- Created by: Aimee Ehrenzeller
- Created on: 26-05-10 17:32
Remedies - Damages, Specific Performance, Rescission, Injunction.
Claimant - starts the case.
Burden of proof - On the balance of probabilities.
Contract, consumer law, negligence, nuisance, defamation, tort, family law. etc.
Conty Court, High Court, Court of Appeal, House of Lords (Supreme Court), European Court of Justice.
Small claims - less than £5,000.
Fast track - between £5,000 and £15,000.
Multitrack - above £15,000.
How laws are made
Ideas and discussion
A legal wrong that can be followed by criminal proceedings which may result in punishment.
Actus Reus - The guilty act.
Mens Rea - The guilty intention.
Summary offences - minor crimes - Magistrates' Court.
Triable either way offences - middle range crimes - Magistrates' or Crown Court.
Indictable offences - serious crimes - Crown Court.
Magistrates' Court can sentence up to 12 months for an offence and fine up to £5,000.
Magistrates' Court, Crown Court, High Court, Court of Appeal, House of Lords (Supreme Court), European Court of Justice.
The Theft Act 1968
Section 1 - Theft - The dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it.
Section 8 - Robbery - Stealing and immediately at the time of doing so, using force or the threat of force to aid the theft.
Section 9 - Burglary - Entering a building or part of a building as a trespasser with the intention of causing gbh, criminal damage or theft.
Section 10 - Aggravated burglary - Committing burglary and at the time of doing so, you have with you a fire arm, imitation firearm, explosive material or weapon of offence.
Criminal Law - Sentancing
Retributive theory - The idea that punishment should be enforced whether useful or not.
Utilitarian theory - The idea that punishment should be useful.
Mentally ill offenders - They are treated not punished.
Young offenders - Sentenced to community orders .e.g. warnings, attendance centre orders .etc.
Custodial sentencing - Prison, young offenders institute, detention and training orders .etc.
Community sentencing - Unpaid work .etc.
Fines - Can vary in amount.
Discharges - Either conditional or absolute.
The Homicide Act 1957
Murder - When a person of sound mind unlawfully kills a creature in being under the Queen's peace with malice aforethought express of implied.
Express - The intention to kill.
Implied - The intention to do gbh.
R v Vickers (1957) - A shoplifter caught by an old lady struck her a number of blows which killed her. Vickers intended to do gbh and was convicted of murder.
R v Woollin (1998) - Woollin threw his baby into a pram. He did not mean to harm the baby. Convicted of manslaughter.
R v Maloney (1985) - Maloney shot his step-father when having a competition to see who could load their gun the fastest. Convicted of manslaughter as he did not mean to shoot his step-father.
Voluntary manslaughter - When someone has the actus reas and mens rea for murder but successfully uses a defence to lesson their charge.
Involuntary manslaughter - An unlawful killing caused by an unlawful or dangerous act OR by gross negligence.
R v Mitchell (1983) - Mitchell punched a man who then fell on an elderly woman and broke her leg. The woman later died of complications caused by her broken leg. Mitchell was charged with involuntary manslaughter.
R v Adomako (1994) - An anesthetist failed to notice when a tube supplying oxygen to his patient had become un-attached. The patient died and Adomako was charged with involuntary manslaughter.
Special defences to murder
Diminished responsibility - When the defendant is suffering from an abnormality of mind caused by disease, injury or arrested or retarded development of mind.
Provocation - Where there is a sudden loss of control.
Suicide pact - When one person kills the other but survives himself.
Mistake, insanity, automatism, duress, intoxication and infancy.
Non-fatal offences to the person
Assault - To cause someone to fear that force will be used against them. R v Ireland (1997).
Battery - To use unlawful force on a person. Colins v Wilcock (1984).
Assault occasioning Actual Bodily Harm - An assault or battery that causes injury. R v Miller (1954).
Gbh - Section 20 - To inflict a wound or other grevious bodily harm without intending to do so. R v Burstow (1997).
Gbh - Section 18 - To cause grevious bodily harm with the intention to cause serious injury. R v Belfon (1976).
Tort - A civil wrong against an individual.
The most common tort. Started by Donoghue v Stevenson (1932).
The neighbour principle - anyone affected by your actions - Lord Atkin.
You must prove:
- You are owed a duty of care.
- There was a breach of that duty.
- The breach caused you to suffer damage.
Duty of Care - Employee and employer, innkeeper and guest, manufacturer and consumer .etc.
When someone is automatically responsible for someone elses torts. There must be a special relatioship .e.g. employer and employee. The employee must be acting in the course of employment.
Limpus v London General Omnibus Co (1862).
Justifications for vicarious liability -
- Employers are in a better financial situation to pay damages.
- Employers get profits from work so should deal with losses too.
- Employers should make sure they enforce Health & Safety.
- Employers should only employ competent workers.
The Occupiers Liability Act 1957 as ammended by the Occupiers Liability Act 1984.
In certain circumstances the occupier of the property will be liable for injuries suffered by visitors.
Glasgow Corporation v Taylor (1922).
Used to be responsible for just lawful visitors. Now you are responsible for both lawful and unlawful visitors.
Defences to Tort
Consent - You consent to the risk of injury .e.g. injuring yourself at a sporting event. There are 2 exceptions to consent - Rescue cases and Employees.
Act of God - Act of nature .e.g. an earthquake. No one is responsible.
Necessity - To prevent a worse evil from happening.
Inevitable accident - It could not have been avoided.
Intervening act - Where the chain or events was caused by the defendant but an intervening act caused the final damage.
Trespass to Goods
Direct and unlawful damage to or interference with goods in the possession of another person.
Goods - movable items of property.
Trespass to Land
Unlawful physical interference with land or buildings in the possession of another OR an unlawful entry onto land or buildings.
Trespass to person
False imprisonment, assault, battery.
The Defamation Act 1952
Making and publishing a false statement about another person which damages that person's reputation.
Libel - defamation in a permanent form - newspapers, magazines, pictures, films .etc.
Actionable per se.
Monson v Tussauds LTD (1894).
Slander - Defamation in a non-permanent form - speeches, gestures .etc.
Not actionable per se.
- Offer and Acceptance
- Capacity to make a contract
- Intention to create legal relations
Invitation to treat - This is NOT an offer - items for display in a shop, items in a catalogue etc - Fisher v Bell (1961).
Reward poster - This IS an offer - Carlill v Carbolic Smoke Ball Co (1893).
Acceptance must be comunicated! - Felthouse v Bindley (1862).
Postal acceptance - Acceptance is when the letter is posted - Adams v Lindsell (1818).
Consideration - Gifts are not contracts! Consideration must be more than a duty.
Capacity to make a contract - Minors can only enter into contracts for neccessaries or contracts of beneficial service - Nash v Innman (1908).
Intention to create legal relations - Social and domestic agreements aren't always binding - Balfour v Balfour (1919).
The Sale of Goods Act 1979
Section 12 - The right to sell.
Section 13 - Goods must match description.
Section 14 - Goods must be of satisfactory quality.
Section 15 - Sale by sample.
The Consumer Protection Act 1987
Defective products .etc. Damages must amount to at least £250.
Unfair Terms Contracts 1999
Not in plain language, no chance to see goods before buying .etc. ONLY applies to businesses.
Supply of Goods and Services Act 1982
Protects against bad workmanship or provision of services .etc.
Employment contracts must be in writing.
Health and Safety at Work Act 1974
Discrimination in employment:
- Race Relations Act 1976
- Sex Discrimination Act 1975
- Equal Pay Act 1970
- Disability Discrimination Act 2005.
Tribunal - no legal representation, quicker and cheaper than courts.
Queens Bench Division - Contract, banking, shipping .etc. - 1 judge. OR Fraud, false imprisonment, malicious presectution - 12 person jury.
Chancery Division - Sale or exchange of land, mortgages, trusts, bankruptcy, wills, company law - 1 judge.
Family division - Marriage, divorce, children .etc. - 1 judge.
For people aged 10-17.
Either 3 Magistrates OR a district judge.
If defendant is under 16, parents must attend. Parents of 16 or 17 years olds may also be ordered to attend.
No members of public allowed!
Ratio Decidendi - The facts of the case and points of law. It is binding on courts lower in the hierarchy.
Obiter Dicta - Hypothetic situations. They are persuasive not binding.
Practise statement - Allows the House or Lords (Supreme Court) to overrule their past decisions.
Advantages of precedent -
- Consistency, fairness and provides examples for advising clients.
- Rigid, unfair and complex.
Controlled by the Law Society.
Mainly office based work, solicitors give legal advice and can advocate in Magistrates' Court. The can now advocate in all courts if they pass an exam. Since 1999, they have full rights of audience after qualifying as a solicitor.
The General Council of the Bar.
Barristers work in chamber and follow the cab rank rule.
They appear in court and advise solicitors.
After 10 years they can apply to be a QC (Queen's cousel) and can wear silk gowns. QCs are selected by interview.
Citizens Advice Bureaux - Staff aren't legally qualified.
Law centres - Staff are qualified in law.
Community legal advice - Free legal advice over the phone.
Duty solicitor - Free legal advice upon arrival at a police station after arrest.
The Bail Act 1976
Being allowed liberty rather than custody while awaiting the next stage in the Criminal Justice Process. Bail can be conditional or unconditional.
- Hand in passport.
- Reside at a bail hostel.
- Report to a police station daily.
- Supply a surety.
A person must be released unless:
- Their name and address aren't know.
- It's necessary for their own protection.
- To prevent them from injuring someone, damaging property, absconding or interfering with the Criminal Justice Process.
Surety - Someone who promises that he will pay the court a sum of money if the defendant absconds. This promise is called a recognisance.
Appeals - Someone who is refused bail can appeal to the Crown Court. However, you can only do this if you are charged with a crime that has a maximum penalty of 5 years imprisonment or more.
The voluntary union for life of one man and one woman to the exclusion of all others.
4 legal requirements of a marriage - if not followed the marriage is void -
- Aged 16 or over (parental consent is needed if under 18).
- No close blood relationship.
- Single (not already married).
- One man, one woman (not same sex couple).
Formalities or a marriage - if not followed the marriage is voidable -
- Authorised building.
- Authorised Person.
- Correct time (between 8am and 6pm).
- Prelimary procedures (liscence, banns published, witnesses .etc).
The marriage is voidable if -
- There is no consummation.
- There is no consent (forced marriages .etc)
- One party is suffering a mental disorder.
- One party is suffering a sexual disease and other party did not know.
- The bride is pregnant at the time of marriage by another man.
Annulment must be within 3 years of marriage.
A legal ending to a marriage.
Claimant/ petitioner presents the petition to the court.
Respondant - The person being divorced.
To get a divorce you must prove irretrievable breakdown -
- Unreasonable behaviour.
- Desertion for 2 years.
- Living apart for 2 years and agreeing to divorce.
- Living apart for 5 years.
Decree nisi --> 6 weeks later --> Decree absolute --> End of marriage.
A financial settlement usually from a husband to maintain a wife and family.
+ A lump sum.
+ A transfer of property.
- Residence order.
- Contact order.
- Prohibition order (can't go abroad).
- Specific issue order (e.g. what school the child must attend).
Child Support Agency ensure that maintenance is paid.
Will /testament - A formal declaration of what you want to happen to your property when you die. It can be revoked by making a new will, destroying the will, getting married or getting divorced.
Testator - A male making a will.
Testatrix - A female making a will.
3 requirements - Testator must be -
- At least 18.
- Of sound mind.
- Acting of his own free will.
Wills made in circumstances when the formalities of starting a will aren't practical e.g. someone in the armed services.
Testator must be at least 14.
Re Jones (1981) - A soldier made an oral will and was later killed whilst fighting in war.
Changing a will
Revoke - New will, marriage, divorce .etc.
Codicil - Changes a will.
Crown Prosection Service - made in 1986.
They are independant from the police.
The Cps prosecute offenders.
They decide whether to prosecute using -
- The Evidential test (is there enough evidence?)
- The Public Interest test (is it in the public interest to prosecute?)
The Police and Criminal Evidence Act 1984
Section 1 - Stop and Search people and vehicles if there is reason to believe they are in possession or stolen goods or prohibited articles.
Section 2/3 - Office must give name and station and give reason for search. If not in uniform, officer may have to produce legal documents to prove who they are. Only coat and gloves can be asked to be removed.
Section 4 - Road checks.
Section 24 - Police + private citizens can make arrests.
Section 25 - Extra powers - If no name and address for suspect is given, if a false name is given, to prevent further damage or to protect a child or a vulnerable person.