Nikolina Krni

MODUL 1 (EXAM QUESTIONS)- SEMESTER ONE

1.) Name the ways in which the tem !c"mm"n #aw$ is %se&.
a) It is law which is c"mm"n to the whole country-national law in contrast to local law.
b) It is law which is based on judicial decisions (case #aw) in contrast to the law which
is made by Parliament (stat%te #aw).
c) It distinguishes the common law legal systems based on 'ece&ens from civil law
jurisdictions based on ci(i# c"&es.
d) It comrises the rules develoed by the c"mm"n #aw c"%ts in contrast to the rules
develoed by the c"%ts ") e*%ity.
+.) ,i(e an e-am'#e ") a c"%nty with a #e.a# system /ase& "n a ci(i# c"&e.
!roatia" #erman" $rance%.
0.) De)ine the c"nce'ts !cimina# #aw$ an& !ci(i# #aw$. ,i(e e-am'#es ") acti"ns
which )a## int" each cate."y.
& simle distinction between the criminal law and the civil law is thath the ci(i# #aw
regulates the relationshi between individuals or bodies and the cimina# #aw regulates the
legal relationshi between the state and individual eole and bodies.
'he first ractical difference is seen in the arties to the legal action. & ci(i# case will
involve two ( or more) individual eole or bodies whilst the arties to a cimina# case
will be the state and an individual erson or body.
)*amles of the civil law include the law of contract" tort (literally meaning +wrong,) and
roerty. I decide to buy a radio from local sho. I ay the correct rice and take the radio
away. &fter two days the radio fails to work. 'his is a common situation and usually the
shokeeer will relace the radio or return my money. If not" I may wish to take legal
action to recover my loss. &s the law of contract is art of the civil law the arties to the
action will be me ( an individual) and the owner of the sho ( an individual erson or
body).
)*amles of the criminal law. 'his is the law by which the state regulates the conduct of its
citi-ens. !riminal offences range from the etty (arking offences) to the very serious
(murder" rae). I am driving my car at ./ m..h.(miles er hour or 001 kolometres er
hour) in an area which has a seed limit of 2/ m..h.. I am stoed by a olice officer and
subse3uently a case is brought against you for dangerous driving.
1.) O%t#ine the &e(e#"'ments which #e& t" the esta/#ishment ") a c"mm"n #e.a#
system.
Prior to the Norman con3uest in 0/44" the legal system was decentralised. It consisted of
local courts" the borough" shire and hundred courts" each alying its own local customary
law. 'he Norman kings could have adoted this system by allowing the baron to whom a
region has been given to run the court in that region. Indeed" by taking the office of sheriff
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and with it the administration of the shire court" some barons tried to do just that. 6owever"
the fear that barons would become rovincial rinces rivalling the ower of the King was
one of main reasons which led to strategy of judicial centralisation under 6enry II (0072-
0089). 6is reign saw the creation of a ermament royal court of King:s ;ench as it becam
known " sitting in <ondon and manned by secialist judges. In addition" the King
commissioned officials" usually judges of the central court" to travel round a circuit of the
regions hearing cases. 'hese regional hearings were known as the assi-es and dealt with both
civil and criminal cases. !entral control over the law was ensured by the rocedure under
which the legal issue in a case cold first be decided by the royal courts in <ondon" and then
the legal ruling would be taken by the travelling judge to the region concerned where the
facts would be tried and the ruling alied to the facts found at the trial. 'his strategy
enabled the royal judges to aly common legal rinciles to most arts of the land- the term
common law which is still used to describe judge-made system of law.
2.) O%t#ine the eas"ns )" the esta/#ishment ") the "i.ina# c"%ts ") e*%ity.
In the =iddle ages" the courts of common law failed to give redress in certain tyes of case
where redress was needed and how the disaointed litigants etitioned the King" who was
the fountain of justice. 'he King through his !hancellor eventually set u a secial court" the
!ourt of !hancery" to deal with these etitions" and how the rules alied by the !ourt of
!hancery hardened into law and became a regular art of the law of the land. 'he most
imortant branch of e3uity is the law of trust" but e3uitable remedies such as secific
erformance and injunction are also much used.
3.) 4hich c"%t was the 'inci'a# c"%t )" the a&ministati"n ") e*%ity an& wh" was
its hea&5
'he rincial court for administration of e3uity was the !ourt of !hancery and its head was
Kings !hancellor.
6.) 4hat ae the %n&e#yin. 'inci'#es ") e*%ity5
)3uity is based on fairness and justice.
a) E*%ity wi## n"t s%))e a w"n. t" /e with"%t a eme&y. )3uity will only intervene
when there is no ade3uate common law remedy.
b) E*%ity )"##"ws the #aw. )3uity recognises legal rights and does not take the lace of
the common law.
c) 7e wh" c"mes t" e*%ity m%st c"me with c#ean han&s. & litigant who has behaved
unfairly in the disute will be denied an e3uitable remedy.
d) E*%ita/#e eme&ies ae &isceti"nay. <itigants do not have a right to an e3uitable
remedy. 'he courts will decided whether to grant a remedy after considering the
individual circumstances of each case.
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8.) In a case ") c"n)#ict /etween a %#e ") e*%ity an& a %#e ") c"mm"n #aw9 which wi##
'e(ai#5
In cases of conflict or variance between the rules of e3uity and the rules of common law" the
rules of e3uity should revail.
:.) ,i(e thee e*%ita/#e ma-ims. > .. itanje
)3uitable ma*ims are set of rules" develoed by the !ourts to govern the alications of
e3uity. 'hese ma*ims are the reasons why we continue to distinguish between common law
and e3uity.
1;.) 4hat is the si.ni)iciance ") the <%&icat%e Acts 1860-18625
&s a result of the ?udicature &ct 08.@ the old courts of common law and the !ourt of
!hancery were abolished" and in their lace was established a single Aureme !ourt of
?udicature" each branch of which had full ower to administer both law and e3uity. &lso"
common injunctions were abolished and instead it was enacted that in cases of conflict or
variance between the rules of e3uity and the rules of common law" the rules of e3uity should
revail.
11.) 4hat ae tw" c#assi)icati"ns ") En.#ish #aw5
!ivil law and criminal law.
1+.) Name the thee ".ans ") ."(enment.
'hree organs of government areB e*ecutive (cabinet)" legislature (arliament) " judiciary
(<ord !hancellor). In the CK the monarch ha san imortant constitutionali role as head of
state" he is the fourth organ of government.
10.) 4hat ae the tw" e#ements ") the &"ctine ") 'a#iamentay s"(eei.nty5
0.) that Parliament may enact any law it wishes" and
1.) that no authority" including the courts" has the ower to 3uestion the validity
of the legislation.
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11.) O%t#ine the the"y ") the se'aati"n ") '"wes.
'his theory was articulary develoed by the $rench olitical scientist =ontes3uieu. 6e says
that e*ecutive" legislative and judical owers shouldn:t be united in the same erson" or in
the same body of magistrates" because there can be no liberty.
'he reasons for this theory are" if the judicary ower not be searated from legislative and
e*ecutive" there is no liberty" subject would be e*osed to violence and the oresions.
'he theory has been criticised for being urist-that is model to which ;ritish system of
government does not conform. =embers of e*ecutive are members of lefislative- the head of
the judiciary " the <ord !hancellor is a member of the !abinet.
=ontes3uieus theory should be seen as rescritive rather than descritive" its essence being
that no one erson or body should have full control of all three functions of government. In
articular" the courts should be indeendent of the e*ecutive and legislature so that the
judges can ensure that these bodies do not e*ercises their owers arbitrarily.
12.) D"es the =%&iciay ha(e any c"nt"# "(e the acti"ns ") the e-ec%ti(e5
'he rocess of judical review is a ractical alication of the rule of law. It forms the basis
of a growing body of administrative law which the regulates relationshi between the courts"
ublic administrative bodies ( including the e*ecutive) and individual citi-ens. ?udical
review does not enable the courts to 3uestions the merits of administrative action or the
validity o fan &ct of Parliament.
'hree standard tests by which the courts can judge the administrative actions to be ultra vires
(in e*cess of ower) areB illegality" irattionality and rocedural imroriety. 'he efects is to
render the action voide" that is has no legal effects. It is treated as if it had never e*isted.
13.) 4"%#& a >i## ") Ri.hts chan.e the "#e ") the =%&iciay5
'he effects of ;ill of Dights on the arliamentary soverginity is that Parliamunt would no
longer be sovereign if the judicary would be able to overdreve his decisions" and the effect of
;ill of Dights on judicionary would hold legislative or e*ecutive actiones to be invalid if
they contradict ro ;ill" 'he ;ill of Dights would necessary entrench one set values at the
e*sens of anothers.
16.) 4hy mi.ht stat%tes /e am/i.%"%s an& %ncetain5
It could be abstract" oen to interretation" and that:s very dangerous.
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18.) 4hat #e.a# stat%s &" can"ns ") stat%t"y inte'etati"n h"#&5
?udges do have an imortant role in relation to legislationB Parliament asses the laws" and
the courts aly them to individual cases. ;ut befor the law can be alied the judges must
decide on its meaning. 'his rocess is called statutory interretation.
1:.) 4hat is meant /y the e-'essi"n !the intenti"n ") ?a#iament$ 5
Ehen interreting statutes the courts are said to be seeking the intention of Parliament. 'his
search is as difficult as that for the ratio decidendi of a case. Parliament comrises many
individual members of Parliament who may have different views on any one subject.
Aeeking the common intention of such a disarate grou would be a seculative and
imossible task. In this sense the intension of Parliament is a hrase with little meaning.
+;.) ,i(e an e-am'#e ") a case in which the #itea# %#e was a''#ie& an& /ie) s%mmay
") its a''#icati"n.
<iteral rule was used in case <ondon F North )astern Dailway !o. G. ;erriman ( 0924.)
when literal and usual meaning of words rearing and relaying reached different
conclusions. 'his gives a clear illustration of the difficulty in determing the meaning of what
might aear to be very simle word. 'he laintiff:s husband was killed whilst oiling and
cleaning the railway oints. No warning system had been rovided. 'he 6ous of <ords" by a
three to two majority" held that =r ;erriman had been engaged in maintaining the railway
line at the time of his death and this was not the same as +reairing and relaying,it.
+1.) 4hat citicisms can /e #e(e##e& at the #itea# %#e5
&n e*cess of judicial creativity would lead to individual judges determining what is right and
just. 'his could result in accusation of bias and rejudice.
'here has been a general criticism of a strict adherence to the <iteral Dule. 'he <aw
!ommission reort 'he Interretation of Atatutes aroved the use of the =ischief Dule
referring a construction which would romote the general legislative urose over one
which would not.
++.) E-'#ain the /asic ec"mmen&ati"ns ") the Law @"mmissi"nAs e'"t "n the
inte'etati"n ") stat%tes.
<aw commissions reort aroveds the use of the =ischief Dule refering a construction
which would romote general legislative urose over one which would not.
'here are several resumtions which a judge when he is called uon to interret an &ct like
that the &ct alies to the whole CK" but not further
that the !rown ic not bound
that the statute is not retrosective
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+0.) ,i(e tw" e-am'#es ") the 'es%m'ti"ns %se& /y the c"%ts when inte'etin.
stat%tes.
'here are several resumtions which a judge when he is called uon to interret an &ct like
that the &ct alies to the whole CK" but not further
that the !rown ic not bound
that the statute is not retrosective
#iven that words are an imerfect means of communication a number of aids have evolved
to assist judges in the interretation of statutes. 'he ne*t e*tract rovide san outline of some
of these aids but statutory interretation is not a scientific and these rules of interretation
are general rinciles rather than strict rules.
+1.) De)ine the )"##"win. temsB
a) &istin.%ishin.
/) 'e inc%iam
a) DISTIN,UIS7IN,- this occurs when the facts of a later case are sufficiently different to
justify the court reaching a different decisions from an earlier case involving the same legal
rincile.
b) ?ER IN@URIAM- means throught lack of care- generally when some relevant law was
not taken into consideration.
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MODUL + ( EXAME QUESTIONS)- SEMESTER T4O
1.) Distin.%ish /etween c"%ts ") )ist instance an& a''e##ate c"%ts.
$irst instance court is a trail court where case is heard for the first time " and &eal court is
a court where a arties in the roces make etition on verdict. Part who aeals is aellant"
other arty is resonder.
+.) 4hich c"%ts ae c"%ts ") )ist instance an& which a''e##ate c"%ts.
A''e##ate c"%tsB !ourt of &eal" 6ous of <ords
Cist instanceB country courts" magistrates courts
>"thB !rown !ourts" 6igh !ourt
0.) Name the &i(isi"n ") the 7i.h @"%ts which a&=%&icates "n &is'%tes "(e wi##s.
In 09./" wills went to the !hancery Hivisions and wrecks to the Iueen:s ;ench Hivision.
1.) ,i(e the tit#es ") the =%&.es wh" wi## hea an a''ea# in the @i(i# Di(isi"ns i) the
@"%t ") A''ea#.
=aster of the Dolls and the <ords ?ustices of &eal.
2.) ?i" t" the @"%ts an& Le.a# Se(ices Act what was the )inancia# #imit "n c"ntact
an& t"t acti"nes which c"%#& /e hea& in the c"%nty c"%ts5
'he jurisdiction of the courts is limited by the tie of case and lower courts" by geograhy
and the amount of the claim. $or e*amle" the country courts are limite in tort and contract
cases to incidents which occurred within their locality and to claims which do not e*ceed
J7///.
3.) 4hy ae )inancia# #imits an a/itay way ") &istin.%ishin. /etween cases5
!ases are different in seriousness and comle*ity and court system should take account of
that fact. $or e*amle" action for the recovery of a J 1// debt will re3uire different
rocedure from a disute over a commercial contract involving a comle* oint of law and a
claim for J 7//"/// damages. 'he majority of cases are not comle* and it is imortant that
the system rovide san efficient means of resolving these disutes.Eithin the formal court
system this is done through the country court arbitration service.
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6.) 4hat was the "i.ina# '%'"se ") the c"%nty c"%ts5
!ountry courts were set u in 0824 to rovide a locally based service which was easily
accessible to ordinary eole. !ountry courts had become rimarily a debt-collection agency
in which the majority of actions were take out against the ordinary erson" it was the court
in which the ordinary erson was sued for debt.
8.) 4hy ha(e they /een citicise& )" )ai#in. t" )%#)i# this '%'"se5
It has been criticised for still being too comle* and because country courts rocedure had
became too formal and e*ensive to fulfil its original urose.
:.) 4hat is the tit#e ") the 'es"n wh" wi## hea cases in the sma## c#aims c"%ts5
'he case is heard by the Degistrar of the county court ( an assistant judge who is emloyed
by the court and whose role is administrative and judicial).
1;.) 4hat ae the tw" ma=" citicisms ") the system ") ci(i#e =%stice5
&n efficient system whick is 3uick and chea may not rovide an ade3uate oortunity for
the litigants to reare and resent their case. )3ually " delay and e*ense can lead to
injustice. !osts and delays are les sin the country courts but they leave no room for
comlacency.
11.) 7"w wi## the @"%ts an& Le.a# Se(ices Act chan.e the =%is&icti"n ") the ci(i#
c"%ts5
'he &ct gives the <ord !hancellor the ower to redistribute business between the 6igh
!ourt and the country courts on the basis of the comle*ity of individual cases. 'he financial
limit of J7"/// for cases heard by the country courts is therefore removed.
'he !ourts and <egal Aervices &ct also enacts the roosal in the civil justice review that the
role of the Degistrar is small claims actions should be more in3uisitorial. It also gives a
statutory right to litigants to be reresented by a lay erson.
1+.) 4hat is the /%&en ") '"") inB a) ci(i# acti"nsD /) cimina# acti"ns 5
Kne way in cimina# acti"ns is that the burden of roof is one the rosecution to rove
beyond reasonable doubt that the accused committed the offence charged. 'his can be
comared with the burden of roof in ci(i# acti"ns where it is for the laintiff to show that
the defendant is liable on the balance of robabilities" that is the defendant is more likely to
be liable than not.
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10.) @an a 'i(ate in&i(i&%a# /in. a '"sec%ti"n5
Les even it is not usual. 'he general rule is that any rivate individual can bring a
rosecution even if the individual has no articular interest in the case. 'his is usually
referred to as a rivate rosecution. 'he greatest number of rosecutions" however" are
brought as a result of action instigated by the olice.
11.) 4hich /"&y was es'"nsi/#e )" '"sec%ti"ns /e)"e the ceati"n ") the @?S 5
Cntil recently the olice made the final decisions to rosecute in the cases they were dealing
with. =oreover" the olice effectively controlled the rosecution" and in some magistrates
courts olice oficers actually aeared as advocates. Aolicitors had to act in accordance with
the instructions of chief constables" even if the solicitors felt that a rosecution was unwise.
12.) 4hat #imitati"ns ae '#ace& "n the =%is&icati"n ") ti/%na#s5
'he limitations is that tribunals can only take cases which are secifically relevant to it.
'here are over 7/ different tyes of tribunal" each with its own limited jurisdiction over a
articular tye of claim.
13.) De)ine hieachica#.
'here are some features of the court system which are naturally reflected in the nature of the
)nglish judiciary. $irst" it is hierarchical with judges in the higher courts having more
authority than those in the lower courts. Aecondly" most judges will hear both civil and
criminal cases. ?udges in the 6ouse of <ords and the !ourt of &eal heare only aeal
cases"whilst judges in the 6igh !ourt and !rown !ourt have first instance and aellate
jurisdiction.
16.) 4hich =%&.es ha(e the m"st a%th"ity.
6ouse of <ords- they all have the most authority although they are not all judges. 'hey are
aointed by the Prime =inister on the recommendation of the <ord !fancellor who is also
the resident of the 6ouse of <ords. 'hey will usually be romoted from the 6igh !ourt
although it is ossible for a barrister of fifteen years e*erience to be aointed without
revious judical e*erience.
18.) In which c"%t &" '%isnes =%&.es sit5
'hey are aoined by the Iueen on the recommendation of the <ord !hancellor. 6igh !ourt
judges are sometimes referred to as uisne judges. 'here are ma*imum of 8/ 6igh !ourt
judges. 'he <ord !hief ?ustice heads the Iueen:s ;ench Hivision" the President of the
$amily Hivision the $amily Hivision and the Gice-!hancellor the !hancery Hivision. &
single judge will hear a case at first instanceM two or more may be re3uired to sit in an aeal
case.
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1:.) Distin.%ish /etween #ay ma.istates an& sti'en&iay ma.istates.
Sti'en&iay ma.istates
'hese are full-time aid aointments made by the Iueen on the recommendation of the
<ord !hancellor. ;arristers or solicitors of seven years standing 3uality for aointment.
'here are about 0// stiendiary magistrates. 'hey sit in the magistrates courts in the larger
cities" articulary <ondon. & case will be heard by a single stiendiary magistrate.
Lay ma.istates
'hese are art-time" unaid magistrates often know as justices of the eace. 'hey are
aointed from ordinary members of society by the <ord !hancellor. 'hey are not legally
3ualified although they do receive some basic training. & case will bw heard by the bench of
three lay magistrates who are advised on the law by the clerk of the court. 'here are
aro*imately 17"/// lay magistrates and they hear over 9/ er cent of criminal cases.
+;.) D" =%&.es '#ay an acti(e "#e &%in. the c"%se ") a tia#5
'he judical fuction is to seek the facts of a case and aly the e*isting law to those facts. 'he
judges role in seeking the facts is very limited. 'his is not to say that judges must be totally
assiveMthey may" on occasion" 3uestion the witnesses and they must control the roceedings
according to the rules of rocedure and evidence" but they must not intervene e*cessively.
'heir role is that on the imartial adjudicator-reaching a conclusion only on the basis of the
evidence resented to them.
+1.) Name tw" ways in which =%&.es maEe #aw
Ehere is no recedent they make newM interreting statutesM deciding weather to e*tend or
restrict on e*isting legal rincial.
++.) D"es L"& Dennin. t%st the =%&.es5
Les" because he is also a judge. <ord denning laced great faith in the judges as a check on
the misuse of ower. N 'he judges of )ngland have always in the ast-and always will-be
vigilant in guarding our freedoms. Aomeone must be trusted. <et it be the ?udgesN.
+0.) D"es ?")ess" ,i))iths t%st the =%&.es5
No" robbably no. Professor ?ohn #riffiths in his book The Politics of the Judiciary (0987).
6e took a broad view of the factors which influence judicial indeendence. In articular" he
argued that the common background of most judges led them to identify the ublic interest
with the interest of those in authority. Professor #riffiths is over his assumtion that the
conservative nature of the judiciary leads to an inability and disinclination to control the
abuse of ower.
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+1.) 4hich ci(i# acti"ns may /e hea& /e)"e =%y5
libel and slander
malicious rosecution
false imrisonment
fraud
breach of romise of marriage or seduction (both actions now abolished)
+2.) 4h" has iss%e& .%i&e#ines "n =%y (ettin.5
'he &ttorney-#eneral has issued guidelines governing the use of jury vetting.
+3.) D"es the &e)ence ha(e a i.ht t" 'eem't"y cha##en.e ") a '"tentia# =%"5
In )ngland no" in CA& yes.
'he right of the defence to three ermtory challenges was removed by the !riminal ?ustice
&ct 0988 on the grounds that the rocess was often used to ack a jury with eole who
would be more symathetic to the defendant.
+6.) 4hy mi.ht =%"s &is#iEe =%y se(ice5
'he comulsory element in jury service is disliked by jurors" articulary when allied to the
inade3uate comensation for loss of earnings for the higher-aid. 'his would seems to be a
task for which juries were not designed and for which they are ill-e3uied.
+8.) 4hat ae sha&"w =%ies5
=uch of the research concentrates on ac3uittal rates and the levels of erverse verdicts.
Aome studies have shown that judges and shadow juries agree with .7 er cent of jury
verdicts. ?uries are twice as likely to ac3uit as magistrates. &c3uittal rates are" of course"
only one way of assessing the ade3uacy of trial by juryM how do we judge whether an
ac3uittal is wrongO $or e*amle" the 6ome Kffice research could suggest that magistrates
are convicting innocent eole rather than that juries are ac3uitting the guilty.
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