As a lawyer, you will need to master the detail of the law, together with the ability to present this knowledge in a rational and decisive way.
In addition to acquiring a general knowledge of the English Legal System, the student will also study what are known as the 'core subjects'. These are Constitutional Law, Contract Law, Criminal Law, Tort, Land Law and the Law of Trusts. Most institutions allow students to supplement these basic subjects with additional options in a variety of other legal specialties. However, do remember that if you are intending to go on to become a barrister or a solicitor you must ensure that you do cover these 'core subjects' to keep your qualifying period to a minimum.
Sources of English Law
England is a democracy, and as such depends heavily upon Parliament for the creation of law. However, England is also a common law jurisdiction, which means that many legal principles are found by reference to earlier cases. Our membership of the European Community has also introduced aspects of EC law into our legal system and knowledge of this area of law is essential.
Your studies will familiarize you with the techniques necessary to interpret legislation, ascertain the essential principles in a case, and discover the applicability of European law.
Statutory Interpretation
The traditional view that Parliament is sovereign, and can therefore legislate as it sees fit is subject now to the effect of EC law. Nevertheless, Parliament may make new laws, bringing about great political and social changes, and it may alter, simplify, or improve or repeal existing laws. The judge must apply the law made by Parliament; he is not free to ignore or alter it. In order to apply the law, he must interpret the statute. In doing this he will adopt one of a number of approaches; namely the literal rule, the golden rule and the mischief rule or purposive approach.
In most cases, though, the words of a statute are capable of bearing more than one meaning, and the judge must then decide which meaning Parliament intended. To assist him, he will use the mischief rule or purposive approach, which requires him to consider what mischief or defect Parliament was trying to correct, or what purpose the statute was designed to serve.
In addition there are grammatical rules of construction (all with impossible Latin names!) and presumptions to assist in ascertaining the meaning of words in a statute.
Judicial Precedent
As well as being confined by statute law, the judge must also follow certain earlier judicial decisions. This doctrine of binding judicial precedent, or stare decisis, is vital to an understanding of the law. It should ensure that there is certainty, uniformity and consistency. It can, however, lead to inflexibility and injustice.
In the course of your studies you will develop the ability to define the essential binding part of the judgment, called the ratio decidendi. The rest of the judgment is termed obiter dicta and may be used as guidance in the future. It is possible to avoid being bound by an earlier decision if one can distinguish the facts of the case from that which fails to be considered. You must, however, be careful not to 'distinguish the indistinguishable'!
Civil and Criminal Law
The English legal system makes a distinction between civil and criminal law. The criminal law is concerned with wrongs that not only affect 'the victim' but which is of a nature that society has an interest in preventing and punishing them. The civil law is also concerned with wrongs, but the nature of the wrong is such that it is left to the aggrieved individual to bring an action. We sometimes refer to the civil law as being a way of recognizing rights.
In criminal cases we talk of a prosecution being taken against the defendant, and the result of the case is referred to as a conviction or acquittal. If there is a conviction the defendant will be punished for example by a fine or imprisonment. Whereas in civil cases the person who institutes the action, or sues, is referred to as the plaintiff, and the person against whom the action lies is referred to as the defendant. The result of a civil case is called judgment for the plaintiff or defendant, and usually compensation is awarded.
Civil and criminal cases take place in different courts and different procedural rules apply. Cases in civil courts are known by the names of the parties: Smith v Bloggs (pronounced Smith and Bloggs). In criminal cases the prosecution is usually brought in the name of the Queen.
The Court Structure
The distinction between civil and criminal law is reflected in the court structure. While several courts have jurisdiction over both civil and criminal cases, civil cases are dealt with by a different system of courts dealing with criminal cases. What follows is a basic outline of the two court structures.
Civil court structure
The Magistrates' and County courts are at the entry level to the civil system, along with a number of specialist tribunals e.g. Social Security Appeals, Industrial and Rent Tribunals. At the next level are the Crown Court (in its civil jurisdiction) and the Employment Appeals Tribunal. Above is the High Court which has three main divisions: Family; Queen's Bench (including the Admiralty and Commercial Courts); and Chancery. The Court of Appeal (Civil Division) is the first appellate court; the second - and highest - appellate court for civil cases is the House of Lords.
Criminal court structure
The Magistrates' Courts are the starting point for all criminal cases, and on the next tier is the Crown Court. The Queen's Bench Divisional Court hears appeals from the Magistrates' Courts, both direct and via the Crown Court. The Criminal Division of the Court of Appeal comes next in the hierarchy and again the House of Lords is the final appellate court.
Role of the European Court of Justice
Any court may refer a point of European law to the European Court of Justice for decision (this is not an appeal).
Personnel of the Law
The judges that preside over the courts are selected from the ranks of practicing lawyers. The higher the court is, the more senior the judge. The Lord Chancellor is responsible for advising the Government and the Queen on the appointment of judges.
The judges of the House of Lords are called Lords of Appeal in Ordinary, and judges in the Court of Appeal are called Lord Justices of Appeal. High Court judges are referred to as puisne (pronounced 'puny', and from the old French for 'junior' or 'inferior') judges, whilst circuit judges sit in the County Courts and Crown Court.
In the Magistrates' Court decisions are made by lay people, called Justices of the Peace, or by a stipendiary magistrate who is legally qualified. The professional lawyers who present cases in court are usually barristers, although cases in the lower courts may be presented by solicitors. Solicitors tend to give general advice and assistance to their clients, referring cases to barristers for more specialist advice and advocacy.
