Chapter 9 Justice and the Law

November, 2005

Xiao Huiyun

Pictures

A 1 Introduction – Basic Principles of *** English Law What are the basic principles of English Law? Explain “The Rule of Law”. What is the Law that is higher than man-made

law? What are the criteria? What kind of orders are soldiers expected to

disobey? Give examples. Should the pilot who bombarded the Chinese

Embassy in Yugoslavia be punished for the atrocity? Why or why not?

A 1 Introduction – Basic Principles of English Law The Rule of Law, Natural Law and Natural Justic

e The Rule of Law is an aspect of the

British Constitution. It involves: The rights of individuals are determined by legal

rules and not the arbitrary behaviour of authorities.

There can be no punishment unless a court decides there has been a breach of law.

Everyone, regardless of your position in society, is subject to the law.

A 1 Introduction – Basic Principles of English Law cont

Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children)

Natural Law is higher than Man-made law. Eg. Nuremberg War Crimes Trial

Natural Justice -- reflections of prevailing moral view of society .

Basic principles

The rule of law----everybody is subject to the law

----laws must not be arbitrary

----a person is innocent until proven guilty

Natural law ----a law is higher than a man-made law Natural justice----reflection of the prevailing moral view of

the society

A 1 Introduction – Sources of British Law Common Law – decided by judges, their dec

isions in cases being arrived at after considering the customs and practices of the people involved. This kind of law has evolved long before Parliament became the main law-making body.

Statute Law – made by Parliament Case Law – has evolved through decisions i

n actual trials European Union law

A 1 The Supremacy of Parliament Parliament can pass, repeal and alter any of

Britain’s laws. This is one of the major powers that a government has .

Parliament also has the power – after going through its own parliamentary processes – of altering its own laws.

In theory there is no body that can declare a law passed by Parliament as unconstitutional - though the full impact of the European Court is not yet known.

But decisions of the European Court must be accepted in UK.

A 1 Introduction -- Two branches of law Civil law -- defines and enforces the

duties or obligations of persons to one another.

Criminal law -- by contrast, defines and enforces the obligations of persons to society as a whole.

A 2 Structure of the Courts Criminal & Civil Law p 153 Precedence p 153 The legal system in England &

Wales pp153-154, handouts The legal system in Scotland

handouts

The Court System

Civil branch Criminal branch

County Court Magistrates’ Court(JPs, stipendiary magistrates)

Crown CourtHigh Court(QBD, CCD, FD)

Court of Appeal Court of Appeal

House of Lords

Court cont

1. The Magistrate's Courts hear criminal trials2. A magistrate is also called a justice of the peace3. They deal with almost 97% of all criminal cases4. Six months is the maximum sentence given5. Magistrates are often not legally qualified

Courts cont Magistrates’ Court The overwhelming majority of the public who come

into contact with the court system will do so with the Magistrates’ court,and there are more than 700 magistrates’courts in England and Wales. It is rare for the sort of cases dealt with in these courts to grab the nation’s attention,or hit the headlines. However ,these courts are a vital cog in the wheel of justice, and nearly

all of the UK’s criminals will pass through their doors.

Courts cont

The Crown Court The Crown Court deals with

all indictable cases,which are serious offences triable before a judge and jury,and these include murder, rape, serious assault, kidnapping, conspiracy, fraud, armed robbery,and Official Secrets Act offences. These offences cannot be tried at the magistrates’ court.

Courts cont

The High Court The High Court is a civil court and

has the authority to hear any civil case in England and Wales. It handles everything from libel and litigation to shipping cases and divorce. Along with the Court of Appeal, it is based at the gothic building of the Royal Courts of Justice on the Strand,London, but also sits at 26

towns around the country.

Courts cont Court of appeal If a convicted person feels he or she has not

had a fair trial in the Crown Court/High Court and has been wrongfully convicted,or that the sentence imposed by the judges is unfair,then he or she can take their case to the Court of Appeal,where more senior judges will consider the merits of their

case.

Courts cont The House of Lords

*The highest law court

*The Law Lords conduct a fairly relaxed court

--dress like businessmen to hear cases

--sit at eye level,behind a horseshoe-shaped table

--rarely attend political debate

Lord Chancellor -- Charles Leslie Falconer , Baron Falconer of Thoroton,Secratary of State for Constitutional Affairs

Charles Leslie Falconer, Baron Falconer of Thoroton

A 3 Legal Advice & Assistance *** Who pays for it? 3 forms of legal aid Legal Advice & Assistance – who offers

aid? ? Civil legal Aid– represented by whom? Criminal Legal Aid -- privilege or right?

represented by whom?

A 4 Inside the Courts

Judicial independence "is basic to the (British) Constitution."

The independence of judges is secured by: While in office they behave in a professional

manner; if they maintain the highest of standards in all areas, they cannot be touched by the government if they come to a decision that is against a government act

Those in the judiciary are paid out of the Consolidated Fund so that they are free of annual parliamentary criticism, which might be used to mould future judicial decisions

See p155 for more information

A 4 Inside the Courts cont *** What are the qualifications for judges? Where do magistrates come from? What are

their jobs? How important are they? Are they paid for the jobs?

In which branch of court do you find a jury? Sentencing What is the most severe punishment in

Britain? Pp 155-157

How Are Magistrates How Are Magistrates Appointed?Appointed?

ApplicationApplicationApplicationApplication

Advisory CommitteeAdvisory CommitteeAdvisory CommitteeAdvisory Committee

InterviewsInterviewsInterviewsInterviews

Recommendation to the Lord ChancellorRecommendation to the Lord ChancellorRecommendation to the Lord ChancellorRecommendation to the Lord Chancellor

AppointmentAppointmentAppointmentAppointment

Requirements of local communities: number, gender, ethnicity, etc

qualifications

Qualifications/Disqualifications:

e.g. age, residence, occupation, criminal record

No formal qualification is

Qualifications

English Judges

A 5 Outside the Court – The Professional

Barristers and Solicitors Differences in training Work See pp157-159, handouts

Barrister

Barrister

Law Degree(3 years)

School of Law Bar Exams(1

year)

Pupilage(1 year)

Independent practice in

‘chambers’

5 years

Solicitor

A solicitor

Solicitor

Training

Law Degree(3 years)

Law Society Exams(1 year)

Articles(3 years)

Work for a Solicitor’s firm

become a partner

7 years

Training for legal profession in Scotland*** A bachelor degree in Scottish law from

Scottish universities + one year postgraduate course & Diploma in Legal Practice

A period of vocational training for solicitors/advocates

Solicitors for 21 months in solicitor’s office Advocates for 9 months as a pupil to a

member of the Bar

A 6 Problems in the English Legal System Outdated practice System elitist Weak points of jury system Advantages and disadvantages of the jury

system Lay magistrates See p 159

Potential or Possible Advantages of the Jury System The system is the chief bulwark of the common man

against abuse by the state or by individual members of the legal system.

It gives the public a part to play in the legal process and makes the ordinary people gain a sense of involvement.

Jurors usually have more first-hand qualification than any judge to form a valid opinion upon facts connected with the daily life of ordinary people.

The system ensures that the judgment of guilt or innocence is made by the accused’s equals, not by a judge whom many will see as being out of touch with ordinary people and no better at making judgments about facts.

Potential or Possible Disadvantages of the Jury System Jurors may have a lot of difficulty following

arguments and/or evidence in a complex case. Evidence shows that gender or race discrimination

and prejudice still exist among some jurors. Juries are likely to be influenced by one dominant

personality among their members and also , by the impression they pick up from the judge’s summing-up, rather than solely from the facts presented to them during the hearing.

Jurors are more easily swayed by emotional witnesses’ accounts or barristers’ appeals, and sometimes do not pay as much regard to facts or documentary evidence as expected.

Potential or Possible Disadvantages Lay Magistrates The system of Lay Magistrates ensures that critical

decisions affecting personal liberty, reputation and rights are taken by ordinary individuals. So there is an analogy with trial by jury in the Crown Court, except that there a Judge rules on the law, whilst the jury decides the facts of the case. Magistrates do both of these things. As for potential or possible advantages and disadvantages of Lay Magistrates, some of the same things as above will apply e.g. gender, race. In addition, an extra advantage of the system is that magistrates handle the bulk of criminal cases (95%) preventing the higher courts from becoming overloaded with cases.