English Legal System PDF
Preview English Legal System
ELEVENTH EDITION E ‘The book has several strengths welcome to students and lecturers alike: up to date, n well-written and comprehensive. It provides clear exposition of the central themes whilst g the delightful layout makes the information readily accessible.’ Dr. Jackson Maogoto, Senior Lecturer, University of Manchester l i s h English Legal System is the best-selling undergraduate text on this subject, providing an authoritative and engaging account of the structure and mechanisms of the law in England and Wales. The authors skilfully present a thought- provoking analysis of the subject, making this the defi nitive introduction to the area and the fi rst choice for students year L after year. e Annually revised and fully updated, Elliott and Quinn’s English Legal g System continues to keep you fully informed of progress and changes premium a within this constantly evolving topic. Some key recent developments covered in this eleventh edition include: l • The establishment of the Supreme Court S • Planned reforms in the Constitutional Reform and Governance Bill Do you want to give yourself a head start come • Changes to the regulation of the legal profession, including the y exam time? establishment of the Legal Services Board Visit www.mylawchamber.co.uk/ElliottELS s • The opening of family courts to the media to access the accompanying Pearson eText, an • Police tactics following the G20 demonstrations electronic version of English Legal System. t e The eText is fully linked to interactive quizzes, This eleventh edition offers: sample exam questions with answer guidance, m and fl ashcards – all designed so that you can test • Comprehensive exposition of the legal system of England and Wales yourself on topics covered in this book. • Unrivalled clarity of explanation • Over eighty questions with answer guidance in the book and within There are also live weblinks and regular legal updates to help you impress lecturers and mylawchamber, alongside a dedicated appendix on answering examiners with your knowledge of the latest exam questions to help support your revision developments in the English legal system. premium Lecturers: Register online for access to a testbank The book also draws on a number of innovative learning features to of multiple-choice questions that can be customised develop your knowledge of the subject even further, such as: and used to assess students’ progress. CATHERINE ELLIOTT & FRANCES QUINN • Key Case boxes which help you identify and remember important E cases and rulings L • Topical Issue boxes which put the legal system into context and support understanding L English I • Figures and diagrams which offer a visual description of various aspects of the legal system O T T ABOUT THE AUTHORS & Catherine Elliott is a qualifi ed barrister and senior lecturer in law at City University, London. She has Q extensive experience of teaching and writing about law. Legal System U Frances Quinn is an award-winning journalist, with a particular interest in and experience of the law. I N N premium ELEVENTH EDITION www.pearson-books.com Cover © iStock CVR_ELLI0565_11_SE_CVR.indd 1 8/2/10 10:23:19 English Legal System Eleventh Edition Catherine Elliott and Frances Quinn Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 1996 Second edition 1998 Third edition 2000 Fourth edition 2002 Fifth edition 2004 Sixth edition 2006 Seventh edition 2006 Eighth edition 2007 Ninth edition 2008 Tenth edition 2009 Eleventh edition 2010 © Pearson Education Limited 1996, 2010 The rights of Catherine Elliott and Frances Quinn to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. All trademarks used herein are the property of their respective owners. The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of the Click-Use Licence. ISBN: 978-1-4082-3056-5 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Elliott, Catherine. English legal system / Catherine Elliott and Frances Quinn. – 11th ed. p. cm. ISBN 978-1-4082-3056-5 (pbk.) 1. Law–Great Britain. 2. Justice, Administration of–Great Britain. 3. Courts–Great Britain. I. Quinn, Frances. II. Title. KD662.E45 2010 349.42—dc22 2009047335 10 9 8 7 6 5 4 3 2 14 13 12 11 10 Typeset by 35 Printed and bound in Great Britain by Ashford Colour Press Ltd, Gosport, Hants Brief contents Guided tour x Preface xiii Acknowledgements xiv Table of cases xv Table of statutes xxiii Table of statutory materials xxvii Cases, law reports and case references: a guide xxix Introduction 1 Part 1 SOURCES OF LAW 1 Case law 11 2 Statute law 41 3 Statutory interpretation 52 4 Delegated legislation 78 5 European law 90 6 Custom 115 7 Equity 120 8 Treaties 128 9 Law reform 131 Part 2 PEOPLE WORKING IN THE LEGAL SYSTEM 10 The judges 153 11 The legal professions 188 12 The jury system 232 13 Magistrates 270 14 Administration of justice 290 Part 3 HUMAN RIGHTS 15 Introduction to human rights 299 16 Remedies for infringement of human rights 325 iv Brief contents Part 4 DISPUTE RESOLUTION 17 Paying for legal services 339 18 The police 377 19 The criminal trial process 424 20 Sentencing 462 21 Young offenders 504 22 The civil justice system 530 23 Tribunals 571 24 Appeals and judicial review 585 25 Alternative methods of dispute resolution 621 Part 5 CONCEPTS OF LAW 26 Law and rules 639 27 Law and morals 650 28 Law and justice 667 Appendix: Answering examination questions 675 Glossary 681 Select bibliography 684 Index 697 Contents Guided tour x 3 Statutory interpretation 52 Preface xiii Introduction 53 Acknowledgements xiv How are statutes interpreted? 54 Table of cases xv Rules of interpretation 54 Table of statutes xxiii Interpreting European legislation 63 Table of statutory materials xxvii Aids to interpretation 63 Cases, law reports and case How do judges really interpret references: a guide xxix statutes? 70 Reform of statutory interpretation 73 Introduction 1 Answering questions 74 The unwritten constitution 2 Summary of Chapter 3 75 A written constitution? 6 Reading list 76 Reading on the Internet 77 Part 1 SOURCES OF LAW 4 Delegated legislation 78 Introduction 79 1 Case law 11 The power to make delegated Historical background 12 legislation 79 Judicial precedent 15 Why is delegated legislation The hierarchy of the courts 16 necessary? 80 How judicial precedent works 23 Control of delegated legislation 81 How do judges really decide cases? 24 Criticism of delegated Do judges make law? 28 legislation 85 When should judges make law? 30 Answering questions 86 Advantages of case law 33 Summary of Chapter 4 88 Disadvantages of case law 34 Reading list 89 Answering questions 37 Reading on the Internet 89 Summary of Chapter 1 39 Reading list 40 5 European law 90 Reading on the Internet 40 Introduction 91 The aims of the European Union 91 2 Statute law 41 Modernising the European Union 93 Introduction 42 The institutions of the European Union 93 House of Commons 42 Making European legislation 101 House of Lords 42 Types of European legislation 101 Making an Act of Parliament 43 How does EU law affect the UK? 107 Answering questions 49 Answering questions 111 Summary of Chapter 2 50 Summary of Chapter 5 113 Reading list 50 Reading list 113 Reading on the Internet 51 Reading on the Internet 114 vi Contents 6 Custom 115 Appointments to the judiciary 159 Introduction 116 Wigs and gowns 165 When can custom be a source of law? 116 Training 166 Answering questions 118 Pay 166 Summary of Chapter 6 119 Promotion 167 Reading list 119 Termination of appointment 167 Independence of the judiciary 169 7 Equity 120 Criticisms of the judiciary 170 Reform of the judiciary 181 Introduction 121 Answering questions 183 How equity began 121 Summary of Chapter 10 185 Common law and equity 122 Reading list 186 The Judicature Acts 123 Reading on the Internet 187 Equity today 123 Answering questions 126 Summary of Chapter 7 126 11 The legal professions 188 Reading list 127 Introduction 189 Solicitors 189 8 Treaties 128 Barristers 198 Introduction 129 Background of barristers and Implementation of treaties 129 solicitors 203 Answering questions 130 Performance of the legal Reading on the Internet 130 professions 208 The future of the professions 210 9 Law reform 131 Fusion of the professions 219 Introduction 132 Other legal personnel 224 Judicial change 132 Do we need legal professionals? 225 Reform by Parliament 133 Answering questions 226 Pressures for reform 134 Summary of Chapter 11 228 Agencies of law reform 136 Reading list 230 Performance of the law reform Reading on the Internet 230 bodies 141 Problems with law reform agencies 145 12 The jury system 232 Answering questions 147 History 233 Summary of Chapter 9 148 The function of the jury 234 Reading list 148 When are juries used? 235 Reading on the Internet 149 Qualifications for jury service 238 Summoning the jury 243 Part 2 Jury vetting 243 PEOPLE WORKING IN THE Challenges 245 LEGAL SYSTEM Discharging the jury 246 The secrecy of the jury 247 10 The judges 153 The verdict 249 The role of the judges 154 Strengths of the jury system 250 Judicial hierarchy 154 Criticisms of the jury system 253 A reduced role for the Lord Reform of the jury 260 Chancellor 156 Answering questions 265 Contents vii Summary of Chapter 12 267 Civil action 326 Reading list 268 Compensation 328 Reading on the Internet 268 Criminal proceedings 329 Criminal Injuries Compensation 13 Magistrates 270 Scheme 329 The magistrates’ courts 271 The European Court of Human Magistrates 272 Rights 330 Answering questions 286 Disciplinary proceedings 330 Summary of Chapter 13 288 The admissibility of evidence 331 Reading list 288 The right to exercise self-defence 332 Reading on the Internet 289 Parliamentary controls 332 The Ombudsman 332 14 Administration of justice 290 Answering questions 333 Introduction 291 Summary of Chapter 16 334 Answering questions 295 Reading list 335 Summary of Chapter 14 296 Reading on the Internet 336 Reading list 296 Part 4 Reading on the Internet 296 DISPUTE RESOLUTION Part 3 17 Paying for legal services 339 HUMAN RIGHTS Introduction 340 Unmet need for legal services 340 15 Introduction to State-funded legal services 342 human rights 299 The Access to Justice Act: Introduction 300 an assessment 352 The European Convention on Conditional fee agreements 359 Human Rights 301 Are lawyers always necessary? 365 The scope of the Convention 301 Proposals for further reform 366 The Human Rights Act 1998 302 Answering questions 372 Advantages of incorporation 307 Summary of Chapter 17 374 Disadvantages of incorporation 310 Reading list 375 The administration 311 Reading on the Internet 376 The European Court of Human Rights and the ECJ 313 18 The police 377 Today’s debates 313 Introduction 378 A Bill of Rights for the UK? 317 Miscarriages of justice 378 Answering questions 322 The response to the miscarriages Summary of Chapter 15 323 of justice 381 Reading list 324 Human Rights Act 1998 382 Reading on the Internet 324 The organisation of the police 382 Police powers 384 16 Remedies for infringement Criticism and reform 412 of human rights 325 Answering questions 418 Introduction 326 Summary of Chapter 18 420 Judicial review 326 Reading list 421 Habeas corpus 326 Reading on the Internet 423 viii Contents 19 The criminal trial process 424 The civil justice system before The adversarial process 425 April 1999 533 Criminal Procedure Rules 425 The civil justice system after The Crown Prosecution Service 427 April 1999 536 Appearance in court 433 Criticism of the civil justice system 551 Classification of offences 434 Reform 563 Mode of trial 436 Answering questions 566 Sending for trial 437 Summary of Chapter 22 567 Plea and case management hearings 438 Reading list 568 Disclosure 438 Reading on the Internet 569 Plea bargaining 438 The trial 440 23 Tribunals 571 Models of criminal justice systems 442 Introduction 572 Criticism and reform 443 History 572 Answering questions 456 Reforming the tribunals 574 Summary of Chapter 19 458 Tribunals today 576 Reading list 460 Advantages of tribunals 579 Reading on the Internet 461 Disadvantages of tribunals 580 Answering questions 581 20 Sentencing 462 Summary of Chapter 23 582 Reading list 584 The Criminal Justice Act 2003 463 Reading on the Internet 584 Purposes of sentencing 463 Sentencing practice 468 24 Appeals and judicial review 585 Types of sentence 472 Appeals 586 Answering questions 497 Appeals in civil law cases 586 Summary of Chapter 20 499 Appeals in criminal law cases 588 Reading list 501 Criticism and reform of the appeal Reading on the Internet 502 system 597 Judicial review 607 21 Young offenders 504 Answering questions 616 Introduction 505 Summary of Chapter 24 618 Criminal liability 506 Reading list 620 Young people and the police 507 Reading on the Internet 620 Remand and bail 507 Reprimands and warnings 507 25 Alternative methods of Trial 509 dispute resolution 621 Sentencing 511 Introduction 622 Answering questions 525 Problems with court hearings 622 Summary of Chapter 21 527 Alternative dispute resolution Reading list 529 mechanisms 623 Reading on the Internet 529 Examples of ADR 625 Advantages of ADR 629 22 The civil justice system 530 Problems with ADR 630 Introduction 531 The future for ADR 632 History 531 Answering questions 632 The civil courts 532 Summary of Chapter 25 634 Contents ix Reading list 635 Summary of Chapter 27 665 Reading on the Internet 635 Reading list 666 Reading on the Internet 666 Part 5 CONCEPTS OF LAW 28 Law and justice 667 Introduction 668 26 Law and rules 639 Aristotle 668 Introduction 640 Natural law theories 668 Austin: the command theory 640 Utilitarianism 668 Hart: primary and secondary rules 640 The economic analysis of law 669 Dworkin: legal principles 642 Rawls: A Theory of Justice 669 The natural law theory 642 Nozick and the minimal state 670 The function of law 642 Karl Marx 671 Why are laws obeyed? 646 Kelsen and positivism 671 Answering questions 647 Justice in practice 672 Summary of Chapter 26 648 Answering questions 673 Reading list 649 Summary of Chapter 28 673 Reading list 674 27 Law and morals 650 Introduction 651 Appendix: Answering Law and morality 652 examination questions 675 Changes in law and morality 653 Essay questions 677 Differences between law Problem questions 678 and morality 653 Should law and morality be Glossary 681 separate? 654 Select bibliography 684 Answering questions 664 Index 697 Visit mylawchamber at www.mylawchamber.co.uk/ElliottELS to access a wealth of resources to support your studies and teaching in English legal system. These include: FOR STUDENTS Companion website support l Access to the accompanying Pearson eText– an electronic version of English Legal System, eleventh edition, which you can personalise with your own notes. Extensive links are provided to the Pearson eText from all of the resources listed below, and it is fully searchable. l Multiple-choice questions, flashcardsand practice exam questionsto test yourself on each topic throughout the course. l Updatesto major changes in the law to make sure you are ahead of the game by knowing the latest developments. l Live weblinksto help you read more widely around the subject, and really impress your lecturers. Use your access card to activate the unrivalled support for your studies. Online purchase is also available at www.mylawchamber.co.uk/register.
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