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University Degree: English Legal System

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  • Marked by Teachers essays 2
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  1. Marked by a teacher

    "There is one right answer for every legal question". Discuss.

    4 star(s)

    It is positivists' proposition, that in doing so the judge is creating either a new law or he is adding to an old law. It goes without saying that such discretion may result in having more than one right answer to every legal question. H.L.A. Hart is one of the strongest supporters of positivism and for this reason his views were targeted by Dworkin so as , through them, to attack legal positivism and put forward his own ideas. He said, to use his own words: "I want to make a general attack on positivism, and I shall use H.L.A

    • Word count: 2753
  2. Marked by a teacher

    The debate of whether there is the continued need for separation of the professions of a barrister and solicitor is one that is open to discussion.

    Advocate means that they support, give advice and help their client's to be heard in court. Before the introduction of the CSLA '90 lawyers weren't allowed to form partnerships with associates of other professions but the CSLA '90 now allows them to do so. The role of the barrister is to advocate. Fully qualified barristers have the ability to advocate in higher courts such as House of Lords, Court of Appeal, High Court and Crown Court. Barristers use their time writing their opinions on cases.

    • Word count: 1039
  3. There is considerable interest in judicial diversity in contemporary debate about the legal profession but those who argue in favour of diversity often ignore the fact that it will inevitably lead to changes in the way our judges approach the task of judg

    The Legal Services Board states that a diverse workforce is important for "protecting and promoting the interests of consumers"3. Nevertheless, the task of the judiciary is to be impartial and unbiased. The idea of having a judiciary that at once represents the interests of different social groups and yet provides equality before the law4 seems paradoxical. Conversely then, public confidence would wane in a judiciary which aimed to represent different social groups, for fear of partiality to one group and discrimination against another.

    • Word count: 1428
  4. Role of Juries. One could argue that the use of juries in trials is a cornerstone of the democratic system and that having a trial by ones peers is a right which dates back to the Magna Carta

    to the Judges' direction on the law and, since the introduction of the Criminal Justice Act 1967, can now come to either a majority (11-1 or 10-2) or unanimous verdict on the defendants guilt. Whilst the judge can direct the jury, they cannot direct the conviction, as re-affirmed by the House of Lords in R v w**g,2: - " There were no circumstances in which a judge was entitled to direct a jury to return a verdict of guilty" because a "belief that the jury would probably, and rightly, have convicted does not enable a trial judge to give a direction to convict ...

    • Word count: 1275
  5. Discuss the reasons why behaviour may become unlawful and explain how the law can change.

    Two fundamentals in criminal fault to establish liability, Actus reus, a Latin term meaning the guilty act which refers to doing the unlawful conduct, such as the action of assault on another human being and mens rea, another Latin term translating to the mental element, which refers to the state of mind when the unlawful conduct took place. For the conduct to be unlawful, the act must have been voluntarily done as described in the case of R v Bell, Court of Appeal, Criminal Division [1984] 3 All ER 842 .

    • Word count: 1437
  6. There are many advantages and disadvantages to law making in parliament; however the advantages outweigh the disadvantages.

    and is used to avoid any ludicrous result that the Literal rule may cause. An example of the Golden Rule being used in a case, Re Sigsworth [1935] Ch89 (e) - Once a new EU law has been created to achieve a certain outcome, the EU requires all member states to change their own laws to implement the new EU law. Each EU member state is given a formal instruction to do so; this instruction is called a Directive. An example of where a directive has led to change is where the Working Time Regulations 1998 (SI 1998/1833)

    • Word count: 1608
  7. This essay will discuss the flaws with the current jury system regarding ethnic composition and racial bias, the proposal for ethnically balanced juries and the debate on whether such proposals are feasible.

    The Runciman Commission and Lord Justice Auld support the idea of having ethnically balanced juries2, but this can hardly be achieved due to the random selection element of the jury system. The Court of Appeal in R v Ford insisted that "fairness is achieved by the principle of random selection", there is no principle of ensuring a jury be racially-balanced and the trial judge does not have the power to enforce a multi-race jury.3 Racial Bias Lord Justice Auld suggests that "white juries are, or are perceived to be, less fair to black than white", which is proved by Dr

    • Word count: 1343
  8. The English Legal system falls into two categories which are divided into Criminal Law and Civil Law.

    It does not relate to punishments. Civil law also creates rules between individuals or co-operations, if duties are dishonoured; it is recognised as torts which are offences. Within Civil law, there is the claimant and the defendant, and no prosecution. Criminal law however, has been put in practise to help protect society and guide humans actions and behaviour. This type of law also provides punishment to those to commit a crime against a person or property. Criminal cases are held within The Magistrates court and Crown court.

    • Word count: 907
  9. The British legal professions unlike that of most other countries includes two separate branches barristers and solicitors

    After these steps the solicitor goes on to do a two year training contract and the barrister goes onto do the pupilage school for one yea which is known as Bar Vocational Course (BVC) . After a trainee solicitor has completed the contract and has passed all exams, s/he applies to the Law Society in order to be admitted. This is done by the Master of the Rolls adding the name of the new solicitors to the roll of officers of the Supreme Court of Judicature.

    • Word count: 596
  10. Free essay

    "At the end of the day, the function of the Magistrates court is not to provide due process or crime control, but to exert power. Discuss

    Due process revels on the legal laurel of 'innocent until proven guilty', a fundamental characteristic of our legal system, as ultimately if concern for justice and fairness become extinct, then a defendant who is not provided with the necessary protection and resources, then the defendant could be overwhelmed by the process and the proportion of miscarriages of justice could arise.. Packer's conservative ideology came to be known as the crime control method. Such a notion revolves around the premonition that the fundamental wealth of the criminal justice system is the repression of crime through aggressively enforced laws, coupled with harsh punishment.

    • Word count: 1172
  11. Explain the relationship between the common law (judge made law), and the following historical sources of law, custom, equity and books of authority. Determine, through the use of judicial comment, academic comment and case law, whether such historical so

    King William I had faced wide gaps in the legal structure of the state - no common laws throughout the country, no place where they could be made, and no system to govern them. He established a court called Curia Regis and a strong centralized government in Westminster that had no parallel in Europe until then. Members of the crown court, called itinerant judges, went throughout the whole state to gain information about the local governance and practiced customs. Those that were common in all regions were adopted in the so called common law based on the common needs.

    • Word count: 1758
  12. In Thorner v- Major, the House of Lords confirmed that a claimant seeking to establish a proprietary estoppel must prove three things:....Critically analyse and evaluate this statement in light of recent developments in the law of proprieta

    proprietary estoppel had reached the House of Lords.7 Therefore it was hoped that these cases would give the judiciary a long awaited opportunity to clarify the doctrine. In Cobbe Lord Walker stated that "Equitable estoppel...is not a sort of joker or wild card to be used whenever the court disapproves of the conduct of a litigant who seems to have the law on his side. Flexible though it is, the doctrine must be formulated and applied in a disciplined and principled way."8 The House of Lords appeared determined to address the criticisms and it was hoped that they were about to define and clarify the doctrine, especially the role of unconscionability.

    • Word count: 3053
  13. A factual comparison of the Criminal Justice system of England and Wales with that of the Netherlands, focussing on street crime, structures and policies.

    Page 8 - Drug laws. Page 9 - Drug and prostitution laws. Page 10 - Prostitution. List of figures/graphs * Figure 1. Image of De Wallen, Amsterdam. Wikipedia.org, 2009. * Figure 2. Prison rates in various countries. Walmsley, 2002. * Figure 3. The number of recorded crimes involving firearms since. Home Office, 1998 Introduction This report takes an in-depth look into the Criminal Justice System of England and Wales, in comparison to that of a selected European state. The state I have chosen to look at is the Netherlands. I will endeavour to investigate and evaluate the similarities and differences between both systems and their approaches to tackling crime and disorder, focussing on street crime such as drugs and prostitution.

    • Word count: 3357
  14. In what senses is devolution asymmetric? Is this sustainable and - if not - what should be done about it?

    In addition it seems clear that the fire of nationalism was fuelled by the effective tantalizing prospect of devolution in 1977. Here the Labour government withdrew their plans for Scottish devolution after much planning on the basis of impracticability. It seems clear therefore that the events leading up to Scottish devolution and so providing reasons for the act itself were the feeling that Scotland was improperly represented by a combined United Kingdom Parliament. Bogdanor certainly seems to concur with this in stating that "devolution was a solution to the perceived lack of legitimacy of British government, in the non-English parts

    • Word count: 2810
  15. To what extent do the British courts respect the concept(s) of the rule of law? Is this satisfactory?

    This strand of the rule of law clearly presents a theory grounded purely in the factual elements of law-making. Dicey supports this reasoning and claims that the rule of law means that 'no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land'4. This quotation demonstrates the formalist approach as it presents a clear concern for the manner and procedures which are followed in the promulgation of the laws.

    • Word count: 2381
  16. There is nothing in any way novel in according supremacy to the rules of Community law in those areas to which they apply (Lord Bridge of Harwich in Factortame (No 2)) In what ways (if at all) can Parliamentary supremacy be reconciled with

    The increased prominence of international law has led to the compromise of parliamentary sovereignty in favour of respecting the UK's obligations to the EU under the European Communities Act 1972 and the Human Rights Act 1998. Parliamentary Supremacy originated as a result of an increased will to diminish the power of the monarch in favour of respecting the general will of the people. Historically, any Act needed parliamentary and monarchical approval before being passed; whilst this is still in place today, it is clear that parliament take a much larger role in the proceeding s than the Queen.

    • Word count: 1964
  17. By reference to case law examples explain the concepts of ratio decedendi and obiter dicta to the doctrine of judicial precedent.

    alike but if a judge considers that the facts of a case are sufficiently different from a previous case then he may refuse to follow that decision.2 The difficulty in the search for the ratio becomes acute when more than one judgment is promulgated3. An example is the case of Kay v.

    • Word count: 578
  18. It is often said that no reputable constitutional lawyer would claim that the separation of powers is a feature of the UK constitution. Why is this claim made, and is it correct?

    The nature of separation of powers within the constitution of any given country is a tenable idea in itself. The purpose of the existence of such a principle within the UK seems to be that of 'partial separation' in which there is not required an unbreakable barrier between the three functions, merely that they remain separate with the aim that no one of the three can possess too much power. The UK is said to employ a 'network of rules and principles which ensure that power is not concentrated in the hands of one branch.'3 However, it seems that in

    • Word count: 2001
  19. Free essay

    What would it take to change the UK constitution?

    At present the constitution is comprised of a mixture of legal sources and non-legal sources such as conventions. Legal sources are clearly a rigid basis for a constitution and it is often said that to have a constitution which is based upon law is a strong foundation which removes the uncertainty and flimsiness with which the UK constitution is accused. The system of having a legal body of works which can be considered to form the constitution is also criticised, however, and largely considered to be a randomised and over-complex system as 'there is under the English constitution no marked

    • Word count: 2498
  20. This essay will critically evaluate the development of English law relating to the ability of people to make small claims in the County Court; the theoretical purpose and ability of the Court, the financial possibility, the relevance, and new and ongoing

    This was the purpose legislators had in mind when creating the County Court and developments thus far have been intended to make the process of ordinary people making small claims in the court easier. When beginning litigation, according to the County Courts Act 1984, the present relevant authority on County Courts (although some parts have been amended or repealed by innumerable statutory instruments) Part III Section 66, and with certain exemptions, a Jury may be impaneled2. Part I, Section 15 of the Act, states that the jurisdiction of the County Court is to hear and determine any action founded on contract or tort, within the exception of the libel of slander, and some titles3.

    • Word count: 2384
  21. Lay Magistrates occupy a particularly controversial position in the English Judiciary. They are usually unqualified in the law, being lay people and the Courts they rule over, the Magistrates Courts, do not have Juries

    (Ibid.) Summary offences are still serious nonetheless; they can include the deprivation of the liberty of the accused, and as such, it appears to be non-controversial to suggest that they be taken seriously indeed: but the evidence put before us seems to show that Magistrates are not serious about those who appear before them. It might have something to do with money; of particular importance, "the Lord Chancellor introduced fixed fees for contested trials. In the past you were paid by the hour, but now there are fixed fees for a trial...

    • Word count: 2124
  22. Considering Lord Bridges statement and other relevant case law discuss whether lower courts should be bound by an erroneous decision of the supreme court until the latter has had the opportunity to correct the mistake when a similar case returns to it.

    A solicitor deals with a lot of paperwork, for example, drawing up wills and contracts as well as giving legal advice to clients. Solicitors have conventionally been able to do advocacy work in the magistrates court and the county court but not generally in the higher courts. This position was altered by the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, enabling equalising rights of audience between both types of lawyers. Following the completion of a law degree or conversion course, a bar vocational course is required to initiate the path of becoming a barrister, followed by a pupillage (a barristers equivalent of a training contract).

    • Word count: 1051
  23. Free essay

    Considering Lord Bridges statement and other relevant case law discuss whether lower courts should be bound by an erroneous decision of the supreme court until the latter has had the opportunity to correct the mistake when a similar case returns to it.

    The House of Lords would now treat its decisions as normally binding but would depart from these when it appeared right to do so. Lord Bridges' declaration is a testament to the Practice Statement, in which he recognises that it is essential for one to avoid precedence if this means using a different method of differentiating and determining an error which may lead to injustice. An example in which the House of Lords used the Practice Statement in which it overruled a decision it made twelve months before was in the Anderton v Ryan (1985)

    • Word count: 890
  24. Critically analyse the effectiveness of lay people and compare and contrast the roles played by the judiciary, lawyers and lay people in the English legal system; making reference to their purposes.

    It is however true to say that advocacy is the most important tool of a barrister but it need not be restricted to spoken advocacy and a considerable amount of written documentation will be prepared during their work. The majority of their preparation, when taking a case, will involve undertaking extensive research on a specialist area and then presenting this advice to a solicitor and those instructing them. If, after considering the advice of counsel, it is decided to proceed with litigation it is likely the barrister will also be involved in the drafting of the various documents needed including claim forms, particulars of the claim, and defences and questions between the two parties.

    • Word count: 5485

Conclusion analysis

Good conclusions usually refer back to the question or title and address it directly - for example by using key words from the title.
How well do you think these conclusions address the title or question? Answering these questions should help you find out.

  1. Do they use key words from the title or question?
  2. Do they answer the question directly?
  3. Can you work out the question or title just by reading the conclusion?
  • Discuss the possible alternatives to trial by jury

    "To conclude it is difficult to see how effective jury trials really are in the respect to the secrecy of the jury room. Section eight of the Contempt of Court Act 1981 could be amended to allow research into how juries work so that possible reforms could be made. There are many disadvantages of using juries but there remains the feeling that they are still the best method available and no other suitable alternatives have arisen."

  • "British company law has failed, to come to grips with the problems posed by purely groups of companies, Adams v Cape Industries shows the dark side of this failure" - Explain and discuss this statement.

    "In conclusion, it is my contention that whilst statutory attempts have been made to circumvent the problems posed by purely groups of companies, the restriction placed upon these provisions by the common law has rendered them highly unsatisfactory. The case of Adams v Cape Industries is demonstrative of the judiciary's unwillingness, in the absence of unambiguous statutory provisions to contrary, to depart from the notion of a 'distinct legal personality',. Whilst an adherence to the Salomon principle may be desirable both as a matter of legal certainty and economic efficiency, the need for further, unequivocal, statutory reform has become self-evident. The proposals of the Steering Group offer little hope of the desired reform emmenating any time within the near future. 1 Financial Times, Monday December 1 2003 2 [1897] AC 22 As per dictum of Lord MacNaghten Pg. 51 3 Fletcher, R. Lifting the Veil of Incorporation (2001)"

  • Critically discuss by reference to the administration of the criminal law in respect of Australian Aboriginal Peoples.

    "In conclusion, two aspects of the administration of the criminal law in respect of Australian Aboriginal peoples are explored, the judicial recognition of Aboriginal customary law as well as the mandatory sentencing policy. There are arguments both for and against the judicial recognition of Aboriginal customary law and the mandatory sentencing policy. Discussions on these two topics include both the its beneficiaries and criticisms. A varied cases and judgments as well as statistics provide facts and foundation to illustration. In examining two aspects of the administration of the criminal law in respect of Australian Aboriginal peoples only allow exploration on part of its overall framework. This issue is an important one that largely influences the development in Australian criminal law administration."

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