3. Legislation and the law-making process

The UK Parliament makes legislation in the form of primary legislation called Acts of Parliament and grants powers to other bodies to make legislation on Parliament’s behalf, in the form of secondary legislation or delegated legislation. Parliament is composed of three bodies, the Queen in Parliament, the House of Commons, and the House of Lords. A draft piece of legislation, a bill, to become an Act of Parliament must be passed by the House of Commons and the House of Lords and then receive the royal assent. If the House of Commons and House of Lords cannot agree on legislation this is dealt with under the Parliament Acts 1911 and 1949. Secondary or delegated legislation is necessary for a number of reasons but is subject to controls both parliamentary and in the courts.

16. Alternative dispute resolution

Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the ordinary courts or tribunals. ADR includes methods such as arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains why ADR in general exists, its many advantages (compared to litigation) as well as its disadvantages, and the differences between the various forms of ADR. The chapter examines the case law over the last fifteen years on the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should ever be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.

15. The civil process

This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or in the High Court. It provides an overview of the major case management powers possessed by the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included and the Woolf and Jackson Reports are discussed. Some of the basic principles of civil evidence are discusses and the methods of enforcement of civil judgments are set out.

14. Sentencing

This chapter explains the aims of sentencing and types of sentence that may be imposed upon a convicted offender. The main sentencing options that are available to a court when an adult is convicted of a criminal offence include: absolute and conditional discharges, fines, community orders, and imprisonment. Custodial sentences include extended determinate sentences, the new sentence for offenders of particular concern, and life sentences. A custodial sentence has punishment as its primary purpose, whereas a community order focuses more on reform and rehabilitation. The chapter also outlines the key types of sentence that can be imposed upon youths and discusses restorative justice initiatives. It explores the various factors to which the judge or magistrates must have regard when passing sentence, including maximum/minimum sentences, the nature and seriousness of the offence, sentencing guidelines, and pre-sentence reports.

8. The judiciary

This chapter describes and discusses the different types of judge, and their roles, within the English legal system. This includes the Lord Chancellor, Supreme Court Justices, Appeal Court judges, circuit judges, district judges, coroners, and lay magistrates. The qualifications for appointment are outlined and the system of judicial appointments is discussed, including the role of the Judicial Appointments Commission. The chapter includes a day in the life of a district judge to give some context to the every-day work of the judiciary. There is also comment supplied upon the issues of diversity of membership of the judiciary and the importance of independence of the judiciary.

4. The interpretation of statutes

This chapter explains the significance of statutory interpretation and how problems of interpretation arise. The chapter considers in detail the courts’ approach to interpretation, and traditional rules such as the literal rule, the golden rule, and the mischief rule are all analysed with examples from the case law. In modern times the courts employ a more purposive approach to interpretation, and there is coverage of how this approach works in practice. In particular, the chapter outlines a range of intrinsic and extrinsic aids to interpretation that the courts can rely on in interpreting an Act of Parliament. Among others, these aids include the long title, cross-headings, marginal or side notes, dictionaries, pre-parliamentary materials, statutes on the same subject matter, and, most notably, Hansard. The chapter concludes with an overview of the rules of language, namely ejusdem generis, noscitur a sociis, and expressio unius est exclusio alterius.

18. Criminal and civil appeals

This chapter introduces readers to the appeals process in criminal and civil cases. It explores the grounds upon which appeals may be based in criminal cases, including the concepts of ‘fresh evidence’ and ‘lurking doubt’ and considers appeals by way of case stated, applications for judicial review of decisions, and Attorney General’s references. If a criminal appeal has been dismissed, the Criminal Cases Review Commission (CCRC), which was set up to examine potential miscarriages of justice, may refer a case back to the appeal court in certain circumstances. The chapter highlights some of the criticisms of the CCRC’s role and effectiveness. The avenues of appeal in civil cases are also discussed, including leapfrog appeals and second appeals.

13. The criminal process: pre-trial and trial

This chapter explains what happens once a person has been charged with a criminal offence. Whether a case remains in the magistrates’ court or is sent to the Crown Court depends on whether the offence is ‘summary only’, ‘indictable only’, or ‘triable either way’. Summary trial takes place before a district judge or bench of lay justices in the magistrates’ court. Trial on indictment takes place before a jury in the Crown Court. An offence that is triable either way may be allocated to the Crown Court or, if it is suitable for summary trial, the defendant may nevertheless choose Crown Court trial. Criminal proceedings are governed by the Criminal Procedure Rules (CrimPR), whose overriding objective is to deal with cases justly, including acquitting the innocent and convicting the guilty. The chapter considers those parts of the CrimPR that set out the steps to be taken before a trial in both the magistrates’ court and the Crown Court, including decisions relating to bail. It also explores key evidential and procedural rules that apply at trial, such as rules governing the disclosure of material in the possession of the prosecution and the rule that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt.

7. Human rights in the United Kingdom

This chapter considers the European Convention on Human Rights (ECHR) and its relationship to the English legal system. The focus in the chapter is on key provisions of the Human Rights Act 1998—the Act that incorporated the Convention into UK law. In the earlier part of the chapter there is coverage of sections 2, 3, and 4 of the Act. These provisions concern the duties placed on the courts to take into account judgments of the European Court of Human Rights, to interpret domestic legislation so as to comply with rights under the Convention, and finally to issue a declaration of incompatibility when domestic legislation does not comply with rights under the Convention. Using examples from the case law, the chapter assesses how the courts balance their constitutional role to respect the supremacy of Parliament, with the duties provided in the Act to respect rights under the Convention. There is also an analysis of s.6 of the Human Rights Act 1998 which makes it unlawful for a public authority to act incompatibly with Convention rights. The analysis includes the contested question of what precisely constitutes a ‘public authority’, particularly when a private body is carrying out a public function.

1. Studying the English legal system

This chapter introduces you to the study of the English legal system in higher education. After explaining some of the different expectations of studying at this level, the chapter’s focus is on how you will learn and how to succeed on the module. There is considerable advice and tips on how to get the most out of lectures and seminars. The coverage introduces some key terminology and emphasises the importance of independent research and reading both primary (legislation and case law) and secondary sources (textbooks and journal articles). Finally, the chapter discusses and provides guidance on how to tackle commonly used assessments such as written essays, oral presentations, and examinations.