Criminal And Civil Liability In English Law

1. Explain the sources of English law. Evaluate to the extent to which you think that legislation is the most important source.

In the UK society must conform to laws created by the English legal system. This assignment explains the four main sources of English law which are Case-law, European Law, Human Rights and Legislation. The assignment then provides evaluation as to the extent that the writer believes legislation is the most important source.

Case-law, (Common law), is used because most modern English Law has not become statutory. Therefore, the courts interpret Acts according to Parliament’s intention, the rules of Statutory Interpretation and apply it to the facts of the matter. This interpretation becomes part of the law.

It has been acknowledged that judges make law in the Court of Appeal and the House of Lords. Lord Browne-Wilkinson in Kleinwort Benson Ltd v. Lincoln City Council [1998] 4 All ER 513, overtly stated ‘The whole of the common law is judge made and only by judicial change in the law is common law kept relevant in a changing world’(Biles,G et al, p60, 2010) . This is evidenced in Re A (Children) [2001] Fam 147.

Moving on to European Law, the UK signed a Treaty in 1957 to become part of the EU in 1973. Treaties are not a source in the English legal system, therefore to incorporate EU legislation in English law, the European Communities Act 1972 was enacted, thus saving Parliament from having to legislate on every occasion. The UK’s membership to the EU is significant in areas such as consumer, employment and commercial law. The European Commission and the Council of European Union create EU Law. There are two types of EU legislation, primary and secondary. Primary legislation is found in the initial treaties. Primary legislation is enforced in all member states, EC institutions and cannot be opposed. Secondary legislation consists of two parts, the Regulation and the Directive. EU Law has superiority over English law as set out by S2(4) European Communities Act 1972.

Another source of law is Human Rights; the Human Rights Act 1998 came into force in October 2000. The European Convention on Human Rights was incorporated in to English law and is enforceable within UK Courts. When Parliament creates legislation they ensure the Bill is compatible with Convention Rights. When considering existing Acts of Parliament, the courts do not have the authority to overthrow Act’s that are not compatible with Convention Rights. Incompatibilities can however; under s. 4 Human Rights Act 1998, be declared by the judges in High Court or a court superior to it. Reform is obtained via fast track legislative procedure exercised by the executive and Parliament as illustrated in A v. Secretary of State for the Home Department [2005] AC 68, [2004] UKHL 56.

The final source of UK Law is legislation. These are Statutes passed by the Queen and Parliament. Legislation creates and amends laws.  A Bill is presented to the House of Commons then the House of Lords. If the Bill receives approval from both parties, the Queen gives Royal Assent to the legislation. Once executed, the Bill becomes an Act of Parliament and is executed in the specific areas or the entire UK, dependant on the Act. There are Public Bills which deal with matters relating to society as a whole, which are government sponsored or Private Bills which deal with matters relating to a specific location or person, these are not government sponsored. Legislation can be codifying or consolidating. Consolidation does not change law and is used where several statutes containing similar themes are brought together into one statute for example, Insolvency Act 1986. Codifying is whereby laws relating to the same theme, already covered by common law, custom and occasionally, statutes are combined into one statute. Codification may change the law the Theft Act 1986 illustrates this.

An Act of Parliament may grant government bodies the authority to create rules and regulations. An Act conferring this authority is termed a parent or enabling Act. Regulations made under this authority are termed delegated or subordinate legislation.

Legislation is an important source of law; however, all the sources are concurrent in governing society. Legislation is by comparison the oldest source, dating back to before Norman times. Statutes have the power to override or change existing case-law, but not vice versa. The only way for amendment of a statute is via introduction of a later statute. Laws are created via legislation however it is case-law that allows them to stay up to date. Parliament is the supreme legislative body; however parliament’s power is not always absolute, since becoming a member of the EU legislation, EU Law can override UK domestic law. Therefore, legislation is an important source as it is made by Parliament and the Queen, however, not any more important than any other source as although legislation provides the framework, the other sources allow for application in society.

(Word count: 800)

2. Explain and discuss the basic distinctions between:

(i) criminal and civil liability, and

(ii) criminal and civil procedure

in relation to the charge by the police and the proposed claim for damages by Stacey which might help your friend Norman understand his situation. In particular, concentrate on the misunderstandings that are apparent from Norman's e-mail and explain to him any relevant points of procedure in criminal and civil cases.

In criminal matters it is termed a prosecution. The prosecution is usually brought by the state. Norman as the defendant would be brought before the Magistrates in the Magistrates’ Court or a Judge and jury in the Crown Court. The objective of criminal law is to punish via imprisonment, fines or a community order. Punishment will not give anyone a direct benefit. Therefore, Stacey as the victim in this case would not receive any benefit for Norman’s punishment for example if a fine was imposed Stacey would not receive that money.

Norman is charged with the offence of Assault occasioning actual bodily harm contrary to offences against the persons Act 1861 section 47. This particular offence is triable either way as an indictable offence. The sanctions that could be imposed for this particular offence are a maximum penalty on indictment of five years' imprisonment and/or a fine not exceeding the statutory maximum. In this particular case the test of recklessness as per R v Cunningham (1957) would be used by the prosecution. There are two elements that have to be satisfied to convict a person and the burden of proof in criminal cases is ‘beyond reasonable doubt’. The elements that have to be satisfied are actus reus which is the action or omission which resulted in the injury, in this case the actus reus is the punch in Stacey’s face which led to her broken jaw. The other element is mens rea which is the guilty mind, the intent to punch Stacey in the face.

A civil matter is termed an action or a claim. The claim is brought by the person who had the tort committed against them who is known as the claimant, against the person who committed the tort, the defendant. The purpose of civil proceedings is for the claimant to obtain redress for the tort committed against them and to put the claimant in the position he or she would have been in should the tort have not been committed. In this case the claimant is Stacey and she is suing Norman (defendant) for the tort of negligence. The usual remedy for this is damages –financial compensation. Civil courts decide a case using the balance of probabilities as a burden of proof.

For Norman to be found liable for negligence Stacey will need to prove that Norman owed her a duty of care, there is a duty of care owed to anyone who can be perceived as a reasonably foreseeable victim. The Court will use the case of Donoghue v. Stevenson [1932] AC 562 and the neighbor principle set down by Lord Atkin’s and approved by Lord Reid in of Home Office v.Dorset Yacht Co. Ltd [1970] AC 1004, to prove whether Norman owed Stacey a duty of care. Stacey will then need to prove that Norman breached that duty of care and that she suffered a loss as a result of his negligence.

However, as there are criminal proceedings in this case, should Norman be prosecuted the onus will be on him to prove he is not liable in civil proceedings not for Stacey to prove that he is. If Norman is found liable in civil law he will have to pay Stacey damages in an amount awarded by court and all reasonable costs incurred by Stacey in bringing the case to court as well as him own costs.

(Word count: 562)