University: Banja Luka
Faculty: Law
Academic year: 2016/2017
Term: Summer/II
Course: Legal English
Type of class: Lectures
Date and time: 02.03.2017, 09.00 – 13.00
2nd
week of lectures/15 weeks
09.00 – 10.00
Sources of English Law
The courts are the interpreters and declarers of the law, the „sources“of law are therefore
the sources to which the courts turn in order to determine what it is. Considered from the aspect
of their sources, laws are traditionally divided into two main categories according to the
solemnity of the form in which they are made. They may either be written or unwritten. These
traditional terms are misleading, because the expression „written“ law signifies any law that is
formally enacted¸ whether reduced to writing or not, and the expression „unwritten“ law
signifies all unenacted law. For example, as will appear, judicial decisions are often reduced to
writing in the form of law reports, but because they are not formal enactments they are
„unwritten“ law.
Since the fashion was set by the Code Napoleon many continental countries have
codified much of their law, public and private; on the Continent therefore, the volume of written
law tends to preponderate over the volume of unwritten. But in England unwritten law is
predominant, for more of our law derives from judicial precedents than from legislative
enactment. This does not, of course, mean that none of our law is codified, for many parts of it
are such as the law relating to the sale of goods (Sale of Goods Act 1979) and the law relating to
partnership (Partnership Act 1980). All that is meant is that, as yet at least, although Parliaments
cast increasing multitudes of statutes upon us, we have not adopted the system of wholesale
codification which prevails in many continental countries.
Two principal and two subsidiary sources of English law must be mentioned. These
principal sources are Legislation, and Judicial Precedent; the subsidiary sources are Custom and
Books of Authority.
Legislation is enacted law. In England the ultimate legislator is Parliament. All legislative
power within the realm is vested in Parliament (parliamentary sovereignty) and there is no legal
limit to the power of Parliament. Parliament may, by Act, delegate legislative powers to other
bodies and even to individuals and it may also remove these powers as simply as it has conferred
them. In the legislative sphere Parliament is thus legally „sovereign“ and master, but this does
not mean that the courts have no influence upon the development of enacted law; in order to be
applied, every enactment has to be interpreted (construed), and the courts are the recognised
interpreters of the law.
Judicial precedents are the decisions of courts which are to be treated with respect and
subsequent courts will follow when they are called upon to determine issues of a similar kind.
Reliance upon precedent has been both the hallmark and the strength of the common law. Its
rules have been evolved inductively from decisions involving similar facts, so that they are
firmly grounded upon the actualities of litigation and the reality of human conduct.
This characteristic of the common law contrasts with the European civil law. There,
harking back to the tradition of the Corpus Juris, law is derived from a code, i.e. from an enacted
body of rules either embodying the whole of, or some considerable part of, the law, or embracing
some special aspect of it. Thus the task of the courts is deductive: to subsume the present case
under the mantle of the generalised and codified rule. The word „codification“ was an invention
of the ingenious Jeremy Bentham (1743-1832). However, in the English system the judge has,
through precedent, power to make new law. Another salient feature of the English system is the
doctrine of the binding case. The authority of the courts is hierarchical; a court which is inferior
in authority to another court is obliged to follow a court of superior authority if called upon to
decide upon facts similar to facts already tried by the superior court.
The facts in issue often resemble two or more divergent authorities. The courts therefore
have freeedom of choice in deciding which of the divergent authorities or streams of authority to
follow. Further, even today cases of „first impression“ sometimes arise; cases arising upon facts
which bear no resemblance to the facts of any previous case. When the judge rules in such a case
he legislates, because future courts must usually follow him.
Thus, the judges rest their judgments upon the general principles enshrined in case-law as
a whole.
Act/enactment/statute –
Administration To administer justice Binding Books of authority -
Case of first impression Code Confer Construe Judicial Judicial precedent Law reports Legislation Legislator Legislature Litigation Vest -
a written law passed by a legislative body; a rule of an organisation
or institution
the performance of executive duties in an institution or business
(sprovođenje, upravljanje)
(sprovođenje pravde)
obligatory
early legal textbooks treated by the courts as authoritative
statements of the law as it was at the time at which they were
written
a case that presents an issue or question never before decided or
considered by the court
a collection of written laws (zakonik)
(powers on) grant, give, award (dati, dodijeliti)
to interpret (tumačiti)
relating to the courts (sudski)
a judicial decision that may be used as a standard in subsequent
similar cases (sudski presedan)
published volumes of the decisions of courts (bilten sudskih
presuda)
law passed by a legislative body (zakonodavstvo)
one who makes laws (zakonodavac)
a representative assembly of persons that makes statutory laws for
a municipality, state, or nation (zakonodavno tijelo)
an action brought in court to enforce a particular right; the act or
process of bringing a lawsuit (sudski spor; parnica)
(in) to place (authority, property or rights) in the control of a
person or group (ovlastiti)
10.00:11.00
Case study - synopsis
Judge John Deed (British legal drama television series),
Series 1/Episode 2: Rough justice (1h:28 min)
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Opening scene: An elderly woman is approaching her neighour’s house, alarmed by loud
screams coming from the inside. A man opens the door and convinces the lady that
everything is in order and that his wife is asleep.
Next scene: courtroom, judge John Deed presiding in a rape case. The clerk of the court
addresses the jury, asking the foreman to stand and reply whether they have reached the
verdict on which they all agree on the indictment. Particulars of the case: Alec Bay was
listed on various occasions between 13 June and 19 November last year to have raped
Emily Bowen, a patient in his care at Oldrich nursing home. The jury found him not
guilty and the court acquitted the defendant.
The counsel is not pleased with the verdict and judge Deed notices it. “Our adversarial
system does not always best serve the public”.
Next scene: Judge Deed’s friend from Home Office asks him to intervene in a domestic
violence case where a police informant is involved. MI5 want the man to walk free.
Judge Deed cannot promise anything being concerned whether the man, if served with a
non-custodial sentence, would beat his wife again. It is not his judicial domain, since
“purple” judges (junior Circuit Court judges) deal with sentencing.
Red judges (High Court judges) do not normally hear cases for sentencing.
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The case has eventually been assigned to judge Hume after it was reduced from section
18 to section 20 of Offences against the Person Act (Section 18: This section creates the
offences of wounding and causing grievous bodily harm, with intent to cause grievous
bodily harm, or to resist arrest. It is punishable with life imprisonment."Whosoever shall
unlawfully and maliciously by any means whatsoever wound or cause any grievous
bodily harm to any person ... with intent ... to do some ... grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or detainer of any
person, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept
in penal servitude for life ..."Charges under this section are, under Crown Prosecution
Service guidance, reserved for crimes with very high intent which caused serious
(potentially life threatening harm) or showed malicious intent and caused really serious
life threatening or life altering harm. Section 20 - This section creates the offences of
wounding and inflicting grievous bodily harm. The CPS guidance prefers this section to
be used instead of section 18 when the harm done was more consequential rather than
intentional, and/or the wounding was less serious. These are therefore less serious than
the offences created by section 18 and carry a maximum prison sentence of 5
years."Inflicting bodily injury, with or without weapon. Whosoever shall unlawfully and
maliciously wound or inflict any grievous bodily harm upon any other person, either
with or without any weapon or instrument, shall be guilty of a misdemeanor, and,
being convicted thereof shall be liable ... to be kept in penal servitude ....".
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Judge Deed is assigned a date rape case, wherewith three defendants have been jointly
charged on the first count of the indictment with rape contrary to section 1, subsection
1of the Sexual Offences Act 1956. The particulars of the case: on 14 February the
defendants had sexual intercourse with Carol Gainer without her consent, and knowing
she did not consent. The defendants pleaded not guilty. On the second count of the
indictment they were charged with administering a stupefying substance royhypnol (a
date rape drug)
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The defence counsel’s strategy is to discredit a victim by presenting her as “an easy
meat”. Medical expert explains the effects of royhypnol on the body. Evidence presented
and contested: the contents of the vagina (blood type O semen), DNA test (no DNA
match with the defendants – perhaps they wore condoms), victim’s testimony
Concurrently with the date rape case, judge Deed will hear the wife beating (pleabargain) case, since judge Hume is involved in a protracted legal argument
Judge Deed wants to know if there are exceptional circumstances why Mr. Abbott
should not go to prison. Mr. Abbott is sorry for what he has done to his wife, and he
blames his drinking problems. The charging officer speaks in favour of the defendant,
stressing his cooperativeness and remorse. However, there are no medical reports to
support the application for acquittal. Judge Deed will adjourn sentencing until he is
provided with some kind of evidence. He needs to have a just cause for non-custodial
sentence.
The story goes back to the date rape case. The victim is giving her testimony. The
defence counsel uses foul language to disqualify the victim and to present her as an easy
catch. However, one of the defendants breaks and spills out the truth.
The wife beater case – Mr. Abbott beat his wife with an iron bar and then poured boiling
water on her crotch, wanting to punish her for being unfaithful. It turns out that Mrs.
Abbott had sporadic fits of infidelity and thus provoked her husband to apply violence. In
spite of all political manoeuvres and pressures against justice Deed’s intentions to turn a
sentencing case into a trial, he is adamant to administer justice and to arrive at an
appropriate sentence. Eventually, judge Deed does not send Mr. Abbott to prison, but to a
mental care centre to have proper medical treatment, and when fully recuperated he can
be integrated into society.
11.00 – 13.00 Video presentation of the date rape and wife beating case.
Questions:
1. What are the principal sources of English law?
2. What are the subsidiary sources of English law?
3. What are the sources of Continental law?
4. What does it mean „written“ law?
5. What are the powers of British Parliament?
6. What is judicial precedent?
7. Explain the doctrine of a binding case.
8. Explain the difference between common law and civil law.
9. Explain the legislative role of an English judge.
10. Explain the defence counsel’s strategy in a date rape case. (Legal Ethics)
11. Explain the effects of royhypnol. (date rape stupefying drug)
12. What is Newton hearing?
13. What is restriction order under Mental Health Act?
14. Rape. Date rape. Marital rape. (Criminal Law)
15. Sentencing hearing. Guilty plea.
16. Plea bargain v. out-of-court settlement. (Criminal Law v. Civil Law)
17. Felony v. misdemeanor. (Criminal Law)
18. Evidence. Biological evidence.
19. Domestic violence.
20. Police informant.