ANSWERING A LAW PROBLEM QUESTION F.L.A.C. approach 1. Facts - Who are the parties involved? Separate them out.

- Who have you been asked to advice? - Look at the facts carefully. What legal issues exist on the facts before you? Draw diagrams if it helps. Which issue belongs to which party? 2. Law - What law applies to each issue? - Look to all relevant cases and sections of Acts. - What are the legal elements needed to fulfil that claim? - Make sure you have defined and desribed cases where appropriate. 3. Application - Apply the law to the facts before you - Compare previous cases to your case study Similar? Different? Explain why? - If you are to advise a party, let them know what they need to do or not do or what the other party could do. - Are all of the legal elements satisfied? 4. Conclusion - What will be the outcome of the - Summarize the issues again.

THE ENGLISH LEGAL SYSTEM Concepts The UK consists of England, Wales, Scotland and Northern Ireland. There is no single legal system within all these areas and the English legal system applies to only England and Wales. This arose mainly because of historical reasons. History Before 1066, the legal system was based on a variety of customs and beliefs. Following the Norman conquest, William the conqueror introduced a royal legal system which was successfully used in Normandy. Common Law & Equity By the 13th century, a system of courts, judges and procedures was in place. But in many instances these procedures and laws were too rigid often leading to unfairness. This resulted in the development of the court of Chancery, dispensing rules of equity. Eventually both systems were merged as one. Common Law & Civil Law The Common Law broadly refers to the laws and customs applied by the Royal Courts after 1066. This System differs from the Civil Law systems that were dominant in the European continent. Characteristics of the Common Law system The courts used a writ system. Decisions of the courts were recorded and published. An adversarial system. There are distinct procedural processes that are different. Characteristics of the Common Law system Training of lawyers shaped by practitioners with a combination of barristers and solicitors and with judges selected from the profession.

dispute?

Use of the facts - Always read the facts very carefully Use them to argue both sides Compare them to previous decisions: are they different or similar? - Q Would issues in the exam/assignment problem be decided in the same way as previous cases? Use of cases Explain, briefly, the cases raised and how each case can be applied or distinguished on the facts in front of you. Explain your choice of cases - Use of Headings - Use headings throughout your answer Headings help to break down the question Plan and structure your answer before writing

The English common law system is an open system in which judicial interpretation of the law is important. Common Law & Statute Law The common law remains court derived whereas statute law is derived from Acts passed by Parliament. Today, an increasing amount of legislation is passed covering a wide range of matters. These developments reflect corresponding changes in society. LEGISLATION AND INTERPRETION A draft law takes the form of a parliamentary bill and must go through the necessary stages in both Houses of Parliament. The Bill then becomes an Act and enters into force on the day the Bill receives the Royal Assent. Why are new laws needed? Established principles are interpreted, clarified or reapplied to meet new circumstances by the courts. Old laws may become outdated. The Government may also wish to introduce new laws in line with its policies or to ensure that the Malaysia complies with International Law. Who is consulted about changes to the law? Professional bodies, voluntary organisations, academics, interests groups and sometimes non-governmental organisations. Types of Bill Public Bills - change the general law and is normally introduced by the government. Private Bills - These are proposals for legislation affecting the powers of particular bodies, such as local authorities, or the rights of individuals Private Members Bill - Bills brought in by other members of Parliament

This delegation is subject to control. Interpretation of Legislation 1) 2) 3) 4) 5) Why do we need to interpret legislation?

Implied words or phrases. Broad words used. Ambiguous words. Unforeseeable developments. Errors.

The rules of statutory interpretation 1. The Mischief Rule The mischief rule is contained in Heydon's Case. The function of the judge is to make such construction as shall suppress the mischief and advance the remedy. An example of the mischief rule in use is: Smith v Hughes [1960] 2 All E.R. 859, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street." The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes. 2. The Literal Rule The eighteenth and nineteenth centuries saw a trend towards a more literal approach. Courts took an increasingly strict view of the words of a statute. Whiteley v. Chappel (1868; LR 4 QB 147), the court came to the reluctant conclusion that Whiteley could not be convicted of impersonating "any person entitled to vote" at an election, because the person he impersonated was dead. Using a literal construction of the relevant statutory provision, the deceased was not "a person entitled to vote." 3. The Golden Rule Some judges have suggested that a court may depart from the ordinary meaning where that would lead to absurdity.

Delegated Legislation In order to reduce pressure on parliamentary time, Acts of Parliament often give government ministers or other authorities the power to regulate administrative details by means of 'delegated' or secondary legislation.

In Sigsworth, Re, Bedford v Bedford (1935; Ch 89) the court held that no one should profit from a crime, and so used the Golden rule to prevent an undesirable result, even though there was only one meaning of the word "issue". The facts of this case are often misreported; a son murdered his mother and committed suicide. The courts were required to rule on who then inherited the estate, the mother's family, or the son's descendants. There was never a question of the son profiting from his crime, but as the outcome would have been binding on lower courts in the future, the court found in favour of the mother's family. Sir Rupert Cross, Statutory Interpretation (3rd ed, 1995), suggested a unified "contextual" approach. Reference is now frequently made by judges to the concept of "purposive" statutory construction, i.e one that will "promote the general legislative purpose underlying the provisions" In Pepper (Inspector of Taxes) v Hart [1993] AC 593, Lord Browne-Wilkinson referred to "the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature". However, a purposive interpretation may only be adopted if judges "can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy" (per Lord Scarman in R v Barnet LBC [1983] 2 AC 309). Other aids Rules of language Internal aids to interpretation External aids to interpretation Presumptions

R. v. Lynch (1966) 50 Cr. App. R. 59 The usual form in criminal cases: the Crown v the defendant. R stands for Rex (the King) or Regina (the Queen). In some reports this is abbreviated to Rex or Reg. This case would normally be referred to in speech as the Crown against Lynch, or just Lynch. In general terms, Malaysian cases are reported in the same manner. Of course the name of law reports may differ and so to would the manner in which we label our courts. The most often cited law report is the Malayan Law Journal or MLJ. So for example a case may be cited as Ramasamy v Ahmad (1987) 2 MLJ 47.

Questions to consider In interpreting statutes do judges engage in law making? Can they do so? What are the consequences if they do?

HOW TO INTERPRET CASE CITATIONS Johnson v Phillips [1975] 3 All ER 682 This is the usual form in civil cases: claimant (plaintiff) v defendant "v" stands for versus or against, but the case is normally referred to in speech as Johnson and Phillips.