Common Law Reasoning and Institution Study Guide

This introduction to the English legal system seeks to convey what is distinctive about the common law approach as a legal methodology as it reflects the history and politics of England and Wales.

The course is vital in initiating students into the process of legal research.

Course aims To achieve an overview of the central institutions and processes of the English legal system and to introduce students to techniques of legal interpretation and legal research.

Learning outcomes On successful completion of the course you should be able to: Understand the structure and operation of the central institutions and processes of the English legal system and to have a basic facility with techniques of legal interpretation Conduct of legal research using primary and secondary resources Understand techniques of legal reasoning covering precedent and statutory interpretation Describe the role of judges; in particular the Law Lords and the Supreme Court Explain the basic structures of civil and criminal justice Understand the role of due Process and the importance of Article 6 (European Convention on Human Rights) in civil and criminal justice Explain the key concepts of legal aid.

Assessment

Formative assessment is conducted through interactive online activities. Summative assessment is through a three hour unseen examination.

Introduction

Common law reasoning and institutions (CLRI) is a foundational subject that gives you an understanding of the basic institutions and structures of the common law. It also introduces you to fundamental skills that are essential to your work as a student of law. These skills relate to legal reasoning, to how you read cases and statutes and to how you use electronic databases and archives. CLRI covers many themes and concepts, which we will introduce to you through this subject guide. We hope that as you read your way through the subject guide and the set textbooks, you will begin to appreciate that there is a set of core themes, and that rather than a mass of detail, there is a ‘logic’ to the subject.

The key thing is: don’t panic. Work slowly and methodically through the materials, and the shape of the subject will slowly reveal itself. At the end of this chapter, we will look at the syllabus for the course. For the moment, though, we will look at how to approach the CLRI course. We will first outline the course then turn to some specific issues. Later in the chapter we will provide a note on the examination and describe how you can get the best use out of the relevant textbooks. The textbooks and the subject guide work hand in hand to develop your thinking on law. We will also give you further tips about how to use the course materials in later chapters.

Common law reasoning and institutions 1 Introduction page 5 1.1 An outline of the CLRI course In our description of the course below, we have divided the syllabus into two parts. This is purely for ease of understanding and overview. It does not reflect the way that the course is examined. Part I consists of Chapters 3–5; Part II consists of Chapters 6–10.

1.2 Part I

Part I of the subject guide focuses on: identifying key features of the common law tradition and the way they have developed within the English legal system the principles of legal research and identifying the sources of law being able to use the legal resources in the online library as well as paper-based resources  becoming familiar with case law, being able to critically read case reports and understand the forms of legal reasoning involved in the development of the common law; being able to make case notes understanding the legal reasoning involved in the application of statute law essay writing and critical thinking. 1.2.1 Legal Research Skills:

Chapter 3 The relevant skills that will be tested via the CLRI examination (directly and indirectly) are set out in Chapter 3 (the examination is described below, and in more detail in Chapters 4 and 5). It is worth concentrating on the key skills specified in Chapter 3 rather than attempting to acquire expertise in all the areas covered in the chapter. 1.2.2 Case noting, reading statutes and essay writing: Chapters 4 and 5 Chapters 4 and 5 are part of a whole: when you have worked your way through these chapters a couple of times, you will appreciate how research skills, case noting skills and essay writing all interface with each other.

Chapter 5 focuses on reading cases and statutes. It builds on the case noting and the comprehension skills introduced in the previous chapter, but also introduces us to reading statutory language and the kind of question that you will encounter in Part C of the examination (see Section 1.5, below).

When you have read through Chapters 4 and 5 you will be moving towards a more sophisticated understanding of how to ‘think like a lawyer’. However, in order to advance in your understanding, you need to combine what you have learnt in the first part of the course with the second part of the course. 1.3 Part II Part II covers the following themes:

the practices of precedent and statutory interpretation the relationship of the common law courts to the European Court of Human Rights

in Strasbourg the issues surrounding the judiciary; the politics of the judiciary and the selection of suitable persons to become judges the criminal justice system in outline, with particular reference to the jury, policing, prisons and sentencing the idea of human rights in the legal system; in particular the importance of Article 6 of the European Convention on Human Rights: the right to a fair trial page 6 University of London International Programmes the normative theory of the civil and criminal trial; in particular the principles of integrity, participation and open justice.

The themes relevant to the second part of the course will be examined through a series of essays that you will write in the examination. It is therefore important to link together your approach to these themes with the essay writing skills that are outlined in Chapter 4. Please also bear in mind that case noting skills are essential to building your understanding of the topics outlined above. Each chapter contains a list of essential cases which you need to read and make case notes on. The title of this course is Common law reasoning and institutions. Our focus is very much on courts, but we will also consider other institutions involved in dispute resolution. However, we use the word institution in a wide sense: an ‘institution’ can refer to a physical place like a court, but it can also refer to ideas and doctrines that give a set of practices (or ‘ways of doing things’) a form and an identity. Furthermore, we are very much concerned with the values that should underlie the law, and we need to understand common law institutions and processes (the processes of criminal and civil justice) from the perspective of fair trial rights. 1.4

Online study resources

In addition to the subject guide and the Essential reading (see below), it is crucial that you take advantage of the study resources that are available online for this course,including the virtual learning environment (VLE) and the Online Library . You can access the VLE, the Online Library and your University of London email account via the Student Portal at:

http://my.londoninternational.ac.uk

On registration you will automatically have been granted access to the VLE, Online

Library and your fully functional University of London email account.

If you have forgotten your login details, please click on the ‘Forgotten your password’

link on the login page.

1.4.1 The VLE

The VLE, which complements this subject guide, has been designed to enhance your

learning experience, providing additional support and a sense of community. It forms

an important part of your study experience with the University of London and you

should access it regularly.

The VLE provides a range of resources for Laws courses:

Online audio presentations – recorded audio lectures which cover most of the

material for the core subjects which are intended to complement your studies.

Latest news and updates – provide information on both the programme and your

courses (e.g. information on how to book the Laws weekend courses).

Student discussion forums – An opportunity to debate and interact with other

students on your course.

Electronic versions of your study materials – to provide you with flexibility in how

and where you study.

Computer marked assessments and exercises – multiple choice questions with

feedback which allow you to test your knowledge and understanding of the key

topics in your course.

Past examination papers and Examiners’ reports – are vital to developing your

examination technique as they provide advice as to how questions might be

answered.Be aware that the format of examinations might change from year to

year. The format of the CLRI examination will change for the session 2013.

Common law reasoning and institutions 1 Introduction page 7

Recent developments– Recent developments are published in February each year

for each course. They cover any significant changes in the law since the publication

of the subject guide which are included in the examinable material, including key

cases or updates on the coming into force of new legislation, plus updates on new

editions of recommended reading.

VLE subject newsletters – Remember to check the VLE for the newsletters from the

University of London. You may also register to have these newsletters sent to you

directly.

Video introductions – There are also video introductions to the Intermediate

courses recorded by the Subject Convenor on the Course webpage as well as at

www.youtube.com/user/UOLIAulp

All of the above resources are available for CLRI and most will be available for our other

courses as well. Check the VLE for the most up to date materials for each course.

1.4.2 Making use of the Online Library

The Online Library contains a huge array of resources including journal articles, case

reports, legislation and newspapers. The specialist legal databases will help you read

widely and extensively.

The Online Library Laws Gateway contains resources and support materials which

are relevant to your course. You can access the Online Library by selecting the Online

Library tab within your portal, or directly at:

www.external.shl.lon.ac.uk/res/subjects/index.php?group=law

To access the majority of resources via the Online Library you will either need to use

your University of London Student Portal login details, or you will be required to

register for, and use, an Athens login:

www.external.shl.lon.ac.uk/contact/index.php

The Online Library Laws Induction Guide introduces you to the extensive resources

and support guides which are provided, and is a good starting point if you are new to

the Online Library:

www.external.shl.lon.ac.uk/interactive/law_induction/page_01.htm

The easiest way to locate relevant journal and newspaper articles in the Online Library

is to use the Summon search engine:

www.external.shl.lon.ac.uk/summon/index.php

For further advice on searching Summon, see the Summon for Law Students guide:

www.external.shl.lon.ac.uk/info_skills/law/search_summon.php

If you have any questions about the Online Library you can contact the Online Library

Enquiry Service. The Enquiry Service is staffed by a team of professional Librarians

Monday to Friday 09.00 – 17.00 GMT.

Contact the Online Library by:

email: [email protected]

Complete the enquiries form: www.external.shl.lon.ac.uk/help/enquiries/index.php

Telephone: +44 (0) 20 7862 8478

1.5 Core textbooks

It is important to familiarise yourself with the core textbooks. The subject guide is your

basic point of reference, and it is important to always start with this guide and the

relevant chapters. The subject guide will point you to the relevant sections in the core

textbooks. The course books are:

page 8 University of London International Programmes

Holland, J.A. and J.S. Webb Learning legal rules. (Oxford: Oxford University Press,

2013) eighth edition [ISBN 9780199657490]. (Referred to as ‘Holland and Webb’

in this guide).

Gearey, A., W. Morrison and R. Jago The politics of the common law. (Oxford:

Routledge, 2013) second edition [ISBN 9780415662369]. (Referred to as ‘Gearey et

al.’ in this guide.)

Different chapters of the subject guide will refer you to different Essential reading

from the books above.

Gearey et al. provides you with critical arguments that will help you write essays. You

are not expected to sit down and read it from cover to cover in a single sitting (unless

you really want to). The book is meant to be digested slowly and worked through as

you work through this subject guide.

Holland and Webb contains a great deal of useful information about the institutions

and structures of the legal system in England and Wales. Gearey et al. is organised

more thematically, and encourages you to think about what you have read in a critical

way.

Familiarise yourself with the basics of the subject using Holland and Webb before

you start reading Gearey et al.. To get the most out of Gearey et al., see it as a way of

developing your thinking. Read the chapters slowly and carefully, make notes on them

and ensure that you link together your reading of the book with the essential cases

detailed in the latter chapters.

It is important to have some basic idea of how Gearey et al. is laid out and the central

arguments that run through it. The first section of Chapter 1 of Gearey et al. outlines

how the argument develops. You might find it useful at this stage to read this section

and makes notes on the structure of the book.

Detailed reading references in this subject guide refer to the editions of the set

textbooks listed above. New editions of one or more of these textbooks may have

been published by the time you study this course. You can use a more recent edition

of any of the books; use the detailed chapter and section headings and the index

to identify relevant readings. Also check the VLE regularly for updated guidance on

readings.

FURTHER READING

Please note that as long as you read the Essential reading you are then free to read

around the subject area in any text, paper or online resource. You will need to support

your learning by reading as widely as possible and by thinking about how these

principles apply in the real world. To help you read extensively, you have the VLE,

Online Library and other legal resources.

Other useful texts for this course include:

Askey, S. and I. McLeod Studying law. (London: Palgrave Macmillan, 2011) [ISBN

9780230302792]. (Referred to as ‘Askey and McLeod’ in this guide.)

Slapper, G. and D. Kelly The English legal system: 2013–2014. (London: Routledge,

2012) fourteenth edition [ISBN 9780415639989].

Cownie, F., A. Bradney and M. Burton The English legal system in context. (Oxford:

Oxford University Press, 2010) fifth edition [ISBN 9780199567409].

Zander, M. The law-making process. (Cambridge: Cambridge University Press,

2004) sixth edition [ISBN 0521609895].

Zander, M. Cases and materials on the English legal system. (Cambridge:

Cambridge University Press, 2007) tenth edition [ISBN 9780521675406].

Common law reasoning and institutions 1 Introduction page 9

1.6 Assessment

Important: the information and advice given here are based on the examination

structure for the session 2013/14. Please note that as from 2013/14 the assessment

for CLRI has changed so materials on the VLE and previous subject guides will not

necessarily be geared towards the current assessment structure. Because of this

we strongly advise you to always check both the current Regulations for relevant

information about the examination, and the VLE. You should also carefully check the

rubric/instructions on the paper you actually sit and follow those instructions.

As the examination is described in more detail in Chapters 4 and 5, the following

note provides a basic overview. Please read this carefully as it is different from the

examination previously set in CLRI.

The examination is divided into three parts: A, B and C. All parts are compulsory. No

materials can be taken into the examination.

Part A requires you to make a case note. The relevant case will be released to you

in October 2013. You will be required to submit the case note through the VLE. The

questions in Part A of the examination will examine your understanding of the case

note. Part A will also contain an unseen extract from a case and questions that test

your comprehension of the case and the issues that it raises. You will not be allowed to

take the case note into the examination.

Part B requires you to answer two out of a choice of questions that are based on

material contained in the last section of Chapter 2 and Chapters 6–10 of the subject

guide.

Part C is based on an extract from a statute. The extract will be released to you at the

same time as the case. Part C of the examination will contain a number of questions

that test your understanding of the statutory extract, in particular, your ability to apply

the relevant law to a series of imaginary facts.

Parts A, B and C carry equal marks.

1.6.1 Preparing for the examination

The best way to prepare for Part A is to complete the activities outlined in Chapters

3 and 4 of this subject guide. Make sure you practice making case notes, and read as

many cases as possible.

The best way to prepare for Part B is to make sure you are familiar with the techniques

of essay writing outlined in Chapter 4 of this subject guide. Be aware that you need

to build up a body of notes on the examined areas. This means reading the relevant

chapters of the subject guide and the textbooks and using the online resources.

Gearey et al. is particularly relevant to this part of the course.

The best way to prepare for Part C is to practice reading statutes, and to ensure you

have worked through the exercises in Gearey et al..

Note: examples of Part A, B and C questions are given in this subject guide. An

Examiners’ report on the previous year’s examinations will be published on the VLE

before you take your examinations, make sure to read this report but bear in mind

that the examination it refers to will be different from the examination you will sit.

The other essential skill that you should practice is writing against the clock. Make sure

that you gain experience of answering unseen questions in a limited time frame.

Remember, it is important to check the VLE for:

up-to-date information on examination and assessment arrangements for this

course

where available, past examination papers and Examiners’ reports for the course

which give advice on how each question might best be answered.

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Summary

This chapter has laid out a basic overview of the course, the relationship between the

subject guide and the textbooks and provided an introduction to the examination. It

is important to realise that you need to work on both the skills detailed in this subject

guide and the substantive areas of the legal system that the course considers. It is also

essential to work on your essay writing skills, and practice writing timed essays. Above

all, work your way slowly and carefully through the subject guide, the textbooks

and the online resources and allow yourself sufficient time to read and digest the

materials.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2.1 Studying the common law . . . . . . . . . . . . . . . . . . . . . . . . .13

2.2 What is the common law? . . . . . . . . . . . . . . . . . . . . . . . . .13

2.3 Acts of Parliament (statutes or legislation) . . . . . . . . . . . . . . . . .14

2.4 Judicial law making and the development of the common law . . . . . .15

2.5 Judicial reasoning and the doctrine of precedent . . . . . . . . . . . . .15

2.6 The Human Rights Act 1998 and European Communities Act 1972 . . . . .15

2.7 Human rights, judges and the rule of law . . . . . . . . . . . . . . . . .16

2.8 Thinking about trials and courts . . . . . . . . . . . . . . . . . . . . . .17

2.9 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

2.10 Article 6, due process and the right to a fair trial . . . . . . . . . . . . . .20

2.11 Histories of the common law . . . . . . . . . . . . . . . . . . . . . . .22

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Am I ready to move on . . . . . . . . . . . . . . . . . . . . . . . . . .25

2 The contemporary legal system in England

and Wales

page 12 University of London International Programmes

Introduction

This chapter introduces the basic ideas and themes that run through the course.

We will look first at cases and statutes as sources of law; a theme that we will place

in its historical context. Our attention will then turn to an outline of judicial law

making and the doctrine of precedent. We will then examine the impact of European

Union (EU) law and European human rights law on common law. The next section

of the chapter will reflect upon the way in which the Human Rights Act 1998 (HRA)

has redefined the relationship of the courts to Parliament, and examine elements

of the doctrine of the rule of law. This section will also examine the idea of law in a

democracy. The latter sections of the chapter will overview essential themes that

relate to courts and trials and a concluding section will outline some themes that

relate to the recent history of the common law.

ESSENTIAL READING

Holland and Webb, Chapter 1 ‘Understanding the law’.

Gearey et al., Chapters 1 ‘Introduction Part I’ and 2 ‘Introduction Part II’.

Common law reasoning and institutions 2 The contemporary legal system in England and Wales page 13

2.1 Studying the common law

The first section of this chapter outlines the main institutions of the common law

that we will study and the contemporary situation of the common law in England and

Wales. Later, we will turn to some historical perspectives.

It is important that you:

know how the hierarchy of courts operates and understand the dynamic nature of

the doctrine of precedent (this will be covered in Chapter 5).

know how the judges and magistrates work (Chapter 8).

are able to read cases and statutes (Chapters 6 and 7).

understand the way the criminal and civil courts operate (Chapters 9 and 10).

For the moment, however, we want you to get an overview of these matters.

The common law is often presented through its history. This makes it difficult

to begin thinking about the common law today, as one has to go back to its

‘beginnings’. In this chapter we will outline the history of the key institutions of the

common law, but our focus is the contemporary situation of the common law.

The contemporary common law cannot be studied in a vacuum. As we will outline

below, there are two significant ‘events’ that we need to take into account:

the point at which the United Kingdom became part of the EU in 1972, and the

enactment of the HRA. This means that the common law is now inseparable from

the law of the EU and the law of international human rights, as defined by the

European Convention on Human Rights (ECHR).

In this chapter, we will also introduce our concerns with courts and trials.

At this stage in our studies we are not concerned with the functions, ends or social

context of the law. We will deal with all these concerns in the latter part of the

subject guide.