• English legal terminology: the legal system •English legal terminology in the law of contract •English legal terminology in the law of tort/delict •English legal terminology in public and human rights law •English legal terminology in criminal law
The English legal system England and Wales Not Scotland (mixed common law/civil system) Uncodified common law system Legal profession divided into barristers (advocates) and
Scotland: a separate legal system ď‚—Scotland has a completely separate legal system from that of
England and Wales. Although it does share some institutions, the legislature and the Supreme Court. This stems from Scotland's independence before 1707 and is enshrined in the Act of Union.
ď‚—Scots law stems from two main sources, enacted law and
common law. Enacted law can come from many sources, some include Royal proclamation or order, Acts of Parliament the EC Treaty or European legislation, or local authority bye-laws.
Historical Background The Judicature Act 1873 and after In 1873, Parliament passed the Judicature Act which merged common law and equity. Although one of the Divisions of the High Court is still called Chancery, all courts could now administer both equity and common law – with equity to reign supreme in any dispute. The same Act established the High Court and the Court of Appeal and provided a right of appeal in civil cases to the Court of Appeal. Criminal appeal rights remained limited until the establishment of a Court of Criminal Appeal under the Criminal Appeal Act 1907. The Court of Criminal Appeal sat for nearly 60 years, until its existence as a separate body was ended by the Criminal Appeal Act 1966. Its jurisdiction passed to the Court of Appeal.
Appellate courts The Judicial Committee of the Privy Council – the final Court of Appeal
for 23 Commonwealth territories and 4 independent Republics within the Commonwealth The Supreme Court– the highest court in the United Kingdom The Court of Appeal – divided into the Criminal Division hearing appeals from the Crown Court and Courts Martial, and the Civil Division hearing appeals mainly against decisions in the High Court and county courts The High Court has 3 divisions: Chancery Division, Queen’s Bench Division and Family Division, each of which handles different types of civil work. It exercises an appellate jurisdiction through its three Divisions in such matters as bankruptcy, judicial review, ‘case stated’ (judging whether a court or tribunal was wrong in law or in excess of its jurisdiction) and appeals from magistrates’ courts in domestic matters including orders involving children.
The Supreme Court (formerly House of Lords) The Supreme Court is the highest court of appeal in the land. It acts as the final court on points of law for the whole of the United
Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below. Formerly, the House of Lords had an unusual role for a legislative body in that it was part of Parliament unlike most other democracies where the judiciary is separate from the legislature—usually in the form of a supreme court of appeal. The reasons were historical: the House of Lords had done this work for more than 600 years as part of the High Court of Parliament. The House of Commons was originally part of the High Court of Parliament but it has not been involved in judicial work since 1399. Only highly qualified professional judges appointed to be Law Lords take part in the judicial work of the House. From 1 October 2009 the House of Lords was replaced by the separate Supreme Court as a result of the Constitutional Reform Act 2005.
A Separate Supreme Court from 2009 The Constitutional Reform Act 2005
The constitutional changes include: ● the establishment of a new Supreme Court separate from the House of Lords and the removal of the Law Lords from the legislature; ●a new independent Judicial Appointments Commission. The Supreme Court sits in the former Middlesex Guildhall, on the western
side of Parliament Square. This new location is highly symbolic of the United Kingdom’s separation of powers, balancing judiciary and legislature across the open space of Parliament Square, with the other two sides occupied by the executive (the Treasury building) and the church (Westminster Abbey).
The Supreme Court The Court hears appeals on arguable points of law of the greatest public
importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases. Additionally, it hears cases on devolution matters under the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006. This jurisdiction was transferred to the Supreme Court from the Judicial Committee of the Privy Council. The Supreme Court also decides devolution issues: whether the devolved executive and legislative authorities in Scotland, Wales and Northern Ireland have acted or propose to act within their powers or have failed to comply with any other duty imposed on them.
Access to the Supreme Court ď‚—For every civil appeal from England, Wales and Northern
Ireland, leave to appeal (permission for a case to be heard by the Supreme Court) must be granted by the court appealed from or, more usually, by the Supreme Court itself. Most civil appeals from Scotland do not require leave. Criminal appeals from England, Wales and Northern Ireland not only require leave but also a certificate from the court appealed from setting out that a point of law of general public importance is involved and stating what that point is. The Supreme Court does not hear criminal appeals from Scotland. ď‚—The Supreme Court justices deal with 200 to 250 applications for leave to appeal each year.
Court of Appeal The Court of Appeal, which sits in London at the Royal Courts of Justice, has 2 divisions: The Civil Division, which hears appeals from: The three divisions of the High Court (Chancery, Queen's Bench and Family Division) From the County Courts across England and Wales, From certain Tribunals such as the Employment Appeal Tribunal, the Immigration Appeal Tribunal, the Lands Tribunal and the Social Security Commissioners. The Criminal Division, which hears appeals from the Crown Court. The Court of Appeal normally sits in up to 12 courts in the Royal Courts of Justice.
Criminal and civil divisions of CA The Criminal Division, presided over by the Lord Chief Justice and the VicePresident of the Criminal Division, hears appeals in criminal matters from the Crown Court. Courts are constituted from the Lord Chief Justice, VicePresident and Lords Justices, assisted by High Court judges as required. The Civil Division, presided over by the Master of the Rolls, who is also Head of Civil Justice, hears appeals mainly against decisions of the High Court and county courts and also of tribunals and certain other courts, such as the Patents Court. In the Civil Division, courts of two or three judges are normally constituted from the Master of the Rolls and the Lords Justices.
High Court: 3 divisions The Chancery Division deals with company law, partnership claims,
conveyancing, land law, probate, patent and taxation cases, and consists of 18 High Court judges, headed by the Chancellor of the High Court. The Division includes three specialist courts: the Companies Court, the Patents Court and the Bankruptcy Court. Chancery Division judges normally sit in London, but also hear cases in Cardiff, Bristol, Birmingham, Manchester, Liverpool, Leeds and Newcastle.
The Queen’s Bench Division deals with contract and tort, judicial reviews
and libel, and includes three specialist courts: the Commercial Court, Admiralty Court and Administrative Court. The QBD consists of 73 judges headed by the President of the Queen’s Bench Division.
The Family Division, which deals with family law and probate cases,
consists of 19 judges headed by the President of the Family Division.
County Court The County Court, often referred to as the Small Claims Court deals with civil matters, such as: Claims for debt repayment, including enforcing court orders and return of goods bought on credit Personal Injury Breach of contract concerning goods or property Family issues such as divorce or adoption Housing disputes, including mortgage and council rent arrears and repossession. There are 216 County Courts throughout England and Wales dealing with all but the most complicated civil law proceedings.
Crown Court The Crown Court, which sits at 92 locations in England and Wales, deals with criminal matters including: Cases sent for trial by magistrates’ courts in respect of indictable only offences (i.e. those which can only be heard by the Crown Court) ‘Either way’ offences committed for trial (i.e. those which can be heard in either a magistrates’ court or Crown court) Defendants committed from magistrates’ courts for sentence. Appeals against decisions in magistrates’ courts.
Magistrate courts ď‚— Virtually all criminal court cases start here. Over 90% stay here, but more serious offences are sent to the Crown Court, either for sentencing when defendant found guilty or for full trial with judge and jury.
Magistrates deal with 3 types of cases: (i) Summary offences. These are less serious cases, such as motoring offences and minor assaults, where the defendant is not usually entitled to trial by jury. (ii) Either-way offences. As the name implies, these can be dealt with either by the Magistrates or before a judge and jury at the Crown Court. Such offences include theft and handling stolen goods. A defendant can insist on their right to trial in the Crown Court. Similarly, Magistrates can decide that a case is sufficiently serious that it should be dealt with in the Crown Court â€“ which can impose tougher sentences if the defendant is found guilty. (iii) I ndictable-only offences, such as murder, manslaughter, rape and robbery.These must be heard at a Crown Court. For (iii) involvement of Court is generally brief. A decision will be made on whether to grant bail, and other legal issues such as reporting restrictions will be considered. The case will then be passed to the Crown Court.
The English judge
Judges Lord Chief Justice of England and Wales (head of judiciary), Sir Igor Judge (r) High Court judge
Judges 12 Supreme Court justices, hearing about 80 to 90 appeals each
year. They usually sit in panels of 5 judges. The Justices’ speeches are called ‘opinions’ and every word of an opinion is the Justice’s own—no one else is involved in the drafting. The judges of the Court of Appeal are the Lord Chief Justice, the Master of the Rolls and 37 Lords Justices. The President of the Family Division and the Vice-Chancellor of the Chancery Division also sit there for part of their time. There are 110 High Court judges in England and Wales, who are all knighted or made dames.
Magistrates (the lay judiciary) Cases are either heard by two or three Lay Magistrates or by one District
Judge. The Lay Magistrates (or Justices of the Peace) are local people who volunteer their services. They do not require formal legal qualifications, but will have undertaken a training programme, including court and prison visits, to develop the necessary skills. They are given legal and procedural advice by qualified clerks. On the other hand, District Judges are legally qualified, paid, full-time professionals and are usually based in the larger cities. They normally hear the more complex or sensitive cases. There are approximately 30,000 Magistrates, 140 District Judges and 170 Deputy District Judges operating in approximately 330 magistrates’ courts throughout England & Wales.
The typical judge? Penny Darbyshire, Cambridge Law Journal, 66(2),
July 2007, pp. 365–388: ‘Where do English and Welsh judges come from?’ Concludes: A large number of judges were independently schooled and attended Oxford or Cambridge University. Most district judges were solicitors and most circuit and senior judges were barristers. Senior judges generally academic high fliers.
2010 Judicial statistics 11: Justices of the Supreme Court (latest – Sir John Dyson
-appointed 13 April 2010) 5: Heads of Division (Lord Chief Justice, Master of the Rolls, President of the Queen's Bench Division, President of Family Division, The Chancellor of the High Court) 37: Lords Justices of Appeal High Court Judges: 108 (Chancery Division 18, Queen's Bench Division 72, Family Division 18) 48: Masters, Registrars, Costs Judges and District Judges (PRFD) 80: Deputy Masters, Deputy Registrars, Deputy Costs Judges and Deputy
District Judge (PRFD) (PRFD stands for Principal Registry of the Family Division)
Male/female representation Supreme Court: Women 1 Men 11
Lord Justices of Appeal: Women 3 Men 34 Total 37 High Court: Women 16
* Source: http://www.judiciary.gov.uk/publications-and-reports/statistics/judges/gender-statis
Legal representation: Barrister or solicitor? There are around 14,000 barristers practising in the
UK, while there are over 90,000 solicitors. Most barristers – about 11,000 – are in private practice. Technically they are self-employed, but must be a member of a chambers (also known as a set) in order to practise. Around 3,000 barristers are employed either by solicitors’ firms or other businesses, or work for the Crown Prosecution Service or the Government Legal Service.
The typical solicitor
What do solicitors do? ď‚—A solicitor is usually the first port of call when an
issue arises, and they deal with the day-to-day administration of the case before it comes to the barrister. Solicitors help find solutions to their clients' problems within the framework of case law, statute and regulations. ď‚—Work will vary depending on whether you work for large commercial firm, a medium-sized or smaller firm offering specialist advice on a niche area e.g. publishing, entertainment or conveyancing, or a firm dealing with all matters.
The typical barrister
Barristers? A barrister is a specialist in advocacy who presents a case in
court. He or she will be contacted by the solicitor at the barristers’ chambers and will consider the relevant points of law and research previous similar cases. He or she then supplies specialist advice and does the advocacy if the case goes to court.
In court the barrister presents the case, cross-examines
witnesses and debates the issues. Many cases involve an initial hearing, followed by an interim hearing, and finally a full trial. There is no ‘typical’ length for a case.
The Bar: By Ethnicity and Gender FEM ALE M ALE TOTAL WHI TE BRI TI SH: 2774 6655 9429 WHI TE I RI SH 79 111 190 OTHER WHI TE 115 173 288 CARI BBEAN 80 71 151 AFRI CAN 58 91 149 WHI TE ASI AN 27 33 60 OTHER M I XED 31 28 69 OTHER BLACK 26 12 38 I NDI AN 118 169 287 PAKI STANI 48 100 148 BANGLADESHI 16 30 46 OTHER ASI AN 37 55 92 CHI NESE 21 11 32 OTHER 41 100 141 Produced by the Bar Records Office 23 December 2010
Solicitors: By Ethnicity and Gender In 2009–10, solicitors from Black Minority and Ethnic (BME) groups accounted
for 10.3% of all solicitors in private practice. Women now account for 45.8% of solicitors. Since 2000 the total number of women solicitors has grown by 42.4%. 76.3% of men holding practising certificates work within private practice, compared to only 70.4% of women. In 2010, the average age of a female solicitor in private practice was 37.5 years compared with 44.7 years for men. Over one-third of practising solicitors in 2010 (37.2%) were employed by organisations based in London. These organisations were responsible for the employment of just under one half (49.3%) of all solicitors. Source: Law Society, Trends in the solicitors' profession - annual statistical report 2010 (published March 2011)
The Common Law: A legal tradition
Next: English legal terminology in the law of contract
Primer power point de Paula Giliker de terminologia juridica del día 11 de abril de 2011. III Workshop on legal terminology