Portal:Law of England and Wales

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The Law of England and Wales Portal

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States (as opposed to civil law or pluralist systems in use in other countries). It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the legal systems of most of those countries. England and Wales are constituent countries of the United Kingdom; Scotland and Northern Ireland have their own legal systems, although in some areas of law there are no differences between the jurisdictions. Whilst Wales has a devolved Assembly, its power to legislate is limited by the Government of Wales Act 2006.

English law is a mixture of common law, legislation passed by the UK Parliament (or subordinate legislation made under delegated authority) and European law. The essence of common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them. A decision of the highest appeal court in England and Wales, the Supreme Court of the United Kingdom, is binding on every other court in the hierarchy. Common law can be altered by Parliament. The oldest statute currently in force is the Distress Act 1267, part of the Statute of Marlborough. Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are still in force, but they date to the reissuing of the law in 1297. European law applies in England and Wales because the UK is a member of the European Union, and so the European Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation. (more about English law...)

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In English law, causing criminal damage was originally a common law offence. It was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation. As time passed, specific laws were introduced to deal with particular situations as they were judged to require intervention, most particularly alongside the rise of mechanisation and urbanisation during the Industrial Revolution. A number of statutory provisions creating offences of damaging specific types of property were consolidated in 1827, in one of Peel's Acts, and later by the Malicious Damage Act 1861. The modern law of criminal damage is mostly contained in the Criminal Damage Act 1971, which redefines or creates several offences protecting property rights. The Act provides a comprehensive structure covering merely preparatory acts to the most serious offences of arson and causing damage with intent to endanger life. As such, punishments vary from a fixed penalty to life imprisonment, and the court may order payment of compensation to a victim. (more...)

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Judge Norman Birkett at the bench during the Nuremberg Trials
Norman Birkett, 1st Baron Birkett (1883–1962) was a British barrister, politician and judge. Born in Ulverston, Lancashire, he initially trained to be a Methodist preacher, and attended Emmanuel College, Cambridge to study theology and history. He became President of the Cambridge Union, and after switching to law graduated in 1910. He was called to the Bar in 1913 and developed a reputation as a barrister able to defend people with almost watertight criminal cases against them, such as in the second of the Brighton trunk murders and the Blazing Car murder. He sat as a Member of Parliament for Nottingham East in the 1920s, and was described as "the Lord Chancellor that never was". In 1941, he became a judge of the High Court, and later served as the alternate British judge in the Nuremberg Trials. Unhappy with his time in the High Court, he accepted a position in the Court of Appeal in 1950, but after finding he enjoyed it even less, retired in 1956 when he had served long enough to draw a pension. Following his retirement he was made a hereditary peer, and spoke regularly in the House of Lords. After speaking there in 1962 he collapsed at home, and following a failed operation died aged 78. (more...)

Selected case

Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case, was decided in 1610 by the Court of Common Pleas under Sir Edward Coke, the court's Chief Justice. Coke ruled that "in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void". Coke's meaning has been disputed over the years; some interpret his judgment as referring simply to judicial review of statutes to correct misunderstandings which would render them unfair, while others argue he meant that the common law courts have the power to strike down completely those statutes they deem to be repugnant. Whatever Coke's meaning, after an initial period in which the principle was accepted, Bonham's Case was thrown aside in favour of the growing doctrine of Parliamentary sovereignty. It has been criticised in England, but has received a better reaction in the United States, where it was relied upon in the debates about the writs of assistance and Stamp Act 1765. Marbury v. Madison, which forms the basis for the exercise of judicial review in the United States, uses the words "void" and "repugnant", seen as a direct reference to Coke. (more...)

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Frederic William Maitland (1850–1906), Cambridge professor and leading legal historian
Credit: Beatrice Lock
Frederic William Maitland (1850–1906), Cambridge professor and leading legal historian

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The Obscene Publications Act 1959 is an Act of the United Kingdom Parliament that significantly reformed the law related to obscenity. Before the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin, which had no exceptions for artistic merit or the public good. During the 1950s, the Society of Authors recommended reform of the existing law, submitting a draft bill to the Home Office in February 1955. After several failed attempts, a bill was introduced to Parliament by Roy Jenkins and given the Royal Assent on 29 July 1959, coming into force on 29 August 1959. With the committee consisting of both censors and reformers, reform of the law was limited, with several extensions to police powers included in the final version. The Act created a new offence for publishing obscene material, replacing the previous common law offence of obscene libel, and also allows Justices of the Peace to issue warrants for the police to seize such materials. At the same time it created two defences; firstly, the defence of innocent dissemination, and secondly the defence of public good. The Act (which is still in force) has been used in several high-profile cases, such as the trials of Penguin Books for publishing Lady Chatterley's Lover and Oz for the Schoolkids OZ issue, but more recently has been rarely used despite the increasing amount of "obscene" material available to the general public. (more...)

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Bertrand Russell, in Sceptical Essays (1928) "The Recrudescence of Puritanism"

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