Experto Universitario en Inglés Jurídico

Unit 4
Experto Universitario en Inglés Jurídico y Preparación

del examen TOLES (foundation and higher)
The English Legal System

Índice
Scheme 3
Key Ideas 4
© Universidad Internacional de La Rioja (UNIR)
4.1. Introduction and Objectives 4

4.2. The Legal Systems 5
4.3. Law’s Branches 14
4.4. Bibliographical References 25
In Depth 26
Test 28
Scheme

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Unit 4. Scheme
Key Ideas
4.1. Introduction and Objectives
Law is all-pervasive. It can be found in every cell of our lives, affecting every person
almost all the time. It rules everything during our lives and even after that, and it
applies to everything from the foetus to exhumation. It covers every matter,
affecting issues from the air we breathe to the food and drink we have, our
traveling, sexuality, family relationships, and our property. It governs from the
bottom of the ocean to space. It rules the world of sport, science, employment,
business, political liberty, education, health services; everything, in fact, from
neighbour disputes to war.
Therefore, law is a versatile tool being used equally well to avoid the degradations
of humanity. Considering a social democracy, law is understood to serve the general
public’s interests.
With this idea in mind, this unit will cover the following objectives:
 Understanding law in all: it can be divided according to its origin, whether it is in

judicial pronouncement (judge-made law) or statute legislation (from
Parliament).
 Understanding how the doctrine of judicial precedent works.
 Understanding the difference between Civil and Criminal law, since this is a
particularly important distinction.

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Unit 4. Key Ideas
4.2. The Legal Systems
The legal system consists of the law —produced by law-making bodies (legislature
and judiciary)— and the institutions, procedures and personnel that help to the
mechanism and application of that law.
Consequently, it can be said that the English legal system consists of

legislation and common law, courts, judiciary, legal practitioners, police,
prosecutors, juries and mechanisms to provide access to justice.
Regarding legal systems, there are several traditions around the world. Those legal
traditions show firmly established historical positions about the nature of law, the
purpose of law in society at large, and how the law is made, applied and
interpreted. The two main and more important families of legal systems are
common law and civil law systems.
Civil Law or Continental Legal Systems
Civil law is the most antique legal tradition in the world, having its origin in Roman
law. This tradition developed later mainly in Continental Europe, but also all around
the world. The civil law system is characterised by a distinguishing feature: a
codified system. Jurisdictions having civil law systems, such as Spain, France,
Germany and Japan, contain comprehensive and continuously updated
(continuamente actualizado) legal codes that establish all issues that can be taken
to court, the appropriate proceedings and the applicable punishment for every
offence or crime.
The mentioned codes also establish several categories of law. In civil law systems,
the role of the judge consists of determining the facts of the case and applying the
provisions of the appropriate code. According to these legal traditions, judges

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Unit 4. Key Ideas
usually adapt the formal charges, investigate the issue and decide on the case
always taking into account an established framework of a codified set of laws.
As a result, the decision of the judge is less relevant or essential when shaping civil
law than the decisions adopted by legislators and legal scholars who are in charge of
drafting and interpreting the codes.
Some key features of civil law systems are the following:
 Codified system of law (e.g. civil code, codes covering company law,
administrative law, tax law).
 Written constitutions based on specific codes.
 Only legislative enactments (promulgación) are considered binding for all.
 Little scope for judge-made law, although judges generally follow precedent.
 Consititutional courts can nullify laws and decisions, which are binding.
Common Law Systems
The roots of the common law legal tradition can be discovered in the developments
carried out in England during the 11th century. Legal principles in common law legal
systems are found in the decisions adopted by judges when solving cases. For this
reason, and considering the doctrine of judicial precedent, common law systems
are thought to be more detailed than civil law systems.
Following the binding precedent means that judges solving particular cases are
bound to consider the decisions adopted by judges in previous similar cases. The
records of the courts keep these precedents over the years in collections of case law
known as yearbooks and law reports. The judge solving a case is the person in
charge of applying the most appropriate precedents in the decision of each new
case.

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Unit 4. Key Ideas
This tradition of the common law system of England was adopted by many
countries that formerly were colonies of the British Empire. Hence, the common law
system tradition spread to many countries such as Australia, USA, Canada and New
Zealand —all having connections with England (common law family)—. A mixed
system including both elements of common law and elements of civil law can be
found in some other countries such as Africa, India and parts of the Far East.
Some of the key features of common law systems are the following:
 There is not always a written constitution or codified laws.

 Judicial decisions are binding and decisions of the highest court can only be
overturned (revocar, anular) by the same court or through legislation.
 Everything is permitted if it is not expressly forbidden by law.
When studying how the legal system works, we should be able to identify the rule
considered as law in connection with other rules. Regarding the tradition of the
common law, the origin of a rule is essential to determine both the meaning and
the need to take precedence (tener prioridad) over a rule coming from another
source. The main sources of law in the English common law systems are:
 Law made by Parliament –known as ‘legislation’, ‘statute law’ or ‘Acts of

Parliament’. It constitutes the written laws showing the will (voluntad) of the
legislature.
 Law decided in the courts –known as ‘common law’ or ‘case law’. They are
decisions adopted by judges in particular cases and applied later in other cases
by other judges following the doctrine of the binding precedent.

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Unit 4. Key Ideas
Parliament and Statutes
In England and Wales the supreme law-making body is the Parliament. The
Parliament has two chambers: the House of Commons, comprising democratically
elected Members of Parliament (MPs); and the House of Lords, comprising
members who are appointed and some who have inherited the right to serve in the
House.
A valid Act of Parliament constitutes written law and is the final result of a long
process that follows the introduction of a draft Bill in Parliament. Before
introducing a Bill to Parliament, the government will normally go through a process
of consultation. They will publish a paper known as Green Paper that contains the
tentative proposals for changes to the law and invites comments. First time that
Green Papers were used was in 1967 and nowadays are usually used as a key part of
the legislative process.
After the Green Paper there is a White Paper, which contains the Government’s
firm proposals for new law and may contain the draft Bill attached. Following a
period for consultation, the draft Bill is introduced in Parliament and then debated,
discussed and amended. Once a Bill has gone through all the necessary
Parliamentary processes the Queen will sign it (Royal Assent) and then it is
published as an Act. A valid Act of Parliament takes its precedence over common
law or case law (HOLLAND & WEBB 2016, pp. 8-14).
Dealing with a law emanating from Parliament, it is necessary to make an important

distinction between primary legislation and secondary legislation. Primary
legislation refers to Acts of Parliament or statutes. As it often takes a long time for
primary legislation to get through all of the several stages in the Parliamentary
process, the drafting of Acts can contain only general provisions or rules and later,
under the authority of the Act, the detailed rules are produced to establish more
specific principles.

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Unit 4. Key Ideas
These detailed rules are known as secondary legislation or statutory instruments
and take the form of regulations, rules or orders. They have the force of law, but
can be implemented with less profound examination than primary legislation
(HOLLAND & WEBB 2016, pp. 8-14).
Common Law or Judge-Made Law
Opposite to statute law, when we consider the common law we are referring to the
law contained in decisions adopted by the courts rather than legal rules contained
in Acts of Parliament. England and Wales have a common law system; in other
words, when judges decide individual cases, they establish the majority of the most
fundamental legal rules and principles, rather than these rules being enforced by
Parliament. So, for example, most of the principles of the law concerning the
formation of binding contracts is to be found in the common law rather than in
statutes. When a lawyer or judge is searching for the rules on the formation of
contracts, they need to look for important legal cases that set out the legal
principles.
That is to say, they will search case law or legal precedents in which the
relevant legal principles are established. The doctrine of judicial precedent is
vital to the working of common law.
For the development of this section, we will follow the explanations given by Gary
Slapper (SLAPPER 2016, pp. 111-128). In practice, the doctrine of judicial precedent
means that when a judge is deciding a particular case (s)he will look for a precedent
decision in an earlier similar case to help them reach the fairest decision analysing
the case before them. One of the most important justifications to follow precedents
is related to the idea of doing justice. The key element in doing justice can be seen
as consistency, in the sense that similar cases judged before the courts should be
treated in a similar way to establish determination.

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Unit 4. Key Ideas
Another practical justification to follow precedent is that law becomes more
accurate and predictable when judges follow the reasoning and decisions of their
judicial colleagues. This fact is really desirable so that people can organise their legal
matters knowing what the law is and avoiding continuing legal procedures. Thus, it
is considered both fair and efficient to follow precedent.
Taking into account the explanations given above, the practice of precedent is not
so unusual and may be found to a certain extent in the majority of developed legal
systems. In fact, in civil law jurisdictions there is a principle of non-biding
precedent, sometimes referred to as the doctrine of judicial consistency, according
to which it would be considered wrongful if the courts importantly varied their
approach to other similar legal matters.
However, in the English common law system, we talk of the doctrine of binding
precedent, by which the courts are bound to follow earlier decisions, even though a
judge in a second court might not approve of the earlier precedent. Sometimes this
will be referred to as the rule of stare decisis, which using literal words means ‘to
stand by decisions already made’. Following the binding precedent principles in the
common law system tries to guarantee fairness through consistency, to supply
predictability in the law and therefore to avoid the need for litigation.
As a result of applying binding precedent, legal advisers can provide advice to

clients with more confidence about what the legal principles are and also inform
about what a judge would apply in deciding a dispute in court and what the
outcome would be.
According to the binding precedent, the legal rule established in a precedent could
be applied in subsequent similar cases until another court decides that the case was
incorrectly decided; or that for some other reason cannot be allowed to stand; or
until a court higher in the hierarchy overturns the decision; or until Parliament
decides to change the law by passing (aprobar) a new Act of Parliament overruling
or altering the rule laid down by the court.
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Unit 4. Key Ideas
The doctrine of binding precedent is seen as a constraint on judicial decision-
making and here it is necessary to distinguish between precedents: on the one
hand, there is persuasive precedent that a judge may choose to follow; and on the
other hand, there is binding precedent that is obliged to follow. Consequently, a
precedent is persuasive where it is not binding, but could still be taken into
consideration by a court. All serious decisions adopted by judges of the higher
courts are treated respectfully and may be applied in any court.
In the English common law system, the doctrine of binding precedent works when
judges in lower courts are allowed to apply a decision made in similar cases in
higher courts or, indeed, in courts at the same level. These are known as the
concepts of vertical and horizontal precedent. Vertical precedent concerns the
extent to which a court lower down the hierarchy is bound to follow a decision of a
court higher up the hierarchy. Horizontal precedent concerns the extent to which a
court at the same level is bound to follow its own earlier decision.
The decisions of judges in reported cases contain a good deal of material. In those
decisions, there is usually material about the facts of the case, information about
the arguments made in court, and the decision of the case and the reasons for the
decision —or the reasoning leading to the decision. When working the system of
binding precedent, the following will be considered vital pieces of information in a
reported case: the material facts of the case and the application of legal principles
to those facts that lead to the decision.
What constitutes the precedent that must be followed in later cases is the ratio
decidendi —‘the reason for deciding’—. The ratio decidendi is often contrasted with
other parts of the judgment that are regarded as obiter dicta —‘things said by the
way, but which were not essential for the decision in the case’—. The ratio
decidendi is considered the key legal rule leading to the decision and it is this legal
rule that is binding on a later legal matter.

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Unit 4. Key Ideas
It is essential for a lawyer to have the ability to read reported cases and to
identify its ratio decidendi, a necessary skill to be developed for understanding
judicial reasoning and being in a position to deliver advice on legal issues.
The material facts of a case are considered the facts that are important to the
decision. Not all facts in a case will be essential or key to the decision, so the judge
will have to make clear the relevant facts.
For an excellent account of the background to the famous case Donoghue v

Stevenson, go to the In Depth section and read Martin R. Taylor as the legal world’s
first glimpse (vistazo, ojeada) of the most famous litigant of all time
Following the doctrine of binding precedent means that judges follow the decisions
of earlier cases unless a similar earlier precedent is distinguished. Cases can be
distinguished on their material facts or on the point of law involved. This is a
technique sometimes used by judges to avoid the consequences of not convenient
decisions that are, in strict practice, binding on them.
At this point, there is an important question to take into consideration: how can
cases lose their binding authority? Following there are three main ways by which
cases can lose its binding force (SLAPPER 2016, pp. 116-120):
 Express or implied overruling: Parliament may expressly overrule a case in case

Parliament chooses to do so. Alternatively, if a case has not been expressly
overruled but is inconsistent with a later Act of Parliament, it will be deemed to
have been impliedly overruled.
 Reversal: a case is reversed when the loser appeals and the appeal court agrees
with them. Sometimes cases are reversed only on some issue of fact. Where this
happens, the ratio does not lose its binding force.

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Unit 4. Key Ideas
 Overruling: a case is overruled when a higher court, dealing with
indistinguishable material facts, either expressly overrules the earlier case or
produces a ratio which is inconsistent with that of the earlier case.
Finally, last question: how can the ratio decidendi of a case be identified? This is
the typical question that every law student can ask and there is not an easy
explanation. The problem is that the ratio does not appear highlighted in the
judgment. Reported cases can contain a good deal of pages and comprise
judgments given by several judges in the case. As a result, the only thing that can be
done to identify the ratio is following a cautious procedure of analysing and
understanding. One has to read carefully the case, consider the analysis of the
judge, the identification of the most important principles established by the judge
and understand how those principles are to be applied to the facts of the case for
the purpose to adopt a decision.
PRECEDENT
Significa «precedente contenido en un fallo anterior, decisión que crea

jurisprudencia». En el derecho inglés, el precedente o judge-made law es una
fuente muy importante de jurisprudencia; las decisiones de un tribunal
superior son vinculantes para todos los tribunales inferiores, pero no siempre
para el propio tribunal de origen, respetando la jerarquía establecida. El
precedente está contenido en los fundamentos de la sentencia, en la parte
llamada ratio decidendi (fundamentación de una sentencia), y no en la
resolución en sí ni en las apreciaciones incidentales del juez original —obiter
dicta (opinión o dictamen incidental expresado por un juez en la
fundamentación de la sentencia, sin que suponga la ratio decidendi)—. En los
fundamentos de la sentencia, el juez decide si sigue o no el precedente que le
reclaman las partes. Si ve que hay gran similitud entre la causa presente y la
señalada como precedente, queda vinculado por aquella decisión. Pero si, a
su juicio, se dan elementos nuevos o distintos, la doctrina le permite to

distinguish the case, esto es, introducir distingos explicando en qué se
diferencia esta causa de aquella, pudiendo a su vez sentar nueva
jurisprudencia mediante esta distinción.

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Unit 4. Key Ideas
4.3. Law’s Branches
The numerous branches of the law constantly multiply. As social life is transformed,
the law is rarely far behind to invent and define new concepts and rules, and to
resolve the disputes that inevitably arise. Thus, our brave new legal world continues
to usher in novel subjects: sports law, Internet law, media law, and so on.
At the core of most legal systems, however, are the fundamental disciplines that go
back to the roots of law: the law of contracts, tort, criminal law, and the law of
property. To that nucleus a variety of disciplines must be added, including
constitutional and administrative law, family law, public and private international
law, environmental law, company law, commercial law, social security law,
competition law, labour law, intelectual property law, tax law, banking law, media
law or human rights law.
To facilitate criminal and civil trials and other practical matters, complex rules of
procedure have been developed, creating their own subcategories. Raymon Wacks
explains clearly the different branches of law, so let us follow his explanations
(WACKS 2015, pp. 34-64).
Civil Law
Civil law is usually used to refer to code law (in which the law consists of coherent
and encyclopaedic codes, as in France or Spain), which is different from common
law, as the applicable legal system in the UK. In addition, civil law is used referring
to Roman law, which constituted the basis of legal practice in many continental
Europe countries. In the UK, civil law concerns the kind of law used in civil
procedures, for example including cases for breach of contract, for nuisance, for
negligence or for defamation. Such civil procedures try to declare or enforce a right
for the advantage of a person or company, or to recover money or property.

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Unit 4. Key Ideas
This contrasts with the action in law called a criminal prosecution. A criminal action
is taken to court to condemn a crime on behalf of the state (something that affect
society at large).
When somebody is in dispute with another person, sometimes it is necessary to

stand a claim in the civil court. We sometimes call this process filing a claim or
issuing a claim. Lawyers also say starting proceedings. We do not use the verb ‘to
prosecute’ in civil law because that verb is only used in criminal law. The person
who starts the claim is called the claimant in the UK. This person was called the
plaintiff until 1999, when there were new court rules in England to make everything
easier for people to understand. However, in the USA the claimant is still called the
plaintiff. In both England and the USA, the other party is called the defendant
(BROWN 2007, p. 18).
A claim form is the document that a claimant uses to start legal action against the
defendant. The claimant must pay a sum of money, called a court fee, for the court
to issue proceedings. In the claim form, the claimant must state the amount of his
or her claim and request the defendant to pay all of the legal costs of the case. If
this litigation succeeds, the defendant will be found liable and judgment for the
claimant might require the defendant to pay compensation (damages) to the
claimant or to comply with a court order to carry out the terms of a contract (an
order of specific performance), or to do something or to refrain from doing
something (an injunction) (BROWN 2007, p. 18).
Important areas of civil law include contract law, tort law, trusts law, land law
and family law.

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Unit 4. Key Ideas
Contract Law (SLAPPER 2016, pp. 179-180)
Contracts can come in many different shapes and sizes. Some of them can involve
important sums of money and others not significant sums. Some of them imply long
duration and others short duration. The content of contracts can vary greatly and
may contain issues such as sales, hire purchases, employment and marriage.
When reading about the law of contract you will discover there are hundreds of
possible points of disagreement regarding whether a contract has been made in
the proper way by the parties consenting all the same points in the agreement.
Disputes can arise over whether the behaviour of one party is a breach of the
agreement, whether an agreement based on a mistake or misrepresentation should
still have the benefit of the protection of the law of contract, and what remedies
are available in case of a breach.
According to general principles in contract law, in case of an enforceable

agreement, the acceptance of an offer needs to be communicated to the person
making that offer. In the case of instantaneous communication such as telephone,
the acceptance must take place at the moment, when the person making the
acceptance receives it and at the place where the person making the offer is
located.
Tort Law (SLAPPER 2016, pp. 180-182)
Tort law includes a great variety of civil wrongs that overall consists of the ways in
which injury, damage or loss can be caused to someone or some organisation,
apart from breaking a contract that you have with them. The meaning of this
strange word (tort), which is an old French term, is ‘wrong’. A person committing a
tort is known in law as a tortfeasor.

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Unit 4. Key Ideas
One of the largest areas of civil action within tort is the wrong of negligence. Courts
are usually overloaded with this kind of civil wrongs. Civil actions involving the tort
of negligence can range litigation arising from car accidents, sporting accidents and
medical accidents. As a result of these, actions in negligence are often brought
against car drivers, health authorities, local education authorities and sometimes
against some types of professionals such as accountants, doctors and lawyers.
Other torts consist of defamation (difamación), libel (difamación escrita, por escrito)
and slander (calumnia oral o gestual, acusación falsa), private nuisance (invasión o
lesión del derecho que tiene toda persona a la tranquilidad o al disfrute tranquilo de
una posesión), assault (amenaza, insulto; amenazar, hostigar, insultar), false
imprisonment (detención ilegal), trespassing (intromisión ilegítima, violación de la
intimidad o de la propiedad) and passing off (engañar haciendo pasar sus productos
por los de otro, cometer el fraude de imitación, usurpar).
The tort consisting of passing off happens when, through icons or logos or
website styles, a business conducts in a way that leads wrongly the public into
believing that its goods or services are those offered by another, which is a
more famous business.
Another area of tort includes the liability of the owners and occupiers of land for
injury caused to visitors on their land or premises. Similarly, when animals or
defective products cause is within the scope (confín) of tort.
TORT
Acto ilícito civil extracontractual, daño, agravio, responsabilidad por culpa

extracontractual, cuasidelito, culpa aquiliana, hecho u omisión ilícitos,
agravio, lesión jurídica, perjuicio. Una buena parte de las demandas civiles
que se presentan ante los tribunales se deben a torts o a un breach of
contract. El término tort tiene el mismo origen que las palabras españolas
«torticero» y «entuerto». Dos de los torts más antiguos son nuisance y
tresspassing.

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Unit 4. Key Ideas
Trusts Law (SLAPPER 2016, pp. 182-184)
The trust constitutes a significant mechanism in the common law system. It consists
of an arrangement through which a person who establishes a trust, called the
settlor, transfers property to one or more trustees, and then they will hold that
property for the benefit of another or others. The trust property can involve sums
of money for the benefit of one or more people called the beneficiaries, or cestuis
que trustent. These beneficiaries can enforce the trust, if necessary, because they
are entitled by a legal action.
The abovementioned arrangement is called a trust because the key of it is

confidence —something is usually described as ‘a confidence reposed in some
other’. This mechanism has been developed from a form of medieval tax dodging
(evasión de impuestos) known as the use. According to a trust, a person who uses
the land started to receive rights over it or that arises from its use against the
current owner of the land. A trust is recognised by the courts when three aspects
occur: there must be a certain intention to create a trust; there must be a certain
property that is intended to be the property of the trust; and there must be a
certainty of its objects, in other words, those who will o may benefit under the
trust.
TRUST
Fideicomiso, consorcio. El trust, como conjunto de bienes que constituyen un

patrimonio afecto a un fin determinado por voluntad de la persona que lo
constituye, es una de las instituciones jurídicas más características del
derecho inglés; en un trust, el fideicomisario —trustee— es el dueño jurídico
de los bienes del fideicomiso, mientras que el beneficiary, que es el receptor
del beneficio real de los mismos, es el dueño en equidad o administración —

equitable owner.

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Unit 4. Key Ideas
Según el portal LegalToday (Penal, 2008), «el trust es un instrumento
económico y jurídico que goza de un éxito en la práctica del mundo
angloamericano. Una de las razones de su atractivo radica en su estructura
simple, ágil y flexible, que permite cumplir múltiples funciones y ajustarse en
cada momento a las circunstancias personales y patrimoniales de sus
protagonistas. Esta figura representa una peculiar manera de razonar:
permitir una fragmentación de las facultades inherentes al derecho de
propiedad entre dos personas (trustee y beneficiary), quedando obligada una
de ellas (trustee) a ejercer sus facultades en exclusivo beneficio de la otra
(beneficiary). Esta figura se puede definir como relación fiduciaria, en virtud
de la cual un sujeto (trustee) ostenta la titularidad de determinados bienes
con la obligación de administrarlos, junto con sus frutos en beneficio de las
personas designadas como beneficiarios».
Land Law (SLAPPER 2016, pp. 184-186)
Land law, also known as the law of real property, refers to an area that includes
much more than those who own large tracts (extensión) of land.
Gary Slapper (SLAPPER 2016, pp. 184-185) mentions the reasons why land law is
considered as a very technical and complex subject:
‘[…] the nature of land, and the history of the law. First, land is considered
as permanent property, and that property can lead to the creation of
various concurrent and consecutive interests. In other words, land can be
owned or controlled by several different interests at once (concurrently)
and passed on as an inheritance to different people in sucession after
specified events, like the death of a property holder (consecutively).
The second factor that engenders complexity in the rules of land law is the
long historical evolution of this area of law. Land law has been developing
from the earliest parts of history —as soon as people began in a very
primitive way to exercise rights over certain places—. Development over
the last 300 years has been especially complicated with the development
of commercial capitalism and urbanisation. Recently there has been an

enormous rise in the ownership of land by ordinary people. That ownership
has been doubled over the last 30 years, from 20 % to over 70 %
approximately.’

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Unit 4. Key Ideas
Family Law (SLAPPER 2016, pp. 186-188)
Lawyers who are specialised in family law concern with a very wide scope of issues,
comprising law about marriage, invalid marriages, divorce, alimony (pensión
alimenticia/conyugal), bigamy, forced marriages, property settlements, judicial
separation, desertion (abandono), gay and lesbian relationships, mediation
fostering (acogimiento), adoption, paternity, child support, and custody and
visitation.
During recent years, the area of family law has changed dramatically
(drásticamente) and now the scope of family law is much broader. According to the
Human Rights Act of 1998, Article 8 of the European Convention on Human Rights
—which guarantees a right to respect for private and family life, home and
correspondence—introduced into English law, the only limitations established to
protect the family life in this scope are those ‘in accordance with the law and
necessary in a democratic society.’ In addition to this, a government is entitled to
limit the protection of family life when taking into consideration the interest of
other aspects, such as national security, public safety, health or morals, and the
rights and freedoms of others.
Criminal Law (WACKS 2015, pp. 53-58)
Typically, of course, criminal law punishes serious forms of antisocial conducts:

murder (asesinato, crimen), theft (robo, hurto, sustracción), rape (violación),
blackmail (extorsión, chantaje), robbery, assault (robo con violencia), and battery
(agresión, intimidación violenta, lesiones, ataque físico). Moreover, governments
make use of the law to criminalize a great deal of less important misconducts
concerning health and safety.

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Unit 4. Key Ideas
These regulatory offences occupy a sizeable proportion of modern criminal law. At
this point, the concept of fault (culpa) is central to the ciminal law. On the whole,
the majority of countries ban (prohibir) behaviours generating insecurity, causing
offences and damaging the efficient working of the government, the economy or
society at large.
ASSAULT AND BATTERY
Los términos assault y battery se usan como sinónimos y, con frecuencia,

formando la unidad léxica assault and battery. Para que haya battery debe
haber contacto físico agresivo, mientras que para el assault basta con gestos o
palabras ofensivas o agresivas. Con assault and battery existe agresión física,
así como la gestual y la verbal.
Almost every criminal law system requires three basic elements: conduct,
without justification and without excuse. Considering a crime, the conduct
must cause a relevant or important harm to the individual or public interest.
Bearing in mind the criterion of harm, the concept differs taking into consideration
the social and political values of each society. However, many societies will agree
that conducts altering the security of the community or damaging the physical
wellfare of its memeber constitutes harm.
In general, traditional offences constitute crimes everywhere, even though they can
be described with different degrees of severity or forms of punishment. Moreover,
societies cannot permit attacks on its own survival: treason (traición), terrorism
(terrorismo) and public disorder are therefore generally criminalized.

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Unit 4. Key Ideas
CRIME AND OFFENCE
Aunque los términos crime y offence son intercambiables, se suele hablar de

crimes against the person —delitos contra las personas— y crimes against the
property —delitos contra la propiedad—, pero de sexual offences —delitos
sexuales—, political offences —delitos políticos—, offences against justice —
delitos contra la justicia—, public order offences —delitos contra el orden
público— y de road traffic offences —delitos por la infracción de las normas
de circulación—. De todas formas, el término offence es más técnico y el de
crime tiene connotaciones humanas y morales.
A person can be found guilty when two components are present: an actus reus, for
guilty act; and mens rea, for guilty mind. These two expressions require more than
only moral guilt, and each of them offer a particular significance depending on the
crime. Consequently, an accused person of being guilty of an offence not only
must behave in a particular way, but must also show a particular mental attitude
to that behaviour. Both these terms actually refer to more than just moral guilt,
and each has a very specific meaning, which varies according to the crime.
The important thing to remember is that, to be guilty of an offence, an

accused must not only have behaved in a particular way, but must also usually
have had a particular mental attitude to that behaviour.
When defining a particular crime, either in the case of statues or in the case of
common law, actus reus and mens rea are required. As a result, both of these
components have to be proved by the prosecution, so that judges, magistrates and
juries must satisfy beyond all reasonable doubt. If this does not occur, the accused
will be acquitted (absolver, exonerar, liberar, exculpar, eximir, descargar, dispensar,
relevar), as in English law all persons are presume innocent until proven guilty.

22
Unit 4. Key Ideas
Actus Reus (ELLIOT & QUINN 2000, pp. 7-12)
An actus reus can consist of more than just an act; it comprises all the elements of
the offence other than the state of mind of the defendant. Depending on the
offence, this may include the circumstances in which it was committed and the
consequences of what was done.
The conduct must be voluntary, so if the accused is to be found guilty of a crime, his
or her behaviour in committing the actus reus must have been willingly. Behaviour
will usually only be considered involuntary where the accused was not in control of
his or her own body —when the defence of insanity (demencia, enajenación
mental, locura) or automatism (automatismo, ejecución de actos) may be available
or where there is extremely strong pressure from someone else, such as a threat
that the accused will be killed if he or she does not commit a particular offence—.
Crimes can be divided into four types, depending on the nature of their actus reus:
 Action crimes. The actus reus here is simply an act, the consequences of that act
are immaterial. For example, perjury (perjurio, falso testimonio, juramento falso)
is committed whenever someone makes a statement that they do not believe to
be true, while on oath (juramento).
 State of affairs’ crimes. Here the actus reus consists of circumstances, and
sometimes consequences, but not acts —they are ‘being’ rather than ‘doing’
offences—. For example, where the actus reus consisted of being a foreigner
who had not been given permission to come to Britain and was found in the
country.

23
Unit 4. Key Ideas
 Result crimes. The actus reus of these is distinguished by the fact that the
accused’s behaviour must produce a particular result —the most obvious being
murder, where the accused’s act must cause the death of a human being—.
Result crimes raise the issue of causation: the result must be proved to have
been caused by the defendant’s act. If the result is caused by an intervening act
or event, which was completely unconnected with the defendant’s act and which
could not have been foreseen, the defendant will not be liable. Where the result
is caused by a combination of the defendant’s act and the intervening act, and
the defendant’s act remains a substantial cause, then he or she will still be liable.
 Omissions. Criminal liability is rarely imposed for true omissions at common law,
though there are situations where a non-lawyer would consider that there had
been an omission, but in law it will be treated as an act and liability will be
imposed. There are also situations where the accused has a duty to act and in
these cases there may be liability for a true omission.
Mens Rea (ELLIOT et al 2000, pp. 12-19)
Mens rea is the Latin for ‘guilty mind’, and traditionally refers to the state of mind
of the person committing the crime. The required mens rea varies depending on
the offence, but there are two main states of mind that separately or together can
constitute the necessary mens rea of a criminal offence: intention and recklessness
(imprudencia temeraria).
Intention is a subjective concept: a court is concerned purely with what the

particular defendant was intending at the time of the offence, and not what a
reasonable person would have intended in the same circumstances.
In everyday language, recklessness means taking an unjustified risk. However, its

legal definition is not quite the same as its ordinary English meaning and careful
direction as to its meaning in law has to be given to the jury.

24
Unit 4. Key Ideas
Two different types of recklessness exist, which are named after the cases in which
they were defined: Cunningham recklessnesss (R v Cunningham) and Cadwell
recklessness (MPC v Cadwell)
4.4. Bibliographical References
ALCALÁ VARÓ, E. & HUGH, B. Diccionario de Términos Jurídicos. 7ª ed. Madrid: Ariel,
2003.
ELLIOT, C. & QUINN, F. Crimininal Law. 3rd ed. Essex: Pearson Education limited,
2000.
HOLLAND, J. & WEBB, J. Learning Legal Rules. 9th ed. Oxford: Oxford University
Press, 2016.
“¿Qué es un trust?”. LegalToday. 1 February 2008 [accessed 14 January 2021].

Retrieved from: http://www.legaltoday.com/practica-juridica/penal/trust/que-es-
un-trust
RIVLIN, G. First Steps in the Law. 7th ed. Oxford: Oxford University Press, 2015.
SLAPPER, G. How the Law Works. 4th ed. London & New York: Routledge, 2016.
WACKS, R. Law: A very short introduction. 2nd ed. Oxford: Oxford University Press,
2015.

25
Unit 4. Key Ideas
In Depth
Donoghue v Stevenson
“The Legal World’s First Glimpse of The ‘Most Famous Litigant of All Time’.” Scottish
Council of Law Reporting. [accessed 14 January 2021]. Retrieved from:
https://www.scottishlawreports.org.uk/resources/donoghue-v-stevenson/the-most-
famous-litigant/
In this article, you will learn more about the world’s first glimpse of the most
famous litigant of all time.
Citation of Legal Cases
“United Kingdom Law: Case citation”. Oxford LibGuides. Last updated: 7 January 2021.
[accessed 14 January 2021]. Retrieved from:
https://ox.libguides.com/c.php?g=422832&p=2887383
Citation is the accepted way of referring to the primary sources of law, cases
legislation and also books and journal articles. It follows a standard format that
makes it possible for anyone to find the cited item.

26
Unit 4. In Depth
Martin Partington
“About this blog”. Martin Partington: Spotlight on the Justice System. 6 August 2009
[accessed 14 January 2021]. Retrieved from: https://martinpartington.com/about/
The blog of this well-known author accompanies his famous book ‘Introduction to
the English Legal System’. In this website, he offers his personal views on key
developments in the English justice system and highlights issues that other media
may not have picked up.
Parliamentary Business
“Parliamentary business”. UK Parliament. [accessed 14 January 2021]. Retrieved from:

https://www.parliament.uk/business/
In this website, you can find useful and up to date information about Parliamentary
business (Houses of Commons and Lords, bills and legislation, committees, MPs,
Lords and Offices, etc.).

27
Unit 4. In Depth
Test
1. What are the two mayor families of legal systems?
A. Common law and civil law systems.
B. Traditional law and civil law systems.
C. Common law and equity law systems.
2. In the common law systems, the principles:

A. Are found in the decisions adopted by judges when solving cases.
B. Are never to be found in the decisions of judges adjudicating in individual
cases.
C. Are to be found in the decisions of lawyers adjudicating in general cases.
3. Common law systems operate:

A. On the basis of binding precedent, so that judges in a particular case can
never follow the decisions of judges in earlier similar cases.
B. On the basis of non-binding precedent, so that judges in a particular case
must follow the decisions of lawyers in earlier similar cases.
C. On the basis of binding precedent, so that judges in a particular case must
follow the decisions of judges in earlier similar cases.
4. What is a valid Act of Parliament?

A. It is a written law and the final product of a long process following the
introduction of a draft bill in the House of Commons.
B. It is a written and the final product of a long process following the
introduction of a draft bill in the House of Lords.
C. It is a written and the final result of a long process that follows the
introduction of a draft bill in Parliament.

28
Unit 4. Test
5. What is secondary legislation?
A. It is the legislation that encourages economic cooperation on the
assumption that economic interdependence might avoid future conflicts.
B. It is the legislation that takes the forms of regulations, rules or orders and
contains detailed rules produced to establish more specific principles.
C. It is the legislation comprising law emanating from the European
Commission, Council of Ministers and Court of Justice of the EU.
6. What does the doctrine of judicial precedent mean?

A. It means that judges deciding a particular case will look for a precedent (a
decision in an earlier similar case) to help them interpret their decision in the
case before them.
B. It means that judges deciding a particular case will look for a precedent (a
decision in an earlier similar case) to help them cite their decision in the case
before them.
C. It means that judges deciding a particular case will look for a precedent (a
decision in an earlier similar case) to help them reach the fairest decision
when analysing the case before them.
7. What are the essential pieces of information in a reported case that will be
important for the operation of the system of binding precedent?
A. The doctrine of the case and the application of moral principles to those
facts leading to the decision.
B. The judgments of the case and the application of equity principles to those
facts leading to the decision.
C. The material facts of the case and the application of legal principles to
those facts leading to the decision.

29
Unit 4. Test
8. What are the three principal ways in which a case can lose its binding force?
A. Express or implied overruling, reversal and overruling.
B. Express or implied overruling, reversal and the ratio decidendi.
C. Express or implied overruling, reversal and the obiter dicta.
9. What are some of the most important areas of civil law?

A. Contract law, tort law, trusts law, land law and criminal law.
B. Contract law, tort law, trusts law, land law and family law.
C. Contract law, tort law, trusts law, land law and constitutional law.
10. What are the two necessary elements to find guilty a person of a criminal
offence?
A. An actus reus, for guilty act, and mens rea, for guilty mind.
B. An obiter dicta, for guilty act, and mens rea, for guilty mind.
C. A ratio decidendi, for guilty act, and mens rea, for guilty mind.

30
Unit 4. Test

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Unit 4

Experto Universitario en Inglés Jurídico y Preparación

The English Legal System

4.1. Introduction and Objectives 4

Experto Universitario en Inglés Jurídico y Preparación

4.1. Introduction and Objectives

 Understanding law in all: it can be divided according to its origin, whether it is in

Experto Universitario en Inglés Jurídico y Preparación

Consequently, it can be said that the English legal system consists of

Civil Law or Continental Legal Systems

Experto Universitario en Inglés Jurídico y Preparación

Some key features of civil law systems are the following:

Common Law Systems

Experto Universitario en Inglés Jurídico y Preparación

 There is not always a written constitution or codified laws.

 Law made by Parliament –known as ‘legislation’, ‘statute law’ or ‘Acts of

Experto Universitario en Inglés Jurídico y Preparación

Dealing with a law emanating from Parliament, it is necessary to make an important

Experto Universitario en Inglés Jurídico y Preparación

Common Law or Judge-Made Law

Experto Universitario en Inglés Jurídico y Preparación

As a result of applying binding precedent, legal advisers can provide advice to

Experto Universitario en Inglés Jurídico y Preparación

For an excellent account of the background to the famous case Donoghue v

 Express or implied overruling: Parliament may expressly overrule a case in case

Experto Universitario en Inglés Jurídico y Preparación

Significa «precedente contenido en un fallo anterior, decisión que crea

su juicio, se dan elementos nuevos o distintos, la doctrina le permite to

Experto Universitario en Inglés Jurídico y Preparación

Experto Universitario en Inglés Jurídico y Preparación

When somebody is in dispute with another person, sometimes it is necessary to

Experto Universitario en Inglés Jurídico y Preparación

According to general principles in contract law, in case of an enforceable

Tort Law (SLAPPER 2016, pp. 180-182)

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Acto ilícito civil extracontractual, daño, agravio, responsabilidad por culpa

Experto Universitario en Inglés Jurídico y Preparación

The abovementioned arrangement is called a trust because the key of it is

Fideicomiso, consorcio. El trust, como conjunto de bienes que constituyen un

del beneficio real de los mismos, es el dueño en equidad o administración —

Experto Universitario en Inglés Jurídico y Preparación

Land Law (SLAPPER 2016, pp. 184-186)

of commercial capitalism and urbanisation. Recently there has been an

Experto Universitario en Inglés Jurídico y Preparación

Criminal Law (WACKS 2015, pp. 53-58)

Typically, of course, criminal law punishes serious forms of antisocial conducts:

concerning health and safety.

Experto Universitario en Inglés Jurídico y Preparación

ASSAULT AND BATTERY

Los términos assault y battery se usan como sinónimos y, con frecuencia,

Experto Universitario en Inglés Jurídico y Preparación

Aunque los términos crime y offence son intercambiables, se suele hablar de

The important thing to remember is that, to be guilty of an offence, an

Experto Universitario en Inglés Jurídico y Preparación

Experto Universitario en Inglés Jurídico y Preparación

Mens Rea (ELLIOT et al 2000, pp. 12-19)

Intention is a subjective concept: a court is concerned purely with what the

In everyday language, recklessness means taking an unjustified risk. However, its

Experto Universitario en Inglés Jurídico y Preparación

4.4. Bibliographical References

“¿Qué es un trust?”. LegalToday. 1 February 2008 [accessed 14 January 2021].

Experto Universitario en Inglés Jurídico y Preparación

Citation of Legal Cases