Common Equity Judicial
The English legal system is described as "common law", but what does this actually mean? In fact, the term has several different possible meanings.
Firstly, and perhaps most commonly, the term is used to refer to law that it is not the result of parliamentary enactment. Glanville Williams describes this as "law created by the custom of the people and decisions of the judges". So, the laws that arise from judicial precedent, or, less commonly, custom, are deemed to be derived from common law. In a common law legal system, Parliament need not legislate for every eventuality because it is possible to look to previously decided cases to fill the gaps. By way of contrast, in civil legal systems, the law is derived from a codified set of written rules rather and no regard is given to judicial precedent.
Secondly, Williams further argues that the term may be used to refer not only to judicial precedent but to the power of judges to "make" the law themselves through the process of interpreting legislation and previous decisions.
Thirdly, the phrase may be used in a historical sense. Common law developed as a result of the centralisation of political power in the Middle Ages. It gradually replaced the many different systems of local customary law and came to apply to the whole of England. In other words, it became the law common to the entire country. The law that arose from the old common law courts would also be referred to as "common law".
Fourthly, the phrase common law may be used to describe another legal system that uses the principles of the English legal system as its basis. For example, Canadian law (with the exception of provincial law in Quebec, which follows the French civilian tradition) has adopted a common law system. The term could also be used to contrast a legal system of this sort with other foreign legal traditions, such as Roman law and the aforementioned civil law.
Finally, the phrase may be used simply to indicate that a rule is not a rule of equity, which is a separate body of law within the English legal system. This is discussed further below.
The development of the law of equity
During the Middle Ages, it became apparent that the common law was not equipped to deal with all kinds of disputes. A principle that underpinned the development of the law was that a common law right could only be deemed to exist if a procedure existed for its enforcement. This principle is reflected in the Latin maxim ubi remedium ubi ius. As a result, the common law came to rely upon a very rigid system of writs. If an action did not fit within the parameters of a pre-existing writ, justice could not be provided by the courts. This left enormous gaps in the law. For example, no writ covered breach of contract and trusts were not recognised.
Dissatisfied petitioners went to the King and asked that he exercise his royal prerogative to provide a solution. The idea was that, like King Solomon, the king would deal fairly with the matter and that a just solution could be reached outwith the stifling confines of the common law.
The King delegated this power to his Lord Chancellor, and a Court of Chancery was eventually set up to deal with the great number of demands for equitable remedies.The court would utilise fundamental ideas of fairness in order to reach decisions, rather than relying on formally written laws. Eventually, these rules were formalised to imbue the system with a degree of certainty, and the formal rules developed into law.
Equity can therefore be seen as having developed as a response to inadequacies in the common law. It provided a much needed resolution to gaps which would otherwise have enabled injustice and corruption to go unchecked.
The Judicature Acts of 1873 - 1975 combined the courts that dealt with common law and equity. This was a matter of administrative convenience, as it meant that matters of common law and equity could be raised in the course of the same action. However, on a theoretical level, the two bodies of law remain distinct.
Where there is conflict between the two, known as "conflict or variance", equity will prevail.
SECTION B
Outline and comment on the jurisdictions of the civil and criminal court within the UK court structure.
Introduction
As a starting point, is important to note that the court structures in the UK vary according to jurisdiction: the structures in Scotland, Northern Ireland and England and Wales are quite distinct. This answer will primarily focus upon the structure in England and Wales.
Broadly speaking, the English courts are categorised as superior and inferior. The superior courts include the House of Lords, the Privy Council, the Court of Appeal, High Court and Crown Court. They have unlimited jurisdiction. Inferior courts, i.e. the Magistrates' Courts and the County Courts, have their jurisdiction limited by either geographical boundaries, value of claim or seriousness of criminal offence, or a combination of these factors.
In addition to the main courts, there also exist a number of tribunals (including the Employment Appeal Tribunal and the Immigration Appeal Tribunal) and specialist courts such as the ecclesiastical courts.
The criminal court structure
At first instance, English criminal cases are dealt with by the Magistrates' Court or the Crown Court.
The Magistrates' Court deals with more minor cases. These courts are said to deal with 95% of cases. These are heard either by a district judge or a panel of lay magistrates (known as justices of the peace) assisted by a legally-trained clerk.
More serious offences (i.e. indictable offences) are heard in the Crown Court before a judge and jury. The Crown Court possesses considerably greater sentencing powers. Indeed, cases may be referred from the Magistrates' Court to the Crown court after a verdict has been reached so that harsher sentence may be handed down than a Magistrates' Court would be equipped to give where both courts share jurisdiction over that case.
Appeals from the Magistrates' Court may be heard in the Crown Court, while appeals from the Crown Court may be referred to the Criminal Division of the Court of Appeal.
The civil court structure
The Magistrates' Court, County Courts and the High Court function as courts of first instance for civil cases. The choice of court will depend upon whether the subject of the dispute falls within a court's jurisdiction and the value of the claim, since the time and money expended will be greater if a case is taken to the High Court.
Magistrates' Courts will deal with family matters, liquor licensing and regulation of gambling. The County Courts deal with other civil matters such as debt recovery, housing, divorce and adoption and breach of contract.
The High Court is divided into three divisions, each of which technically has equal competence but which, as a result of various rules and statutory provisions, has separate jurisdiction in practice. This has the advantage of enabling potentially complicated matters to be heard by specialists.
The Queen's Bench Division deals with matters relating to contract, tort and commercial matters. The Chancery Division deals with equity, trusts, tax and bankruptcy. The Family Division, as one might expect, deals with divorce, matters concerning children and probate.
The Divisional Court of each Division also has appellate jurisdiction in respect of relevant appeals from the County and Magistrates' Courts. Appeals from the County Courts or the High Court can be heard by the Civil Division of the Court of Appeal.
The House of Lords and beyond
For both criminal and civil cases, the House of Lords constitutes the final domestic point of appeal on questions of law. It can hear appeals from the English Court of Appeal or, by means of the "leap frog" procedure, from the High Court. It is also the last domestic point of appeal from the Court of Session (which deals with Civil cases only) in Scotland and from the Court of Appeal in Northern Ireland. The law lords also sit as the Judicial Committee of the Privy Council to hear appeals from those Commonwealth Countries that have not abolished the right to make such an appeal.
Appeals to the House of Lords are not actually heard by the entire House, but rather by the "law lords", of whom there are 12. They usually hear appeals in panels of 5. The Lord Chancellor presides over the law lords and is entitled to hear cases, although in practice rarely does. He is appointed by the Prime Minister and, given that this might be seen as tainting the supposed independence of the judiciary, his role might be viewed as less than ideal.
Where the UK courts are unable to reach a satisfactory decision, a case may be referred to the European Court of Justice on questions of EC law for a preliminary ruling under Article 234 EC (formerly 177 EC) of the EC Treaty. The UK courts will require to follow this ruling.
Finally, where an individual is seeking redress for infringement of a right under the European Convention on Human Rights and has taken all possible steps in the domestic courts, an appeal may be made to the European Court of Human Rights. Following the Human Rights Act 1998, UK courts must now take any relevant jurisprudence of the European Court of Human Rights into account in their decision-making.
Comments on the criminal and civil court structure
The court structure is clearly complex and replete with remnants of its convoluted development. As Slapper & Kelly explain, the potentially overlapping legal and political duties of the law lords have been cited as a particular cause for concern. Moreover, the position of the Lord Chancellor, who is politically appointed and a member of the executive, but who is also the most senior judge in England, with the power to appoint judges, raises serious questions as to whether the English court structure has adequate regard for the democratic principle of separation of powers.
However proposals for the introduction of a UK-wide Supreme Court that would exist entirely separately from political influence have met with controversy. While a streamlined, co-ordinated court would be advantageous, there are concerns that such upheaval in elaborate mechanisms that have been developed over centuries will simply cause more problems. Scottish commentators in particular fear that the unique character of Scots law would not be adequately provided for. Nevertheless, reform, at least to some degree, appears to be a political inevitability.
SECTION C
Read the extracts provided from the 1991 Dangerous Dogs Act and answer the following questions.
[Please note - no extracts were provided with the question, therefore answers are based on the Act in its entirety.]
1. What is the short title of the Act?
The Dangerous Dogs Act 1991
2. What is the official citation?
The Dangerous Dogs Act 1991 (c.65)
3. What is the long title of the Act?
An Act to prohibit persons from having in their possession or custody dogs belonging to types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dog which present a serious danger to the public; to make further provision for securing that dogs are kept under proper control; and for connected purposes.
4. When did the Act come into force?
Section 10(4) provides that the Act (apart from Section 8) will come into force on a day appointed by the Secretary of State in a statutory instrument.
In this case, the relevant statutory instrument is the Dangerous Dogs Act 1991 (Commencement and Appointed Day) Order 1991 No 1742, and this provides that the Act (except for Section 8, which came into effect when the Act received Royal Assent on 25 July 1991) will come into effect on 12 August 1991 and that the Appointed Day for the provisions laid out in s3 will be 30 November 1991.
5. Darren owns a pit bull terrier. He does not want to have his dog destroyed. Explain what he can now do legally, in accordance with the statute, to keep his dog after the Act has come into force.
In order to keep his pit bull terrier, Darren will require to comply with any scheme established by the Secretary of State pursuant to s1(3)(5), which may include a payment of charges or fees.
He will also need to ensure that he keeps the dog on a muzzle and lead when in a public place (as per s1(2)(d)) and must not abandon it or allow it to stray (as provided in s1(2)(e)).
6. Rosemary has a pet Pekinese called Sally who is very disobedient and loves ice cream. Rosemary takes Sally to the park and lets her off her lead. Sally spots two children eating ice cream. The mother grabs Sally and complains to the police. What offence, if any, has Rosemary committed? Cite any appropriate sections.
Under s3(1), Rosemary could be guilty of the offence of allowing her dog to be dangerously out of control.
7. Kirk recently took his large terrier for a walk. He decided to buy a sandwich. He tied the dog securely to some railings outside the shop and left it. A nearby policeman witnessed Kirk's actions. Has Kirk committed any offence?
Assuming that the terrier is not a pit bull terrier (which would come under s1) and that no subsequent restrictions have been imposed by the Secretary of State under s2 of the Act in relation to the type of terrier owned by Kirk, then the dog's behaviour is regulated by s3. As it is not an offence to leave your dog unattended under this section, Kirk has not committed any offence. The dog was tied up and could not therefore be said to be "dangerously out of control".
8. Barbara is the publisher of a magazine called Dogs Weekly, which includes a large number of advertisements. Rom, who breeds pit bull terriers and other fighting dogs, places an advert which reads: For sale rare fighting fit and ready to go guard dog 500. Barbara has been charged with an offence under s1(2). Advise Barbara whether she has any defence and of the penalties if she is convicted.
Firstly, Barbara might seek to avoid conviction altogether under s1(7)(b). This section provides that a person shall not be convicted at all if they can show that they did not know and had no reasonable cause to suspect that the advertisement in question related to a dog to which s1 applies (i.e. a fighting dog). It is not clear from the terms of the advert that the dogs in question are fighting dogs as they are portrayed as guard dogs. This might easily be an Alsatian or similar breed.
Secondly, even if she was ultimately convicted she could seek to avoid imprisonment under s1(7)b) by showing that she published the advertisement to Tom's order and did not devise it herself. This would ensure that at worst she faced a fine.
If convicted, may face imprisonment of up to six months or a fine of up to level 5 on the standard scale, or both, under s1(7) of the Act.
9. George, aged 12, has a pet Alsatian, Polo. One day when George is visiting a friend who lives in a block of flats, Polo slips his lead and chases another dog down the corridor and runs into one of the flats. He barks fiercely and frightens the occupant who faints and hits their head.
(i) What offence, if any, has George committed?
George has arguably committed an offence under s3(1) of the Act, which provides that it is an offence to allow a dog to be dangerously out of control in a public place. Polo was certainly out of control in the corridor, which would appear to constitute a public place as defined in s10(2) of the Act.
Further, he is guilty of an offence under s3(3), which provides that it is an offence to allow a dog to enter a place that it is not public and where it has no permission to be, as a result of having allowed Polo to run into the private flat.
It is not clear whether he would be guilty of an aggravated offence under s3(3), since the dog did not actually physically injure the occupant but merely frightened him.
(ii) Has Martin, his step-father, committed any offence?
Assuming that martin is the head of George's household, he may also be deemed guilty of the above offences. s6 of the Act provides that, where the owner of a dog is under 16, s3 shall include a reference to the head of the household. In other words, the head of the household also bears responsibility for the dog's dangerous behaviour in this scenario.
10. What is the difference between a dog committing an offence or an aggravated offence under s3?
[NB - the dog does not commit the offence, the owner/person for the time being in charge/head of household does.]
An aggravated offence will have been committed if, in the course of committing another offence under that section, a person is injured by the dog. An aggravated offence will incur harsher penalties. On summary conviction, the guilty individual is liable to up to six months imprisonment or a fine up to the statutory minimum, or both. On indictment, the guilty party is liable to up to two years' imprisonment or a fine or both.
11. Explain what is meant by conjunctive and disjunctive reading of statutory sections and give an example of both from the provided sections.
"Disjunctive" reading means that the section of the Act can be read on its own to derive its meaning.
"Conjunctive" reading means that it is read with reference to other sections.
For example, s1(2) can be read disjunctively, but s2(1) requires to be read in conjunction with s1 in order for its full meaning to be determined.
12. Explain what is meant by 'mandatory' and 'permissible' duties in statutes and give an example of both from the provided sections.
Mandatory duties are duties that a statute imposes absolutely.
For example, in s1(3) it is provided that "the Secretary of State shall by order make a scheme for the payment to the owners of dogs who arrange for them to be destroyed before [the Appointed Day] of sums specified in or determined under the scheme in respect of those dogs and the cost of their destruction". The Secretary of State has a mandatory duty to establish such a compensation scheme.
Permissible duties are duties that may be carried out under the statute, but there is no obligation to do so. For example, s1(5) provides that "the Secretary of State may by order provide the prohibition in subsection (3) above shall not apply in such cases and subject to compliance with such conditions as specified in the order". In other words, the Secretary of State is responsible for setting up such a scheme and may do so, but is not absolutely obliged to do so.
13. What is meant by 'exhaustive' and 'inclusive' definitions in statutes? State whether the definition of 'public place' in s.10 of the Act is exhaustive or inclusive.
An 'exhaustive' definition defines a term by providing an exhaustive list of the things that would fall under that definition. Anything that was not identified in the statutory definition would not come under that definition for the purposes of the Act. An example of an exhaustive definition might be: " 'Small animal' means a cat, dog or hamster."
An 'inclusive' definition defines a term by providing examples of specific things that would fall under that definition. Adapting the example above, an inclusive definition might be: " 'Small animal' means a cat, dog, hamster or similar household pet."
The definition of 'public place' in s.10 of the Act is therefore inclusive, since it gives examples of specific things that would be included in the definition of public place but does not provide an exhaustive list.
14. What is meant by the 'Ejusdem generis' and the 'noscitur a sociis' rules of construction? Which rule, and why, would be applied to the construction of the definition of 'public place' in s.10 of the Act?
'Ejusdem generis' is Latin for 'of the same kind'. This rule of construction essentially means that, where a general term appears after a list of specific terms of a similar kind within a statute, the courts will presume that the general words refer only to things of the same type.
For example, if the words "wine, beer, whisky, vodka and other drinks" were to appear in a statute, the general phrase "other drinks" would be presumed to apply to alcoholic drinks and would not be deemed to include, for example, lemonade.
'Noscitur a sociis' means that 'a thing is known by its associates'. In other words, according to this rule, the meaning of a word is derived from the context in which it appears.
The definition of 'public place' in s.10 of the Act would therefore be construed according to the 'noscitur a sociis rule". Its meaning is derived from the words around it.
Bibliography
Books
Clark, R. 1996, Legal Skills and System Textbook, HLT Publications, London.
Huxley-Binns, R. & Martin, J. 2005 Unlocking the English Legal System, Hodder Arnold, London.
Le Sueur, A. 2004, Building the UK's new Supreme Court: National and Comparative Perspectives, Oxford University Press, Oxford.
Malleson, K. 2005, The Legal System, Oxford University Press, Oxford.
Slapper, G. & Kelly, D., The English Legal System, Cavendish Publishing Limited, London.
Walker, R.J. et al. 1998, The English Legal System, Butterworths, London.
Williams, G. 2002, Learning the Law, Sweet & Maxwell, London.
Internet resources
BBC Website, "Plan for Supreme Court Attacked", 24 January 2004 at <http://news.bbc.co.uk/1/hi/scotland/3439663.stm>
Department for Constitutional Affairs, The Court Structure in England and Wales at <www.dca.gov.uk/legalsys/structure.htm>
HM Courts Services Website, Magistrates and Magistrates' Courts at <http://www.hmcourts-service.gov.uk/infoabout/magistrates/index.htm>
