Friday, 22 June 2007

A little introduction

I have recently received a few requests (and contrary requests) to give you all a little mini-series of legal posts. I know more of the law than I do of other issues, so I'd be happy to oblige. Somethings, however, will require a reasonable knowledge of the way our legal system works, and how others do. So, without further ado, here's an introduction to our legal system and that most brilliantly British master-piece, the Common Law system.


Before we go back to the origins of our current system and its nature, we may as well deal with the Courts. In Britain, we have separated legal systems. Scotland works differently from England and Wales, with a separate legal system, separate body of professionals, and of courts. The only Court in England which has jurisdiction over Scotland is the House of Lords, which is a UK-wide body.

The European systems use a different system of trials than we do: they have inquisitorial judges. We have judges who are umpires, and judge what is presented to them. On the continent, the judges are investigators, and are involved in more than simply what is presented to them. We, on the other hand, have an adversarial legal system. It applies the Socratic principle that the truth is best determined by weighing up the most powerful arguments on either side. In essence, advocates are hired to make a sides case, pick holes in the other side's case, and then the judge or jury decide which is true. It's a blunt but reliable trial method. The European systems use one slightly different: they have inquisitorial judges. We have judges who are umpires, and judge what is presented to them. On the continent, the judges are investigators, and are involved in more than simply what is presented to them.

Types of Law

It is very important to clarify the three broad types of law. This is generalised, but essential. First is Criminal law. You commit a crime, you are prosecuted. This is judged in a criminal court, by Magistrates or Judge and Jury. (We'll deal with the different courts in a moment.) The state considers crime its own responsibility, not simply that of the victim.

Second is private law. This is commonly called civil law, from its common reference to civil procedures, when one citizen sues another. Negligence, contracts, damages and divorces all fall under the civil, not criminal jurisdiction. Civil cases are dealt with by different courts to Criminal cases.

The third - less well-known - element is public or constitutional law. This includes our constitution, the balance of power, the rule of the state, and administrative law, such as planning procedures and the like. Public law cases rarely come before the courts, but are increasingly.

The Courts

As in any country, Britain has a hierarchy or Courts. There are, as I outlined above, almost completely separate systems for the different types of law. What follows is a simplified version of the system, which will be sufficient for our present purposes:

Criminal Law

95% of criminal cases are dealt with by Magistrates' Courts. Magistrates are laymen, instructed by legal experts, who decide the facts and apply the law. The court is usually comprised of a bench of 3 Magistrates, but could be comprised of a single District Judge: a legal professional.

Cases which are of sufficient gravity or are particularly controversial will merit a Crown Court hearing. This is the stereotypical court: barristers, a Judge, and a Jury. The judge decides points of law, sentencing, and 'umpires' the trial: the Jury decide the facts.

The distinctions are well described by Wikipedia:

Offences are of three categories: indictable only, summary and either way. Indictable only offences such as murder and rape must be tried on indictment in the Crown Court. On first appearance, the Magistrates must immediately refer the defendant to the Crown Court for trial, their only role being to decide whether to remand the defendant on bail or in custody.

Summary offences, such as most motoring offences, are much less serious and most must be tried in the Magistrates' Court, although a few may be sent for trial to the Crown Court along with other offences that may be tried there (for example assault). The vast majority of offences are also concluded in the Magistrates' Court (over 90% of cases).

If one side wished to appeal against a trial decision, there is a system of appellate courts. the Crown Court hears appeals from Magistrates' Courts.

The next step is where it gets complicated, but to keep it as simple as possible, appeals from cases first heard in the Crown Court (where the Crown Court is the 'Court of first instance') are heard by the Court of Appeal (Criminal Division) by three Lords Justices. They decide points of law, problems with trial procedure, and assess new evidence. They can quash convictions, order re-trials, or change sentences. The Dando murder case has just been referred again to the Court of Appeal, on grounds that there is new evidence. Where the Crown Court was hearing an appeal from a Magistrates' Court, further appeals go to the High Court for appeal (see Civil courts, below), then to the House of Lords.

Appeals from the Court of Appeal will reach the House of Lords, or rather the Appellate Committee of the House of Lords. This comprises 5 Law Lords. This is the senior court of appeal. After this, only the European Courts or legislation can change a result.

Civil Courts

Many minor civil cases are heard in the County Court. This is the workhorse of the civil system. It deals as the court of first instance with all claims of less than £50,000, and includes the Small Claims track, known colloquially as the Small Claims Court. The famous recent cases of bank charge reclamation are County Court cases. they are heard by a District or Circuit Judge.

The court of first instance for major Civil cases is the High Court, which also hears appeals from the County and Crown Courts. The High Court is divided into divisions:

  • The Queen's Bench Division, which deals with two distinct types of case. The first is that it deals with contracts, personal injury, and negligence. It is also a supervisory court. The QBD will hear appeals from lower courts.

  • The Chancery Division deals with business law, trusts, land law, company law, and other such issues.

  • The Family Division deals with divorce, medical treatment, children and wills.

High Court cases are heard by High Court Judges. There are no juries.

Civil appeals from the High Court go to the Court of Appeal (Civil Division), once again heard by three Lords Justices. Further appeals again reach the Appellate Committee of the House of Lords.

Last of all, the Divisional Court, part of the High Court, hears mostly Judicial reviews: a recent innovation allowing people to dispute executive government decisions, both locally and nationally.

There: I think I've managed them all! Here's a handy diagram in case your head has just exploded like mine did:

I'm conscious that I've already included an awful lot of information, so I'll leave the second bit until a later point. Hope you got it all. if not, ask and I'll be happy to clarify.



Gavin said...

My head just exploded.

Phil' said...

Did you get it though? :P