English for Law 1

1. Sources and divisions of law

Law: definition The word law\ˈlô\ does not have a universally accepted definition but it is very often defined in terms of rules and guidelines enforced by controlling institutions. However, rules and guidelines are also regarded as law when they regulate relations between people in society and therefore create and preserve social order. Because of different meanings given to law, one simple way of defining the concept is to say that law is concerned with the regulation of social conduct by the state.

law in fixed phrases

above the law allowed to not obey the law

against the law contrary to law, act in disregard of law

break the law fail to observe a law, regulation, agreement

by law / under law according to law

obey the law abide by the law

enforce the law comply with a law, rule, or obligation

go to law resort to legal action in order to settle a matter

law and order a situation characterized by respect for and obedience to the rules of a society

lay down the law issue instructions to other people in an authoritative and dogmatic way

take someone to law initiate legal proceedings against someone

(Adapted from Pearsall, The New Oxford Dictionary of English, 1998) The law of the United Kingdom All legal systems worldwide deal with the same basic issues of law, but distinct legal jurisdictions have their own legal and political systems. The United Kingdom is a constitutional monarchy and parliamentary democracy. It has three legal systems:

● English law operating in England and Wales, ● Northern Ireland law operating in Northern Ireland, and ● Scots law operating in Scotland.

Sources and divisions of law 2

English and Northern Ireland law are based on common law principles made by judges through the system of precedent, known as case law or judge-made law, while Scots law is a hybrid system based on civil law and common law elements. A feature common to all UK legal system is the absence of a complete code, since legislation and (unwritten) common law are all part of the ‘constitution’.

In Common Law jurisdictions, the defining logic of criminal and civil trial procedure is the adversarial system, meaning two sides as adversaries (opponents). The adversarial system contrasts with the inquisitorial system of adjudication in Civil (Continental European) jurisdictions, where the state has the major investigator’s role in determining the truth rather than individuals confronting their accusers.

Sources of law in the UK UK law originates from legislative sources and judicial sources.

Legislative sources consist of domestic legislation, which includes primary legislation, known as Acts of Parliament or statutes, secondary or delegated legislation, and European Union legislation (Treaty Articles, Regulations, Directives). Judicial sources consist of common law and equity precedents, known as case law. In addition, there are a number of minor sources, such as customs and books of authority. Parliamentary sovereignty In the law-making process of the United Kingdom supremacy of parliament is significant for two reasons. Firstly, parliament is the originator of the most important source of law, known as Act or statute. Secondly, Parliament may delegate power to a government minister and the law that is created is referred to as secondary or delegated legislation, which is published as Statutory Instruments (SIs), By-laws, and Orders in Council. Judicial sources derived from common law and equity precedents are both subordinate to legislation, which means that Acts of Parliament take priority in case of conflict between primary legislation and judicial sources. This unlimited power of Parliament results in the doctrine of parliamentary sovereignty. Unlike Acts of Parliament, however, delegated legislation may be challenged in the courts via the doctrine of ultra vires - Latin term meaning 'outside one's legal power or authority'. This means that if a government body acts beyond the powers that are delegated to it by the parent Act, the delegated legislation can be declared void by the court.

Sources of law in the USA The primary sources of law in the United States are the United States Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law. The most important form of codified law is the US Constitution, which is the foundation of the federal government of the United States.

There are two levels of law: the federal and the state. Federal law originates with the Constitution, which gives Congress (the federal legislative body

Case law is distinguished from jurisprudence, which means the study or philosophy of law.

BrE: Act, piece of legislation AmE: Bill

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consisting of the House of Representatives and the Senate) the power to create statutes. Courts then must apply statutes to the facts of a case. If no statute exists, courts defer to common law or case law, consisting of judicial interpretations of the Constitution, a statute or common law. Federal law is superior to state law, which means that federal law must be applied in case of conflict between federal and state law. This is because the framers of the US Constitution wanted the federal government to have only limited power.

Creation of statutory law: how a Bill becomes an Act Before an item of legislation becomes law in the UK, it is known as a bill. A bill is introduced into Parliament as either a Public Bill, a Private Bill, or a Private Member's Bill, and is preceded by a White Paper or a Green Paper during a consultative process. White Papers set out definite government proposals on topics of current concern and signify the government’s intention to enact new legislation. Green Papers, on the other hand, are introductory reports on a particular area and are tentative proposals for discussion issued by a Government Minister without any guarantee of legislative action.

After the consultation process is completed, the drafting process follows. This is when the bill is set out in a draft legislation by Parliamentary draftsmen, officially the Parliamentary Counsel to the Treasury.

The bill, then, goes through a number of readings which are the formal stages of enactment (the passing of legislation) by both Houses of Parliament (Commons and Lords). These stages are:

• First reading: the title of the Bill is introduced into the House of Commons and no debate or vote takes place at this stage. • Second reading: this is the first general debate on the main principles and purpose of the Bill in the House. • Committee stage: the Bill is debated in detail by a small group of MPs in a Standing Committee and may be amended. • Report stage: MPs who were not part of the Committee debating the Bill may consider any of the amendments made by the Committee. Any amendments may be accepted or reversed. • Third reading: this is the final debate on the Bill in the House in its amended form. Once the Bill has passed the third reading in the House of Commons, it is referred to the

House of Lords (known as passage through the Lords) where it is introduced with a new bill number. The process in the House of Lords is very similar to the process in the House of Commons.

When both Houses have formally agreed on the content of the Bill it is then presented to the reigning monarch for approval, known as Royal Assent. Once Royal assent is given, the Bill becomes an Act of Parliament and is law.

Sources and divisions of law 4

proposed Bill starts in the House of Commons

House of Commons 1st Reading – 2nd Reading – Committee

Stage – Report Stage – 3rd Reading

House of Lords 1st Reading – 2nd Reading – Committee

Stage – Report Stage – 3rd Reading

Royal Assent

Act

proposed Bill starts in the House of Lords

House of Lords 1st Reading – 2nd Reading – Committee

Stage – Report Stage – 3rd Reading

House of Commons 1st Reading – 2nd Reading – Committee

Stage – Report Stage – 3rd Reading

Royal Assent

Act

Statutory interpretation The words of an Act of Parliament are authoritative and the constitutional role of the judiciary is to apply legislation. If the wording of the legislation is ambiguous, then its meaning will need to be interpreted.

In order to solve an issue of statutory interpretation, judges use three different approaches, known as the rules of interpretation. The literal rule provides that words must be given their ordinary and literal meaning and must be interpreted according to the intention of Parliament which passed the Act. The golden rule provides that words must be given their ordinary and literal meaning as far as they do not produce absurdity, or inconsistency with the rest of the document. The mischief rule involves an examination of the former law and determines the defect (mischief) that the statute in question has set out to remedy. The application of this rule gives the judge more discretion than the literal and the golden rule because it allows him to deducing Parliament’s intention.

In addition, there are also rules of language which the judges may apply. They are: ejusdem generis (general words only apply to things of the same type), noscitur a sociis (words derive meaning from others surrounding them), and expressio unius est exclusio alterius (when one or more things of a class are expressly mentioned others of the same class are excluded).

In addition to the rules of interpretation and rules of language, there are also a number of presumptions, such as the presumption against deprivation of liberty, or against retrospective operation of statute. Finally, there are internal aids (such as the long title of the Act) and external aids to statutory interpretation (such as dictionaries and case law).

Judicial precedent Judges decide the law applicable to a case not only by interpreting statutes but also by applying judicial precedent \joo-dish-uh l pres-i-duh nt\. This means that judges decide cases along the lines of earlier decisions made in similar cases (precedents) – cases where the material facts are of sufficient similarity.

In this context, precedent describes the specific part of a judgment which establishes a legal principle to be followed in later cases, known as the ratio decidendi \rA-shE-"O-"de-s&-'den-"dI\ - 'the reason for the decision'. Typically, this ratio is referred to by the Latin phrase stare decisis \stɛəridɨsaɪsɨs\ - ‘stand by what has already been decided’, and is used to set forth a binding precedent in the present case. A precedent-setting case is sometimes

BrE: binding precedent AmE: mandatory/binding authority

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called reasoning by analogy because the facts of a case are analogous with those of an earlier decision.

More precisely, the part of the judgment that must be followed under the doctrine of stare decisis and therefore binding on other courts is the 'holding' of the majority opinion. This core part applies the law to the facts of the case. By contrast, the term obiter dicta (obiter for short) – ‘remarks in passing’ – describes any principle in the judgment which is not strictly relevant to the decision in the case but may be cited as persuasive authority. This principle creates no binding precedent in the present case and is called persuasive precedent. Judicial opinions In deciding the ratio by argument, each judge delivers an opinion on the case by agreeing (supporting opinion) or disagreeing (dissenting opinion) with the decision of the majority of the judges (majority opinion), or agrees with the result reached in the majority opinion with the words ‘I agree’ (concurring opinion), which appear at the conclusion of the judgment. A per curiam opinion is written by all the judges in a relatively unimportant case and usually with no one judge's name on it. Avoiding precedents Despite the need to establish judicial precedent in common law cases, there are three main methods used by a judge to avoid a binding precedent that is difficult in the case being decided. They are:

•Distinguishing: the judge finds that the material facts of the case for decision are sufficiently different from the previous precedent, and therefore departs from (rather than being bound by) the precedent. • Reversing: a court higher in the hierarchy overturns the decision of a lower court during the course of the same case. • Overruling: a court higher in the hierarchy reverses the decision of a lower court in a different case, and therefore creates a different decision on the same material facts in later cases.

Classifications of law In the United Kingdom, a distinction is made between Public law and Private law, although in practice the distinction between Criminal law and Civil law is often used among practising lawyers.

Sources and divisions of law 6

Public law Public law is concerned with the relations between the state or government and its citizens, and aims at the promotion of social objectives by protecting collective interests. Public law comprises several specialist branches such as:

● Cons tu onal Law – This law regulates the relationships between the Executive (concerned with the formulation of policy and its implementation in line with law), Legislature (concerned with the enactment of new law), and Judiciary (concerned with the determination of legal disputes between individuals, or between individuals and public authorities), the human rights and the state. ● Administra ve Law – This law deals with the relationships between decision-making bodies of government and individuals, and challenges the legality of decisions made by such bodies under the procedure called judicial review of administrative action. Under this procedure, an individual who has been affected by an unlawful decision, or a failure to make a decision by such bodies, can appeal against this decision, known as application for leave (permission) to start judicial review. ● Criminal Law (or Penal Law) – This law deals with crimes (offences) against society as a whole - the state and its citizens (public wrong) - and their punishment. A crime is any act or omission which is contrary to the criminal law and punishable by the state.

Private law Private law is concerned with the rights and duties of private individuals towards each other, and aims at the protection of individual interests. Private law includes several areas such as:

● Contract Law – This law deals with the enforcement of legally binding agreements, the nature of the obligations undertaken by the parties, and the legal consequences of breaking contractual promises. ● Tort Law – This law provides remedy for a wrong done to a person, usually by payment of money as compensation. ● Property Law – This law deals with the rights which may arise in relation to the various forms of ownership.

English public and private law are part of national (or municipal) law which is the law

operative within a country. National law is distinguished from international law which is the law operative outside a country. International law is usually subdivided into public international law, which is the law regulating relationships between states, and private international law, which is the law regulating relationships between individuals outside a country where there is a foreign element.

Example: A sues B, an Italian citizen, in England because he broke a contract about a business to be run in Egypt. In this case the judge will refer to the rules of Private International Law.

International law is created in two main ways: by treaty and by custom. Treaties are political agreements between two or more states, and are binding on the nation states involved

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(called contracting states) if they have given their consent to be bound under international law. Customary law describes the situation whereby states have adopted consistent practices towards a specific matter and have acted in this way outside of legal obligation.

Substantive law and procedural law are two main categories within an area of law. Substantive law deals with the rules which govern individual rights and duties under the law. Procedural law (or adjective law) defines the practice and procedure by which those rules are to be enforced when bringing a civil or criminal case to court.

The system of courts and their jurisdictions In the UK, the court system consists of Magistrate’s Court, County Courts, Tribunals, the Crown Court, the High Court, the Court of Appeal, and the Supreme Court. Some courts are classified as inferior courts, such as the Magistrates’ Courts and County Courts, while others are classified as superior courts, such as the High Court, Crown Court, Court of Appeal and Supreme Court. In this system, inferior courts decide the majority of cases at first instance and make an appropriate ruling on points of fact and law before any appeals, and are known as trial courts or first-instance courts. By contrast, superior courts review decisions of a first-instance court on important points of law and public interest and are known as appellate courts. The County Courts only hear civil cases while the Crown Court only hear criminal ones. The others exercise both types of jurisdiction - they handle both civil and criminal cases.

The Magistrates’ Courts are set up to deliver justice in a speedy manner without jury trial. Although magistrates’ courts can hear a limited number of civil cases relating to family law and licenses, they are the lower courts where all the criminal cases start and finish. The less serious cases (such as, traffic offences, vandalism, being drunk and disorderly), called summary offences, start and finish in these courts. Other cases of median seriousness (such as, deception, burglary, drugs offences), called ‘triable either way’ offences, are heard either summarily in the magistrates’ court or on indictment at the Crown Court. The most serious cases (such as, murder, rape, robbery), called indictable offences, are heard only in the Crown Court by judge and jury.1 Although civil cases are sometimes dealt with by magistrates, most of them are heard in the County Courts or the High Court.

The Court of Appeal hears criminal and civil appeals from the Crown Court and the High Court, and deals with applications for leave (permissions) to appeal to the Supreme Court. The Supreme Court is the court of last resort, meaning that it is the final court of appeal in both civil and criminal cases where points of law of public general importance are considered. It refers some cases to the European Court of Justice for a ruling on the interpretation of a point of European law.

1 For more details, see Chapter 3.

Sources and divisions of law 8

UK Court System and Jurisdiction

European Court of Justicepreliminary ruling procedure

Supreme Court of the United Kingdom

appeals only, on points of law, from the Court of Appeal and the High Court

Court of Appeal Criminal Division Civil Division

appeals on points of law of public general importance

High Courtappeals from inferior courts

Queen’s Bench Division

(contract & tort, etc.) Commercial Court Admiralty Court

Administrative Court Supervisory and appellate jurisdiction over the legality of decisions of inferior courts

Family Division

Divisional Court Appeals from the magistrates’

courts

Chancery Division

Equity & trusts, tax, etc.

Divisional Court Appeals from the County Courts

on land and bankruptcy

Adapted from HMCS

Personnel within the legal system In addition to the jurisdictions of the courts, there are people performing different roles in the English legal system. These include solicitors and barristers, magistrates and judges and the jury. There are also paralegals, legal assistants and other support staff.

Magistrates’ CourtsTrials (without jury) of summary and ‘either-way’ offences Committals to the Crown Court Some (civil) family proceedings and youth cases

Tribunals Service Appeals from decisions on immigration, child support, land, pensions, and social security

Crown Court Jury trials for all indictable and some either-way offences Appeals against conviction and sentence from magistrates’ courts

County Courts Majority of civil litigation depending on the nature of claim

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The legal profession: solicitors and barristers In the UK, lawyer or advocate is a generic term used to refer to anyone who provides legal advice and representation in civil and criminal cases. This is the case of solicitors and barristers who act for (represent) their clients both inside and outside the court system.

Solicitors Solicitors have day-to-day contact with clients and advise on necessary courses of legal action. If a client wishes to take legal advice, he will usually go to a solicitor’s firm, where he will see the solicitor and tell him what kind of work he requires to be done. Solicitors are permitted to practise in partnerships, signifying that they can be the owners of a law firm (partners). Lawyers who are employed by a firm, but who are not owners, are usually called associates.

Both solicitors and barristers appear in the inferior courts as advocates where they exercise a right of audience for their clients, meaning that they have a right to argue a case for their clients, also called pleading a case. In the superior courts, however, barristers have exclusive rights of audience. Solicitors may also appear as advocates in the superior courts (called solicitor-advocates) if they have appropriate experience to do so.

The Law Society is the representative body for solicitors, and is responsible for the legal education, training and examinations of solicitors. In order to practise as a solicitor, a person must first go through all the necessary education and training. Then they will be admitted to the rolls, meaning that their names will be entered on the Society’s Roll (list) of solicitors permitted to practice. Once admitted to the rolls, solicitors will automatically be granted a practising certificate by the Law Society.

Barristers Solicitors have direct contact with their clients. Barristers do not. If a client needs the services of a barrister, he must go first to a solicitor, called instructing solicitor. The solicitor will then instruct (brief) the barrister to advise in writing through an Opinion, or appear in court as an advocate.

client meets solicitor briefs barrister

In the case of a request for written advice (Opinion),

the solicitor will only ask the barrister Questions so as to be able to advise the client. The Opinion will answer these questions, and is sent back to the instructing solicitor. This is ensured by the cab-rank rule, which obliges barristers to accept any cases (instructions) sent to them by solicitors if they fall within the field of their competence and are irrespective of the identity of the client.

Barrister BrE: barrister

ScotE: advocate AmE: trial lawyer / appellate attorney

Typical work activities of solicitors include: • meeting and interviewing clients; • taking a client’s instructions; • advising a client on the law of their case; • corresponding with clients and opposing solicitors through letter writing; • instructing barristers to appear in court in complex cases; • drafting contracts, etc.

Most frequent Questions asked in Instructions Does the client have good prospects? If so, what are the remedies available to him? Does the client have a successful defence to his or her action? (contract case) What loss or damage has the client suffered? Has the client acted reasonably to mitigate his or her loss? (tort case) Does the client owe a duty of care? Is the client in breach of that duty? What is the quantum?

Sources and divisions of law 10

Opinions are reasoned arguments which provide formal legal advice on complicated areas of law regarding the client’s present position and, if the merits of the case are to proceed, to fight the client’s case at trial. This contrasts with legal advice given to clients by solicitors through letter writing (letter before claim), which is generally on a less formal basis than an Opinion.

Barristers derive their name from the fact that when they qualify (year’s call), they are called to the Bar. Top barristers, who have produced work of a particularly high quality, are appointed by the Crown to the rank of Queen’s Counsel (QC or ‘silk’) by virtue of their gowns which are no longer made of ordinary cloth, but of silk. The Attorney-General and his deputy, the Solicitor-General, are legal advisers to the Crown in civil and criminal proceedings. They are usually barristers.

The judiciary: magistrates and judges The term judiciary, metaphorically known as the Bench, is used to describe magistrates or judges sitting together in the same court.

Magistrates have different judicial roles from judges because they are appointed to sit in inferior Magistrates’ Courts dealing with most criminal cases. They consider the evidence in each case and reach a verdict with the most appropriate sentence. Magistrates deal with the less serious criminal cases, such as mugging, minor theft, motoring offences, and vandalism, where the defendant is usually represented by a solicitor rather than a barrister. The term magistrates includes lay magistrates and district judges (DJs) who are collectively known as Justices of the Peace. Lay magistrates are not legally qualified and unpaid except for expenses; they are selected from the ranks of those who are known personally or by reputation, and are appointed for their qualities of judgment and responsibility. District judges are members of the judiciary and are legally qualified - a DJ must be a qualified solicitor or barrister. Both categories of magistrates may be dismissed on grounds of incapacity or misbehaviour.

Judges sit in superior courts such as the High Court, Court of Appeal and Supreme Court and are appointed from the ranks of barristers and some senior solicitors. Judges carry out different functions during the trial and must be independent to ensure fair trial. Independence of judges means that they must deliver judgment with complete impartiality without interference from political forces or the parties appearing before them. It is not very easy to remove senior judges from office because they are protected by judicial immunity.

A judge sitting in the Supreme Court is called Lord (+ name), a full-time judge in the High Court is known as The Honourable Mr or Mrs Justice, and in court he is addressed as My lord or My lady, and Your Lordship or Your Ladyship, and judge in the Court of Appeal is called Lord Justice, abbreviated as LJ. The jury Juries are most often used in criminal proceedings in the Crown Court, where they consider the evidence and decide what the true facts of the case are. The judge gives the direction to the jury on the relevant law, which the jury has to apply to the facts of the case in order to

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reach a verdict. In civil proceedings, juries function to decide on how much money should be paid in compensation. However, a challenge for cause involves any of the jurors who may be dismissed from service because there is a good reason to believe they cannot be fair, unbiased, or capable of serving as jurors, such as when they have already formed an opinion about the case or know either of the parties to the case.

Civil Law and Criminal Law: Putting It All Together

Civil law: object and purpose Civil law deals with the resolution of disputes by one party called claimant against another called defendant by providing remedy (relief, redress) for a wrong suffered.

In civil litigation, both parties are called litigants or disputants and their lawyers are called litigators or trial lawyers. Claimant (aggrieved, damaged, injured party) is the person who brings a civil action in a court of law, while defendant (aggrieving party, damaging party, wrongdoer) is the person sued in a civil case, or the party charged with a crime in a criminal prosecution (accused person). In some types of cases (such as divorce), it is the petitioner who sues the respondent. Remedies Usually two types of remedy are available in civil law, meaning that for every right there is an appropriate remedy. They are:

•damages - this is the money claimed by a claimant from a defendant as compensation for harm done, and

• injunction - this is a court order directing a person to do (mandatory injunction) or refrain from doing a particular act (prohibitory injunction), such as ordering the defendant to stop breaching a contract or causing a tort.

The remedy of damages is available as of right, meaning that in a court action the claimant is automatically entitled to financial compensation without permission of the court, while the remedy of injunction is granted within the discretion of the court. Other discretionary remedies include:

• specific performance - this is a court order which compels the person to perform their part of a contract, such as handing over goods agreed to be sold,

• rescission – this allows the innocent party to have the contract cancelled (set aside, rescinded), and

•rectification: this is amending a document, such as a contract or lease, if it does not accurately reflect the intention of the parties to it.

In granting such remedies, the court normally applies the reasonable man test, which is an objective test used to assess the standard of care expected from an ordinary citizen. It is used

Damage (singular): loss or harm caused to people or things

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in actions for negligence to calculate liability on the part of the defendant who should have foreseen the consequences of his actions, called foreseeability test.

Example: If D (defendant) drives his car negligently, it is reasonably foreseeable that other road users C (claimants such as drivers, passengers or pedestrians) may be affected by this negligent conduct.

How civil cases are settled A civil case begins when the claimant (C), an individual or organization, sues another party called the defendant (D), on a legal matter, such as the terms of a contract or a specific tort. The claimant thus informs the court of the wrong suffered and the remedy requested.

Depending on the complexity of the case and the size of the loss or harm, the case is heard in the County Court or the High Court. The vast majority of civil cases do not go to a full trial because they are often dealt with through offers to settle by payment of damages into court, or through alternative dispute resolution methods.

If no final settlement is reached between both sides, civil trial will start through the ordinary civil court system where it is an extended court hearing by judge alone. At trial, the claimant must prove, on the balance of probabilities, that the

events occurred in the manner claimed, a principle known as burden of proof (obligation to prove the case). If the claimant wins his action, the judge will deliver judgment based on the appropriate remedy. Judgment is normally for an awarding of damages, ordering the defendant to compensate the claimant for his damage, or for an injunction, compelling the defendant to do or nor to do a certain action in the future, or be even just a declaratory judgment which determines that the claimant has certain legal rights. Either party may appeal to the higher court (Court of Appeal) against the judge’s decision.2 Criminal law: object and purpose Criminal law deals with offences against the state and its citizens and preserves public order in society by dispensing punishment to offenders. In order to deserve punishment, a person must have been at fault (deserving of blame, guilty) in the wrongful conduct taken. How criminal cases are settled A criminal case begins when a crime is reported to the police, who arrest the person alleged to have committed the crime. After arrest, the police carry out their investigations and gather

2 For more details, see Chapter 3.

On the balance of probabilities

AmE: preponderance

of evidence

In a civil law judgment, the parties to the case (such as Adams v Smith) are cited as: Adams (C) suing Smith (D) but the case is pronounced Adams and Smith If Adams and Smith decide to appeal against the decisions, the case will appear as above but the parties will be named differently: appellants and respondents.

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evidence. When the police believe that enough evidence exists to charge the alleged offender, they send a report of the case to the Crown Prosecution Service (CPS). The CPS reviews the criminal case initiated by the police and then decides whether or not to proceed with prosecution.

In practice, the CPS may decide whether or not to prosecute in cases involving more serious offences, while the police may decide in cases involving more minor offences. This explains why commencement of a criminal action is the responsibility of the state or its agents, that is, the Police and the Crown Prosecution Service, who act in the name of the Crown, although a private individual, or entity who is not acting on behalf of the police or CPS, can also bring a criminal action against another individual, known as private prosecution. If the CPS believes that the case provides a realistic prospect of success and that it would be in the public interest to do so, it will start criminal proceedings against the alleged offender. The lawyer (a solicitor or barrister) acting as a Crown prosecutor (P) will then prosecute the accused, who becomes the defendant (D) in the case.

Depending on the gravity of the offence and the mode of trial hearing, the case will be heard in the Magistrates’ Court dealing with less serious offences, or the Crown Court dealing with more serious offences. It is a fundamental principle of English criminal law that a person is innocent of any offence until proven guilty, known as presumption of innocence. The burden of proving the defendant’s guilt is the task of the prosecutor who must prove to the magistrates in the Magistrates’ Court (without jury trial), or the jury at the Crown Court, that the offender committed the crime beyond reasonable doubt. This burden of proving, beyond reasonable doubt, is a higher standard of proof than in civil cases (balance of probabilities). The court must then determine whether or not the defendant is guilty of the offence charged, so that in the Magistrates' Court it is for the magistrates alone to decide the guilt of the accused, while in the Crown Court it is for the jury to decide questions of fact and for the trial judge to decide questions of law.

If, after trial, the magistrate or jury decides that the defendant is guilty of the offence charged (verdict or finding of guilty), then a conviction declared in a sentence of punishment will follow. Depending on the facts of a crime and its seriousness, conviction may range from a custodial sentence (imprisonment) to fines (money penalty) or a community sentence, which combines punishment with activities carried out in the community. The convicted offender will be entitled to appeal if they believe they did not receive a fair trial, or their sentence was too harsh. On the other hand, a decision declaring the case is not proven against the defendant will lead to an acquittal, and the defendant cannot be retried for the same offence on fresh evidence. 3

3 For more details, see Chapter 3.

In a criminal law judgment, the parties to the case (such as R v Bloomfield) are cited as: Regina (P) prosecuting Bloomfield (D) but the case is pronounced ri-jahy-nuh (Regina simply Latin for ‘Queen’ or The Crown) against Bloomfields

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Civil and criminal law : comparison chart

Civil law Criminal law

Object Deals with the resolution of disputes between private individuals by redressing a wrong that has been suffered, usually by financial compensation

Deals with offences against the state and its citizens and maintains public order in society by dispensing punishment to offenders

Purpose Award monetary damages to successful claimants

Dispense punishment to convicted offenders

Parties Claimant sues defendant Prosecutor prosecutes defendant

Case title Adams v Smith Adams suing Smith [case pronounced Adams and Smith]

R v Bloomfield Regina prosecuting Bloomfield [case pronounced Regina /rɪˈdʒaɪnə/ against Bloomfield]

Who starts case Individual (legal action between private individuals)

State or its agents (police, CPS) prosecute (legal action by the state against an individual)

Court hearing Case heard in County Court or High Court

Case heard in Magistrates’ Court or Crown Court

Burden / standard of proof

Claimant proves case on the balance of probabilities (lower civil degree of proof)

Prosecutor proves case beyond reasonable doubt (higher criminal degree of proof)

Case decided by Judge District judge with no jury (Magistrate’s Court) or judge and jury (Crown Court)

Sanctions Damages, injunction, specific performance, rescission, rectification

Imprisonment (custodial sentences), fine, community sentences

Liability Contract, tort, trusts, property Arson, concealment of birth, blackmail, kidnapping, murder, riot, sexual assault, theft

Case examples

Susan who has been injured in a road accident is claiming that Alan caused her injury because his driving was negligent. Susan is now asking to be compensated by an award of damages. To win her case, the claimant (Susan) must not satisfy the court that the defendant was negligent. She only needs to prove, on the balance of probabilities, that Alan was negligent.

In a charge of robbery, the prosecution (not the plaintiff) must satisfy the court, beyond reasonable doubt, that the defendant is guilty. If the court is not sure, they must acquit him, even if they find the defendant was probably guilty.

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Elements of the crime The idea of fault is present in the fundamentals of an offence, known as the actus reus (guilty or unlawful act) and the mens rea (guilty mind) in technical, legal usage and means that there is both a physical element and a mental element to an offence. Both elements have to be concurrent (present) at the moment of the crime, meaning that an act does not make a man guilty of a crime unless his mind is also guilty.

Physical element – actus reus The physical element of a crime consists of conduct, circumstance and (prohibited) consequence / result.

Example: The physical element of murder (actus reus) contains all three: an unlawful act (conduct) against behaviour harming any person (circumstance) which causes the death of another human being (consequence / result). A further dimension of the actus reus is the distinction between conduct crimes and result/consequence crimes. Conduct crimes (such as blackmail, rape, perjury) are those where the conduct itself is criminal. Example: Lying under oath (perjury) is criminal in itself (conduct crime), it does not matter if you benefitted from the lie. Result crimes are those where the conduct itself is not criminal but the result of the action is. Example: It is not against the law to throw a stone but if it hits a person it becomes a crime (result crime): if the stone causes serious injury the crime is grievous bodily harm, if the stone kills a person the crime is murder or manslaughter. The two aspects of the crime (conduct and consequence) must be closely linked by causation, otherwise known as chain of causation (cause and effect). Example: Alan did an act, such as stabbing, and this act caused the victim’s death. Alan’s conduct is said to be causative to the result (prohibited consequence). The actus reus therefore refers to the external elements of a voluntary act on the part of the defendant. While the general rule is that there is no criminal liability for omissions, there are exceptions where the defendant is under a positive duty to act but fails to comply with such a duty. Example: Contract can create a positive duty; captains of ships are responsible to protect the lives of their passengers; parents are responsible for the welfare of their children. Mental element – mens rea The mental element of a crime incorporates one of the three general states of mind or modes of culpability. They are intention, recklessness and negligence. These mental states depend

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on the surrounding elements of the crime, the conduct, circumstances and result, and establish the higher or lower degree of culpability.

modes of culpability intention

recklessness negligence

• Intention – This is the highest form of mens rea and includes:

▪ direct intent: the defendant has a clear purpose to bring about the result which in fact occurs; and ▪ oblique intent: the defendant embarks on a course of conduct to bring about the intended result knowing that the consequence of his actions will also bring about another result.

Example: Alan intends to collect the insurance on goods. He therefore insures a package for air travel and conceals a bomb in the package to explode during the air flight. However, he knows that to achieve his purpose (collecting insurance - direct intent) passengers will die when the bomb explodes (he knows that the consequences of his conduct will also bring about another result - oblique intent).

• Recklessness – describes the situation where the defendant is aware of risky consequences to occur and nonetheless proceeds with the unreasonable and unjustified conduct, not caring whether those consequences would result or not.

In English criminal law, the deliberate and conscious taking of an unreasonable risk by the defendant has given rise to difficulty as to whether a subjective or objective test should apply to recklessness - subjective recklessness and objective recklessness. Thus, a person who intends to commit a crime can be said to be more culpable than one who acts recklessly.

• Negligence – in criminal law, negligence is the least culpable state of mind and describes the defendant who is inadvertent to the consequences of his risky conduct (unintended consequences), but a reasonable, prudent person in the same circumstances would have foreseen those consequences. This mode of culpability bears similarities to negligence applied in civil law and plays a minor role in criminal liability where it is largely replaced by the objective test of recklessness.

Other criminal states of mind include transferred intent where an act directed at one person or property causes harm to another person or property - the result of the actus reus is not what the defendant intended.

Example: Alan intends to shoot John but misses and kills Roy who, unknown to Alan, was standing near John. Alan’s intention toward the anticipated victim is transferred to the actual victim, and Alan can be convicted of murder.

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Defences to criminal liability In a criminal action, the defendant may be able to rebut (contradict) his case by establishing a defence which, if determined in favour of the accused, will preclude or mitigate his conviction (diminished responsibility).

Traditionally, the twin concepts of justification and excuse are treated as the basis for the existence of most defences to culpability for criminal actions, so that the defendant is said to be justified in, or excused from, taking the action he did, and a justification or excuse may be pleaded by way of defence.

In criminal law, defences operate in three main ways:

● To deny the actus reus by pleading non-insane automatism - defendant argues that at the time of committing the offence he had no control over his actions, and so was incapable of having the necessary mens rea.

● To deny the mens rea by pleading:

▪ insanity - defendant negates responsibility for the consequences of his actions because of some mental infirmity, ▪ mistake - defendant did not possess the mens rea because he was labouring under a mistake of fact and not of law, or ▪ intoxication - defendant was incapable of forming the mens rea because he was under the effect of drink or drugs.

● To justify defendant’s actions by pleading: ▪ duress - defendant acted under threats, ▪ necessity - defendant was forced to commit the crime because there was no other solution to avoid that harm, or ▪ self-defence - defendant used reasonable force to defend himself should he come under attack.

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Chapter Review: True or False? Based on your reading so far, say whether the following sentences are True or False. Sometimes the first sentence is T while the second one is F or vice versa.

T F 1. There is no simple answer to the question of law. In general, law is a method of

social control which maintains public order in society. □ □ 2. All legal jurisdictions throughout the world have similar legal systems. The defining

character of England or Northern Ireland civil and criminal procedure is the inquisitorial system of adjudication. □ □

3. UK sources of law derive from legislation (domestic and European) and common law precedents. Domestic legislation (codified law) enacted by Parliament is an inferior form to judicial (common law) sources and is independent of parliamentary sovereignty. □ □

4. US law originates from various sources. The most important source of law derives from administrative regulations and treaties. □ □

5. In addition to the consultation through Green Papers or White Papers, the first step in legislation is the drafting of the Bill. Once drafted, the Bill passes through various stages to enable Parliament to consider and reconsider its provisions as thoroughly as possible. It then becomes a parliamentary Act and is law. □ □

6. The rationale behind the use of the literal rule is that words must not create absurdity, while the rationale behind the mischief rule is that words must be given their ordinary meaning. □ □

7. In essence, precedent means that once a decision has been made in a particular case, it is relied upon in subsequent cases as an accurate statement of law. In other words, ‘let the decision stand’ (stare decisis). □ □

8. One of the principles of precedent is that cases with the same material facts should be decided in the same way. □ □

9. Even if a previous case is said to be binding, only some parts of the judgment are important. The ratio decidendi is persuasive whereas the obiter dicta is binding on courts. □ □

10. Overruling is one of the methods to escape from an awkward binding precedent. It allows a court lower in the hierarchy to overturn the decision of a higher court in a different case. □ □

11. One way of classifying UK law is by the labels public law (dealing with the relations between the state or government and its citizens) and private law (dealing with the rights and obligations of private individuals towards each other). □ □

12. The enforcement of public law ensures the protection of individual interests while the enforcement of private law ensures the protection of collective interests. □ □

13. Constitutional law regulates the relationships with the judiciary. □ □ 14. Administrative law protects individuals against unlawful decisions made by

government bodies. Such individuals can rarely apply for leave to start judicial review. □ □

15. The objective of criminal law is to punish the wrongdoer for an action which is deemed to be contrary to the interests of the state and its citizens. □ □

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16. Municipal law is the national, or domestic law of a sovereign state defined in opposition to international law. □ □

17. International law is the set of rules accepted as binding in relations between states and nations. The usual sources of international law are treaties and customs. □ □

18. Substantive law regulates our rights and duties under the law, while procedural law prescribes how those substantive rules can be used within the legal system, for example the rules of costs necessary to bring a case to court. □ □

19. When referring to court jurisdiction, the usual distinction is between trial courts (that hear cases at first instance before appeals) and appellate courts (that consider and apply legal principles to cases heard before). □ □

20. The Magistrates’ Courts provide a quick, summary justice system. All criminal proceedings begin in the magistrates’ courts and the majority of them end there. □ □

21. A defendant committing a criminal wrong will have his case heard in the County Court while a defendant doing a civil wrong will have his case heard in the Crown Court. □ □

22. Solicitors can conduct cases in any courts as barristers, regardless of their experience. Therefore, their rights of audience are unlimited. □ □

23. The Law Society is the governing body of solicitors which also acts on behalf of the profession as a whole. It supervises training and discipline. □ □

24. Clients can sometimes go directly to a barrister to have their case argued in court. □ □ 25. The judiciary means all judges taken collectively. It encompasses justices of the

peace who sit in lower (magistrates’) courts and professional judges who sit in higher courts. □ □

26. The fact that a juror is ineligible or disqualified from the jury service does not provide the grounds for a challenge. □ □

27. The object of civil law is to resolve disputes between individuals and organizations, in which appropriate remedies are provided to the injured party for the wrong suffered. □ □

28. The civil remedies allowed by judicial process are the orders that a court can make in a case when the case has been decided. The main remedies are damages (an amount of money which the losing party must pay the winning party by way of compensation) and injunction (this orders the losing party to do something or, more usually, to stop doing something). □ □

29. In granting civil remedies, the court applies a subjective test known as the reasonable man test. □ □

30. Unlike civil law, which emphasises financial compensation to the injured party, criminal law emphasises punishment of anti-social conduct regarded to be contrary to the interests of the state. Criminal law courts thus decide the innocence or guilt according to the principle of criminal law and dispense punishment to offenders. □ □

31. Civil and criminal cases are heard in different courts and are enforced differently. A civil case is started by the individual and decided by a judge on the balance of probabilities, whereas a criminal case is started by the police and the Crown Prosecution Service state is decided beyond reasonable doubt. □ □

32. Different sanctions are applied by civil and criminal courts, such as damages in a civil case and custodial sentences in a criminal case. □ □

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33. In a criminal case, the burden of proving falls upon the prosecution that the defendant committed the offence charged. Both magistrates and judges sitting in the Crown Court decide questions of fact alone. □ □

34. Punishment means that a person must have acted in a blameworthy manner, which establishes the nature of a crime contained in the actus reus (guilty act) and mens rea (guilty mind). □ □

35. An actus reus may be nullified by an absence of causation. □ □ 36. A guilty mind means an intention to commit some prohibited act. A lower

threshold of guilty mind (intention) is satisfied when the defendant recognises an act is dangerous, but decides to commit it (recklessness). □ □

37. The commission of the actus reus together with the formation of the mens rea attracts criminal liability. However, the defendant may raise a defence to the charge against him, such as self-defence. □ □

Spot-Check: Speaking or Writing Activity 1. Say whether the classification of law in your country is similar or different to the UK or US

model. 2. Describe how the routes to legal education in the UK and USA are different from or similar to

your country. 3. Explain how English legal proceedings differ in civil and criminal cases, including remedial

justice and defences available to individuals. State the similarities and differences arising from your legal system.

True or False: KEY

1: T – 2: F – 3: (first sentence T, second one F) – 4: (first sentence T, second one F) – 5: T – 6: F – 7: T – 8: T – 9: (first sentence T, the second one F > other way round) –10: (first sentence T, second one F > other way round) – 11: T – 12: F (it is the other way round) – 13: F – 14: (first sentence T, second one F) – 15: T – 16: T – 17: T – 18: T – 19: T – 20: T – 21: F – 22: F – 23: T –24: F (they often go) – 25: T – 26: F– 27: T – 28: T – 29: F (objective test) – 30: T – 31: T – 32: T – 33: (first sentence T, second one F) – 34: T – 35: T – 36: T – 37: T. Reference

Atiyah E., 1995, Law and Modern Society. Oxford: Oxford University Press. Hedley S., 2005, Tort. Oxford: Oxford University Press. Malleson K., 2005, The Legal System. Oxford: Oxford University Press. Pearsall J., 1998, The New Oxford Dictionary of English. Oxford: Clarendon Press. Slapper E./Kelly A., 1999, The English Legal System. London: Cavendish. Wishart, Chen M., 2005, Contract Law. Oxford: Oxford University Press.