THE COMMON LAW FRAMEWORK IN ENGLAND AND WALES
The jurisprudence of England and Wales operates under a common law framework. This paradigm is characterised by adjudication based on statutory provisions as well as judicial precedents set in antecedent cases with analogous circumstances.
The adversarial nature of this system pits contending parties against each other to argue their case whilst the judge acts as a neutral arbiter. This contrasts with the civil law systems prevalent across continental Europe, where codified laws are paramount, and the judge actively interrogates to uncover facts, with legal counsel playing a more passive role.
Acquaintance with specific legal terminologies, namely public law, private law, criminal law, civil law, substantive law, and procedural law, is essential.
Statutory Law
In England and Wales, statutes form the cornerstone of legal legislation, emanating from the collective Parliament and formally recognised as Acts of Parliament. To understand a statute, one must grasp the nuances of its components, such as the short title, citation, long title, date of Royal Assent, preamble, parts, sections and subsections, extent, and enabling provisions.
Subordinate Legislation
Additionally, an Act may empower a designated body to craft regulations to actualise the Act's intent, known as secondary legislation.
International Treaties
Via the Royal Prerogative, the government has the capacity to commit the UK to international treaties' stipulations.
Case Law
Fundamental to common law is the integration of statute and judicial decisions. Binding judicial determinations on legal points crystallise into the common law, thereby ascribing a legislative dimension to senior judiciary figures that operate independently of Parliament.Authoritative Texts
In common law, authoritative texts can aid statutory interpretation, albeit less commonly than in civil law systems.
Conventions
Conventions emerge from the unwritten segments of the UK Constitution, representing established practices that, while not formally obligatory, are recognised and adhered to.
STATUTORY INTERPRETATION
The legal structure of England and Wales heralds parliamentary sovereignty, with statutes holding ultimate authority.
Nevertheless, given Parliament's inability to foresee every conceivable scenario, courts are sanctioned to interpret statutes and secondary legislation to clarify and infer Parliament's intended meaning.
Interpretative Methodologies
Courts employ specific methodologies to construe statutes: the literal, golden, mischief, and purposive rules. Mastery of these methods is essential.
Linguistic Rules in Interpretation
Courts interpret laws by considering the text in its entirety, guided by certain legal maxims that assist in discerning Parliament's intended meaning.
Interpretive Presumptions
Courts utilise certain presumptions when construing statutes, which, though generally applicable, can be contested.
Interpretative Assistance
Judiciary interpretation is supported by 'aids' that may be intrinsic or extrinsic to the statute in question.
COURTS
The Civil Judiciary Framework
The civil judiciary framework consists chiefly of the County Court and the High Court, which address first-instance matters. The County Court oversees cases with lesser monetary values and categorises them into one of three procedural pathways, each defined by specific financial thresholds:
The High Court operates as a first-instance tribunal for substantial Multi-Track cases and as an appellate forum for cases of lesser value. It is compartmentalised into three divisions: the Queen's Bench, the Chancery, and the Family.
Civil Dispute Resolution Alternatives
To circumvent the conventional court process, civil litigants may resort to alternative dispute resolution (ADR), a practice the judiciary fervently advocates.
ADR encompasses mediation, where a mediator facilitates a mutual resolution; arbitration, where an arbitrator renders a decision; and direct negotiation, where parties autonomously negotiate a settlement.
The Criminal Judicial Structure
Criminal proceedings commence in the Magistrates' Court, with subsequent trial venues contingent on the offence's gravity. Summary offences, adjudicated sans jury, remain within the Magistrates' Court, while indictable offences necessitate Crown Court proceedings.
Offences classified as 'either way' may be tried in the Magistrates' Court or Crown Court, based on the defendant's consent to juryless trial.
Advocacy Rights for Solicitors
Solicitors in England and Wales are entitled to represent clients in inferior courts, such as Magistrates', County, and Family courts.
However, appearances in superior courts—Crown Court, High Court, Court of Appeal, or Supreme Court—require solicitors to obtain higher rights of audience through additional qualifications and application to the Solicitors Regulation Authority.
APPEALS
Civil Appeal Pathways
The appellate path is determined by the original case judge's rank and the adjudication court. Appeals necessitate initial permission from the originating court or if denied, from the Court of Appeal.
Appeal grants are not granted for all cases.
Criminal Appeal Pathways
The Crown Court hears sentence and verdict appeals; however, for a guilty plea, only the sentence is appealable.
The High Court reviews appeals on procedural misapplication in Magistrates' Courts.
Appeals concerning judicial ultra vires actions reside with the Administrative Court, while conviction or sentence appeals lie solely with the convicted in the Court of Appeal.
The Supreme Court hears cases referred from the Court of Appeal if they bear significant public interest.
THE DOCTRINE OF PRECEDENT
The legal fabric of England and Wales partly relies on the doctrine of precedent, underpinned by stare decisis, dictating that previous judicial decisions inform subsequent cases with analogous laws and facts.
Binding Precedence: Vertical and Horizontal
Precedents primarily have a vertical binding effect, where superior court decisions guide inferior courts.
The Supreme Court and Court of Appeal set binding precedents for all subordinate courts, and the High Court and Crown Court set precedents for their respective inferior courts.
Horizontal binding involves courts adhering to their own precedents unless compelling reasons justify deviation. When precedents of equal rank conflict, the subsequent ruling prevails.
To ascertain binding precedents, courts must consider both the hierarchical position and the relevance of prior decisions, requiring congruent facts and laws.
Constituents of Judicial Decisions
The ratio decidendi is the binding component of a judgment, encapsulates the case's pivotal facts, laws, and legal interpretations.
Statements within the judgment not vital to the decision, termed obiter dictum, are non-binding but can wield persuasive influence.
The binding force of a judgment derives from the consensus in unanimous decisions or the majority in split decisions, while minority opinions serve as persuasive, non-binding insights.
To continue reading paywall content, please
log in to verify your subscription status.
