English Legal System Introduction PDF

11.1a – Introduction to the English legal system: transcript The United Kingdom, formally known as “The United Kingdom of Great Britain and Northern Ireland”, is the state in which “British” people live. Northern Ireland and Scotland have separate legal systems to England and Wales. Sources of law c...

11.1a – Introduction to the English legal system: transcript The United Kingdom, formally known as “The United Kingdom of Great Britain and Northern Ireland”, is the state in which “British” people live. Northern Ireland and Scotland have separate legal systems to England and Wales. Sources of law can be primary or secondary. Primary sources are legislation and case law, while secondary sources include textbooks, commentaries by legal scholars, opinions of legal experts, and decisions of courts. The English legal system contains a combination of sources, including common law, statutes, and international law. Common law includes laws made by judges through judicial precedent. Statutes are laws made by parliament, and international law primarily refers to European Union law. The English legal system has two fundamental classifications of law. The first is between public and private law. Public law involves duties owed to – or by – the state, whereas private law involves duties owed to – or by – individuals. The second classification is between and civil and criminal law. Criminal law is a type of public law concerning the right of the state to sanction individuals, whereas civil law solves disputes between private parties. SLK SYS11.1.1a transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) What is law? Transcript What is law? We may answer this question in different ways. First, we might seek to define the word law. An obvious place to start is the dictionary. If you look the word law up, you will find that it has many different meanings, but most of them involve some use of the term rules. So, the question “what is law?” has different possible theoretical answers, but the practical answer is that it is a body of rules. Within our legal system, the legal system of England and Wales, those rules are made either by Parliament, or by judges in court. These are the rules that govern almost every aspect of our lives. The role of a lawyer is to interpret the legal rules and work out how they apply to real situations so as to be able to advise clients. A law student will study the rules, learn how to apply them to different hypothetical situations and also critique how the rules work, to be able to debate issues in the law. Legal decision making therefore involves rules, in other words the law, and applying those rules to situations or facts. This will result in a conclusion, or in a legal dispute, some kind of outcome. There is a contrast between legal practice and legal study. A practising solicitor will often specialise in a particular area of law – this might be anything from defending those accused of criminal offences, to writing wills, or advising big corporations, or conveyancing houses, or acting on behalf of those who have been injured in an accident, or who are owed a debt, or have been sacked by their employer without justification, just to give a few examples. Because of this specialism, the professional lawyer tends to have a very good understanding of the legal rules in their area of practice. Though there may be some finer points of the law they have to check, practitioners are likely to spend more time making sure they understand the exact facts of the situation their client is in, so that they can apply the legal principles to the facts in order to advise on the best course of action for their client and the likely outcome of any legal proceedings. In many cases the rules will be clear cut, and the outcome therefore fairly predictable, though there will also be grey areas. Where the situation leads to a legal dispute in court, the lawyers for each side (if they have legal representation) will seek to persuade the judge to rule in their favour by citing arguments most favourable to their case. In legal study, more time is spent on learning the legal rules, and how to research them. Law students test their understanding of those rules by applying them to hypothetical situations and learning to practice advising on the likely outcome. Additionally, the law student will spend some time debating legal issues. Questions that help us debate the law include asking what the effect of the law is, bearing in mind that there are GDL INTRO What is law transcript 2023_12_01.docx Page 1 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) many different stakeholders in the law, with often competing interests. For example, laws regulating goods and services may bring benefits for consumers, but cut into the profit margins of businesses, which affect their shareholders, and may have an impact on the jobs or pay of their employees. Laws requiring safety measures in rented accommodation might protect tenants but incur costs for landlords – who might pass those costs back to the tenant. We might also consider whether the law is discriminatory, and if so, against whom. We might consider how a law affects our rights and freedoms. For example, a law restricting demonstrations might be welcomed by people who have been inconvenienced by protesters but could also be viewed as an interference with the fundamental democratic right to protest. Sometimes, society may tolerate a higher level of interference with our freedoms because of some kind of emergency situation. During the first and second world wars, very onerous restrictions on freedom were imposed, for example conscription into the military or other essential services, which was deemed to be justified in the national interest. You will probably be able to spot a parallel here with the lockdowns and other infringements on normal life and freedoms that were imposed during the coronavirus pandemic. A matter of debate is whether these measures achieved the right balance between the competing interests of individual liberty and public health. A further consideration is the question of whether the law should regulate any particular matter at all. There are different views about how far the state should intrude into the private lives of citizens. This question is often asked about issues of morality, where it is debatable how much the state should regulate personal conduct. An example is the changes to the divorce laws brought into effect in 2022. Couples no longer have to give a reason why their marriage has broken down in order to get divorced. Whilst this change has been widely welcomed on the basis that the state should not concern itself with exactly why any particular marriage has broken down, opponents of the change suggest that giving reasons is necessary to uphold the institution of marriage. Law is around us all the time. If you look at a newspaper, or turn on the TV news, many of the stories that you read or hear will involve an aspect of the law. Sometimes this may be very high-profile reporting on important or famous court cases. You will probably be able to remember some celebrity court cases like the defamation case between actors Johnny Depp and Amber Heard, or the so-called Wagatha Christie case involving Colleen Rooney and Rebecca Vardy, the Duchess of Sussex suing a tabloid newspaper for breach of her privacy, or the pop star Britney Spears attempting to free herself from the conservatorship of her father. Cases involving the government also often attract much media attention. One famous example was the determination by the Supreme Court that it was not legal for the Prime Minister, Boris Johnson, to prorogue Parliament in August 2019. There have been a number of instances of politicians breaching different aspects of the criminal law, and these also always attract much publicity, as it is important under the rule of law that those in positions of authority obey the same laws as the rest of us. However, while a few high-profile cases attract media attention, the bulk of legal disputes take place without the glare of publicity. And the law operates in many ways without ever reaching a court, handling aspects of our lives from the houses we live in, the water that comes out of our taps, the food we eat, the clothes we wear, the phones we sign up to use, GDL INTRO What is law transcript 2023_12_01.docx Page 2 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) the tickets we buy to use public transport or the petrol we buy to fill up our cars. Laws exist to protect our privacy and reputations, to protect us from discrimination and to regulate how we may and may not behave towards other people. We have seen that law is a complex web of rules. Often, lawyers are needed to provide advice on the best way for people to organise their affairs in order to avoid any infringement of all these rules. However, when an issue arises over how these rules are interpreted between different parties, this may end in some kind of legal dispute. Sometimes such a dispute may arise over the exact wording of a legal rule and how it applies to a given situation. Legal thinking therefore may involve seeing the parts of a rule that are open to interpretation or may cause difficulty. Consider the following example. Under the Hunting Act 2004 section 1 “A person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt.” Thinking about the purpose of law in society and business, we can see that this is an example of a rule that creates a criminal offence. As a broad principle, the criminal law represents the boundary of what Parliament, on behalf of society, deems to be unacceptable conduct. The criminalisation of certain activities represents a shift in that boundary and can be controversial according to the competing interests involved. For example, the Hunting Act 2004 was intended to ban foxhunting, amongst other things. What competing interests can you think of? One obvious one is that this legislation was opposed by those who go foxhunting as a hobby or interest, and it was favoured by animal rights groups and their supporters who lobbied that foxhunting was cruel and unnecessary. Other interests you might have thought of are a number of people were reliant on foxhunting for their employment, for example those employed to care for the foxhounds of hunts; farmers or landowners might be reliant on hunting to reduce the number of foxes in the wild – or on the other hand might be opposed to it for fear that a hunt might cause damage to their land. Beyond looking at the different interests affected by the change in the law, we need to look at the law itself. As lawyers, we need to be able to advise clients on how rules apply to their particular situation. In the years following the implementation of the hunting ban, there were various legal cases arising from it. Which words in the definition do you think might need further clarification? Some possibilities you might highlight include: What exactly is a mammal? What counts as wild? Do we need to define the word dog, or is that clear? What about the word hunt? Does it require pursuing, or can it mean searching for? GDL INTRO What is law transcript 2023_12_01.docx Page 3 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) We certainly need to know what type of hunting is exempt. Some of these issues are dealt with within the statute, for example, a long list of exempt hunting is provided in Schedule 1, and there are definitions of certain words. Anything not resolved within the statute itself may end up being clarified by the courts. It is the job of the judge in such cases to interpret the meaning of any grey areas, as they apply to the facts of the case they are judging, while it is the job of the lawyers for each side, either defence or prosecution, to make convincing arguments to persuade the judge to find for their side. As well as thinking of law as rules, there is a concept called the rule of law. This too can be defined in many different ways, but broadly, it is the idea that all citizens, rich or poor, powerful or not, are bound by the same rules. Another way of putting this is to say that no one is above the law – which is what protects us from dictatorship – and that we agree to give up some of our freedoms to be governed by law – which is what protects us from anarchy. The law being transparent, accessible and clear, and applied fairly and equally, with regard to human rights and the means to resolve disputes, are all key features of the rule of law. To summarise: Law can be defined as a body of rules. Legal decision making involves applying those rules to situations or facts to reach some kind of outcome. Lawyers are needed to provide advice on the best way for people to organise their affairs in order to avoid any infringement of the rules. When an issue arises over how these rules are interpreted this may end in some kind of legal dispute. Legal thinking therefore may involve seeing the parts of a rule that are open to interpretation or may cause difficulty. GDL INTRO What is law transcript 2023_12_01.docx Page 4 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Systems and sources of law Transcript A legal system means the system of legal rules that governs a particular geographical area that shares common legal rules. This area is called a jurisdiction. These do not necessarily correspond to political boundaries. The United Kingdom has three legal systems, so different laws apply in different parts of the UK. England and Wales forms one jurisdiction, the legal system of England and Wales, though it is often referred to as the English Legal system or ELS for short. Scotland has its own legal system and courts, though civil appeals go to the Supreme Court of the United Kingdom in London, as does Northern Ireland. So, what is the difference between the Common law versus Civil Law systems of law? A common law system is named because of the importance of case law, in other words, court rulings made by judges. Originally, the common law system was entirely based around decisions made by judges, which are themselves referred to as the common law. However, since the emergence of Parliament, laws made in Parliament have also become a source of law. The key feature of a common law system, however, is even though Parliament enacts laws, the rulings made by judges refine and add to the law. This is true even when Parliament has passed a law on a particular legal subject, as the judges will then interpret what Parliament said. This means that to determine the law, in a common law system, previous cases, known as precedents, influence current ones. This is known as the doctrine of precedent. The Civil law system takes a different approach, based on Roman law. It is based on the concept of “codification”, which means setting out principles in comprehensive codes or statutes. The crucial difference is that legal cases are decided by applying the circumstances of the individual case directly to the codes. Previous rulings made by judges on the codes are not looked at. In other words, the civil law system places less importance on case law and does not operate a doctrine of precedent. As a common law system, the English Legal System therefore relies on both legislation, the law made in Parliament and cases, the law made by judges, as sources of law. Both legislation and cases are known as primary sources of law. Although all legislation is a primary source of law, legislation itself may be primary legislation or secondary legislation. Statutes or Act of Parliament, made directly by Parliament, are primary legislation. Secondary legislation consists mainly of statutory instruments, such as regulations, which are produced under authorisation from Parliament. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 1 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) As we know, case law, also called common law, is decided by judges in court. The decisions of the higher courts are reported in Law Reports, so that they can be referred to in later cases under the doctrine of precedent. Where there is no legislation on a particular area, cases are the only source of law. These are called “common law” areas of law. The law of negligence is an example, which was created by judges in a famous case called Donoghue v Stevenson. Where there is legislation on an area, it is the role of judges to interpret it. Judges refer to previous case law as a guide to deciding current cases under the doctrine of precedent, and each case decided (provided it is by a sufficiently senior court) will add to the law and be a potential precedent for the future. As judges interpret a statute, their rulings also become part of the law under precedent, so an area regulated by statute in time becomes regulated by case law as well. Statutes, where they exist, are superior to case law. This does not mean that case law is not important, but simply that under the UK constitution, judges must interpret Acts of Parliament, they are not able to ignore them, rewrite them or overrule them. Here is an example of how statute law and case law interact under the common law system and the doctrine of precedent. A care order is an order whereby a local authority assumes legal responsibility for a child, in cases where the child is at risk from their home environment. Part of the test for this is known as the threshold test, found in section 31 of the Children Act, which states that the child concerned is suffering, or is likely to suffer, significant harm. Take a moment to look at this test and consider which if any of these words might be open to interpretation. In fact, almost all these words have been interpreted either by statute or case law. The Children Act itself provides additional definitions of: Child as “a person under the age of eighteen” (section 105) harm as “ill-treatment or the impairment of health or development (in section 31(9)) and each of these words is then also further defined. “likely” is defined by case law as meaning a “real possibility”: Re H & R (1996) “significant” was defined in Humberside County Council v B 1 FLR 257 as considerable, noteworthy or important. The word “is” might not seem controversial, but it arose in the context of a child who had been removed to a place of safety in an emergency and therefore was temporarily safe: Re M (A Minor)(Care Orders: Threshold Conditions) 2 AC 424 found that the use of the present tense did not mean that the child still had to be at risk at the exact moment the care order was sought. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 2 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) What marks out a common law system is that under the doctrine of precedent all this additional interpretation is taken into account where relevant in future cases. So, a legal practitioner must be able to research and apply a combination of statutory law and case law in order to advise clients. To summarise: The key feature of a common law system is even though Parliament enacts laws, the rulings made by judges refine and add to the law. A civil law system, on the other hand, is based on the concept of “codification”, that is, setting out principles in comprehensive codes or statutes. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 3 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Classifications of law Transcript In this podcast, we will explore how law can be classified. The first classification that can be made is to divide law into civil or criminal. In broad terms the distinction between these terms is that civil law resolves disputes known as claims or actions (or suits) not involving a crime, to assess liability. The criminal law regulates behaviour that the state, on behalf of society, deems wrong. This is done by creating offences and assessing the guilt of those prosecuted. Criminal law is generally easier to recognise, but if it isn’t criminal then it must be civil. Sometimes, the same set of circumstances might lead to both criminal and civil proceedings. Imagine a road traffic accident caused by someone’s negligent driving, in which a pedestrian is injured. The pedestrian may sue the negligent driver for damages in respect of their injuries. That would be a civil case. The driver might also be prosecuted for a driving offence. That would be a criminal case. Civil cases are usually brought by a claimant or applicant (formerly known as the plaintiff, or sometimes a petitioner). The focus in civil cases is an appropriate remedy which is most commonly financial compensation in the form of damages. The case name will usually be written down as the name of the Claimant v the name of the Defendant (for example, Donoghue v Stevenson) The “v”, which stands for versus, is pronounced “and” when spoken out loud, so Donoghue AND Stevenson. Criminal cases are brought by the Crown Prosecution Service who make a decision whether to proceed based on evidence supplied by the police. Before the Crown Prosecution Service was created in 1986, cases were brought by the police. Criminal cases take an adversarial approach which means that each side has the opportunity to present their side of the case, rather than “inquisitorial”, which is where the judge asks questions to try and establish the truth of what happened (this happens at inquests in the English Legal System). Offenders are prosecuted with a view to sentencing those who are found guilty. There are various forms of punishment, ranging from a prison sentence to a fine or some form of community order. The case name is usually written R v Name of Defendant (for example, R v Smith). The R denotes the Crown – it actually stands for Regina, meaning Queen, or Rex meaning King. The “v” is pronounced “against” when spoken out loud. GDL INTRO Classifications of law transcript 2023_12_01.docx Page 1 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) The criminal law regulates behaviour that the state considers wrong by creating offences. Offences are classified into three types, from the most serious to the least serious. These are: 1. Offences triable on indictment, which are tried in the Crown Court, generally before a judge and jury. Examples are murder and rape. 2. Offences triable either way, which are intermediate offences, and may be tried either in the Crown Court or in a magistrates’ court. Examples are theft and burglary. 3. Offences triable summary only, which are the least serious offences and are tried in magistrates’ courts. Examples include shoplifting and careless driving. Civil law can be further classified into either private law or public law. Private law involves disputes between individual citizens or companies. Public law on the other hand resolves disputes between a citizen and the state in some form, such as a local council or a public body. Private law can be further classified into a number of branches of law. By branches we mean the law regulating a particular topic or subject matter of law. Examples include contract law, tort, company or business law, property law, employment law, and so on. Some branches of law are a hybrid of public and private, for example family law. Imagine parents going through a divorce and disputing which of them their children should live with afterwards – that dispute involves individuals, the parents, so it would be private law. They might also dispute how to settle their financial arrangements after the divorce. That would also be private law. But consider a local council taking emergency action to remove a child who is at risk of harm at home – the council is a state authority so this is public law. Environmental law is another example of a hybrid branch of law. Two of the most important private branches of law are contract and tort. The difference between the two was illustrated in one of the most famous cases in English legal history, the case of Donoghue v Stevenson, which arose from a situation that happened in Paisley in Scotland in 1928. May Donoghue met a friend of hers in a café owned by a man called Mr Mingella. Her friend bought her something called an ice cream float, which is ice cream with ginger beer poured on top of it. The ginger beer was brought in an opaque bottle. As May Donoghue poured out the last of the ginger beer from the bottle, having already consumed most of its contents, a decomposing snail fell out of it. She claimed to have suffered from gastroenteritis as a result. We can use the circumstances to explore the difference between contract and tort law. A contract is made when there is an offer by one party, often for goods or services, that is accepted by the other party, and what is called consideration (usually that simply means paying for the goods) is given to make a binding agreement. If the goods are faulty in some way then there may be an action for breach of the contract, and perhaps for further damages. Contract law however in this circumstance did not help May Donahue. That is because the contract here was between the cafe owner as the seller and the friend as the buyer. Donoghue did not have a contractual relationship with the cafe owner. What she wanted to do was establish a relationship in the law of tort by proving negligence, in order to claim compensation. However, the cafe owner had not been GDL INTRO Classifications of law transcript 2023_12_01.docx Page 2 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) negligent. All he had done was open up the sealed bottle and bring it out with the ice cream. May Donoghue's claim was therefore that the manufacturer of the bottle, a Mr Stevenson, had been negligent. At that time, there was no established law of negligence. Therefore, this case went to the House of Lords, which was then the most senior court in the United Kingdom at that time, on the question of whether a manufacturer owed a duty of care to the ultimate consumer of products they manufactured, where the consumer was harmed. In other words, was there even a legal basis to the proposition that Stevenson should have taken sufficient care to make sure there were no snails in the bottle that Donoghue consumed. The House of Lords decided that the manufacturer did owe such a duty, founding the law of negligence at common law. This shows that different branches of the law create different types of legal relationship, and the disputes and remedies available will also vary. This case also illustrates another important legal concept, which is the difference between matters of law, sometimes also called principles of law, and matters or questions of fact. The House of Lords did not make a finding that Stevenson had definitely been negligent. They did not examine the facts of the case, as it is not their job as the most senior appeal court, to look into facts. Their role is to establish the law, so they determined as a matter of principle, that a manufacturer in these circumstances owes a duty of care to the consumer of the product. In other words: Stevenson did owe a duty to Donoghue to avoid snails getting in the bottle. The Law Lords then sent the case back to the trial court to determine what had happened, in other words whether Stevenson had breached that duty as a matter of fact. In other words: was there a snail in the bottle, and if so, was it because Stevenson had not taken sufficient care? In fact, Mr Stevenson died before this could happen and his executors settled the claim without going back to court. Technically therefore it was never actually proved that there was a snail in the bottle. But this doesn’t matter, because of the principle of law that the case established. We know that under our common law system, cases are important as precedents for later cases. Donoghue v Stevenson is one of the most important precedents ever established in the English legal system. It has been used in hundreds of cases since and applied to situations far beyond the manufacturers of consumable goods and alleged snails. Another important concept is the burden and standard of proof. Burden and standard of proof determine who has to prove what in any legal case. The burden of proof means who has the responsibility to prove their case to the court, and the standard of proof is how convincing their evidence must be. In a civil case, the burden of proof is on the claimant, and the standard of the proof is the balance of probabilities (in other words, that it is more likely that what they are claiming happened). In a criminal case, the burden of proof is on the prosecution, who must prove the guilt of the defendant beyond reasonable doubt. This standard of proof is much higher, as you would expect in a criminal case. To summarise: Law can be divided into civil or criminal. GDL INTRO Classifications of law transcript 2023_12_01.docx Page 3 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner)  Civil law resolves disputes not involving a crime. Criminal law regulates behaviour that the state, on behalf of society, deems wrong. Civil law can be further classified into either private law or public law. Private law involves disputes between individual citizens or companies. Public law resolves disputes between a citizen and the state. Private law can be further classified into a number of branches of law. Two of the most important private branches of law are contract and tort. GDL INTRO Classifications of law transcript 2023_12_01.docx Page 4 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) 11.1d – The Judiciary: transcript The three branches of state in the United Kingdom are the executive, legislative and judiciary. The judiciary is independent from the legislature and the executive branches of government, and resolves three general types of conflict: conflict between state institutions conflict between state institutions and individuals, and conflict between individuals. The Constitutional Reform Act 2005 introduced some notable changes to the judiciary. The Act imposed a statutory duty on the Lord Chancellor and government ministers to uphold the independence of the judiciary. The Act also led to the creation of the Supreme Court and the Judicial Appointments Commission, which selects candidates for judicial office in England and Wales. SLK SYS11.1.1d transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) The court hierarchy Transcript We are going to examine the court hierarchy, which means the structure of courts in the English Legal System. This diagram shows the current domestic court hierarchy in England and Wales. Most courts have both criminal and civil jurisdiction (although may have much more of one than the other). Courts may also have a “first instance”, also called an “originating” jurisdiction, or an appellate jurisdiction. First instance means the first court to decide or rule on the case (sometimes called the “trial court”). These are generally the lower courts in the hierarchy – the Family Court, the county courts, and the magistrates’ courts. This is where the bulk of legal work is conducted. Appellate means hearing appeals on the decisions made at first instance from the lower courts or appeals from appeals from the lower courts. Appellate courts are those at the top of the hierarchy – the Supreme Court and the Court of Appeal. The Crown Court and the High Court combine being the trial court or court of first instance in some cases with an appellate function hearing appeals from the lower courts in others. The Supreme Court is the most senior appeal court and hears appeals that are of particular legal or public importance. It is located in London and is the final civil appeal court for the whole of the United Kingdom and the final criminal appeal court for England, Wales and Northern Ireland. There are up to 12 judges in the Supreme Court, who are referred to as Justices, headed by the President of the Supreme Court. GDL INTRO The court hierarchy transcript 2023_12_01.docx Page 1 of 5 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) The Court of Appeal is also located in London and is the next most senior appeal court and handles more appeals than the Supreme Court. It is divided into a Civil Division, headed by a judge called the Master of the Rolls, and a Criminal Division, headed by the Lord Chief Justice. The judges are referred to as Lord and Lady Justices. The High Court has a dual function as both an appeal court and a first instance court, and three divisions – the Family Division, the Chancery Division and the King’s Bench Division, which handle different types of work. The High Court is also based in London, but has eight regional centres, in major cities in England and Wales. There are also a number of specialist courts, sometimes called “lists” within the Chancery Division and the King’s Bench Division. The specialist courts in the Chancery Division, include the Property, Trusts and Probate List, the Insolvency and Companies List, the Revenue List, the Business List, the Intellectual Property List, the Competition List and the Financial List. Together with three specialist courts of the King’s Bench Division, the Admiralty Court, the Commercial Court and the Technology and Construction Court, these are grouped together for organisational purposes under the umbrella title of The Business and Property Courts. Another important court that falls within the King’s Bench Division is the Administrative Court. The judges in the High Court are simply called High Court judges, though they used to be referred to as Puisne judges. The Crown Court also has both an appellate and trial function, and it sits in locations all over England and Wales. The most famous one is the one in London, called the Central Criminal Court, more familiarly known as the Old Bailey. The judges who mainly sit in the Crown Court are called Circuit judges, but the most serious trials will be conducted by High Court judges. The Family Court and the County Court are both civil first instance courts, with multiple locations. District judges, and sometimes circuit judges, sit in the County Court. District judges and circuit judges also sit in the Family Court, alongside specially trained Justices of the Peace. Magistrates’ courts are local courts which deal mainly with minor criminal matters. Judges in the magistrates’ courts are called Justices of the Peace. Commonly, they do not have legal qualifications and are unpaid. They sit in panels, advised by a legally qualified clerk. Some larger magistrates’ courts also have professional, legally qualified judges called District Judges. This diagram shows the main courts of the Criminal Justice system in England and Wales. GDL INTRO The court hierarchy transcript 2023_12_01.docx Page 2 of 5 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Criminal cases are tried in either the magistrates’ courts or the Crown Court. The magistrates’ courts try less serious offences, called summary offences, and sentence those who plead guilty to summary offences. The Crown Court tries more serious cases, called indictable offences. Either way offences, those in between, may be tried in either court. All cases begin in the magistrates’ courts. Indictable offences are transferred to the Crown Court. For either way offences, the defendant will choose whether proceedings should be transferred to the Crown Court, though the magistrates can override a defendant’s decision to be tried by the magistrates and commit the defendant to the Crown Court. A trial on indictment in the Crown Court takes place in front of a judge and jury, which is probably the popular image associated with court proceedings. This only takes place when the defendant pleads not guilty to the offence, because the purpose of the trial is to determine guilt. If the defendant pleads guilty, then they will be sentenced in the Crown Court without a trial. Because the Crown Court has greater sentencing powers than the magistrates’ courts, a defendant convicted in a magistrates’ court may also be transferred to the Crown Court for sentencing, if the magistrates feel the punishment should exceed their own powers. The Crown Court also hears appeals against conviction and sentence from the magistrates’ courts. Cases may also be appealed from either the magistrates’ courts or the Crown Court to the Administrative Court within the King’s Bench Division of the High Court, but only on a point of law. This is called an appeal by way of case stated. Other appeals from the Crown Court go to the Court of Appeal Criminal Division. A further avenue of appeal in criminal cases is to the Court of Appeal, Criminal Division or to the Supreme Court. Appeals by way of case stated that have been heard in the High Court may be further appealed directly to the Supreme Court. Cases that have been appealed from the magistrates’ court to the Crown Court may be further appealed to the Court of Appeal Criminal Division (and possibly then to the Supreme Court). GDL INTRO The court hierarchy transcript 2023_12_01.docx Page 3 of 5 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) This diagram shows the main courts of the Civil Justice system in England and Wales. Civil cases may begin at first instance in a variety of different courts, depending on their subject matter and complexity. Civil claims in contract and tort will either be heard in the County Court, if they are of low value or complexity, or alternatively in the King’s Bench Division of the High Court, if they are of higher value or complexity. Those that are heard in the County Court at first instance may be appealed to the King’s Bench Division. Broadly, the equivalent is true of land and succession claims between the County Courts and the Chancery Division of the High Court. Most family cases are heard at first instance in the Family Court, though a few types of case of particular complexity are reserved for hearing at first instance in the Family Division of the High Court. The Family Court is unusual in that it also hears appeals from some of its own first instance decisions, if they were made by a judge of lower rank. The appeal is to a judge of higher rank. First instance cases heard by a judge of higher rank in the Family Court may be appealed to the Family Division of the High Court. Appeal from the Family Division of the High Court is to the Civil Division of the Court of Appeal, and potentially to the Supreme Court. As we have seen, magistrates’ courts are mainly criminal. They do have a very small civil jurisdiction, for example in relation to the granting of licenses to serve alcohol. This diagram shows the court hierarchy as it was until the creation of the Supreme Court of the United Kingdom on 1st October 2009. GDL INTRO The court hierarchy transcript 2023_12_01.docx Page 4 of 5 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Prior to that, the most senior court was called the House of Lords, or more properly the Appellate Committee of the House of Lords. This was a court technically constituted within the upper chamber of Parliament. The Constitutional Reform Act 2005 abolished the House of Lords as a court and created the new Supreme Court in order to separate the judicature from the legislature. However, the existing judges of the House of Lords, who were called Lords and Ladies of Appeal in Ordinary, or Law Lords for short, became the new Justices of the Supreme Court. The reason why it is still important to know about the House of Lords as a court, even though it no longer exists, is because of the doctrine of precedent. Under our common law system of law, previous rulings of the judges are important guides to how current cases should be decided, and in some situations are binding. The more senior a court is in the hierarchy, the more important its decisions are under the doctrine of precedent. Decisions from the House of Lords before 2009 have the same value as precedents as decisions of the Supreme Court since 2009. Note also that before the creation of the Family Court, magistrates’ courts had a specialist section called Family Proceedings courts, but this jurisdiction was entirely transferred to the Family Court. To summarise: Most courts have both criminal and civil jurisdiction. Courts may have a “first instance” or an appellate jurisdiction. The Supreme Court is the most senior appeal court and hears appeals that are of particular legal or public importance. Other courts in the hierarchy include: the Court of Appeal, High Court, Crown Court, Family Court, County Court and magistrates’ courts. GDL INTRO The court hierarchy transcript 2023_12_01.docx Page 5 of 5 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Courts outside the domestic legal system Transcript Some decisions of courts outside the legal system of England and Wales are relevant to judicial decision-making by our courts. First, the Justices of the Supreme Court of the United Kingdom also sit as judges of the Privy Council, or more fully, the Judicial Committee of the Privy Council. This court functions as the highest final court of appeal for some jurisdictions outside the UK, including a handful of Commonwealth countries, British territories and Crown dependencies. Nothing that the Privy Council decides is technically binding on courts within the English Legal System, but a Privy Council case may be cited as a precedent and given that they are decided by the same judges as our own most important court, Privy Council cases are often given significant weight. Second, the European Court of Human Rights, based in Strasbourg. Not to be confused with anything to do with the European Union, this court adjudicates on the interpretation of the European Convention on Human Rights. Under the UK’s own Human Rights Act 1998, convention rights can be pleaded directly in the UK courts, so decisions of the European Court of Human Rights may be used as guidance on the interpretation of the convention rights. Before the Human Rights Act, the UK was a signatory of the Convention and UK citizens had to take human rights issues directly to the Strasbourg court, once all domestic avenues had been exhausted, rather than being able to plead them directly in the UK courts. The decisions of the Strasbourg court are not legally binding but they are persuasive. Note that the influence of this court wasn’t affected by Brexit. In contrast, the European Court of Justice, based in Luxembourg, is the judicial arm of the European Union, so the influence of this court was affected significantly by Brexit. While the UK was a member of the European Union, between 1973 and 2020, the European Court of Justice’s rulings were binding on the UK. After the UK left the European Union on 31 January 2020, the European Court of Justice retained its jurisdiction during the transition period, which ended on 31 December 2020, at which point it was no longer binding in England and Wales. Of course, many decisions of the European Court of Justice have been considered in the UK courts while the UK was under its jurisdiction, and these still stand as domestic precedents where relevant. GDL INTRO Courts outside the domestic legal system transcript 2023_12_01.docx Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Lawyers as professionals Transcript Imagine a knock at the door. You open it to discover the police outside, with a warrant for your arrest because they say you have committed a crime. Beyond shock, one of your first thoughts is very likely to be that you need to call a lawyer. We often need lawyers when things go wrong in our lives. Being accused of a crime is an extreme example but many more people go through a marital breakdown, are wrongfully dismissed at work, suffer an injury in an accident, are discriminated against, or get into some kind of dispute with a neighbour during their lives. Even if none of these situations ever happen to you, you may need non-contentious advice over buying a house, writing a will or setting up a business, for example. We are dependent on lawyers because they have an expertise and experience that we lack: whatever legal problem it is that we have, we turn to them in the hope and expectation that they will be able to fix it – usually, of course, in return for a fee. The character of the dutiful lawyer, going above and beyond to achieve justice is a familiar one in fiction, from Atticus Finch to Perry Mason. Just as familiar, though, is the fictional corrupt, incompetent lawyer. The legal profession does not have a universally good reputation. Sometimes lawyers are perceived as fat cats, out of touch with ordinary people. The term “ambulance chaser”, meaning a lawyer actively pursuing being hired in the wake of an accident, is at best a joke and at worst an insult. Sometimes the accusation is made that lawyers make laws difficult simply in order to create work for themselves. Lawyers are sometimes blamed for increasing conflict in order to stoke up litigation, when in reality lawyers tend to invest considerable effort and advice in avoiding litigation. So, there are mixed feelings about lawyers. What is the point of lawyers? Do we really need them? The examples already given demonstrate that we do, because we need their help and expertise in the provision of a wide variety of legal services. But there is a tension between the idea of a profession being open and accessible to its clients and yet being valued for that very expertise that its clients do not possess. Even if the law were more accessible, and statutes simplified, this would not replace the need for those experienced in interpreting those rules and providing advice. If that wasn’t the case, if the law was simple, legal professionals would not need to undertake onerous qualifications in order to be equipped to advise clients, and their advice would not command fees in the marketplace. Mystique around law, and its application, is therefore a double-edged sword in terms of the reputation of lawyers. The fact that we depend on lawyers raises a significant issue in relation to the rule of law: that the price of lawyering does not place access to justice beyond the reach of those who need it. In recent years, there has been a rise in people acting for themselves, without legal representation – called litigants-in-person – as the availability of legal aid funding has been reduced. Not only does this raise questions about the rule of law, and access to justice, but it has been suggested that in practical terms an increase in litigants-in-person is counter- productive because it increases the length, and therefore expense, of legal proceedings. GDL INTRO Lawyers as professionals transcript 2023_12_01.docx Page 1 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) The writer Jonathan Herring, in his book Legal Ethics, argues that there is another angle to why we need lawyers. He says: It is important to recognise the political role that lawyers can play. Most obviously this can be through ‘cause lawyering’ – that is, bringing legal actions for political purposes. Lawyers can play an important role in holding the government to account and ensuring the protection of the rights of citizens…Lawyers also have a political role in public debates. Their contributions to proposals to change the law and in political debates are listened to seriously… So, as well as helping individuals, lawyers play a role in wider society. Lawyers have considerable power. But they may also protect us against the inappropriate use of power by others. Lawyers are part of a profession. But law firms are also businesses. Therefore, there is a potential conflict between the need to give a good service and the need to make a living. To manage this conflict, legal professionals are regulated by professional bodies, for example for solicitors, the Solicitors Regulation Authority, or SRA. Lawyers must undergo rigorous qualification before setting themselves up to provide legal services. Again, there is some tension here: on the one hand, onerous entry requirements and regulation are there to make sure clients get the best possible services, but in return, having made that effort (and likely incurred expense) to qualify, lawyers might argue that they should be rewarded with a monopoly on provision that protects them from being undercut by cheaper, less qualified services. Lawyers may resist competition on the basis of quality, but also from the motivation of wanting to retain both prestige and income. As well as entry requirements, and the maintenance of quality standards, a vital characteristic of a professional is that they are bound by ethical considerations. The different professional bodies of the legal profession, including the SRA, require their members to abide by codes or principles of conduct, which spell out their duties as members of the profession. One important duty is that of confidentiality. It is obvious to see why this is important. Just as we have to trust our doctor not to share our personal medical details with anyone else, we need to trust lawyers with details of our lives that may be equally personal. We must be honest with our lawyer, or they cannot advise us. In return, they must treat that information confidentially, within reason. However, lawyers do not only have duties to their clients but also to the public at large, to the profession, and to the court. Occasionally this may cause a conflict. Your lawyer will maintain confidentiality with your information but not, for example, if you confide in them that you have committed a crime. In such a case, not surprisingly, the duty to society, and to justice at large, takes precedence. This example of a conflict of interest is relatively straightforward to resolve. However, there are many more complex ethical issues where it may be much less obvious that a conflict of interest has arisen, or may arise. It is absolutely essential for lawyers, as professionals, to be very familiar with all aspects of the professional ethical requirements they are subject to, in order to maintain their professional standing at all times. GDL INTRO Lawyers as professionals transcript 2023_12_01.docx Page 2 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Changes in legal services Transcript The legal profession and the way in which it operates has undergone a gradual but significant change over the last half century. Let's start by thinking of the traditional perception of the legal profession, and then we can think about how it has changed. The traditional model of the legal profession is of barristers and solicitors. Barristers historically were the legal professionals who appeared in the senior courts representing clients, whilst solicitors were the ones who worked in offices providing legal advice. Barristers were considered to be more specialist, whereas solicitors might advise clients over a greater range of areas. In the last half century, this model has changed significantly through a series of statutory reforms that have gradually shifted the boundaries of how the legal profession is regulated and operated. In the 1960s a third branch of the legal profession developed, called legal executives. They have attained the hallmarks of a profession with set qualifications and regulation by a professional body, the Chartered Institute of Legal Executives. Judges may also be regarded as legal professionals, but the UK legal system is slightly unusual in that being a judge is not a separate career path. In order to be a judge you must have qualified in one of the other areas of the profession and then progressed to being a judge. Traditionally judges were appointed from the ranks of barristers, but that has been changing too, with more solicitors, and some legal executives, becoming judges, though the senior judiciary is still mainly populated by former barristers. Over the past 40 years there has been a series of legislative changes that gradually changed the way that legal services are operated. The overall trend during this period was to break down monopolies within the legal profession. Some areas of work confined to one type of lawyer were opened up to other lawyers, and some areas of work were no longer confined to lawyers at all. For example, the right to appear to represent clients in the higher courts, called a right of audience, was originally confined to barristers, but since the Courts and Legal Services Act 1990 it has been possible for solicitors and legal executives to obtain qualifications to enable them to exercise the right of audience in the higher courts. This gradual reduction in the monopoly of the legal profession has gone further: instead of just changing the boundaries of what work each branch of the legal profession could do, there are some areas of work that previously could only be carried out by legal professionals in the narrow sense, that can now be carried out by legal professionals in a broader sense. So, for example, since the Administration of Justice Act 1985, licensed conveyancers have been able to carry out conveyancing work that was previously confined to solicitors. And licensed conveyancers are now regarded as legal professionals too. In other words, what we mean by the term “legal professional” has changed. A legal professional may be a solicitor, a barrister, a legal executive, a licenced conveyancer or a patent attorney, for example. The objective of all these changes was to improve matters for consumers. By reducing monopolies and increasing competition, this may reduce prices for consumers, but there is a risk that quality might be lost. Careful attention must be paid to sufficient regulation to ensure quality service whilst at the same time avoiding monopoly situations that potentially inflate prices. GDL INTRO Changes in legal services transcript 2023_12_01.docx Page 1 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) The Legal Services Act 2007 sought to balance the need for sufficient regulation to ensure quality, with the continuing desire to de-monopolise and broaden provision of services. It constituted a significant change to the way in which legal services are delivered. The aim of enhancing quality and standards is illustrated by the creation of a so-called “super regulator”, the Legal Services Board, which oversees the professional regulators of all the branches of the legal profession. It also has responsibility for the imposition of consistent standards and ethical principles across those branches and imposes duties in respect of monitoring and reporting. On the other hand, the aim of deregulating and increasing competition can be seen in the opening up of some areas of legal work previously reserved to legal professionals, and in the introduction of what are called alternative business structures, abbreviated to ABS, which allow businesses other than legal firms to offer legal services. This opened up the potential for multidisciplinary businesses involving lawyers. At the time, this strand of deregulation was often given the nickname of Tesco law, meaning that in future a supermarket could potentially enter the market of offering legal services, provided that they were sufficiently authorised to do so. However, the Tesco law label turned out to be something of a misnomer, as the supermarket Tesco did not utilise the opportunity to develop legal services, although another supermarket, the Coop, did. This deregulation has also seen a rise in the number of legal services that can be obtained online, for example divorce services, and will writing, amongst others. There has also been an expansion in the amount of work done by paralegals particularly in respect of repetitive legal work. As a result of all these changes, the landscape of legal services looks very different now. GDL INTRO Changes in legal services transcript 2023_12_01.docx Page 2 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) 10.1.1 – Introduction to solicitors’ regulation: transcript The legal profession is closely related to concepts of integrity and requires its members to act in an honest manner. Solicitors have both ethical and moral obligations to the court and to their clients. The Legal Services Act 2007 has brought a lot of change to the operation of the legal sector and has altered the way in which lawyers are regulated. The Act held that lawyers should not be self-regulated, to ensure that public confidence in the legal profession. The Solicitors Regulation Authority is the regulatory body, which is approved by the Legal Services Board in line with the Legal Services Act 2007. The SRA aims to ensure solicitors and legal practices meet SRA standards, and takes disciplinary action where solicitors and legal practices do not meet SRA standards. The SRA upholds the rule of law and the administration of justice by: setting standards of behaviour for the legal profession as outlined in the SRA Standards and Regulations, formerly known as the Handbook regulating and enforcing compliance of established standards, and overseeing the education and training of solicitors. The SRA also has a register of all the solicitors and solicitors’ firms that it regulates. The register can easily be accessed via the SRA’s website. SLK SERV10.1.1 transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) 10.1.2 – SRA principles: transcript As part of its regulatory functions, the SRA has created various rules and regulations that solicitors and law firms must adhere to. The SRA Standards and Regulations contain seven fundamental principles that outline ethical behaviour expected from legal professions. The principles state that a solicitor must act: in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons with independence with honesty with integrity in a way that encourages equality, diversity and inclusion, and in the best interests of each client. Where a conflict between seven principles arise, those which safeguard the “wider public interest” (will take precedence over those which safeguard an individual client’s interest. The seven principles apply to both inside and outside of practice, such an in a solicitor’s private life. The SRA operates as a risk-based regulator. A risk-based regulation means that regulatory bodies like the SRA can prioritise its regulatory mechanism and use its resources proportionately. For the purposes of the SRA’s risk-based regulation, risk is defined by considering the impact of a certain event occurring, as well as the probability of its occurrence. SLK SERV10.1.2 transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) 10.1.3 – Reserved Legal activities: transcript Under Part 3 of the Legal Services Act 2007, only certain individuals and businesses are permitted to exercise reserved legal activities. The six reserved legal activities are: the exercise of a right of audience the conduct of litigation reserved instrument activities probate activities notarial activities, and the administration of oaths. The professionals who can be authorised to carry out reserved legal activities under the Legal Services Act 2007 are solicitors, barristers, legal executives, licensed conveyancers, patent attorneys, trademark attorneys, costs lawyers, notaries, and chartered accountants. Each of these professions are regulated by their equivalent regulatory bodies. Providers that are not authorised and regulated under any legal sector or other specific legislation can provide legal services as a significant focus of their work. Unregulated legal services providers operate outside the areas of reserved legal activities under the LSA, areas such as will writing and estate administration, family, intellectual property, and employment. The Legal Services Act 2007 also provides exemptions to certain persons who can practice reserved legal activities even if they do not fall within the category of authorised persons. SLK SERV10.1.3 transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) 11.1b – Rights of audience: transcript The right of audience is a right to appear and conduct proceedings in court. In the past, barristers had rights of audience in every court in England and Wales, while solicitors only had rights of audience in the magistrates' and county courts. However, with the enactment of the Legal Services Act 2007, solicitors were granted a wider range of rights in relation to court appearances. Changes affecting lawyers and the legal system generally reflect wider changes in society and politics. The trend of liberalisation is evident within the legal profession, just as it is evident in society today. Key legislation like the Courts and Legal Services Act 1990, Access to Justice Act 1999, and Legal Services Act 2007 have changed the landscape of legal services. Such regulatory changes have the aim of liberalising the provision of legal services and making access to justice more transparent. The statutory scheme for granting rights of audience was formerly set out in the Courts and Legal Services Act 1990 and is now found in the Legal Services Act 2007. This current act is designed with a view to maintaining the proper and efficient administration of justice. This means that although there is a discretionary power, it is a limited one. The Legal Services Act 2007 provides for a new regulatory framework for the provision of legal services. Part 3 of the Act lists reserved legal activities and defines who may carry them out. The regime is qualification-based, not profession-based. Approved regulators, whose functions are set out in Part 4 of the Act, authorise and regulate persons to carry on reserved legal activities. Notably, advocacy is a reserved legal activity. The Legal Services Act 2007 recognises that in certain circumstances, a person who is not authorised in accordance with the statutory scheme to exercise rights of audience may nevertheless do so. Such “exempt persons” are permitted to exercise the right of audience subject to Section 19 and Schedule 3 paragraph 1. Courts also have the power to grant a right of audience to a particular person for a particular case. The leading case here is D and S, where the Court of Appeal held that the Courts and Legal Services Act 1990 gives the court a discretionary power to grant a special right of audience in particular proceedings. However, the court further held that this is a power designed to be exercised on a case-by-case basis and that it is not a way of granting rights of audience generally. SLK SYS11.1.1b transcript 2021_07_22 Page 1 of 1 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) 11.1c – The doctrine of precedent: transcript In England and Wales there is a doctrine of binding precedent. The Latin term for this concept is stare decisis, which literally means “to stand by previous decisions”. In effect, this means that statements of law made in one case will be binding on later cases, provided there are no relevant factual distinctions between the cases. At the end of every case, there will be a judgement. Judgement is usually given in the form of a speech made by the judge, who will provide the outcome of the issues raised in the case and explain the reasons for the decision. In their judgements, judges usually provide a summary of the facts of the case, a review of the arguments and an explanation of the principles of law used to make the decision. These principles of law are the important part of the judgement and are known as the ratio decidendi, which means the rationale for the decision. This part of the judgement, known as binding precedent, forms case law. The principle must be followed by courts of lower authority - and sometimes of the same authority - in deciding later cases with similar issues. Parts that are not a factor in the judge’s reason for deciding the case are called obiter dicta (literally meaning “other things said”) and include discussions of hypothetical situations. Ratio decidendi is the most important statement of the law in the case. The decision in a case is guilty or not guilty in criminal proceedings, and liable or not liable in a civil proceeding. This is the outcome of the case and is usually what litigants and their lawyers want to know. However, observing lawyers want to know the reasoning, or ratio, which comes from the court’s application of the law to the material facts. This is the “law” in “case law”. Courts are never bound by courts of a lower level. Instead, all courts are bound by superior courts, that is, courts above them in the court hierarchy. The reason for this is to ensure consistency and to reinforce case law. Some courts, such as the Court of Appeal and High Court), are usually bound by their own previous decisions. The reason for this is to reinforce consistency in their jurisprudence, unless necessary for reasons of justice. The House of Lords (now the Supreme Court) was bound by its own previous decisions until 1966 when Lord Gardiner announced a change of practice through The Practice Statement 1966. This statement provided that although the Lords would treat its decisions as normally binding, it would depart from these when it appeared right to do so. Although rarely used, this gave the court flexibility to develop its practice alongside changes in society and those of judicial decisions alongside the morals and expectations of the community. Decisions by one division of the Court of Appeal will not bind the other division, although within each division, decisions are normally binding. Exceptions to Court of Appeal can be found in the case of Young and Bristol Aeroplane. A lower court must normally apply or follow an earlier ruling of a higher court. The only way to disagree is to distinguish that ruling. That is, to show that the facts of the case at hand are materially different to those in the established precedent. SLK SYS11.1.1c transcript 2021_07_22 Page 1 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) A higher court can approve the decision of a lower court, or it may disapprove or overrule the decision, if they disagree. The latter occurs when a principle laid down by a lower court is declared incorrect and not followed by a higher court in a different, later case. In such cases, the higher court will set a new “correct” precedent. If a case is appealed from a lower court, the higher court can confirm or affirm the decision of the lower court if the appeal is dismissed. However, if the appeal is allowed, the decision of the lower court will be reversed, and if it is a criminal case, the sentence may be quashed. SLK SYS11.1.1c transcript 2021_07_22 Page 2 of 2 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2021 (used under licence from the copyright owner) Precedent and case law Transcript In this podcast we will consider the doctrine of precedent. So, what does precedent mean? The Oxford English dictionary defines it as: “a previous instance taken as an example or rule by which to be guided in similar cases or circumstances; an example by which a comparable subsequent act may be justified.” This dictionary definition of precedent works pretty well to show what precedent means to a lawyer: essentially the doctrine of precedent determines the extent to which the outcome of a case is influenced by previous cases. This is important in a common law legal system, like the legal system of England and Wales, because judicial rulings contribute directly to the making of the law. The reason precedent is seen as important is because it is a feature of the rule of law that like cases should be treated alike – it is only fair and just that we could expect to be judged in the same way as someone else in the same circumstances. Without some notion of precedent, and trying to do the same as what has been done before, the legal system might appear to be arbitrary and unfair. Thinking about precedents in a legal sense, meaning the previous rulings made in court, precedents may be “binding” or “persuasive”. A binding precedent means one that must be followed by a later court. A persuasive precedent is one that is likely to influence a later court but does not have to be followed in the way that a binding precedent does. So, in order to advise clients, lawyers must be able to work out whether any relevant precedent cases are binding or persuasive. The concept of binding precedent is called by a Latin term, stare decisis, which can be translated as stand by the decision. Under the principles of stare decisis, whether a precedent is binding will depend on, first of all, the place of the court that decided the precedent within the court hierarchy, since generally higher courts bind lower courts. Secondly, it will depend on the nature of the principle from the precedent case that is relevant to the case under consideration. This is where matters get slightly more complicated. Only the principle of law that was crucial to how a precedent case was decided can ever be binding on a future case. This principle also has a Latin name, the ratio decidendi, or ratio for short, which translates as the reason for the decision. There is no single definition of ratio decidendi. The author Michael Zander says it is “A proposition of law which decides a case, in the light of or in the context of the material facts”. The author Rupert Cross describes it as “Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching a decision, having regard to the line of reasoning adopted.” So, we are looking for some sort of legal principle that is crucial to how the case was determined, though this might be implied rather than specifically stated. GDL INTRO Precedent and case law transcript 2023_12_01.docx Page 1 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Anything else said by the judge that wasn’t crucial to deciding the case is called yet another Latin term, obiter dictum or the plural obiter dicta, or just obiter for short. Obiter comments are statements of legal principle that go further than the legal principle necessary to decide the case”. Obiter is only ever persuasive. It can be useful where a judge in a precedent case has given examples or discussed hypotheticals that went beyond the facts of the case at hand. These can’t be part of the ratio (because they weren’t needed to decide the case), but supposing that hypothetical situation happened for real in a later case – the judge could be persuaded by the obiter from that precedent. The higher the court it was from, the more persuasive it will be. Once you have determined whether the precedent is binding or persuasive, you then decide how similar the precedent is to the case or circumstances at hand. For a lawyer, the circumstances at hand will be a real situation involving a client. For a student, the circumstances at hand will be a hypothetical scenario. An otherwise binding precedent may be avoided in a case which is sufficiently different – this is called distinguishing. If the case is similar enough, then a binding precedent must be applied. A persuasive precedent may be followed but it does not have to be. Let's think about an example of how this works. Imagine that you are advising a client who was out taking a walk one sunny September Sunday when they were injured by a cyclist who swerved onto the pavement and knocked them down. Your client wants to know whether they might be able to recover damages from the cyclist for the injuries they suffered. Let’s assume that you know there is no statutory rule on this, so you search for a precedent case covering these circumstances. (In reality, there are of course many legal cases involving road accidents.) Let’s say that you find a precedent where a car driver swerved and mounted the pavement in similar circumstances, but on a Tuesday in June. This case seems like a potentially relevant precedent. Will it be binding or persuasive on your client? First, we look at what court decided it. For this hypothetical example, let’s say you find that the precedent was decided by the Supreme Court. This is good news, since this is the highest court in the court hierarchy and makes for a potentially strong precedent. But this doesn’t mean that the case is automatically a binding precedent. We need to establish what the ratio decidendi of the precedent case is – in other words, why the Supreme Court decided the driver in the precedent case was negligent. We need to do that to establish whether it is binding or not. For example, what if the Supreme Court had decided the driver in the precedent case was negligent because it is always negligent for anyone to drive a car on a Tuesday? If they had, that would be the ratio of the case and it wouldn’t help your client. It’s very unlikely that the Supreme Court would have decided a case on that basis, of course. What we would really be interested in is whether the Supreme Court determined the case in a way that was specific to car drivers, or whether the reason they held the car driver to be negligent was broad enough to include any road user, including the cyclist that injured your client. The ratio of the case is a matter of interpretation, so this would be a matter of reading the judgment carefully, to see what the Supreme Court justices’ reasoning was. Did they mean to limit liability to drivers? Or were they creating a broader principle that would apply to road users generally, including cyclists? As the determination of the ratio in any case is a matter of interpretation, if the case went to court, you would be trying to convince the court GDL INTRO Precedent and case law transcript 2023_12_01.docx Page 2 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) that the principle applied to road users, including cyclists, whilst the cyclist’s lawyer would seek to argue that it was limited to drivers, excluding cyclists. This example also helps us understand two other important terms: material facts, and distinguishing. A claim will be based on a situation that will have any number of detailed facts, but the material facts are those that are important enough to affect the reasoning in the case. Remember Zander’s definition of ratio was: A proposition of law which decides a case, in the light of or in the context of the material facts. This shows that there is an essential link between how we formulate the ratio and the facts we deem material. So, for example, we know that the accident in our precedent case took place on a Tuesday, while our client’s accident was on a Sunday. But we also decided it was very unlikely that the Supreme Court would create a principle that the day of the week on which an accident occurred affects liability in negligence. So, the day of the week is not a material fact, it’s just a general fact. But, the fact that the negligent driver was in a car, rather than on a bike, might be a material fact. If your reading of the case is that the Supreme Court’s ratio applies to all road users, then you’re saying that it is not material that it was a driver, rather than a cyclist: the principle created by the Supreme Court is broad enough to help your client. The cyclist might well argue that it is material that the precedent case involved a car: in other words, a narrower interpretation of the ratio that would say that the precedent case is different from the current case. This would be distinguishing the precedent. Since the whole point of the doctrine of precedent is to treat like cases alike, distinguishing is a way of avoiding a precedent that would otherwise be binding, where the material facts are different. You might be thinking, so what is the answer? Is the cyclist covered by this ratio or not? Good question! Under the doctrine of precedent, the judges interpret previous precedents and may refine them. So, the answer is, it’s ultimately up to the judge in our case: the judge might decide the cyclist is liable, interpreting the precedent ratio broadly, or they might decide the opposite, in which case the precedent case has been deemed to be narrower, and applicable only to drivers. Either way, this adds to the law for the future under the doctrine of precedent. This demonstrates that the ratio of a precedent may be narrowed, broadened or refined as it is applied to new circumstances in later cases. And the ratio is always open to interpretation. This means that it is wrong to think of the ratio of a case as a fixed concept. It is true to say that some judgments are straightforward, and the ratio from them has generally been accepted in later cases to be clear. It is also true to say that some important precedents have been so widely cited and interpreted in so many subsequent cases that the ratio has come to be accepted. For other precedents, interpretation of the ratio may be more problematic. Judgements may be long and complex and do not say “here is the ratio”. In appeal cases, heard by multiple judges, there may be more than one judgment, multiple points to be decided, and even where the judges agree on the outcome, they may reach their conclusions by different reasoning. William Twining and David Miers comment in their book, How to do things with rules, that “Talk of finding the ratio decidendi of a case obscures the fact that the process of interpreting GDL INTRO Precedent and case law transcript 2023_12_01.docx Page 3 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) cases is not like a hunt for buried treasure, but typically involves an element of choice from a range of possibilities.” Finally, our example of trying to advise the injured pedestrian shows that as well as understanding the court hierarchy so that we can assess whether a precedent is potentially binding, and being able to interpret the concept of ratio, to assess what part of the judgment might be binding, our example also raises a third requirement for precedent: being able to find any relevant precedent cases. This means we need a system of recording judgments, and we also need the skills to search in those records. Being able to locate relevant precedents in law reports, and to read and interpret them are all key legal skills. To summarise: The doctrine of precedent determines the extent to which the outcome of a case is influenced by previous cases. Precedents may be “binding” or “persuasive”. A binding precedent means one that must be followed by a later court. A persuasive precedent is one that is likely to influence a later court but does not have to be followed. Whether a precedent is binding will depend on the place of the court that decided the precedent in the court hierarchy and the reason for the decision, also known as the ratio decidendi. GDL INTRO Precedent and case law transcript 2023_12_01.docx Page 4 of 4 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) Stare decisis Transcript In the previous podcast we began to consider the doctrine of precedent and some essential terminology relevant to case law. Let’s recap on that before we go any further. Stare decisis is the Latin term for the rules of binding precedent. The ratio decidendi or ratio of a case is the core legal principle of law that led to the decision in the case, or the reason for the decision. Obiter dictum (dicta) means other parts of the judgment that are not ratio. Usually these are hypothetical examples going further than what was needed to decide the case at hand. The material facts are the specific circumstances that influenced the way the case was decided, as opposed to the general facts which include the full details of what happened leading to the case. Distinguishing is the term used where a precedent’s material facts are not sufficiently similar for a precedent to be followed or applied. We've also considered some of the rules of stare decisis: First, only the ratio of a case can ever be binding. Second, there is a general principle that ratios from higher courts bind lower courts, and a court is never bound by a ratio from a lower court. Third, obiter, no matter what the court, can only be persuasive (the higher the court, the more persuasive it is). So, now we know that a court is “bound” to follow a previous ruling of a senior court as long as the part of the ruling being considered is ratio and the case is sufficiently similar. This rule of stare decisis is called vertical precedent. So, a ratio from the Supreme Court binds the Court of Appeal in a similar case and a ratio from the Court of Appeal binds the High Court in a similar case. However, this does not help us to determine what happens when a court considers one of its own previous precedents. For this we have to look at the rule of stare decisis called horizontal precedent. The question to consider is whether the Supreme Court is bound by its own previous ratios and previous ratios from the House of Lords. Remember that for the purposes of precedent, the House of Lords and the Supreme Court are considered the same within the court hierarchy. Historically the House of Lords was bound by its own previous ratios. In a case in 1898, called the London Tramways case, Lord Halsbury, who was the Lord Chancellor at the time, pointed out that it would be what he called a “disastrous inconvenience” if the highest court could reconsider its own previous rulings, as that would mean “each question was subject to being reargued and rendered doubtful”. What he meant by this was that if the most senior GDL INTRO Stare decisis transcript 2023_12_01.docx Page 1 of 6 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) court can change its mind about its previous rulings in the next case, then it is difficult to advise clients on what the law is because it would always be subject to change. What Lord Halsbury was arguing in 1898 was that it is better for the legal system to have complete certainty by having a rule that the most senior court will always follow its own previous precedents. Now that may sound logical enough, but you will probably be able to spot the flaw in Lord Halsbury's reasoning, which is that if the most senior court is always bound by its own previous rulings, there is no room for judicial law to develop. The judges will gradually become more and more restricted to the reasoning from many years before which might be completely out of step with changes in society. This demonstrates the central tension within the doctrine of precedent: balancing the value of certainty against the need for some degree of flexibility. By the 1960s the House of Lords had decided they needed this degree of flexibility, in other words some wiggle room, to change decisions perhaps from Victorian times that now seemed out of date. Lord Gardiner, who was the Lord Chancellor by then, issued a statement called the Practice Statement 1966. In it, he said that the judges regarded precedent as an “indispensable foundation upon which to decide what is the law and its application to individual cases” because “it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules”. So, in other words, Lord Gardiner argued that certainty was important. However, he went on to say that certainty could go too far. He said that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.” Therefore, the Practice Statement said that from now on, the House of Lords would modify their practice. They would treat previous decisions from the House of Lords as “normally binding”, but depart from a previous decision when it appears right to do so. This same practice was adopted by the Supreme Court when it took over from the House of Lords in 2009. There are two important points to notice from the Practice Statement. It said that the House of Lords (and now the Supreme Court) would still “normally” be bound. So, in other words, the House of Lords did not intend to disregard their own precedents often; they were making it clear it would be rare. The second point is that they gave themselves complete discretion as to when they might do it, by saying “when it is right to do so”. They didn’t say, “when we need to modernise the law” or “when we decide the previous law is wrong”. So, there are no specific rules on when the House of Lords, or now the Supreme Court, might depart from precedent – we just know they don’t intend to do it often. What does this mean for a lawyer trying to advise a client on a matter where there is a relevant Supreme Court authority? Well, first of all, the Practice Statement only affected horizontal precedent in the highest court. The lower courts must follow that precedent from the Supreme Court unless there are reasons to distinguish it. Only the Supreme Court has the ability to change the precedent and do remember that very few cases even reach the Supreme Court. However, if we do need to assess the chances of the Supreme Court using the power in the Practice Statement to overrule a previous precedent of theirs, then the best GDL INTRO Stare decisis transcript 2023_12_01.docx Page 2 of 6 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) guide to whether they might do so is to look at some of the rare examples of when they have done so in the past. The first reason why the Supreme Court might depart from precedent is to modernise the law. There are several examples of this. In the case of Addie v Dumbreck AC 358 the House of Lords had determined that the owner of a mine did not owe a duty of care to a child who trespassed onto the land and was killed playing on the mining equipment, even though it was shown that the owner knew that the children were getting on to the property through a gap in the hedge. In 1972, the House of Lords had to consider the case of a child who had been injured while trespassing on a railway line, after getting through a gap in a fence, again with the apparent knowledge of the owners, in the case of British Railways Board v Herrington 1 All ER 749. We know that one option to avoid an otherwise binding precedent is to distinguish it on the material facts. One option for the court would have been to say that a railway line is materially different from a coalmine and therefore the Addie case wasn’t binding. This would have meant that Addie would have remained the precedent for trespassing on mining land but Herrington would have become a new precedent for trespassing on railway lines. The House of Lords considered doing that and decided not to. In other words, they decided that the ratio of Addie was broad enough to cover mines and railway lines, the exact nature of the property trespassed over wasn’t a material fact. Instead, they decided that the Addie case was out of date. Since the 1920s, both society’s laissez faire attitude to the protection of children, and the law of negligence, had changed. So, they decided to depart from Addie (which means overrule it) to modernise the law. The crucial point for precedent is that this means Addie is no longer good law – in other words, it isn’t a precedent anymore. Herrington becomes the new precedent on this point. The House of Lords decided to depart from its own previous precedents in order to modernise the law on a handful of other occasions. The Supreme Court has also shown that it is willing to depart from precedent to modernise the law. In the case of Montgomery v Lanarkshire Health Board UKSC 11 the claimant was a diabetic who gave birth to a disabled baby, after her doctor had not warned her of the particular risks involved for diabetic mothers giving birth naturally. This wasn’t as a result of negligent care in any way, but she argued that the doctor should have given her full information so that she could make an informed decision about natural birth. A previous House of Lords authority Sidaway v Board of Governors of the Bethlem Royal Hospital AC 871, HL: had decided that it was up to the doctor, according to the prevailing medical consensus of the day, to decide how much information a patient needed in order to constitute informed consent. The Supreme Court didn’t agree and decided to overrule the case. They said that “patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession” so this “doctor knows best” principle was out of date. The House of Lords also occasionally departed from precedent to correct an injustice. In the case of R v Caldwell AC 341 a man set fire to a hotel whilst drunk. He was held responsible for his recklessness, even though he claimed he was so drunk that he didn’t know what he was doing. He was found guilty using an objective test. An objective test means you are judged against what a reasonable person in your situation would have thought or done, rather than what you actually thought or did, which is called a subjective test. The difference between a subjective and objective test is a feature of many different GDL INTRO Stare decisis transcript 2023_12_01.docx Page 3 of 6 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) legal matters. Here, the objective test meant that it did not matter that he was drunk and didn’t know what he was doing. A reasonable person would have known, and he was judged against that. Now that might seem quite reasonable, but actually the decision was subject to a lot of criticism. This is because it set a precedent that the mental state of mind (in criminal cases, this is called the mens rea) for recklessness should be objective. Critics were worried that in a future case, this precedent could be used to hold someone with less mental capacity, for example a child, or someone with a mental impairment, to a higher standard than they are capable of. This exact problem came up in R v G 4 All ER 765, where two children lit a bonfire whilst trespassing in a shop. The House of Lords looked very carefully at whether to overrule the precedent of Caldwell, and they decided that they would for a number of reasons. First, they thought Caldwell was simply wrong, though this wasn’t enough in itself to depart from precedent. Second, they said the previous ruling was “capable of leading to obvious unfairness.” They pointed out that it had received considerable academic criticism. They also decided that it had misinterpreted the words of the statute in question. The Supreme Court has also used the Practice Statement to correct an injustice in a case involving the doctrine of joint enterprise. Supposing A and B set out to commit a crime together, and in the course of that, A actually commits a different (usually worse) crime. Under the doctrine of joint enterprise, B could be convicted as an accessory to this second crime, if it was deemed to be foreseeable. This doctrine was created in a Privy Council case Chan Wing-Siu v The Queen AC 168 (Privy Council); and later followed by the House of Lords in R v Powell and R v English 1 AC 1. It was controversial, not least because it was created by the judges – usually in modern terms if the criminal law is to be changed then we expect Parliament to do so – and was criticised as leading to injustice in several cases that received media attention. In R v Jogee UKSC 8; Ruddock v The Queen UKPC 7, which was a case from the Supreme Court and a case from the Privy Council heard together, both previous precedents were overruled. The Supreme Court said the precedents were wrong – they had led to injustice, they had caused difficulties in the law and made it less workable. Despite these examples of precedent being overturned, remember that this will only happen exceptionally. The Supreme Court is always mindful of the risk of creating uncertainty when precedent is disregarded, and that’s why, though it might seem surprising, the fact that they disagree with a precedent is not enough in itself to get rid of it. In particular one of the issues they consider is how much reliance there has been on the precedent in the past. In the case of Austin v Southwark LBC 3 WLR 144, for example, the Supreme Court decided not to overrule a previous precedent, Knowsley Housing Trust v White AC 636, HL, even though they thought Knowsley was wrong, because they thought the Knowsley decision, which related to an aspect of housing law, had been relied on in the wording of thousands of tenancy agreements and it would amount to retrospectively rewriting all these contracts to get rid of it. So, in summary, the Supreme Court generally considers itself bound by horizontal precedent but will occasionally use the freedom it gave itself in the Practice Statement 1966 to overrule a previous one of its own precedents. This will need strong justification. What about the Court of Appeal? GDL INTRO Stare decisis transcript 2023_12_01.docx Page 4 of 6 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) The Court of Appeal is of course bound by the Supreme Court (and the House of Lords) under vertical precedent. Where there is an existing precedent at issue that is binding on the Court of Appeal – in other words, one that would need the intervention of the Supreme Court to overrule, an appeal may bypass the Court of Appeal and go straight to the Supreme Court. This is called the leapfrog procedure. Horizontal precedent in the Court of Appeal – in other words, whether the Court is bound by its own previous rulings – is governed by the case of Young v Bristol Aeroplane Co. Ltd KB 718 CA, which states that the Court of Appeal is bound by its own previous ratios unless one of a number of different exceptions applies. These are: there are two conflicting authorities from the Court of Appeal, in which case the Court of Appeal may choose which to follow, or there is a later conflicting authority from the House of Lords or the Supreme Court, in which case the later higher precedent is followed, or the precedent Court of Appeal judgment was per incuriam. Per incuriam is another Latin term that means in ignorance. It means that the precedent itself failed to look at a relevant authority and it is therefore faulty. This means it does not have to be followed. Additionally, the Court of Appeal may choose to follow a later conflicting decision from the Privy Council rather than one of its own previous precedents. There is also a convention that the Court of Appeal Criminal Division may look less strictly at precedent where the liberty of an individual is at stake. Finally, in the rare circumstances where no appeal is possible to the Supreme Court, in other words, the court is the final court of appeal, the Court of Appeal also has more discretion to depart from precedent. Finally, the High Court is the only other court that sets precedents that we need to concern ourselves with, so we need to look at the rules of horizontal precedent there. Remember that of course the High Court is bound by vertical precedent, so the question of whether it is bound by its own previous rulings only matters where there isn’t a precedent from a higher court, or any precedent there is from a higher court is distinguishable on the material facts.