TUTORIAL 1:

INTRODUCTION TO THE ENGLISH LEGAL SYSTEM AND THE HIERARCHY OF THE COURTS

QUESTIONS

1. What is ‘law’? Why do we need law?

- Law is the system of rules which can be enforced as punishments to regulate the
actions of the public.
- Law is needed to maintain and regulate the actions of the public, as well as to
protect the safety and rights of an individual.

2. What are the ideal characteristics of law?

-
3. What do you understand about the term ‘common law’?
- Common law is the body of law which is based on legal precedents set by the courts.
An example of this arises from case law or judge-made law, where decisions made by
courts are binding on similar future cases - as set by stare decisis (latin meaning - let
the decision stand).

4. What do we mean when we say that the English Legal System is a common law system?
- This means that the English Legal system

5. “While the common law is a very important source of law, there are many other sources of
English law which are growing in importance”. Discuss.
-

6. What do you understand by each of the following terms:

(a) Superior court

- The superior courts’ decisions act as precedents in which the lower courts are bound by. The
courts which are classified as superior courts are the Court of Appeal, High Court, and Crown
Court.
(b) Inferior court (c) Subordinate court

Inferior courts and subordinate courts are as the name suggests: ‘inferior’ to the superior
courts. These courts are bound by the decisions that are made by courts above them, and have
limited jurisdiction over smaller matters with a lower monetary threshold.
The courts which are classified as ‘inferior courts’ are the county court, magistrates courts, and
family courts.
TUTORIAL 2:

COMMON LAW REASONING

QUESTIONS

1. What do you understand by the terms stare decisis and ‘doctrine of binding judicial
precedent’?

Stare Decisis is a latin phrase which translates to, ‘let the decision stand’. It requires similar
cases to be decided in the same manner, or in other words, similar facts in later cases must
be treated in the same way.

The doctrine of binding judicial precedent under English Law asserts that judges are bound
by decisions which have been previously made by a higher court. However, a court which is
higher in the judicial hierarchy may choose to overrule precedents which are set by lower
courts if it disagrees.

Horizontal stare decisis - courts which follow the same decisions at the same level

2. What do you understand by ratio decidendi and obiter dicta? Based on one single case that
you have read so far, give an example of each, explaining how you distinguished each from
the other.
- Ratio Decidendi - “reasons for deciding” - the court’s answer to the questions of law which
arises in the present case.
- Obiter Dicta - “things said by the way” - does not form binding precedent, even if it is part of
a majority or a sole judgement.

Judgements - ratio and obiter

Factual matrix/backgrounds/Facts: the story - what happened - who is suing - who is

defending

Issues of fact - disputes about what happened in fact

Issues of law form precedent (?)

Point of law/finding of law - may form binding precedent if it is detected by a court higher up
in the hierarchy.

Donoghue v Stevenson

- A manufacturer has a duty of care not to injure the ultimate consumer

- There is a general duty of care not to injure ones neighbour
- Started the modern tort of negligence
 - Obiter dicta: statements of fact, arguments of the barrister.

3. Discuss the factors which the Supreme Court (and previously the House of Lords) will take
into account in deciding whether to exercise their power under the 1966 Practice Statement
to depart from a previous decision at the same level.

Generally - 1966 Practice Statement - Supreme court is not bound by its own precedents and
can depart when it is in the interests of justice to do so.

- How established is the earlier precedent?

- Has there been any significant social change that renders it just to depart from the
precedent?
- R v R (Rape shield)

- In criminal law, they will not depart from an earlier decision

- Any doubts or uncertainty is normally resolved in the favour of the defendant
- Knuller v DPP; Shaw v DPP
- In criminal law, If the law suddenly changes, it can be a matter of one's freedom or
property
- SC is generally reluctant to depart
- Parliament or the Law Commission is considering law reform in a particular area - SC is less
likely to depart
- Whether the earlier precedent has been subject to academic/judicial criticism
- More likely for the SC to use the 1966 Practice Statement if lower courts have been saying
that future courts should reconsider the decision made in a specific case.
-

4. Are judges always bound by the doctrine of precedent to decide as their predecessors did?

Judges are only bound by the doctrine of precedent if it was decided by a court higher up in
the judicial hierarchy. Judges may choose to follow decisions which have been set by lower
courts, but they are not bound to do so. As such, the name persuasive precedent arises
instead of a binding precedent.

Later judges can distinguish the case if the facts suggest that different issues/questions of
law arise.

Later courts are not bound by obiter dicta

Only binding when the facts of the cases disclose the same questions of law

If it is possible to find that the earlier decision was given per incuriam ie given in ignorance of
the law
 The Court of Appeal (Criminal) is more flexible as regards precedent, in that it will more
readily depart from precedent when it is necessary to do so in the interests of justice.

Parliament can make and unmake the law - Parliamentary sovereignty

→ see: Burmah Oil v Lord Advocate

- War Damage Act - overruled the decision of the court in the case
-

Persuasive precedent

- Decisions of lower courts

- Decisions of courts in other countries
- Obiter dicta
- Dissenting judgements

STATUTORY INTERPRETATION

QUESTIONS

1. Using the appropriate examples, explain three rules of statutory interpretation.

Literal Rule

- Gives words and phrases the ordinary/literal/dictionary meaning

- See: R v Harris - “Wounding”
- See: Fisher v Bell - “offering for sale”

Golden Rule

- An extension of the literal and has both a narrow and wider expression
- Narrow approach - Adler v George
- Depends on the result of each individual case
- No test exists to determine what an ‘absurdity’ means
- Gives to statutes a literal meaning except when doing so would produce absurdity, in
which case that particular word/phrase is given a meaning which would avoid the
absurdity.

Broad approach

- Courts apply the common law rules/ principles to the outcome apparently provided
by a statute in order to avoid an absurd outcome to the case
- See: Re Sigsworth
 Mischief Rule

- See: Elliot v Grey “used on the road”

Purposive Approach

- The Court gives effect to the purpose of the legislation enacted by Parliament.
- See: ex p Smith
- A broader social agenda of Parliament

What needs to be considered?

- The law before the statue

- The mischief/problem that Parliament was dealing with
- The measures chosen by Parliament to address the mischief

→ before giving effect to them

- Serves the social purpose of the statute

- Stays true to the will of Parliament

STATUTORY INTERPRETATION → WILL BE IN THE EXAM

2. What are the aids to interpretation? How do the judges utilize the aids to interpretation?

Hansard
- Record of parliamentary proceedings
- Pepper v Hart
- To what extent can Hansard be used?

Intrinsic
- The statute itself
- Presumptions
- Rules of language

Extrinsic
- Hansard
- Books of authority
- International conventions not incorporated.
3. Do judges make law when they apply the rules of statutory interpretation?
TUTORIAL 3:

TRIBUNALS AND ALTERNATIVE DISPUTE RESOLUTIONS

QUESTIONS:

1. Critically evaluate the advantages and disadvantages of using tribunals, as opposed to

ordinary courts, for the purpose of dispute resolution in the context of England and Wales.

2. Did the proposed reforms made by the Leggatt Report 2001 go far enough towards resolving
the issues involving the operation of tribunals? Give reasons for your answer.

3. Give an account of the development of ADR in England and Wales and explore the reasons
for the rise in popularity of ADR.

4. Discuss the advantages and disadvantages of (a) mediation and (b) arbitration as methods of
ADR.

5. Do courts always offer the best means of dispute resolution? If not, in what circumstances
are other alternatives preferable, and why?

TUTORIAL 4:
JUDGES AND LAY MAGISTRATES

QUESTIONS

1. What are the roles and responsibilities of the judiciary?

2. To what extent does the selection process for (a) Judges and (b) lay magistrates in England
and Wales ensure that the most suitable individuals are selected for these roles?

3. What do you understand by the term ‘judicial independence’? Why is judicial independence
important, and what safeguards are there in the English legal system for judicial
independence?

4. Discuss the advantages and disadvantages of using lay magistrates in the English criminal
justice system.

5. To what extent are (a) judges and (b) lay magistrates representative of the society in which
they administer justice? What measures have been taken to make the judiciary more
representative of society?

TUTORIAL 5:

THE JURY

QUESTIONS

1. Those who argued for restricting the right to jury trial misunderstood the symbolic role of
the jury – this symbolic role is as important as the need for just decision-making.’

To what extent, if at all, do you agree with this statement? Give reasons for your answer.

2. ‘We believe that twelve persons selected at random are likely to be a cross-selection of the
people as a whole and thus represent the views of the common man.’ (Lord Denning MR in R
v Sheffield Crown Court, ex parte Brownlow [1980] QB 530.
 Does this statement adequately justify the use of juries in criminal cases? If not, is there any
satisfactory justification to be found?

3. What is the role of the jury in a criminal trial and to what extent may it ‘ignore’ the law?

4. Should the current jury system in England and Wales be reformed? If so, what reforms are
necessary? Give reasons for your answer.

THE LEGAL PROFESSION

QUESTIONS

1. Identify the governing bodies of solicitors and barristers, and their respective functions.

2. Explain and account for the dismantling of the monopolies and restrictive practices that
separate the two sides of the legal profession and marked them out from other lawyers such
as legal executives. Should such developments continue?

3. “The once-separate professions of barrister and solicitor have become gradually fused in
recent years.”

To what extent do you agree with this statement?

Would a fused legal profession better serve the public interest?

LEGAL AID

QUESTIONS

1. Why is legal aid necessary?

2. Explain the criteria currently applicable for someone in England and Wales to obtain legal aid
in:
a. Civil matters
b. Criminal matters

3. Is the current legal aid scheme in England and Wales fit for its purpose? Give reasons for
your answer.

4. Should all state funding for legal services be replaced by conditional fee agreements?