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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the law except when superseded by legislation.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
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.
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
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
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.
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
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.