Introduction to Case Law The importance of Case

Introduction to Case Law The importance of Case Law in the English legal system 1

The English legal system is a common law system • What is the difference between statute and common law? • Common law made by case decisions e. g. Most of Contract or Tort law • Statutes made by parliament BUT courts often have to interpret statutes so case law arises here as well e. g. Re the meaning of words or phrases used in an act of parliament 2

Case reports • If case decisions form part of the law we need to know what has been said • Case reports or Law Reports are very important • First paper reports produced in the 17 th & 18 th centuries but not organise or official • First official reports produced in 19 th century • Many different reports are now used e. g. The Law Reports, The All England Law reports 3

How to find reports • All the main reports can now be found online using databases such as Westlaw or Lexis • See the information provided through Lawlinks on Library website or there is a link via the KLS website. • Some sites can be visited direct e. g. Supreme Court (SC) (House of Lords (HL) decisions available separately online) 4

Reading a case • Many cases are referred to in textbooks so you can read a short account of them • Sometimes valuable to read the judgement itself. • HL/SC and CA reports contain the judgments of all the judges hearing the case whether they agree with each other or not • Even the dissenting judgments can be valuable in later cases 5

Terminology • When reading a case we need to know what the decision was and the reason for the decision – the Ratio Decidendi • Judgments may also contain comments that do not affect the case under discussion but may affect later cases – these are comments made obiter dicta • Don’t worry about these phrases – they can be found in legal dictionaries – they are mentioned here as you may encounter them in textbooks or articles. 6

Case notes • These are very helpful – you have one in your materials – look at the information there. They contain the basic facts and outcome of the case and often some comment as well. • These can also be found on databases such as Westlaw. 7

Role of the courts • As well as trying criminal and civil cases courts also exercise some scrutiny or control over the executive. • Judicial review of executive action • Courts should be separate from the executive and legislature • Courts cannot change statutes only interpret them 8

Separation of powers • • Legislature (Parliament) Executive Judiciary In theory all three should be separate from each other 9

Independence of the Judiciary • Why should the Judiciary be independent ? • The theory is that judiciary (courts) should be a check on the power of the executive and therefore protect citizens’ rights. • How independent is the judiciary? • Consider views of Griffith 10

Politics of the judiciary? • Griffith was convinced of their bias in decisions and argued for a limit on influence of judges • Argued that we cannot rely on judicial activism to safeguard liberties Trusted democratic process far more and argued that a strong House of Commons leads to more open government. 11

Are these views valid? • Some validity on bias of judges BUT • Consider courts’ findings against governments of recent times • Is there a danger in relying on judges who are not elected to maintain a citizen’s rights? • It is possible to argue against some of Griffith’s ideas 12

Who are the judges? • Are they all from wealthy upper middle class backgrounds? • All come from other sections of the legal professions • Compare with e. g. France • Look at Judicial Communications Office online • Information re all aspects of the judiciary 13

Judiciary • Members of the Supreme Court ( Law Lords) • Lords Justices of Appeal • High Court judges • Circuit judges • Recorders • District Judges ( Criminal & Civil) • Lay Magistrates 14

Legal professionals • • • Solicitors Barristers Legal Executives Paralegals Magistrates’ Court Clerks Local Government Central Government Criminal Defence Service Public Defender Service Law Commission 15

Solicitors & Barristers • How do they differ? • Not just the wigs and gowns! • Solicitors have a lot of direct contact with clients and normally engage the barrister on a client’s behalf. • Barristers thought of as ‘the advocates’ which they are but so are solicitors if they want to be. 16

In Practice Solicitors – often work in ‘firms’ Can now form ‘limited partnerships’ e. g. Souham & Runn LLP Can also be just an employee of a firm or within large companies Barristers are normally ‘selfemployed’ and band together in Chambers Some now work ‘in house ‘for solicitors or for large companies 17

Delivering Legal Services • Is it all about money? • Yes, but not perhaps in the way you expect. • Many legal type services available e. g. mediation, courts, public defender service, tribunals - to name a few • ALL need money • ‘Lurking behind them all is the Treasury’ 18

Public Defender Service • Provides a defence lawyer for anyone needing one in the courts. • Currently 4 PDS offices at: Cheltenham, Pontypridd, Swansea & Darlington Available 24/7 – advise those in custody & represent in court Advice in police stations always free - court representation means tested 19

What about the free stuff? • Pro Bono work by solicitors & barristers ( e. g. Free Representation Unit) • Risk taking - CFA work and test case litigation • CABs • Other law centres e. g Community or KLS Law Clinic 20

ETHICS, CONTROL & REGULATION • The professionals all belong to professional bodies but regulation has or is changing. • What is best – self-regulation or outside control? • Self – regulation : has expertise of insiders who know the problems BUT may look like a closed shop to outsiders with complaints • ‘Outside control’: complainants may have more confidence in system but do those making decisions have enough understanding of the profession? 21

Alternative methods of dispute resolution • Mediation • Settlement between parties • Arbitration - costs? • Tribunals – quick cheap & efficient? • Judicial Review 22