PGDL

USE IRAC METHOD WHEN ANSWERING LEGAL ARGUMENT QUESTIONS! BE

EXTENSIVE, DETAIL HYPOTHETICALS
English Legal System

Pre course
Types of law
 law governs the relations between people and requires them to do or refrain from doing certain
things
 difference between a legal duty and other duties is that the legal duty carries with it sanctions
enforceable by the state

 Contract Law (private law) is about agreements between individual.

 Criminal Law (public law) is about the right of the state to punish individuals

 Equity (private law) is based on duties owed to other individuals on the basis of a legal concept of
“conscience”.
o Equity looks at obligations owed by individuals to each other as a consequence of the rules
of equity, for instance under a trust, or when charities are involved. It clearly overlaps with
other civil private obligations, especially those in contract and land.
o Helped change Common Law rigid precedent ways
o Common law – does not produce fair result in every way, application of common law may
result in unconscionability (contrary to sense of right or wrong), so equity supplements
common law
o Since 1873, all courts can administer equity

 Tort (private law) concerns obligations individuals owe to each other not to commit civil wrongs.
These obligations are not generally voluntarily assumed, unlike those in contract.

 Land Law (private law) of course involves the specific law relating to land ownership. What do you
sign when you buy a house or rent a flat? A contract. So land law overlaps clearly with contract law
and the duties are owed by individuals to each other, for instance A will pay to B an enormous sum
of money in return for B passing property in his terraced house to A.

 Company law (private law) - about the duties and rights of companies, their owners and their
officers. The state isn’t involved at this level. It overlaps with many other areas of private law, but is
regulated quite heavily by statute.

 EU law – both private and public law – covers relations between individuals, relations between
states and relations between individuals and the state.

Institutions that make law

Two principal institutions that make law:
A) Parliament: the Queen, the House of Lords, and the House of Commons.
- Gov’t usually has majority in HOC and is responsible for introducing most laws made by
Parliament (called Acts of Parliament, statutes, or legislation)

B) the courts: independent, non-elected judges

NOTE: European Convention on Human Rights is not related to EU, thus still very applicable

- The courts decide legal disputes and dispenses the law, and are called the Judiciary.
- Parliament passes legislation, thus called legislature. Queen technically has formal role.
- The Government makes and implements policy - Executive
 - Queen = head of state

Sources of law:
- Historically, local customs and judges' decisions had most influence -> Parliament -> European
Law -> now ECHR too
- Over time, common law emerged as a system through stare decisis (standing by previous
decision)
- Old problems with common law:
o There were few writs, and even if the writ met the facts off the case, procedure was v
inflexible, causing collapse of case
o Lack of remedies granted: recovery of land, damages or payment (for civil wrong) –
sometimes wasn’t enough to inhibit action
o Did not recognize trust concept (e.g. of mortgages and land becoming lenders land once
date passed)

Equity
- Court of chancery developed body of law known as equity as rigid common law rules prevented
justice often
- Chancellor could develop new rights/remedies and justice could be quick/cheap – he wasn’t
bound by common law procedures
- Eventually equity became a separate branch of law

Equitable principles:
- equity will enforce the intention of the parties, rather than allowing something to founder
because of a failure to conform to rigid procedure.
- equitable remedy will not be granted to a claimant who has not acted fairly.
- a claimant cannot wait too long before making a claim as this may prejudice the other party.
- Equity will not suffer a wrong to be without a remedy.

 Equity started recognizing new rights unknown to common law

o Law of trusts – 13th century re: crusaders leaving during crusades and transferring property
too friend – court of equity intervened
o Today: taxation matters, shared ownership of property, provision for dependents. Also
important in corporate/public interest (pension fund/charities)

Difference between equitable remedy and common law

 equitable remedy = discretion of the court
 a common law remedy is a matter of right: if a claimant proves his or her case at common law, he or
she is entitled to damages.
Equitable remedies important today:
1. injunction: order of the court compelling a person to perform an action or to refrain from an
action, e.g. demolish a building erected in breach of a promise not to build on land.
2. A decree of specific performance: order compelling someone to perform their obligations under
a contract or trust.

 Equity began to challenge/conflict common law

 1615, Earl of Oxford’s case, James I decided equity should prevail

Supreme Court of Judicature Acts of 1873 and 1875 – merged the two separate systems and became
regulated under SC -> consequence: all the civil courts can now grant both common law and equitable
remedies in the same action

Civil law: based on Roman law, most EU countries use civil law
- based on a written code (e.g. 'Code Napoleon' in France) and the role of the judiciary is to apply
the code
 - vs common law, where statute is important but not the only source of law, substantially made
my judges (case law) passed by Parliament

case law decisions summarized by court reports in journals known as law reports

 in theory, law should not come from judges but from parliament, BUT a lot of cases were never putt
into statutory form + judges retain role of interpretating legislation (statutory interpretation)

Activity re issue with judge making laws:

 most important source of English law = legislation

 Statute = supreme over case law: statute can amend case law, but not vice versa. Is part of the
modern doctrine of Parliamentary Supremacy
 Case law only applies to England Wales in the absence of specific provisions to contrary, status apply
to all of the UK
 Technically, statute is Act of Parliament, legislation is generic term

TYPES OF LEGAL RULES

 Private law: private relationship between individuals (including companies), enforced by individuals
taking actions against one another in the courts
 Public law: concerned with both relationships between individuals and the State, and with the State
enforcing certain standards of behaviour (e.g. criminal prosecution)
 Civil vs criminal:
o Criminal: concerns relationship between individual and the rest of the community as a
whole, brought mostly by the state, meant to deter others from committing the same wrong
– principle objective is to punish (e.g. punish motorist in car accident)
o Civil: concern the relationship between individuals in that community and do not involve or
concern the community as a whole – majority of laws; mainly to recompensate for loss as a
result, thru tort or contract – principle objective is to decide disputes between members of
society, or between the State and individuals, and to grant an appropriate remedy (usually
compensation) (e.g. compensate injured pedestrian)
o In most cases, if someone commits a crime, they’ve also have committed civil wrong
 Eg: assault – prosecuted in criminal courts but victim can also sue for compensation

Ms morrison’s disastrous day:

- Noise from neighbor may constitute anti social behavior (crim law) and private nuisance (civil)
- Cockroach in food: Not only does this involve contract law, but also, the sale of food which is
injurious to health could involve the criminal law.
- Absence of TV license: would pay a fine rather than damages, so would be crim liability
- Flower pot injuring man – social rules and civil law
- Neighbor car blocking car: social and crim
- Derogatory letter to the paper: social and civil
 - Thief stealing from shop: A thief can be sued in tort for the return of the goods + prosecuted for
a criminal offence
- Hit by car: Morrison can claim compensation for hurt toe (damages, civil), but crim law can also
punish the driver

Parliament = Queen, House of Commons (dem elected), House of Lords (not dem elected)
 Both houses are involved in creating Acts of Parliament
Process of becoming legislation
o Before, government publishes Green Paper, a consultation document on possible new law,
and a White Paper, which incorporates government’s firm proposals for new law
o Then Act becomes a Bill

LEGISLATION
Doctrine of Parliamentary Sovereignty / Supremacy: only Parliament can make or unmake a law
(a) Parliament has the freedom to make laws of any kind.
(b) Statute cannot be overridden by any body outside Parliament. 
1. UK courts and international courts have no power under English law to declare an Act of
Parliament invalid.
2. In the event of conflict between a statute and some other kind of law, statute prevails.
3. Parliament cannot bind its successors. A statute cannot be protected from repeal, and a later
Parliament can always change the Acts of its predecessor, whatever words the previous Act may
contain to prevent its own repeal. Otherwise, if a Parliament could bind its successors the
doctrine of Parliamentary Supremacy would disappear.

PRIMARY VS SECONDARY LEGISLATION

Primary: generally consists of statutes setting out broad principles but delegating specific authority to
make more specific laws under aegis of principal act
Bills are known as primary or secondary legislation
Public Bills: matters affecting the public as a whole (e.g. Protection from Harassment Act 1997, which
dealt with the issue of stalking)
- Can be either government Bills, introduced by a minister as part of the Government's legislative
programme
- or Private Member's Bills, non-government sponsored Bills introduced by backbench MPs. 

Private Bills: affect particular persons or a particular locality (e.g. a Bill to build a new section of railway
line or a reservoir)
*presumed that all primary legislation will apply throughout UK

Secondary legislation: granting additional lawmakers powers to another branch by an Act or statue.
Creates enforceable regulations and procedures for implementing them

Consolidation of law: statute re-enacts law which was previously contained in several different statutes,
doesn’t materially change earlier legislation (e.g. Insolvency Act 1986: provides the legal platform for all
matters relating to personal and corporate insolvency in the UK), tidies it up

Codification: here all the law on some topic, which may previously have been covered by common law,
custom and even statute(s), is brought together in one new statute – may change pre-existing law (e.g.
Theft Act 1968)
E.G. sale of goods laws: originated in medieval custom, codified by Sale of Goods Act, parts were
amended and appealed, then consolidated into Sale of Goods Act 1979, but Consumer Rights Act 2015
changed by removing consumers (aimed to reduce complexity, played a kinda consolidation role)

Delegated or Subordinate Legislation

- made by local authorities, the Crown and ministers, but with the authority of Parliament –
authority contained in ‘parent’ act, which creates framework of law but delegates power
- e.g. Secretary of State for Work and Pensions, under the Social Security Administration Act 1992,
introduced statutory instrument requiring those claiming incapacity benefit to attend a work-
focused interview
- advantages: saves time, enables Parliament to call upon technical expertise to assist in drafting
regulations such as those relating to health and safety or road traffic matters, useful with
dealing with emergences

Byelaws: made by local authorities to deal with local issues within their own area, cannot take effect
until confirmed by appropriate minister
- e.g. Coventry City Council was one of the first local authorities to introduce a bye-law banning
the drinking of alcohol in the street

UNIT 1 PART 2:
MODERN COURT SYSTEM

 Ministry of Justice: responsible for organisation and operation of the courts under HM Courts &
Tribunals Service
 REMINDER: Supreme Court of Judicature was established by Supreme Court of Judicature Acts 1873
and 1875 to replace separate equity and common law legal systems

 Oct 2009: house of lords was taken over by SC of UK, under Constitutional Reform Act 2005, so now
there is a formal separation bw senior judges and upper House of Parliament

3 CLASSIFICATION OF COURTS:
 Superior and inferior courts
o Superior have unlimited jurisdiction (can try claims from anywhere and of any amount),
generally try the most difficult – comprises Supreme court, Court of appeal, high court,
crown court
o inferior: limited geographical and financial jurisdiction – comprises family court, county
court, magistrates’ court
 Criminal and civil courts 
o Crown court = exclusively criminal
o County = exclusive civil matters
o Supreme court, court of appeal, high court, magistrates court = have both jurisdictions

 Trial and appellate courts 

o Trial courts like County court hear cases for the first time and make ruling on issues of fact
and law
o Appellate courts (High Court, the Court of Appeal and the Supreme Court) reconsider the
application of legal principles to a case which has already been heard by a lower court. Some
courts can reconsider disputed issues of fact
 appeals process allows errors of fact, law or procedure to be corrected and assist
the sensible development of the law

*ALL the courts consider both civil and criminal cases, but Crown Court is exclusively criminal

 Civil courts of first instance: County Court, the Family Court and the High Court
o County court (introduced in 1846) deals with majority of civil actions
o Crime and Courts Act 2013 – established single county court that sits at various locations
o Financial disputes up to 100k GBP and personal injury claims up to 50K GBP must start at
county court
o Claims of over 100K GBP normally commence in high court – only a tiny percentage result in
full trial
BASIC CIVIL PROCEDURE

 Civil Procedure Rules 1998 – 'overriding objective': parties to a civil dispute should try to reach
agreement and settle the dispute without using the courts. Must follow ‘pre-action protocol’ before
proceeding
o 6 diff pre-action protocols relating to diff type of claim: are set of written rules
o E.g. claimant must write a letter of claim to the defendant setting out the case with
evidence; defendant must send a letter of response explaining any defense he has to the
claim and the parties must then negotiate to see if they can settle the matter. Only if
negotiations fail to produce a settlement can claimant commence proceedings
o VAST MAJORITY OF cases do not proceed to trial – 90% of civil cases settle

COMMENCING THE PROCEDURE

- 2 civil courts of first instance: High Court (100K GBP+), Civil Court (50K GBP+) (County court if
less)
o In high court: 3 divisions: Queen's Bench Division (QBD), the Chancery Division and the
Family Division
o QBD: contract and tort claims, busiest division
1. Documents detailing procedure are sent to defendant, then defendant writes defense and sends
it to court and claimant’s solicitor
2. Courts then give directions to steps parties must take to prepare case for trial (disclosure,
inspection of docs (each side allows other to see relevant docs), exchange of statements from
witnesses, experts’ reports
 3. At trial, judge listens to evidence from both parties and legal arguments. Judge applies lwa to
the facts to determine if claimant proved its claimon balance of probabilities
- In addition to award of damages, losing party usually pays winner’s legal costs, unless claim is
under 10k GBP

- Enforcement of judgement: If losing party doesn’t pay judgement, winner must take steps to
receive as court doesn’t do it automatically (e.g. court order allowing seizing and selling losnig
party’s property)

CIVIL APPEALS

- New civil appeals system introduced on 2 May 2000 to make uniform and rationalized system
- Appellant must first apply for permission to court who gave decision, usually by making an oral
request to judge. If judge refuses permission, appellant must make written request which will be
considered by Court of Appeal
- **Civil Procedure Rules: permission to appeal will only be given if the court considers that the
appeal has a real prospect of success or if there is another compelling reason why the appeal
should be heard
- THUS appeals are usually on points of law and not fact as it’s more straightforward than arguing
fact as judge may reach diff conclusions based on factual evidence
o Point of fact usually does not form basis for appeal
- Appellant will present legal argument to persuade higher court that the judge got the law wrong
– appellant cannot argue point of fact thus cannot call any witnesses before appellate court

High Court is a court of first instance but also an appeal court! Most appeals from county are heard in
high court.
SUPREME COURT OF UK
- Very few cases go to SC, highest appeal court
CRIMINAL LAW PROCEDURES
 Magistrates’ courts (deals with ~97% of crim trials) and Crown Court = criminal courts of first
instance
 77 Crown Court centers in Eng Wales
CLASSIFICATION OF CRIMINAL OFFENSES (dictates procedure of offence)
1. Summary only offences, such as driving without insurance or common assault – minor, dealt
with magistrates
2. Indictable only offences, murder or robbery – most serious, dealt only @ Crown Court
3. Either way offences, capable of being more or less serious depending on how they were
committed (e.g. theft of chocolate or fraud of millions of pounds) – depends where

 If police have reason to believe a crime was committed, they will investigate – questioning suspect
and witnesses / possible obtaining of forensic evidence
o Once they think they have sufficient evidence to get a conviction -> issue charge or
summons (formally sets out offence defendant is being accused of)
 Charge: read out and handed to a defendant by police
 Summons: sent thru mail, usually for driving offences
o Crown prosecution is now responsible for prosecution
o Defendant is called before magistrates court to confirm name and prosecution to confirm
offence
o NEXT IS DEPENDENT ON CLASSIFICATION

SUMMARY TRIAL
- 14,000 magistrates exist, hear over 95% of crim cases
- Most are not qualified lawyers (exception being professional magistrates aka district judges),
but are advised on the law by legally qualified clerk. Lay magistrates hear cases as panel of
three, but district judges hear cases on own
- * In order to convict, magistrates must be satisfied that the prosecution has proved beyond all
reasonable doubt

INDICTABLE ONLY OFFENCE TRIAL

- Defendant makes first appearance before magistrate but case is immediately sent to Crown
Court for trial – date is set and in meantime, prosecution must serve details of case against
defendant (including witness statement / forensic evidence)
- Plea and case management hearing usually held before case proceeds to trial
- Pleads not guilty: tried by judge and jury // convicted: sentenced by judge
 o Up to the jury to judge the facts, up to judge to direct jury on the law – so if any legal
arguments (e.g., admissibility of evidence), will be heard in absence of jury and then
judge will explain to jury what the relevant law is and to apply this law
o Jury, in criminal case, merely states guilty or not guilty without any reasons. Jury
decisions cannot be disputed, and judge then decides appropriate sentence
- ~8% of all criminal cases reach Crown Court, of which less than 1/3 are jury trials
- Non-jury criminal trials are exceptionally rare

CRIMINAL APPEALS

- If convicted, defendant can appeal against conviction OR accept conviction and appeal sentence
- If acquitted, in certain circumstances, prosecution may appeal decision
- Prosecution may also appeal sentence as of right; AG will refer sentence to Court of Appeal

Different routes of appeal depending on whether trial was in magistrates’ court or crown court

 Fewer restrictions on criminal vs civil appeals due to damage on indiv.’s reputation and may be
deprived of their liberty

- Most criminal cases are dealt with in magistrates’ court

o Defendant has right to appeal in Crown Court against sentence if pleaded guilty, or
against conviction if pleaded not guilty (without permission)
o Most appeals don’t go further than crown court
- Prosecution/defense may appeal to High Court but only on points of law (accuracy of
equipment used by police to record speed) – not allowed to appeal on facts

Q: LEAP FROG APPEAL ONLY IN CIVIL CASES OR CRIM TOO?

- Leap frog appeal: appeal to SC, required High Court QBD to certify cases involves point of law of
general public importance, permission must be granted by High Court QBD of Supreme court

EG If Sergei is convicted of robbery after Crown Court trial, he appeals against conviction on factual
grounds to the Court of Appeal where appeal is dismissed, he cannot appeal this decision

OTHER COURTS

- Privy council
o Has jurisdiction over  31
countries, most of them
Commonwealth
o Role likely too decline as a
NZ abolished this route of
appeal and Caribbean
Court of Justice has been
established
- European Court of Human Rights
- European Court of Justice: had a
significant role before Brexit and
retains a residual jurisdiction
 Tribunals: operates paralleel to the courts, but is
increasingly important to the legal system
- Have quasi judicial role – mirrors lower courts in court system, in specific fields
- Tribunals are established by statute to deal with certain types of claim only
- **members of tribunals, unlike judges, have extensive practical knowledge of type of cases
- Most common: employment tribunals – wrongful dismissal, sexual/racial discrimination,
redundancy payments, maternity leave
- Organized into first tier tribunals (equiv to trial courts) and appeals are heard by Upper Tier
tribunals or beyond, Court of Appeal
- Advantages:
o quicker, cheaper and more convenient system of settlement than courts, although
recently has seen increased involvement of lawyers so becoming more formal and like
modern courts
o staffed by folks with expert knowledge
- regular courts can interfere: e.g. appeal on point of law or judicial reviewe procedure

Statutory Inquiries: established by statues to examine common specific Qs where courts may not have
expertise/appropriate procedures
e.g. Charity Commission investigates misconduct ini management of charity

judicial inquiries: established on ad hoc basis for specific issues of public interest, run like court cases by
senior members of the judiciary
- don’t really reach a ‘decision’ but rather investigate facts and reach conclusions

Other inquiries launched by government for specific issues

- e.g. Chilcott Inquiry re UK involvement in Iraq
- Leveson inquiry – role of press/police in phone hacking

Tribunals vs inquiries: tribunals reach their own independent decision like courts, inquiries obtain facts
and opinions, from which then the government ministers can exercise discretion

PERSONNEL OF LEGAL SYSTEM

- Lord Chancellor (and The Secretary of State for Justice): government minister responsible for the
judiciary and the courts' system, but no longer a judge or head of the judiciary (Lord Chief
Justice), responsible for new Ministry of Justice formed as from division of the Home Office
o remit as Secretary of State for Justice also includes responsibility for prisons, probation
and sentencing
- Lord Chief Justice: taken responsibility for many functions formerly under Lord Chancellor
- Constitutional Reform Act 2005 clarified and separated duties
 Attorney-General (political appointee) and Solicitor-General (AG Deputy) (both normally barristers)
= legal advisers to Crown, are assisted by junior counsel to the Treasury (who are practicing
barristers)
o AG role: advise government departments and answer questions in Parliament; represents
Crown in some civil proceedings + criminal trials where important constitutional / political
issues arise (e.g. treason); brings actions on behalf of the public; has duty to represent the
public interest in criminal matters

* law officer for Scotland at the Westminster Parliament became Advocate-General for Scotland

LEGAL PROFESSIONS
- Bar Council – governing body for Bar
- Law Society represents interests of solicitors, and SR regulates conduct
- Both barristers and solicitors owe a duty to the court, as well as to their clients

Barrister: gives advice on specific areas of law – until recently only they could appear in High Court,
Court of Appeal, SC
- Cannot enter into professional partnership with other Barrister
- Have to be member of one of four Inns Court (which maintains collegiate framework, promotes
legal education and prof conduct)
- Public Access scheme allows anyone to hire barrister

Solicitor: can practice in partnership with others

Access to Justice Act 1999: rights of audience depends on fitness and qualification, not on whether one
is a barrister or solicitor or practicing in the High Court or the county court

JURY
- Used in both civil and criminal actions to weigh up the evidence and decide what are the true
facts of the case. Judge directs relevant law, jury applies facts to law to reach verdict
- Civil case: jury decides on amount of damage – rare in UK
o On discretion of court, only allowed in cases involving fraud, libel/slander, malicious
prosecution, false imprisonment
o Most frequently in defamation case
o Judge discretion: considers that the case requires investigation of documents etc. which
cannot be made with a jury
- Crim: just determines whether guilty or not, no reasons r disputes
- Eligibility: on the electoral register and aged 18 ~ 70, randomly selected by computer
- Now judges, magistrates, police officers are eligible (previously ineligible)
- most commonly used in criminal trials (usually in the Crown Court).

Unit 1 Consolidation

- The Parliament Acts provide a way of solving disagreement between the Commons and the
Lords.
o Parliament Act 1911 removed from the HOL power to veto most Bills
o Parliament Act 1949 strengthened this power by reducing the Lords' power to delay Bills
from two- to one year.
o The monarch has a residual power to withhold Royal Assent from Bills passed by the
Houses of Parliament, but has not done so since 1707.
- Bill of Rights established the primacy of Parliament over the Monarch, ending the power of the
monarch to make law without the involvement of Parliament
- Theft is a criminal offence, triable either way. Magistrates will either retain jurisdiction or pass
the trial to the Crown Court if they do not have the expertise or sentencing powers. Theft of a
games console should be low-value and straightforward, with a minimal custodial sentence. The
magistrates are likely to retain jurisdiction. Any appeal in relation to the law applied would be to
the High Court (QBD). The County Court is a civil court, and the Commercial Court tends to deal
 with commercial matters. The Commercial Court is part of the Queen’s Bench Division of the
High Court.
- The UK Supreme Court disagrees with the previous court (on appeal) about the law of
negligence. What is it doing?
o negligence is a civil matter so will likely have come from the Court of Appeal (Civil
Division).
o 'Quashing' = conviction when it is overturned.
o 'Distinguishing' = earlier caselaw is found not to turn on the same material facts.
o Overruling = previous case law of a lower court is overruled by a later court higher in the
system of binding precedent.
- more common for statutes to state the date on which they will become enforceable, or that the
relevant Secretary of State will bring it into force by Regulations (i.e. a statutory instrument).
- A man has appealed a conviction for murder. The court hearing this appeal refuses it. The man
wishes to appeal again to the next court. Which of the following best describes the situation?
o This is the man's second appeal. Being an indictable offence, the trial would have been
in the Crown Court, and will have been appealed to the Court of Appeal (Civil Division).
This further appeal will be to the Supreme Court. All Supreme Court Appeals require
permission - or 'leave'.

UNIT 2 OF PRECOURSE
Statutory interpretation

- statute is the primary source of law in England and Wales, as doctrine of parliamentary
supremacy says
- no court may overrule any statute
o Sometimes legislation is deliberately drafted loosely, in an attempt to avoid
confrontation, given detailed wording is critical

Creation of a bill participants – whose intention are we looking for? Why ‘intent of Parliament’ is elusive
- Minister will promote bill: minister’s intent is important but Act eventually passed will have
been amended much from the Bill originally submitted to Parliament.
- Draftsmen try to put policy into concise legal language: they have no formal role and just
translate intent into print
- MPs in Committee – discuss bill extensively: deliberations are politically motivated, and maybe
not appropriate as a source for statutory interpretation.
- MPs in House – Bill is voted upon by both houses: same reason
- Queen – assents: have little influence on policy, just formality

**STATUTORY INTERPRETATION PRINCIPLES/RULES (none formally outweighs the other):

Statutory interpretation
- Ambiguous language arises because tradition in English legal drafting (unlike the continental
system) is to attempt to cover every eventuality

*  It is permissible and possible to interpret legislation without using any particular rule, so judges may
just decide on the outcome!

- Statutes are passed, apart from social reasons, for economic, political reasons, and also to
remedy defects in previous legislation
o Economic reason: taxation

1. Rules of Construction. reasons why a court or a lawyer places a particular construction on a statute
Application of different rules may result in different judgements
a) THE LITERAL RULE (“common parlance”
a. applying the language of a statute using the ordinary and natural meaning 
 b. this approach is feature of common law countries, civil law statutes are not designed to
cater for every eventuality. Is the oldest rule
c. If the words are clear, they must be applied, even if the intention of the legislator may have
been different or the result is harsh or undesirable. 
d. Con: can lead to undesirable results/injustice (i.e. Whitely v Chappell when impersonating
dead person to vote or Berriman case – widow not compensated for husband dying while
oiling point as court felt that railway worker was just “maintaining” line, not repairing or
relaying)
e. Example: in case of man robbing store pretending hand inside jacket was a firearm, found
innocent. House of Lords particularly used the literal rule: dictionary definition of the word,
“possession” was used and the conviction was quashed

b) THE GOLDEN RULE

a. two meanings to a word or words, they should be given their ordinary meaning as far as
possible. if court tries to apply literal rule but leads to absurd or invidious result, then court will
depart from literal meaning if there is ambiguity. If not ambiguity, court has no option but to apply
literally
b. in Berriman case, statute was unambiguous, so court could not have departed from literal word
usage
c. R v Allen bigamy case, loopholes were closed, the decision was in line with parliament’s intentions
and it gave a more just outcome
d. Adler v George case – defendant convicted because he was inside the Marham Royal Air Force
station and obstructed a member but he claimed he was inside and not ‘in the vicinity of any
prohibited place’ -> would produce absurd result if acquitted because would not serve the purpose
of protecting the air force
e. first use of rule is when there is some ambiguity or absurdity within words, but second use is to
avoid result that is obnoxious to principles of public policy – eg Re Sigsworth: son murdered mother,
based on Act he would’ve inherited his mother’s estate but this would be contrary to principle that
murderer should not reap fruits of his crime, so judges wrote into the Act that ‘issue’ would not be
entitled to inherit

NARROW VS WIDER APPROACH (if literal application of word creates conflict with social policy, use
wider interpretation)

c) THE MISCHIEF RULE

(what was old law, what was the mischief/defect, what remedy was parliament trying to rectify, and
what was the reason)
a. strives to allow interpretation of a statute in line with the intent of Parliament, one way of
which by looking at Hansard (official record of Parliament proceedings) – tries to find why
legislation had this wording and find legislative intention
b. what was legislation trying to solve?
c. Corkery v carpenter case (“carriage”, but mischief was to stop people being drunk on
transportation on highway)
d. Discrimination by association wasn’t covered by disability discrimination act – when they drafted
equality act, they looked back at old legislation, and determined he should be protected

d) PURPOSIVE APPROACH – more modern, has overtaken mischief rule in relevance, but looking
forward vs backward (mischief looks at what was the mischief that was previously not covered)
a. Judges look at the reasons why the statute was passed and its purpose, even if it means distorting
the ordinary meaning of the words.
b. purposive approach and mischief rule are often interchangeable and would yield the same result
in such instances.
c. mainly used for laws from EU Legislation and human rights law bc EU laws are normally very broad
vs. UK legislation, UK courts normally adopt explicitly aims-based or policy-driven approach to
Retained EU Law 
d. could end up doing violence to statutory provision but in practice produces similar results to
mischief rule
 e. e.g. Litster v. Forth Dry Dock and Engineering Co. Ltd. Re; company sale – reading in that contract
of person should not be immediately terminated before transfer + would have been employed if he
had not been dismissed before the transfer

f. jones case with race discrimination

g. equality act – purposive interpretation: wider aim with strengthen legislation, make it clearer,
more accessible, easier for people protected by such characteristics

2. Rules of Language. technical tools to help you use the language in a statute to resolve any ambiguity
- More commonly used when we need to interpret a list, as in our earlier ocelot example

*Rules of Construction helps decide which meaning to give words, and rules of language explain how
the words have the meaning they do; together they can be used to resolve most ambiguities in
statutes.

- Eiusdem Generis: (of the Same Kind or Nature) If a general word follows two or more specific
words, that general word will only apply to items of the same type, as the specific words. 
- Noscitur a Sociis: 'known by the company it keeps'. derives meaning from surrounding words.
o eiusdem generis rule is used for a list containing general words, whereas noscitur a
sociis is used for specific words and comparing the placing of word 
- Expressio Unius est Exclusio Alterius: any mention of one or more specific things may be taken
to exclude others of the same type. Eg: R v Secretary of State for the Home Department, rule
was used to exclude the father of an illegitimate child from rights under the immigration law of
the time, because the definitions section specifically mentioned the mother alone.
3. Aids to interpretation. resources outside the statute, such as dictionaries which a lawyer or court
can use to help resolve problems

Intrinsic Aid: anything used in the same Act

- Interpretation sections, long titles, headings, punctuation, preamble may help determine
mischief
- Marginal notes: not debated in parliament thus not normally used

Extrinsic Aid: limitless sources

- Interpretation Acts: give us general assumptions for interpreting statutes, e.g. - that the
masculine includes the feminine in the absence of a contrary express statement in a specific Act.
- Hansard: record of proceedings of Parliament, best source for applying mischief rule.
o Pepper v Hart – SC decided courts can refer to Hansard if statute is
ambiguous/obscure/literal meaning leads to absurdity or material consists of clear
statements by minister or other promoter of bill
- Previous statutes / other statutes – however just because word has been interpreted in one way
in one statute doesn’t mean it will use that interpretation in the other
- Dictionaries: particularly valuable when using literal approach
- Academic know how: articles written on controversial areas of law by legal academics.
 - Previous Judicial Interpretation
- Law Commission
- Official Reports
- Legal Practice
- International Conventions
- Other Jurisdictions
- Historical Setting

4. Presumptions assist lawyers by providing a set of assumptions about the intent of Parliament, as a
backdrop to their reasoning. Often rebuttable bc statue may expressly override them but evidence
must be strong
- Against alteration of common law (unless statue states intention to alter common law)
- Pivotal presumption: one against alteration of the common law. statute and precedent case
law should sit comfortably alongside one another
- no statute applies retrospectively – although exception are those specifically stated to have
retrospective effect (e.g. War Crimes Act 1991)
- any ambiguity is construed in favour of defendant: a man should not be given criminal
liability if the law is genuinely unclear
- No criminal liability without guilty intent (mens rea): criminal liability will accrue only if the
defendant intended in some way to commit the crime.  (e.g. Sweet v Parsley – teacher
prosecuted for tenants growing weed without her knowledge, later overturned using this
presumption)
- against ousting the jurisdiction of the courts
- Against deprivation of the liberty of the individual. 
- Against deprivation of property or interference with private rights. 
- Against binding the Crown – unless there is a clear statement to the contrary, legislation
presumed not to apply to the Crown

In summary:
- NONE of the above tools of statutory interpretation are binding, there is no order of priority
and judges may choose which to apply; 
- sometimes more than one rule is used in the same case, even by the same judge; 
- one rule is needed in order to reach a decision on another rule. For example, intrinsic aids to
support the mischief rule; or the mischief rule to rebut the presumption of mens rea being
required

HELPFUL TIP IN APPROACHING INTERPRETATION:

1. Start with a Rule of Construction, initially the Literal Rule.
2. If EU or ECHR Law, use the Purposive Approach.
3. Support the reasoning with a Rule of Language (in particular for lists), or an Aid to Statutory
Interpretation.
4. Keep Presumptions in mind, if the statute is still ambiguous.

PRECEDENT

Stare decisis/precedent doctrine applies if later case is

a) Proposition of law: statement about legal obligations
a. A law in one case could be a fact in another and vice versa
b) part of the ratio decidendi (reason for deciding) of a case;
a. Obiter dictum aka incidental remark: statement of law not necessary for decision – not
binding to any other court, although may be persuasive. Types include:
i. Outside necessary reasoning: if it is wider than necessary to decide the
particular case
ii. Speculation: speculates about the decision he would have made if the facts of
the case had been different
iii. Statements outside binding precedent: judge says what his decision would have
been if he had not been bound by judicial precedent
iv. Dissent: generally be regarded as obiter if it forms part of a dissenting judgment
 b. Difficulties in finding ratio:
i. Very old cases may state no reason for their decision, and their authority is then
weak.
ii. Not all the reasons given for a decision are essential. Subsequent cases may help
clarify what is considered to be essential for the decision.
iii. A judge may give more than one reason for his decision and a subsequent case
may decide that there was more than one ratio.
iv. Cases may involve more than one judge – if judges give different ratios, later
court is permitted to decide that there is no discernible ratio and therefore it
will not be binding on future courts
1. EG: PSGB v Boots – ratio: display of goods inside shop does not = offer
to sell those goods by the shop but an invitation to the customer to
offer to buy the goods
a. Narrow ratio : display of goods, for the purpose of the Pharmacy
and Poisons Act, does not amount to offer to sell the goods but
an invitation…

c) decided in a court whose decisions are binding on the present court; and
a. SC binds all courts below it but not bound by itself (aka can change its thinking as the
law develops, but rarely does so bc of judicial consistency)
b. Court of appeal is bound by courts above it and generally binds itself, and binds below it
i. Bound by ECJ in matters of EU law
c. High court generally doesn’t bind lower courts, but in theory its decisions bind crown
and Magistrate Court in later cases. Also binds itself
d. None of the other courts or tribunals (crown, county, magistrates) have binding
authority
e. Even if not binding, they are persuasive, especially depending on relevance, quality and
judge in lower courts and foreign courts

NOTE: SUPREME COURT

IS BOUND BY ECJ ON EU
LAW BUT ONLY
PERSUASED BY ECHR

 consistency
principle: like cases
should be treated in like
ways
 certainty
principle: people should
be able to assume that
rules will be applied to
them in a predictable way 
 Proportionality
principle: punishment
should fit the crime

CIVIL VS COMMON LAW

- common law:
system of
binding
precedent
- civil law
jurisdictions:
at the very most an informal idea of consistency between judgments, but usually no system
of precedent, binding or not
ECJ AND ECHR are not bound by own previous decisions bc they don’t abide by stare decisis concept
- decisions are no longer binding in English law but are very highly persuasive on matters of
Retained EU Law.
- CJE recognizes principle of legal certainty and considers necessary to explain itself when it
has departed from previous cases (Keck and Mithouard)

Until 1966, SC (formerly HOL) was bound by previous decisions bc certain in law > possibility of
individual hardship. Changed as a result of Practice Statement 1966
 circumstances in which SC will depart from previous decisions is when the previous decision
o causes injustice, 
o impedes the development of the law, or 
o itself caused uncertainty. 
*has done so sparingly. Requires more than that previous decision was wrong, and even when it
concludes that law should be changed, SC considers whether departure is right remedy rather than
legislation

Court of Appeal – self precedent binding?

- Young v Bristol aeroplane 1944 found that Court of Appeal is normally bound to own
opinions with exception of
o where its own previous decisions conflict
 shouldn’t happen but could arise either bc court wasn’t aware of the first
case (only few days earlier/never officially reported) or second case
distinguished the first, and one was decided per incuriam, or that first
decision was not cited / cited but misunderstood
o where its previous decision has been implicitly overruled by the House of
Lords/Supreme Court - happens when appeal case leap frogs court of appeal and
goes to SC
o where its previous decision was made per incuriam - incuriam (meaning through
carelessness) – applied to 'decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the court
concerned'.
 decision is per incuriam if the court must have reached a different
conclusion, not might (Duke v Reliance Systems 1988)
o where it was an interim decision by two judges (doesn’t apply to final decisions)
o where one of its previous decisions is inconsistent with a subsequent decision of the
ECHR – court is free (but not obliged) to depart from earlier decision
- all exceptions that apply to Civil division apply to criminal division
- COA has wider discretion where liberty of the individual is at stake
- If case doesn’t fall within Young v Bristol Aeroplane, full court (5 members) may convene to
consider
- No ruling as to whether civil division is bound to criminal division, and vice versa, but
thought they are not.

High Court (is both first instance court and appellate court):
- Appellate jurisdiction of high court (aka divisional court of high court): deals with appeals
like those from the magistrates' courts and considers applications for judicial review,
particularly immigration cases
o Decisions are binding precedents for magistrates
o Bound by its own decisions, subject to same exceptions as above
- First instance jurisdiction of high court: binding on county courts but not themselves
o But judges try not to depart

Crown Court
- Not bound by own previous decisions but strongly persuaded by them
- Only judge’s decision on points of law is relevant
- Decisions are seldom reported
Family court
- Appellate jurisdiction operates like high court appellate

Inferior courts (county & magistrate) are non binding to themselves because:
- Decisions are all first instance
- Only one judge hears a case in county court
- Magistrates are not legally qualified
- Sheer number of courts
- Cases in these courts are not normally reported nor is there a record
- Would be impossible for each court to keep track of the decisions of others – individual
court attempts to be consistent within court/area
*If court is not bound by precedent, following would be persuasive:
a) decisions of non binding courts
b) obiter dicta (e.g. is central London property trust v high trees house, then combe v combe)
c) decision of privy council (decisions from other commonwealth countries, depending on superiority of
court and judges)
d) decisions of foreign courts
e) decisions of ECHR
f) statements in legal textbooks/periodicals

d) there are no relevant distinctions between the two cases based on legally relevant facts

*later court does not have to accept EVERYTHING – only principle going to the heart of decision
*also dependent on hierarchy of courts and isolating of the ratio decidendi of previous case
*only ratio decidendi is binding aka legal principle

doctrine of precedent aims to ensure that the law is certain, and applied consistently, with due regard
for differences between cases and the context in which decisions are taken

Distinguishing ratio in subsequent case:

- Williams v Roffey Brothers (captain said he’d pay crew member additional wage but court
found in favor of captain that performance of existing contractual duty is not good
consideration) in considering whether COA would follow or distinguish Stilk v Myrick
(distinguished, as ‘practical benefit’ defendant received by having job done on time / not
having to pay penalty to customer was good consideration)

Avoiding precedent:
1. Overrule: principle laid by lower court is declared incorrect and not followed by higher court in
DIFFERENT CASE, thus higher court sets new precedent
2. Depart: court departs from earlier case (SAME COURT), usually occurs where HOL Practice
statement1 is used or Court of Appeal applies exception
3. Reverse: decision in the SAME CASE is altered by higher court on appeal, reversing and
statement of law determined by higher court becomes ratio

Human Rights Act 1998 and precedent: Section 2(1) dictates that E+W courts must decide questions of
Convention rights taking into account all relevant judgements, decisions, declarations and opinions of
ECtHR, ECHR (now abolished) and Committee of Ministers of Council of Europe

Do judges make law?

- Declaratory theory of common law: classic theory that judges only apply existing principles
of common law to new facts
- Modern view: judges, particularly in COA and SC, do make new law (e.g. legality of
separation of conjoined twins)

Civil vs common law pros and cons

- Precedent provides certainty and consistency
1
HOL would treat former decisions of the House as normally binding but that it would depart from a previous
decision when it appeared right to do so
 - Civil law allows for change based on societal atittudes / policy changes

reversing = higher court reverses decision in same case

overrule = reversing but with different cases, so overruling and establishing new precedent
STATUTE BREAKDOWN

Short title: Hunting Act 2004

Citation: 2004 CHAPTER 37
Long title: An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing;
and for connected purposes.
Enacting formula: indicates Act has been properly passed by whole legislature

Commencement: if no particular commencement date, then the date of royal assent

Extent: if there were no provision, legislation would cover all of UK (England, wales, Scotland, northern
Ireland)

Unit 1 LSSS
The Intoxicating Substances (Supply) Act 1985 – poorly drafted, few prosecution, was appealed and
replaced with Psychoactive Substances Act 2016

IRAC APPROACH
Issue: identify the legal issue that facts give rise to (whether there is an offense under intoxicating
substance supply act)
Rule: what is the relevant law (statute or case) (Intoxicating substance supply act, statute, sometimes
case, like in contract law where there aren’t many statutes, be specific)
Application: apply law to the facts of the scenario
Conclusion: relate tack to the Q, what does this mean for individual in the case?

Unit 2
Doctrine of precedent: How to decide what is the relevant case/what in the case to follow
- Applies when there is a statement of law (not of fact)
- Part of ratio
o In some higher courts there are more than one judge / judgements to look at
- Based on decision of court that is binding on the current court
- No relevant distinctions
*practically: likely won’t be poring over ratios unless you’re a senior judge or barrister
HIGHLIGHT P 85 RE COURT STRUCTURE - exceptions on page 86
Definitions on page 96