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University Degree: English Legal System
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explains "the identification of individual or group characteristics in law will normally be followed by the provision of rules stating the conditions under which these categories of people will or will not be protected or made liable through the operation of those rules and the legal rights and duties embodied in them[b5]." In other words, the law classifies people in order to decide whether they can or cannot do certain things. Against this background of understanding why the concept of legal personality exists, its importance is perhaps readily appreciated in the context of our everyday lives.
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This means that the role of the judge in a civil law system can be said to be a lot stricter than in a common law system as there is less flexibility. This is because they are meant to stick to the written law more. In the French civil code it states that "Judges are forbidden, when giving judgment in the cases brought before them to lay down general rules of conduct amounting to regulation"2. This means that judges cannot make law in any way or lay down general principles; they are simply meant to follow the code and interpret that.
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Critically compare and contrast the extent to which judges in civil law jurisdictions, (such as France), and those in common law jurisdictions, (such as England & Wales), could be said to make law
This gave way to trials by jury and ultimately to the system of common law that is used today in our English courts. We must now consider the roles of both judges in the civil law system and the common law system and ultimately differentiate between the differences in their roles and powers, if any, and what this means for the two legal systems as a whole. Let us first look at statutory interpretation and the ways in which judges interpret laws that have been put on to the statute books.
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This is the meaning of the Statutory Interpretation. Lawyers have classified the basic means of reading documents under four headings. These are: the Literal Rule, the Golden Rule, the Purposive Rule and the Mischief Rule. These rules are there, for the judiciary to use in legal arguments. How can they use it properly? In the case of Oliver Ashworth v. Ballard1, Laws LJ explained the reality of the rules. It is now misleading, and perhaps it always was. They had sought difference between literal and purposive approaches, but certainly there will be no oppositions.
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Private Bills are usually promoted by organisations, such as local authorities or private companies. These bills can only change or over-ride the law towards a specific minority rather than the entire country. They can be opposed by people who would be directly affected by the outcome for example. if a company wanted to build a new railway line. Most government bills become Acts of Parliament while very few of the many private Bills pass through. Bills originate in various ways: Party manifestos where a government promises something, such as economic stability or improved schooling, as part of its election campaign and then implements its promise with a bill.
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The Law has created concepts to determine who can be recognised as a party to legal proceedings in a court of law and when their conduct can be determined lawful
We each have an individual 'legal personality' which characterises and groups us for legal purposes e.g. age, nationality, sex, occupation, income, etc (p9, unit 6, Legal Personality) and affected by different facets of our lives. This legal personality also determines our duties and obligations which are enforceable by law. Rights or duties depend on legal characteristics for example, employer or employee, landlord or tenant and are governed by current law. These different facets may be legally unconnected e.g. in reading 19 Reader 1, Rules, Rights and Justice where the person is a father but also an anti-vivisectionist.
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They either sit alone or with a jury of 12 in cases such as personal injury. Higher classes of cases such as property disputes are heard by designated judges however most judges hear all kinds of civil claims. Claims of decisions made in the Outer House can be appealed to the Inner House. The Inner House This part of the 2 part system making up Court of Session in Scotland mainly deals with appeals from the Outer House, the Sheriff Court, the Court of the Lord Lyon and the Lands Tribunal for Scotland.
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(Ronald and Stephen 2001) To top up, BBC news telecasted a crime report about crime in England and Wales which stated that 35% of gun crime has been increased in one year; it was clear in the news that crimes involving firearms in 2001 were 7,382 which escalated to 9,974 in the year of 2002. Furthermore, the report showed the circumstances of both countries that are facing an average of 27 offences involving firearms every day (BBC, 2003), Guns are also used for bank robberies; for example, a report by Federal Bureau of Investigation assured that 6,154 banks were robbed in the year of 2006 and around 3,747 guns were used by robbers causing 179 injuries and 13 deaths.
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Did the conciliar courts pose a threat to the existence of the common law courts in the 16th century?
The eyre system entailed the king or his justices arriving in the county consequently enabling him to reaffirm his 'royal power'5. When this occurred, every element of local justice and authority was suspended. The work was divided into two parts6: pleas of the crown, and common pleas. The first part embodied the system of itinerant government and concerned 'all matters of possible profit to the king'7, including feudal rights and also some criminal aspects. Common pleas incorporated 'ordinary litigation between ordinary people'.8 The latter of these two systems, the assizes, was regularised by Henry II as the eyre system was
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Firstly Barristers are also stated as "Counsels" and the opinion may be shared that they are "specialist advocates". Barristers are entitled to higher rights of audience in all courts in the United Kingdom and are self employed. Once a barrister has completed the Bar Vocational Course, they become a member of one of the four inns of court. Once this is established the potential barrister has to complete a pupil age to become fully qualified. If this is successful, the individual can be seen as a qualified barrister and is then self employed in where they hire chambers and becomes subjective to the "cab rank rule", where barristers can't choose and pick their clients and are bound by their code of conduct due to "A self-employed barrister...
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However, three years later all three were released after a report into the case (Fisher Report) established that they had nothing to do with the murder.3 Much concern was brought about as a result of this, this led to the set up of the Royal Commission on Criminal Procedure (RCCP). It stated in its report of 1989 that a balance needed to be reached between "the interests of the community in bringing offenders to justice and the rights and liberties of persons suspected or accused of crime."4 The purpose of PACE is to create a balance, however it has failed in doing so in some instances.
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The legal sources of United Kingdom constitution could be trace back to the Magna Carta 1215, the bills of right 1689 and more recently the Human Rights Act 1998.The legal sources of United Kingdom constitution could be said to more strictly followed compared to the non legal sources. Since in a country where there is an unwritten constitution the courts are not able to question any act of Parliament, in line with Parliamentary Supremacy, thus if there is a conflict between the legal sources and an act of Parliament the act of Parliament prevails.
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The appellant based their argument on several issue; firstly, that the common law of England prohibit torture and has done so for over 500 years, evidence obtain by torture should never be admissibly.6 Secondly, Article 15 of the united nations convention Against torture and other cruel, inhuman or degrading treatment or punishment 1987 which provided that each state party was to ensure that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except a person accused of torture as evidence that the statement was made..
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Once considered to be mainstays of the British constitution, the Lord Chancellor, the Attorney-General and the Law Lords could now be considered to be constitutional anomalies(TM). Discuss whether the impact of the Human Rights Act 1
Therefore, he was going against the doctrine of the separation of powers. The doctrine says that not one person should be involved in more than one of the three powers, legislative, executive and the judiciary, as this would be unconstitutional. Before the Constitutional Reform Act 2005 was brought into force the Lord Chancellor had at least one position in legislative, executive and judiciary. In the legislative he was a speaker in the House of Lords, there he was able to take part in debates on new laws, introduce bills on matters connected with justice in the House of Lords.
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Following the McPherson report and subsequent Race Relations Amendment Act 2000 there is no need for further legislative initiatives to address issues of race equality. Discuss
This made a formal distinction between British subjects who were citizens of the UK and colonies and commonwealth citizens7. Both of these categories were allowed to enter, settle and work in Britain8. This could be seen as a strategy of using immigrants as a cheap labour force9. However, most of the immigrants at this point were from the Caribbean and of Black decent, which was perceived as a problem as the British felt uncomfortable with their presence10. The reaction of the government was finding ways to reduce immigration11.
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The committee had concluded that serving, as a juror should be the counterpart of citizenship. Hence, qualification for a jury had widened in the Criminal Justice Act 1972 by basing on the right to vote.5 Besides, Section 321 of and Sched. 33 to the Criminal Justice Act 20036 had also widened the pool of eligible jurors, which were considered as ineligible under the Juries Act 1974. The reform had been implemented due to Auld LJ's recommendation, which suggested that a large portion of the community were not serving as juries when juries should be a representation of the whole society.7
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A jury is the place where the bargain is struck. A jury attends in judgment not only upon the accused but also upon the justice and humanity of the law.' It is often says that the members of a jury are essentially judges of fact, but however, the jury's verdict is actually a consideration of a mixture of fact and law. According to Penny Darbyshire, the jury system is the most praised and least theoretical analysis in the criminal justice system.
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Certainty in the law is achieved through the rules of statutory interpretation and through the operation of the doctrine of precedent. Discuss
(London Street Tramways v London County Council  AC 375) What this meant in practice is that the House of Lords did not have the power to overturn its own decisions and consequently judgments on the point of law could not be re-examined. The law was amended by the Practice Statement of 1966 which gave judges a greater degree of flexibility. Lord Gardiner said: "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases.
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On the other hand, the weaknesses of jury would also be discussed. I would point out some recent examples which showed the defects of jury and how an inappropriate juror may cause detriment to the trail. This comes to the criticisms of jury system and appropriate reform would be discussed at the end of this assignment. GENERAL VIEW OF JURY The word "jury" originates in Latin, from "juris", which means law. Jury, in the English Legal System, is a sworn body temporarily assembled, constituted for the purpose of deciding, in the administration of civil and criminal justice, the disputed facts and returning a verdict in the case submitted to them.
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So in effect it can be said that "the "Queen may reign, but it is the Prime Minister and other ministers who rule."3 The Royal Prerogative historically was one of the central features of the realm's governance. It originated at a time when the monarch's personal power was far greater than it is today, when the Crown was not tied down by the restrictions of a constitutional monarchy. Those restrictions were originally attached in 1688 by the Bill of Rights4.
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This rule was followed in many cases as in London and North Eastern Railway Co v Berriman.2 in which the wording of the judge`s decision was upheld, that only a worker who had been killed while engaging in 'relaying or repairing' train track would be able to claim. The claimant's husband had been killed while performing routine maintenance, which the court ruled was not the same. One could claim that this is an absurd ruling, as the worker was killed while working on the track, and it makes no difference whether he was repairing it or oiling it.
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Discuss and critically consider the advantages and disadvantages of criminal trials from the views of younger offender, their families, victims, families of victims and the general public
Although he matched none of the descriptions given by the victim. On appeal, the conviction was quashed. However, the 6 month sentence was already served. (R v X (2003)). R v Turnull (1977) developed the mnemonic ADVOKATE, providing investigating police officers guidelines when taking statements. Detailing some very important guidelines that will prevent cases of R v Mattan and R v X (2003) happening again. However, it is clear there are still misfortunes in justice. Evidence can take forms of written evidence though statements, oral accounts and expert witnesses. Although it has been upheld in court that expert witness may sometime be wrong.
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Within England and Wales, we are firmly rooted in an adversarial system where the state provides a passive platform (Pakes, 2004, p. 80). The majority of criminal prosecutions include some form of citizen involvement through either the lay magistracy or lay jury. Approximately 97 per cent of criminal cases are dealt with by the magistrates' court, largely but not exclusively manned by lay magistrates sitting in panels of three. They hear evidence and decide on the verdict, should a defendant plead not guilty, and any sentence (Darbyshire, 2002, p.
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Consider the case of Fisher v Bell (1960). A shopkeeper had on display in his shop window a set of pocket knives. This was, on the face of it contrary to the Restriction of Offensive Weapons Act (1959), which proscribed the sale of flick knives, similar to what was on display. However the defendant argued that a window display was to be regarded as an invitation to treat, rather than an offer to sell (Riches and Keenan, 2005). Since this is an important facet of English contract law, the courts found for the defendant, and the legislature changed the law the next year to account for this.
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A person who is serving on a jury is known as a juror, and the head juror is called the foreman or presiding juror. The foreman is often chosen before the trial begins. The role of the foreman is to ask questions on behalf of the jury, facilitate jury discussions, and read the verdict of the jury. Lies at the heart of the British legal system, it is generally accepted that the jury of '12 good men and true'7. The implicit assumption is that the presence of 12 ordinary lay persons, randomly introduced into the trail procedure to be the arbiters of the facts of the case, strengthens the legitimacy of the legal system.
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