the english legal system

topics to learn for chapter 1 of the ACCA book.

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  • Created by: clare
  • Created on: 07-05-12 10:07

what is law?

LAW IS A FORMAL MECHANISM OF SOCIAL CONTROL.

THEY ARE A SET OF RULES AND REGULATIONS LAID DOWN BY SOCIETY.

A SOCIAL ORDER CREATED TO INFLUENCE HOW INDIVIDUALS INTERACT AND HOW BUSINESSES OPERATE.

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name and describe the two control mechanisms

  • FORMAL
  • INFORMAL

LAW IS A FORMAL MECHANISM WHICH PROVIDES STRUCTURE AND USED AS A DETERRENT TO PEOPLE WANTING TO DISRUPT SOCIAL ORDER.

ETHICAL AND MORAL GUIDANCE ARE INFORMAL MECHANISMS. THESE ARE BEHAVIOURAL EXPECTATIONS DEVELOPED OVER TIME BY SOCIETY.

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name the different types of law!

  • COMMON LAW AND EQUITY
  • STATUTE LAW
  • PRIVATE LAW AND PUBLIC LAW
  • CRIMINAL LAW AND CIVIL LAW
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describe common law and equity

COMMON LAW IS A SET OF RIGID RULES LAID DOWN BY ROYAL COURTS.

JUDGES PUT TOGETHER LOCAL CUSTOMARY LAWS INTO 'LAW OF THE LAND'

REMEDIES UNDER COMMON LAW ARE MONETARY AND KNOWN AS DAMAGES.

EQUITY WAS DEVELOPED AFTER COMMON LAW TO RESOLVE DIISPUTES WHERE DAMAGES WERE NOT A SUITABLE REMEDY AND TO ALSO BRING FAIRNESS INTO THE LEGAL SYSTEM.

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what is statute law?

PARLIAMNT IS RESPONSIBLE FOR STATUTE LAW.

MADE IN AREAS WHICH ARE COMPLICATED OR UNIQUE

FOR EXAMPLE, COMPANY LAW.

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describe private law.

  • DEALS WITH RELATIONSHIPS. INTERACTIONS BETWEEN BUSINESSES, PRIVATE INDIVIDUALS, GROUPS OR ORGANISATIONS.
  • THE STATE PROVIDES THE FRAMEWORK FOR DEALING WITH DISPUTES BUT IT IS UP TO THE INDIVIDUALS TO HANDLE THE MATTER BETWEEN THEMSELVES.
  • FOR EXAMPLE THE SALE OF GOODS ACT 1979 PROVIDES RULES WHICH MUST BE FOLLOWED WHEN MAKING A SALE. IF THERE IS A DIPUTE THE TWO PARTIES FOLLOW THE RULES LAID DOWN BY THE LEGISLATION.
  • THE STATE DOES NOT GET INVOLVED.
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descrfibe public law.

  • MAINLY CONCERNED WITH GOVERNMENT, THE OPERATIONS AND FUNCTIONS OF PUBLIC ORGANISATIONS.
  • EXAMPLES ARE COUNCILS AND LOCAL AUTHORITIES.
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what is the key distinction between public and pri

  • WITH PUBLIC LAW IT IS THE STATE WHO PROSECUTES THE ALLEGED OFFENDER,

BUT

  • WITH PRIVATE LAW IT IS UP TO THE INDIVIDUAL TO TAKE ACTION.
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describe criminal law

  • THE STATE PROSECUTES BECAUSE THE COMMUNITY AS A WHOLE HAS BEEN AFFECTED BY THE LAW BEING BROKEN.
  • THE GUILTY PERSON CAN BE PUNISHED BY A FINE PAYABLE TO THE STATE, IMPRISONMENT OR A COMMUNITY-BASED PUNISHMENT.
  • IN A CRIMINAL TRIAL THE BURDEN OF PROOF TO CONVICT THE ACCUSD RESTS WITH THE PROSECUTION WHICH MUST PROVE ITS CASE BEYOND REASONABLE DOUBT.
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describe civil law

  • REGULATES DISPUTES OVER RIGHTS AND OBLIGATIONS OF PEOPLE DEALING WITH EACH OTHER AND AIMS TO COMPENSATE THE INJURED PARTY.
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what does the civil court structure comprise of?

  • MAGISTRATES COURT (SMALL DOMESTIC MATTERS)
  • COUNTY COURT (CLAIMS IN CONTRACT OR TORT, LAND AND PROBATE DISPUTES)
  • CROWN COURT (HEARS APPEALS FROM THE MAGISTRATES COURTS)
  • HIGH COURT (QUEENS BENCH, FAMILY AND CHANCERY)
  • COURT OF APPEAL (HEARS APPEALS FROM THE COUNTY COURT, HIGH COURT)
  • SUPREME COURT (HEARS APPEALS FROM THE COURT OF APPEAL AND THE HIGH COURT)
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what does the criminal court structure comprise of

  • MAGISTRATES COURT (HEAR SUMMARY OFFENCES AND COMMITTAL PROCEEDINGS)
  • CROWN COURT (TRIES SERIOUS CRIMINAL CASES AND APPEALS FROM THE MAGISTRATES COURT)
  • DIVISIONAL COURT OF QBD (HEARS APPEALS BY WAY OF CASE STATED BY MAGISTRATES COURT AND THE CROWN COURT)
  • COURT OF APPEAL ( APPEALS FROM THE CROWN COURT)
  • SUPREME COURT (HEARS APPEALS FROM THE COURT OF APPEAL AND THE DIVISIONAL COURT OF QBD)
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describe the magistrates court.

  • LOWEST RANKED CRIMINAL COURTS.
  • THEY CARRY OUT COMMITTAL PROCEEDINGS.
  • THE DEFENDANT HAS THE RIGHT TO APPEAL TO THE CROWN COURT.
  • THE PERSONNEL CONSISTS OF LAY PERSON CHOSEN BY THE LORD CHANCELLOR AND/ DISTRICT JUDGES. ALSO CLERKS WHO CAN PROVIDE THE MAGISTRATES WITH LEGAL ASSISTANCE.
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describe the county court.

  • DEALS WITH MOST KINDS OF CIVIL CASES.
  • ONLY HAVE CIVIL JURISDICTION.
  • DEALS WITH: CONTRACT AND TORT, EQUITABLE MATTERS (TRUSTS AND MORTGAGES), LAND DISPUTES, CONSUMER CREDIT ACT 1974.
  • THE PERSONNEL CONSISTS OF CIRCUIT JUDGES WHO ARE ASSISTED BY DISTRICT JUDGES.
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explain the wolff reform.

  • REFORM WAS IN 1999.
  • THE AIM WAS TO CHANGE THE CIVIL PROCEDURE RULE BECAUSE PARTIES HAD TOO MUCH CONTROL OVER THE CIVIL PROCESS.
  • THE REFORM PROMOTED MORE EDR.
  • COURT WAS THE LAST RESORT.
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name the two main areas of the civil procedure rul

  • TRACKING
  • CASE MANAGEMENT
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explain tracking.

THERE ARE THREE TYPES OF TRACKS WHEN A DEFENCE HAS BEEN FILED:

  • SMALL CLAIMS - £5000 OR LESS (COUNTY COURT)
  • FAST TRACK - £5000 TO £25000, LASTS 1 DAY (COUNTY COURT)
  • MULTI-TRACK - £25000 + DEALT WITH BY THE HIGH COURT
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explain case management.

  • THIS IS USED IN MULTI-TRACK TRIALS.
  • A CASE MANAGEMENT CONFERENCE IS HELD TO TRY AND ENCOURAGE THE PARTIES TO SETTLE THE DISPUTE OR CONSIDER ARBITRATION OR MEDIATION. (INVOLVES A STRICK TIMETABLE AND COST PENALTIES FOR NON-COMPLIANCE)
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describe the crown court

  • INDICTABLE OFFENCES WITH A JURY.
  • APPEALS FROM THE MAGISTRATES.
  • COMMITTALS FOR SENTENCING FROM MAGISTRATES.
  • CAN ALSO DEAL WITH AFFILIATION, BETTING, GAMING AND LICENCING (CIVIL CASES)
  • PERSONNEL CONSISTS OF: HIGH COURT JUDGES (SERIOUS), CIRCUIT JUDGES AND RECORDERS.
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name the 3 divisions in the high court.

  • THE QUEENS BENCH DIVISION.
  • FAMILY DIVISION.
  • CHANCERY DIVISION.
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explain the queens bench division.

  • CONTRACT AND TORT CASES.
  • APPEALS FROM COUNTY COURT.
  • APPEALS FROM MAGISTRATES RE CASE STATED.
  • SOME APPEALS FROM THE CROWN COURT.
  • HAS A SUPERVISORY ROLE OVER INFERIOR COURTS
  • PERSONNEL IS LORD CHIEF JUSTICE
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explain the chancery division.

  • HEADED BY THE LORD CHANCELLOR.
  • TRUSTS MORTGAGES, REVENUE MATTERS, DISPUTED WILLS AND PARTNERSHIP AND COMPANY MATTERS.
  • PERSONNEL ARE LORD CHANCELLOR AND VICE CHANCELLOR.
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explain the family division.

  • MATRIMONIAL CASES
  • FAMILY PROPERTY CASES
  • CHILDREN
  • APPEALS ON FAMILY MATTERS FROM THE MAGISTRATES
  • APPEALS FROM THE COUNTY COURT ON FAMILY MATTERS
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name and explain the divisions in the court of app

  • CIVIL DIVISION - HEARS HIGH COURT AND COUNTY COURT APPEALS. CAN UPHOLD OR REVERSE EARLIER DECISIONS OR ORDER A NEW TRIAL.
  • CRIMINAL DIVISION - HEARS APPEALS FROM THE CROWN COURT. APPEALS GO TO THE SUPREME COURT.
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explain the supreme court

  • ESTABLISHED BY THE CONSTITUTIONAL REFORM ACT 2005. (OPENED IN 2009 AND REPLACED THE JUDICAL FUNCTION OF THE HOUSE OF LORDS)
  • CONSISTS OF 12 JUDGES. (JUSTICES OF THE SUPREME COURT, A PRESIDENT AND A DEPUTY PRESIDENT)
  • ACTS AS THE FINAL APPEAL COURT IN CIVIL CASES.
  • HIGHEST COURT OF APPEAL IN CRIMINAL CASES.
  • HAS A PANEL OF 5 9 OR 9 JUSTICES WHO GIVE THEIR VERDICTS COLLECTIVELY. (CLEAR AND ROBUST)
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explain the tribunal systems.

  • DEALS WITH CASES CONSIDERED TO SMALL TO NEED A COURT.
  • 'TRIBUNALS AND ENFORCEMENT ACT 2007' CREATED A UNIFIED STRUCTURE.
  • THERE IS THE FIRST TIER AND UPPER TIER.
  • FIRST TEIR HEARS CASES AND MAKES DECISIONS.
  • THE UPPER TIER HEARS APPEALS AND REVIEWS CASES.
  • SPLIT INTO DIFFERENT CHAMBERS.
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give an example of a tribunal

  • EMPLOYMENT TRIBUNAL
  • GOVERNED BY THE EMPLOYMENT ACT 2008
  • HAS AN EMPLOYMNT JUDGE AND 2 NON-LEGAL MEMBERS.
  • ONE MEMBER FOR EITHER SIDE.
  • HAS JURISDICTION OVER REDUNDANCY PAY, UNFAIR DISMISSAL, DISCRIMINATION, TERMS OF CONTRACT, MATERNITY AND HEALTH AND SAFETY.
  • APPEALS GO TO THE EMPLOYMENT APPEAL TRIBUNAL (EAT)
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what are the advantages of tribunals?

  • SAVES TIME
  • CHEAPER
  • INFORMAL (FLEXIBLE REPRESENTATION)
  • FLEXIBILITY (LATITUDE OVER USE OF PRECEDENT)
  • EXPERT KNOWLEDGE
  • ACCESSIBILITY
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what are the disadvantages of tribunals?

  • NO UNIFORMITY IN APPROACH
  • LACK OF CLARITY OVER PRECEDENT
  • ISSUES OF PUBLIC IMPORTANCE ARE NOT BROADLY DISCUSSED
  • RISK OF POOR REPRESENTATION
  • RISK OF POOR DECISION MAKING
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name the 3 types of ADR

  • MEDIATION
  • EARLY NEUTRAL EVALUATION
  • ARBITRATION
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explain mediation advantages and disadvantages

  • MEDIATOR DOES NOT MAKE ANY DECISSIONS
  • IT IS CONFIDENTIAL
  • CAN BE PROBLEMATIC DUE TO LITIGATION TACTICS, ABUSE OF DISCLOSURE. THE NON BINDING NATURE MAY INCREASE COSTS.
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explain early neutral evaluation

  • CASE IS PRE-REVIEWED BY A RETIRED JUDGE OR LAWYER
  • LIKE A MINI TRIAL
  • DECIDES THE LIKELY OUTCOME BEFORE DECIDING TO GO TO COURT.
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explain arbitration advantages and disadvantages

  • ENFORCED BY THE ARBITRATION ACT 1996.
  • USUALLY  ENFORCED BY CODES OF PRACTICE OR BY CONTRACT.
  • PRIVATE HEARINGS AND JUDGEMENTS
  • ACCESS TO INDUSTRY EXPERTISE
  • TIME CONSUMING
  • EXPENSIVE
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