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Evaluation of the English Court System

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There are both positive and negative views in relation to civil and criminal court proceedings.  Judges and magistrates are often stereotyped and juries criticised for not being representative the community from which they are drawn.  However, the legal system as a whole is often commended for its ability to promote justice and achieve results efficiently.  This report intends to examine court proceedings and challenge and confirm preconceptions and stereotypes.

I attended the Manchester County Court situated on Deansgate, which was relatively small court with just two courtrooms.  This could suggest that there is less need for Civil courts and supports the view that alternate dispute resolution (such as mediation, arbitration and conciliation) is actively encouraged and successful.

The entrance was not at all imposing and there were people on hand to instruct me.

The layout of the courtroom itself was different to that of the Crown Court in that there was no raised layers, except that of the recorder and the judge, who sat on progressively raised platforms, and no defendant box.  Another difference was that there were no police present.

The judge, as expected, was a middle-class, middle-aged, white male, and the courtroom was dominated by males, of which none were from the ethnic minorities.  This supports the idea that the courts are in much need of reform, as they do not reflect the diverse society in which we live.

I heard a number of cases which were mainly procedural (for example one involved a claim for personal injury but was merely a request that the claimants injuries be re-examined some months later).  The main case (of which evaluation will follow) debated the liability of the local Stockport council for personal injury, which arose because of a defect (a small pothole) in the pavement.  The issue at this point was whether or not the defect was in fact actionable at the time of the accident, and if so was it obscured (the defence claimed by rain and consequently puddles) so much that it would not be reasonable to expect the defendant to notice the defect.

The defence, in my opinion delivered a strong and convincing argument, so much so that I thought the judge would find in their favour.  The witnesses were cross-examined and a number of discrepancies in witness statements were found, including that if the pothole was in fact actionable at the time, why were there no reports of such, since it was something that neighbours had noticed several times?  Ultimately, the judge did find in favour of the claimants.  This could be considered as evidence to support the view that the courts rule to protect the weaker party (an example of such in operation is in exclusion clauses in contract law which applies the “contra proferentem” rule).  It shows how judges may “reason backwards”.

However, could also be said to confirm fears that the courts are in need of reform to put a stop to the “claim culture” in which we now live[1].

One factor which may discourage parties from claiming is the extensive questioning and cross-examination that they are subject to.

Cases in the County Court would be comprehensible to lay persons.  In fact, this may be somewhere that the law has excelled, for example there were re-phrasing of questions that were not understood and lawyers responded well when asked to speak up.

By the time that the case had come to the County Court, there was no question of statutory interpretation or matter of law.  It was merely a matter of fact.  There was no reference to judicial precedent and only the relevant sections of a statute were cited.  This supports the idea that the purpose of the courts is to discuss, question and decide on evidence.

One thing that did surprise me during my visit challenges the idea that the courts are reluctant to admit mistakes.  Both the defence barrister and the judge in this case recognised that there are problems within the court system and that they do not always get it right.  This is contrary to the view that the courts avoid displaying weakness by denying error (apparent in their reluctance to overrule or depart from previous decisions).

The judge at the end of each case would discuss the costs and decide who would pay them (where a final decision wasn’t made).  In the majority of the cases, where a final decision had not been made, the costs were deferred.  However, there were some instances in which parties incurred costs where it could be claimed that it was in fact unjust.  For example, a case that involved liability of personal injury arising out of a road traffic accident saw two defendants present.  The costs fell upon the second defendant merely because they had failed to make an earlier date agreed.

The judge did, however, question the costs of each party, suggesting that the true purpose of compensation is to provide restitution, rather than to punish the defendant/reward the claimant.

Most parties were well presented by the appropriate advocates.  The case involving a road traffic accident, however, saw one party defending himself.  This perhaps supports the view that legal aid is limited and not always available to everyone.  The simplicity of much of the proceedings, however, meant that the case was well understood.  This may be an attempt to make the legal system accessible to all.

In relation to legal skills, all lawyers were able to demonstrate these, at varying levels.

Legal skills refer to effective research, problem solving, and communication and organisation skills.  All parties claimed to be fully prepared but there were a few instances in which their organisation let them down, for example, some failed to provide copies of witness statements when called upon.  It was surprising that, although the judge disapproved, no party was penalised for such behaviour.  It may be that this is a regular occurrence and the courts are not as efficient as they perhaps should be.

The role of the barrister was, as expected to present the cases and the solicitors role was to do the main body of preparatory work.  There were a few instances in which the barrister would refer to the solicitor asking if all the points had been covered or if there were further points that they felt relevant to discuss.

The factor that surprised me the most in the proceedings was the little or no use of precedent.  The English law system is one of common law, as opposed to a civil law system, which suggests that much emphasis is placed on precedent and “judge-made law”.

My choice of criminal court was the Crown Court on Minsull Street in Manchester City Centre.

The layout of the Crown Court was fairly complex, due mainly to the large number of courtrooms.  There were two floors and ten courtrooms.  It seemed much more imposing than the County Court.  This may have been due to the many courtrooms and the presence of police.  The courtroom itself consisted of a defendants box in the centre, a raised platform where the judge sat and judge, and a depressed area in the middle in which the barristers and solicitors sat.  I sat in a fairly traditional courtroom in which the jury sat in a high gallery, which allowed them to see everything clearly.  One had to venture upstairs to the public gallery, which was at the back of the courtroom.

The judge conformed to the stereotypical image of a middle-class, middle-aged, white male.  In fact, the courtroom was dominated by white middle class males.  There were no representatives from ethnic minorities, and a relatively low amount of women.  This supports the view that legal advocates are drawn from limited social backgrounds and of restricted age, status and sex.  

During my time in the Crown Court I witnessed a number of cases, the first of which simply involved a sentencing.

        The case involved a 41year old male who was a repeat offender.  He had committed twelve burglaries (and at least two further burglary offences whilst he was on bail and under a community punishment order) after just being released from prison for the third time.

        Despite the number of offences, he was given just 4years imprisonment, which would allow him to qualify to be released after 2years.  This sentence did appear to indicate towards one or two aims of sentencing.  There are a number of reasons that a judge may use for the type of sentence that he gives including rehabilitation, retribution, reparation, incapacitation and deterrence.

        There is a question in this case of whether or not the judge imposed a fair sentence.  It could be argued that he did attempt to justify his decisions by taking into account a number of aggravating and mitigating factors, for example the high volume of offences went against the defendant but the fact that he had been rehabilitated after drug abuse went in his favour.  However, in my opinion it was a relatively low sentence for the high volume of offences.

The judge seemed to be consistent with his decisions, in that he always took into account any factors.  The minimum sentence was always cited but not always followed.  The minimum sentence for burglary for example was just two years.  

        This case challenged the view that community punishment orders have a fairly low count of re-offending but supported the view that prison sentencing is extremely ineffective.

         The sympathy towards the defendant was actually very surprising to me.  Punishments in my opinion do not seem to encourage deterrence. Before my visit I would have assumed that, due to the social backgrounds judges are drawn from and the need to stop further crimes, they would be against the defendant from the start.  I made a mistake in such a stereotype.

        Similarly, the judge’s attitude towards the police was surprising.  My original thoughts were that the judge would completely side with the police.  However, although he did mention that he felt sympathetic towards the police, the evidence that they gave was disallowed.

Another case involved a trial of a defendant who had been accused of inappropriate sexual behaviour with a child almost twenty years ago.  The allegations came from two women, now in their late twenties.

The jury was composed of 12 members, a mixture of male and female and of a range of ages.  There were, however, no ethnic minorities.  This was as expected.  It is often presumed that juries are under representative of the local community, and this presumption was actively confirmed.  

The role of jurors is to listen to the facts and decide on the case and trial by jury has in the past been described as the lamp that shows that freedom lives[2].  They are meant to be independent assessors and are intended to promote natural justice.  It has often been argued that it is an ineffective method of promoting justice as some of the cases (such as fraud) are too difficult for such “ordinary” members of the community to understand (although section 44 of the Criminal Justice Act 2003 says that the prosecution may, in very serious cases apply for trial by judge alone).  It may be a problem for the court in that they cannot question the decisions of juries (Section 8 Contempt of Courts Act 1981) and that juries do not need to give reasons for their decisions.

It has also been suggested that lay people such as juries are given too much power.  The Auld Report 2001 suggested that juries will often acquit defendants on the basis of conscience, or because they feel that the sentence is too harsh.  This links in with the concept of the “dishonest juror”, and suggests that juries will often favour of the defendant if they are matters that they do not consider to be wrong.  For example, almost 50% of insurance policyholders would consider making a false insurance claim and 40% considered it acceptable to exaggerate the value of a genuine claim[3].  Furthermore, just 35% would question being paid in cash in order to evade liability for tax[4].  Issues of such therefore may lead to unjust decisions.  It has also been known for juries to get things wrong.  For example, in the case of R v Young[5]the jury claimed to have been contacted by the deceased victim in an ouija board.  Needless to say it was necessary for a re-trial to be conducted.

        Although there have been suggestions that trial by jury should be reduced, the English legal reforms have never attempted to completely abolish the jury system.  In fact, reforms have actively tried to encourage participation (most recently in the Criminal Justice Act 2003which abolished the right to excusal on the basis of professions such as doctors and lawyers).  

         Something that I agreed with completely was the assumption that jury trials are unduly long.  The fact that everything has to be explained in layman’s terms and directed to the jury in addition to the judge means that jury trials take a considerable amount of time.

The defence barrister in the case involving the alleged sexual abuse stated the importance of the jury and directed them to consider both the credibility of the witnesses and the defendants’ usual character and personality.

The judge also directed the jury well, explaining fully the procedure of questioning and summing up speeches.  The case itself was easy to follow, entirely different from what I had expected, and would be comprehensible to lay people.  I was surprised at how simple the facts of the case were presented.  As in the County Court there was little reference to precedent, and only a stating of the section that applying within the relevant statute.

Since the case was so long, the conclusion was set to be another day, and so I wasn’t able to see the outcome.  However, there were a number of effective arguments that I believe may have influenced the decision of the jury against the defendant.

The prosecution advocate in the sexual abuse case, for example, was successful in finding discrepancies in witness statements.  A simple mistake as to the age of the children at the time of a family trip lead the prosecution to continue in saying that the rest of the statement may therefore be largely discredited, as recollection was obviously hazy.  Since the defence relied on the most part on the witness statements, and so this may have influenced the outcome of the case.

        The proceedings in the Crown Court appeared much more formal than those in the county court.

         My visits to the courts proved that there are several discrepancies in the way that people view the proceedings.  The courts in general are efficient in hearing cases and achieving results.  Whether or not the narrow background of judges, juries and other legal advocates allows them to sympathise with the general public and reflect true justice is a matter which is questionable.  Overall, it was a valuable insight into the proceedings of criminal and civil proceedings.


[1]http://news.bbc.co.uk/1/hi/business/2813613.stm

[2] Lord Devlin, Trial By Jury, Pages 164-165

[3] The Association of British Insurers, 2003

[4] MORI Poll for the Sunday Times, October 1985

[5][1995] QB 324

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