Principles and sources of English law

Principles and Sources of English Law (AS Level – Topic 1.1)

1.1.1 The Nature and Purpose of Law

• Law vs. Morality – Law is a set of rules enforceable by the State; morality consists of personal or societal beliefs about right and wrong. They often overlap but are not identical.
• Key Functions of Law
  • Justice & Fairness – provides an impartial framework for resolving disputes.
  • Limiting Power – restrains individuals, corporations and the State (the “rule of law”).
  • Predictability & Certainty – enables people to plan their affairs with confidence.
  • Social Order – defines acceptable behaviour and helps maintain peace.

1.1.2 Legal Systems in the World

• Civil law – Predominantly codified statutes; judges apply the code (e.g., France, Germany).
• Common law – Judge‑made precedent is central; statutes supplement but do not replace case law (e.g., England, Wales, USA, Australia).
• Customary law – Rules derived from long‑standing community practices (e.g., many African and Pacific societies).
• Religious law – Legal rules based on religious texts or doctrines (e.g., Sharia in Saudi Arabia, Canon law in the Roman Catholic Church).
• Mixed (Hybrid) systems – Combine elements of two or more families (e.g., Scotland – civil‑law tradition with common‑law courts; South Africa – civil law foundation with common‑law precedent).

1.1.3 Core Principles of the English Legal System

• Rule of Law
  • Everyone, including the Government, is bound by law.
  • Law‑making must be clear, publicly accessible and applied equally.
  • Constrains legislation – statutes cannot be vague, must not be retroactive (unless expressly stated) and must respect fundamental rights.
  • Illustration: Entick v Carrington (1765) – protected individuals from unlawful searches, confirming that executive power must be exercised under law.
• Parliamentary Supremacy (Sovereignty) – Parliament may make, amend or repeal any law; no court can override an Act of Parliament.
  Illustration: R (Miller) v Secretary of State for Exiting the European Union (2017) – triggering Article 50 required primary legislation.
• Separation of Powers – Legislature, Executive and Judiciary operate independently to prevent concentration of power.
  • Judges interpret law but do not make it.
  • The Executive implements law but cannot legislate.
• Doctrine of Precedent (Stare Decisis)
  • Ratio decidendi – the binding legal principle of a judgment.
  • Obiter dicta – persuasive but non‑binding remarks.
  • Binding hierarchy: Supreme Court → Court of Appeal → High Court → Crown Court & County Court → Magistrates’ Court.
  • Illustration: Donoghue v Stevenson (1932) – created the modern duty of care in negligence.
• Equity – A body of principles developed to soften the rigidity of common law.
  • Provides remedies such as injunctions, specific performance and trusts.
  • Equity “supplements” rather than “overrides” common law; where a conflict exists, equitable remedies prevail (e.g., Waltons v Maher).

1.1.4 Sources of English Law

1.1.5 Legislative Process and Delegated Legislation

• How an Act of Parliament is Made
  1. First Reading – formal introduction of the Bill.
  2. Second Reading – debate of the Bill’s general principles.
  3. Committee Stage – line‑by‑line examination and amendment.
  4. Report Stage – further amendments and debate.
  5. Third Reading – final debate and vote.
  6. House of Lords – same stages; possible “ping‑pong” of amendments.
  7. Royal Assent – the Bill becomes an Act of Parliament.
• Influences on Parliamentary Decision‑making – media, pressure groups, Law Commission proposals, party manifestos, public consultations.
• Types of Delegated Legislation
  • Orders in Council – made by the Crown on the advice of Ministers.
  • Statutory Instruments (SI) – the most common form; can be affirmative or negative resolution.
  • By‑laws – made by local authorities or certain public bodies for matters within their competence.
• Control of Delegated Legislation
  • Parliamentary control – affirmative or negative resolution procedures; scrutiny by select committees.
  • Judicial control – courts may strike down an SI if it exceeds the powers conferred by the enabling Act (ultra vires) or is incompatible with higher‑order law.

1.1.6 Statutory Interpretation

• Literal (Plain‑meaning) Rule – words are given their ordinary meaning unless the result is absurd.
• Golden Rule – modifies the literal meaning to avoid an absurdity while staying within the words used.
• Purposive (Mischief) Approach – seeks the purpose behind the provision; now the default rule, especially where EU law or the Human Rights Act is engaged.
• Extrinsic Aids
  • Hansard (Parliamentary debates) – admissible after Pepper v Hart (1993) where the wording is ambiguous.
  • Law Commission reports, dictionaries, earlier case law, legislative history.
• Impact of EU Law & the Human Rights Act
  • Where a domestic statute can be read compatibly with retained EU law or the ECHR, courts must adopt that interpretation (R (Factortame Ltd) v Secretary of State for Transport).

1.1.7 Hierarchy of Legal Sources (Resolving Conflicts)

1. Constitutional statutes (e.g., Human Rights Act 1998, Scotland Act 1998).
2. Primary legislation (Acts of Parliament).
3. Secondary (delegated) legislation.
4. Common law – subject to amendment by statute.
5. Equitable principles – can override common‑law rules where fairness requires it.
6. Retained EU law – interpreted in line with domestic statutes but displaced by later primary legislation.
7. International law – binds the UK only when incorporated by an Act of Parliament.

Machinery of Justice (AS Level – Topic 1.2)

1.2.1 Court Structure and Jurisdiction

1.2.2 Police Powers

• Stop & Search – authorised by the Police and Criminal Evidence Act 1984 (PACE) and specific statutes (e.g., Terrorism Act 2000). Must be based on reasonable suspicion.
• Arrest
  • With a warrant – for offences where a warrant is required (e.g., serious fraud).
  • Without a warrant – if the officer has reasonable suspicion of an offence and the arrest is necessary (preventing harm, protecting public, etc.).
• Detention & Questioning
  • Maximum 24 hours without charge (extendable to 36 hours for terrorism‑related offences).
  • PACE Codes of Practice govern treatment, provision of legal advice, and the “caution”: “You do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court.”
• Search of Premises – Requires a warrant unless an exception applies (e.g., consent, exigent circumstances).
• Use of Force – Permitted only when reasonable and necessary; governed by the Criminal Law Act 1967 and case law (e.g., R v. Brown on consent).

1.2.3 The Criminal Process (From Investigation to Appeal)

1. Investigation
   • Police gather evidence, interview witnesses, and may conduct stop‑and‑search or covert surveillance.
   • Serious cases may involve specialist units (e.g., homicide squad).
2. Arrest & Detention – As described above; the suspect is taken to a police station.
3. Charging Decision
   • Made by the Crown Prosecution Service (CPS) using the “Full Code Test”: (a) sufficient evidence for a realistic prospect of conviction; (b) it is in the public interest to prosecute.
4. Pre‑trial Procedures
   • Case Management – Allocation to either the Magistrates’ Court (summary) or Crown Court (indictable/either‑way).
   • Pre‑trial hearings – directions on disclosure, plea, and trial timetable.
   • Defence may apply for bail; bail conditions are set by the court.
5. Trial
   • Magistrates’ Court – bench trial, no jury; judge or magistrates decide guilt and sentencing.
   • Crown Court – jury of 12; judge directs on law, decides sentencing.
   • Standard of proof – “beyond reasonable doubt”.
6. Sentencing
   • Guided by the Sentencing Council’s guidelines.
   • Options include custodial sentences, fines, community orders, discharges, and restorative justice measures.
7. Appeals
   • Magistrates’ Court convictions – appeal to the Crown Court (on points of law or fact).
   • Crown Court convictions – appeal to the Court of Appeal (Criminal Division) on points of law; further appeal to the Supreme Court only with permission.
   • Sentencing appeals follow the same route.

1.2.4 Judicial Review (Brief Overview)

• Allows the High Court to examine the lawfulness of decisions made by public bodies.
• Grounds: illegality, irrationality, procedural impropriety, and breach of human rights.
• Remedies: quashing order, mandatory order, prohibiting order, and declarations.