Law and Ethics. Northern Ireland (NI) Course Text. Professional, Practical, Proven.

Transcription

1 Law and Ethics Northern Ireand (NI) Course Text Professiona, Practica, Proven Law NI Manua Manua.indb 1 29/06/ :01

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3 Tabe of Contents FOREWORD...xi SYLLABUS: LAW AND ETHICS (NI)...xvii TABLE OF LEGISLATION...xxv CHAPTER 1: THE NORTHERN IRELAND LEGAL SYSTEM THE BRITISH CONSTITUTION The Organs Of State DEFINITION AND DIVISIONS OF LAW Divisions of Law Civi aw v Crimina aw Crimina and civi cases in practice STRUCTURE AND JURISDICTION OF THE COURTS The crimina court structure The civi court structure SOURCES OF NORTHERN IRELAND S LAW Legisation Case aw and precedent EUROPEAN LAW European Legisation Institutions of The European Union...16 CHAPTER 2: THE LAW OF CONTRACT DEFINITION OF A CONTRACT Types of contracts Essentia eements of a contract...23 iii Law NI Manua Manua.indb 3 29/06/ :01

4 Tabe of Contents Law and Ethics (NI) 2.2 AGREEMENT: OFFER AND ACCEPTANCE Definition of an Offer Distinguishing offers from Invitations to treat Rues of Acceptance Termination of an Offer INTENTION TO CREATE LEGAL RELATIONS CONTRACTUAL CAPACITY Contractua capacity of a company CONSIDERATION Rues of consideration CONTENTS OF A CONTRACT Conditions and warranties Innominate Terms (sometimes referred to as intermediate terms) EXEMPTION CLAUSES (EXCLUSION AND LIMITATION CLAUSES) Incorporation of Exemption Causes Legisation Construction of Exemption Causes...41 CHAPTER 3: DISCHARGE OF CONTRACT METHODS OF DISCHARGE Performance Agreement Notice Breach of Contract Operation of the Law Frustration REMEDIES Common Law Remedies Equitabe Remedies...54 CHAPTER 4: EMPLOYMENT LAW INTRODUCTION TO EMPLOYMENT LAW Distinction between an Empoyee and an Independant Contractor The Four Tests TERMINATION OF AN EMPLOYMENT CONTRACT Dismissa Eigibiity to caim Duty to foow Code of Practice on discipinary and grievance procedures Remedies for Unfair Dismissa (ss of the Order) Constructive Dismissa Wrongfu Dismissa Eigibiity Criteria...76 iv Law NI Manua Manua.indb 4 29/06/ :01

5 Law and Ethics (NI) Tabe of Contents 4.3 REDUNDANCY Empoyee s rights on redundancy Procedure of Good Industria Practice The right to caim unfair dismissa in redundancy cases The tribuna process for redundancy...81 CHAPTER 5: AGENCY LAW INTRODUCTION TO AGENCY LAW Consent and Authority Cassifications of an Agent CREATION OF AN AGENCY DUTIES AND RIGHTS OF AN AGENT Duties owed to the principa Rights of an agent LIABILITY OF AN AGENT TO THIRD PARTY Contracting within authority Contracting outside authority TERMINATION OF AN AGENCY CHAPTER 6: CONSUMER LAW IMPLIED TERMS IN CONSUMER CONTRACTS SALE OF GOODS ACT 1979 (SGA 1979) Impied Terms SUPPLY OF GOODS AND SERVICES ACT 1982 (SGSA 1982) Impied terms REMEDIES THE CONSUMER PROTECTION (NORTHERN IRELAND) ORDER CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS Unfair commercia practices Miseading practices Aggressive practices Prohibited practices Enforcement of the Reguations CHAPTER 7: LAW OF TORT DEFINITION OF TORT NEGLIGENCE Duty of Care Breach of Duty Causation Remoteness v Law NI Manua Manua.indb 5 29/06/ :01

6 Tabe of Contents Law and Ethics (NI) 7.3 DEFENCES IN TORT REMEDIES IN TORT PROFESSIONAL DUTY OF CARE CHAPTER 8: BUSINESS ORGANISATIONS SOLE TRADER A BUSINESS PARTNERSHIP COMPANIES AND LIMITED LIABILITY Limited Liabiity Pubic and Private Companies Corporate personaity CHAPTER 9: LAW OF PARTNERSHIPS TYPES OF PARTNERSHIP DEFINITION OF A PARTNERSHIP THE PARTNERSHIP AGREEMENT RIGHTS AND DUTES OF A PARTNERSHIP Duties of Partners Rights of Partners Authority and Liabiity of a Partner Liabiity of Partners in Contract and Tort DISSOLUTION OF A PARTNERSHIP Debts/osses on dissoution Limited Liabiity Partnership CHAPTER 10: COMPANY FORMATION TYPES OF COMPANIES REGISTRATION OF A COMPANY Companies Registry Certificate of Incorporation (Section 15 CA 2006) Trading Certificate (section 761 CA 2006) Companies off the shef Re-registration of a company THE CONSTITUTION OF A COMPANY Artices of Association Contents of Artices Ateration of an Artice COMPANY NAMES Prohibited names Right to change a company name Pubication of a company name vi Law NI Manua Manua.indb 6 29/06/ :01

7 Law and Ethics (NI) Tabe of Contents CHAPTER 11: COMPANY FINANCE INTRODUTION TO SHARE CAPITAL Definition of a share TYPES OF SHARES Ordinary Shares Preference sharehoders Dividends SHARE CAPITAL Rues to maintain share capita LOAN CAPTIAL DEBENTURES FIXED AND FLOATING CHARGES Crystaisation of a Foating Charge Priority of charges Registration of Charges CHAPTER 12: COMPANY DIRECTORS INTRODUCTION TO DIRECTORS Types of directors The authority of directors Appointment of a director Age imit Remova from office DUTIES OWED BY A DIRECTOR TO A COMPANY Fiduciary Duties Additiona duties of directors CHAPTER 13: AUDITORS AND COMPANY ACCOUNTS INTRODUCTION TO AUDITORS Appointment of an Auditor Companies exempt from an audit DUTIES AND RIGHTS OF AUDITORS Duty to provide a Report Crimina Offences for auditors Rights of Auditors Liabiity of Auditors REMOVAL AND RESIGNATION OF AUDITORS Remova from office Resignation from office COMPANY ACCOUNTS Accounting Reference Dates Accounting Records vii Law NI Manua Manua.indb 7 29/06/ :01

8 Tabe of Contents Law and Ethics (NI) Annua Accounts Directors Report Annua Return Company Secretary CHAPTER 14: COMPANY MEETINGS ANNUAL GENERAL MEETING AND GENERAL MEETING RESOLUTIONS Written Resoutions Voting at Company Meetings PROCEDURE AT COMPANY MEETINGS CHAPTER 15: COMPANY CONCLUSION ADMINISTRATION Appointment of an Administrator The roe of an Administrator Powers and duties of an Administrator Remova of an Administrator The advantages of administration LIQUIDATION Compusory Liquidation Vountary Liquidation Members vountary winding up Creditors vountary winding up Company Vountary Arrangement THE LIQUIDATOR The powers/duties of the iquidator The rues governing the priority of debts The termination of the iquidator s appointment CHAPTER 16: DATA PROTECTION INTRODUCTION TO DATA PROTECTION DEFINITION OF DATA DEFINITION OF A DATA CONTROLLER AND DATA PROCESSOR Registration with the Office of the Information Commissioner s Office DEFINITION OF A DATA SUBJECT OBLIGATIONS IMPOSED UPON DATA CONTROLLERS RIGHTS OF A DATA SUBJECT Right to Estabish the Existence of Persona Data Right of Access Right to have Persona Data Corrected or Erased, where appropriate Right to Object to Discosure of Data to Third Parties viii Law NI Manua Manua.indb 8 29/06/ :01

9 Law and Ethics (NI) Tabe of Contents 16.7 THE ROLE OF THE INFORMATION COMMISSIONER S OFFICE Information Commissioner s Enforcement Powers CHAPTER 17: CORPORATE OFFENCES AND CORPORATE GOVERNANCE COMPANY LAW OFFENCES Frauduent and Wrongfu Trading Money Laundering Insider Deaing CORPORATE GOVERNANCE The Sources of Corporate Governance CORPORATE SOCIAL RESPONSIBILITY INDEX ix Law NI Manua Manua.indb 9 29/06/ :01

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11 FOREWORD Foreword This text has been deveoped by Accounting Technicians Ireand for use by students participating in our programme of study and preparing for our examinations based on the new syabus pubished for the Academic Year Whie every effort is made to ensure that the information outined in this text is accurate, Accounting Technicians Ireand cannot accept the responsibiity for ack of, or perceived ack of, information contained herein. The text is intended to be a sufficienty detaied synopsis of the syabus materia (and knowedge eve required thereof) in reation to this modue. Students shoud take particuar note of the weighting attaching to this modue, as ceary outined in the syabus. It is on the basis of this weighting that students shoud prepare their own timetabe for study. This text aso incudes questions reated to the topics for this modue. These questions are part of a arger database of questions that students (and aso Lecturers) can access onine for this subject. These questions (and suggested soutions) are avaiabe through your TouchPoint porta in the MyRevision area. We recommend that students refer to MyRevision having competed each chapter or a section of this modue. This resource aows students to study and revise onine through sef-test questions. Exam standard questions are aso avaiabe here. We aso recommend students refer to the past exam papers for this modue. These papers are pubished on our website ( aong with suggested soutions and comments from the Examiner. Attempting these under exam conditions wi hep students to prepare for the examination and pan their study time appropriatey. xi Law NI Manua Manua.indb 11 29/06/ :01

12 Copyright This text is issued by Accounting Technicians Ireand to students taking its examinations. It may not be used in whoe, or in part, for any course of study and/or examination of any other body whatsoever without prior permission in writing from Accounting Technicians Ireand. This pubication, or any part thereof, may not be made avaiabe in any ibrary, and it may not be reproduced, in whoe or in part, stored in a retrieva system or transmitted in any form or by any means photocopying, eectronic, eectrostatic, magnetic, pdf, mechanica, recording or otherwise, without prior permission in writing from Accounting Technicians Ireand, Pearse Street, Dubin 2. Acknowedgement This text was reviewed and edited by Ms. Lisa Sturgeon. Lisa is a soicitor and an associate at Napier & Sons, Befast. Referencing For the purposes of consistency, a references to he or she wi be referred to as he in this pubication. No other impication whatsoever is impied from this poicy. xii Law NI Manua Manua.indb 12 29/06/ :01

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17 SYLLABUS: LAW AND ETHICS (NI) Modue: Law and Ethics Mandatory Modue Northern Ireand Syabus xvii Law NI Manua Manua.indb 17 29/06/ :01

18 Syabus : Modue: Law and Ethics (NI) Law and Ethics (NI) Law and Ethics Subject Status Mandatory Termina Exam 100% Modue Pass Mark 50% Learning Modes Pre-requisite: Direct Lectures, Workshops, Onine Tutorias, Onine Learning Programme Entry Requirements Key Learning Outcome The key outcome of this modue is to provide earners with Knowedge and understanding of the key concepts and fundamenta principes of aw and ethics and the practica appication of them in the context of business and commercia activities. Emphasis wi be on the recognition of ega and ethica issues which may require the expertise of speciaists. Key Syabus Eements and Weightings 1. Introduction to Law... 40% 2. Company Law... 40% 3. Corporate Governance, Ethics & Data Protection... 20% xviii Law NI Manua Manua.indb 18 29/06/ :01

19 Law and Ethics (NI) Syabus : Modue: Law and Ethics (NI) Learning Outcomes inked to Syabus Eements Introduction to Law On competion of this aspect of the modue, earners wi have acquired the foowing knowedge, competencies and know-how:- (a) (b) (c) An understanding of the roe various sources of aw, divisions of aw, the structures and jurisdictions of the Courts; A detaied comprehension of the key eements and principes of a vaid contract and empoyment aw; Knowedge of the genera principes of tort, agency and consumer aw. Company Law On competion of this aspect of the modue, earners wi have acquired the foowing knowedge, competencies and know-how:- (a) (b) (c) (d) (e) (f) (g) (h) The abiity to identify and differentiate between various business entities; An understanding of the registration procedure of ega entities; An understanding of the consequences of incorporation; Be abe to describe and anayse the roes of the officers of a company; A detaied comprehension of the concept of capita and the abiity to identify the different methods by which a company can raise share capita and oan capita; The recognition of the statutory requirements in specific business scenarios pertaining to financia statements, reports and returns scenarios; A detaied understanding of the different types of meetings, resoutions and requirements to vaidate a meeting; An understanding of the concepts and the effects of receiverships and iquidations. Corporate Governance, Ethics & Data Protection On competion of this aspect of the modue, earners wi have acquired the foowing knowedge, competencies and know-how:- (a) (b) (c) (d) A basic understanding of the ethica obigations imposed upon persons deaing with financia information, products and services and in particuar ethica obigations imposed upon company directors and auditors; Recognition of the main tenets of corporate governance that appy to both isted and unisted companies, as we as the ethica obigations imposed under the vountary code. An appreciation of Data Protection egisation and the requirements paced on an organization when storing and processing persona data, and processing data access requests. A basic understanding of the roe of the Information Commissioner. xix Law NI Manua Manua.indb 19 29/06/ :01

20 Syabus : Modue: Law and Ethics (NI) Law and Ethics (NI) MODULE: LAW AND ETHICS (NI) Specific Functiona Knowedge and Competencies Understanding Appication Anaysis Introduction to Law (40%) Sources of Law The UK Legisature Divisions of aw: civi and crimina Structure and jurisdiction of the UK Courts EU Law (primary sources, secondary sources, EU institutions) Contract Formation of a contract: offer, acceptance, consideration, capacity and intention to create ega reations Terms of a contract: express terms, impied terms and exemption causes Discharge of contracts, breaches of contract and remedies for breaches of contract Empoyment Law The contract of empoyment: contracts of services and contracts for services Dismissa: wrongfu, unfair and constructive - avaiabe remedies - redundancy Agency Creation of agency, termination of agency, rights and duties Consumer Law The Suppy of Goods and Services Act 1982, the Sae of Goods Act 1979 Tort Genera principes of negigence (incuding professiona negigence), remedies and defences xx Law NI Manua Manua.indb 20 29/06/ :01

21 Law and Ethics (NI) Syabus : Modue: Law and Ethics (NI) Specific Functiona Knowedge and Competencies Understanding Appication Anaysis Company Law (40%) Introduction Various business entities: soe traders, companies (private and pubic, imited and unimited) and partnerships Formation of a Company Memorandum and Artices of Association Registration procedure (incuding forms to be submitted to the Companies Registry) Consequences of incorporation, certificate of incorporation Company Finance Share Capita: cassifications of share capita, types of shares, payment for shares, issuing at a premium, issuing at a discount Loan Capita: debentures and charges Management of a Company Directors: types of directors, appointment, remova, rights and duties Auditors: appointment, remova, powers and duties Financia statements reports and returns Company accounts and the annua return Meetings Types of meetings: Directors, AGM, EGM Procedures at meetings: voting, proxies, quorums etc. Company Concusion Receivership and Liquidation (members and creditors vountary and compusory iquidation) xxi Law NI Manua Manua.indb 21 29/06/ :01

22 Syabus : Modue: Law and Ethics (NI) Law and Ethics (NI) Specific Functiona Knowedge and Competencies Understanding Appication Anaysis Corporate Governance, Ethics & Data Protection (20%) Ethica Obigations on Company Officers Company directors and auditors ethica obigations incuding: (1) whiste-bowing obigations (money aundering, suspicion of indictabe offences, financia irreguarities etc) and (2) corporate offences (frauduent, reckess and insider trading) Corporate Governance Rues Rues on corporate governance mandatory and non-mandatory isting rues vountary code Data Protection Legisation Roe of the Data Controer Rues for the storing and processing of Persona Data Rues for processing data access requests Roe of the Information Commissioner xxii Law NI Manua Manua.indb 22 29/06/ :01

23 Law and Ethics (NI) Syabus : Modue: Law and Ethics (NI) Assessment Criteria Assessment Techniques 100% Assessment based on the fina examination. Format of Examination Paper 13 questions with 9 to be competed in tota. Section A is compusory answer 1 question (Corporate Governance, Ethics & Data Protection). Answer any 4 out of 6 questions in Section B (Company Law); Answer any 4 out of 6 questions in Section C (Introduction to Law). SECTION A: Corporate Governance, Ethics and Data Protection Question 1: 20 marks mixture of theory and probem based question. Compusory question. SECTION A: Company Law Questions 2-7: 10 marks each mixture of theory and probem based questions. Answer 4 out of 5 questions SECTION B: Introduction to Law Questions 8-13: 10 marks each mixture of theory and probem based questions. Answer 4 out of 5 questions Essentia Reading Law & Ethics (Northern Ireand) Author: Accounting Technicians Ireand Web Resources (Information Commissioner s Office) Legisation Companies (Northern Ireand) Order 1986 The Companies (Northern Ireand) Order 1989 The Companies Act 2006 xxiii Law NI Manua Manua.indb 23 29/06/ :01

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25 Law and Ethics (NI) Tabe of Legisation TABLE OF LEGISLATION TABLE OF LEGISLATION Companies Act 2006 Companies Directors Disquaification (NI) Order 2002 Consumer Protection from Unfair Trading Reguations 2008 Data Protection Act 1998 Dogs (Amendment) Act Northern Ireand 2011 Empoyment Equaity (Age) Reguations (Northern Ireand) 2006 Empoyment Rights (Northern Ireand) Order 1996 Equaity Act (Sexua Orientation) Reguations (Northern Ireand) 2006 Insovency (Northern Ireand) Order 1989 Limitation Act 1980 Limited Liabiity Partnership Act 2000 Limited Partnership Act 1907 Money Laundering Reguations 2007 Partnership Act 1890 Proceeds of Crime Act 2002 Sae of Goods Act 1979 (as amended) Student Loans (Amendment) Act (Northern Ireand) 2011 Suppy of Goods and Services Act 1982 Unfair Contract Terms Act 1977 (UCTA) as amended Unfair Terms in Consumer Contracts Reguations 1999 Working Time Reguations (Northern Ireand) 1998 Pease Note: Students are ony expected to be famiiar with the parts of the egisation that are referred to in this manua. Students are not expected to downoad the egisation in fu. The materia in this manua is sufficient for exam purposes. xxv Law NI Manua Manua.indb 25 29/06/ :01

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27 CHAPTER 1: THE NORTHERN IRELAND LEGAL SYSTEM CHAPTER 1 The Northern Ireand Lega System Law is a system of rues that exist in society to protect persons and their property. Law can be examined by distinguishing between crimina and civi aw and earning about the roe of courts in society. The courts interpret the rues of aw, hod persons accountabe for their actions and punish persons who break the aw. Law is created from a number of sources and this chapter examines the estabishment of a ega system in Northern Ireand and the impact of European aw on the ega system in Northern Ireand. LEARNING OUTCOMES Upon competion of this chapter you shoud be abe to: 1. Understand the roe of the Constitution and identify the organs of State. 2. Define aw and distinguish between crimina and civi aw. 3. Describe the different court structures and discuss the jurisdiction of the crimina and civi aw courts. 4. Identify the main sources of aw in Northern Ireand. 5. Discuss the main types of European Legisation. 6. Identify the main European Institutions. REVISION RESOURCES EXAM QUESTIONS: Sampe and Past papers are avaiabe from the website of Accounting Technicians Ireand and are essentia aids when studying Law and Ethics topics Law NI Manua Manua.indb 1 29/06/ :01

28 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) 1.1 THE BRITISH CONSTITUTION A Constitution can be defined as a set of aws that state how a country shoud be governed. Some countries such as Ireand and the United States have a written Constitution, which means that a the aws are contained in one singe document, known as the Constitution. This can be contrasted to the United Kingdom, where the Constitution is unwritten and so a the aws that state how the United Kingdom shoud be governed are not contained in one document, but come from severa sources or documents. The main sources of the British Constitution come from: Acts of Pariament European and Internationa Treaties EU aw Common Law/Case aw European and Internationa Conventions There are those who woud ike the United Kingdom to adopt a written Constitution as they beieve that if a the aws were codified in one document this woud aow peope s rights to be defined in cear and basic anguage and woud ensure the maximum protection of these rights. Those in favour of retaining the current unwritten constitution argue that an evoving society needs a fexibe interpretation of rues and rights and that a written constitution woud instead create a set of rigid rues that are difficut to change The Organs Of State The Monarch is the head of the UK state, however, she does not exercise any power. The powers of the state are divided between the foowing three organs of state: the egisative, the executive and the judiciary. This division of power is known as the doctrine of the separation of powers and is an underying principe in any democracy. This doctrine means that a power is not given to a singe organ of state but is divided between a the three organs. In a state where there is a written Constitution, such Ireand, the written document states how the powers are divided and kept separate; athough in reaity there is aways some interaction and overap between them. Athough, there is not a written Constitution in the UK it is possibe to see the division of powers and how the separate organs function in practice. As you wi see each of these three organs are invoved in the aw making process. The Legisature: The egisature is the aw making body. In the UK, Pariament is the egisature and consists of the directy eected Members of Pariament (MP s) and the uneected members of the House of Lords. The egisative power is hed by Pariament who draft and vote on the aws to come into effect. They therefore have the power to make new aw or ater/repea existing aw. The Executive: The executive consists of the Crown and Government, incuding the Prime Minister and cabinet Ministers. They formuate poicies for the effective impementation of the aw. The executive power is hed by the Government and it has the power to impement the aws passed by Pariament. The Judiciary: The Judiciary have the power of interpreting the aw made by Pariament and appy the aw correcty. They aso have the power to create aw Law NI Manua Manua.indb 2 29/06/ :01

29 Law and Ethics (NI) Chapter 1 : The Northern Ireand Lega System 1.2 DEFINITION AND DIVISIONS OF LAW The aw is a system of rues and reguations estabished to maintain order and ensure that justice, and access to it, prevais in society. The aw provides for a court structure to determine if a rue has been broken and to prescribe sanctions and remedies for any such breach Divisions of Law The most common way of cassifying aw is to distinguish between crimina and civi aw. However, it shoud be noted that there are aso other cassifications such as Pubic, Constitutiona, and Administrative aw. Crimina aw The aim of crimina aw is to uphod the moraity of society by prohibiting acts contrary to pubic order and by punishing those who carry out such acts. Anyone accused of committing such acts wi be charged with a crimina offence. Crimina offences range from minor offences, such as driving without a seatbet to more serious offences, such as burgary, rape or murder. Sanctions for offences range from a fine to imprisonment depending on the seriousness of the offence. The prosecution of an offence is carried out by the Northern Ireand Pubic Prosecution Service (PPS) on behaf of the state in a crimina court. Generay, the PPS must prove beyond reasonabe doubt that the accused committed the offence. This is a higher burden of proof than in the civi courts because of the overriding pubic interest and the serious and mora nature of a crimina prosecution. An exampe of a crimina offence in reation to company aw is frauduent trading (see 18.3 in the manua). This offence carries a maximum of 10 years imprisonment and/or a fine (Companies Act 2006 s. 993(3)(a)). Civi aw The aim of civi aw is to reguate and resove disputes between parties. Civi actions are taken by one party who issues proceedings (a caim) against another party and do not generay invove the State (uness the wrongdoer is the state). The civi courts wi determine if a private aw right of the party is breached and if so, wi impose an appropriate remedy, for exampe the payment of compensation by one party to the injured party. In order to be found iabe in civi aw, generay the injured party must prove its case on a baance of probabiities that the other party was in the wrong. This means that the court determines which version of events is more or ess or ess ikey to have happened; the paintiff s version or the defendants version. Contract aw is an exampe of civi aw and is one of the most important areas for Accounting Technician students to be famiiar with. Tort, consumer and empoyment aw are a further exampes of civi aw which you wi study. Pubic aw and private aw Law can be further divided into pubic aw and private aw. Pubic aw reguates reations between individuas and pubic bodies, for exampe government departments or oca councis and deas with matters that affect society as a whoe. Private aw reguates reations between private individuas, Law NI Manua Manua.indb 3 29/06/ :01

30 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) incuding businesses or companies. There is no pubic eement in private aw as it is for the private individua concerned to take an action against the other individua. Generay, crimina aw is described as a pubic aw and civi aw is considered a private aw Civi aw v Crimina aw The foowing tabe iustrates the comparison between crimina and civi aw in Northern Ireand: Factors Crimina Law Civi Law Cassifications Parties Invoved Objectives Tests appied by the Court to determine iabiity Heard by Pubic aw referred to as a Prosecution Prosecution (in the name of the Queen) and the Defence e.g. R v Jones Defendant is prosecuted: Punishment as we as incapacitation, retribution, deterrence and rehabiitation Beyond a reasonabe doubt A judge acts as the tribuna of aw and a jury acts as the tribuna of fact Private aw referred to as a civi action Caimant and the Defendant e.g. Smith v Carke Defendant is sued: Compensation and ceasing the unwanted action Baance of probabiities (ower than crimina - question of whether more or ess ikey) Generay by a judge sitting aone. Some civi actions are heard by a judge and jury. Finding Guity/not guity Liabe/not iabe Commencement of proceedings Penaties/ Remedies Exampes PPS through summons or indictment Fines, imprisonment, probation orders, community service orders Murder, theft, frauduent trading etc Initiated by way of peadings / writ Damages, injunctions, rescission, court orders, an account for profits Breach of contract, negigence, trespass Crimina and civi cases in practice One incident can give rise to both crimina and civi proceedings. For exampe, if a pedestrian is knocked down by a speeding driver, the State can prosecute the driver for the offence of speeding in the crimina courts and the pedestrian can sue the driver for compensation for negigence in the civi courts. The infamous case of OJ Simpson is an exampe of one incident that ed to two sets of proceedings. Despite the fact that OJ Simpson was found not guity of murder in the crimina courts, the famiy of his murdered wife issued an action in the civi courts where he was found iabe. Aso, more recenty in Law NI Manua Manua.indb 4 29/06/ :01

31 Law and Ethics (NI) Chapter 1 : The Northern Ireand Lega System Northern Ireand, defendants in the Omagh Bomb tria, who were found not guity in the murder tria were ater found iabe in the civi aw tria. The crimina court proceedings require a higher standard of proof than the civi aw proceedings. The prosecution must prove beyond a reasonabe doubt that the driver was guity of an offence. In the civi courts, the pedestrian must prove on the baance of probabiities that the driver caused the injuries. As the OJ Simpson case and the Omagh Bomb tria prove, it may be possibe to be found iabe in civi proceedings even when you are found not guity in crimina proceedings. This is because the crimina proceedings face the higher burden of proof. Note: Any conviction in the crimina court is admissibe in the civi proceedings to prove that the offence was committed, thus providing the basis of the civi action. 1.3 STRUCTURE AND JURISDICTION OF THE COURTS The distinction between crimina and civi aw means that the courts are divided into two separate court structures. Both structures are shaped ike a pyramid and are hierarcha in nature. A cases start in the ower (inferior) courts in the first instance and ony a few cases wi reach the higher (superior) courts. As you wi see the majority of cases start and finish in the ower courts, but a person has the right to appea to a higher court against certain decision made by the ower court The crimina court structure Law NI Manua Manua.indb 5 29/06/ :01

32 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) JURISDICTION OF THE CRIMINAL COURTS: 1. Magistrates Court The Magistrates Court deas mosty with minor or ess serious crimina aw matters and is known as the inferior crimina court. There are 21 petty session districts in Northern Ireand and the particuar court that is assigned to hear your case depends upon (1) where the aeged offence was committed or (2) where the defendant resides. In the Magistrate s Court, one egay quaified Magistrate caed a Resident Magistrate (RM) sits aone, without a jury. The RM wi isten to the evidence and decide if the defendant is guity or not. Magistrates are addressed as Your Worship. The RM wi send the defendants who are charged with more serious offences (indictabe offences) to the Crown Court for hearing. In reation to crimina aw matters in the Magistrates Court, the court normay ony hears summary offences (minor offences) and 98% of proceedings started in this court aso end in this court. However a defendant may opt to have a case which coud be tried by a jury tried before a Resident Magistrate aone. The maximum sanction that can be imposed by the court is a 18 months imprisonment and/or a fine not exceeding 5,000. The defendant has a right to appea to the County court (civi court) against his conviction and/or sentence imposed by the Magistrate s court. If he peads guity he can ony appea against his sentence. There is aso the option to appea by way of case stated where it appears that the ower court has wrongy interpreted the aw. The Youth Court is part of the Magistrates court and hears cases where a young person aged between 10 and 17 years od is charged with a crimina offence. The Resident Magistrate sits with two ay Magistrates (non-egay quaified persons) and hears the case. There is no jury. There is restricted access into the court when cases are being heard and ony some persons are aowed into the court; the young person charged, their ega guardian, awyers for the young person and for the prosecution, probation officers and journaists. Journaists may be restricted from printing a the information, such as the young person s name. 2. Crown Court The Crown Court sits at 13 ocations throughout Northern Ireand and has two main functions: (1) Hears a indictabe (serious) offences, such as murder, rape, conspiracy and robbery. Proceedings wi commence with the arraignment of the accused where he wi pead guity or not guity. The vast majority of cases are heard by one Judge and a Jury (consisting of 12 persons mae and femae) seected from members of the Pubic. There is a right to appea against conviction and/ or sentence or to appea by way of case stated. The defendant may appea his case to the Court of Appea on a point of aw ony, but this right to appea is not automatic. The defendant must first get eave to appea which in essence is permission by the Judge to appea to a higher court. (2) Hears appeas against conviction or ength of sentence from the Magistrates Court In appea cases the Judge sits without a jury. The Judge wi rehear the matter and the appea wi be either dismissed and the conviction stands or the appea wi be aowed and the conviction overturned. If your conviction stands the ength of your sentence may be reduced, increased or remain the same Law NI Manua Manua.indb 6 29/06/ :01

33 Law and Ethics (NI) Chapter 1 : The Northern Ireand Lega System 2(a). Non-Jury trias Non-jury trias courts were previousy known as the Dipock courts. The Dipock courts were introduced during the 1970 s in cases where the defendants were charged with paramiitary offences and it was considered that there was a risk of jury intimidation or tampering. Athough the Dipock courts were aboished in 2007, the option to hod non-jury trias is sti avaiabe but is no onger restricted to paramiitary offences. For exampe, a defendant charged with a serious and compex frauduent offence under the Proceeds of Crime Act 2002 may be tried without a jury, provided it can be proved that there is a risk of jury intimidation. It is important to note that non-jury trias are ony to be hed in exceptiona circumstances. 3. Court of Appea The Court of Appea is an appeate court and is the highest court in Northern Ireand, athough there is a right to appea to the UK Supreme Court. This means that the court does not hear cases for the first time, but hears appeas from the ower courts concerning the appication and interpretation of the aw. Normay two to three judges wi sit in each case (no jury). The Court is divided into two sections, civi and crimina. In reation to crimina aw, the Court has jurisdiction to hear appeas from the Crown Court. After hearing the evidence, the Court of Appea may exercise one of the foowing options: Aow appea and acquit defendant Aow appea and reduce, vary or increase sentence Aow appea and order a retria Dismiss appea An appea from the Court of Appea ies in the UK Supreme Court, but ony on a point of aw of major pubic importance. 4. The Supreme Court The Supreme Court is the fina court of appea for civi cases in the United Kingdom and hears crimina appeas from Engand, Waes and Northern Ireand. It hears cases of the greatest pubic or constitutiona importance affecting the whoe popuation. It wi ony hear appeas regarding decisions on points of aw in cases of major pubic importance. Five Justices usuay wi hear the case (this has been increased to seven or nine on occasion). There has to be an odd number in order to ensure that there can be a majority verdict. The Supreme Court is the ony court at present in the UK where the proceedings can be teevised. It is important to note that decisions by The Supreme Court are sti subject to a higher aw; European aw. The importance and supremacy of European aw is discussed ater in this chapter Law NI Manua Manua.indb 7 29/06/ :01

34 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) The civi court structure JURISDICTION OF THE CIVIL COURTS: 1. Magistrates Court: As stated the magistrates court is mainy a crimina court, however, it does have jurisdiction to hear some civi aw matters, such as appications for certain icences, for exampe, the icence to se acoho. And the court wi hear some other civi matters reating to famiy aw proceedings, ejectment disputes between andord and tenant or debt coection matters. It is possibe to appea against the decision or by way of case stated to a higher court Law NI Manua Manua.indb 8 29/06/ :01

35 Law and Ethics (NI) Chapter 1 : The Northern Ireand Lega System 2. County Court: The County Court is the argest civi court. Matters are heard in one of the seven County Court Divisions by County Court Judges. Judges are addressed as Your Honour. Due to the arge voume of work County Court Judges are assisted by District Judges. Most of the civi work invoves disputes in contract and tort with a vaue of ess than 15,000 or in equity matters a vaue of ess than 45,000. A District Judge wi hear cases up to a vaue of 5000 and any cases with a vaue ess than 2000 wi be deat with by the informa Sma Caims process. The County Court wi aso hear disputes in reation to the recovery and tite of and, equity matters, such as trusts, and other matters incuding the granting of iquor icences and some famiy aw matters, such as uncontested divorces. There is a right to appea to the High Court on a decision made by the County Court or in some cases there may be a right to appea directy to the Court of Appea. 2(a) Sma Caims Court: This court hears matters where the vaue of the caim is ess than The court is designed so that it is not necessary to have a soicitor to represent you in the sma caims court. If the respondent (person you are caiming against) does not turn up or you win your case then a county court judgment wi be granted against the respondent. This judgment may affect the credit history of the respondent. The types of matters usuay heard are debt recovery cases that reate to: compensation for fauty goods or compensation for unsatisfactory services disputes between andords and tenants, for exampe where the deposit has not been returned or where there are rent arrears. disputes reating to damage to property 3. Tribunas: The Fair Empoyment Tribuna and the Industria Tribunas hear cases that invove disputes between empoyers and empoyees. The Fair Empoyment Tribuna hears caims that reate to caims of discrimination on poitica or reigious grounds and the Industria Tribuna hears caims reating to a other disputes. For exampe, unfair dismissa, breach of empoyment contract, and caims of discrimination on grounds other than reigion and poitics, for exampe, grounds of age, sex, race, disabiity, or sexua orientation. This is provided in more detai in the empoyment chapter of this manua. 4. High Court: The High Court hears civi aw matters and is divided into three divisions: Queen s Bench Division: This is the argest division and deas with actions based in tort and contract with a vaue over 15,000. It has a supervisory roe over the inferior courts and most County Court appeas are heard in this division. Aso, appeas from the Crown Court are deat with here. The Queen s Bench Division is further divided into various separate sub-divisions, for exampe commercia aw matters are isted in the commercia ist and heard in the commercia court Law NI Manua Manua.indb 9 29/06/ :01

36 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) The Commercia Court: This court deas with cases invoving nationa and internationa business disputes. The caims amongst other things can reate to the aeged breach of a business contracts. Caims that go to the commercia court usuay invove compex financia and ega issues are deat with as quicky and efficienty as possibe. Chancery Division: Deas mosty with equity matters, such as and and trusts. It aso deas with bankruptcy, winding up proceedings and other partnership and company aw matters. Famiy Division: Deas with compex famiy aw matters such as divorce, custody and adoption. High Court cases may be heard by any of the three Lord Justices of Appea or by one of the ten High Court Judges. Trias wi be heard by a singe judge, but there is a right to tria by judge and jury in some cases, such as ibe, sander, maicious prosecution and fase imprisonment cases. Judges are addressed as My Lord or Your Lordship. A three divisions may hear appeas from inferior courts. There is a right to appea a decision of the High Court to the Court of Appea or in some situations, directy to the Supreme Court. 5. Court of Appea (see aso crimina aw jurisdiction). The Civi Division of the Court of Appea hears appeas from the High Court where the vaidity of a aw is chaenged and hears appeas by way of case stated from the High Court, County Court and the Industria Tribunas (Industria Tribunas wi be discussed further in chapter 4). As stated the Court of Appea may uphod, amend or reverse any decision of the previous court or order a new tria. 6. Supreme Court (See crimina aw jurisdiction). 1.4 SOURCES OF NORTHERN IRELAND S LAW The ega system in Northern Ireand (in the UK generay) is a common aw system and this means that both judges and Pariament are aw making bodies. The UK Pariament and the Northern Ireand Assemby enact egisation that comes in the form of an Act of Pariament/Assemby. Legisation is regarded as the most important source of aw and if there is a confict between egisation and aw created by judges, egisation prevais. Law created by judges is referred to as case-aw. Case aw is created when a judge gives a written judgment containing their decision on a dispute that has come before the court. When a simiar dispute comes before a judge in a future case that judge wi ook back to previous written judgment of the other judges, and wi be guided by these oder judgments or precedents in making a decision in the present dispute. The third source of aw comes from Europe. When the United Kingdom joined the European Union in 1973 this resuted in European aw becoming a third source of aw in the United Kingdom Law NI Manua Manua.indb 10 29/06/ :01

37 Law and Ethics (NI) Chapter 1 : The Northern Ireand Lega System Therefore, there are three main sources of aw in Northern Ireand: I. Legisation (made by the Pariament/Assemby) II. Case aw (made by the Judges/Courts) III. EU Law (made by the European Institutions) Legisation Legisation is regarded as the most important source of aw in the UK. Under the UK democracy, the fundamenta concept of pariamentary sovereignty exists, which means that pariament is the supreme aw-making body. In some common aw countries where there is a written constitution, for exampe in Ireand, the egisation enacted by the Pariament can be chaenged and invaidated if the egisation conficts with a constitutiona principe. As the UK does not have a written constitution, Pariament can make, change and ater aws without such chaenges. In Northern Ireand, egisation is created by both Pariament and the NI Assemby (not a egisation passed by the UK Pariament appies to Northern Ireand). Legisation is commony referred to as statute aw and consists of primary and secondary egisation. Primary egisation: Primary egisation is enacted by both Pariament and the NI Assemby. It is impemented in the form of Acts, for exampe, Companies Act 2006 or in the form of Orders, for exampe the Empoyment Law (NI) Order A Pariament Act is impemented into aw after it has passed through and been approved by the House of Commons (Pariament), the House of Lords and has received Roya Assent. Northern Ireand Acts are passed by the Assemby and do not pass through the House of Commons and Lords, but go through a simiar process of debate and approva in the Assemby. Acts passed by the Assemby must receive Roya Assent from Her Majesty before they become aw. Pariament and the Assemby have the power to make new aw, ater existing aw and codify common aw (i.e.write into egisation the aw made by judges). An exampe of Pariament codifying principes that have emerged in case aw is the Companies Act Prior to this egisation, some of the duties owed by a director to a company were not written into statute. These duties were referred to as the fiduciary duties of a director and were enshrined in common aw. These duties have now been given a statutory footing and are incorporated in the Companies Act 2006 ss Recent primary egisation passed by the NI Assemby incude the Dogs (Amendment) Act Northern Ireand 2011, the Student Loans (Amendment) Act 2011, the Empoyment Act (Northern Ireand) 2011 and the Sunbeds Act (Northern Ireand) Deegated or Secondary egisation: Pariament/NI Assemby do not have the resources or time to impement every new piece of egisation, so a power is invested in them to deegate egisation to another body, such as a government minister or a pubic or oca authority. This deegated egisation originates from the primary egisation and is aso referred to as secondary egisation. Usuay secondary egisation is much shorter than primary egisation in ength Law NI Manua Manua.indb 11 29/06/ :01

38 Chapter 1 : The Northern Ireand Lega System Law and Ethics (NI) In Northern Ireand secondary egisation takes the form of Statutory Rues which are impemented as usuay as Reguations e.g. The Equaity Act (Sexua Orientation) Reguations (Northern Ireand) These Reguations prohibit discrimination on the grounds of sexua orientation in the provision of goods and services, education and the exercise of pubic function. Therefore, the Reguations make it unawfu for a business or a pubic authority to treat a person ess favouraby than another on the grounds of his or her sexua orientation when providing goods, faciities or services. The primary egisation that these Reguations derive their origins from is the Equaity Act This Act did not prohibit discrimination on the grounds of sexua orientation, but contained a cause that stated that secondary egisation (Reguations) coud be impemented at a ater stage to prohibit sexua orientation egisation. The advantage of deegated egisation is that it enabes the egisation to be passed (and if necessary changed at a ater date) more quicky, by avoiding the sometimes sow and cumbersome process in Pariament/Assemby. Secondary egisation aso aows the experts in the area of the egisation to be invoved in the making of the egisation, for exampe government ministers and their Departments who may have a more detaied and technica knowedge of the area than the seected committee of MP s. Therefore, in contrast to primary egisation it is not Pariament, but a separate branch of government that drafts the egisation, therefore Pariament/Assemby does not usuay have the power to amend secondary egisation. However, they do have the power to approve or reject secondary egisation in advance of impementation into aw. The disadvantage of the process of deegated process is that it enabes a arge voume of compex egisation to exist in the one area of aw and the ack of pubicity surrounding the impementation of the deegated egisation means that peope may be unaware of the changes in aw. The courts have a unique power in reation to deegated egisation. As deegated egisation is impemented by a range of bodies, without advance approva of Pariament, the courts have the power to judiciay review any part of secondary egisation and decare it invaid. The courts can chaenge the egisation on the ground that the body who impemented the egisation did not have the correct power to do so (acted utra vires meaning outside their powers), or such a body did not use the correct procedure for impementation. The courts do not have the same power to chaenge the primary egisation because of the principe of pariament supremacy Case aw and precedent A distinctive feature of our common aw system is that decisions made by judges in previous cases can form a source of aw. However, it is the Queen in Pariament and not the judiciary who form the egisature. Therefore, if two barristers argue a case in front of a judge and one of the barristers has found a precedent (a judgment made by a judge in a previous simiar case in a superior court to the one they are in) that heps his case, but the other barrister points to a conficting statute, it is the statute and not the precedent which the judge is bound to foow. Case aw is usuay created when the existing aw is sient on the matter or where the egisation is uncear. It has deveoped over centuries and deveops every day. Each piece of case aw estabishing a principe of aw (commony referred to as a precedent) which must be appied by ower courts in future cases. This is known as the doctrine of binding precedent (or in Latin stare decisis which means stand by things that have been decided) Law NI Manua Manua.indb 12 29/06/ :01