English Legal System, 5th Edition

697 Pages·2001·1.74 MB·English

by  Gary Slapper

C
P
Cavendish
Publishing
Limited
London • Sydney

Fifth Edition
Gary Slapper, LLB, LLM, PhD, PGCE (Law)
Director of the Law Programme, The Open University
David Kelly, BA, BA(Law), PhD
Principal Lecturer in Law, Staffordshire University
C
P
Cavendish
Publishing
Limited
London • Sydney
Fifth edition first published in Great Britain 2001 by Cavendish Publishing
Limited, The Glass House, Wharton Street, London WC1X 9PX, United
Kingdom
Telephone: [phone] Facsimile: [phone]
Email: [email protected]
Website: www.cavendishpublishing.com
This title was previously published under the Principles of Law series.
© Slapper, G and Kelly, D 2001
First edition 1994
Second edition 1995
Third edition 1997
Fourth edition 1999
Fifth edition 2001
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under the
terms of the Copyright Designs and Patents Act 1988 or under the terms of a
licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,
London W1P9HE, UK, without the permission in writing of the publisher.
British Library Cataloguing in Publication Data
Slapper, Gary
English legal system – 5th ed
1. Law – England 2. Law – Wales
I. Title II. Kelly, David, 1950 Aug 16
347.4'2
ISBN 1 85941 657 8
Printed and bound in Great Britain
PREFACE
A good comprehension of the English legal system requires knowledge and
skill in a number of disciplines. The system itself is the result of developments
in law, economy, politics, sociological change, and the theories which feed all
these bodies of knowledge. A detailed knowledge of several areas of law is
indispensable but students are also expected to appreciate the historical
development of many legal institutions, and the social and political debates
which surround legal issues. It is important to understand the legal theory
which is behind policies on matters as diverse as the law relating to arrest,
search and seizure; the distribution of work among different types of court;
the structure of legal services; judicial review of administrative discretion; the
operation of the doctrines of precedent and statutory interpretation; plea
bargaining, contingency fees and legal aid. Being proficient in this subject also
means being familiar with contemporary changes and proposed changes. This
book aims to assist students of the English legal system in the achievement of
a good understanding of the law, its institutions and processes. It is also our
aim to help cultivate in students of the system a critical approach to current
legal issues and problems.
Since the fourth edition of this book in 1999, the English legal system has
undergone major and comprehensive changes.
The Access to Justice Act 1999 has led to the establishment of the Legal
Services Commission and the Community Legal Service, and has re-drawn
the legal landscape.
The 1998 Civil Procedure Rules came into force in 1999 and have been
amended and updated 21 times since – the Rules revolutionise the way that
people make civil claims and the way in which the courts deal with them.
The Human Rights Act 1998 came into force in October 2000, and has
already begun to ramify into virtually all aspects of law, and thus affects how
the legal system operates. To prepare it, the judiciary underwent the most
comprehensive and detailed formal training in its entire thousand-year
history.
Other changes abound: The Auld Committee has undertaken a root and
branch review of the criminal justice system. The Crown Prosecution Service
has been re-organised, the nature of judicial impartiality has been
authoritatively defined, the role of the jury has been exposed to intense public
and legal debate, liability of advocates for courtroom negligence has been
established, the appeals system has been altered, alternative dispute
resolution has become a major feature of British life, and European law has
continued to widen and deepen its application.
The fifth edition incorporates all of these changes, and we have
endeavoured to state the law as of July 2001.
Gary Slapper
David Kelly
July 2001
v
ACKNOWLEDGMENTS
We are very grateful to many people for their assistance, counsel, expertise,
good humour and patience, all of which have contributed to the writing of
this book. We are especially indebted to Suzanne, Hannah, Emily, Charlotte,
Jane and Michael.
Great thanks are due to Jo Reddy, Sonny Leong, Cara Annett, Jon Lloyd
and Ruth Massey at Cavendish Publishing. In various ways, their ideas,
encouragement and skill have contributed substantially to this book, and not
for the first time in this edition. We are very grateful to Marilyn Lannigan for
her assiduous and professional research and work on the updating of
Chapters 3, 7, 11 and 12, and to Denis Lanser for his characteristically polished
and conscientious work on the updating of Chapters 4, 9 and 10. For very
helpful comments on earlier drafts, we are indebted to Professor Hazel Genn,
Liz Rodgers, Micéal Barden, Michael Fealy, Steve Greenfield, Janice
Richardson and David Stott. Thanks also to Frances Gibb, Legal Editor at The
Times, for her constant critical elucidation of the legal system. Agreat debt also
to Doreen and Ivor Slapper, David and Julie Whight, Raie Schwartz, Alison
Morris and Hugh McLaughlan.
vi
CONTENTS
Preface v
Acknowledgments vi
Table of Cases xviii
Table of Statutes xxxi
Table of Statutory Instruments xxxix
Table of EC Legislation xli
Table of Abbreviations xliii
1 LAW AND LEGALSTUDY 1
1.1 INTRODUCTION 1
1.2 THE NATURE OF LAW 1
1.3 CATEGORIES OF LAW 2
1.3.1 Common law and civil law 3
1.3.2 Common law and equity 3
1.3.3 Common law and statute law 5
1.3.4 Private law and public law 5
1.3.5 Civil law and criminal law 6
1.4 THE SEPARATION OF POWERS 9
1.4.1 Parliamentary sovereignty 10
1.4.2 Judicial independence 11
1.4.3 Parliamentary Commissioner for Standards 13
1.5 THE RULE OF LAW 14
1.5.1 AV Dicey 15
1.5.2 FAvon Hayek 17
1.5.3 EPThompson 18
1.5.4 Joseph Raz 19
1.5.5 Roberto Unger 20
1.5.6 Max Weber 21
1.6 HUMAN RIGHTS DISCOURSE AND THE RULE OF LAW 23
1.7 THE HUMAN RIGHTS ACT 1998 24
1.7.1 Cases decided under the Human Rights 1998 29
1.7.2 The sentencing process 35
1.7.3 Cross-examination in rape cases 42
2 SOURCES OF LAW 49
2.1 EUROPEAN COMMUNITY 49
2.2 LEGISLATION 49
2.2.1 The pre-parliamentary process 50
2.2.2 The legislative process 52
2.2.3 The drafting of legislation 54
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The English Legal System
2.2.4 Types of legislation 55
2.2.5 Delegated legislation 57
2.2.6 Advantages in the use of delegated legislation 60
2.2.7 Disadvantages in the prevalence of delegated
legislation 60
2.3 CASE LAW 62
2.3.1 Precedent 63
2.3.2 Law reporting 63
2.3.3 Precedent within the hierarchy of the courts 67
2.3.4 Binding precedent 75
2.3.5 Advantages of case law 80
2.3.6 Disadvantages of case law 82
2.4 BOOKS OF AUTHORITY 85
2.5 CUSTOM 86
2.6 LAW REFORM 87
3 THE CIVILCOURT STRUCTURE 93
3.1 THE COURT SERVICE 95
3.2 MAGISTRATES’ COURTS 96
3.3 COUNTYCOURTS 96
3.4 THE HIGH COURT OF JUSTICE 98
3.4.1 The Queen’s Bench Division 99
3.4.2 The Queen’s Bench Divisional Court 100
3.4.3 The Chancery Division 100
3.4.4 The Chancery Divisional Court 101
3.4.5 The Family Division 101
3.4.6 The Family Divisional Court 101
3.5 APPEALS FROM THE HIGH COURT 101
3.6 THE COURT OF APPEAL(CIVILDIVISION) 102
3.6.1 The Bowman Report 1998 103
3.7 THE ACCESS TO JUSTICE ACT 1999 – REFORMS TO
THE APPEALPROCESS 105
3.8 THE HOUSE OF LORDS 110
3.9 THE EUROPEAN COURT OF JUSTICE 111
3.10 THE EUROPEAN COURT OF HUMAN RIGHTS 113
3.11 JUDICIALCOMMITTEE OF THE PRIVYCOUNCIL 113
3.12 CIVILCOURT FEES 114
viii
Contents
4 THE CRIMINALCOURT STRUCTURE 121
4.1 CORONERS’ COURTS 121
4.2 THE CRIMINALTRIALCOURTS 122
4.3 MAGISTRATES’ COURTS 123
4.3.1 Summary trial 124
4.3.2 Offences triable ‘either way’ 126
4.3.3 Youth Courts 129
4.3.4 Indictable offences – committal proceedings 131
4.3.5 The Access to Justice Act 1999 – magistrates’ courts 133
4.4 THE CROWN COURT 139
4.4.1 The judges 140
4.4.2 Jurisdiction 140
4.4.3 Delay 141
4.4.4 Magistrates’ courts v Crown Courts 142
4.5 CRIMINALAPPEALS 142
4.5.1 Appeals from magistrates’ courts 143
4.5.2 Appeals from the Crown Court 143
4.5.3 The Access to Justice Act 1999 – jurisdiction 147
4.5.4 Judicial Committee of the Privy Council 147
4.5.5 Royal Commission on Criminal Justice 148
4.5.6 Criminal Cases Review Commission 149
4.6 AMISCARRIAGE OF JUSTICE 151
4.7 REFORM OF THE CRIMINALCOURTS 152
4.7.1 Either way offences and determination of
mode of trial 153
4.7.2 Other possible reforms under consideration 154
5 JUDICIALREASONING 159
5.1 INTRODUCTION 159
5.1.1 Law and logic 159
5.2 REASONING IN GENERAL 160
5.2.1 Deductive reasoning 161
5.2.2 Inductive reasoning 162
5.2.3 Reasoning by analogy 163
5.3 JUDICIALREASONING 163
5.3.1 The syllogism in law 163
5.3.2 The logical form of precedent 164
5.4 STATUTORYINTERPRETATION 166
5.4.1 Problems in interpreting legislation 166
5.4.2 Approaches to statutory interpretation 167
ix