THE ENGLISH LEGAL SYSTEM

Transcription

1 THE ENGLISH LEGAL SYSTEM Seventh Edition Gary Slapper, LLB, LLM, PhD, PGCE (Law) Professor of Law, and Director of the Centre for Law, The Open University David Kelly, BA, BA (Law), PhD Principal Lecturer in Law, Staffordshire University Cavendish Publishing Limited London Sydney Portland, Oregon

2 CONTENTS Preface Acknowledgments Table of Cases Table of Statutes Table of Statutory Instruments Table of EC Legislation Table of Abbreviations v vn xj x xxx{ xxxix x\[ x\{a CHAPTER 1: LAW AND LEGAL STUDY INTRODUCTION THE NATURE OF LAW CATEGORIES OF LAW Common law and civil law Common law and equity Common law and statute law Private law and public law Civil law and criminal law THE SEPARATION OF POWERS Parliamentary sovereignty Judicial independence Parliamentary Commissioner for Standards THE RULE OF LAW AV Dicey FA von Hayek EP Thompson Joseph Raz Roberto Unger Max Weber The Rule of Law and the contemporary form of law HUMAN RIGHTS DISCOURSE AND THE RULE OF LAW THE HUMAN RIGHTS ACT Judicial interpretation and application of the Human Rights Act The sentencing process, the separation of powers and the HRA CHAPTER 2: SOURCES OF LAW EUROPEAN COMMUNITY LEGISLATION The pre-parliamentary process The legislative process The drafting of legislation Types of legislation Delegated or subordinate legislation Advantages in the use of delegated legislation Disadvantages in the prevalence of delegated legislation CASE LAW 75

3 The English Legal System Precedent Law reporting Precedent within the hierarchy of the courts Binding precedent Advantages of case law Disadvantages of case law BOOKS OF AUTHORITY CUSTOM LAW REFORM CHAPTER 3: THE CIVIL COURT STRUCTURE THE COURT SERVICE MAGISTRATES' COURTS COUNTY COURTS THE HIGH COURT OF JUSTICE The Queen's Bench Division The Queen's Bench Divisional Court The Chancery Division The Chancery Divisional Court The Family Division The Family Divisional Court APPEALS FROM THE HIGH COURT THE COURT OF APPEAL (CIVTL DIVISION) REFORMS TO THE APPEAL PROCESS Background Changes made by the Access to Justice Act 1999 (Part IV) Right to appeal Destination of appeals Civil Division of Court of Appeal Jurisdiction of single judge of High Court The Civil Procedure Rules The Courts Act 2003 THE HOUSE OF LORDS THE EUROPEAN COURT OF JUSTICE THE EUROPEAN COURT OF HUMAN RIGHTS JUDICIAL COMMITTEE OF THE PRIVY COUNCIL CIVIL COURT FEES CHAPTER 4: THE CRIMINAL COURT STRUCTURE CORONERS' COURTS THE CRIMINAL TRIAL COURTS MAGISTRATES' COURTS Summary trial Offences triable 'either way' Youth Courts Indictable offences - committal proceedings The Access to Justice Act magistrates' courts

4 Contents 4.4 THE CROWN COURT The judges Jurisdiction Delay Magistrates' courts v Crown Courts 4.5 CRIMINAL APPEALS Appeals from magistrates' courts Appeals from the Crown Court The Access to Justice Act jurisdiction Judicial Committee of the Privy Council Royal Commission on Criminal Justice Criminal Cases Review Commission A MISCARRIAGE OF JUSTICE REFORM OF THE CRIMINAL COURTS CHAPTER 5: JUDICIAL REASONING INTRODUCTION Law and logic REASONING IN GENERAL Deductive reasoning Inductive reasoning Reasoning by analogy JUDICIAL REASONING The syllogism in law The logical form of precedent STATUTORY INTERPRETATION Problems in interpreting legislation Approaches to statutory interpretation Rules of interpretation Legal reasoning and the regulation of abortion: a case study Aids to construction Presumptions LEGAL REASONING AND THE POSSIBILITY OF RAPE WITHIN MARRIAGE: A CASE STUDY LEGAL REASONING AND RHETORIC CHAPTER 6: THE JUDICIARY THE CONSTITUTIONAL ROLE OF THE JUDICIARY The constitutional role of the Lord Chancellor The constitution and the role of the House of Lords Judicial impartiality JUDICIAL OFFICES Judicial hierarchy Legal offices APPOINTMENT OF JUDICIARY Qualifications Selection of judges 240

5 The English Legal System 6.4 TRAINING OF THE JUDICIARY Equal treatment training RETIREMENT OF JUDGES REMOVAL OF JUDGES The Constitutional Reform Bill JUDICIAL IMMUNITY FROM SUIT MAGISTRATES Appointment The future of the magistrates' courts JUDICIAL REVIEW Private law remedies The prerogative orders Grounds for application for judicial review The exclusion of judicial review POLITICS AND THE JUDICIARY Sentencing policy The politics of judicial review and the Human Rights Act POLITICS OF THE JUDICIARY Criticisms The politics of judicial inquiries CHAPTER 7: THE CIVIL PROCESS THE NEED FOR REFORM THE NEW CIVIL PROCESS The Civil Procedure Rules The overriding objective (CPR Part 1) Practice directions Pre-action protocols CASE CONTROL (CPR PART 3) Case management conferences Pre-trial reviews Stays for settlement (CPR Part 26) and settlements (CPR Part 36) Applications to be made when claims come before a judge (CPR Part 1) Witness statements (CPR Part 34) Experts (CPR Part 35) COURT AND TRACK ALLOCATION (CPR PART 26) The small claims track (CPR Part 27) The fast track (CPR Part 28) The multi-track (CPR Part 29) DOCUMENTATION AND PROCEDURES How to start proceedings - the claim form (CPR Part 7) Alternative procedure for claims (CPR Part 8) Statement of case-value (CPR Part 16) Statement of case - particulars of claim (CPR Part 16) Statements of truth (CPR Part 22) 314

6 Contents Response to particulars of claim (CPR Part 9) Service (CPR Part 6) Admissions and part admissions (CPR Part 14) Defence and automatic transfer (CPR Part 26) Allocation questionnaire (Form N150) Default judgment (CPR Part 12) Summary judgment (CPR Part 24) PUBLIC AND PRIVATE HEARINGS (CPR PART 39) APPEALS (CPR PART 52) REMEDIES DAMAGES Types of damages Damages in contract Damages in tort EQUITABLE REMEDIES COURT FEES COSTS (CPR PARTS 44-48) WHAT HAS THE NEW SYSTEM ACHIEVED? THE DIVISION OF WORK BETWEEN THE HIGH COURT AND COUNTY COURTS AFTER THE WOOLF REFORMS DO WE NEED TWO SORTS OF COURT AFTER WOOLF? ENFORCEMENT OF CIVIL REMEDIES CHAPTER 8: ARBITRATION, TRIBUNAL ADJUDICATION AND ALTERNATIVE DISPUTE RESOLUTION INTRODUCTION ARBITRATION Procedure Relationship to ordinary courts Advantages Small claims procedure in the county court Arbitration under Codes of Conduct 8.3 ADMINISTRATIVE TRIBUNALS Tribunals and courts Composition of tribunals Statutory tribunals Immigration and asylum appeals procedure Domestic tribunals Advantages of tribunals Disadvantages of tribunals The Leggatt Review of Tribunals 1.4 OMBUDSMAN Procedure Freedom of information Evaluation 5.5 MEDIATION AND CONCILIATION Mediation

7 The English Legal System Mediation in divorce Conciliation CHAPTER 9: THE CRIMINAL PROCESS: (1) THE INVESTIGATION OF CRIME 9.1 GENERAL INTRODUCTION TO THE CRIMINAL PROCESS The criminal justice system in the 21st century 9.2 MISTRUST OF THE SYSTEM The Macpherson Report Lack of confidence in the system A contradiction Contemporary issues 9.3 ARREST Remedies for unlawful arrest General powers of arrest Arrest under warrant Common law arrests Arrest under legislation Gv DPP (1989) Walters v WH Smith & Son Ltd (1914) Rv Self {1992) John Lewis & Co v Tims (1952) What is the meaning of 'reasonable grounds for suspecting'? Detention short of arrest Suspects stopped in the street Stop and search The Code of Practice for the exercise of statutory powers of stop and search Search of arrested persons Search on detention Procedure on arrest Police powers under s 60 of the Criminal Justice and Public Order Act Other aspects of s 60 of the Criminal Justice and Public Order Act Accountability and s 60 of the Criminal Justice and Public Order Act The Terrorism Act The use of force to effect an arrest Duties after arrest 9.4 ENTRY, SEARCH AND SEIZURE Entry of premises under the common law Entry of premises to prevent an offence being committed Entry and search of premises to make an arrest Seizure of articles from searches Search warrants and safeguards

8 Contents 9.5 INTERROGATION, CONFESSION AND ADMISSIBILLTY OF EVIDENCE Time limits on detention without charge Searches of detained persons The right to have someone informed when arrested The right to consult a solicitor Notifying the suspect of the right to free legal advice Duty solicitors Delaying access to legal advice R v Samuel (1988) RvAlladice (1988) R v Davidson (1988) R v Parris (1989) Interviewing before solicitor arrives Answering police questions and the right to silence Duties to answer What can be said in court about silence in the face of police questioning Right to silence in courts Effective abolition of the right to silence Directions to the jury on silent defendants Tape-recording of interrogations Confessions and the admissibility of evidence Oppression Unreliability RvHeaton (1993) The Court of Appeal's decision Research findings Evidence illegally or improperly obtained Runciman Royal Commission proposals Confession evidence Corroboration of confessions 9.6 REVISED PACE CODES 9.7 THE CRIMINAL JUSTICE ACT 2003 AMENDMENTS OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984 CHAPTER 10: THE CRIMINAL PROCESS: (2) THE PROSECUTION 10.1 THE CROWN PROSECUTION SERVICE The Code for Crown Prosecutors The discretion to prosecute Police cautioning of offenders CPS guidelines CPS independence from the police Judicial control of prosecution policy State prosecutors in the Crown Courts BAIL The Criminal Justice and Public Order Act 1994 Appeals and re-applications Bail and the Criminal Justice Act

9 The English Legal System PLEA BARGAINING R v Turner (1970) Court of Appeal Practice Direction RvPitman (1991) Runciman Royal Commission recommendations THE JURY THE ROLE OF THE JURY The jury's function in trials Appeals from decisions of the jury Majority verdicts Discharge of jurors or the jury THE SELECTION OF THE JURY Liability to serve Exceptions, disqualification and excusal Physical disability and jury service Challenges to jury membership Challenge by the defence Challenge by the prosecution Jury vetting The racial mix of the jury Racial bias in juries THE DECLINE OF THE JURY TRIAL The jury trial in civil procedure Juries in criminal trials Jury tampering Complex fraud trials JURY REFORM Either way offences: the role of the jury Investigation of jury behaviour Conclusion CHAPTER 11: LEGAL SERVICES 11.1 INTRODUCTION 11.2 THE LEGAL PROFESSION 11.3 SOLICITORS Training The Law Society The Institute of Legal Executives 11.4 BARRISTERS Training The Inns of Court The General Council of the Bar Education Queen's Counsel The barrister's chambers 11.5 PROFESSIONAL ETIQUETTE Immunity from negligence claims 11.6 FUSION

10 Contents 11.7 THE COURTS AND LEGAL SERVICES ACT Section Solicitors'rights of audience The Access to Justice Act 1999 and rights of audience Partnerships and transnational firms Employed solicitors Monopoly conveyancing rights The Legal Services Ombudsman LAWYERS AND FAIR TRADING CHAPTER 12: THE FUNDING OF LEGAL SERVICES INTRODUCTION A BRIEF HISTORICAL OVERVIEW THE NEW LEGAL AID SCHEME Controlled and licensed work Contracting Quality Mark THE LEGAL SERVICES COMMISSION THE COMMUNITY LEGAL SERVICE Community Legal Service contract Financial eligibility test The Funding Code Legal services provided The CLS Fund Extension of financial conditions on an assisted party Matching delivery with needs and priorities Relative success of the scheme THE CRIMINAL DEFENCE SERVICE PUBLIC DEFENDER SERVICE THE VOLUNTARY SECTOR Law Centres Other voluntary advice CONDITIONAL FEE ARRANGEMENTS The Access to Justice Act The advantages of conditional fee arrangements The disadvantages of conditional fee arrangements The operation of conditional fee arrangements UNMET LEGAL NEED Does it matter if such needs remain unmet? CHAPTER 13: THE EUROPEAN CONTEXT INTRODUCTION Parliamentary sovereignty, European Community law and the courts SOURCES OF EUROPEAN COMMUNITY LAW Internal treaties International treaties 630

11 The English Legal System Secondary legislation Judgments of the European Court of Justice THE INSTITUTIONS OF THE EUROPEAN UNION The Council of Ministers The European Parliament Powers of the European Parliament Economic and Social Committee The European Commission The European Court of Justice The Court of Auditors THE EUROPEAN COURT OF HUMAN RIGHTS The genesis of the Regulation of Investigatory Powers Act THE EUROPEAN CONVENTION AND THE EUROPEAN UNION Further Reading 657 Index 671