Case, law and judges

UNIT 1                 CASE, LAW AND JUDGES

1/ What are the other ways of referring to common law? All the several ways of referring to common law, we can call it case law and also judge made law.

2/ What is equity? Equity is a branch of law that completes common law, the case Miller v Jackson is a good example of equity’s being refused, an example of equitable remedy that is an injunction and the function of the injunction is to prevent someone from doing something, in the case of Miller v Jackson, the injunction would have prevented the defendant Jackson from playing cricket (Jackson as a cricket club) and it would have stopped the playing of cricket.

3/ What is a statute? A statute is also known as an act of Parliament, it is a written law, which is enacted by the UK Parliament. The only law, which is superior to statute law is European law.

4/ What are the names of the parties and what action do they take in:

1. A civil case : The claimant also known as the plaintiff in some older cases, so in the past, you will hear the term plaintiff used, today, we would more often say the claimant, there is the claimant and the defendant. The claimant sues the defendant and if he wins his case, then the defendant is liable to pay damages. If we sight (regarde) the case a civil case: the case of Miller v Jackson (Miller and Jackson).

1. A criminal case : The crown is represented by the department of public prosecutions is versus the defendant and a criminal case is sighted as R (stands for Regina or in a case of a king, Rex), so Regina versus the defendant. The department of public prosecution prosecutes the defendant and if the defendant is found guilty, he will be sentenced by the judge to a jail sentence.

5/ What is the principle in common law, by which judicial decisions are based on previous court decisions? The principle is known as the doctrine of precedent and it is the basis of common law. In a doctrine of precedent, carried on the decision, the central part of the decision is carried on to future decisions or is passed on (est transmis) to lower courts. The part that is binding is called the ratio decidendi and the part which is mainly persuasive (it doesn’t become law) is called the obiter dicta. 2 parts of those decisions and that contributes to that on going doctrine: the doctrine of precedent.

6/ What is the standard of proof?

1. In a criminal case? The standard of proof in a criminal case is that they must decide beyond all reasonable doubt.
2. In a civil case? The standard of proof is on the balance of probabilities, in other words, the judge must way up the different probabilities that he can construct from the evidence brought to him, he must make certain assumptions (hypotheses), he must build the probable scenarios and eliminate them to be left with only one at the end which will be the content of his judgement.

7/ What is the most common form of tort? The most common form of tort in a civil law today in England and Wales is the tort of negligence. In tort law, one party owes the other a duty of care and if he fails in this duty, then he will be found liable-not guilty- but liable for the tort of negligence.

8/Why is Magna Carta an important charter? Magna Carta was signed in 1215 to prevent a civil war, it’s generally considered to be the first written constitutional document in England and it was certainly the first restriction on the king’s power.

9/ What is the role of the coroner in England and Wales today? He looks into unnatural, unexpected, sudden or violent death, the cause of which is unknown.

10/What is the difference between adversarial procedure and an inquisitorial procedure? The adversarial or accusatorial procedure is part of the common law system whereas an inquisitorial procedure is part of the Roman law system, in other words is part of the system in continental Europe and most precisely in France.

11/ In which case did two 10-year-old boys murder a 2-year-old boy? It was the case of James Bulger who was murdered by two 10-year-old boys, it raises a number of issues: the age of criminal responsibility, the right to life, the difference between a public and private information…

12/ In which case did a doctor murder hundreds of his patients? This is the Shipman case.

13/ In the Miller v Jackson case, why did Lord Dening reject the claimant’s appeal? He rejected it because he thought that there was no precedent because the circumstances in the case sighted (le cas étudié) : the case sighted, as a precedent was the case Bolton v Stone. Lord Dening considered that these conditions and circumstances were not similar and therefore did not constitute a precedent.

14/ What is due process of law? Due process is defined as being the right of fair and speedy trial which was established by Magna Carta and it is reiterated in the 5th and 14th amendments to the US Constitution, in other words that no government or state can deprive any person of life liberty or property without due process of law, this right to a fair trial (procès équitable) in the common law system.

15/ Who established a centralised legal system in England to replace local courts? This was King Henry 2nd (1154-1189) who established that centralised legal system and which the royal court of the King’s Bench, today it’s the Queen’s Bench as sat in London and it was presided over by specialised judges and then the circuit judges were sent out around to have hearings, which we call the assizes.

A summary offence is a petty offence is one which doesn’t go before a jury, it would normally be judged in the magistrates court.

Drawing up legal papers to sell a house would be the remit of a solicitor, not a barrister. A barrister is the person who would go to court if you need to go to court on your particular house sale, it would be the solicitor who would prepare all the paper work and then the barrister would take it to court.

The judge sits in court, he receives the evidence, the parties bring him the evidence and then he prepares his judgement from that evidence which is brought to him.

The role of the crown prosecutor is to prosecute the defendant not to defend him but to prosecute him.

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