DSC Law Firm

How much scope do the UK courts have for interpreting legislation?

admin — Tue, 01 Jun 2010 08:49:32 +0000

The laws that the courts use when considering cases includes statute law, common law and EU law – all of which are used together in order for a judge or jury to come to a fair and legal decision about the case they are hearing.

Generally speaking the court will firstly apply EU law to the circumstances of the case it is hearing as this takes precedence over UK statute and common law. If EU law is not applicable, statute law will then be considered. If this is relevant and offers a clear and unambiguous ruling, statute law will be used to resolve the case.The courts do have a level of flexibility when they have to consider a case in which EU and statute law are not directly applicable. Common law has developed over time as judges have considered cases and made a decision that provides a precedent in the case before their court. Future judges faced with a similar case can consult previous common law and use any precedent as part of a guide when making their decisions.

This flexibility in court is needed, as the direct and rigid application of EU and statute law may not be fair in the case that is being heard. This is why you sometimes hear that a case that is going through the court will set a new precedent, as common law does not always offer guidance on the case that is being heard. If a precedent does exist, the court generally follows the decisions that were made in the previous case.

This seemingly simple demarcation between EU, statute and common law is in fact more complex than it appears. In addition, the decisions that a court makes can have a bearing on other courts. For instance, a decision that the High Court makes will influence the decisions of lower courts. The courts, when applying the laws that are currently in force, always strive for consistency. The fair interpretation of the legislation that we all live by is a major component of the legal system.

How is the free movement of workers safeguarded under EU law?

admin — Tue, 01 Jun 2010 08:48:59 +0000

One of the fundamental aspects of the EC Treaty in relation to employment law is that any citizens of EU Member States and Swiss Nationals have the right to enter the UK to work as long as they fulfill all current employment law requirements. This right has existed since the European Community was founded in 1957 and has been provided for in various EU treaties and directives.
If you are a citizen of the EEA (European Economic Area) you must live in one of these countries: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.EU law permits these citizens to look for work in any other EEA country without the need to apply for a work permit from the country they are entering. Workers coming to the UK for instance will have the same access to tax and social services that nationals would have.
Article 39 of the EC Treaty gives details of the free movement of workers across the EU and defines the migrant workers that it applies to. In the context of working, the person that comes to the UK must do a recognised job that they are paid for.
If you are self-employed, retired or a student, Article 39 does not apply and therefore does not give you any tax or social rights within the country you are moving to. You can, though, bring members of your family with you whilst you are working. These people will have full access to social services as does any other citizen.
As the EU is constantly enlarging, if you are a citizen of the A8 countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) that have applied to become full members of the EU, you will have to follow the Worker Registration Scheme to work in another Member State. The scheme is administered by the UK Border Agency.
If you need legal advice on your right to work in the UK or another EEA country you should speak to an immigration solicitor.

How does the law punish computer hackers?

admin — Tue, 01 Jun 2010 08:48:08 +0000

Computer hacking and other forms of computer crime can be a very profitable business and has proliferated in recent years with the widespread use of electronic systems and use of the internet. Computer hackers are sometimes referred to as cybercriminals and they can cause a lot of damage to business, individuals and governments.
The main piece of legislation that the courts use to punish computer hacking is the Computer Misuse Act 1990. The Act makes it illegal to break into computer systems and otherwise interfere with their operation through the introduction of computer viruses or other forms of malicious computer code.
You would be deemed a computer hacker under the Act if you used a computer system that you did not have authorisation to log onto. If you break into a computer system with the express intent to cause damage, you could face a six-months prison sentence and/or a maximum fine of £2,000. The Act also gives details of other indictable offences that attract a prison sentence of up to five years.
Hacking can also mean the transferring of computer code such as adware or spyware into a host computer, or the networking together of many computers to form what are called ‘zombie networks’ to launch attacks on other computer systems.
The use of computer systems to send spam emails or launch phishing attacks is also illegal under the Act. Additionally if you break into a computer system and steal data you could also be prosecuted under copyright and intellectual property laws.
The law also recognises that computer hacking can be international in scope. What this means in practice is that extradition treaties now exist between most industrialised nations that enable them to bring suspected computer hackers back to the country affected by the attack in order to stand trial. The recent extradition of Garry McKinnon to the USA for alleged computer hacking of US military and NASA systems shows that nation states will pursue computer hackers across borders to answer for their alleged attacks.
If you have been affected by criminal behavior by a computer hacker, or if you are being investigated or charged with offences under the Act, you should speak to a specialist solicitor in IT law and/or criminal law. A criminal solicitor will be able to represent you in court.

Title: How does the common law develop?

admin — Tue, 01 Jun 2010 08:47:36 +0000

Generally speaking there are two types of laws in the UK. The first is statue law which includes Acts of Parliament – primary legislation – and secondary types of legislation such as rules and regulations. The second is common law – also known as ‘judge-made’ law or ‘case law’ – which is developed by judges as they hear cases and pass judgments on matters before them in court. Common law is necessary as in some cases statute law does not fully cover all aspects of a matter or is unable to adequately and fully guide the judge in the circumstances of the case. In these cases a judge will look at the decisions made by past judges on similar cases to guide their own decision.Common law is also often referred to as ‘precedent law’, as a case that comes before a court will often use a ‘precedent’ that was set by an earlier case as the basis of the argument put before the judge or jury. The decisions that the judge subsequently makes based on the current common law will then bind future judges who hear similar cases. This is to ensure that the law is applied consistently from case-to-case. Common law can develop to become highly complex as it can in some cases be in constant review as cases come before the courts.

A judge has slightly more discretion on how to apply the common law than it does with statute law. It is possible for a judge to distinguish the current case before them and therefore not apply a precedent to it because the judge does not find enough similarity between the case they are hearing at the moment and the precedents put before them. And, if a judge is of sufficient seniority, in a superior court, they may be able to make a new decision which will then create a new precedent that future judges will use; judges of lower seniority do not have this freedom or power.

However, it should be noted that common law is not used in isolation: all decisions consider both statute law and any common law precedents. Where they conflict, any relevant statute law will override any common law that may be relevant. In addition, the UK also incorporates many European laws into its body of law. If a judge finds that an EU law applies to their case, the court must also consider this, and certain provisions will override the statute and common law that may be applicable, but this is a fairly complex situation.

If you need advice on what laws apply to your case you should speak to a solicitor who specialises in the particular area of law. For example, a family law solicitor will be well versed on both the statute law and common law that applies to your family situation.

How does the appeals system work in the UK?

admin — Tue, 01 Jun 2010 08:46:48 +0000

If your case has been heard by the lower courts – consisting of the county and magistrates’ courts – and you think that the court has made the wrong decision, you can potentially go the Court of Appeal and ask for your case to be reassessed. The Court of Appeal of England and Wales can also look closely at how the decision in your case was arrived at.
The Court of Appeal itself is situated in the Royal Courts of Justice in London. The appeal court is divided into two sections. The first is the Civil Division, which hears all appeals for civil cases. The second is the Criminal Division which, as you might expect, hears all appeals for criminal cases. The head of the Civil Division is the Master of the Rolls, with the head of the Criminal Division being the Lord Chief Justice. The appeals court itself is second only to the highest court in the UK – the recently created Supreme Court of the United Kingdom (which has taken over this role from the House of Lords).

In the appeals court you will normally see three judges who sit on a panel and hear the cases of appeal that are put before their court. There are permanent judges that sit in the appeal court, and they are called the Lords Justices of Appeal.

Before you can make an appeal about a case that was originally heard in the county or magistrates’ courts you have to be granted what is called ‘leave’ to appeal your case. A judge is the only person that can grant you this permission.

The court staff your original case may have come into contact with can’t give you help and advice, as they must remain independent and impartial to ensure justice is always fair to all. You can, however, get help about the procedures for making an appeal to either the Criminal or Civil Divisions of the Court of Appeal from the Royal Court of Justice staff. Note they can only give procedural advice and not legal advice about your case, as they are not trained solicitors.

The appeals system in the UK is complicated, and it is worth speaking to a solicitor if you are thinking about appealing a decision.