Produce a report that looks at the functions of each court, with emphasis on distinctions - Compare the different courts and their functions, the appeal routes available - Summarise the training and appointment of the judiciary making proposals for reform
Produce a report that looks at the functions of each court, with emphasis on distinctions. Compare the different courts and their functions, the appeal routes available. Summarise the training and appointment of the judiciary making proposals for reform.
Introduction
The aim of this report is to provide an understanding of the court structure with in the English legal systems' with reference to their jurisdiction in the law. It also explains the role of tribunals in the court structure, describes the appeal routes, as well as looking at the judiciary, who have the role of presiding on cases brought before the courts and administering justice accordingly. It also looks in detail at the proceedings of the Crown and Magistrates' Courts. The report also looks at areas which may need reform and makes proposals for such reforms.
The Legal Process
There are two main distinct areas within the English court structure, and its arrangement is set accordingly. The court structure can seen to have a civil process and a criminal process with various courts assigned to deal with either criminal matters or civil matters. The report will begin be examining first, the court involved in the civil process and then the courts involved in the criminal process.
Civil law deals with disputes between individuals and the purpose of civil law is to remedy a wrong that has been suffered. In civil cases litigation is initiated by the claimant, the person making the claim, the claimant can be an individual person, a company or a public authority. The party the claim is made against is known as the defendant, who again can be an individual, a company or even a public authority. In civil cases the burden of proof lies with the claimant who must prove the claim or case on a balance of probabilities. The decisions or verdicts in such cases can find in favour or against the claimant by finding the defendant 'liable' or 'not liable' to the claim. Should the defendant be found liable he is subject sanctions or remedies such as paying damages or court injunctions and orders. It should also be noted that the losing party to a claim made in the civil courts, whether that is the claimant or the defendant, they must bear the costs of the litigation. Claims that are brought to the civil courts are often about breaches to contract, civil torts (civil wrongs) by one individual against another, claims of personal injury, land disputes and divorce proceedings.
The small claims court is in fact part of the County Court and its aim is to settles disputes arising from smaller claims without sending the case to the county or High Courts, which are already congested with claims, as well as making smaller claims easier and more affordable. The small claims court or small claims track as it is known, deals only with claims of a financial value of £5,000 or less and in cases of personal injury of claims of £1,000 or less. There is no public funding available (formerly known as legal aid) for such claims as the small claims procedure is meant for self-representation. However there are no rules barring any one party to the claim from seeking representation, and as mentioned before the court costs for any representation cannot be claimed by public funding or even from the losing party who must bear the cost of the action being brought. In small claims track it is only the court costs and the claim itself that maybe recovered. This would leave one party at a disadvantage should they be unrepresentative against a party that is represented, especially in such cases where an individual brings action against a large company who would no doubt be represented by solicitors. The small claims procedure is very informal with none of the traditional wigs or gowns worn as in most of the other courts and the strict rules of evidence do not apply as to what evidence would be admissible, again an indication of the idea that the court is meant for self representation and is as a result less formal in procedure than other courts.
The claims are heard by judge's known as district judges and sit alone in when hearing the claim. They are required by s71 of the Courts and Legal Services Act 1990 to have been either a practicing barrister or solicitor for 7 years before their appointment as district judge. The Lord Chancellor who is in charge of the entire English Legal System, and whom we will look at later, appoints the District judges by provision of the County Courts Act 1984. When appointed the judge undergoes a short training programme which covers matters such as rules of evidence, communication skills, ethnic awareness, and undertake a civil law induction programme.
The judge hears the claim, and based on the facts can either find in favour of the claimant and find the defendant liable or in favour of the defendant and give a verdict of not liable. An appeal can be made by the losing party on the District judge's decision, to a circuit judge, who is a judge in the more superior County Court. The Circuit judge may use his discretion to either dismiss the appeal should he be satisfied with the District judge's decision or list the claim to be reheard by a Circuit judge. It is important to note a more superior judge, the Circuit judge, rather than the County Court, which is a more superior court, hears the claim.
As mentioned above the County Court is superior court to the small claims track. The County court is also known as the fast track following the introduction of the Civil Procedure Rules, which also established the hearing should take place within thirty weeks of the action beginning. The County Court deals with any claim with a financial value between £5,000 and £15,000, and for claims of personal injury between £1,000 and £50,000. The claim can be heard from any County Court from which the claim is made and summons are served, however the defendant may have the claim transferred to be heard in a County Court which is local to where he lives or works. The concept behind this idea is not to inconvenience the defendant, as it is the claimant bringing the action. The County Courts hears most civil cases on a wide range of disputes, from contract law disputes to insolvency within the courts financial jurisdiction. The County Court also hears most cases of divorce unless they are contested or of a complex nature, in which case they are referred to the more superior court, the High Court.
The claims in the County Court are heard by a Circuit judge, who presides over the claims alone as a District judge does in the small claims track. By s16 of the Courts Act 1971, as amended by s71 of the courts and Legal Services Act 1990, a Circuit judge is required to have ten years experience as a practicing barrister and are often appointed from part-time Recorder judges who shall be discussed later. The Queen on advice of the Lord Chancellor appoints Circuit Judges, who are assigned by s26(1) of the Courts Act 1971 and by s5 of the County Courts Act 1984 to hear cases in the County Court and the Crown Court. The Crown Court will be looked at when discussing the criminal process. Circuit Judges remain in office until retirement at the age of 70, as directed by the s17 (1) of the Courts Act 1971, however they may be continued in office until the age of 75 by the Lord Chancellor. However by s16 (4) of the Courts Act 1971 the judges maybe removed from office for misbehaviour or incapacity. Incapacity being the permanent inability of performing their judicial duties, this can be as a result of either physical or mental impairment.
Recorder judges may also sit in the County Courts as authorised by s5 of the County Courts Act 1984. They require 10 years experience as a barrister and are appointed by the queen on advise of the Lord Chancellor, as with the circuit judge. They also required to retire at the age of 70 by s17 of the Courts Act 1971 and can be removed from office for misbehaviour or incapacity as provided by s21 (6) of the Courts Act 1971. As well as Circuit Judges and recorded judges s9 of the County Courts Act 1984 provides that District judges of the small claims track can here lower value claims in the County Court should both parties to the claim agree to it.
The High Court is the next superior court to the County Court and by s1 of the Supreme Courts Act 1981 is a constituent of the Supreme Court. The High Court has jurisdiction to hear cases of financial value of above £15,000 or in claims of personal injury above the value of £50,000.
Like the County Court and the small claims track the High Court's main jurisdiction is in civil law. It also however functions as an appellate court that is it can hear cases on appeal, which come from the County Courts. Unlike the inferior courts in the civil process the High Court has some jurisdiction in criminal law and can hear appeals on a question or fact of law from the Magistrates' Court, this function will be looked at when examining the courts in the criminal process.
The cases heard in the High Court are heard by High Court judges known as Puisne Judges who sit on the bench alone. Puisne Judges are required by s10 of the Supreme Courts Act 1981, as amended by s71 of the Courts and Legal Services Act 1990 to be a practicing barrister of the High Court for 10 years or a circuit judge for two years. They are appointed by the Queen on advice of the Prime Minister and hold office up until they are required by the Judicial Pensions and Retirement Act 1993 to retire at the age of 70. However the Lord Chancellor can remove them from office by authority of s11 of the Supreme Courts Act for misbehaviour or for incapacity, should they become incapable of performing their judicial duties. The Supreme Courts Act assigns them to sit in the High Court and allows for them to sit in the Crown Court.
Through schedule 1 of the Supreme Courts Act1981 the High Court comprises of 3 divisions, they are the Chancery Division, the Family Division and the Queen's Bench Division. Each individual division of the High Court has its own jurisdiction as to the kind of cases it hears, each dealing with particular areas of civil law.
The Chancery Division is the smallest Division of the High Court and considers complex claim of financial value above £15,000 on matters and disputes about will, trust, bankruptcy, land law, corporate law and copyright and patent laws. The Lord Chancellor in theory heads the Chancery Division but in practise the vice chancellor undertakes this role. The queen on advice of the prime minister appoints the vice chancellor, who is required by s10 of the Supremes Courts Act 1981,as amended by s71 of the Courts and Legal Services act 1990,to be a High Court judge or a barrister of ten years standing. The vice chancellor holds office until retirement as directed by the judicial pensions Act 1993, at the age of 70. However they can be removed from office for misbehaviour or incapacity as provided for by s11 of the Supreme Courts Act 1981. The current vice chancellor is Sir Andrew Morritt.
The family Division is another Division of the High Court. The family division deals with cases of complex or contested divorces, child welfare matters, and the administration of wills. The child welfare matters include proceedings brought by child protection agencies such as charities and local authorities against individuals. Other cases include claims of guardianship, complex adoptions and ward of court.
The head of the family division is the president, and requires the same qualifications as the head of the Chancery Division of the High Court. The appointment is made by the Queen on advice of the Prime Minister, the president is subject to the same rules and acts governing the tenure and retirement, therefore holds office during good behaviour and capability to perform the duties required by the position and is required to retire at age 70. The current President of the Family division of the High Court is Dame Elizabeth Stolt.
The Queen's Bench Division is the largest, and the busiest division of the High Court. The Queen's Bench division of the High Court deals with claims arising from disputes about contract law, the law of tort such as defamation, and personal injury claims above £50,000 as stated above. The head of the Queen's Bench Division is the Lord Chief Justice whose appointment will be looked at later when discussing the criminal process, as he is also the head of the criminal process.
As stated earlier the High Court also has an appellate function. Each of the divisions ...
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The Queen's Bench Division is the largest, and the busiest division of the High Court. The Queen's Bench division of the High Court deals with claims arising from disputes about contract law, the law of tort such as defamation, and personal injury claims above £50,000 as stated above. The head of the Queen's Bench Division is the Lord Chief Justice whose appointment will be looked at later when discussing the criminal process, as he is also the head of the criminal process.
As stated earlier the High Court also has an appellate function. Each of the divisions has an appellate jurisdiction and can hear cases on appeal from the County Court.
When functioning as an appellate court, each division hears cases on appeal in areas of law the division has jurisdiction to hear, so the appellate court of the chancery division, known as the Divisional Court of the Chancery Division, will only hear appeals from the County Court on cases which involve trusts, wills, land law, and copyright laws. The Divisional Court of the Family division will only hear cases on appeal to do with child welfare, the administration of wills and divorces, it may also hear appeals on ancillary relief, which is the division of property. The Divisional Court of the Queen's Bench Division hears appeals from the County Court on cases involving civil torts (such as defamation), personal injury claims, and appeals in cases on contract law. The appellate divisions of the High Court can only hear appeals from inferior courts and cannot hear appeals from the divisional courts of the High Court, appeals from the divisional courts of the High Court can be made to the Court of Appeal (Civil Division), which will be examined later.
When the High Court is sitting as a divisional court or as an appellate court, the judges sit as a panel of three, and one of the judges who sit on the bench is the head of the division, so if the case went to the Divisional Court of the Family Division, the President would be one of the three judges presiding over the appeal hearing. The other two judges would be Puisne Judges.
As well as its function as a trial court and an appellate court the High Court also has a Supervisory role to conduct the process of the Judicial Review. The role is undertaken by the Divisional Court of the Queen's Bench Division. Judicial review is a process by which powers delegated to public bodies, such as local authorities, courts and government departments, are not exceeded and are exercised in a way according to which they were prescribed. Judicial review ensures that public bodies are not making decisions they have no authority to make, that is they are not acting ultra vires (beyond the powers of).
By process of judicial review the way in which a decision was made is reviewed, and not the decision itself. The Divisional Court of the Queen's Bench Division cannot substitute the public bodies decision with one of it's own but should it find that the decision of the public body is ultra vires, it can make what is known as a prerogative order to remedy the decision taken by the public body. These prerogative orders are only available through judicial review. The orders that can be made are a mandamus order, which compels a body to carry out a function it should, a prohibition order, which forbids a body from exceeding its authority, or a certiorari order, which is an order that quashes (cancels) a previous decision made by a public body on the grounds that it has acted beyond its powers. The Divisional court may grant more than one of these orders together. Judicial review is an important function of the Queen's Bench Division as it allows the courts to exert control over the powers delegated to public bodies by parliament, and shows to society as well as the public bodies themselves, that everybody is answerable in the court of law.
The Court of Appeal is the second highest court in the English legal system and is superior to the High Court and County Court. The Court of Appeal was established by the Supreme Judicature Act 1973-75, and is one of the three constituents of the Supreme Court, the others being the Crown Court and the High Court. The Court of Appeal has two divisions, a criminal division, which we will examine later when looking at the criminal process, and a civil division.
The jurisdiction of Court of Appeal (Civil Division) is to hear appeals only in civil matters, from the High Courts and the County Courts. As with the Divisional courts of the High Court, the Court of Appeal (Civil division) has an appellate jurisdiction, but unlike the Divisional Court of the Queen's Bench Division the Court of Appeal has no jurisdiction in criminal law at all. The court of appeal, like the High Court, and the County Courts is bound by its own previous decisions, and by decisions of superior courts, in this case it would be decisions of the House of Lords.
For a case to be heard by the Court of Appeal (Civil Division), leave is needed, by either the High Court where the case was initially heard or appealed to or from the Court of Appeal (Civil Division). Appeals can be made only on cases that involve a fact or question of law that has been considered by the High Court. Appeals can be made against a decision given in a case, or on the damages awarded.
The Court of Appeal (Civil Division) has jurisdiction to overturn a decision of the lower courts, reduce awards made to parties involved in civil litigation, as in Ratzen V. Mirror Group Newspapers [1993] 4 All ER 975,where the Court of Appeal reduced a jury's libel award to half the initial sum. The court of appeal however, also has jurisdiction to increase awards made, should an appeal be made against the sum awarded as in Cumber V. Chief Constable of Hampshire [1995], where on appeal a jury's award of £50 increased to £500 for false imprisonment.
The Master of the Rolls, currently Lord Phillips, supervises the civil division of the Court of Appeal. The Master of the Rolls is required by s10 (3) of the Supreme Courts Act 1981 to have a practicing barrister for 10 years or to have been a High Court judge for at least two years before appointment. The Queen on advice of the prime minister makes the appointment of Master of the Rolls, and s11 of the Supreme Courts Act 1981 provides he may remain in office during good behaviour, and is required by the Judicial Pensions and Retirement Act to retire at the age of 70 years. By authority of the Appellate Jurisdiction Act 1947, the Supreme Courts Act 1981, and the County Courts Act 1984, the Master of the Rolls may preside in the House of Lords, the Supreme court (that is the Court of Appeal, the High Court and the Crown Court) and on direction by the Lord Chancellor in the County Court.
The judges who sit in the Court of Appeal (both civil and criminal division) are known as Lord Justices of Appeal. They are required by statute (s10 Supreme Courts Act 1981, as amended by s71 of the Courts and Legal Services Act 1990), to have been a practicing barrister for 10 years or a High Court judge for at least two years before appointed to the Court of Appeal. The queen, on advice of the prime minister, appoints them to office and as with the Master of the Rolls, they remain in office during 'good behaviour' and are required to retire at the age of 70. However the Lord Chancellor on the grounds of incapacity can remove them from office, as applies with other judges. When sitting in the Court of Appeal, they assemble as a panel of three or five, so a decision can be reached by majority.
The court at the apex of the English legal system is the House of Lords, or to give to it it's full name, the Judicial Committee of the House of Lords. The House of Lords has lost much of its original jurisdiction and could be said to be almost exclusively appellate, as is the role of the Court of Appeal. However it has retained its right to sit as a court of first instance, that is a trial court, in cases of breaches of Parliamentary privileges, and has also reserved the right to hear disputed peerage claims.
The House of Lords is the final appeal court within the United Kingdom for both civil and criminal law, this jurisdiction of the House of Lords comes from the Appellate Jurisdiction Act 1876. The appeals heard, mostly come from the relevant division of the Court of Appeal, that is, either from the criminal division or the civil division for appeals on cases in criminal law or civil law respectively. The House of Lords also hears appeals from the Scottish Court of Session for civil matters only, the Supreme Court in Northern Ireland, and in rare cases form the High Court by means of the 'Leapfrog' procedure.
Most cases as we stated above come from the Court of Appeal, s1 of the Administration of justice Act 1934 (as amended), provides that an appeal may be taken from the Court of Appeal (in both civil and criminal cases on appeal) to the House of Lords:
'On cases which are on arguable points of law of general public importance' -Procedure Direction [1988] 2 All ER 831
However permission is required from either the Appellate Committee of the House of Lords or from the relevant division of the Court Appeal. Known cases, which have been appealed to the House of Lords, is the Spy catcher case, the case of Diane Pretty, or more publicised case of General Pinochet.
The House of Lords, unlike the court of Appeal and all the other inferior courts, is not bound by its own previous decision or any decision by made by any other court. Although most appeals on cases in civil law go from the High Court go to Court of Appeal, as stated before the Court of Appeal in very rare cases hears appeals directly from the High Court. This procedure is known as the 'Leapfrog' procedure and was established by s12 of the Administration of Justice Act 1969. The reason for the 'leapfrog' procedure is that if the appealed case were to go to the Court of Appeal
(Civil division), the Court of Appeal would be bound by a previous decisions made by the House of Lords. That would make such an appeal to the Court of Appeal a waste of time and money, when rationally the only court which can look at the case on its own merits is the House of Lords as it is not bound by any precedents and can depart from any previous decisions it has made.
The leapfrog procedure can only be used if both parties to the litigation (the claimant and the defendant) agree to it and the High Court judge grants a certificate that certifies the appealed case to be on a point of law that is of general public importance, and secondly, on a point of where the High Court judge hearing the appealed case or proceedings was bound by precedent, which had been fully argued.
The decision to grant such a certificate lies with the High Court judge and cannot be appealed, should such a certificate be granted permission is still required by the House of Lords Appellate Committee so that the appeal may be heard.
The first case to use the 'leapfrog' procedure was American Cynamid Co V. Upjohn Co (1970)- a case concerning the revocation of a patent.
As well as hearing cases of appeal from within the United Kingdom, the House of Lords also has jurisdiction to sit as the Judicial Committee of the Privy Council. When sitting as the Privy Council the House of Lords can hear appeals from cases outside of the United Kingdom, from countries that come under the Queen's recognised territory or from members of the Commonwealth who have not abolished their right to appeal to the Privy Council.
The person who heads the House of Lords, and in fact oversees the whole English legal system is the Lord Chancellor, currently Lord Irvine of Lairg. The appointment is a political one and is made by the Queen on advice of the Prime Minister. The Lord Chancellor is often a cabinet minister of the serving government and is subject to 'reshuffling' like any other member of the cabinet, and his appointment lasts as long as the Government remains in power. In practice the Lord Chancellor is always an experienced barrister and sometimes a member of the judiciary. The Appellate Jurisdiction Act 1947assigns the Lord Chancellor as senior judge in the House of Lords, s1 of the Supreme Courts Act 1981 establishes his role as president of the Supreme Court, and s2 and s4 of the same act provide the Lord Chancellor with jurisdiction to sit in the Court of Appeal (both divisions) and High Court respectively.
The Appellate Jurisdiction Act of 1947 also provided the House of Lords wit 'life peers' who had legal training. There are twelve life peers who are given the title of Lords of Appeal in Ordinary, but are also known as 'Law Lords'.
These life peers hold a judicial role in the House of Lords and are appointed to the House to form the Appellate Committee of the House of Lords, and carry out the judicial function of the house to hear cases on appeal, however other peers, who in the past have held or currently hold high judicial office may be invited to sit as a panel in the House of Lords. High judicial office means a judge who has jurisdiction to hear cases in the Supreme Court and above. By tradition two life peers are chosen from Scotland. The current Law Lords include Lords Bingham, Slynn, Nicholls , Steyn, Hoffman, Hope, Hutton, Hobhouse, Saville, Millet, Scott, Rodger, Woolf, and Philips.
The Lords of Appeal in Ordinary are required by s6 of the Appellate Jurisdiction Act 1876, as amended by the schedule 10 of the Courts and Legal Services Act 1990, to have held high judicial office for a minimum term of two years or to have been a practicing barrister of the Supreme Courts for 15 years or more. The Act also provides the tenure of law lords to be quamidiu se bene desserint, that is during good behaviour, the same act also assigns them to sit as judges in the House of Lords and as with many other members of the judiciary, they are required to retire at the age of 70.
Litigation has a number of disadvantages as a way of settling civil disputes and does not always achieve the best solution. A tribunal is a way of settling a dispute without having to start civil proceedings. Tribunals have been defined as:
'Bodies outside of the hierarchy of the courts with administrative or judicial functions'
the main functions of a tribunal is to resolve disputes between government bodies and an individual, or between individuals in an area of law on which legislation has been to 'govern the conduct of their relations.'
Tribunals usually consist of three members; the three lay members often consist of two persons who have specialist knowledge regarding the nature of the tribunal (for example, should the tribunal involve a specialist subject like medicine, it would be more appropriate to have persons who are familiar with the subject of medicine sit ), and a chairman, who is independent. In accordance with s71 of the Courts and Legal Services Act 1990, a chairman is requires to have been a practicing solicitor for at least seven years, and are also required to undertake training provided by the Judicial Studies Board and are selected by the Lord Chancellor, as authorised by s6 of the Tribunals and Inquiries Act 1992.
There is no legal aid available for tribunals as is the situation with the small claims track, except in land tribunals, employment tribunals and mental health review tribunals. Again as with the small claims track, tribunals are not strictly bound by the rules of evidence as to what is admissible.
Tribunals are subject, like all inferior courts, to the supervisory role of the Queen's Bench Division which may review a tribunals decision should an application of judicial review be made by a party to the tribunal and may decide to issue prerogative orders against the tribunals decision should it find that the tribunal acted ultra vires.
Section 11 of the Tribunals And Inquiries Act 1992 allows for appeals against certain tribunals decision be made to the Divisional Court of the Queen's Bench Division on points of law. However in industrial tribunals, appeals must first be made to an employment appeal tribunal.
Tribunals are a quicker way of settling a dispute than bringing civil proceedings and are far cheaper as fees are charged to bring a dispute to tribunal, unlike the civil courts where court costs are charged to bring the action. Each individual party, irrespective of who wins must meet any costs for representation, whereas with proceedings in civil courts with the exception of the small claims track, costs tend to be met by the 'losing' party.
In tribunals persons who specialise in particular areas the tribunals are concerned with chair the proceedings whereas in a court the dispute is heard by a judge who may have no understanding of the area the tribunal is concerned with. The tribunal is informal and does not follow its own precedents however is bound by those set in court.
Criminal law differs to civil law as it deals with crimes against the state, rather than disputes between individuals, which are what civil are concerned with. In criminal law, proceedings or the prosecution are brought by the Crown Prosecution Service on behalf of the Crown and the person being prosecuted is known as in civil case, as the defendant. The purpose behind criminal law and prosecutions is justice to the victims who have been wronged and to preserve order in the community by punishments and deterrents. Unlike in civil law, proceedings do not have to be brought by an individual wronged against the person who has committed the crime, but the crown will bring action against such a person. Unlike civil cases where the burden of proof lies with the claimant who must prove his case on a balance of probabilities, the burden of proof in criminal cases lies with the prosecution who must prove there case beyond reasonable a doubt, and there is little or no chance of thinking that the defendant may be innocent. The sanctions that can be applied by the criminal courts are imprisonment, fines, community service orders and other types of sentences, unlike civil courts where only damages or injunctions can be awarded. As with the civil process the criminal process also has its own court hierarchy structure when dealing with criminal law, these include the magistrate's court, the Crown Court, and Court of Appeal (Criminal Division).
The Magistrates Court is the most inferior court in the criminal process and has extensive functions and broad jurisdiction, involving both civil and criminal law. The Magistrates' court could be said comprise of three smaller courts, they are: the Magistrates' court itself, the youth court and the coroner's court.
The coroner's courts are amongst the oldest courts in our legal system, and most of its original functions have been passed on to the Magistrate's court. It has however retained its most important function, which is to establish the cause of death in cases of sudden or unexpected deaths. To find the cause of death the coroner may open an inquest, which is the investigation into the cause of a death. Once the coroner has completed his investigations he may arrange an inquest hearing and notify the interested persons- often relatives of the deceased, the police, insurance companies and beneficiaries of the persons estate.
The inquest is not a trial court but a hearing that hears facts, and as with civil courts reaches a verdict on the balance of probabilities. The 'verdict' is what the inquest objective is; that is to find what caused the death of an individual.
The verdict is defined by the circumstances of the death and include; death by natural causes, suicide, accident or misadventure, unlawful killing, lawful killing still birth and in some cases an open verdict where no cause of death could be established. As with tribunals and the small claims track the strict rules of evidence do not apply as to what is admissible as evidence. Another role the coroner's court has retained is treasure trove; this allows the inquest to determine the ownership of discovered treasure. The coroner is an independent judicial officer. The coroner's decisions are subject to judicial review in the High Court should an application be made.
The Youth court is also part of the magistrate's court but is often in another building or has a separate entrance as a way of segregating the young children from the adult offenders. The law classes children between the ages of 10-13 years as children and those between the ages of 14-17 years as young persons and tries them in the youth court unless the crime is of murder in which case in which case they are tried in the Crown Court. Any child that commits a crime under the age of 10 years is not held responsible for his actions as the court will assume the child has no way of distinguishing between right or wrong. The proceedings are held in private, unlike most courts, this is done to protect the identity of the child. The layout of the Youth Court itself, like tribunals, is less formal and is done to avoid intimidating the child.
Three Lay Magistrates' (whose appointment and training shall be discussed later) often preside over hearings in the Youth Court, and it is usual for at least one of the three Magistrates' to be female. A social worker is also usually present at the hearing.
There are a choice of sentences the Magistrates' can impose on the young offenders including what is known as a secure training order (which holds the child in detention), fines, an order which subjects the young offender to probation, a care order by which the young offender is put into the care of local authorities, or can impose fines and compensation orders on the parents.
Custodial sentences are only considered where no other sentence would be appropriate or if the court feels the general public needs to be protected from the young offender in question.
The magistrate's court itself has two jurisdictions; a civil jurisdiction and a criminal jurisdiction, as has the Queen's Bench Division. When serving as a civil court the Magistrates' court has three main functions. It has a civil function in the recovery of civil debts such as council tax. The Magistrates' Court also serves a function as a licensing court. Five Magistrates' sit on a panel and decide whether to issue liquor licences for public houses, clubs or provide extended hours licences, and under S8 of the Courts Act 1971 and s54 of the Supreme Courts Act 1981 appeals can be made to the Crown Court from the Magistrates' Court on licensing matters.
Under the Domestic Proceedings and Magistrates' Courts Act 1978 and the Children Act 1989, the Magistrates' Court has civil jurisdiction to sit as a Family Proceedings Court. The court hears custody disputes after a civil court has decided initial arrangements, and is a means by which access can be varied; it also hears applications to increase or decrease maintenance payments and to enforce payments on maintenance arrears. Under s61 and schedule 1 of the Supreme Courts Act 1981, appeals can be made from decisions made in the Family Proceedings Court of the Magistrates' Court to the Family Division of the High Court.
The Magistrates' Courts main jurisdiction nonetheless lies mainly with criminal law, it has been said up to ninety-nine percent of all criminal cases are dealt with here. The court has three main criminal functions, as discussed above it has jurisdiction to sit as a youth court, a court of petty sessions, as a court of preliminary hearing, and they also oversee 'mode of trial' hearings.
Once a person has been charged by the police of a criminal it must be decided in which court the charge is to be answered, and it is for this reason, there are three kinds of offences; indictable offences, summary offences and hybrid offences.
Indictable offences are a more serious nature of criminal offences and are only tried in the Crown Courts, summary offences are of less serious criminal offences, such as motoring offences, and can only be tried through summary trials in the Magistrates' court. Hybrid offences, other wise known as 'either way' offences however, can be tried either on indictment in the Crown Court or by a summary trial in the Magistrates' court. A mode of trial hearing is held by the Magistrates' Court to decide which court the case will be heard in and may have one of two outcomes; the defendant can either elect for trial in the Magistrates' court by summary trial or can elect to be tried in the Crown Court. The case may be 'committed' to the Crown Court by the Magistrate who by s19 of the Magistrates' Courts Act 1980 take account of the nature of the case, that is the severity of the case upon the facts, and decide if the case were tried in the Magistrates' Court their sentencing powers would be inadequate to punish the offence, they may however try the case by summary trial and commit the case for sentencing to the Crown Court.
The Magistrates' court has exclusive statutory jurisdiction to try summary offences and in addition can hear cases where a defendant has elected to be tried in the Magistrates' court, for hybrid offences. This is known as the court of petty sessions. The proceedings are begun when the police have charged the accused person or defendant, as they are known in court, with a criminal offence, and must 'lay the information' to the Magistrates' Court about the criminal charge.
The accused can be brought before the court through being kept in custody after arrest or as is most usual by serving summons. The summons describes the charges to the accused and calls for them to appear in court, on the given date, to answer the charge(s). By authority of s127 of the Magistrates' Courts Act 1980, the information must be 'laid' before the Magistrates' Court and the summons served within six months of the alleged offence.
At the hearing, the defendant is read the charges he is accused of by the court clerk, and is invited to make a plea of either 'guilty' or 'not guilty'. If the defendant chooses to enter a plea of guilty the court goes straight to the matter of sentencing, which will be looked at later. Should the defendant enter a plea of not guilty the case is adjourned (postponed), and a date for trial proceedings is set.
At the trial the prosecution addresses the court and makes an opening speech, which states facts about the case, and calls evidence including witnesses, witness statements, and documents relevant to their case. The witnesses are to begin with, examined by the prosecutor than cross-examined by the defence, which may be done to discredit the evidence given. At the end of the prosecutions case, the defence can submit a 'no case to answer' plea, which may be upheld by the Magistrate should it be found there is no possibility of proving the case beyond reasonable doubt, as is required by criminal cases unlike civil cases who must prove cases on a balance of probabilities.
If the Magistrates' find there is no case to answer all charges are dismissed and the accused is free to go. However if the defence makes no plea, or the plea is rejected the proceedings are continued and the defence witnesses and evidence is submitted. The witnesses are firstly examined by the defence and than later cross- examined by the prosecution. The defendant may also choose to give evidence in his own defence, though is not obliged to do so by law, but should he choose not to do so the court may make its own inferences (draw its own conclusions).
Once all the evidence has been submitted, both the prosecution and the defence summarise their case and present arguments on any points of law, relevant to their cases. The Magistrates' retire, or confer on the bench to reach their decision on deciding whether the defendant is either guilty or not guilty. The verdict from a bench of Lay Magistrates' is by majority and the courts clerk may advise them on significant points of law to the case. If the defendant is found not guilty he is 'acquitted' and is free to go, and may claim any costs. If however the Magistrates' find the defendant guilty he will be sentenced.
After conviction, the Magistrates' bench must impose a sentence on the defendant, but before passing any sentence the court will take into consideration any previous convictions, any pleas of mitigation by the defence- these are often arguments of circumstances 'lessening' the crime, such as a guilty plea or provocation to commit the crime. The court may also wait for social or medical reports to be made on the defendant before passing the sentence. By authority of the Magistrates' Court Act 1980, the maximum sentence the Magistrates' Court can impose is 6 months per offence, and/ or by authority of the Criminal Justice Act 1991 (as amended) a £5,000 fine. They can however impose a maximum sentence of 12 months for two or more offences. They can also impose alternatives sentences to custody, such as community service orders, probation orders, 'bind over', conditional and unconditional discharges. As well as issue these sentences the Magistrates' Court can also make compensation orders, such orders are made compensate the victims of the offender without them having to start proceedings in the civil courts. The maximum payment under a compensation order is £5,000.
The Magistrates' court also sits as a court of preliminary hearing, and examine cases to see if there is enough evidence in cases of indictable offences or hybrid offences to send the case for trial at the Crown Court, these cases are known as prima facie cases and the Magistrates' who preside over such hearings are known as 'Examining Justices' and can sit alone over such proceedings. The reason for such a hearing is to ' 'filter out' any weak cases before it goes to trial at the Crown Court.
There are two types of judges who preside over the hearings in the Magistrates Court, Lay Magistrates' and District Judges, formerly known as Stipendiary Magistrates'.
Lay Magistrates', other wise known as Justices of the Peace, hear the bulk of cases that come before the court and often sit as a bench of three, so decision can be reached by majority, and as with civil courts they decide the verdict and the sentences. Under the Justices of the Peace Act 1979 any person above the age of 21 years can be appointed and under s6 of the same act, the Lord Chancellor makes the appointments after consultations with Local Advisory Committee's who recommend potential candidates. Individuals can make applications to the Local Advisory Committee, who can advertise the positions and consider the applicants after interviews that meet essential qualities, which are required by the appointment, such as living local to the Magistrates' court, this allows them to make informed judgements about cases that come before them. Lay Magistrates' may be removed from office by the Lord Chancellor on the grounds of misbehaviour and are required retire at the age of 70.
Lay Magistrates' are the only members of the judiciary who need no legal qualifications to be appointed to the bench, are unpaid unlike other members of the judiciary, and they are only required to sit up to twenty-six days a year. The Lay Magistrates' are provided with a basic training course involving examination of bail applications, road traffic offences, legal aid, sentencing jurisdiction, and pleas. They also visit a prison, young offenders institution, observe a hearing in the magistrate court and are given an introduction to the probation service. When sitting on the bench they are advised by a Magistrates' Courts Clerk, on points of law and can only preside over hearings in the Magistrates' court.
District judges (Stipendiary Magistrates') are unlike Lay Magistrates', full time judges who sit in proceedings alone. They are required by s13 of the Justices of the Peace Act 1979, as amended by s71of the Courts and Legal Services Act 1990, to have been a practicing solicitor or barrister for seven years. They appointed by the Queen on advice of the Lord Chancellor and are can be removed from office for misbehaviour and are required by the Justice of the Peace Act 1979 to retire at the age of 70. They do not practice as a barrister or solicitor whilst serving as a judge.
Appeals can be made on a decision from the Magistrates' Court against sentence or conviction to the Crown Court, who has the power to agree with, reverse or vary a decision sent to it on appeal on convictions. In cases on appeal on sentence, under s48 (4) Supreme Courts Act 1981, the Crown Court may impose a sentence which is more lenient or more severe than the one imposed in the case by the Magistrates' court.
Under s28 Supreme Courts Act 1981, an appeal can also be made to the Divisional Court of the Queen's Bench Division on the grounds that the decision made in the Magistrates' court was wrong on a point of law or through an application for judicial review on the grounds that the decision made was in excess of its jurisdiction. The Divisional court of the Queen's Bench division may agree with the decision made, reverse or amend the Magistrate's decision. The Divisional court may also send the case back to the Magistrates' court to be retried with a different bench.
The Crown Court is a higher court than the Magistrates' Court in the criminal process, is a constituent to the Supreme Court and was established by the Courts Act 1971 and replaced the Assizes. Under s46 Supreme Courts Act 1981, the Crown Court has exclusive jurisdiction to try cases on indictment, that is cases that involve indictable offences, these are offences of a serious nature such as rape, manslaughter and murder. As with the Magistrates' Court the Crown Court may hear cases on hybrid offences should the Magistrate decide it was more appropriate for the case to have been heard in the Crown Court or should the defendant have elected to be tried in the Crown Court. Unlike the Magistrates' court where the Magistrate decides the verdict as well as the sentence, a trial in the Crown Court is tried by a judge and a jury, with the jury deciding the verdict and the judge deciding the sentence.
After committal from the Magistrates' Court, there is a 'plea and directions hearing' before a judge alone in the Crown Court, and the defendant is brought before the court and the indictment (formal charge of the offence) is read, rather than a summons as in the Magistrates' Court. The defendant is then asked to enter a plea of guilty or not guilty. If the defendant enters a plea of guilty the court goes straight to sentencing, or if the defendant enters a plea of not guilty, and the case goes to trial where the prosecution must prove its case beyond a reasonable doubt. A date is then set for trial by jury.
At the start of the case a jury of 12 members is chosen to hear the case. It should be noted, the prosecution, and the defence are most likely be a barristers, as they have 'rights of audience', or the right to advocate in the Crown Court, unlike in the Magistrates' Court where the solicitors may address the court. The prosecuting barrister summarises the prosecutions case and goes on to call witnesses. The witnesses are examined by the prosecution and are subject to cross- examination by the defending barrister. They may be re-examined by the prosecution again to clarify any part of their testimony. Once the prosecution has argued their case the defence may submit for a 'no case to answer' as in the Magistrates' Court, if the judge agrees he may direct the jury to return a verdict of not guilty and the case comes to an end and the defendant is free to go. if the defence does not submit this plea or it is rejected the defence may call witnesses to contest the prosecutions case, who are examined initially by the defence and cross- examined by the prosecution.
At the end of the evidence the prosecution and the defence make their closing statement to the jury. The judge will then sum up the case for the jury, explaining evidence and points of law involved, and advise the jury they can convict of alternative offences to those charged (this cannot be done in the Magistrates' court), and most importantly reminds them it is up to the prosecution to prove its case beyond a reasonable doubt. The jury will then retire and return with a verdict of guilty or not guilty, which is by majority.
The jury is then released and the judge alone decides the appropriate sentence for the offence, in some cases the judge is compelled by statute to pass a fixed sentence, such as a life sentence for murder. The prosecution outlines the defendant's previous convictions, if there are any, and the defence may enter a plea mitigation as an argument for a lighter sentence. The Crown Court can have larger jurisdiction in terms of sentences, and can impose harsher sentences than the Magistrates' can impose, such as lengthier custodial sentences and larger fines.
The Crown Court has four classes of indictable offences and it is the class of the offence, which determines the judge who presides over the hearing. Class 1 offences are most serious of the indictable offences, and include offences which carry mandatory life sentences, such as murder, treason, and incitement/ conspiracy to commit any of the offences mentioned. These offences are presided over by Puisne or High Court judges of the Queen's Bench Division, whose training and appointment have already been discussed. Class 2 offences include offences such as manslaughter, rape, infanticide or conspiracy or incitement to commit the offences under class 2. Cases involving offences of class2 are heard by either a puisne judge or Circuit judge of the County Court. Class 3 offences are indictable offences that do not come under classes 1,2 or 4, and can be tried by a Puisne judge, a Circuit Judge or a Recorder judge. Class 4 offences include hybrid offences, which can be tried in either the Crown Court or the Magistrates' Court, and are heard by a Circuit judge or a Recorder judge, whose appointments have already been discussed. Appeals against decisions of the Crown Court can be made to the Criminal Division of the Court of Appeal; the justification of such appeals is discussed below.
The Court of Appeal (Criminal Division) is the next court in the criminal process in terms of superiority. Its jurisdiction, as with the Court of Appeal (Civil Division) is appellate only, and hears appeals from the Crown Court, where as the civil division of the Court of Appeal hears cases on appeal from the High Court. The court may hear appeals against either conviction or against sentence. The defendant however must have permission from either the Crown Court from which the case came or from the Court of Appeal (Criminal Division). Section 2 Criminal Appeal Act 1968, as amended by Criminal Appeal Act 1995, provides the Court of Appeal (Criminal Division) should allow an appeal against conviction should they think there is a possibility the conviction is 'unsafe' or there is reasonable doubt. Under the Criminal Appeal Act 1968 (as amended) the Court of Appeal (Criminal Division) has powers to quash a conviction, order a retrial or substitute the conviction for another, for example where someone has been convicted of murder the Court of Appeal can substitute that conviction for one of manslaughter.
Section 9 of the same act allows for a person to appeal against a sentence passed by the Crown Court for an offence he was convicted of on indictment, however it must not be an appeal against a sentence that is fixed by law, for example a murder conviction carries a mandatory life sentence. Section 11(3) Criminal Appeal Act 1968(as amended) allows the Court of Appeal to quash the sentence or vary it to one that is more appropriate to the conviction. As well as this appeal route, an application can be made to the Criminal Cases Review Commission who has the power to refer the cases from the Crown Court to the Court of Appeal (criminal division) with regards to sentences and more commonly convictions. There is no such commission for appeals in the civil process.
The Court of Appeal (Criminal Division) is headed by the Lord Chief Justice, who is currently Lord Woolf, and is also head of the High Court of the Queen's Bench Division. He is required by s10 (3) Supreme Courts Act to have been a practicing barrister for at least 10 years before his appointment as Lord Chief Justice, or to have been a High Court Judge for at least 2 years. The appointment is made by the Queen on the advice of the Prime Minister, and by authority of the same act remains in office during good behaviour. The Lord Chief Justice is required to retire at the age of 70, and is assigned by various statutes to preside over cases in the House of Lords, the Court of Appeal (criminal division), and the Divisional Court of the Queen's Bench Division.
The judges who hear the cases on appeal are the Lord Justices of Appeal, as in cases on appeal to the civil division of the Court of Appeal.
A further appeal can be made to the House of Lords from the Court of Appeal, by authority of s33 Criminal Appeal Act 1968, should the Court of Appeal find that a point of law of public importance is involved. However as with all other appeal permission is required, in this appeal process from either the House of Lords or the Court of Appeal. As with the Civil process the House of Lords is the final appeal court for the criminal process and is subject to the same proceedings and rules as in cases on appeal from the civil matter.
As we have seen when examining the appointments and selection process many of the judicial posts are filled by invitation, which is often very secretive and selective as to, who is invited to become a member of the judiciary. The exceptions however are lay magistrates who can apply for positions through advertisements. There are many elements of the judiciary which can be examined in terms the role they play in administering justice. Such elements include the selection process and whether they are truly representative of the community. Judges could be said to be unrepresentative of the community, as the majority of judges are caucasian, male, middle aged or older, and as they are drawn from practicing barristers or solicitors, of the middle or upper classes of society, often having studied at the most elite universities.
Most of the judges appointed in the judiciary are appointed from practicing solicitors or barristers, with latter being customary especially in senior judicial appointments, and are given very little training to enable them to serve as a judge. Most of the experience they have relies on arguing one side of a case and it could be question whether the judges appointed from the barristers and solicitors could impartially hear both arguments of a case. It could also be argued that most barristers or solicitors do not generally complete their training until they are in their mid-twenties and as the judicial requirements stand, most would not be appointed to a judicial until they are at least middle-aged. Retirement ages for judges could be reduced to the national retirement age of 60 and 65 years, for women and men respectively thus allowing the age of judges appointed to be reduced, in terms of appointments made through need as the older judges retire.
At present only 15% of the judiciary is made up of women with an even lower percentage holding high judicial office. Similarly, even fewer numbers of ethnic minority persons have been appointed to the judiciary, with 6 circuit judges out of 605, 39 Recorder judges out of 1400, some 35 out of 1450 district judges being from 'non- white ethnic minorities.' In contrast however 25% of persons enrolling onto law degrees are from ethnic minorities, which also make up 10% of the United Kingdoms population. It could be said that as most judges are appointed from the upper and middle classes and as a result will have different ideology and norms as to what is acceptable behaviour and not understand the causes of crime in terms of being through poverty and substance abuse related.
A more representative judiciary would certainly mean having more members who are female, members who are from ethnic minorities and from working class backgrounds, this could be most easily be achieved by changing the selection process that appoints our judges. The appointments should be made by a commission who comprise of lay people, who make the judicial appointments in terms of 'best man gets the job' and which would require people to have social awareness, in terms of the ethnicity, and sensitivity, and require them to meet targets in terms of the composition of ethnic minorities, women and working class persons in the judiciary. Unlike the present system, which allows the Lord Chancellor to make appointments, whose own appointment is often drawn from the ranks of practicing barristers or members of the judiciary. The selection process should be made open and allow potential candidates to apply to judicial posts.
Alternatively, a 'career judges' system can be established as they have in countries such as France or the United States of America, where students who study law can go on to complete training courses which are designed to train persons as judges, and appointments are made from such trained persons. Because the programme may be open to all applicants, the judiciary may attract people from the whole population and be truly representative of the community.
Conclusion
In conclusion, it may be said that each court has its own function with respect to whether it serves as a criminal or civil court. However, some courts could be said to have in both criminal and civil jurisdiction. The courts whose functions are assigned mainly to the civil process are the small claims track, the County Court, the High Court and the Court of Appeal-civil division. with the Magistrates' Court, the Crown Court and the Court of Appeal -civil division being assigned to the criminal process. Tribunals can be seen as a cheap and quick way of solving civil disputes without beginning civil proceedings. The courts are structured to form hierarchy, with superior courts having more jurisdiction and greater powers than inferior courts that are limited in jurisdiction and authority. An example of this is the jurisdiction of the Crown Court to hear cases on indictment, whereas the Magistrates' Court only hears cases on Summary offences. The Crown court can also impose harsher sentences than in the Magistrates' Court, but it could be argued that this is needed so sentences passed are just according to the offence committed. The judiciary when examined was found to be unrepresentative of the general population as a whole, through factors such as age, class, sex, and race and proposals recommended on such findings. Although the courts are not equal with respects of jurisdiction and power the inequality itself allows the courts to function and be equal in terms of serving justice, as appeals can be made to more superior courts and decisions the courts make be subject to review.
Bibliography
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Hogan, Seago, & Bennet (1996) A level law. Sweet & Maxwell
Keenan & Smith (1998) English Law. Pitman
Wilson & Howarth (1996) Swot- English Legal System. Bell and Bain
