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C 1 HAPTER E L S NGLISH EGAL YSTEM INTRODUCTION. THE SYLLABUS THE NATURE OF THE ENGLISH LEGAL SYSTEM. THE LEGAL PROFESSION IN ENGLAND Semple Piggot Rochez • 173B Cowley Road • Oxford OX4 1UT www.spr-law.com C M ONTENTS OF THE ANUAL Chapter 1: Introduction. The Syllabus. The Nature of the English Legal System. The Legal Profession in England. Chapter 2: The Court Structure Chapter 3: Judges and Judicial Reasoning: The Judiciary and its Tasks Chapter 4: Judges and Judicial Reasoning: The Doctrine of Precedent Chapter 5: Judges and Judicial Reasoning: Statutory Interpretation Chapter 6: The Criminal Process Chapter 7: The Criminal Process: The Jury System Chapter 8: Legal Services: Legal Aid Chapter 9: The Civil Process Chapter 10: The Appellate Process C C 1 ONTENTS OF HAPTER Introduction .............................................................................1 The Nature of the English Legal System ....................................10 The Legal Profession ...............................................................13 Chapter 1 English Legal System 1. I NTRODUCTION SYLLABUS The University of London list the following six areas of study in their syllabus: (a) The court structure (b) Judges and judicial reasoning The judiciary The magistracy The doctrine of precedent Interpretation of statutes (c) The criminal process Arrest Search and seizure Interrogation and the right to legal advice The Prosecution Bail Classification of offences Committal proceedings Trial on indictment Summary trial Plea bargaining The jury system Sentencing options and sentencing principles (in outline only) (d) The civil process Civil procedure in Queen’s Bench Division County courts and small claims Enforcement of judgements (in outline only) Tribunals: representation and adjudication (e) The appellate process Civil and criminal appeals (f) Legal Services The legal profession Unmet legal need Legal aid Law centres Contingent and Conditional fees Legal expenses insurance GENERAL COMMENT The English Legal System (or “ELS”) for the University of London External Programme has been described a diffuse subject. The University’s own subject guide makes this point clear. Whilst I have kept to what were the original chapter headings for this manual, you will see that the syllabus is 1 SEMPLE PIGGOT ROCHEZ Chapter 1 separated in a slightly different way. Where possible, there is now a direct link between the syllabus item and the chapter heading for ease of reference. I am sure you will find the individual chapters of more assistance in this format because they reflect the areas where the examiners tend to ask questions regularly. THE NEW TERMINOLOGY Do note throughout this course that I am using the new terminology. Therefore, in future please use the term ‘claimant’ instead of ‘plaintiff’ and so on. POINTS OF REFERENCE In order to study English law it is essential that students, especially those from overseas who may be unfamiliar with English institutions, acquire sufficient background to understand its complex nature. A grasp of the various institutions is essential to the successful study of substantive English law subjects, both core and optional, which form the syllabus for the LLB degree. This manual aims to provide that background and then to draw attention to the most important elements of each subject area in order to guide their preparation for the virtual tutorials and marked assignments which comprise the SPR course for ELS. There is one overall topic and one chapter of the manual for each of the Virtual Tutorials (VT). This does not mean that the whole of the basic material referred to should not also be studied during the year. You will need to ‘read into the subject’ so do take a very careful look at the reading lists. The minimum reading for each VT is merely targeted for convenience of students who will get most out of their VTs if reasonably prepared, and if they consolidate afterwards to SLAPPER AND KELLY – ENGLISH LEGAL SYSTEM The University of London now recommend a specific book for main study: Slapper & Kelly’s ‘English Legal System’ (4th edition 2001). In addition, there is a sourcebook by the two authors in its second edition published in 2001. You should know these publications in detail. However, it does not mean that your reading finishes here: it is only just starting. I would advice you to read the two ‘Law in context’ books by Professor Michael Zander: (cid:1) Cases and Materials on the English Legal System (8th edition 1999) (cid:1) The Law-Making Process (5th edition) Pay special attention to the footnotes which accompany the text. These footnotes contain much of the authority you are required to cite when answering questions fully and will raise the general level of your classification. Throughout the 2 SEMPLE PIGGOT ROCHEZ Chapter 1 manual, I have referred specifically to Zander as the ‘gloss’ on the basic text provided by Slapper and Kelly. HOW DO YOU STUDY THE ENGLISH LEGAL SYSTEM? It is essential first to read thoroughly the introduction to the University’s ELS subject guide which explains how the ELS course sets out to provide the “necessary platform of basic knowledge and technique” to study the other subjects of the degree course. The introduction draws attention to the need for the student to have a grasp of: (cid:1)the structure of legal institutions (cid:1)legal reasoning (cid:1)the culture of English law (cid:1)the techniques for analysing texts from which legal rules and principles are formally derived (i.e. statutes and case law). This sounds like a list of self contained topics but will be more difficult for overseas students to access as they may lack the necessary historical and political background to understand why English legal institutions are as they are. However, this can usually be made up by the distinct background which students from other jurisdictions may bring to the course, which will in time enable them to compare their own legal systems, and the cultural and political influences on them, to that of English law. LAW AS A ‘LIVING’ SUBJECT The other vital point to grasp at this stage is that all law is “living” and therefore constantly changes; nowhere is this more clear than when studying ELS which is not a static subject. It is therefore essential to keep up to date with current affairs generally, as well as with new cases, because the context in which the English legal system operates is subject to ongoing change. Most important cases in an ELS context appear in The Times Law Reports soon after they are decided, and some time before they get into the regular series, so this source should be watched. The Times, and its law reports, can be read on the Internet anywhere in the world and this brief report will usually be sufficient for students’ needs during the academic year in which ELS is being studied, and The Times will usually also highlight other relevant constitutional and socio-political issues so it is worth the effort of accessing their site regularly. 3 SEMPLE PIGGOT ROCHEZ Chapter 1 CONSILIO An additional source of up to date material is SPR’s online law magazine Consilio, which may be accessed directly through the SPR website. ELS: THE PROBLEM WITH RULES It is a problem for ELS students that the socio-economic context of the subject makes its a wide and ‘all-embracing area’ for study. The solution to this problem in the time available, especially for part time students, is to obtain at least one good basic textbook as mentioned and to acquire a thorough understanding of that book. Your personal research can be backed up by selective wider reading, rather than to read widely from the start and to remember nothing. The essential building blocks need to be in place before critical commentary can be embarked upon. The University subject guide mentions this dilemma, noting that “all too often the task of learning the rules, principles and technique of using legal language swallows up the available time”. But they also propose a solution to this dilemma, under the heading “method of working” which students would be well advised to follow, where it is suggested that what is needed is a firm foundation of factual knowledge by first reading any textbook and making notes, and only then resorting to other materials, of which there are of course many. The reading lists point to both basic textbooks and further reading and these should be treated as suggested, i.e. either as basic knowledge or supplementary study. THE RELEVANCE OF LEGAL HISTORY The University stresses in the ELS subject guide that legal history as such is not part of the syllabus. Nevertheless, some background in this respect will help rather than hinder and where relevant the SPR course draws attention to the historical background. I have kept legal history to a minimum but for those interested do look at ‘Walker and Walker’s English Legal System’ by Professor Richard Ward (8th edition, 1998 Butterworths). THE EFFECT OF LAW REFORM The University also draws attention to the exclusion of law reform from the syllabus (see Zander ‘The Law-Making Process’ Chapter 9, page 404). However, some knowledge of proposed reforms will help to hone the critical faculties which the University’s guide also makes clear are expected to be acquired, polished and exercised at degree level, and so proposed reform is also worth noting. Articles on The Times legal pages on Tuesdays often deal with current initiatives or proposals for reform. 4 SEMPLE PIGGOT ROCHEZ Chapter 1 Page 5 of the University’s guide mentions the Lord Chancellor’s Department’s website which is a plentiful source for potential law reform material, especially as the current Lord Chancellor has already presided over many significant reforms. The pace and extent of recent reform in the law may be compared with the whole programme of the first ministry of Gladstone between 1866 and 1874, where his government was described by a contemporary commentator as leaving office like a range of “exhausted volcanoes”, except that Lord Irvine shows no sign of exhaustion, and has declared that he has no intention of leaving office. GENERAL KNOWLEDGE OF LAW One of the most important tasks of the law student is to learn to think like a lawyer. To this end, you should make use of all the opportunities for acquiring such background knowledge which are afforded by access to all the resources of the SPR website and its links. Apart from Consilio, the online law students’ magazine, you can also access the general and newspapers, such as The Times, The Lawyer, and the Gazette. There are also good lecture notes on the skill of Fact Management, and on European Law and its impact on English law. Whilst European Law is not part of the ELS syllabus, an understanding of the European institutions and how they work, and enforcement of European law in England is, so you should download from the ELS subject page and study carefully the notes on an introduction to the law of the single market, and on the jurisdiction of the Court of Justice and the enforcement of EU law. LEARNING HOW TO ANSWER EXAMINATION QUESTIONS This is a process which may be much more difficult in ELS than in the substantive law subjects where the confines of the question are traditionally more distinct. This is because the breadth and bulk of the ELS material is so great. I give some guidance in the ‘handy hints’ below, but some useful advice on Examination Technique in general, with particular reference to ELS, is also contained in an Appendix to the University’s ELS subject guide. You should read this at the start of the course, not in the second or third term when revision and the examination is suddenly very close. Careful mastery of the skill of answering ELS questions should begin with the first assignment. In total, four assignments will be scheduled during the year. So, when the mock examination paper is offered, and this should ideally be written and submitted in the Easter Vacation, some practice will already have been obtained in writing the answers. 5 SEMPLE PIGGOT ROCHEZ Chapter 1 READING LISTS The University’s detailed reading lists contain many useful and interesting books. It has already been mentioned that from 2001 onwards there is a recommended textbook for ELS which is Slapper and Kelly (see below). TEXTBOOKS (cid:1) Slapper, G and Kelly, D, The English Legal System, 4th edition, London, Cavendish Publishing, 1999 (www.cavendishpubishing.com) ISBN 1 85941 6578. While this is the basic textbook, a second basic book would be worth obtaining, largely for regular reference as it has a level of detail not contained in Slapper and Kelly, and this is: (cid:1) Smith, Bailey and Gunn on the Modern English Legal System, 4th edition, 2001, ISBN 0 421 74130 9 At least one supplementary book would be useful for deeper study of precedent and statutory interpretation and of those listed by the University. Manchester’s Exploring the Law: the Dynamics of Precedent and Statutory Interpretation, London, Sweet & Maxwell, 1996 is suggested as the most straightforward for the purpose of imparting a good grasp of these two sometimes difficult practical topics. Zander is also particularly helpful and detailed. SOURCEBOOKS Any of the books listed by the University in their subject Guide would be useful, but as Professor Michael Zander is the long recognised authority on and acute critic of the English legal system, one of his titles, perhaps his Cases and Materials, 8th edition, Butterworths 1999, would probably be a good selection. An additional sourcebook is Slapper & Kelly’s Sourcebook of the English Legal System ( second edition 2001). OTHER MATERIALS Your course materials include a range of soundfiles, both of general background interest and specific ELS titles which correspond to the fortnightly virtual tutorial topics, and these may be downloaded from the SPR website, on which will also be found extensive on line materials including Law Reports, and these should of course be accessed whenever a specific case needs to be read. The ELS subject page also contains a series of lecture notes to which subject specific reading is directed in each chapter of this manual. These lecture notes are of a high quality. They are of increasing value as the ELS course progresses and students will become familiar with the shape of the English 6 SEMPLE PIGGOT ROCHEZ Chapter 1 legal system as a whole. It is useful to download and print off these notes at the start of the course, because constant reference to them will be found to be most beneficial. An early study should be made of the lecture notes to read Legal Skills and Legal Research, which advises the student on how to study for a law degree and on developing the lawyerly skills which will lead to successful study. GENERAL HANDY HINTS Remember that when you are studying for your degree, whether it is at Intermediate or Finals level, the main need is for you to understand basic substantive principles of law involved. You will then need to apply these principles in either an essay or factual situation. Legal principles have been laid down both by statute and in case law. However, you must realise that you cannot learn every case, so be guided by your textbooks to those cases that are the most important. Also, know you way around your statute books (where appropriate) in detail just in case your memory freezes in the examination hall and you need to make reference to it. Some paragraphs are highlighted for effect in many of the leading texts and practitioners works. Do take special notice of these highlights as you prepare for your final revision. Ten guidelines to help you with your revision. 1. Review the contents of your textbooks so that you have an overview of the course. 2. Do the same with each specific topic that you have selected for revision. Follow your own selection of topics covered in the textbooks. 3. Examine one topic at a time and digest it. 4. Look where the author has highlighted points. 5. Read each leading passage and case carefully and try to understand what is being said (re-read the notes you have already made as they are always a useful learning device). 6. Make a determined effort to remember: Names of cases Facts of the case The ‘ratio decidendi’ Other important or associated features 7. Re-read the passage a few times and then ask yourself: (cid:1) Does this passage link with other areas, cases and interpretations? (cid:1) How is it similar? (cid:1) How does it differ from other points already known? 7 SEMPLE PIGGOT ROCHEZ