rule – this rule allows a court to interpret a statute so as to address the problem it was intended to solve. The pertinent questions are: (a) “what mischief was the statute intended to cure”? (b) has the legislative provision effectively dealt with that mischief? Heydon's Case (1584) 3 Co Rep 7a provides the guide: Four things are to be discussed and considered; (1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy. In Jones v Wrotham Park Settled Estates [1980] AC 74, the House of Lords stated three conditions for the application of the rule as follows: (a) It must be possible to determine with certainty the mischief which the legislation intended to rectify; (b) It must be clear that the mischief has not been dealt with by the enactment (c) The words which could be added to the enactment in order to address the mischief would have been used by the parliament had the omission been brought to is attention.

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The mischief rule is therefore applicable where there is ambiguity or where the particular facts before the court were not explicitly covered by the statutory provision contrary to the perceived intention of parliament. The rule was applied in the following cases: Smith v Hughes [1960] – The Street Offences Act 1959 prohibited prostitutes from soliciting customers in a street or public place. The defendant solicited customers by sitting in a first floor room and tapping on the window in order to attract the attention of men walking along the street. It was held that she was guilty of the offence since the intention of the Act was to prevent the solicitation, for sexual purposes, of men walking along the street. Gorris v Scott [1874] – Under the Contagious Diseases Act 1869, ships were required to carry animals and to contain them in pens in order to prevent the spread of contagious diseases. The defendant failed to do this with the result that the claimant’s sheep were thrown overboard. It was held that the defendant was not liable under the Act since it was intended to prevent the spread of disease rather than the protection of customers’ goods from being lost at sea. Advantages – The rule: 

helps to avoid absurdity by actualizing the intentions of parliament

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helps to ensure that justice is done



allows for flexibility in statutory interpretation

(d) The Purposive Rule This is the most modern approach to statutory interpretation. It is an expansion and more liberal application of the mischief rule. It allows a judge to look at the purpose of the legislation and the intentions of Parliament and try to bring them out without being unduly constrained by the words actually used in the enactment. Accordingly, the literal rule might be disregarded even if the words are clear and unambiguous if this will enable the court to bring out the intention of Parliament. According to the House of Lords: The days have long passed when the court adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted (Pepper v

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Hart). This approach has a strong European flavor, and has gathered momentum following UK’s accession to the European Union. The approach is usually applied in the interpretation of EU and allied legislation. The idea is that statutes should be interpreted to give effect to the relevant EU laws or directives. Pickstone v Freemans [1988] – the House of Lords felt constrained to read words into a domestic employment legislation in order to bring it into conformity with EU legislation on equal pay between men and women. According to Lord Oliver, the decision marked: a departure from a number of well-established rules of construction. The intention of parliament has, it is said, to be ascertained from the words which it has used and those words are to be construed according their plain and ordinary meaning … It has also to be recognized that a statute which is passed in order to give effect to the United Kingdom’s obligations under the EEC Treaty falls into a special category and it does so because, unlike other treaty obligations, those obligations have, in effect, been incorporated into English Law by the European Communities Act 1972. This rule has been further explained by the House of Lords in R v Secretary for Health [2003]: The basic task of the court is to ascertain and give effect to the true meaning of what Parliament had said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty … The court’s task, within the permissible bounds of interpretation, is to give effect to Parliamentary purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. 2.2 THE COURT SYSTEM Cases are heard in different courts/tribunals depending on the nature of the issues involved. The different courts/tribunals are: 2.2.1 Tribunals

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In the past, these were informal and specialized court-like bodies that were used to resolve disputes. There were over 60 types of tribunals, e.g.: special Commissioners of Income Tax; VAT Tribunal; Social Security Commissioners; Immigration Adjudicators; Rent Tribunal; Lands Tribunal; Industrial Tribunal; Employment Appeals Tribunal. Now, following the enactment of the Tribunals, Courts and Enforcement Act 2007, the tribunal system has largely been harmonized and formalized in a manner similar to the court system. Tribunals are now largely divided into a two-tier system with the First-tier Tribunal hearing cases at first instance and the second-tier Tribunal (the Upper Tribunal) hearing issues on appeal. Both types of tribunals are now composed of judges and judicial experts and are regarded as an integral part of the judiciary. The first-tier tribunals are divided into chambers with each chamber specializing in and dealing with particular subject-matter. Accordingly, the first-tier tribunal comprises the General Regulatory Chamber; the Social entitlement Chamber; the Health, Education and Social Chamber; the War Pensions and Armed Forces Compensation Chamber; the Tax Chamber; and the Immigration and Asylum Chamber. The Upper Tribunal is a Superior Court of Record and functions like the Court of Appeal with respect to tribunal matters. Thus, it hears appeals from the First Tier Tribunals; undertakes the enforcement of decisions and orders of the First tier tribunals. In addition, it has the power of judicial review and may make mandatory, injunction, prohibition, quashing, and declaration orders. Appeals may lie from the Upper Tribunal to the Court of Appeal In addition to the above, there are a number of private 'tribunals' disciplining professionals, such as doctors, solicitors, accountants etc. To ensure fairness, decisions of such tribunals are subject to judicial review by the Queens Bench Division. Tribunals are generally cheaper than conventional courts; their procedures are simpler and less intimidating to ordinary people; and decisions are reached more quickly than in conventional courts. Moreover, tribunals are usually composed of experts in the relevant fields, there making it more likely that fair decisions would be reached. However, legal aid is not usually available for Tribunal cases so claimants have to bear the costs of their cases.

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2.2.2 Magistrates Courts Magistrates deal with less serious criminal cases summarily. Either-way offences also start here. The accused is given an option of summary trial at the court or committal to the Crown Court for trial on indictment. The Criminal Justice Act 1977 categorizes charges into one of three: 

Triable only on indictment before a jury in Crown Court, e.g. murder, manslaughter, rape, robbery, blackmail, riot.



Triable only summarily before magistrates, e.g. road traffic offences and small damage to property.



Triable either way: magistrates initially determine, but accused can insist on indictment, e.g. theft, larger property damage.

Since ss 51 to 53 Crime and Disorder Act 1998 was enacted, there are no more committal proceedings except for ‘either way’ offences. Magistrates themselves are restricted to imprisoning for up to 6 months (may be raised to 12 months). They can commit for sentence only to Crown Court if longer sentence is desired. Magistrates control bail applications. There is usually a presumption that bail should be granted bail except for murder, manslaughter, rape etc and other very serious offences (s. 4 Bail Act 1978). Magistrates also have considerable civil jurisdiction, including the collection of crown debts (taxes etc), granting drinks and entertainment licenses, dealing with domestic proceedings and juvenile care orders. There are over 25,000 part-time JPs (generally sitting in 3) plus about 100 full-time stipendiary magistrates/District Judges (legally qualified and sitting alone) in cities. Qualified justices’ clerks provide legal advice, but decisions are taken by the JP/DJ. Magistrates/Justices of the Peace are now organized by counties plus 6 areas in London. 2.2.3 County Courts These deal with over 90% of civil actions with 400 circuit judges (generally ex-barristers, sitting alone). They are responsible, among other things, for: 

Cases generally up to £50,000

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

Some bankruptcies and winding up



Undefended divorces and ancillary orders



All Rent Act claims and recovery of possession cases



Mortgage possession proceedings outside London or foreclosure proceedings in London of not more than £30,000



Consumer credit cases under the Consumer Credit Act 1974



Race and Sex Discrimination cases, except those relating to employment



NOT Mareva (bank freezing) injunctions or Anton Piller (evidence seizure) orders.

 Since Woolf Reforms of 1999, judges are in charge of trial timetables in County Courts. The courts must show real attempt to settle out of court, through Alternative Dispute Resolution (‘ADR’).  Cases under £5,000 can be heard informally in 'small claims' court by District Judges (formerly called registrars). Cases range between £5000 and £25,000 (fast track) and must usually start within 30 weeks; and be decided on the same day.  Cases over £25,000 are multi-track; The Judge organizes how it will be heard. Larger cases will usually be heard in the High Court.

2.2.4 The Crown Court This has primary criminal jurisdiction for more serious or indictable offences. The court also hears criminal appeals from Magistrate courts. Cases may also be referred to it for sentencing by Magistrate Courts. There are about 92 Crown Court centers in the country. During criminal trials at first instance, each court is presided over a single judge sitting with a jury of 12 people. The Judge rules on the law while the jury rules on facts. However, during appeals from Magistrates Courts or committal for sentencing, the judge sits with at least 2 JPs. The 'Old Bailey' is the name of the complex of Crown Courts in Central London.

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2.2.5 High Court The court has original civil jurisdiction for higher value or more complex civil cases. The court comprises the Lord Chief Justice and over 100 puisne (pronounced 'puny') judges (generally exbarristers). A single judge normally hears the cases in a particular court. The court has three divisions: (a) Queen's Bench Division and Administrative Court – The Queen’s Bench comprises the president and about 70 judges. It has concurrent jurisdiction with the county court in cases of Contract and tort. It usually deals with the cases of the value of £50,000 or above or those involving complex disputes. The court also has exclusive jurisdiction in cases of libel and slander, as well as admiralty, and commercial disputes relating to insurance, bill of lading and negotiable instruments, The Administrative Court was created in 2000 as part of the Queen’s Bench Division as a specialist court to deal with administrative/public law matters and to supervise lower courts and tribunals. Its jurisdiction is exercised by way of judicial review. The court’s power of judicial review covers cases relating to: 

Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;



Certain decisions of the immigration authorities and Immigration Appellate Authority;



Decisions of regulatory bodies;



Decisions relating to prisoner's rights .

(b) Chancery Division – comprises the chancellor and about 18 judges. Deals with land matters, partnerships, trusts, company, probate, revenue, bankruptcy, tax appeals and specialist Patent cases. (c) Family Division made up of the president and about 18 judges. Deals with defended divorce cases, legitimacy of children and child custody cases; as well as adoption and guardianship cases. Of all cases started, 99% are settled before full trial.

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2.2.6 Court of Appeal The court of appeal is the second highest court in the land. It hears both civil and criminal appeals. The Civil Division of the court hears nearly all civil appeals (plus including those from some tribunals) and nearly all technical re-hearings. Witnesses are not normally called. Leave of the court is needed to appeal. The criminal division hears only appeals on indictable offences. It can order the quashing of convictions or a retrial, and may increase sentences imposed by the lower court. The court comprises the Lord Chief Justice (President of the Court), Master of the Rolls (Head of Civil Division) Heads of Divisions plus 40 Lords Justices of Appeal. Normally, three judges sit in two divisions.

2.2.7 The Supreme Court (formally the House of Lords) Since October 2009 the SC is the Highest Court in the United Kingdom. The SC is an appellate court; accordingly, it cannot consider a case unless a relevant order has been made in a lower court. Apart from being the final court of appeal, the court also plays an important role in the development of United Kingdom law. There are 12 justices but only five normally sit in a particular case; a majority of three may decide a matter. But a panel of 7 justices may sit on constitutional matters. The Supreme Court is the final court of appeal in the country in matters of domestic law. 

The Court hears appeals on arguable points of law of the greatest public importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases.



Additionally, it hears cases on devolution matters under the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006. This jurisdiction was transferred to the Supreme Court from the Judicial Committee of the Privy Council.



The Supreme Court also decides devolution issues, that is issues about whether the devolved executive and legislative authorities in Scotland, Wales and Northern Ireland have acted or propose to act within their powers or have failed to comply with any other duty imposed on them.

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The Supreme Court hears appeals from the: 

The Court of Appeal, Civil Division



The Court of Appeal, Criminal Division



(in some limited cases) the High Court

It also hears appeals from corresponding courts in Scotland and Northern Ireland. 2.2.8 European Court of Justice (ECJ) The ECJ is the highest court in Europe on matters of EU law. Appeals can be made there from judgments of the Supreme Court. The court was created in 1952 by the Treaty of Rome and introduced to the UK system by accession to the Community on 1st January 1973. The Court sits in Luxembourg. 27 judges (one from each member state) and 8 advocates-general, normally sit as a grand chamber of 13 judges or as panels of 5 or 3 judges. The advocates-general give reasoned impartial opinions to the court but do not participate in judgment. The European Court has jurisdiction in four areas: 

Judicial review of legality disputes (under article 173) between member states, the EU Commission, and the Council of Ministers. Individuals cannot easily bring cases unless they are specifically affected.



Commission actions against States under Art 169



Preliminary rulings on points of European Law referred by local courts under article 177. This is the way most individual complaints are heard.



Appeals from European Court of First Instance.

In 1988 the European Court of First Instance was created as part of the ECJ. The court, also comprised of 27 judges, was created to hear cases brought by individuals, companies and other organizations, and competition, and intellectual property cases.

Finally, there is also the European Union Civil Service Tribunal created as part of the Court of First Instance to disputes involving the EU and its civil servants. The tribunal is made up of 7 judges.

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2.2.9 The European Court of Human Rights (ECHR) The ECHR was created in 1958 and is the highest court in the EU matters concerning European human rights law, especially as enacted by the European Convention on Human Rights 1950. The court sits in Strasbourg, France. Cases can be taken to the court directly by individual citizens of European states who wish to challenge alleged violations of their human rights. Government of countries can also bring cases to the court to challenge non-compliance with the convention rights.

2.3 APPEALS 2.3.1 From Magistrates Court In criminal cases: 

To the Crown Court for rehearing. Cases may also be referred from the Magistrate court to the Crown Court for sentencing



To the Queen's Bench Division by the prosecution or the accused person on points of law only by way of ‘case stated’ in front of 2 judges.

In civil cases: 

To the Family Division of the High Court for domestic proceedings



To the Queen's Bench Division of the High Court for jurisdictional argument under judicial review.



To the Crown Court in cases involving betting, gaming and licensing

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2.3.2 From County Court 

To the relevant division of the High court



To Court of Appeal (Civil Division) in multi-track cases; generally needs leave of court.

2.3.3 From Crown Court 

To the Court of Appeal (Criminal Division) if indictment or committal for sentence. Leave required unless case involves matter of law.



To the Queen’s Bench of the High court by way of case stated on a point of law.

2.3.4 From High Court 

To the Court of Appeal (Civil Division) generally as of right.



To the Supreme Court by ‘leapfrog’ if both High Court and the Supreme Court accepts that the matter would otherwise be determined by existing decision of Court of Appeal and thus avoiding waste of time.

2.3.5 From the Court of Appeal 

To the Supreme Court

2.3.6 To the ECJ and the ECHR Though strictly speaking not an appeal at all, any court (even tribunals) can refer matters of European Law to the European Courts for a Preliminary Ruling. However, the application of that ruling remains a matter for the local court. Moreover, appeals may be made from the Supreme Court to the ECJ or ECHR on matters of EU law.

Dr. Lawrence E. Modeme 2013

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