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Chapter 1 Structure of the legal system

1 Distinction between criminal and civil law

1.1 Civil law

Who brings the action?

Claimant (plaintiff) against Defendant.

E.g. Brown v Jones

Burden & standard of proof?

Claimant must prove liability on 'balance of probabilities'

Where is action heard?

Small claims, County & High Court

Who decides liability/remedy?

Usually Judge alone

Remedy?Compensation. E.g. damages

1.2 Criminal law

Who brings the action?

Prosecution (Regina) against Accused.

E.g. R v Smith

Burden & standard of proof?

Prosecution must prove guilt ‘beyond reasonable doubt’

Where is action heard?

Magistrates & Crown Court

Who decides guilt/sentence?

Magistrates/Judge/Jury

Sentence?

Fine/Imprisonment/Community order

2 The courts of law

2.1 The European Courts:

(a) Court of the European Union (European Court of Justice) (not to be confused with European Court of Human Rights);

(i) Hears references and appeals from courts of member states on matters of European Law;

(ii) On European Law matters can overrule decisions of any UK court;

(b) European Court of Human Rights:

(i) The final source of appeal on European Convention on Human Rights matters. (Note that the Convention is now incorporated into UK law by Human Rights Act 1998);

(ii) There is no appeal from the European Court of Human Rights to European Court of Justice.

2.2 The House of Lords:

(a) Highest UK court;

(b) Personnel – Lords of Appeal in Ordinary (Law Lords) . 5 will usually sit on an appeal;

(c) Jurisdiction – purely appellate. Hears appeals from :?

– Both divisions of the Court of Appeal

– The divisional court of the Queens Bench Division of the High Court

– The High Court by "leap?frog procedure";

(d) On appeals from some Commonwealth Courts and Channel Islands the court sits as "The Judicial Committee of the Privy Council".

2.3 The Court of Appeal:

(a) Divided into 2 divisions :?

– civil and

– criminal

(b) Personnel – Lord Justices of Appeal. 3 will usually sit on an appeal.

– civil division – Master of the Rolls is chief judge

– criminal division – Lord Chief Justice of the criminal division

(c) Jurisdiction – purely appellate. Hears appeals from

– all 3 divisions of the High Court, the divisional court, the EAT, Lords Tribunal and Transport Tribunal

– the Crown Court

– the County Court (except for certain appeals in regard to family and bankruptcy matters)

2.4 The High Court:

(a) Divided into 3 divisions:

– Queens Bench Division

– Family Division

– Chancery Division

(b) Personnel – High Court Judges (Puisne judges):

– QBD – Lord Chief Justice = chief judge

– Family Division – President = chief judge

– Chancery Division – Nominally Lord Chancellor – in practice

Vice?Chancellor

(c) Queens Bench Division jurisdiction:

– Contract, Tort and other general civil matters without limit as to value (usually above ￡15,000) includes specialist courts such as the Commercial and Admiralty Courts.

– The making of prerogative writs and orders

The Divisional Court of the QBD hears appeals on points of law from the Magistrates and Crown Courts.

(d) Family Division jurisdiction:

– Defended divorces and matters under the Domestic Violence and Matrimonial Proceedings Act 1976

– Matters relating to Childrens Act 1989 and Human Fertilisation and Embryology Act 1990

– Appeals in regard to family matters from the County Court

(e) Chancery Division jurisdiction:

– Trusts

– Tax

– Company Law

– Probate

– Insolvency

– Companies Court and Patents Court are part of the Chancery division

2.5 The Crown Court:

(a) Personnel:

– High Court Judges (where offence is serious)

– Circuit Judges

– Recorders

(b) Jurisdiction:

– Trials on indictment (i.e. not guilty pleas)

– Sentencing of offenders who have pleaded guilty to indictable offences

– Appeals from Magistrates Courts

– Sentencing of offenders "committed for sentencing" by the Magistrates

NB: Role of jury is to establish facts and decide on the guilt or otherwise of the offender. Role of judge is to explain the relevant law to the jury and to decide on sentence.

2.6 The County Court (exclusively civil jurisdiction):

(a) Personnel:

– Circuit Judges assisted by

– District Judges (known as Masters in the High Court)

(b) Jurisdiction:

– Tort and Contract cases

– Undefended divorces (even where there are disputes concerning custody and finance)

– Probate matters

– The Small Claims Procedure will deal with claims up to ￡5,000. This procedure is designed to be quicker and less formal and less expensive than a County Court hearing. It is basically an arbitration conducted by a district judge.

2.7 The Magistrates Court (mainly criminal but also civil jurisdiction):

(a) Personnel:

– Magistrates (Justices of the Peace) – lay persons selected from a panel by the Lord Chancellor

– Circuit Judges – paid ‘professional magistrates’

– Magistrates Court Clerks

(b) Jurisdiction:

– Deals with summary offences and also has some civil jurisdiction

– Committal proceedings (in re: indictable offences)

– Some family jurisdiction

– Debt collection for public utilities, council tax

– Control licences for selling liquor in their area

2.8 Tribunals (e.g. Employment, Rent, Land, Transport Tribunals):

(a) Advantages:

– reduce workload on the courts

– greater informality

– cheap and quick

– expertise of tribunal members

(b) Disadvantages:

– reasons for decisions do not always have to be given

– no right of appeal in many cases

– judges have wider powers/wider remedies.

2.9 Employment appeal Tribunal:

Hears from the Employment Tribunal. It is not part of the High Court.

2.10 Restrictive Practices Court:

Hears cases relating to commercial law and is concerned with whether an agreement is unlawful owing to the extent to which it restricts the trading capabilities of one of the parties. One Queen Bench Judge sits with specialist lay persons to hear these cases.

3 Arbitration

(a) This is a private hearing between parties who have agreed to forward any disputes to this forum.

(b) Advantages:

– privacy

– specialist arbitrator

– less formal procedures

– decision is final and binding

(c) Disadvantages:

– lack of publicity

– no legal rules on evidence, which can lead to lengthy and expensive proceedings

– limited remedies and enforcement

– lack of expertise in settling disputes

– limited right to appeal

4 Court allocation

Once a court receives a claim it will allocate the case to one of three 'tracks' for a hearing.

(a) Small claim track

This is used for claims of no more than ￡5,000 (although for claims relating to personal injuries and housing disrepair the limit is ￡1,000).

Parties can consent to use the small claims track if the value of the claim exceeds the limits but this has to be subject to the court's approval.

(b) Fast track

This provides a streamlined procedure for the holding of moderately-valued cover of more than ￡5,000 less than ￡15,000.

(c) Multi track

The multi-track is intended to provide a flexible regime for the handling of the higher value, more complex claims, that is those with a value of more than ￡15,000.

Broadly speaking the County Courts hear small claims and fast track cases whilst multi track cases are heard in the High Court.