English Legal System Overview

This assignment provides a foundational understanding of the English legal system. It includes a list of recommended textbooks by prominent authors such as Slapper & Kelly, Wilson, Rutherford & Storey. A selection of seminal cases like Donoghue v Stevenson, Heydon's Case, and Pepper (Inspector of Taxes) v Hart are referenced, highlighting crucial legal principles. Additionally, the document offers links to external resources that delve deeper into specific aspects like statutory interpretation, appeals processes, and the structure of courts.

English Legal System
and Methods
The English Legal System

ENGLISH LEGAL SYSTEM 2
Contents
1. Introduction..............................................................................................................................4
2. Key principles of English law..................................................................................................4
2.1. Different methods of lawmaking......................................................................................4
2.2. Criminal law v Civil law...................................................................................................5
2.3. Public law v Private law....................................................................................................6
2.4. Transformation of Bill into Legislation............................................................................6
3. Statutory interpretation.............................................................................................................7
3.1. Techniques........................................................................................................................7
3.2. Intrinsic and Extrinsic Aids...............................................................................................8
4. Support materials on the English courts...................................................................................8
4.1. Court hierarchy- Criminal and Civil Law.........................................................................8
4.2. Process of Appeals..........................................................................................................11
4.3. Relationship between English law and European Union law.........................................11
5. Operation of Judicial Precedent.............................................................................................11
5.1. ‘Stare Decisis’, ‘Ratio Decidendi’ and ‘Obiter Dicta’...................................................12
5.2. ‘Distinguishing’, ‘Reversing’, ‘Binding’ and ‘Overruling’ and their impact.................13
5.3. Courts being bound- Young v Bristol Aeroplane Co Ltd...............................................14
5.4. Impact of “Res Judicata”................................................................................................14

ENGLISH LEGAL SYSTEM 3
6. Bibliography...........................................................................................................................16
6.1. Articles/ Books/ Reports.................................................................................................16
6.2. Cases...............................................................................................................................17
6.3. Others..............................................................................................................................17

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1. Introduction
Law can be defined as such a system of rules which is created and is enforced through different
government o social institutes for regulating the behaviour1. English law is the common law legal
system which comprises of civil and criminal law and governs in jurisdiction of England and
Wales. The English law does not have a formal codification and covers different unique aspects2.
In the following parts, these different aspects of the English law have been highlighted so that
the young people, who hope to enter the legal profession, can be aptly guided and be given some
background information which can help them in their daily lives.
2. Key principles of English law
2.1. Different methods of lawmaking
There are four key sources of making law under the English common law system, and these
include the laws made by parliament, the ones made by courts, one by European Union law, and
by European convention3.
The law which is made by the parliament is known as the statutory law and deemed as the Act of
the Parliament. Under the English law, the parliament has two chambers, i.e., the House of Lords
and House of Commons. These two chambers, along with Monarch, have the responsibility of
making the statutes. The House of Lords is made of Life Peers, senior Bishops of Church of
1 Mary Charman, Jacqueline Martin and Chris Turner, Law: A-level Study Guide (Pearson Education, 2003 )
2 Gary Slapper and David Kelly, English Law (Routledge, 3rd ed, 2009)
3 Penny Cooper, Court and Legal Skills (Palgrave Macmillan, 2014)

ENGLISH LEGAL SYSTEM 5
England and Hereditary Peers. And the House of Commons consists of Members of Parliament
who is elected by UK citizens4.
The law which is made by the courts is referred to as case law or the common law and is based
on the decisions of the judges in different cases, and these decisions are later on used by the
other courts as precedent. Though, for the precedent to be applied, the decision has to be given
by a court which is higher in the hierarchy level or on the same level5.
The European Union law is the law which is formulated by the Court of Justice, European
Commission and the Council of Ministers of the EU. The laws of EU continue to influence the
laws of UK. The EU laws are based on the treaties which are ratified by the member states of
EU. The European Convention on Human Rights also plays a crucial role in the rulemaking of
UK. This convention is related to different human rights, which forms as a base for the different
human right related legislations in the nation6.
2.2. Criminal law v Civil law
Civil law is such law which deals with the disputes which take place between the companies, the
individuals or in between them, where the victim is awarded compensation. The criminal law, on
other hand, is that body of law which deals with the crime and punishes for the offence. The
purpose of civil law is to solve the disputes which crop up and effectively compensate the injured
party. The purpose of criminal law is to maintain peace in state and punish the offenders who
deter the condition of peace. The latter also requires a unanimous decision before the person is
punished and also has to have the “mens rea”. For convicting under the criminal law, the crime
4 E-Law Resources, Statutes (2017) <http://e-lawresources.co.uk/Statutes.php>
5 Catherine Elliott and Frances Quinn, English Legal System (Pearson, 16th ed, 2015)
6 Lisi Oliver, The Beginnings of English Law (University of Toronto Press, 2012)

ENGLISH LEGAL SYSTEM 6
has to be proved without any reasonable doubt; though, for civil law, the evidence has to be
provided beyond the balance of probability. Private parties file cases under civil law and the
government files the criminal law cases. The burden of proof under the former is on the claimant
and in case of criminal law, it is on the prosecution7.
2.3. Public law v Private law
Private law governs the relationship between people for instance, the tort law or the contract law.
The public law governs the relationship between the state and the individuals. The subdivision of
private law include labour law, competition law, commercial law, civil law; and the ones of
public law include criminal, constitution and administrative8.
2.4. Transformation of Bill into Legislation
Before legislation becomes applicable, it has to go from the journey of bill to legislation. The bill
can be introduced in either of chambers, i.e., in House of Lords or House of Chambers. It has to
be stated by the Minister introducing the bill that the same is compatible or incompatible with the
European Convention of Human Rights, pursuant to section 19 of the Human Rights Act, 1998.
The Bill then goes through the different states of first reading, second reading, the committee
stage, report stage, third reading, and finally the royal ascent9.
7 Diffen, Civil Law vs. Criminal Law (2017) <http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law>
8 Diffen, Private Law vs. Public Law (2017) <http://www.diffen.com/difference/Private_Law_vs_Public_Law>
9 At 4

ENGLISH LEGAL SYSTEM 7
3. Statutory interpretation
3.1. Techniques
Statutory interpretation is a process through which the legislation is interpreted and applied. At
times, there are cases where the words of the statute can prove to be very vague or ambiguous
and in such situation, they have to be interpreted by the judges to resolve the dispute. There are
four cannons of constructions or the rules of statutory interpretations10.
The first one is the literal rule, which is to be applied before any other rule. As per this rule, the
words of the statute have to be given ordinary or natural meaning and without the judge making
any attempt to make sense of the statute11. In Whitely v Chappel12, the statute made “to
impersonate any person entitled to vote” an offence. And so, defendant used the dead man’s
vote. The statute required voting by living person. Applying the literal rule of statutory
interpretation, the defendant was acquitted.
Under the golden rule of statutory interpretation, the courts can apply secondary meaning, and is
to be used when literal rule results in absurdity13. Adler v George14 is an example of application
of this rule.
10 E-Law Resources, Statutory interpretation (2017) <http://e-lawresources.co.uk/Statutory-interpretation.php>
11 E-Law Resources, The Literal Rule of Statutory Interpretation (2017) <http://e-lawresources.co.uk/Literal-
rule.php>
12 (1868) LR 4 QB 147
13 E-Law Resources, The Golden Rule of Statutory Interpretation (2017) <http://e-lawresources.co.uk/Golden-
rule.php>
14 [1964] 2 QB 7

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The oldest rule in this regard is the mischief rule, which was given in the case of Heydon's
Case15. As per this rule, the role of the court is to suppress the mischief under any act and the aim
of it is to provide remedy for it16.
The last rule, which is used by the European Court of Justice, is the purposive approach whereby
the purpose of the legislation looked at before the words are to be interpreted17. And the purpose
of this approach was given by Lord Simon in Maunsell v Olins18.
3.2. Intrinsic and Extrinsic Aids
The aids to statutory interpretation help the judges in interpretation of statutes, and can be
divided into internal and external aids, or as are otherwise referred to as the intrinsic and
extrinsic aids. The internal aids include the long title of an act, the sections and definition
sections of the act, and the explanatory notes. The external aids include text books, dictionaries,
Hansard, case laws of other jurisdictions, academic writings and the law commission reports19.
Earlier Hansard was not permitted, as was seen in Davis v Johnson20; though, with Pepper
(Inspector of Taxes) v Hart21, the status was changed.
15 [1584] EWHC Exch J36
16 E-Law Resources, The Mischief Rule of Statutory Interpretation (2017) <http://e-lawresources.co.uk/Mischief-
rule.php>
17 E-Law Resources, The Purposive Approach to Statutory Interpretation (2017)
<http://e-lawresources.co.uk/Purposive-approach.php>
18 [1975] AC 373
19 E-Law Resources, Aids to statutory interpretation (2017) <http://e-lawresources.co.uk/Aids-to-statutory-
interpretation.php>
20 [1978] 2 WLR 553
21 [1993] AC 593

ENGLISH LEGAL SYSTEM 9
4. Support materials on the English courts
4.1. Court hierarchy- Criminal and Civil Law
The significance of clarifying the hierarchy of courts stems from the fact that it helps in
clarifying which court has seniority over the other, particularly for making an appeal from the
lower court to a court which is on higher level of hierarchy from it. The seniority of the court
helps shows the power held by it regarding the authority of decisions. It also helps in clarifying
the precedent of which court is to be applied on which court. For instance, the ruling of Supreme
Court can be used as precedent by Court of Appeals22.
The court system under the English law is complicated at times and can also be confusing as it
was developed over thousand year back, instead of being designed from very scratch. There are
different kinds of cases which are dealt with in the particular courts, for instance, all of the
criminal cases are initiated at the magistrate court, but when they cover serious criminal issues,
or where they are sent to the Crown Court, the crown court deals with them23. The appeals which
are made from the crown court then go to the High Court, from where they have the potential of
moving to Court of Appeal and even to the Supreme Court24.
The tribunals have their own structure for dealing with appeals and cases; though the decision
from different chambers of Employment Appeals Tribunal and Upper Tribunal can go to the
Court of Appeals25.
22 Courts and Tribunals Judiciary, Structure of the courts & tribunal system (2017)
<https://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/court-structure/>
23 Ibid
24 Richard Buxton, Appeals process (2017) <http://www.richardbuxton.co.uk/the-law/appeals-process>
25 At 22

ENGLISH LEGAL SYSTEM 10
The civil cases are at times dealt by magistrates, which can reach country court. An appeal from
this is made to the High Court and consecutively to Court of Appeal, though these are made to
different divisions of these courts26.
The court hierarchy which is applicable for both the criminal and civil law can be best
summarized through the picture below.
26 Ibid

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(Source: JustCite, 201127)
27 JustCite, UK Court Structure (2011) <http://new.justcite.com/kb/editorial-policies/terms/uk-court-structure/>

ENGLISH LEGAL SYSTEM 12
4.2. Process of Appeals
The appeals can be made from the decision of a lower court to the court which is higher in
hierarchy level. So, the civil division of the Court of Appeals deals with the appeals made from
the High Court and from the Tribunals which are related to the civil law and family justice, and
in some situations, also from the County Courts28.
4.3. Relationship between English law and European Union law
As has been stated earlier, one of the sources of English law is the European Union law. The
areas in which the EU laws are applicable, overrides the conflicting laws of the member nations.
Under this, two key ideas are that of supremacy and direct effect. The former denotes the higher
status of the laws of EU over the national laws, and the latter denotes that reliance can be made
on the laws of EU in court of law29.
5. Operation of Judicial Precedent
Judicial Precedent refers to the process as per which, the previous decision of the court is
followed by another court, which is on the same level or is below the court which made the
decision on the hierarchy chart, in another decision, where the facts of the two cases is
sufficiently similar30.
28 At 22
29 Albertina Albors-Llorens, How the EU works: EU law and the UK (2017) <https://fullfact.org/europe/eu-law-and-
uk/>
30 Rose-Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems (Routledge, 2nd ed, 2008)

ENGLISH LEGAL SYSTEM 13
5.1. ‘Stare Decisis’, ‘Ratio Decidendi’ and ‘Obiter Dicta’
Stare decisis is Latin for stand by things which have been decided. When a rule becomes a
settled law, it has to be followed even though it may result in certain probable inconveniences
from the strict observance of the same or even though a satisfactory reason is needed or the
policy or the principle could be questioned, it is referred to as stare decisis. This principle is
applicable on when the result of departing from the established rule of decision would be to
unsettle the transaction which had been attempted to be settled previously31.
Obiter Dicta is Latin for remarks in passing. Obiter Dicta refers to the judicial principles, the
authority of which is relevant only to the particular subject matter in which it was drawn and
their scope is limited to the facts of the particular case32. A leading example of obiter dicta was
the principle of promissory estoppel which was borne as an obiter statement in the case of
Central London Property Trust Ltd v High Trees House Ltd33.
Ratio Decidendi is Latin for reason for decision. Ratio Decidendi, of a particular decision, refers
to the principle of law, which is formulated by the judges of that case and it is the conclusion
which the judges reach, on the basis of the facts presented before them and by excluding the
immaterial facts from the material ones. Generally, ratio decidendi has equal force as law;
though, as per Professor Good, it cannot be accepted always as it could be either too broad or
narrow in actual formulation34.
31 Rainer Arnold and José Ignacio Martínez-Estay, Rule of Law, Human Rights and Judicial Control of Power: Some
Reflections from National and International Law (Springer, 2017)
32 Anthony Chadwick, The English Legal System (Straightforward co Ltd, 2011)
33 [1947] KB 130
34 Gary Slapper and David Kelly, The English Legal System (Taylor & Francis, 18th ed, 2017)

ENGLISH LEGAL SYSTEM 14
5.2. ‘Distinguishing’, ‘Reversing’, ‘Binding’ and ‘Overruling’ and their impact
Distinguishing takes place when the court makes a decision to not apply an existing binding
precedent to a particular case which has been brought before the court as they are satisfied that
the material facts of the present case is different from the one of precedent and hence, the
precedent cannot be applied. This approach is used by the judges when the binding precedent, if
permitted to be allowed, would result in an unjust outcomes in the view of the judges. Though,
where the losing party opines that not applying the precedent was wrong, they can appeal the
same. Where the appeal is proved right, the original decision is reversed and the binding
precedent is followed35.
Reversing refers to a decision which takes place when the losing party makes an appeal against
the original decision of the court. And in that appeal, the claims made under the particular appeal
are proved right, which leads to the original decision being reversed. Binding refers to the
decision taken in a particular case being binding upon the other cases and being used as a
precedent36. Donoghue v Stevenson37 is a leading example of binding decision being used as
precedent. Lastly, overruling refers to a previous decision of the court, where a superior court
decides not to follow the previous decision given by the lower court38.
5.3. Courts being bound- Young v Bristol Aeroplane Co Ltd
The case of Young v Bristol Aeroplane Co Ltd39 is a noteworthy case in the matter of judicial
precedents. The general rule is that the Court of Appeal if bound to follow their own decisions
35 Alisdair Gillespie and Siobhan Weare, The English Legal System (Oxford University Press, 6th ed, 2017)
36 Ibid
37 [1932] UKHL 100
38 At 35
39 (1944) 2 All ER 293

ENGLISH LEGAL SYSTEM 15
and the ones given the courts of similar jurisdiction. In this case, a classic statement was made to
the exception of the self-binding rule. Lord Greene MR identified three different situations in
which the Court of Appeal could depart from the previous decision made by them, and these
three situations are:
When the earlier decision of the court is conflicting with each other. In such a situation,
the Court can make a decision regarding which decision has to be ignored and which one
has to be followed.
When the earlier decision is conflicting with a subsequent decision given by Supreme
Court. In such a situation, the superior court’s ruling is to be followed.
When the earlier decision seems to have been made per incuriam, i.e., on the basis of
lack of care. In such a situation, the previous ruling can be ignored by the court40.
5.4. Impact of “Res Judicata”
Res Judicata is Latin for a matter which has already being judged, and is also known as claim
preclusion. This concept refers to the case which has already attained its final judgement, and it
does not have any appeals left. As a result of res judicata, the matter cannot be raised before any
authority again, be it in the same court or in a different court and the matter of such case cannot
be reconsidered. So, through this doctrine, an injustice to the parties of the case is finished and
also, the resources of the court are stopped from being wasted, in terms of the time and money
applied41.
40 Rebecca Huxley-Binns, Jacqueline Martin and Tom Frost, Unlocking the English Legal System (Taylor & Francis,
5th ed, 2017)
41 Stephen R. Wilson, Helen Rutherford and Tony Storey, English Legal System (Oxford University Press, 2nd ed,
2016)

ENGLISH LEGAL SYSTEM 16
6. Bibliography
6.1. Articles/ Books/ Reports
Antoine RB, Commonwealth Caribbean Law and Legal Systems (Routledge, 2nd ed, 2008)
Arnold R, and Martínez-Estay JI, Rule of Law, Human Rights and Judicial Control of
Power: Some Reflections from National and International Law (Springer, 2017)
Chadwick A, The English Legal System (Straightforward co Ltd, 2011)
Charman M, Martin J, and Turner C, Law: A-level Study Guide (Pearson Education, 2003)
Cooper P, Court and Legal Skills (Palgrave Macmillan, 2014)
Elliott C, and Quinn F, English Legal System (Pearson, 16th ed, 2015)
Gillespie A, and Weare S, The English Legal System (Oxford University Press, 6th ed, 2017)
Huxley-Binns R, Martin J, and Frost T, Unlocking the English Legal System (Taylor & Francis,
5th ed, 2017)
Oliver L, The Beginnings of English Law (University of Toronto Press, 2012)
Slapper G, and Kelly D, English Law (Routledge, 3rd ed, 2009)
Slapper G, and Kelly D, The English Legal System (Taylor & Francis, 18th ed, 2017)
Wilson SR, Rutherford H, and Storey T, English Legal System (Oxford University Press, 2nd ed,
2016)

ENGLISH LEGAL SYSTEM 17
6.2. Cases
Adler v George [1964] 2 QB 7
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
Davis v Johnson [1978] 2 WLR 553
Donoghue v Stevenson [1932] UKHL 100
Heydon's Case [1584] EWHC Exch J36
Maunsell v Olins [1975] AC 373
Pepper (Inspector of Taxes) v Hart [1993] AC 593
Whitely v Chappel (1868) LR 4 QB 147
Young v Bristol Aeroplane Co Ltd (1944) 2 All ER 293
6.3. Others
Albors-Llorens A, How the EU works: EU law and the UK (2017)
<https://fullfact.org/europe/eu-law-and-uk/>
Buxton R, Appeals process (2017) <http://www.richardbuxton.co.uk/the-law/appeals-process>
Courts and Tribunals Judiciary, Structure of the courts & tribunal system (2017)
<https://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/court-structure/>
Diffen, Civil Law vs. Criminal Law (2017)
<http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law>

ENGLISH LEGAL SYSTEM 18
Diffen, Private Law vs. Public Law (2017)
<http://www.diffen.com/difference/Private_Law_vs_Public_Law>
E-Law Resources, Aids to statutory interpretation (2017) <http://e-lawresources.co.uk/Aids-to-
statutory-interpretation.php>
E-Law Resources, Statutes (2017) <http://e-lawresources.co.uk/Statutes.php>
E-Law Resources, Statutory interpretation (2017) <http://e-lawresources.co.uk/Statutory-
interpretation.php>
E-Law Resources, The Golden Rule of Statutory Interpretation (2017) <http://e-
lawresources.co.uk/Golden-rule.php>
E-Law Resources, The Literal Rule of Statutory Interpretation (2017) <http://e-
lawresources.co.uk/Literal-rule.php>
E-Law Resources, The Mischief Rule of Statutory Interpretation (2017) <http://e-
lawresources.co.uk/Mischief-rule.php>
E-Law Resources, The Purposive Approach to Statutory Interpretation (2017) <http://e-
lawresources.co.uk/Purposive-approach.php>
JustCite, UK Court Structure (2011) <http://new.justcite.com/kb/editorial-policies/terms/uk-
court-structure/>