English Legal System

1. English Legal System The Court System in England and Wales Courts having Criminal and Civil Jurisdiction Courts outside the main hierarchy Tribunals

2. Aims The aims of this lecture are: • To describe the system of courts in England and Wales; • To demonstrate how these courts relate to one another in the civil and criminal jurisdictions; • To show how the system of judicial precedent depends on a strict court hierarchy for its operation; • To examine courts outside of the main hierarchy and their functions; • To look at the role and jurisdiction of tribunals.

3. Outcomes • By the end of this lecture you should be able to: • Identify the main courts in the hierarchy in England and Wales; • Describe the appellate structure for those courts; • Identify the type of legal business that is carried on in different courts in the hierarchy; • Name courts outside of the main hierarchy; • Explain the jurisdiction of tribunals and critically evaluate why they were introduced and how far they fulfil their function.

4. Hierarchy of courts in England and Wales • The main hierarchy for courts in England and Wales can be summarised as follows: • The House of Lords; • The Court of Appeal, Criminal and Civil Divisions; • The High Court of Justice; • The Crown Court; • County Courts; • Magistrates’ Courts.

5. The Supreme Court of England and Wales • This concept was created by the Judicature Acts 1873-1875 • Consists of the superior courts of • The Court of Appeal; • The High Court; • The Crown Court. Note that it does not include the House of Lords which was retained because of a change of government after it was passed It should also not be confused with the ‘Supreme Court’ which the government wishes to introduce in the Constitutional Reform Bill 2004

6. Courts of Record • You may come across this term in your reading on courts • Courts of records are court where the proceedings are recorded at the Public Record Office • Superior courts of record are the House of Lords, the Court of Appeal, the High Court, the Crown Court and the Employment Appeals Tribunal • The county courts and coroners’ courts are inferior courts of record • Magistrates’ courts are not courts of record • The superior courts of record have the power to punish contempt of court, whereas inferior courts of record can only punish those committed in court

7. Criminal Courts • The main criminal courts in England and Wales are: • The Magistrates’ Courts; • The Crown Court. Generally, they are first instance courts, or courts of original jurisdiction, although they do have appellate jurisdiction In order to appreciate how work is allocated between them, it is necessary to look at what is called the classification of offences

8. Classification of offences • All criminal offences are divided into: • Summary only offences, triable only in the Magistrates’ Courts; • Either way offences, triable either in the Magistrates’ Courts or the Crown Court; • Indictable only offences, triable only in the Crown Court.

9. The Crown Court’s Jurisdiction • The jurisdiction of the Crown Court may be summarised as follows: • First instance hearing of indictable only offences – the only court which can hear these; • Appeals by those convicted summarily by the Magistrates’ Courts; • Sentencing of those committed to the Crown Court when the Magistrates’ sentencing powers are considered inadequate; • Limited civil jurisdiction over licensing appeals from the Magistrates’ Courts.

10. Criminal Courts – Appeal Structure • Appeal from the Magistrates’ Courts To the Crown Court, or to the Divisional Court of the Queen’s Bench Division of the High Court of Justice by way of case stated on a point of law • Appeal from the Crown Court To the Criminal Division of the Court of Appeal composed of two or three Lord Justices of Appeal

11. Further appeals • From the Queen’s Bench Divisional Court to the House of Lords, although there is an exception in contempt proceedings • From the Criminal Division of the Court of Appeal to the House of Lords Only with leave of the Court of Appeal and on a matter which raises a question of public importance

12. The Civil Courts The main court that people are likely to come into contact with if they are involved with the law is the county court These were established by the County Courts Act 1846 to enable litigants to obtain justice locally more quickly and fairly without recourse to the Royal Courts in London They are based in major towns and cities up and down the country, but bear no relation to the county in which they are situated Extremely busy – 2002 1.6 million claims were issued in county courts, as opposed to 54,500 in the Queen’s Bench and Chancery Divisions of the High Court

13. County Courts • Main work of the county courts: • Contract – where there are no complex legal issues and the value of the claim is under £15,000 • Tort – to the same value, except for personal injury cases where the value of the claim can run up to £50,000; • Family jurisdiction – in domestic violence cases, ancillary relief, private and public law of children.

14. The High Court • Based in the Royal Courts of Justice on the Strand in London Although the Court may sit anywhere (s.71 Supreme Court Act (SCA) 1981) 3 Divisions: • The Queen’s Bench Division; • The Chancery Division; • The Family Division. Note that the divisions are not separate courts (Supreme Court Act 1981 s.5(5))

15. Work of the Divisions • Queen’s Bench Division Contract or tort actions will be allocated to this court if they are unsuitable to be commenced in the county court for one of the reasons dealt with above The Queen’s Bench also has specialist courts: • The Admiralty Court; • Administrative Court; • Commercial Court; • Technology and Construction Court.

16. Admiralty Court • Created in 1971 when the old division of Probate, Divorce and Admiralty was dissolved • Deals with claims for personal injury arising from collisions between ships, or because of defects in the ships, claims for salvage and towage etc… • Its jurisdiction only relates to salvage in tidal waters • Judges in this court often sit with lay nautical assessors

17. Administrative Court • Established in the Queen’s Bench Division in October 2000 replacing the Crown Office List • Deals with claims for judicial review • Permission for judicial review is granted or refused by a single judge • Can be grouped with the Divisional Court of the Queen’s Bench Division which hears points of law by way of case stated from the magistrates’ courts

18. Commercial Court • London is obviously a major financial and business centre • A lot of foreign companies/individuals decide to have their contracts governed by English law • Commercial court deals with business relating to these and internal matters • Deals with banking and insurance cases as well as the construction of complex commercial documents • Has specialised judges which have been appointed by the Lord Chancellor to sit in the court • It has a streamlined system for deciding cases, and may admit evidence that would not otherwise be admissible as well as dispensing with oral evidence

19. The Chancery Division • The Chancery Division is the successor of the old courts of equity which were established by the Lord Chancellor from the fourteenth century • Hence work which has an equitable nature will be found in these courts, e.g. law relating to land and trusts of land in particular • In addition the Chancery Division also deals with bankruptcy, dissolution of partnerships, intellectual property law and company matters • It is a smaller division of the High Court than the Queen’s Bench or Family Divisions

20. The Family Division • Created in 1970 from the old Probate, Admiralty and Divorce division • Reflected growing importance of family law and its recognition as an area of specialisation in its own right • Has original jurisdiction in some matters, wardship proceedings have to be started here • The Divisional Court of the Family Division hears appeals from Magistrates’ Courts on financial provision orders & appeals under the Children Act 1989

21. Court of Appeal • We have already seen that there are two divisions of the Court of Appeal – Civil and Criminal • Civil division hears appeals from the High Court and county court, although there is a ‘leap-frog’ procedure for appeals directly to the House of Lords • The Criminal Division hears appeals from the Crown Court, but not High Court generally • The appeal may be against conviction or sentence and the Court must give its permission or the trial judge certify that it is fit for appeal

22. House of Lords • Final appeal court in England and Wales with unlimited jurisdiction • Has minor first instance jurisdiction such as in relation to contested peerages • The trial of peers by the House of Lords was abolished by the Criminal Justice Act 1948 • Has appellate jurisdiction in civil matters from Scotland • Usually sits as a court of five judges who deliver ‘speeches’ or ‘opinions’ rather than judgments

23. The Constitutional Reform Bill 2004 • The proposals in this bill would lead to the abolition of the House of Lords as a final court of appeal and its replacement with a Supreme Court for England and Wales • The new Supreme Court would take over the appellate functions of the current House of Lords • It would also take over the jurisdiction of the Judicial Committee of the Privy Council in devolution matters • It will not have the power to strike down legislation in the way that the Supreme Court in the United States of America can

24. Coroner’s Courts • These courts date back to 1194 • Currently 138 full-time Coroners and 240 deputy and assistant coroners • Coroners are usually lawyers with a five year qualification within the meaning of the Courts and Legal Services Act 1990 • They deal with the classification of unnatural and violent deaths and also with treasure trove • The coroner may order a post-mortem to be carried out and then subsequently if the death is found to be unnatural, then an inquest may be held • Inquests can be held with juries in certain types of cases

25. The Judicial Committee of the Privy Council • Delivers an opinion to the Queen who is theoretically able to accept or reject • Composed of senior Lords in the House of Lords – hence jurisprudence persuasive in other cases • Has jurisdiction over diverse areas, was until recently an appeal court for Commonwealth countries, and was also the final court for appeals under ecclesiastical law

26. The Judicial Committee of the Privy Council • The JCPC was also given jurisdiction to hear appeals under the devolution legislation that the Labour Government introduced, for example the Scotland Act 1998 • A reference under the devolution legislation may be to consider whether the Parliament or Assembly has the power to undertake a measure • The Queen may refer any matter, whatsoever, to the JCPC for their consideration

27. Tribunals • Established after the Franks Committee (Cmnd 217) 1957 to give effective administrative law relief and also to provide cheaper access to justice • Most important are Employment tribunals and Employment Appeals tribunals • Other tribunals include the Immigration Appeals Tribunal, mental health review tribunals, rent assessment committees, social security appeals tribunals

28. Employment Appeals Tribunal • Created in 1976 • Hears appeals from Employment Tribunals on matters of law • Employment law relating to sex discrimination, equal pay, redundancies, unfair dismissal, disability discrimination etc… • Procedures, in keeping with the Franks Committee report are relatively quick and accessible • Evidential rules are not strictly applied and the parties may represent themselves or have a trade union representative

29. Advantages of tribunals • Slapper & Kelly identify the following advantages of tribunals: • Speed; • Cost; • Informality; • Flexibility; • Expertise; • Accessibility; • Privacy.

30. Disadvantages of tribunals • They also identify the following disadvantages: • Appeals procedure; • Publicity; • Provision of public funding.

31. European and International Courts • The European Court of Justice • The European Court of Human Rights • The International Court of Justice

32. The European Court of Justice • This ECJ and the Court of First Instance have jurisdiction over matter of European Community Law • The court consists of judges from each of the member states from which a President of the Court is elected • The ECJ considers references made by the courts of member states as to the interpretation or validity of Community Law • The ECJ is there to preserve the uniformity of the law across the member states

33. Summary of lecture • You should now be able to: • Identify the main courts in the hierarchy of courts in England & Wales; • Identify which courts have criminal and civil jurisdiction; • Describe the difference between a court of first instance and an appellate court, as well identifying the different functions which the courts in the hierarchy in England and Wales exercise; • Identify the main provisions in the Constitutional Reform Bill 2004 for the creation of a new Supreme Court for England and Wales; • Describe other courts outside of the main hierarchy and their jurisdiction.

34. Further reading • Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition) • Smith, A.T.H, Glanville Williams Learning the Law (London: Sweet and Maxwell, 2002), pp.4-18

35. Further reading • Partington, M., Introduction to the English Legal System (Oxford: Oxford University Press, 2003, 2nd edition), read in particular chapters 6 and 7 for an overview of the role played by tribunals and courts in providing administrative and family justice