The English Legal · High Courts The Court System Queen’s Bench Division Deals mainly with...

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The

English

Legal

System

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© TPS 2013

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Criminal and Civil Law

The Court System

Who Makes The Law?

The English Legal System

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Criminal and Civil Law

Law in England and Wales is divided into two distinct types:

CRIMINAL LAW

CIVIL LAW

The prosecution must prove the facts BEYOND REASONABLE DOUBT

It is sufficient that the facts are proved on

THE BALANCE OF PROBABILITIES

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Criminal and Civil Law - continued

We say that there is a higher burden of proof in a Criminal Court than there is in a Civil Court.

This means that there must be absolute certainty in the verdict of a criminal court (as much as that is possible).

The two types of law exist for two very different purposes.

They also have different rules of procedure.

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Civil Law

The purpose of Civil Law is to regulate the rights of people when they deal with each other.

If you refuse to pay a bill or provide faulty goods, these will be civil matters.

Criminal LawThe state usually prosecutes criminal law cases.

The victim will not usually benefit from the prosecution financially as fines are paid to the state.

You would be tried for assault in a criminal court.

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Can you sort these phrases about the two systems into the correct categories? Do they relate to Criminal or Civil Courts? You can check your answers by clicking on the appropriate button.

A case of assault would be tried in a

Criminal court

Civil court

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In this court, I could sue a driver for damages

Criminal Court

Civil Court

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I could settle a dispute in this court.

Criminal Court

Civil Court

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A case of treason would be tried in this court.

Criminal Court

Civil Court

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Breach of contract would be tried in this court.

Criminal Court

Civil Court

Breach of contract means breaking a contract. If you agreed to pay me £1,000 if I supply you with 10,000 kg of bananas but in fact I only give you 9,000 kg, this would be a breach of contract.

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A case must be proven “beyond reasonable doubt” in a

Criminal Court

Civil Court

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A case in which a person’s rights are infringed would be heard in a

Criminal Court

Civil Court

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Fines are payable to the state in this court.

Criminal Court

Civil Court

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A case for murder would be tried in this court.

Criminal Court

Civil Court

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The general purpose of this court is to impose an appropriate settlement.

Criminal Court

Civil Court

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Correct. It is the Criminal Court - well done!

Click on the button to go to the next question.

or

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Correct. It is the Civil court - well done!


or

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No. It is the Criminal Court!


or

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No. It is the Civil Court!


or

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The Court SystemThere is a hierarchical system within the structure of the courts.

A case heard at a lower level can appeal to a higher court on a point of law.

The House of Lords

The House of Lords is the highest court in the land.

It is really the “Judicial Committee of the House of Lords” that is the highest court of appeal for England, Scotland, Wales and Northern Ireland.It hears appeals from both civil and criminal cases. It usually sits as a court of 5 judges and a majority decision is sufficient.

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The Court System

The European Court of Justice.The European Court of Justice sits in Luxembourg.

Each of the E.U.’s member states supplies one judge.

Its function is twofold:

1. To consider legal matters arising from acts or omissions of member states

2. To make rulings on legal issues affecting persons which arise from EU law.

This second function means that the European Court of Justice can direct the House of Lords Judicial Committee on the meaning of a particular part of EU law. The English court must then apply the ruling to that case.

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The Court System

Magistrates CourtsThe magistrates court deals with both civil and criminal law.

2 or 3 magistrates (lay people) sit in the court (there is no jury). Most major towns have a magistrates court. For example, there are 13 in Lancashire.Criminal casesA) They can conduct committal proceedings - a primary investigation. If the magistrates are satisfied, they can commit the defendant for trial in the Crown Court.

B) They try summarily, minor offences if the defendant agrees. Sentencing is limited to 6 months in prison or fines up to £1,000 or they can commit the defendant to a Crown Court for a higher sentence.

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The Court System

Magistrates CourtsCivil cases

Magistrates jurisdiction includes:

• domestic proceedings for separation and divorce

• custody of children

• enforcement of local authority rates

• various types of licensing enforcement

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The Court System

County CourtsCounty Courts only deal with civil law.

There is no jury in a County Court, the case being heard by a circuit judge (e.g. a barrister of at least 10 years standing)

They deal mainly with cases that involve small amounts of money (e.g. contracts up to £5,000) and undefended matrimonial cases.

The majority of the civil actions are dealt with in County Courts. There are over 1.5 million actions commenced a year and in excess of 2/3 rds of these are for debt.

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The Court System

Crown CourtsProbably the most famous Crown Court is “The Old Bailey” in London. “The Old Bailey” is the central criminal court.

Crown courts try mainly criminal cases with a judge and a jury.

The powers of the court depend upon the status of the judge.

The most serious offences are tried by High Court Judges.

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High Courts

The Court System

The High Court can deal with any civil matter. A senior judge can sit alone to try the cases that are being heard for the first time. However, two or more judges will sit to hear appeals from Magistrates Courts, Crown Courts and County Courts.

The High Courts are divided into three divisions:

•Queen’s Bench Division

•Chancery Division

•Family Division

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High Courts

The Court System

Queen’s Bench Division

Deals mainly with contract and tort (wrongs done to people in civil law).

It contains a division specialising in insurance claims and other commercial cases known as the Commercial Division.

Another division called the Admiralty Court deals with shipping matters such as salvage rights and collisions at sea.

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High Courts

The Court System

Chancery Division

In London this court deals with bankruptcy but this is dealt with by the County Courts outside London.

Mortgages, trusts, disputed wills and the like are its main dealings.

There is a separate Companies Court within the division to deal with company proceedings such as liquidations.

Family Division

As the name suggests, this division deals with family cases such as contested divorces, family property and children.

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Court of Appeal

The Court System

Civil Division Criminal Division

Hears appeals from High Courts, County Courts and various tribunals.

Three judges review the record of evidence and legal arguments put before it.

A majority decision is sufficient.

Hears appeals from Crown Courts.Three judges review the record of evidence and legal arguments put before it.A majority decision is sufficient.Can be instructed to review a case by the Home Secretary or a point of law by the Attorney General.

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The Court System

Appeals

The High Courts of Justice hear appeals as follows:

Chancery Division - from the County Courts

Family Division - from the County Courts and Magistrates Courts

Queen’s Bench Division - from the Magistrates Courts

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The Court System

Appeals

The Courts of Appeal hear appeals as follows:

Civil Division - from the High Court of Justice and sometimes directly from County Courts

Criminal Division - from the High Court of Justice and the Crown Court

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The Court System

Appeals

The House of Lords hears appeals as follows:

From the Chancery division of the High Court of Justice by the “Leapfrog” procedure

From the Court of Appeal

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Who Makes The Law?

The law in England has evolved over the last thousand years or so. Its roots go back even further to local laws that were practised in the time of the Norman conquest in 1066.

Unlike many other Western countries, the roots of our legal system are not based on Roman law.

The system of law that exists in England has been absorbed greatly into the law of Commonwealth countries and the United States of America.

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Who Makes The Law?The law in England has four legal sources:

Judicial Precedent - Judge made law

Legislation (Statute Law) - made by government

EU Law - made by the EU

Custom - has been so for time immemorial

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Who Makes The Law?

Judicial PrecedentIt seems fair that the law should be applied equally in all courts by all judges at all times and it was in an attempt to achieve this that Judicial Precedent evolved.

Essentially, a judge will look at what judges have done before in similar circumstances in order to come to a decision.

There is a whole body of “case law” that the judge can refer to. Case law is a record of decisions of cases in higher courts that have already been applied.

Once a matter of principle has been established in a higher court, it becomes precedent and must be followed.

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Who Makes The Law?

Judicial Precedent

It should be noted that there are three rules upon which Judicial Precedent relies:

•There must be reliable and adequate reports upon the earlier decisions

•Simple rules must exist to apply the decision to the case

•It must be clear if a precedent is merely persuasive or binding

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Who Makes The Law?

Judicial PrecedentJudicial Precedent encompasses two older sources of law called Common Law and Equity.

Common Law was built up over the years as commissioners travelled the country, trying cases, and building on local laws to build up a coherent set of laws to be applied uniformly across the country.Equity was introduced later to impose a just solution to problems.

Even today, following a decision by the King in 1615, equity will always prevail if there is a conflict between Equity and Common Law.

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Who Makes The Law?Legislation (Statute Law) - made by government

Prior to Britain’s entry into the EU in 1973, the UK parliament’s law-making ability was unfettered. This meant that:

No one parliament could bind another - force it to follow a statute (law)A parliament could make any law that it saw fit

The courts would be bound to follow any relevant statute

Now, the powers are constrained by EU Law - see later

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Proposals for new legislation are called bills and these can be laid before either the House of Lords or the House of Commons:They will pass through the same successive stages in each House as follows:

•First Reading - Introduction into the agenda and publication.•Second Reading - Debated but no amendments.•Committee Stage - Examination by a standing committee of about twenty members of the main parties. Some will have specialist knowledge. The bill may be amended.•Report Stage - The bill is put to the full House. Final amendments are made.•Third Reading - The bill is put forward for final approval.

The bill then passes through the same stages in the other House.

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Some legislation is detailed, time-consuming and complex requiring interested parties to contribute.

So in such cases, parliament passes the act relegating the details to schedules to be prepared later.

This is called delegated legislation.The disadvantage of such legislation is a lack of control from parliament. However, there are restrictions that control the power of the rules made.

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Who Makes The Law?EU Law - made by the EU

There are three ways in which EU Laws are made:

Decisions - made by the Commission in Brussels. They are immediately binding on those to whom they are addressed. They are used extensively in the implementation of the Common Agricultural Policy (CAP).

Directives - these are issued to governments of EU countries to make them change their national laws to conform to the directive.

Regulations - these are laws that are enforceable in every EU member state without being incorporated into that country’s own law.

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Who Makes The Law?


Custom is now of little importance in law.

In mediaeval times, the courts created law by enforcing certain customs.

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Who Makes The Law?


Claims over customary rights should prove that:

1) The right must have existed for “time immemorial” (theoretically since 1189AD but usually as far back as records exist)

2) It must have been enjoyed openly (not secretively)

3) It must be reasonable

Typically, the law of custom would be involved to solve disputes relating to the use of land.

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Who Makes The Law?

Other sources of law include:

Law of Merchant - foreigners’ / traders’ law absorbed into common law in the 17th Century. The only remnant is the Court of Admiralty which is a division of the Queen’s Bench Division of the High Court dealing with shipping matters.

Roman Law - most Western European law is based upon Roman Law, excluding the United Kingdom.The only remnants are relating to the validity of a will - specifically the privileged position of a soldier to make a verbal will.

Ecclesiastical Law - Independent from the Common Law courts until 1857, they dealt mainly with moral disputes including adultery.

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