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WESTERN CULTURE AND SOCIETY: THE UNITED KINGDOM (UK) -

The British Legal System


The Law:
England and Wales, Scotland and Northern Ireland all have their own legal systems, with some big differences in law, organisation and practice. However, a large amount of modern legislation applies throughout Britain. The law is divided into "criminal law" and "civil law". Civil law regulates the conduct of people in ordinary relations with one another. The distinction between the two branches of the law is reflected in the differences between the two types, they are treated in different courts.

The legal system of England and Wales involves historic legal cases and conventions known as common law and equity, and parliamentary and European Community legislation. Common law, which is based on custom and interpreted in court cases by judges, has never been precisely defined or codified. It forms the basis of the law except when superseded by legislation. Equity law consists of a body of historic rules and principles which are applied by the courts. The English legal system is therefore distinct from many of those of Western Europe, which have codes derived from Roman law.

European Community law, from Britain's membership of the European Union, is confined mainly to economic and social matters, in certain circumstances it takes precedence over domestic law.


THE COURTS OF ENGLAND & WALES: Criminal Courts:
The Magistrates Court is the lowest tier of criminal court in England and Wales, dealing with about ninety-eight per cent of all criminal cases. The 450 courts are funded jointly by local and central government. Almost all cases are tied by Justices of the Peace (JPs), numbering some 30,000. They are appointed by the Lord Chancellor for the Crown, on the recommendation of local committees. Potential JPs are nominated on the basis of their judgment and character and come from a wide variety of backgrounds. JPs are not professionally qualified, nor are they paid, but they are assisted by professional clerks, who are fully qualified lawyers. However, some cases in the Magistrates Courts are tried by professionally qualified full-time stipendiary magistrates. 

The Crown Court tries more serious criminal cases, as well as hearing appeals from the Magistrates Courts. It sits in over ninety permanent centres throughout England and Wales, each centre being designated as first, second or third tier, reflecting the seriousness of the offences tried. Trial of cases is by a jury of twelve people selected at random from the electoral register. They are directed on matters of law by a judge, who may be any one of the eighty-four High Court Judges, 478 Circuit Judges, 787 Recorders and 454 Assistant Recorders (the latter two being part-time appointments). 

The Court of Appeal (Criminal Division) sits in London at the Royal Courts of Justice. It deals with appeals from the Crown Court and is presided over by the Lord Chief Justice who is the most senior judge in England and Wales. The Court of Appeal is normally constituted by any three of the Lord Justice of Appeal and the Lord Chief Justice. The twenty-five Lord Justices of Appeal are assisted by High Court judges when it is required. 


THE COURTS OF ENGLAND & WALES: Civil Courts:
The 250 County Courts of England and Wales, deal with cases of lesser value, importance and complexity. Indeed, claims of under 1,000 can be dealt with by the increasingly popular small claims procedure, which provides for informal arbitration. Parties in such proceedings are encouraged to handle small claims by themselves, rather than being formally represented by an advocate. In the County Court formal cases are heard before District Judges, who hear uncontested and smaller value claims; higher value claims being dealt with by Circuit Judges. Each court is assigned at least one District and one Circuit Judge. 

The High Court sits at the Royal Courts of Justice and at County Courts around the country. It deals principally with more substantial and complex civil cases. Land, property and inheritance matters are dealt with by its Chancery Division, along with patent issues and industrial disputes. The Queen's Bench Division deals with common law business such as tort and contractual disputes. There is also a Family Division. 

Appeal from the High Court is to the Court of Appeal (Civil Division), which also hears appeals from the County Courts and from tribunals. The Court of Appeal (Civil Division), which is housed in the Royal Courts of Justice, is constituted from two or three Lord Justices of Appeal, and may include the Master of the Rolls. There may be further appeal to the House of Lords.


THE COURTS OF SCOTLAND: The principles and procedures of the Scottish legal system (particularly in civil law) differ in many respects from those of England and Wales. Criminal cases are tried in district courts, sheriff courts and the High Court of Justiciary. The main civil courts are the sheriff courts and the Court of Session. The Secretary of State for Scotland recommends the appointment of all judges other than the most senior ones. He or she also appoints the staff of the High Court of Justiciary and the Court of Session, and is responsible for the composition, staffing and organisation of the sheriff courts. District courts are staffed and administered by the district and islands local authorities.

Scottish Criminal Courts: Sheriff Courts, have jurisdiction in both summary (minor) and solemn (serious) criminal cases. In summary cases a Sheriff may impose a prison sentence of up to twelve months and fines of up to 5,000. Under the solemn procedure, a Sheriff, sitting with a jury may sentence offenders to up to three years imprisonment or, if need be, remit them to the High Court of Justiciary for a heavier sentence. He has jurisdiction to deal with offences in a specific area or district - the Sheriffdom. There are six Sheriffdoms in Scotland, subdivided into forty-nine Sheriff Court districts and there are ninety-seven Sheriffs. 

The High Court of Justiciary is the supreme criminal court of Scotland. It sits in both Edinburgh and Glasgow and in circuit in other cities and towns. It hears cases, taken on indictment, presided over by a judge, sitting with a jury of fifteen members of the public. It has exclusive jurisdiction over cases such as murder and rape. When constituted by at least three judges it also hears appeal from jury trials in the High Court of Justiciary and from Sheriff and District Courts. (District Courts are the lowest tier of criminal court in Scotland. They are mostly presided over by unpaid lay Justices of the Peace, and can only imprison offenders for sixty days or levy a fine of up to 2,500.) The High Court of Justiciary as a court of criminal appeal is supreme and, hence there is no appeal to the House of Lords. 

Scottish Civil Courts: Sheriff Courts have a civil jurisdiction, as well as hearing criminal cases. Sheriff Courts handle the largest volume of civil cases in formal, as well as informal proceedings, such as this small claims arbitration. There is no upper limit to the value of cases that a Sheriff Court can hear. Along with the Court of Session, it deals with a wide range of civil cases, although the Court of Session, it deals with a wide range of civil cases, although the Court of Session has exclusive jurisdiction in some areas. There is a right of appeal from the Sheriff Court to the Sheriff Principal, who is the senior judge responsible for the Sheriffdom, as well as to the Court of Session. 

The Court of Session is the highest civil court in Scotland, although there may be appeal to the House of Lords in England. Cases brought directly to it are both heard and decided upon by single judges, drawn from the seventeen Lords Ordinary, collectively termed the Outer House. The eight judges of the Inner House are mainly concerned with hearing civil appeals from the Outer House, the Sheriff Courts and Tribunals. The Inner House of the Court of Session is subdivided into the first division, presided over by the Lord President. The second division is presided over by the Lord Justice-Clerk. Both the Court of Session and the High Court of Justiciary (when it sits in Edinburgh) are housed in the historic and ornate Parliament House.


THE COURTS OF NORTHERN IRELAND: The legal system of Northern Ireland is in many respects similar to that of England and Wales. It has its own court system: the superior courts are the Court of Appeal, the High Court and the Crown Court, which together comprise the Supreme Court of Judicature. A number of arrangements differ from those in England and Wales. A major example is that those accused of terrorist-type offences are tried in non jury courts to avoid any intimidation of jurors.


Tribunals:
These are a specialised group of judicial bodies, similar to courts of law. They are normally set up under statutory powers which also govern their constitution, functions and procedure.

Tribunals often consist of ordinary people, but they are generally chaired by a legally qualified person. They tend to be less expensive, and less formal, than courts of law. Some tribunals settle disputes between private citizens. Industrial tribunals, for example, play a major role in employment disputes. Others, such as those concerned with social security, resolve claims by private citizens against public authorities. A further group, including tax tribunals, decide disputed claims by public authorities against private citizens. Tribunals usually consist of an uneven number of people so that a majority decision can be reached.

Members are normally appointed by the government minister concerned with the subject, although the Lord Chancellor (or Lord President of the Court of Session in Scotland) makes most appointments when a lawyer chairman or member is required. In many cases there is a right of appeal to a higher tribunal and, usually, to the courts. Tribunals do not normally employ staff or spend money themselves, but their expenses are paid by the government departments concerned. An independent Council on Tribunals exercises general supervision over many tribunals.


European Community Law: Joining the European Community in 1972 has had an important effect on the constitution and laws of Britain. Regulations drafted by the European Commission, and the provisions of the Treaty of Rome are directly applicable by British courts. When there is a difficulty interpreting the effect of European Community Law there is a power to refer to the European Court of Justice (ECJ) for a preliminary ruling. Determinations of European Community law made by the ECJ as a result of references from the House of Lords and other courts are binding and authoritative statements for the purposes of the decision of future cases, the ECJ is not to be confused with the European Court of Human Rights which, along with the European Commission on Human Rights, determines issues relating to the European Convention on Human Rights. Although the Convention is not justifiable by British courts, when grievances have been upheld by the Court of Human Rights or Commission on Human Rights, Compliance has normally resulted, sometimes in the form of the introduction of new statutory rights.


Legal Services: In England the legal professions are divided into different branches, "solicitors", "barristers" and "Lawyers" in England. Judges in each system are recruited from the ranks of practising barristers, advocates and solicitors on the basis of experience and ability. They are thus, already senior and respected lawyers who are trained for judicial office rather than being part of a separate state career structure. 

Solicitors in England, Scotland and Wales are normally the first point of contact for citizens seeking legal advice or services. Solicitors provide legal services for the sale of land and buildings, as well as managing trusts etc. Solicitors also offer a variety of financial services. 

Barristers provide specialist services in advocacy and advice, either through a solicitor or directly in the case of overseas clients and certain specific institutions. Many are specialists in a particular area of law. They provide practically all of the advocacy in the Higher Courts of England and Wales and of Scotland and represent parties in complex arbitration and tribunal cases. The professions have separate routes to qualification, closely supervised by their respective professional bodies, reflecting the difference in emphasis in the services that they will be required to provide. 

The initial preparation of civil cases, involving client consultations, such as this one, and of criminal defences is carried out by solicitors, as is most of the advocacy in the lower courts. They also provide ongoing briefs to barristers and advocates involved in litigation. 

Solicitors deal with the vast majority of property transactions in Britain. In Scotland they may also market about eighty per cent of properties for sale. There are some 60,000 solicitors in England and Wales and 7,500 solicitors in Scotland. They practice in firms or partnerships varying in size - from sole practitioners to 100 partner solicitors - and in specialism - with general practices, offering the fullest range of legal services and, conversely, boutique firms, focusing on a few selected areas, sometimes in association with professions from other disciplines. 

The regulating bodies of the professions, the Law Societies, Bar Council and faculty of Advocates, are responsible for the professional standards of their members. As well as representing their members' interests to Government, they have the duty of promoting the interests of the public in relation to their professions. 

It is a fundamental aim of the legal systems in Britain that there should be equal access to justice. There is a commitment to providing legal aid for those who need financial assistance to obtain legal services. Applications are made through a solicitor, in England by filling in a distinctive green form. The 1992 budget for criminal and civil legal aid, administered by the Legal Aid Boards, was over 820 million in England and Wales and around 80 million in Scotland. 


Characteristics of British Legal Processes: The Common Law heritage of the British legal systems is enshrined in certain distinctive characteristics of the legal process. Significantly, the legal systems both use the adversarial system for deciding cases, which has moulded the form of at least, the trial process. 

The adversarial system is founded on the conception that justice should not only be done, but be seen to be done. Thus, the success or failure of a case is determined by the persuasiveness of the parties' arguments, taking into account the evidence accepted by the Court. Accordingly, there is extensive use of juries in criminal cases, consisting of randomly selected members of the public, whose responsibility it is to decide matters of fact, leaving the judge to determine the application of the law. In criminal cases there is the right to legal advice and representation. A defendant in a criminal trial and parties to civil proceedings may represent themselves, although, in most criminal and some civil cases, legal aid is made available to ensure the availability of appropriate advice and representation. 

The importance of persuasive legal argument is a key aspect of both legal systems. Arguments on matters of law, presented by the parties' legal representatives, if accepted by and in the verdict of a court, may become authoritative and binding statements of law through the system of precedent. 

The concept of precedent stems from the fact that the Common Law is rooted in a series of legal customs and principles. Decisions in cases that lay down precedents may, to a certain extent, be seen to be further defining the scope and application of those customs and principles. Therefore, any subsequent court, hearing a case involving the same issue of law and sufficiently similar facts, may be bound by the reasoning of the previous court. However, in Scotland, greater importance is attached to identifying principles of law in court judgments and in the works of institutional writers. 

The system of precedent is not an inflexible one. A superior court is bound to overdue precedents set by lower courts of record or its own previous decisions, if they were wrongly decided. Moreover, the House of Lords can overrule its own previous decisions, when to do otherwise would be contrary to the interests of justice. Ultimately, all Common Law precedents can be suspended or superseded by Parliamentary legislation. 

The system of precedent means that lawyers and their clients can receive guidance as to the likely outcome of a legal issue by having regard to previous judgments. Strong arguments in court become part of the fabric of law, allowing decisions to be made in a predictable manner.

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