Legal English and the Common Law

Legal English and the Common Law

LEGAL ENGLISH AND THE COMMON LAW AY 2017/2018 Universit degli Studi di Roma Tor Vergata Dipartimenti di Diritto Privato e di Diritto Pubblico Prof. Paola Lucantoni THE LANGUAGES OF CRIMINAL LAW AND CIVIL LAW THE LANGUAGE OF CRIMINAL LAW. INTRODUCTION TO STUDY Important functions of the criminal law are: prevention and deterrence, to prevent crime and deter criminal behaviour;

protection, to maintain order and protect the public; retribution and rehabilitation, to punish and to reform offenders. In the criminal process, the State prosecutes, convicts and punishes people for behaviour which is against the law. CRIMINAL PROSECUTION Prosecution or prosecuting means taking criminal action (also called criminal proceedings) against a person accused of committing a crime. The prosecutor, or public prosecutor, is often referred to as the prosecution in a criminal case. The defendant, also called the accused, as represented by his or her defence lawyer, may be referred to in the context of a criminal proceeding as the defence. In England and Wales, the Crown Prosecution Service is the Government Department responsible for prosecuting criminal cases investigated by the police. CRIMINAL TRIAL AND CONVICTION

A typical feature of common law countries is the adversarial system of trial, in both criminal and civil cases, it contrasts with the inquisitorial system. The witnesses play a fundamental part in adversarial trials, since the dispute is centred around the oral proceedings; in fact, judgment is generally pronounced directly in court at the end of the hearings. A contested trial in the Crown is a trial before a judge and a jury, it is one where the defendant pleads not guilty, that is, declares, on indictment. In uncontested cases, there is no dispute as to guilt, because the defendant admits the charges and pleads guilty, or because the prosecution case is withdrawn before the full trial begins. CRIMINAL TRIAL AND CONVICTION The role of the jury in serious criminal cases is central in the English legal system and, sometimes, juries are still used in civil cases, but it is the exception. In a trial by jury, it decides the factual circumstances (the facts), this includes not only what happened in physical terms, but also the defendants state of mind.

At the end of the trial, having heard all the evidence, the jury retires to deliberate, and reach a verdict: guilty or not guilty. The deliberation of the jury is secret. The judge presides over the trial; he or she is responsible for the law. Before the jury retires to consider its verdict, the judge directs the jury, in his summing-up, that is, gives the jury directions about how to arrive at their decision, using what standards and criteria. The jurors, the members of the juris, are chosen at random from the adult population between 18 and 70, with very few limits, and no particular qualifications are required; a jury is a random selection of ordinary people. Jury service is a civic duty (one cannot refuse, without valid justification, if called for jury service) and trial by jury is considered a right for a criminal defendant, in more serious cases. BASIC PRINCIPLES OF CRIMINAL LAW Nullum crimen sine lege: it is the fundamental principle of non-retroactivity. There is no crime without law, or except by law. All crimes must be provided by law and behaviour that is immoral, bad or antisocial is not criminal, unless it falls into a category of crime as defined and

established by the law. Further crimes cannot be created with retroactive effect. Nulla poena sine lege: correspondingly there can be no punishment except in accordance with law. Violenti non fit iniuria: there may be no injury (harm or damage) to a willing person. In the law of torts, this may provide a defence to a claim for damages where the injured party voluntary accepted the risk of harm (e.g. by participating in a dangerous sport). But the application of the maxim is restricted to civil law - no person can license another to commit a crime; it is also restricted to willing acceptance (volenti) not mere knowledge of risk (scienti). THE ELEMENTS OF A CRIME. ACTUS NON FACIT REUM NISI MENS SIT REA The elements of a crime are two: i. ii. actus reus, it refers to the concrete elements of the crime - the behaviour and results which the particular

offence requires (e.g. for homicide the actus reus consists of unlawfully causing the death of another person; mens rea (sometimes transposed into the English expression guilty mind), it refers to the mental component of the crime - the state of mind of the person accused, which is a necessary element of the offence. Intention is one of the main forms of the mens rea. It is not the same as motive, which refers to a persons reason for doing something. A person is assumed to intend the inevitable consequences of his act; where the consequences are only probable, or natural, the jury must decide whether the defendant did in fact intend the consequences. Recklessness is another form of mens rea: less than intention and more than negligence. Recklessness means taking an unjustifiable risk, but the defendant must also foresee the risk of his actions, and proceed in any case, not caring about the consequences. Malice indicates evil motive or ill-will and is the mens rea for some non-fatal offences against the person (in civil law, it is a constituent of certain torts Note that the meaning of intention, recklessness and so on, and the tests and parameters for determining whether a defendant had a particular state of mind, have been developed by the courts. The idea of culpability: a person should be punished for breaking the law where he is to blame for his behaviour.

THE LANGUAGE OF CIVIL LAW THE LAW OF TORTS, THE ENGLISH JUDGMENT AND COMMON LAW METHOD Lord Atkin, in the famous passage from the civil case of Donoghue v Stevenson, reflects on the nature of the relation between law and morals. He pronounces a grand principle of the common law in eloquent terms, inspired by the Bible; the neighbour principle is a basic tenet of the modern law of negligence, the most important tort in the common law world, today. In law of torts we meet the basic language of private law and civil proceedings as well as the language and concepts specific to tort: the branch of law concerning civil wrongs. The legal question disputed in this case concerns a fundamental component of the tort of negligence: the duty of care. Specifically, this precedent, for the first time, recognised legal rights to consumers of manufactured products independent of contract. However, the decision of the House of Lords was also fundamental in initiating the expansion of the tort of negligence, making it possible for English civil law to keep pace with developments in modern city. PART ONE - TERMINOLOGY FOCUS

Two of the major branches of private law in the English legal system are: the law of contract (also called contract or contract law); the law of torts (also called tort, tort law or the law of tort). The function of contract law is to make sure that a person who The law of torts compensates victims for damage suffered; is receives a promise (the promisee) enjoys the benefit of the bargain. concerned with: non-contractual liability: that is, legal responsability (liability) based on a legal duty towards another person that does not Contract law vindicates (reaffirms, gives force to) just one interest, derive from a contractual obligation, but is an obligation that of having promises of others performed. imposed by the law independently of the will of the parties, in order to protect certain legitimate interests of individuals in society;

w, it is Obviously, in English la in both tort possible to make a claim of the and contract on the basis claimant same facts, although the twice. cannot recover damages the protection of fundamental human interests: in society, one persons conduct (consisting of acts and omissions) may cause harm (damage or injury) to another persons interests. Tort law vindicates many interests: interests in personal security,

reputation or dignity, as in actions for assault, personal injuries and defamation; interests in property, as in actions for trespass and conversion; or interests in unimpaired with others, as in causing injury or death to relatives. FUNCTIONS AND REMEDIES IN LAW OF TORTS An important aim of tort law is to redistribute loss in society in a fair way. The relief or redress (remedy) is granted to the injured party by the court, and must be paid or performed by the tortfeasor. In most tort actions, the claimant seeks damages: the function is primarily compensatory or reparatory. The purpose of damages in tort is to put the injured party in the position he would have been in, if the tort had not been committed; in contract, the purpose is to put the innocent party in the position he would have been in if the contract had been performed. FOCUS ON DAMAGES AND INJUNCTIONS The traditional saying no right without a remedy shows the close link seen between rights and remedies. DAMAGES

INJUNCTIONS - a common law remedy; - an equitable remedy; - available as of right: this means that a successful claimant will always be granted an award of damages, even if the quantum of damages is very small; - available at the discretion of the judges (it is discretionary remedy). ACTIONS IN TORT: TRESPASS AND NEGLIGENCE In the case Letang v. Cooper, the defendant, who was driving his car, ran over her legs, causing injury. The injured

party is the plaintiff, Mrs Letang; the tortfeasor is the defendant, Mr Cooper. The important procedural aspect is that the plaintiff sued the defendant more than 3 years after the accident. The plaintiffs claim is based on (1) the tort of negligence; and (2) the tort of trespass, specifically trespass to the person. At first instance, Mrs Letang won the case. The judge held that the action for trespass was not statute barred and he ordered the defendant to compensate the plaintiff by patment of a sum of damages. However, the Court of Appeal rejects her claim: the defendants appeal is allowed and the action is dismissed. It considered 2 different torts in relation to the same set of facts: trespass and negligence. THE TORT OF NEGLIGENCE THE TORT OF TRESPASS (to the person, to goods, to land) The elements are: the existence of a legal duty to take care (a duty of care); breach of the duty (consisting of failing to exercise reasonable care); damage suffered by the injured party and caused by the breach

of the duty (and so inflicted on herpersonal injuries). An action in trespass may be brought for any unlawful injury to the plaintiffs person, property, or rights, involving immediate force or violence. Or, as in this case, it may be to the person: trespass to the person includes battery (involving actual physical contact) and assault and also false imprisonment. A trespass is a class of tort that is actionable even without proof of damage: this means that the courts will provide a remedy purely for interference with the right. The standard of care imposed by the law is reasonable care, that is comparable to the bonus pater familiae of Roman law systems. PART TWO - THE COMMON LAW METHOD

THE JUDICIAL PRECEDENT It is a primary source of English law, also known by the names case law, common law and judicial decision. Precedent is the body of legal principles formulated and developed by the English superior courts over the centuries as they have resolved disputes case by case. In the common law system, it is not possible for a lawyer to argue and win a case in court without reference to precedent; this is true even where the case involves legislation, the other primary source of law, since the doctrine of binding precedent also applies to statutory interpretation. The text of judgments in significant cases have been published in the law reports. It is agreed that without the accurate reporting of judgments, published in the law reports, a legal system based on precedent could not work. STARE DECISIS: THE DOCTRINE OF BINDING PRECEDENT The principle that distinguishes the common law legal system is that judges are under a legal obligation to follow precedent.

It is the status of precedent as a primary source of law that is the keystone of the English legal system and by derivation of the common law family of legal systems operating throughout the world today. A judge deciding a later, similar case (one with the similar facts to the precedent) must apply the same principles previously established by the courts, depending on the relative position of each court n the hierarchy. A judicial precedent is not merely persuasive in a later similar case, it is binding: the later court is bound to follow precedent; the later court is bound by the earlier court. The judge therefore enjoys a central role in the common law legal system, not only as arbiter, but also as a type of law-maker: the English judge is not usually described as a legislator. The judges power is specific: to decide the issue before the court. If no legislation exists to regulate the dispute and there is no precedent for the case, because it presents new or different facts (so called case of first impression), the judge pronounces a new rule in resolving the dispute. The new rule will become part of the body of precedent, to be applied by the courts in later, similar cases. Courts, however, do not exercise their power arbitrarily, the judges operate within a controlled framework of established rules and practices. FOLLOWING PRECEDENT:

THE RATIO DECIDENDI AND THE HIERARCHY OF THE ENGLISH COURTS In common law legal systems the courts are organised in a strictly hierarchical structure. In the English legal system, only the superior courts can create binding precedent: it is created in appeal cases, not cases heard at first instance. Each court must follow precedent according to its position in the hierarchy. The general rule is that a court is bound to follow any precedent decided by a court above it in the hierarchy, and appellate courts (except the Supreme Court, or previously, the House of Lords) are bound by their own previous decisions. In the first case, precedent has vertical effect on the courts below; in the second one, it has horizontal effect. The part of the case which operates as binding precedent is the ratio decidendi: it is the principle on which the case was decided, that is the decision on the legal question in dispute before the court (the issue). Any other statement of law by the judge is not part of the ratio, but is an obiter dictum.

PRECEDENT FROM THE AMERICAN PERSPECTIVE The United States is a federal state: it therefore has different levels of judicial organisations. Each state has his own court structure, organised hierarchically, and in addition there are the federal courts, with the Supreme Court of the United States at the top of the hierarchy: it is the highest appellate court in the federal court system. The judges of the Court, called Justices of the Supreme Court, are nominated by the President of the United States, with the advice and consent of the Senate. In most US states, the highest appellate court is called the supreme court, the court of last resort or final court of appeal. KEY ELEMENTS IN THE JUDGMENT The parties: the identity of the parties to the case The facts: the material facts on which the dispute is based The dispute: the legal basis for the claim or trial (e.g. breach of contract, tort of negligence, or in a criminal case the charge). The issue(s): the legal question(s) that the court must resolve in order to decide the dispute

The law: the applicable provisions of national and/or EU legislation; the relevant common law and principles, based on the precedents. The reasoning: the judges elaboration of legal principle in relation to the facts of the case, involving a reasoned discussion of the relevant legal sources (legislation and precedent) The decision: what decision did the court reach on each issue in the case? Consequently, which party won? PART THREE UNDERSTANDING CASE LAW In the case of Donoghue v Stevenson, it is about the plaintiff, Mrs Donoghue went to a caf with a friend, who had bought her a drink of ginger beer. She had poured some of the drink into a glass and consumed it. After drinking most of it, she found a decomposed snail inside the bottle while she drinking the ginger beer. After that, Mrs Donoghue became unwell and ill. So, she decided to sue the manufacturer of the ginger beer who is the defendant. The case concerns in particular the tort of negligence, the duty of care and the rights of consumers of manufactured products.

Task 12: Reading and understanding an English civil judgment 1. Try to understand the story of the case: Who are the people involved? What happened? What is the nature of the dispute? What important questions are before the court? You will not understand everything. Focus on your task of reply the questions above. 2. Focus on the central legal elements of the judgment in detail. When reading for detail, consult your dictionaries as necessary, but be selective: which words do you need to understand? THE RULES OF PRECEDENT

The rule was changed in the interests of justice and to permit the proper development of the law; thi introduced greater flexibility into the system; but it is important to note that the House of Lords considers its own precedents normally binding and the power to change previously decided rules of the common law is very rarely used. With this limited exception, the system of precedent in English law has both vertical and horizontal effect: a precedent is binding in later similar cases both vertical on the courts below and horizontally on courts of the same level. In Donoghue, Lord Atkin referred to an American precedent in the following passage. It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J. in MacPherson v. Buick Motor Co. in the New York Court of Appeals (217 N. Y. 382.), in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own the American decision would undoubtedly lead to a decision in favour of the pursuer in the present case.

Lord Atkin is pleased to remark that the question had already been decided in American law. In line with his own view: liability for negligence had been imposed on the manufactured in a case against Buick Motor Company. THE RATIO DECIDENDI To interpret a judgment as law in the common law legal system, it is necessary to determine which part of the judgment is binding in later similar cases. Determining the ratio decidendi of a case requires a process of reading and interpretation of the language used by the judges. There is no precise formula that we can use, and no part of the judgment text is specifically identified as containing the ratio, so it not an easy task. In Donoghue, Lord Atkin begins his opinion by stating the issue before the Court: My Lords, the sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has

occupied your Lordships in your judicial capacity He concluded: If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care. Donoghue establishes the rule of law that in the specific circumstances stated, a duty of care is owed by the manufacturer to the ultimate consumer to take reasonable care not to injure the consumer. What was the dual impact of Donoghue on

English law? Firstly, the decision in Donoghue was the origin of modern products liability: that is, the liability of manufacturers and other persons for damage caused by defective products. The second, and even greater impact of Donoghue was produced by the application of the neighbour principle in later case law: it has been treated as a general test, applicable in any circumstances, of when one person owes a legal duty in the tort of negligence to another: it is used to measure civil liability for negligence. Naturally, since Donoghue, the law has continued to develop and change. However, the neighbour principle, with its objective standard of reasonable foreseeability of injury, remins at the base of establishing the duty of care. THE MODERN THREE-STAGE DUTY OF CARE TEST The basic test for duty of care is now summarised by Caparo Industries v Dickman. Previous case precedent should be used if it is relevant, but if there is no precedent then three stage test should be adopted: 1) Was the loss to the claimant foreseeable?

2) Was there sufficient proximity between the parties? 3) Is it fair, just and reasonable to impose a duty of care? In Caparo v Dickman the loss suffered was economic due to a negligent statement. The House of Lords held that while it is probable that investors may use published accounts to make decisions, the accountants who created the accounts would not be liable for losses as a result of the accounts being incorrect. This is because there is not enough proximity between the accountants and those who rely on them. ENGLISH JUDICIAL REASONING: DEVELOPING COMMON LAW PRINCIPLES It is possible to identify three stages in judicial reasoning by analogy used when the English courts are deciding whether to apply a precedent: analogy is uses in stages 1 and 3 of this process. Stage 1: The perception of relevant likenesses between the previous case and the instant case; Stage 2: The determination of the ratio decidendi of the previous case; Stage 3: The decision to apply that ratio to the instant case: (a) the facts may be so close as to require application of the ratio (b) the facts may be sufficiently close as to justify application of the ratio if the judge so wishes.

FOUR CASES AFTER DONOGHUE 1: Farr v Butters - This case considered the issue of negligence and contains a qualification to the duty of care in relation to defective products when there is an opportunity for examination of the goods prior to use. 2: Grant v The Australian Knitting Mills - This case considered the issue of negligent product liability and whether or not a clothing manufacturer was responsible for the injury sustained by a consumer when first wearing their clothing. 3: Otto and Otto v Bolton Norris This case was distinguished from Donoghue because 2 different classes of property were involved: in Donoghue, a chattel (personal property); in Otto and Otto, a building (real property). 4: Haseldine v Daw - This case considered the occupiers' liability and discharge of occupiers' liability through contracting. [The claimant in this case was injured by a faulty lift which had been surveyed by a group of technicians a week before the accident, and was seen to be in perfect order. The claimant purported to sue the owner of the building. The court held that the technical and specialist nature of lift maintenance meant that the quality of the survey was not something that the occupiers could reasonably be expected to verify. Hence the occupiers were not liable.]

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