CH:1 NATURE AND CLASSIFICATION OF LAW

Syllabus Content:
·         Comparison of law, rules and morals
·         The main classifications of law in England and Wales:
ü  Criminal/civil law;
ü  Public/private law
ü  Public international/private international law.
·         Rules of law within these classification

1. Different types of Law

Different authors categorize Law differently. The renowned classifications of law are as below:

1. a) International and National Law

International law is concerned with disputes between nations; much of this law comes from treaties
which have been agreed by the government of the countries.

National law is the law which applies within a country; each country will have its own national law
and there are often wide differences between the law of individual countries.

1. b) Public and Private law

Within national law there is usually a clear distinction between public and private law. Public law
involves the State or government is some way, while private law is concerned with disputes
between private individuals or business.

Know your facts:

Judicial Review allows judges to consider whether a decision (or a refusal to make a decision) is reasonable. If
not, then the decision is re-considered.

Public Law There are three main types of law in this category:
 i) Constitutional Law – This controls the method of government and any disputes which
arise over such matters as who is entitled to vote in an election, or who is allowed to
become a Member of Parliament, or whether an election was carried out by the correct
procedure.
 

ii) Administrative Law – This controls how Ministers of State or other public bodies such
as local councils should operate. An important part of this is the right to judicial review of
certain decisions.
 

iii) Criminal Law – This set out the types of behavior which are forbidden at risk of
punishment. A person who commits a crime is said to have offended against the State,
and so the State has the right to prosecute them. This is so even though there is often an
individual victim of a crime as well.

This is actually called civil law and has many different branches. The main ones are
contract, tort, family, succession, company and employment.
Private Law
The issues related in it are based on person to person basis that is a natural/artificial
person brings a claim against another natural/artificial person.

Figure 1.1 – Summary of the different categories of law

2. Distinguishing between Civil and Criminal Law

It is important to realize that civil law is very different from criminal law. Following are the well-
known differences between the two.

(i)           Criminal law is part of public law and civil law is the separate category of private law.

(ii)          Courts and case proceedings are different for both the branches of law.

(iii)         The standard of proof is different. Criminal law works on the principles of “to prove
beyond reasonable doubt” whereas Civil law works on the basis of “balance of probability”.

3. Definition of Law and debates that followed

It is not easy to give a one sentence meaning or definition of the word Law – however, legal
theorists have tried in their own ways to define Law; for example John Austin defined law as being
a command issued from a superior (the state) to an inferior (the individual) and enforced by
sanctions. Sir John Samond defined law as being ‘the body of principles recognized and applied by
the state in the administration of justice’. Law can also be defined as a formal mechanism of social
control.

3.1          Law and Morality

The moral values of communities lay down a framework for how people should behave. Mostly
morals are derived from the religious codes for example Bible for Christians and Koran for
Muslims. The law, however, will usually reflect the moral values accepted by the majority of the
country, but it is unlikely to be exactly the same as the common religious moral code.

Morals and Law stands at a recognizable difference such as:

(i)           Morality cannot be deliberately changed; it evolves slowly and changes according to the
will of the people. Law can be altered deliberately by legislation: this means that behavior which
was against the law can be ‘de-criminalised’ overnight.

(ii)          Morality is voluntary with consequences but generally carrying no official sanction. Law
makes certain behavior obligatory with legal sanctions to enforce it.

(iii)         Breaches of morality are not usually subject to formal adjudication; breaches of law will
be rules on by a formal legal system.

3.2          Law and Rules

Law applies throughout a country to the people generally. There are other rules that apply only to
certain groups or in limited situations: for example all sports have a set of rules to be followed.
There are also unwritten ‘rules’ within communities. These come from local custom or practice, or
they may be connected to religious beliefs. They enforce what is regarded by the community as the
norm for behavior.
 4. The Rule of Law
The rule of law is a symbolic idea. The best known explanation of the rule of law was given by
Dicey in the nineteenth century. Dicey thought that the rule of law was an important feature that
distinguished English law from law in other countries in Europe. He held that there were three
elements that created the rule of law:

(i)           an absence of arbitrary power on the part of the State.

(ii)          equality before the law

(iii)         supremacy of the ordinary law.

The Constitutional Reform Act 2005 recognizes the rule of law and the importance of judicial
independence. It is evident in Section 1 and Section 3(1) of the Act.
CH:2 COMMON LAW AND EQUITY
1. Customs
These are rules of behavior which develop ion a community without being deliberately invented
There are two main types of custom: genera; customs and local customs.

(a)           General Customs

Historically these are believed to have been very important in that they were, effectively, the basis
of our common law. It is thought that following the Norman Conquest the judges appointed by the
kings to travel around the land making decisions in the King’s name based on at least some of their
decisions on the common customs.

It is accepted that general customs have long since been absorbed into legislation or case law and
are no longer a creative source of law.

(b)          Local Customs

This is the term used where a person claims that he is entitled to some local right, such as a right of
way or a right to use land in a particular way because this is what has always happened locally.
Such customs are an exception to the general law of the land and will only operate in that particular
area.

Since there were exceptions to the general common law, the judges from the earliest times,
established as series of rigorous tests of hurdles that had to be passed before they recognized any
local customs. The tests are as follows:

(i)           The customs must have existed since ‘time immemorial’.

(ii)          The custom must have been exercised peaceably, openly and as of right

(iii)         The custom must be definite as to locality, nature and scope

(iv)         The custom must be reasonable

Although customs may develop, they are not part of the law until recognized by the courts; it is the
judges who decide which customs will be recognized as enforceable at law.

2. Common Law
Even in Anglo Saxon times there were local courts which decided disputes, but it was not until after
the Norman Conquest of 1066 that a more organized system of courts emerged. The first Norman
king, William the Conqueror, set up Curia Regis and appointed his own judges. The nobles who
has a dispute were encouraged to apply to have the king or his judges decide the matter.

As well as this central court, the judges were sent to major towns to decide any important cases. In
the time of Henry II these tours became regular and Henry divided up the country into ‘circuits’ or
areas for the judges to visit. Over a period of time it is believed that the judges on their return to
Westminster in London would discuss the laws or customs they had used and the decisions they
had made with each other. Gradually the judges selected the best customs and these were then used
by all the judges throughout the country. This had the effect that the law became uniform or
‘common’ through the whole country and it is from here that the phrase ‘common law’ seems to
have developed.

Definition of Common Law:             It is unwritten law that developed from customs and judicial
decisions. The phrase ‘common law; is still used to distinguish laws that have been developed by
judicial decisions from the laws that have been created by statute or other legislations. Common
Law also has another meainin, in that it is used to distinguish between rules that were developed by
the common law courts and the rules of Equity which were developed by the Lord Chancellor and
the Chancery courts.

3. Equity
The word equity means ‘fairness’. The system of Equity developed because of problems in the
common law. Only certain types of case were recognized. The law was also very technical; if there
was an error in the formalities the person making the claim would lose the case.
Another major problem was the fact that the only remedy the common law courts could give was
damages. In some cases this would not be the best method of putting matters right between the
parties.

People who could not obtain justice in the common law courts appealed directly to the king.

Most of the cases were referred to the king’s Chancellor who was both a lawyer and a priest, and
who became known as the keeper of the king’s conscience. This was because the Chancellor based
his decisions on principles of natural justice and fairness, making a decision on what seemed ‘right’
in the particular case rather than on the strict following of previous precedents. He was also
prepared to look beyond the legal documents, which were considered legally binding by the
common law courts, and to take account of hat the parties had intended to do.

Lord Chancellor developed new remedies which were able to compensate plaintiffs more fully than
the common law remedy of damages. The main equitable remedies are as follow:

(a)           Injunction:

An injunction is an order to one of the people involved in the case to do something or not to do
something. Where the court orders one of the parties to do something it is called a mandatory
injunction; where the order is to refrain from doing something it is called a prohibitory injunction.

An injunction can also be granted to protect one party’s rights while waiting for the case to be
heard. This is called interlocutory injunction.                   Case Law: Warner Brothers v. Nelson
(1937)
(b)          Specific Performance

This is an order that a contract should be carried out as agreed. It is only granted in exceptional
circumstances where the court feels the common law remedy of damages could not adequately
compensate the plaintiff. Specific performance is never granted to order someone to carry out
personal services, nor it is granted for a breach of contract where one of the parties is a minor.

(c)           Rescission
This is another remedy in contract cases and it aims to return the parties as far as possible to their
pre-contractual position.

(d)          Rectification

Under this the court will order that, where a mistake has accidentally been made in a document so
that it is not a true version of what the parties agreed, that document should be altered to reflect the
parties’ intention.

Even in the twentieth century the courts were still developing new equitable remedies. These were
the freezing order and the search order.

Apart from the above remedies, certain rights were also initiated by Equity. Concepts such as
mortgaged and trusts are founded on the idea that one person owns the legal interest in property but
has to use that property for the benefit of another. This other person is said to have an equitable
interest in the property.

Moreover, over the period of time a series of maxims were developed which formed the basis of the
rules on which equity operated. Many of the rules on which equity is based are expressed in a series
of sayings. The most important of these maxims are as follows:

1. Equity looks to the intention and not the form (case: Berry v. Berry 1929)
2. He who comes to equity must come with clean hands (case: D&C Builders Ltd. v. Rees
1965)
3. Delay defeats equity (case: Leaf v. International Galleries 1950)

4. Equity will not suffer a wrong to be without a remedy

CH:3 DOCTRINE OF PRECEDENT
1. The Doctrine of Precedent
The English system of precedent is based on the Latin maxim stare decisis et non quieta
movere which is roughly translated in “stand buy what has been decided and do not unsettle the
established”. The doctrine can be divided in to following two parts:
(i)           Ratio Decidendi
In a judgement the judge is likely to give a summary of the facts of the case, review the arguments
put to him by the advocates in the case, and then explain the principles of law he is using to coe to
the decision These principles are the important part of the judgment and are known as the ratio
decidendi which means the reason for deciding. Ratio is what creates a precedent for judges to
follow in the future cases.
(ii)          Obiter Dicta
The remainder of the judgment is called obiter dicta and the judges in future cases do not have to
follow it.

2. Types of Precedents
There are three types of precedents.

(i)           Binding Precedent

This is a precedent from an earlier case which must be followed even if the judge in the later case
does not agree with the legal principle. A binding precedent is only created when the facts of the
second case are sufficiently similar to the original case and the decision was made by a court which
is senior to the court hearing the latter case.

(ii)          Persuasive Precedent

This is a precedent that is not binding on the court but the judge may consider it and decide that it is
a correct principle so he is persuaded that he should follow it. Persuasive precedent comes from a
number of sources as mentioned below:

(a) Courts lower in the hierarchy

(b) Decision of Judicial committee of Privy council

(c) Statements made obiter dicta

(d) A dissenting judgment

(e) Decisions of courts in other countries

(iii)         Original Precedent

If the point of law in a case has never been decided before, then whatever the judge decides will
form a new precedent for future cases to follow, i.e. it is an original precedent. As there are no past
cases for the judge to base his decision on, he is likely to look at cases which are the closest in
principle and he may decide to use similar rules. This way of arriving at a judgment is called
reasoning by analogy.

3. Practice Statement and Supreme Court

Originally the view was that the House of Lords has the right to overrule past decisions but
gradually during the nineteenth century this more flexible approach disappeared. So from 1989 to
1966 the House of Lords regarded itself as being completely bound by its own past decisions unless
the decision has been made per incurium that is ‘in error’. However this idea of error referred only
to situations where a decision had been made without considering the effect of a relevant statute. If
there was an unsatisfactorily decision by the House of Lords, then the only way it could be changed
was by Parliament passing a new Act of Parliament.
For today’s system of judicial precedent the critical date is 1966 when the Lord Chancellor issued a
Practice Statement. The statement said:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs, as well as a basic for orderly
development of legal rules. Their Lordships nevertheless recognize that the rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper
 development of the law. They propose, therefore, to modify their present practice and while
treating former decisions of this house as normally binding, to depart from a previous decision
when it appears right to do so.”
The first case in which the Practice Statement was used was Conway v. Rimmer (1968) but this
only involved a technical point on discovery of documents.
Following cases witnesses use of Practice Statement:

(1)          Herrington v. British Railways Board (1972)

(2)          Miliangos v. George Frank (Textiles) Ltd (1976)
(3)          Murphy v. Brentwood District Council (1990)

4. Young’s case and Court of Appeal

Court of Appeal is strictly bound by the decisions of Court of Justice of European Union and
Supreme Court of England and Wales. However when it comes to be bound by their own previous
decisions, Young v. Bristol Aeroplane Co. Ltd (1944) provides certain exceptions, which are:

(i)           Where there are conflicting decisions in past Court of Appeal cases, the court can choose
which one it will follow and which it will reject

(ii)          Where there is a decision of the House of Lord (now Supreme Court) which effectively
overrules a Court of Appeal decision the Court of Appeal must follow the decision of the House of
Lords/Supreme Court

(iii)         Where the decision was made per incurium that is carelessly or by mistake because a
relevant Act of Parliament or other regulation has not bee considered by the Court.

5. Judicial Tools
(i)           Distinguishing

This is a method which can be used by a judge to avoid following a past decision which he would
otherwise have to follow. It means that the judge finds the material facts of the case he is deciding
are sufficiently different for him to draw a distinction between the present case and the previous
precedent.
(ii)          Overruling

This is where a court in a later case states that the legal rule decided in an earlier case is wrong.
Over ruling may occur when a higher court overrules a decision made in an earlier case by a lower
court, for example the Supreme Court overruling a decision of the Court of Appeal. It can also
occur where the Court of Justice of European Union overrules a past decision it has made; or when
the House of Lords used its power under the Practice Statement to overrule a past decision of its
own.

(iii)         Reversing

This is where a court higher up in the hierarchy overturns the decision of a lower court on appeal in
the same case. For example the Court of Appeal may disagree with the legal ruling of the High
Court and come to a different view of the law; in this situation they reverse the decision made by
the High Court.

6. Advantages and Disadvantages

Judicial precedent has following advantages:

1. Certainty

2. Consistency and fairness in law

3. Precision

4. Flexibility

5. Time-saving
Disadvantages:

1. Rigidity

2. Complexity

3. Illogical distinctions

4. Slowness of growth
CH:4 LEGESLATIVE PROCESS
1. The pre-legislative process
On major matters a Green Paper may be issued by the Minister with responsibility for that matter.
A Green Paper is a consultative document on a topic in which the Government’s view is put
forward with proposals for law reform. Interested parties are then invited to send comments to the
relevant government department, so that a full consideration of all sides can be made and necessary
changes made to the Government’s proposals. Following this the Government will publish a White
Paper with its firm proposals for new law.

2. Introducing an Act of Parliament

When the proposed Act has been drafted it is published and at this stage is called a Bill. It will only
become an Act of Parliament if it succesffuly completes all the necessary stages in Parliament.
Even at this early stage there are difficulties as the draftsmen face problems in trying to fram the
Bill. It has to be drawn up so that it represents the Government’s wishes, while at the same time
using correct legal wording so that there will not be any difficulties in the courts applying it. It must
be ambiguous, precise and comprehensive.

3. The Process in Parliament

In order to become an Act of Parliament, the Bill will usually have to be passed by both Houses of
Parliament, and in each House there is a long and complex process. All bills must go through the
stages explained below:

3.1          First Reading

This is formal procedure where the name and main aims of the Bill are read out. Usually no
discussion takes place, bit there will be a vote on whether the House wishes to consider the Bill
further.

3.2          Second Reading

This is the main debate on the whole Bill in which Member of Parliaments debate the principles
behind the Bill. The debate usually focuses on the main principles rather than the smaller details.
Those MPs who wish to speak in the debate must catch the Speaker’s eye, since the Speaker
controls all debates and no one may speak without being called on by the Speaker. At the end of
this a vote is taken in the same way as for the First Reading; obviously there must be a majority in
favour for the Bill to progress any further.

3.3          Committee Stage

At this stage a detailed examination of each clause of the Bill is undertaken by a committee of
between 16 and 50 MPs. This is usually done by what is called a Standing Committee, which
contrary to its name, is a committee chosen specifically for that Bill. The membership of such a
committee is decided ‘having regard to the qualifications of those members nominated and to the
composition of the House.’

3.4          Report Stage

At the Committee Stage amendments to various clauses in the Bill may have been voted on and
passed so this report stage is where the committee reports back to the House on those amendments.
These amendments will be debated in the House and accepted or rejected. Further amendments
may also be added. The Report stage has been described as ‘a useful safeguard against a small
Committee amending a Bill against the wishes of the House, and a necessary opportunity for
second thoughts.’

3.5          Third Reading

This is the final vote on the Bill. It is almost a formality since a Bill which has passed through all
the stages above is unlikely to fail at this stage. In fact in the House of Commons there will only be
an actual further debate on the Bill as a whole if at least six MPs request it. However in the House
of Lords there may sometimes be amendments made at this stage.

3.6          House of Lords

If the Bill started life in the House of Commons it is now passed to the House of Lords where it
goes through the same five stages outlines above and if the House of Lords make amendments to
the Bill, then it will go back to the House of Commons for it to consider those amendments. If the
Bill started in the House of Lords then it passes to the House of Commons.

3.7          Royal Assent

The final stage is where the monarch formally gives approval to the Bill and then becomes an Act
of Parliament. This is now a formality and unfer the Royal Assent Act 1961 the monarch will not
even have the text of the Bills to which she is assenting; she will only have the short title. The last
time that a monarch refused assent was in 1707 when Queen Anne refused to assent to the Scottish
Militia Bill
CH:5 DELEGATED LEGISLATION
1. Meaning of the Delegated Legislation
Delegated Legislation is law made by some person or body other than Parliament, but with the
authority of Parliament. That authority is usually laid down in a ‘parent’ Act of Parliament known
as an Enabling Act which creates the framework of the law and then delegates power to others to
make more detailed law in the area.

2. The Need for Delegated Legislation

Following are the reasons why delegated legislation is required:

1. Parliament does not have time to consider and debate every small detail of complex
regulations

2. In addition Parliament may nothave the necessary technical expertise or knowledge

required; for example, health and safety regulations in different industries need expert
knowledge, while local parking regulations need local knowledge.
iii.           Ministers can have the benefit of further consultation before regulations are drawn up.
Consultation is particularly important for rules on technical matters, where it is necessary to make
sure that the regulations are technically accurate and workable.

1. As already seen, the process of passing an Act of Parliament can take a considerable time
and in an emergency Parliament may not be able to pass law quickly enough. This
another reason why delegated legislation is sometimes preferred.
 

3. Types of Delegated Legislation

There are three types of delegated legislation. These are:

(i)           Orders in Council

(ii)          Statutory Instruments

(iii)         Bylaws
3.1          Orders in Council

The Queen and the Privy Council have the authority to make Orders in Council. This type of
delegated legislation effectively allows the Government to make legislation without going through
Parliament.

Orders in Council can be made on a wide range of matters, especially:

(a)           giving legal effect to European Directives

(b)          transferring responsibility between government departments

(c)           bringing Act (or parts of Acts) of Parliament into force.

In addition the Privy Council has power to make law in emergency situations under the Civil
Contingencies Act 2004.

There must be an enabling Act allowing the Privy Council to make Orders in Council on the
particular topic.

3.2          Statutory Instruments

The term ‘statutory instrument’ refers to rules and regulation made by Government Ministers.
Ministers and government departments are given authority to make regulations for areas under their
particular responsibility.

Statutory instruments can be very short, covering one point, such as making the annual change to
the minimum wage. However, other statutory instruments may be very long with detailed
regulations which were too complex to include in an Act of Parliament.

3.2.1       The Legislative and Regulatory Reform Act 2006

In addition to specific Acts giving Ministers powers to make statutory instruments, the Legislative
and Regulatory Reform Act 2006 gives Ministers power to make any provision by order if it will
remove or reduce a ‘burden’ resulting from legislation,. For this purpose a burden is defined as:
  A financial cost

 An administrative inconvenience

 An Obstacle to efficiency, productivity or profitability

 A sanction which affects the carrying on of any lawful activity

3.3          Bylaws

These can be made by local authorities to cover matters within their own area, for example Norfolk
County Council can pass laws affecting the whole county, while a District or Town council can
only make bylaws for its district or town.

Bylaws can also be made by public corporations and certain companies for matters within their
jurisdiction which involve the public. For example Airports and Railways.

4. Controls
As delegated legislation in many instances is made by non-elected bodies and since there are so
many people with the power to make delegated legislation, it is important that there should be some
control over this. Control is exercised by Parliament and the Courts.

4.1          Parliamentary Controls

This is fairly limited, though obviously Parliament has the initial control with the enabling Act
which sets the boundaries with in which the delegated legislation is to be made.

Parliament also retains control over the delegated legislation as it can repeal the powers in the
enabling Act at any time.

4.1.1       Delegated Powers Scrutiny Committee

A Delegated Powers Scrutiny Committee was established in 1993 in the House of Lords to consider
whether the provision of any Bills delegated legislative power inappropriately. It reports its
findings to the House of Lords before the Committee stage of the Bill, but has no power to amend
Bills. The main problem is that there is no general provision that the regulations made under the
enabling Act have to be laid before Parliament for the MPs to consider them.

4.1.2       Affirmative resolution

A small number of statutory instruments will be subject to an affirmative resolution. This means
that the statutory instrument will not become law unless specifically approved by Parliament. The
need for an affirmative resolution will be included in the enabling Act.

4.1.3       Negative resolution

Most other statutory instruments will be subject to a negative resolution, which means that the
relevant statutory instrument will be law unless rejected by Parliament within 40 days.

4.1.4       Scrutiny Committee

A more effective check is the existence of a joint Select Committee on Statutory Instruments
(formed in 1973), usually called the Scrutiny Committee. This committee reviews all statutory
instruments and , where necessary, will draw the attention of both Houses of Parliament to points
that need further consideration.

4.2          Judicial Controls

Delegated legislation can be challenged in the courts on the ground that it is ultravires, ie it goes
beyond the powers that Parliament granted in the enabling Act. This questioning of the validity of
delegated legislation may be made through the judicial review procedure or it may arise in a civil
claim between two parties, or on appeal.

Any delegated legislation which is ruled to be ultravires is void and not effective (Case: R v. Home
Secretary ex pare Fire Brigades Union (1995))

5. Criticisms
Following are the most popular criticism of the concept of Delegated Legislation:

(i)           Undemocratic
(ii)          Sub-delegation undermining the law making procedure

(iii)         Lack of publicity

(iv)         Vague and obscure wording requiring appropriate interpretation by courts.

CH:6 STATUTORY INTERPRETATION
1. The Need for Statutory Interpretation
Drafting a statute is, like writing a book, a cumbersome and lengthy process as already discussed in
Chapter 4. The draftsmen try their utmost to keep the language as simple as they can, however
sometimes certain issues raise the necessity to interpret the statute clearly and precisely. Following
are the reasons why a need of interpretation arises:

(a)           A broad term

(b)          Ambiguity

(c)           A drafting error

(d)          New developments

(e)           Changes in the use of language

2. Rules of Interpretation
In English law the judges have not been able to agree on which approach should be used, but
instead, over the years they have developed three different rules of interpretation. These are:

(i)           Literal rule

(ii)          Golden rule

(iii)         Mischief rule

These rules take different approaches to interpretation and some judges prefer to use one rule, while
other judges prefer another rule. However, once an interpretation has been laid down it may then
form a precedent for future cases under the normal rules of judicial precedent.

2.1          The Literal Rule

Under this rule courts will give words their plain, ordinary or literal meaning, even if the result is
not very sensible. Lord Esher said (in the case of R v. Judge of the City of London Court (1892)):

“If the words of an act are clear then you must follow them even though they lead to a manifest
absurdity. The court has nothing to do with the question whether the legislature has committed an
absurdity.’  
Literal rule has been used in many cases, even though the result has made a nonsense of the law.
(example was seen in Whitely v. Chappel (1868)) The rule is also criticized because it can lead to
what are considered harsh decision (as seen in London & North Eastern Railway CO. v.
Berriman (1946)). Another problem of using the literal rule occurs when a word has more than one
meaning. It may be difficult to decide which meaning should be used.
2.2         The Golden Rule

This rule is a modification of the literal rule. The golden rule starts by looking at the literal meaning
bit the court is then allowed to avoid an interpretation which would lead to an absurd result. There
are two views with the Golden rule that is a narrow view and wider view. Under the narrow
application of the golden rule the court may only choose between the possible meanings of a word
or phrase.

The second and wider application of the golden rule is where the words have only one clear
meaning, but that meaning would lead to a repugnant situation. In such a case the court will invoke
the golden rule to modify the words of the statue in order to avoid this problem. (Case: Re
Sigsworth (1935))
2.3          The Mischief Rule

This rules gives a judge more discretion than the other two rules. The definition of the rules comes
from Heydon’s case (1584) where it was said that there were four points the court should consider.
These, in the original language of that old case were:
(a) What was the common law before the making of the Act?

(b) What was the mischief and defect for which

(c) What was the remedy the Parliament has resolved and appointed to cure the disease of the
commonwealth?

(d) The true reason of the remedy.

Under this rule the court should look to see what the law was before the Act was passed in order to
discover what gap or mischief the Act was intended to cover. The court should then interpret the
Act in such a way that the gap is covered. The court should then interpret the Act is such a way that
the gap is covered.

3. Rule of Language
It is common sense that the other words in the Act must be looked at to see if they affect the word
or phrase which is in dispute. In looking at the other words in the Act the courts have developed a
number of minor rules which can help to make the meaning of words and phrases clear where a
particular sentence construction has been used.

These rules, which also have latin names are:

(i)           the ejusdem generis rule

(ii)          Expressio unius exclusion alterius

(iii)         Noscitur a sociies

3.1          Ejusdem generis rule

This states that where there is a list of words followed by general words then the general words are
limited to the same kind of items as the specific words. (example: Powell v. Kempton Park
Racecourse (1899))
There must be at least two specific words in a list before the general word or phrase for this rule to
operate. (case: Allen v. Emmerson (1944))
3.2          Expressio inius exclusion alterius (the mention of one thing excludes others)
Where there is a list of words which is not followed by general words, then the Act applies only to
the items in the list. (case: Tempest v. Kilner (1846))
3.3          Noscitur a sociies (a word is known by the company it keeps)

This means that the words must be looked at in context and interpreted accordingly; it involves.
Looking at other words in the same section or at other sections in the Act. (case: Inland Revenue
Commissioners v. Frere (1965))

4. Presumptions
The courts will also make certain presumptions or assumptions about the law, but these are only a
starting point. If the statute clearly states the opposite, then the presumption will not apply and it is
said that the presumption is rebutted. The most important presumptions are:

(i)           A presumption against a change in the common law

(ii)          A presumption that mens rea is required in criminal cases

(iii)         A presumption that the Crown is not bound by any statute

(iv)         A presumption that legislation does not apply retrospectively.

5. Intrinsic Aids
These are matters within the statute itself that may help to make its meaning clearer. The court can
consider the long title, the short tile and the preamble (if any)

Other useful internal aids are any headings before a group of sections, and any schedules attached
to the Act.

6. Extrinsic Aids
These are matters which are outside the Act – it has always been accepted that some external
sources can help explain the meaning of an Act. These undisputed sourcesa re:

                (i)           Previous Acts of Parliament on the same topic

(ii)          The historic setting
(iii)         Earlier case law

(iv)         Dictionaries of the time

Originally the courts had very strict rules that other extrinsic aids should not be considered,
however, for the following three aids the courts’ attitude has changed. These three main extrinsic
aids are:

(i)           Hansards

(ii)          Reports of law refor bodies

(iii)         International conventions, regulations or directives.

CH:7 HUMAN RIGHTS
1. European Convention on Human Rights
As early as 1950 the United Kingdom Government signed the European Convention on Human
Rights. This Convention was drawn up after the Second World War in order to try to protect
people’s rights from the abuses that had been seen under Hitler’s rule of Germany, and followed
the Universal Declaration on Human Rights made by the General Assembly of the United Nations
in 1948. The Convention in its Articles sets out the rights and freedoms that the people of Europe
are entitled to expect.

2. Human Rights Act 1998

This Act incorporates the European Convention on Human Rights into British law and make it
unlawful for a public authority to act in a way which is incompatible with a Convention right. This
appears very wide ranging protection as public authority is defined as including courts as well as
any person who has some public functions. However there is a major limitation since ‘public
authority’ does not include either House of Parliament or a person exercising functions in
connection with proceedings in Parliament.

3. Declaration of incompatibility
Although courts have to read legislation and give it effect in a way which is compatible with the
rights set out in the European Convention, the Act recognizes that some legislation may be worded
in such a way that it is impossible to give effect to the convention. If this is so the court must apply
the legislation as it stands but may make a declaration of that the legislation is incompatible with
the Convention.

After a declaration of incompatibility the Government will usually change the law. However, there
is no need for the Government to do so. In fact, if Parliament wishes it can deliberately pass new
legislation which contravenes the Convention. However, the Government has usually changed the
law following a declaration of incompatibility. This can be done by a new Act of Parliament which
replaces the incompatible one or, where only a small part of an Act is incompatible, it can be done
by a remedial order. A remedial order is a statutory instrument which amends the incompatible
provision in order to comply with the Convention Rights.

An example of law being changed was seen following the House of Lord’s decision in A and
another v. Secretary of State for Home Department (2004).
An example of remedial order was seen following the result of the case of B and I v. UK (2006).

4. Convention Rights
Article 2:               Right to Life

Article 3:               Freedom from torture degradation or inhuman treatment or punishment

Article 4:               Freedom from Slavery

Article 5:               Right of Liberty

Article 6:               Right to fair trial

Article 7:               Freedom from retrospectivity

Article 8:               Right to Privacy

Article 9:               Freedom to thought, conscience and religion

Article 10:             Freedom of Expression

Article 11:             Freedom of peaceful assembly

Article 12:             Right to marry

Article 14:             Freedom from discrimination

5. European Court of Human Rights

The European Court of Human Rights was established in 1959 in order to protect the rights set out
in the European Convention on Human Rights. The European Court of Human Rights sits in
Strasbourg and deals only with breaches of the European Convention on Human Rights.

5.1          Procedure

Member States can report another Member State to the Court for apparent breaches of the
Convention, though this has only happened on a handful of occasions.

Individuals have the right to make an application to the Court. However an application is only
admissible if the applicant has exhausted the effective remedies in the country in which the breach
of rights is alleged to have occurred.

Under the present system, individual who feel that their rights have been breached by their State
apply direct to the court. Administrators check each application to decide if it is admissible. If there
is still a doubt about admissibility the case may then be sent to a Chamber of the Court, consisting
of a committee of three judges, to decide if the complaint is admissible. If it decides that it is, the
Government of the State concerned is asked for its comments. There is then the possibility of the
State and the complainant coming to a friendly negotiated settlement, but if this does not occur then
the court will hear the case in full and give a judgment in it. As well as deciding whether a State has
breached the Convention, the court has the power to award compensation or other ‘just satisfaction’
to a successful complaint.

Some case may go straight to a Chamber of seven judges to decide both the admissibility and the
merits. In the exceptionally important case a Grand Chamber of 17 judges will hear the case.

If a court upholds a complaint and rules against the State that decision is final but there is not
method of forcing the Member State to comply with that ruling.
CH:8 LAW REFORM
1. Impetus for Reform
Law of England and Wales comes from a variety of sources such as Parliament, Judiciary etc. In
this regard, it makes it important to keep the law under review, to ensure that it is reformed when
necessary, and to try to keep it in an accessible and manageable state. There are many influences on
the way our law is formed and the impetus for reform can come from a number of sources. Some of
these will have more effect than others.

The Government of the day effectively has the major say in what laws will be enacted and the
government will set out agenda for law reform in each session of Parliament.

Pressure groups can provide the impetus for law reform, Where a subject has a particularly high
profile, parliament may bow to public opinion and alter the law. The Law Commission in its
consultation process will also receive the views of pressure groups with a special interest in the area
of law under review.

Judges also play a role in law reform by means of judicial precedent. In some instances they may
actually create new law, as occurred in R v. R (1991)when the courts ruled that a man could be
guilty of raping her wife. In some case the courts may feel unhappy with the decision they have to
come to because of the clear wording of an existing Act of Parliament or because they are bound by
a previous precedent. In this situation the judges may when giving judgment draw attention to the
need to reform.

2. Agencies of Law Reform bodies

Prior to the nineteenth century there were no organized efforts at law reform. In the nineteenth
century there were piecemeal reforms, with some statutes which codifies parts of the criminal law
and others codifying the common law on specialized areas of contract law. Much of this reform
was carried out by individuals, such as Judge Chalmers, whose work led to the Bills of Exchange
Act 1882 and the Sale of Goods Act 1893.
In the twentienth century calls for an institution to be set up with responsibility for law reform led
to the creation in 1934 of the Law Revision Committee. However it was not until 1965 that a full
time body with wide responsibility came into existence in the shape of the Law Commission.

                2.1          Law Reform Committee

This was created in 1952 and was in effect a revival of the pre war Law Revision Committee. It is
part time and considers only small areas of the civil law, often rather narrow and technical points,
which are referred to it by the Government.

                2.2          Criminal Law Revision Committee

This was set up in 1957 and was another part time body which recommended changes to the
criminal law. This committee sat monthly until 1986 and produced 18 reports. One of its main
achievements was the virtual codification of theft and related offences in the Theft Act 1968,
although the Fraud Act 2006 has since been passed to modernize the law on fraud.

                2.3          The Law Commission

This is the main law reform body. It was set up in 1965 by the Law Commission Act. It is a full
time body and consists of a chairman, who is a High Court Judge, and four other Law
Commissioners. There are also support staff to assist with research and four Parliamentary
Draftsmen who help with the drafting of proposed Bills. The role of the Law Commission is set out
in Section 3 of the Law Commissions Act which states:

“It shall be the duty of each of the Commissions to take and keep under review all the law with
which they are respectively concerned with a view to its systematic development and reform,
including in particular the codification of such law, the elimination of anomalies, the repeal of
obsolete and unnecessary enactments, the reduction of the number of separate enactments and
generally the simplification and modernization of the law.’
2.3.1       How law Commission works

Topics may be referred to it by the Lord Chancellor on behalf of the Government, or it may itself
select areas in need of reform and seek governmental approval to draft a report on them.
The law Commissions works by researching the area of law that is thought to be in need of reform.
It then publishes a consultation paper seeking views on possible reform. The consultation paper
will describe the current law, set out the problems and look at options for reform.

Following the response to the consultation paper, the Commission will then draw up positive
proposals for reform. These will be presented in a report which will also set the research that led to
the conclusions.

2.3.2       Functions of Commission

2.3.2.1    Repeal

There are many old and sometimes ridiculous statutes which are still on the statute book, but which
have long since ceased to have any relevance. In order to get rid of this problem, the Law
Commission prepares a Statute Law (Repeals) Bill for Parliament to pass,

2.3.2.2    Consolidation

This is needed because in some areas of law there are a number of statutes, each of which sets out a
small part of the total law. The aim of consolidation is to draw all the existing provisions together
in one Act. The Law Commission produces about five Consolidation Bills each year, though it is
perhaps true to say that as fast as one area is consolidated, another area is being fragmented by
further Act of Parliament.

2.3.2.3    Codification

Codification involves bringing together all the law on one topic into one source of law. It was
specially referred to by S. 3 of the Law commissions Act 1965 as part of the Law Commission was
first formed in 1965 an ambitious programme of codification was announced, aimed at codification
was announced, aimed at codifying family law, contract law, landlord and tenant laws and the law
of evidence. However, the law Commission has gradually abandoned these massive schemes of
codification in favour of what might be termed the ‘building block’ approach.
                2.4          Royal Commissions
Apart from the full time bodies there are also temporary committees or Royal Commissions set up
to investigate and report on one specific area of law. These are dissolved after they have completed
their task.
CH:9 ALTERNATIVE DISUTE RESOLUTION
1. Introduction
Alternative methods are referred to as ‘ADR’ which stands for Alternative Dispute Resolution, and
include any method of resolving a dispute without resorting to using the courts. There are many
different methods which can be used, ranging from very informal negotiations between the parties,
to a comparatively formal commercial arbitration hearing.

2. Different types of Alternative Dispute Resolution (ADR) methods

                2.1          Negotiation
Anyone who has a dispute with another person can always try to resolve it by negotiating directly
with them. This has the advantage of being completely private, and is also the quickest and
cheapest method of settling a dispute. If the parties cannot come to an agreement, they may decide
to take the step of instructing solicitors, and those solicitors will usually try to negotiate a
settlement.

                 2.2          Mediation

This is where a neutral mediator helps the parties to reach a compromise solution. The role of a
mediator is to consult with each party and see how much common ground there is between them.
He/she will explore the position with each party, looking at their needs and carrying offers to and
fro while keeping confidentiality. A mediator will not usually tell the parties his/her own views of
the merits of the dispute; it is part of the job to act as a ‘facilitator’, so that an agreement is reached
by the parties.

                 2.3          Conciliation

This has similarities to mediation in that a neutral third party helps to resolve the dispute, but the
main difference is that the conciliator will usually play a more active role. He will be expected to
suggest grounds for compromise, and the possible basis for a settlement. As with mediation,
conciliation does not necessary lead to a resolution and it may be necessary to continue with a court
action.
2.4          Arbitration
Word arbitration is used to cover two quite different processes, The first is where the courts use a
more informal procedure to hear cases; this is the way proceedings in the Commercial Court of the
Queen’s Bench Division are described. The second meaning of the word ‘arbitration’ is where the
parties agrees to submit their claims to private arbitration; this is the type of arbitration that is
relevant to the Alternate Dispute Resolution, as it is another way of resolving a dispute without the
need for a court case.

Private arbitration is now governed by the Arbitration Act 1996 and Sections 1 of that Act sets out
the principles behind it,

Section 15 of the Act states that the parties are free to agree on the number of arbitrators, so that a
panel of two or three may be used or there may be a sole arbitrator, If the parties cannot agree on a
number then the Act provides that only one arbitrator should be appointed.

The actual procedure is left to the agreement of the parties in each case, so that there are many
forms of hearing, In some cases the parties may opt for a ‘paper’ arbitration, where the two sides
put all the points they wish to raise into writing and submit this together with any relevant
documents, to the arbitrator. He will then read all the documents, and make his decision.
Alternatively, the parties may send all these documents to the arbitrator, but before he makes his
decision both parties will attend a hearing at which they make oral submissions to the arbitrator to
support their case.

The decision made by the arbitrator is called an award and is binding on the parties. It can even be
enforced through the courts if necessary.

2.4.1      Advantages
(i)           The parties may choose their own arbitrator, and can therefor decide whether the matter is
best dealt with by a technical expert or by a lawyer or by a professional arbitrator.
(ii)          If there is a question of quality this can be decided by an expert in the particular field,
saving the expense of calling expert witnesses and the time that would be used in explaining all the
technicalities to a judge.

(iii)         The hearing time and place can be arranged to suit parties.

(iv)         The actual procedure used is flexible and the parties can chose that which is most suited to
the situation; this will usually result in a more informal and rlexaed hearing than in court.

(v)          The matter is dealt with in private and there will be no publicity

(vi)         The dispute will be resolved more quickly

(vii)        Arbitration proceedings are usually much cheaper than going to court.

(viii)      The award is normally final and can be enforced through the courts.

2.4.2      Disadvantages
(i)           An unexpected legal point point may arise in the case which is not suitable for decision by
a non-lawyer arbitrator.

(ii)          If a professional arbitrator is used, his fees may be expensive

(iii)         It will also be expensive if the parties opt for a formal hearing, with witnesses giving
evidence and lawyers representing both sides.

(iv)         The rights of appeal are limited

(v)          The delays for commercial and international arbitration may be nearly as great as those in
the courts if a professional arbitrator and lawyers are used.

2.5          Tribunals
Tribunals operate alongside the court system and have become an important part of the legal
system. They were created in order to give people a method of enforcing their entitlement to certain
social rights.
Tribunals enforce rights which have been granted through social and welfare legislation. There are
many different rights, such as:

 The right to a mobility allowance for those who are too disabled to walk more than a very
short distance

 The right to a payment if one is made redundant from work

 The right not to be discriminated against because of one’s sex race, age or disability

 The right of immigrants to have a claim for political asylum heard.

Tribunals were set up as the welfare state developed, so new developments resulted in the creation
of a new tribunal. The whole system was reformed by the Tribunals, Courts and Enforcement Act
2007. This created a unified structure for tribunals, with a First-tier Tribunal to hear cases at first
instance and an Upper Tribunal to hear appeals.

First tier tribunal operates in seven chambers:

(i)           Social Entitlement Chamber

(ii)          Health, Education and Social Care Chamber

(iii)         War Pensions and Armed Forces Compensation Chamber

(iv)         General Regulatory Chamber

(v)          Taxation Chamber

(vi)         Land, Property and Housing Chamber

(vii)        Asylum and Immigration Chamber

Upper Tribunal is divided into four Chambers:

(i)           Administrative appeals Chamber

(ii)          Tax and Chancery Chamber

(iii)         Lands Chamber

(iv)         Asylum and Immigration Chamber

Cases in the First tier Tribunal are heard by a Tribunal Judge. Also for some types of cases, two lay
members will sit with the judge to make the decision. These lay members will have expertise in the
particular field of the tribunal.

2.5.1      Advantages
Advantages include:

(i)           Cheapness

(ii)          Quick hearings

(iii)         Informality

(iv)         Expertise

2.5.2      Disadvantages
Disadvantages include:

(i)           Lack of funding

(ii)          More formal than ADR

(iii)         Delay
CRIMINAL PROCESS
1. Police Powers
The police like everyone else must respect the individual’s civil rights. However there must be
sufficient powers for the police to investigate crime – Parliament has therefore given them special
powers which can be used in certain circumstances. These powers include the right to stop
suspects, to search them, to arrest and interview people when necessary and to take fingerprints and
samples for scientific analysis.

The law on police powers is mainly contained in the Police and Criminal Evidence Act 1984
(PACE) and the Codes of Practice made under Section 66 of that Act. There are eight codes as
follows:

 Code A: to deal with the power to stop and search

 Code B: for the power to search premises and seize property

 Code C: to deal with the detention, treatment and questioning of suspects.

 Code D: on the rules for identification procedure

 Code E: on the tape recording of interviews with suspects

 Code F: on visual recording with sound of interviews

 Code G: on powers of arrest

 Code H: on detention, treatment and questioning of those arrested under S. 41 of the

Terrorism Act 2000.
1.1  Powers to stop and search
Police powers to stop and search people and vehicles are set out in Sections 1 – 7 of PACE. Section
1 gives the police the right to stop and search people and vehicle in the public place. Public place
not only means in the street, but also extends to areas such as pub, car parks, and even private
gardens, if the police officer has good reason for believing that the suspect does not live at the
address. To use this power under PACE a police officer must have reasonable grounds for
suspecting that the person is in possession of (or the vehicle contains) stolen goods or prohibited
articles.
As these powers are very wide there are safeguards in that the police officer must give his name
and station and the reason for the search. If the officer fails to give a reason for the search, then that
search is unlawful. The police officer must make a written report as soon as possible after the
search.

Code of Practice A contains details and guidance on when these powers should be used. In
particular it stresses that police officers must not act just because of a person’s characteristics.

1.2  Powers of Arrest

Section 24 of PACE sets out the powers the police have to arrest suspects. These powers were
completely changed at the beginning of 2006 by the Serious Organised Crime and Police Act 2005
(SOCPA). Section 110 of SOCPA substituted a new Section 24 in to PACE.

An arresting officer can only arrest if he has reasonable grounds for believing that it is necessary to
make the arrest for one of the following reasons:

 To enable the person’s name or address to be ascertained

 To prevent the person:

o Causing physical injury to himself or any other person

o Suffering physical injury

o Causing loss of or damage to property

o Committing an offence against public decency

o Causing an unlawful obstruction of the highway

 To protect a child or other vulnerable person

 To allow the prompt and effective investigation of the offence or of

the conduct of the person

 To prevent any prosecution for the offence from being hindered by

the disappearance of the person in question.
Lawful arrest is made by fulfilling three following criteria:
(i)          A person’s involvement or suspected involvement or attempted involvement

(ii)          Reasonable grounds for believing that the person’s arrest is necessary

(iii)         Sufficient words of arrest are spoken by the officer at the time of arrest stating the rights
of the accused.

1.3  Powers of Detention

Once a person has been arrested and taken to a police station there are rules setting out very strict
limits on how long they might be held there.

There are also rules about treatment of people in detention; these are contained in PACE as
amended by the Criminal Justice and Public Order Act 1994, together with Code of Practice C.

The time limits are stated as below:

Time factor Event(s)

Arrested person arrives at police station and the custody officer decides there
Start of detention
is a reason to detain that person

Six hours First review by custody officer

15 hours and every nine hours

Second and subsequent reviews by custody officer
thereafter

Summary offence – must charge or release

24 hours Indictable offence – after 24 hours the permission of a super intendant or
above is needed to extend the detention to 36 hours

Police may apply to magistrates to extend the period of detention for an

36 hours
indictable offence

96 hours Maximum time for detaining an arrested person (except under terrorism act
 2006). Police must charge or release suspect.

Longer periods of detention are allowed where the suspect has been arrested for terrorism offences.
1.3.1       Rights of Detained person
Detainees must be told their rights by the custody officer. These rights include:

 Having someone informed of the arrest

 Being told that independent legal advice is available free and being allowed to consult
privately with a solicitor

 Being allowed to consult the code of practice.

2. Right to Silence
Until the Criminal Justice and Public Order Act 1994 was enacted, defendants could refuse to
answer any questions without any adverse conclusion being drawn on their silence of the case came
to trial. The right to remain silent was considered by the Runciman Commission which
recommended that it should be retained in essence. However the Government decided that this rule
was allowing guilty people to go free and that the right to silence should be curbed. This was done
by Ss 34-39 of the Criminal Justice and Public Order Act 1994.

These sections allow inference to be made from the fact that a defendant has refused to answer
question. This change in the law does not mean that the defendant can be forced to speak, he can
still remain silent.

3. Pretrial matters: Bail

A person can be released on bail at any point after being arrested by the police. Being given bail
means that the person is allowed to be at liberty until the next stage in the case.  
The police may release a suspect on bail while they make further inquiries. This means that the
suspect is released from police custody on the condition that they return to the police station on a
specific date in the future.

The police can also give bail to a defendant who has been charged with an offence. In this case the
defendant is bailed to appear at the local Magistrates’ Court on a set date.
The custody officer can refuse bail if the suspect’s name and address given are genuine. Apart from
this the normal principles as to when bail should be granted apply. These are set out in the Bail Act
1976.

Bail Act 1976 is the key Act, starting with the assumption that an accused person should be granted
bail, though this right is limited for certain cases. Section 4 of the Bail Act 1976 gives a general
right to bail but the court need not grant a defendant bail if it is satisfied that there are substantial
grounds for believing that the defendant, if released on bail would:

 Fail to surrender to custody

 Commit an offence while on bail

 Interfere with witnesses or otherwise obstruct the course of justice

The court can also refuse bail if it is satisfied that the defendant should be kept in custody for his
own protection. In deciding whether to grant bail, the court will consider various factors including:

 Nature and seriousness of the offence

 Character, antecedents, associations and community ties of the defendant

 Defendants’ record

 Strength of the evidence against him.