Law for Accountants- The English Legal System and Human Rights Legislation

What is public law?

Deals with matters relating to whole country, such as criminal law, constitutional law, administrative law and social welfare law.

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What is private law?

Concerned with law enforced between individuals, which includes contract law, family law, land law, probate (wills), and company law.

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What are the aims of private and public law?

To create social order.

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Briefly describe civil law.

Standards of proof-balance of probabilities. Objective- compensate.Private action.Who brings action?-claimant. Liability.

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Briefly describe criminal law.

Standards of proof-beyond reasonable doubt.Objective-punish. Public action.Who brings action?State/crown/DPP. Guilt.

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Structure of the civil system: start from the top and list order of power.

1)European court of justice, European court of human rights.2)JCPC. Supreme court. 3)Court of appeal. 4)Divisional Court, EAT. 5)High court.6)Chancery, family, QBD. 7)County court. 8)Magistrates,arbitration, employment tribunal.

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What does DPP stand for?

Director of public prosecution.

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Which of the European Courts is part of the EU?

European court of Justice is part of EU. European court of human rights formed as a result of WW2.

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What was the Supreme Court formerly known as?

House of Lords.

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What does EAT stand for?

Employment appeals tribunal.

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What is a tribunal?

Alternative to using court system to settle dispute. Employment tribunals established to hear dispute between employer and employee on certain matters, such as unfair dismissal. Composed of employment judge and 2 expert laymen representing both sides

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What are the differences between Court (C) and Tribunal (T).

C-may not be heard by specialist. T-expert present. C-slower.T-quicker.C-legal aid available but expensive.T-no legal aid but cheaper.C-strict rules,evidence and pleading.T-less formal.C-bound to precedent.T-not bound, inconsistent decisions.

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What does QBD stand for?

Queen's Bench Division.

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Structure of criminal system: start from top and list order of authority.

1)European court of justice.2)JCPC,Supreme court,European court of human rights.3)Court of appeal.4)Divisional court of QBD.5)Crown court.6)First instance.Rehearing.7)Committal. First instance.8)magistrates court.

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What is an indictable offense?

A serious offense.

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What is a summary (refer to criminal system).

Petty criminal offense.

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What does case stated mean?

Appealing on principal of law.

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What is a re-hearing?

Disputing the evidence

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What does JCPC stand for?

Judicial committee of the Privy Council

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Which courts can set binding precedent?

1)Supreme court. 2)High court. 3)Court of appeal. 4)European court of justice.

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Which courts do not set binding precedent?

1)Magistrates. 2)County court. 3)Crown court.

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Is the Supreme court bound by its own decisions?

No- not from 1966 onward. Lord Gardiner proposed that court could depart from previous decisions to allow law to develop with changes in society.

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What conditions must be satisfied for precedent to be binding?

1)Ratio, not obiter. 2)Can;t be a lower court, must be equal or higher. 3)Facts must be materially the same.

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When will precedent be persuasive only?

1)When it is from a lower court or foreign court- commonwealth courts based on English law. 2)When it is obiter

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When is a precedent not binding?

1)When overruled by higher court or statute. 2)When per incuriam (judge misinformed of law)

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What are advantages of judicial precedent?

1)Reaching decisions as a result of precedent makes system consistent.2)Allows legal system to be flexible to reflect changes in society.3)Law is clear.4)Decisions arise from actual events.

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What are disadvantages of judicial precedent?

1)Law complex due to high number of cases, inconsistencies can arise. 2)Law can become rigid, inflexible and leads to lack of development.3)Case law reactive opposed to proactive.

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Which monarch started common law? What did he do?

William I in 1066. He appointed itinerant judges (who travelled the country), gave effect to royal decrees and resolved disputes.

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What are key features of common law?

1)Development of legal principles. 2)Doctrine of precedent-consistency of approach,certainty of principle.3)Only remedy is damages.4)May be rigid and inflexible.

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What are defects and limitations of common law?

1)Writ system-formal legal document serving an action. 2)Remedies-injunction is a legal remedy.3)No trust law-trusting someone to do something, no legal obligation.

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What is state decisis?

Legal principle of determining points in litigation according to precedent.

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What is ratio decidendi?

The rule of law on which judicial decision is based

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What is obiter dicta?

Judges expression of opinion uttered in court or in written judgement, not essential to decision so not legally binding as precedent.

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What did the lord chancellor develop in terms of equity?

Civil service and court of equity.

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What are the key features of equity?

1)Actions initiated by petition (not writ). 2)New equitable remedies- specific performance, injunction,rescission,rectification.3)Development of trust law.4)Over time doctrine of precedent developed.5)more flexible than common law.

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What is the famous quote said by the King in Earl of Oxford's 1615 case?

"Where equity and common law conflict,equity shall prevail".

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What are 4 quotes related to the maxims of equity?

1)"he who comes to equity must come with clean hands".2)Equity delights in equality."3)Equity will not aid a volunteer".4)"Equity will not suffer a wrong to be without a remedy."

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What did the Judicature Acts of 1873-1875 bring about?

1)Created new single court of Judicature. 2)New court of appeal and high court administer BOTH common law and equity.

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What is a statute?

1)Legislation made by act of parliament.2)Consequences of parliamentary sovereignty. 3)Parliamentary conventions.

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Can the validity of an act of parliament be questioned?

No. It cannot be questioned.

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What is the parliamentary procedure for legislation?(1-7)

1)Green paper-discussion document.2)White paper-draft bill.3)Bill-proposed legislation to parliament.4)First reading-introduce bill to house.5)Second reading-debate principle.6)Committee stage-20MP's read each word.7)Report stage-changes added.

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What is the parliamentary procedure for legislation?(8-11)

8)Third reading-final debate then vote. 9)Other house-go through to house of lords.10)Royal assent- must receive royal assent. 11)Act.

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Where are most bills started?

The house of commons.

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What are examples of delegated legislation?

1)Bye-laws-passed by local council, can't pass if ultra vires. 2)Statutory instruments-issued by government departments updating legislation.3)Orders in privy council-advisers to crown,senior politicians.4)Professional regulations-government regulate

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Does order of the privy council need royal approval?

No, but orders IN the privy council does.

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What are key controls of delegated legislation?

1)40 day rule (&affirmative resolutions)-laid before parliament, who have 40 days to object.2)Scrutiny committees-cross part reps, check statutory instruments- nothing controversial.3)Ultra vires- beyond powers.

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What are advantages of delegated legislation?

1)Saves parliamentary time.2)Speed which it can be done.3)Technical expertise.

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What are disadvantages of delegated legislation?

1)Anti-democratic. 2)Undermines parliamentary sovereignty. 3)Sheer volume.

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What is the European Communities Act of 1972?

Legislation that brought the UK into the EU.

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What are the 4 key EU institutions?

1)Council of ministers. 2)Commission. 3)European Parliament.4)European Court of justice.

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What is the council of ministers?

A law making body that consists of 28 members.

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What is the Commission?

A body that drafts legislative proposals.

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What is European parliament?

Its members are elected by member states.

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What is the European Court of Justice?

They have the final say on what European Law means.

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What are the key types of EU legislation?

1)Treaties. 2)Regulations. 3)Directives.

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What are treaties?

Primary legislation for European community.

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What are regulations?

Directly applicable in member states.

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What are directives?

Indirectly applicable in member states?

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When was the Human Rights Act created?

1998

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Give some articles of the Human Rights Act 1998.

1)Right to life.2)Right to respect for private and family life.3)Freedom of thought,conscience and religion.4)Freedom of expression.5)Freedom of assembly and association.6)Right to marry.7)prohibition of discrimination.

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What is the purpose of the Human Rights Act 1998?

Incorporates European convention for the protection of human rights and fundamental freedoms 1950 into UK law.

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What is convention law? How does it affect UK courts?

Convention and decisions of the ECtHR. UK courts must consider convention law when deciding a question arisen in connection with convention right. Judges not bound

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What if legislation is not compatible with the Convention?

Any existing legislation must be interpreted so it's compatible with rights under the Convention. If court feels there is an incompatible legislation, must make declaration of incompatibility.

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What case relates to the Human Rights Act 1998?

Bellinger v Bellinger 2003. Mendoza v Ghaidan 2003. Pretty v DPP 2001. NHS Trust A v M 2001.

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What happened in the case Bellinger v Bellinger 2003.

Facts-House of Lords had to consider whether a male to female transsexual could be treated as female under Matrimonial clauses Act 1973.Held-Court unable to interpret Act to allow transsexual to be female. Issued declaration of incompatibility.

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What came about from Bellinger v Bellinger?

Gender recognition Act 2004 addressed the issue. Purpose of act to provide transsexual people with legal recognition in acquired gender.

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What happened in Mendoza v Ghaidan 2003?

Facts-Rent Act 1977 allowed spouse to inherit statutory tenancy. Fitzpatrick v Sterling Housing 1999. House of Lords declined to let same-sex partners inherit statutory tenancy. Couldn't be considered husband or wife of deceased.

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What was held in Mendoza v Ghaidan 2003?

Held- Previous decision in Fitzpatrick case incompatible with convention as it was discriminatory.

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What are aids to statutory interpretation?

1)Preambles.2)Interpretation sections. 3)Interpretation Act 1978.4)Oxford English Dictionary.5)Hansard. 6)Presumptions.7)Human Rights Act.8)Human Rights Act 1998.

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What is preambles?

introductory part of a statute or deed, stating its purpose, aims, and justification.

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What is the interpretations Act 1978?

Act defines certain terms found often in legislation. States masculine terminology also includes the feminine.

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What is Hansard?

1) The minutes of houses of parliament, may help interpret legislation 2)Inform on aims of statutory.

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What are presumptions?

Unless said otherwise, doesn't have retrospective effect.

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What do rules of interpretation include?

1)Literal rule.2)Golden rule.3)Mischief rule. 4)Purposive approach. 5)Eiusden generis. 6)Expressio unius exclusio alterius. 7) Noscitur a socis.

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What is the literal rule? What cases relate to the literal rule?

1)Words must be given their dictionary meaning, even if this produces and undesirable outcome. Fisher v Bell 1961. Whiteley v Chappell 1868.

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What happened in Fisher v Bell 1961?

Facts-Offence to "offer for sale" offensive weapons. Shop-keeper had flick knives with price tag in shop window. Held-display of knives was invitation to treat and customer made offer to buy. Shopkeeper not acting illegally.

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What happened in Whitely v Chappel 1868?

Facts-Statute made offense to impersonate someone entitled to vote. Defendant used dead person's vote, statute said living person. Held-Defendant was acquitted.

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What is the golden rule?What cases relate to the literal rule?

1)Golden rule ensures preference is given to meaning and that it doesn't result in provision being absurdity. 2)Adler v George 1964. RE Siesworth 1935

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What happened in Adler v George 1964?

Facts-Official secrets act 1920, made offence to obstruct member of armed forces in vicinity of locations but not actually in them. Defendant inside air base but claimed he was beyond literal scope of Act. Held-words from OSA 1920 covered airbase.

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What happened in RE Sigsworth 1935?

Facts-son murdered mother, she had no will, he was stood to inherit her estate. Held- applied golden rule and defendant entitled to nothing.

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What is the Mischief rule? What cases relate to the literal rule?

1)Used to interpret statute in a way that provides remedy for mischief that statute was enacted to prevent.2)Gorris v Scott 1874 and Corkery v Carpenter 1950.

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What happened in Gorris v Scott 1874?

Facts-Contagious Disease (animals) Act 1869 stated animals on a ship should be kept in pens. Defendant failed to do so, sheep washed overboard. Held-purpose of statute to prevent spread of disease, not to keep animals safe, so claim failed.

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What happened in Corkery v Carpenter 1950?

Facts-Defendant riding bike whilst under influence of alcohol Licensing Act 1872 made offence to be drunk in charge of a 'carriage' on highway. Held-bike within mischief of act as defendant danger to himself and other road users.

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What is the Purposive rule? What cases relate to the literal rule?

1)More modern-make decision as to what parliament intended to achieve. 2)Gardiner v Sevenoaks RDC 1950.

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What happened in Gardiner v Sevenoaks RDC 1950?

Facts-purpose of act to provide safe storage of film on 'premises'. Claimant argued 'premises' didn't include cave so act not applicable. Held-purpose of act to protect safety of persons working where film stored, so cave classed as premises.

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What is Eiusdem Generis? What cases relate to the literal rule?

1)Things of alike kind. 2)Powell v Kempton Park Racecourse 1899.

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What happened in Powell v Kempton Park Racecourse 1899?

Facts-Betting Act 1853 prohibited betting in 'house,office,room or other place' issue was whether ring at racecourse classed as 'other place' Held-Decided 'or other place' compared to 'room, office etc' should be indoor spaces. Ring is outdoors.

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What is Expressio unius exclusio alterius? What cases relate to the literal rule?

1)Where statute seek to establish list of whats covered by its provisions, then anything not included in that list is excluded.

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What is Noscitur a socis?

Words draw their meaning from other words around them.

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What are presumptions with rules?

1)Statute can't conflict with international law.2)Statute doesn't have retrospective effect. 3)Statute doesn't alter common law. 4)Statute doesn't exclude jurisdiction of court.5)Legislation doesn't extend beyond territorial jurisdiction of UK.

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Law for Accountants- The English Legal System and Human Rights Legislation

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