law and ethics...law and ethics session 4 irish legal system online revision bridging course 1)...
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Law and Ethics
Session 4
Irish Legal System
Online Revision Bridging Course
1) Criminal Law, Civil Law
2) Public Law, Private Law
3) Sources of Irish Law
4) Structure and Jurisdiction of the Courts
Contents
2
•Deal with criminal or public wrongs.
•Proceedings are started by the State
(Director of Public Prosecutions)
•Innocent until proven guilty
•Victim has no say
Criminal Law
Civil- deals with civil or private wrongs
Resolution of disputes over the rights and
obligations of individuals dealing with each
other
Main objective to ensure injured party is
compensated
Plaintiff (aggrieved party) sues defendant.
Must be proven on the balance of probabilities
E.g. Contract, Tort, Commercial
Divisions of Law -Criminal and Civil
Civil Law- Remedies
•Award of damages
•Injunction to stop defendant doing something (prohibitory
injunction)
•Injunction to make to defendant do something (mandatory
injunction)
•An order for specific performance
•A refusal of further performance
•Fines
•Imprisonment
•Binding to the peace
•Community service (as alternative to prison)
Criminal Law
-Remedies
•Found in the legal consequences•Some cases indicate the potential for both a criminal and a civil action•Example injured passenger of a taxi driven recklessly.
•Civil – compensation for pain and suffering from injuries•Criminal – Dangerous driving
Distinction between Criminal and Civil Law
Public – governs relations between state
and individual e.g. constitutional law and
criminal law
Private – controls relations between
individuals e.g. contact law, property law
Public Law /Private Law
Sources of Irish Law
10
Sources of Irish Law
•Constitution
•Legislation or Statute Law
•Case Law and Precedent
•EU
•Contains the basic rules of the state
•Regulations for Govt. Institutions,
administration of justice and the division
between the executive legislative and
judicial branches of the State
•States fundamental rights of citizens
•Right to vote, freedom of expression,
freedom of association. Not exhaustive
list of rights.
The Constitution
The Constitution
• Contains the basic rules of the state
– Regulations for Govt. Institutions, administration of justice and the division between the executive legislative and judicial branches of the State
– States fundamental rights of citizens
• Right to vote, freedom of expression, freedom of association. Not exhaustive list of rights.
Twofold effect of ConstitutionLegislation which conflicts constitution is invalid
Obliges the state to protect rights by enacting legislation
McGee V Ireland & The Attorney General (1974)
No more kids, medical grounds, contraception outlawed
Customs impounded it
Supreme Court held right to privacy within marriage
legislation conflicted was thus invalid
•Acts of the Oireachtas. Source of rules and principles in different areas of law.•Has developed piecemeal•Constitution provides that Oireachtas(President + Dáil, and Seanad) primary law making body•Must be not conflict with constitution•Subject to interpretation by Courts
Statute Law
•Primary Legislation - passed directly
•Secondary /Delegated – implemented through
use of statutory instrument by virtue of power
delegated e.g. on A Minister
•E.g. Social Welfare, new Statutory
instrument each year when rates change
Court must ascertain what the intention of the legislation was
Literal Rule – keep strictly to the ordinary meaning of the words. Whitley v Chappell (1868)
Golden Rule - if literal rule would lead to absurd result then literal meaning must be modified. Alder V George (1964)
Mischief Rule – exam the law prior to the legislation to ascertain what defect/mischief it is supposed to remedy. Corkery v Carpenter
Primary laws of EU takes precedence over our
domestic law.
Contained in EU treaties e.g. Treaty of Paris
(1951), Single European Act (1986),
Maastricht Treaty on European Union
(1992)
Secondary laws, regulations directives decisions
EU Law
• EU legislation that is binding in its entirety, and directly applicable on all the
member states
• A Regulation sets down a date for its implementation in the member states –
and the member states need take no further legislative action –
• Regulations are published in the Official Journal of the EU, and they enter into
force on the date specified therein
• – an example would be the EU Liquids Regulation – restricting the amount of
liquids that can be taken into the duty free and flight terminals of all EU
airports
• Sanctions will be enforced at a national level as the Regulation is directly
applicable and enforceable within the member states.
EU Regulations
• This is a guideline/instruction to member states as to how they should
standardise legislation in a particular area (given a particular timeframe in
which to achieve this standardisation)
• A Directive is binding as to the result to be achieved – but is not directly
applicable – the Directive gives the individual member states the choice as
to the form and method of implementation
• In Ireland Directives become part of Irish law through either an act of the
Oireachtas (where it involves a substantive issue) or a statutory instrument
(where it involves more of a technical issue) – the idea embodied in the
Directive is enacted as legislation – but the exact particulars are at the
discretion of the member states
• – examples include the Organisation of Working Time Act 1997, and the
Minimum Wage Act 2000.
EU Directives
•Decisions of Earlier judges are binding on subsequent
courts if shown that case facts are identical or sufficiently
similar.
•Ensures continuity and certainty in Law.
•The Rule of Precedent = decision of higher court
are binding on lower court.•Only core of previous decisions is binding “Ratio
Decidendi”
Case Law and Precedent
•Ratio Decidendi – rationale for the decision
Binding on future judges.
•Obiter dictum – discussions and
observations that do not form the basis for
the court’s decision. NOT BINDING
•May however have persuasive authority
Structure and Jurisdiction
of the Courts
•Lowest court
•Summary offences
•Max – 1 year for a single offence
- 2 years for multiple offences
•Appeal to Circuit Criminal Court
•Appeal on a point of law to the High Court
District Criminal Court
•All indictable offences except murder, rape,
aggravated sexual assault, treason, perjury
•Judge and jury
•Right of appeal not automatic (seek leave to
appeal) and jury
Circuit Criminal Court
Central Criminal Court
•All serious crimes not heard by Circuit
Criminal Court
•Judge and jury
•Right of appeal not automatic
Special Criminal Court
•Reserved for cases involving dangerous
criminals and terrorism
•3 judges, no jury
Court of Appeal
•Appellate Court = application and
interpretation of criminal law
•3 judges, no jury
•Options
•Allow appeal and acquit
•Allow appeal and reduce, vary or
increase the sentence
•Allow appeal and order re-trial
•Dismiss the appeal
Supreme Court
•3 to 5 judges, sometimes up to 7 judges
•Constitutional cases minimum of 5 judges
•Appellate Jurisdiction
•From Court of Appeal on matters of public
importance
•From High Court if a direct appeal to SC is
warranted.
District Court
•Damages in tort and contract where claim is
less the €15,000
•Family law proceedings
•Alcohol licenses
•Landlord and tenant
•Also Small Claims Court (up to €2,000)
Circuit Court
•Contract and tort matters not exceeding €75,000
•Recovery and title of land, equity (trusts)
uncontested divorces.
High Court
•Unlimited monetary jurisdiction
•Tort and contract in relation to larger claims,
company law
•Constitutional and judicial review
•Also Commercial Court, established in 2004 for
efficient dispute resolution in commercial cases
High Court
Commercial Listing
•Claim or counterclaim of not less than €1 million
•Proceedings under the Arbitration Acts (not less
than €1 million)
•Patents, trade marks, copyright, “passing off”
•Suitable appeals or application for judicial
review
•Where judge considers it appropriate
Supreme Court
•Appellate jurisdiction
•Uphold or reverse decisions of lower courts
•Article 26 cases (Bill referred by President
following consultation with the Council of State)
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