Public Law (L4)

Sources of Law: origins of the common law[KL1] 

Law - The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties.

Legal evolution

Law must:

·       reflect the wishes/tolerance of most of the population, to be credible and thus enforceable.

·       must develop in line with societal changes to remain relevant to those living under the ‘rule of law.’

The law that we have today is a by-product of a long history of legal development.

Norman period

King’s Council – itinerant court - allowing the monarch to exercise his personal power ‘High Justice’ in the most important of cases. Aided by a group of semi-professionals, skilled clerics with the administration of justice -> clerics eventually took on the function of deciding disputes themselves.

1215 – Magna Carta required the establishment of a fixed King’s Court.

1873 – Royal Justices were dispatched to the provinces with a royal commission to hold 'assizes' (or sittings) of the royal courts. Initially the Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters. Assize Courts continued until the enactment of the Courts Act 1971.

An appeal court also emerged in the form of the Court of Exchequer Chamber. It was abolished in 1875, when its jurisdiction was transferred to the new Court of Appeal.

The common law

Over time, the King's Courts became essential to the resolution of disputes between citizens. The law applied was based upon the common customs of the country = 'common' law.

Most notable following the calling of the first assizes by King Henry II (1154-89) - deal with the legacy of a lengthy civil war involving his predecessor, King Stephen. -> re-establishment of royal power provided the opportunity to apply the law of the King's Courts countrywide.

Effectiveness of the system depended upon the growth of the King's Courts and their ascendancy over the local courts. ->expansion of the King's Courts was resisted by local barons (threat to power) ->It was firmly in place & recognised as supreme over local courts by the reign of Edward I (1272-1307).

Common law – meaning

It is important to be aware of the different meanings of the term 'common law' and to identify which meaning the term bears in the context in which it is used. The term 'common law' may be used:

·       Historical sense - distinguish the law as applied by the King's judges as VS applied by local customary courts

·       Distinguish the law applied by the King's Courts VS rules of Equity (system developed by Court of Chancery)

·       Distinguish case law – VS statute law

·       Identify law by common law countries (E.g Commonwealth) VS civil law countries (based on Roman law).

The writ system

The common law which was developed by the King's Courts was a procedural system = no automatic right of access to the King's Courts -> To access the King’s court a writ (document with a royal seal that constituted a royal demand for the defendant to appear before the Court) had to be purchased from the Chancellor before an action could be brought before the courts - Contained the foundation of the complaint, with a different form of writ being used for each ground of complaint (or 'forms of action’).

-> System=rigid – forms are fixed and only Parliament could allow a new writ to be issued. If a claimant could not find an existing writ to cover his case, he had no claim which the court would try.

The rules of procedure, which required a pre-existing form of action for a case to be heard, therefore had a stultifying effect on the growth of the substantive law.

Different forms of writs

·       Writ of right – 1st form of real action – developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes); remedy = recovery of land

·       “Personal actions” – all writs below; remedy = damages (i.e. money)

o   Debt - Recovery of fixed sum

o   Detinue - Recovery of chattel

o   Covenant - Breach of promise

o   Account - Accounting for a payment

o   Trespass - Against persons, goods, or land – jury trial

o   Case - Remedy where no current action – later influential in development of tort law

Procedure over substance?

The writ system exemplifies how the common law became hidebound by complex and restrictive procedures.

For each writ there was a corresponding fixed procedure, which laid down the steps that had to be followed. Selection of the wrong writ or failure to follow the correct procedure would be fatal to an action. (Process, rather than principles, rights, and duties, was paramount).

Common law problems: -> Encouraged the emergence of the law of equity.

-              Developed for disputes to be resolved, with the aim to conclude disputes rather than resolve them in a just way. It was not a system that developed from a concept of 'rights' and 'wrongs’.

-              In personal actions, it offered only the remedy of damages. E.g. when covenant is breached, the aggrieved party would not be able to compel the breaching party to fulfil the promise.

Case Law

'Common law' / ‘judge made law’- body of case law decided by judges.

Common law system is governed by rules of precedent. This means that the decisions of judges higher up in the hierarchy of courts and tribunals are 'binding' on those lower down. In other words, judges in lower- level courts and tribunals have to decide cases in accordance with the principles laid down by the higher courts.

What do judges do?

Judges do not, start cases or investigate legal issues. To decide a case, a judge will:

·       Consider the evidence brought by the parties and decide which evidence they find credible.

·       Consider the applicable law. This may be case law, or statute, or a combination of both. Although Parliament makes legislation, judges decide how it should be applied. They then give a judgment.

·       Apply the law to the facts of the case and reach a decision on which party should succeed.

·       Decide what remedy the successful party is entitled to, e.g. damages, and make an order.

Do judges ‘make law’?

A keen area of academic debate is whether judges make law, in the sense of creating legal principles. The traditional theory is that they do not do so but merely declare what the law has always been.

Linked to this idea is the retrospective nature of precedent. The view is that judicial decisions are based on statements of legal principle which have always been in existence, but which are not fully expressed or delivered until an appropriate case is brought before a court.

Contrast the retrospective and reactive nature of case law with the prospective nature of statute law. Statutes (Acts of Parliament) set out the law for the future and rarely have retrospective effect.

As a result, judges are normally cautious about 'upsetting' long-standing precedents, particularly in the fields of criminal law and property rights. Such precedents would likely have been relied on by many people, and to hold that the law is not as it could have serious personal/financial consequences.

'Stare decisis'

A distinct characteristic of the English legal system, as a common law system, is that it employs the doctrine of stare decisis or binding precedent. Stare decisis literally means 'stand by what has been decided'.

In essence, once a principle of law has been laid down, future cases with the same material facts must be decided in the same way. This contrasts with civil legal systems, where courts concentrate on interpreting detailed written codes of the law rather than interpreting previous decisions applying those codes. Previous decisions, or precedents in civil systems are simply examples of the application of codes.

For a court to be compelled to follow what has been stated in an earlier case=necessary to be persuaded that:

·       The earlier case was decided in a court which binds it, and

·       The relevant part of the earlier case is binding, rather than merely 'persuasive'.

What part of a judgment is binding?

As soon as a 'point of law' has been decided by any superior court, it establishes a precedent. A point of law is a question about the application of the law to the case, which the court has been asked by the parties to decide. Some judgments, such as those of the Supreme Court, deal with points of law of 'general public importance'. The lower courts also deal with points of law, but they are usually of little wider significance. A precedent may be:

·       Binding = must be followed; or

·       Persuasive = considered by the later court and may be followed.

Not every aspect of a judgment is binding. A judgment consists of:

(a) A summary of the facts.

(b) Statements of law= ratio decidendi and (often) obiter dicta.

The court's decision on remedy, which is binding only on the parties to the case.

Ratio decidendi

'Ratio decidendi' = "reason for the decision".

-> The 'ratio' of a judgment is the part which is binding on other courts. The ratio is the legal principle/rule on which the court's decision is based, applied to the material facts of the case.

The material facts are those on which the decision of the court depends. If the material facts change, the court's decision might also change.

Identifying the ratio

The ratio may not be immediately obvious when you read the judgment of a case. May be due to the judges have given several reasons for their decision, because their reasons may not be entirely clear, or because each judge may have given a different reason, though they have agreed on the outcome.

It is important to point out that determining a ratio is an art rather than a science.

A problem is identifying the width or level of generality that a ratio is meant to have. A ratio can be viewed as a narrow proposition of law or a wide proposition of law. If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle.

The judges in the case may state what the width of the ratio should be. Judges in subsequent cases will also consider how wide the ratio of a previous case is.

‘Confining the (earlier) case to its facts’ - judges might decide that the ratio is very narrow, so that the earlier case can be distinguished.

In practice, a useful guide to identifying the ratio of a judgment is to consult a law report. These introduce the text of a judgment with a 'headnote', which gives essential information about the case including a section in which the law reporter explains what in his or her view the court has held as a matter of law, in reaching its judgment.

Obiter dictum

Obiter dictum - where a judge comments on an area of law, on which it is not necessary to reach a decision in the case (obiter dicta in plural form). These are not regarded as binding, although they may be highly persuasive and influential in subsequent cases.

They consist of:

·       Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material.

·       Statements of the law as the judge would like it to be, but for the doctrine of precedent.

·       Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the court.

In practice, obiter comments may be very important. As Ungoed-Thomas J noted in Re Grosvenor Hotel, London (No. 2) [1964] 2 All ER 674: 'A battery of howitzers off the target is more impressive than a pop-gun on it. Powerful obiter dicta by the House of Lords may sometimes be regarded as so persuasive as to be practically binding.'

Terminology

Where a court considers the facts of a case to be so like those facts in an earlier case that the law in the earlier case should be followed, it can be said to be following the decision in that case.

If the court doing the 'following' is a higher court, then the later decision is also said to be approving the earlier one.

Where a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case, the later court is said to be applying the earlier decision.

A court may avoid following an otherwise binding precedent if it feels able to 'distinguish' the earlier case – e.g., by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts.

Reversing, overruling, overturning …

A judgment is reversed - if a case goes to appeal, and the higher appeal court disagrees with the lower court. This does not negate a precedent; it simply means the higher court has not applied the law in the same way.

A precedent is overruled/overturned - if a superior court in a later case decides the original precedent set in a past case is wrong and sets a new 'correct' precedent instead. The original precedent is no longer good law (some of the elements of the former decision may be left intact).

One of the potential problems inherent in a system based on precedent is ossification of the law.

Departing from ‘own’ precedent

Until 1966 this was not formally recognised as being possible. In 1966, the former Appellate Committee of the House of Lords – the “law lords” – Practice Statement (Judicial Precedent) 1 WLR 1234. Lord Gardiner L.C. stated that the law lords “recognise[d] that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.” “bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”

Austin v Southwark LBC [2010] UKSC 28, Lord Hope confirmed that the (new) Supreme Court would maintain the same guarded but potentially flexible approach. This is reflected in Practice Direction 4 of the Supreme Court.

Court of Appeal – departure from precedent

A similar approach is taken in the Court of Appeal (“CA”). The Court is generally intent on maintaining its own precedents but in the case of Young v Bristol Aeroplane Co. Ltd [1944] KB 718, Lord Greene MR outlined three exceptions:

·       If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.

·       If CA’s prev decision has been overruled expressly/impliedly by the Supreme Court/ House of Lords, it need not be followed.

·       If CA’s prev decision was made per incuriam - It only applies when the previous court was not aware of a relevant authority (case/statute) which would have been binding on the court’=ignorance->faulty reasoning.

Rules of precedent

·       Supreme Court - Binds inferior courts but may depart from its own decisions (1966 Practice Statement).

·       Court of Appeal - Binds inferior courts & itself, although subject to Young v Bristol Aeroplane exceptions.

·       High Court - Binds inferior courts. Does not bind itself but (for reasons of judicial comity) will only depart from its own decision where convinced it was wrong.

·       Upper Tribunal - The First Tier Tribunal, inferior courts, & itself.

·       First Tier Tribunal - Not binding but may be persuasive

·       Family/ Crown/County/Magistrates Court - Not binding

Equity

The history of equity

As a consequence of some of the problems created by the common law, aggrieved litigants, felt that justice was not served in the King's Courts, began to petition the King to do justice in particular instances. These petitions were passed on to the Chancellor, a cleric seen to be the 'keeper of the King’s conscience' for a decision.

By the end of the 13th century, such petitions were dealt with through a more formal procedure by the Court of Chancery, presided over by the Lord Chancellor.

Equity - the body of principles & rules administered by the Court of Chancery before the Judicature Acts 1873-1875.

The underlying rules and principles of equity are still applicable today.

Origin of the law of trusts

During the crusades, a landowner would transfer the legal title to his estate to a trusted friend to be used for the benefit of the departed landowner -> Instances of the recipient ignoring the terms and attempting to exercise his status as legal owner for his own benefit -> The common law courts refused to recognise the rights of the original landowner as they had no standing or interest in the King's Courts. However, the Chancellor intervened in equity on the ground that it would be unconscionable for the recipient of the estate to ignore the terms of the transfer = recipient would thus be compelled to hold the land for the use and benefit of the original landowner and his family -> sowed the seeds of the modern law of trusts.

Discretionary nature of equity

Benefit of this emerging set of principles was its greater flexibility - The Lord Chancellor was able to act outside the strict rules of procedure developed by the common law, and to decide cases guided by his own sense of fairness. There was a strong moral element to decisions.

Initially, Lord Chancellors decided claims from their own conscience without considering earlier decisions. Over time, they tended to come from a legal rather than clerical background and so were accustomed to adhering to the doctrine of precedent that was used by their common law counterparts.

-> equitable precedents grew, and equity developed and maintained its own separate system of rules= supplemented instead of usurping the common law.

Equitable remedies remain discretionary in modern law.

Conflict between equity and common law

Considerable friction developed at times between the system of equity and the common law.

End of 16th–17th century – intense = one of the main sources of tension between the monarchy & Parliament.

-> King James I, in the Earl of Oxford’s Case (1615) Mich 13 Jac 1, decided that, in cases of conflict, equity should prevail over common law. ->rule s. 25 of the Judicature Act 1873-1875 & is in s. 49(1) of the Senior Courts Act 1981.

-> the function of equity was to supplement the common law and not to supplant it = reflected in the equitable maxim: equity follows the law.

Two systems?

Late 19th century ≥ the Court of Chancery, applied equity exclusively.

Having two systems of law presented considerable problems for litigants. If both an equitable remedy and damages were required, two actions would have to be brought in both common law and chancery = This duplication of legal proceedings was onerous for all involved and very time-consuming.

Mid-19th century - some attempt at resolution of this division. Legal processes remained very cumbersome.

Judicature Acts 1873-75 - fundamental reforms were introduced. Abolished the old division between the three common law courts and the Court of Chancery, and created a single High Court and Court of Appeal which could apply the rules and remedies of both common law and equity.

Continuing distinction

Despite the fusion of the courts in the 1870s, the conceptual distinction between common law (legal) rights and equitable (or beneficial) rights remains crucial to the law overall.

·       The principles of equity, consolidated in the 17th and 18th centuries and expressed in the form of 'equitable maxims’, remain applicable today.

·       Equitable remedies are discretionary in nature, whilst common law damages (financial compensation) are available as a right. Equitable remedies are awarded, only if damages would not be an adequate remedy.

Equitable remedies

Specific performance - order by the court to compel a party to perform something they have promised to do under a contractual agreement.

It is an equitable remedy available for breach of contract. Specific performance is a discretionary remedy and is not available as of right for every breach of contract. Only available where:

·       There is a valid and enforceable contract.

·       Damages would not be an adequate remedy for the claimant.

(Specific performance is not available for breach of a contract for personal services, or for the performance of contractual obligations which would require constant supervision.)

Injunction - an order that requires a party to legal proceedings either:

·       To do something (a mandatory injunction).

·       To refrain from doing something (a prohibitory injunction).

Only where damages would not adequately compensate the claimant. Injunctive relief can be interim (obtained before the conclusion of legal proceedings) or final (obtained at the conclusion of legal proceedings).

Although injunctions originated as an equitable remedy, the court's jurisdiction to grant injunctive relief is now on a statutory footing. Under section 37 of the Senior Courts Act 1981, the court has jurisdiction to grant an injunction in "all cases in which it appears to the court to be just and convenient to do so".

An injunction can be awarded unconditionally or subject to such terms and conditions as the court thinks fit.

Declaration - legally binding statement by a court about any of the following:

·       The legal rights of the parties.

·       The existence of facts.

·       A principle of law.

Courts can make a binding declaration whether any other remedy is claimed. Generally, a declaration is sought in addition to other types of relief. EG a party might seek a declaration about the interpretation of a statutory provision applicable to their case.

Rescission - setting aside of a contract (available at common law and in equity).

Granted at the court's discretion, and may be available where a contract has been concluded because of:

·       Misrepresentation – enter a contract by a false representation of fact.

·       Mistake – where the contract does not correctly reflect the intentions of one or both parties.

·       Duress or undue influence – where a contract party was put under unlawful pressure to enter it.

Only available where the parties can be put back to their pre-contractual position, i.e., as if the contract had never been entered. This is not always possible, especially where the contract has been partially performed, or was for the provision of a service.

Rectification - corrects a document to reflect the parties' contractual intention. Its main purpose is to correct mistakes made in recording agreements. Only applies in the case of written contracts.

May be used to correct most types of mistakes in the way a transaction is recorded, for e.g. missing words, incorrect descriptions or numbers. However, if the errors in the contract are too fundamental/extensive, rectification is not available.

Primary and secondary legislation

What is legislation?

Legislation is the second major source of law in England and Wales. It is law made with the approval of Parliament. There are two categories of legislation: primary, and secondary.

Primary legislation: 'Acts of Parliament’, which are put before Parliament as Bills (draft legislation), debated, and passed (almost always) by both Houses of Parliament. Acts of Parliament receive 'royal assent' – formal approval by the Monarch – before becoming law.

Secondary (subordinate) legislation: law created by ministers/ other bodies under powers given to them by a ‘parent’ Act of Parliament. It is used to fill in the details of primary legislation. These details provide practical measures that enable the law to be enforced and operate in daily life.

Public and Private Acts of Parliament

Acts of Parliament can be divided into private Acts and public Acts.

Public (general) Act - relate to public concern matters. Debated in both Houses of Parliament. Lobbying= outside body wishing its views to be considered can only do so by persuading an MP/peer to put forward views in debate.

Public Acts make up by far the largest part of Parliamentary legislative output.

Private (personal) Act - relates to particular places/people - usually stem from a proposal by a large organisation (e.g. local authority/ large private company) which wishes to acquire certain powers. The promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal.

Government Bills and private members’ Bills

Primary legislation starts life as a 'Bill', which is draft piece of legislation. Public Bills, intended to become Public Acts, can further be divided into Government Bills and Private Members' Bills.

A Government Bill represents the policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department promoting the Bill wants to bring into law. It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (government policy).

A Private Members' Bill is a bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government. They are given far less parliamentary time and so are often not successfully passed.

Bills may start in either the Commons or the Lords (apart from Bills dealing with public finances, which must start in the Commons and cannot be defeated in the Lords).

·       'First reading' - a formality; the Bill's title is read out, and a date set for a second reading.

·       'Second reading' - the main principles of the Bill are debated by MPs.

·       'Committee stage' - the detail of the Bill is scrutinised by a legislative committee. It may be amended.

·       'Report stage’ - proposed amendments are debated, and there is a vote on the committee's report.

·       Third reading - final debate and vote on the Bill. If passed, it goes on to the other House.

Royal Assent and commencement

The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect. (Conventions will be explored later in topic The grant of Royal Assent is a formality. This is highlighted by the Royal Assent Act 1967, which provides for how the assent can be signified.

An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a contrary provision in the statute. Legislation does not always come into force on the same day it was enacted. It is more usual for an Act to include a commencement section detailing when the Act is to come into force. Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is concerned to issue a statutory instrument bringing the Act into force.

Structure of Acts of Parliament -

All Acts of Parliament begin with the short title, date and long title of the Act (the preamble’).

Parts

Single Acts of Parliament often deal with quite varied subject matter. This subject matter is grouped into 'Parts', containing several different 'sections'. (Note Senedd Act, are structured similarly.)

Sections/sub-sections are grouped together under titles - for ease of navigation.

Secondary legislation

Secondary (‘delegated’/ ‘subordinate’) legislation is law made by some person or body other than Parliament – usually a government department. It is made under powers granted to it by Parliament in primary legislation (known as the 'parent’ Act). It includes regulations made by statutory instruments, Orders in Council, and by-laws. A piece of delegated legislation made within the powers granted by Parliament in the parent Act has equal statutory force to that of the primary legislation. However, while the courts have no power to invalidate an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the parent Act and 'quash’ it, if it is not.

The amount of secondary legislation in the UK is very significant. The number of laws enacted through delegated legislation greatly exceeds the number of primary Acts of Parliament. In 2023 there were 56 general public Acts and 1137 statutory instruments. (The figures for 1960 were 31 and 48.)

Scrutiny of secondary legislation

Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation.

Parliament can either approve/reject a statutory instrument (SI) but cannot amend it. Parliament’s role in considering an SI varies depending on what is stated in its parent Act. The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act.

Welsh legislation

Legislation & legislative process=Senedd Cymru can create its own legislation.

Senedd Cymru Act (or Senedd Acts) are forms of primary legislation. Welsh Ministers & other bodies can make secondary legislation using powers delegated to them by Acts of Senedd Cymru (or UK Acts).

Law created by the Senedd/Welsh Ministers is made for Wales. Law made by the Westminster Parliament/ UK Ministers can apply to the whole/parts of the UK.

Senedd Acts starts as a Senedd Bill - intro by Welsh Government (common) or members of the Senedd (‘MSs’).

The Senedd can pass Acts on any matters that are not reserved to the UK Parliament by the Government of Wales Act 2006 (amended by the Wales Act 2017).

Note that the Senedd is a unicameral legislature, unlike Westminster.

Legislative process in Wales

There is generally a four-stage process for the consideration of a Bill in the Senedd.

1.     Consideration of the general principles of the Bill by a committee, and the agreement of those principles by the Senedd.

2.     Detailed consideration by a committee of the Bill and any amendments tabled to it.

3.     Detailed consideration by the Senedd of the Bill and any amendments tabled to it. (An optional, additional amending stage, called the Report Stage, can take place between stages 3 and 4.)

4.     A vote by the Senedd to pass the final text of the Bill. If approved and given Royal Assent, it becomes an 'Act of Senedd Cymru'.

‘Rules’ of statutory interpretation

What is statutory interpretation?

Statutory interpretation - process of determining what Parliament intended when it enacted a piece of legislation. Primarily a task for judges - ultimate interpreters of the will of Parliament.

Rules of and approaches to statutory interpretation apply equally to Acts of Senedd Cymru, the Welsh Parliament.

Lawyers need to be familiar with the principles of statutory interpretation so that they can advise clients on how the courts are likely to interpret relevant words in a statute. Traditionally, there were seen to be certain “rules” of statutory interpretation. It is very unlikely nowadays that you will find direct reference to such rules in case law.

Bennion on Statutory Interpretation, p.505 - 'If (which is doubtful) there ever were, there certainly are not now, just three 'rules' of statutory interpretation … the court does not 'select' any one of the guides and then apply it to the exclusion of the others. What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and arrive at a balanced conclusion taking all factors into account for what they are worth.’

The literal rule

The simplest of these traditional ‘rules’ and principally adopted by judges but not often referred to as such.

-> words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. The courts will not need to consider further what Parliament might have meant.

The literal rule will require an in-depth consideration of the words and phrases of the statute and how they may fit in with neighbouring sections and the Act as a whole.

The linguistic presumptions will be an important aid for this method of interpretation.

An overly literal application of words can, lead to consequences, and so an alternative rule was devised historically to avoid such problems= golden rule.

The golden rule

To avoid the unnatural and absurd outcome that can result from the literal rule, judges developed the 'golden rule' in the 19th century.

The classic expression of the golden rule is found in River Wear Commissioners v Adamson (1877) 2 App Cas 743:

'The golden rule is … that we are to take the whole of the statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.' (Lord Blackburn)

A good example of the application of the golden rule is found in Adler v George [1964] 2 QBD 7.

Example - Adler v George

The defendant was charged with an offence under section 3 of the Official Secrets Act 1920 of obstructing a member of the armed forces 'in the vicinity of any prohibited place’.

The defendant was in an RAF station which was a prohibited place for the purposes of the Official Secrets Act.

It was argued on his behalf that 'in the vicinity of' meant near to, whereas the obstruction had occurred within the prohibited place and thus fell outside the Act.

Parker LJ stated that it would be 'absurd' if it were an offence for an obstruction to take place just outside the RAF station but not where the obstruction took place in the RAF station.

He therefore held that 'in the vicinity of' should be read as 'in or in the vicinity of'.

The mischief rule

The oldest of the ‘rules’, examines the original purpose of the particular provision under consideration. In Heydon's Case (1584) 3 Co Rep 79, it was stated that courts must consider four questions when applying the mischief rule:

1.     What was the common law before the making of the Act?

2.     What was the mischief and defect for which the common law did not provide?

3.     What remedy for the mischief had Parliament intended to provide?

4.     What was the true reason for Parliament adopting that remedy?

At the time the purpose of the statute was always stated in the preamble, so it was easy to identify the mischief from the Act itself. However, today the mischief rule is defunct, and this method of statutory interpretation has now been completely subsumed into the purposive approach.

The purposive approach

This is the most recent 'rule' and most accurately reflects how modern judges approach their interpretive task.

In R v Secretary of State for Health ex parte Quintavalle [2003] UKHL 13, Lord Steyn observed (at paragraph 21) that:

'The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: … [N]owadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context…’

The contemporary approach

Greenberg in Craies on Legislation (11th edition, 2016) at 18.1.2 summarises the 'instinctive' approach of modern judges as a combination of the literal and purposive interpretations: "Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process. It is only in the rare cases where there is a tension between the two that the court needs to turn its mind actively to which should prevail … it is now possible to say that the purposive interpretation will generally prevail where it provides a clear answer, but that otherwise the strict meaning will have to prevail, even if the court is uncomfortable with the result. This unified, 'contextual' approach involves not so much a choice between alternative "rules" as a progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the statute … and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result."

Linguistic presumptions

In addition to these 'rules'/approaches to statutory interpretation, the courts will also apply linguistic presumptions/ maxims to assist them in interpreting the meaning & the proper application, of individual provisions in legislation.

The three most often quoted of these maxims are:

·       Expressio unius est exclusio alterius (“the expression of one thing is to the exclusion of another’)

·       Ejusdem generis (‘of the same kind’ / genus)

·       Noscitur a sociis (a word is known by its associates)

Expressio Unius est Exclusio Alterius

This presumption may be used where there is a list of items with no general words that follow. The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated.

In Tempest v Kilner (1846) 3 CB 249, the Statute of Frauds 1677 required that sale of 'goods, wares and merchandise' over £10 in value must be evidenced in writing. The question for the court was whether stocks and shares came within this definition. As only those three types of transaction were mentioned, the court held that only those three transactions were covered; shares were not.

Ejusdem generis

It is employed when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list.

The presumption is that, where general words follow a list of specific words, the general words are interpreted to restrict them to the same kind of objects as the specific words. So, it is necessary to look at the specific words and see what characteristics they have in common. The general words must then include only words with these characteristics.

In Powell v Kempton Park Racecourse [1899] AC 143, a person was betting in Tattersall's Ring, and the Betting Act 1853, in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.

The House of Lords held that the specific words, 'house, office, room' were all indoor spaces; and so, the general words 'other place' would be taken to refer only to indoor areas. As Tattersall's Ring was an open area at Kempton Park Racecourse, the defendant did not commit an offence under the Act.

Noscitur a Sociis

Words of a statute are understood in the context of any parts of the statute.

Closely associated with ejusdem generis but has wider potential application, as ejusdem generis only applies when general words – usually introduced by the words ‘or other…’ – come at the end of a list.

In Inland Revenue Commissioners v Frere [1965] AC 402, the House of Lords considered the phrase 'interest, annuities and other annual payments', contained in s. 169 of the Income Tax Act 1952.

The word 'other' at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore, the word 'interest' was held to mean 'annual interest’. Noscitur a sociis was used here because it allowed the court to interpret the nature of one of the categories of things included in the legislation.

The criminal courts[KL2] 

What is criminal law?

Criminal law is part of public law - concerns the relationship between the individual and the State.

Criminal cases are brought by the prosecution, representing the State, against the defendant/'the accused’.

The immediate objective is to allow the State to punish people who have committed offences against society. In a wider sense the criminal law is intended to establish standards of behaviour appropriate for a peaceful and productive society and to provide a deterrent against those who might breach these.

The prosecution is generally brought in the name of the Crown. For instance, in the case of R v Brown [1970] 1 QBD 105, Mr. Brown was being prosecuted by the State, the 'R' standing (then) for Regina – the Queen, (now Rex – the King) = the Crown against Brown/'Brown'.

Standard and burden of proof

The standard of proof means the level of certainty to which a party must prove their case in order to succeed at trial. One of the key differences between criminal and civil law is the standard of proof.

In criminal law, the standard of proof is "beyond reasonable doubt".

When judges sum up a case to a jury, they will use the words "satisfied so you are sure"= meaning of "beyond reasonable doubt" in plain language.

With some exceptions, the prosecution, as initiator of the action, bears the burden of proof in criminal proceedings= prosecution must prove its case beyond reasonable doubt; the defendant (with some exceptions) does not have to prove anything.

The parties

The parties to a criminal case are the prosecution (the Crown) and the defendant.

The body that initiates criminal proceedings in England and Wales is the Crown Prosecution Service (CPS). This is independent from the police and any other investigative authorities.

Prosecutions can also be started by other governmental agencies in specific situations, for instance the Health and Safety Executive or the Environment Agency. It is also possible for prosecutions to be launched at a local government level, for example for minor environmental offences such as fly tipping, blocking the highway, or failure to comply with an enforcement notice.

Defendants to criminal proceedings can be individuals, or 'legal persons' such as companies.

Guilty or Not Guilty

Every defendant has a choice whether to plead guilty (admit the offence) or not guilty (deny the offence).

If the Defendant pleads not guilty, the case will go on to a trial. The court's decision in criminal proceedings at first instance (i.e. at trial) is called a 'verdict’. It will be either 'guilty' or 'not guilty’.

If the defendant is found guilty, the court will go on to impose a 'sentence'. This might be imprisonment, or a lesser form of punishment, such as a fine.

If the Defendant pleads guilty, the court will go on to sentence.

Once the Defendant has pleaded guilty, they are treated as being convicted of the offence, and cannot appeal that conviction. They can, however, apply to "vacate" their plea if, for example, they change their minds.

The Magistrates' Court

The Magistrates' Court is the lowest level of court in the hierarchy of criminal courts. Virtually all criminal cases start in the Magistrates' Court, and around 95% will end there.

The Court tries all summary criminal offences (minor offences) and some triable either way offences (mid-range offences which can be tried in either a magistrates' court or Crown Court). The Magistrates also have some civil jurisdiction.

The Magistrates have the power to impose an unlimited fine and/or impose a maximum prison sentence of six months for a single offence.

Where the Magistrates do not dispose of a case, either because they do not have the power to impose a higher sentence or because the offence is one triable either way and a Crown Court trial is thought more appropriate, they will commit the defendant to the Crown Court either for sentence or trial, as the case may be.

The Magistrates' Court does not create precedent, but it is bound by the Administrative Court, the Court of Appeal and the Supreme Court.

Crown Court

The Crown Court is the senior court of first instance in the criminal law.

It will hear “indictable only” offences. These can only be tried in the Crown Court, because they are too serious for the sentencing powers of the Magistrates.

Note that these cases still begin in the Magistrates' Court, however. The magistrates will generally decide whether to grant the defendant bail, consider other procedural issues such as reporting restrictions, and then pass the case on to the Crown Court for trial.

In addition, the Crown Court will hear ‘either way’ offences, transferred to it from the Magistrates’ Court.

Trials in the Crown Court involve juries in almost all cases.

The Crown Court is administered by an executive agency of the Ministry of Justice, HM Courts and Tribunals Service, and it sits in approximately 80 locations in England and Wales. The most well-known is the Central Criminal Court in London, the ‘Old Bailey’.

Appeals from the Magistrates' Court

A convicted defendant can appeal to the Crown Court against their conviction, or their sentence, or both.

If the defendant appeals against conviction, their trial will be heard 'de novo’. In other words, it will be heard afresh, with all the evidence and witnesses examined again. The trial will take place before a Crown Court Judge flanked by two Magistrates.

The prosecution has no such corresponding right of appeal against an acquittal or against a sentence imposed by Magistrates, which it considers too lenient.

The risk the defendant takes is that the Crown Court could in certain circumstances increase their sentence, if the appeal is unsuccessful, though only within the parameters of the maximum sentencing powers that had been available to the lower court.

If either the prosecution or the defence consider that the Magistrates' decision was legally flawed (as opposed to flawed in its assessment of evidence, or on sentence), it may appeal to the Administrative Court, a specialist court within the King’s Bench Division of the High Court. This is known as an appeal 'by way of case stated'.

Appeals from the Crown Court

A defendant convicted and sentenced in the Crown Court may, with the permission of the Court of Appeal (Criminal Division), appeal:

·       Their conviction

·       Their sentence

·       Both conviction and sentence

The prosecution may also appeal to the Court of Appeal:

·       The Criminal Justice Act 2003 enables the prosecution (with consent of the Director of Public Prosecutions) to apply to the CoA for an order quashing the acquittal of anyone found not guilty of a 'serious offence'.

·       Attorney General may appeal against 'unduly lenient' sentence imposed by the Crown Court.

Grounds for appeal against conviction

Remember that there is no automatic right of appeal from the Crown Court to the Court of Appeal. The appellant has to apply, on paper, for permission to appeal. The permission decision is made by a single Judge. If permission is refused, that decision may also be appealed.

The Court of Appeal will quash a criminal conviction of the Crown Court if satisfied that the conviction is "unsafe". The Court will hear oral argument from counsel for both sides, but evidence will not be heard again.

Common arguments heard in the Court of Appeal relate to new evidence, errors that occurred during the trial process or misdirection's of law by the trial judge.

If the conviction is quashed, any sentence is automatically quashed with it.

Grounds for appeal against sentence

The defendant may appeal against the sentence imposed by the Crown Court. This is far more common than appeal against conviction. Permission to appeal is required.

Criminal tribunals follow the 'sentencing guidelines' for offences. These are produced by the Sentencing Council, with the aim of promoting consistency in sentencing.

The key grounds for appealing against sentence are:

·       The sentence is not justified by law (i.e. the judge made an error of law when passing it).

·       The sentence was based on an incorrect version of the evidence.

·       The judge took irrelevant matters into account when sentencing.

·       The judge misapplied or failed to give sufficient weight to the sentencing guidelines.

Appeals from the Court of Appeal (Criminal Division) to the Supreme Court

In principle, the defendant/prosecution may apply for permission to appeal to the Supreme Court.

However, the Supreme Court will only hear an appeal which is certified (by CoA/Supreme Court) as being on a "point of law of general public importance". This test is rarely met in individual criminal cases.

An example of a case in which this 'public importance' test was met is R v R [1991] UKHL 12, in which the House of Lords confirmed that no 'marital defence' to the crime of rape existed in English law.

The Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is the final appeal court for UK overseas territories and Crown dependencies. It is also the final appeal court for those Commonwealth countries which have retained the appeal to ‘His Majesty in Council’ or, in the case of those which are republics, have retained appeal to the Judicial Committee.

The purpose of the Judicial Committee is to advise the Crown, so in theory it never decides a case but instead 'humbly advises His Majesty'. In practice, however, the monarch never refuses the advice of the Judicial Committee.

The Judicial Committee hears both civil and criminal matters. It consists of senior members of the judiciary, usually from the Supreme Court (previously from the House of Lords). In addition, senior members of the judiciary from Commonwealth jurisdictions are members of the Judicial Committee.

The decisions of the Privy Council are not binding on the English courts, but its opinions can be highly persuasive. Some decisions are viewed as almost as authoritative as decisions of the House of Lords or the Supreme Court. This is because the Privy Council is made up of the same Justices that sit in the Supreme Court.

The Criminal Cases Review Commission

The Criminal Cases Review Commission (CCRC) is a statutory body responsible for reviewing alleged miscarriages of justice in the United Kingdom.

It has power to send a case back to the Court of Appeal for review, if it considers there is a "real possibility" that the Court of Appeal will overturn the conviction or sentence.

If the decision to be reviewed was made in the Magistrates' or Youth Court, the CCRC can send it back to the Crown Court for review. This review takes the form of a re-hearing, in which all the evidence is heard again

In order to refer a case for appeal, the Commission usually has to identify new evidence or a new legal argument that makes the case look significantly different. This evidence or argument must not have been considered at the time of the trial, at the initial appeal, or in an earlier application to the Commission.

(There is an "exceptional circumstances" caveat that allows the Commission to refer cases with no new evidence or argument, but such instances are extremely rare.)

The civil courts

What is 'civil law'?

Civil law regulates the legal relationship between private parties – individuals/legal persons.

Legal relationship - arise from a contract, a 'duty of care' exists between the parties, or from other 'causes of action'.

Government does not ‘prosecute' civil cases. However, can be involved as a party=private law capacity.

The parties and the outcome

Civil case parties = claimant+ defendant.

The court's decision in a civil case is referred to as its 'judgment'.

Outcome is usually damages. However, the court may order several remedies.

The standard and burden of proof

The standard of proof in civil proceedings is “on the balance of probabilities" - the claimant must satisfy the court that they are 'more likely than not' or 'more than 50% likely' to be right about what happened.

This is lower than the criminal standard, which is "beyond reasonable doubt".

The burden of proof is (with some exceptions) on the claimant.

Examples of civil law cases

·       Personal injury cases, Clinical negligence and other forms of professional negligence, Breach of contract/promise, Employment law and Family disputes

Civil and criminal liability

It is possible for a defendant to be subject to both criminal and civil proceedings arising from the same incident.

Imagine the defendant was driving dangerously and caused someone serious personal injury.

Where do civil cases begin?

Most civil claims begin in the County Court. Higher value claims (generally, above £100,000) begin in the High Court.

There are three 'tracks' for cases in the County Court. Each case is allocated to a track, depending on its financial value and complexity. Small claims are those valued at less than £10,000 (or £1,000 for personal injury claims).

Small claims track > Fast track > Intermediate track > multi-track

Judges in the County Court

Deputy District Judges (DDJs) are the most junior. They are often 'fee paid' i.e. paid a daily rate, rather than a salary.

District Judges (DJs) are the next level up. Most judges in the County Court are District Judges. They hear some final hearings, but much of their work is procedural.

Circuit Judges (CJs) are the most senior. There are also Circuit Judges in the Crown Court. The more complex cases in the County Court will be heard by a Circuit Judge. They will also hear appeals from decisions by DJs and DDJs.

Appeals from the County Court

An appeal against a decision by a Deputy District/District Judge will be in the County Court by a Circuit Judge.

The decision of a Circuit Judge can be appealed to the High Court, and subsequently to the Court of Appeal (Civil Division) but only with permission. In principle, a decision of the Court of Appeal (Civil Division) can be appealed to the Supreme Court, but only if it deals with a point of law of general public importance. Note too that the County Court does not create precedent. It is bound by the higher courts.

Statutory judicial bodies and tribunals

What are tribunals?

Tribunals - specialist judicial bodies dealing with administrative & regulatory cases.

Cases may be started in a Tribunal or transferred between the County Court and the High Court, and tribunals.

There are two Tribunal levels: the First Tier Tribunal, and the Upper Tribunal. The Upper Tribunal is a senior court and is equivalent to the High Court. The Upper Tribunal hears appeals from the First Tier Tribunal.

Current tribunals system created by the Tribunals, Courts and Enforcement Act 2007 - consolidated the prev system.

First Tier Tribunal

There are seven first tier tribunals='chambers'. The chambers hear appeals from citizens against decisions made by government departments/agencies, although proceedings in the Property Chamber and Employment Tribunal are on a private law basis. The Employment Tribunal is also at 'first tier' level but is not a 'Chamber'.

·       War Pensions & Armed Forces Compensation,    Social Entitlement,           Health, Education and Social Care,

·       General Regulatory,                          Tax,                           Immigration and Asylum,               Property Chamber

Upper Tribunal

There are four chambers in the Upper Tribunal, hearing appeals from the First Tier. The Employment Appeals Tribunal is at Upper Tribunal level but sits separately.

·       Administrative Appeals Chamber - War Pensions and Armed Forces Compensation Chamber, Social Entitlement Chamber, Health, Education and Social Care Chamber, General Regulatory Chamber

·       Tax and Chancery Chamber - Tax Chamber

·       Immigration and Asylum Chamber - Immigration and Asylum Chamber (FTT)

·       Lands Chamber - Property Chamber

Senior President and judicial personnel

The Senior President of Tribunals is the independent and statutory leader of the tribunal judiciary. This office was established under the Tribunals Courts and Enforcement Act 2007. The Senior President heads the tribunals judiciary, their remit extends to Scotland and Northern Ireland depending on the jurisdiction concerned.

A Tribunal/Chamber President is responsible for the day-to-day judicial administration of their tribunal/Chamber. Vital link between Senior President of Tribunals, Tribunal’s judicial officers & senior judiciary outside the Tribunals.

Tribunal judges are legally qualified and responsible for ensuring the individual hearings they chair make the correct decision in law. Tribunal members are specialist non-legally qualified ‘lay’ members of the panel hearing the case.

Coroner's Courts

Coroners Courts investigate all deaths where the cause is unknown, or where there is reason to think it was not due to natural causes. Coroners' investigations are called 'inquests'. Verdict - A Coroner's decision.

Coroners will hear evidence from people involved in events leading up to the death of the deceased. Inquests are not as formal as court hearings. Juries will be convened to decide the cause of death in some cases.

Coroners do require legal experience, but they are not considered to be members of the judiciary. They are barristers/solicitors/medical practitioners of five<years standing; continue in practices when not sitting as coroners.

Public inquiries

Public inquiries are major investigations, convened by government departments, that are given special statutory powers to compel testimony and the release of other forms of evidence.

The only justification required is the existence of "public concern" about events.

Inquiries Act 2005 If a public inquiry is held under this Act, the inquiry has:

·       Legal powers to compel witnesses to give evidence, Legal safeguards and procedures, Statutory framework for appointment of a chair and other inquiry personnel, the taking of evidence, and production of a report and recommendations.

However, there is nothing to compel the government to act on the recommendations of a statutory public inquiry.

Public inquiries - other areas

Town and Country planning decisions of public importance have long been made following public inquiries. These inquiries take place under separate legislation.

Inquiries happen when the local authority refuses planning permission for a development, and the developer appeals. Inquiries also take place into proposed local plans.

Inquiries allow members of the public to appear as 'third parties' and challenge the evidence given by the local authority and the developer.

Senior Courts

What are the 'senior courts'? - The senior courts of England and Wales are:

·       The Supreme Court (before 1 October 2009, the House of Lords)

·       The Court of Appeal

·       The High Court

·       The Crown Court

The structure and jurisdiction of the senior courts are set out in the Senior Courts Act 1981.

The High Court

The High Court is part of the Supreme Court of Judicature created by the Judicature Act 1873.

Judges of the High Court sit at the Royal Courts of Justice in London, and regional centres outside London called District Registries.

The Administration of Justice Act 1970 re-structured the Court into three divisions:

·       King’s Bench Division (‘KBD’)

·       Chancery Division

·       Family Division

Judges in the High Court

Nominally appointed by the monarch on the recommendation of the Lord Chancellor, after a fair and open competition administered by the Judicial Appointments Commission.

Candidates for appointment to the High Court must satisfy the judicial appointment eligibility condition on a seven-year basis or be Circuit Judges who have held office for at least two years.

High Court Judges - ‘the Honourable’ and verbally referred as 'Mr/Mrs/Ms Justice [surname]’ - abbreviated to: '[surname] J’ in writing.

Procedural judges called Masters. At first instance they deal with all aspects of legal proceedings, until it is ready for trial by a trial judge. After the trial, the Master resumes responsibility for completion of the case.

The Masters comprise: the Senior Master + 9 KBD masters; the Chief Master and 5 Chancery masters.

Regional locations

All High Court divisions also have district registries or regional centres where High Court cases can be heard.

As an example, the Administrative Court deals with most of its work at the Royal Courts of Justice in London but there are also regional centres in Cardiff, Bristol, Birmingham, Leeds and Manchester. (Collectively, these regional offices account for just over 20 per cent of the overall work of the Administrative Court.)

Cases of importance, often where there is local interest, are routinely heard in the courts outside London, ensuring litigants, public authorities & community can see these matters being decided within their local area.

King's Bench Division

Predominantly a civil court but also has some criminal jurisdiction (through Administrative Court).

Judges who hear civil cases in KBD mainly deal with ‘common law’ business – notably actions relating to contract disputes & tort claims.

Contract cases include failure to pay for goods, services & other breaches of contract, while KBD tort cases include:

·       Wrongs against the person, e.g. defamation of character and libel;

·       Wrongs against property, e.g. trespass;

·       Wrongs which may be against people or property – e.g. negligence or nuisance;

KBD judges also preside over more specialist matters, such as applications for judicial review – a type of case which seeks to establish if a government decision has been made in the correct way. High Court Judges also hear criminal cases in the Crown Court, including in its various regional centres (alongside Circuit judges and Recorders).

Administrative Court

The Administrative Court is part of the King's Bench Division. It is responsible for the administrative law jurisdiction of England and Wales.

Its varied work is directed at the lawfulness of actions of central and local government, regulatory and disciplinary bodies, inferior courts and tribunals, and other public bodies and officials exercising public functions. It has both a civil and criminal jurisdiction (notably appeals 'by way of case stated' from the magistrates' courts).

Not all judicial review proceedings are dealt with by the Administrative Court. The Upper Tribunal (Immigration and Asylum Chamber), 'UTIAC', has JR powers in relation to most immigration decisions and since November 2013 deals with many of such cases.

Some of the cases in the Administrative Court will be heard by a Divisional Court which is a court consisting of two or more judges. These will usually be in criminal cases including a number of the more difficult extradition cases. Most of the 71 High Court judges assigned to the King’s Bench Division regularly sit in the Administrative Court, as do some judges in the Chancery and Family Division.

The Chancery Division

Based in the Rolls Building in London and in eight principal regional trial centres, the Chancery Division is now the largest unit for handling business and property cases in the country.

The head is the Chancellor of the High Court

·       currently 18 High Court judges attached to the Division. In addition, in London, there are six judges who are referred to as Masters (one of whom is the Chief Master), and six Insolvency and Companies Court Judges (one of whom is the Chief Insolvency and Companies Court Judge). There are also several Specialist Circuit Judges and District Judges who sit outside London and (in the case of the Circuit Judges) occasionally in London.

The Chancery Division incorporates the Insolvency and Companies Court, the Patents Court and the Intellectual Property Enterprise Court (IPEC).

The remainder of the work of the Division is referred to as 'general Chancery' work. This is the area of practice where the law of equity is most significant.

The ‘Business and Property Courts'

The Business and Property Courts cover the work of the specialist courts within the Rolls Building in London and at the civil and family courts in Manchester, Birmingham, Leeds, Cardiff and Bristol. They bring together the work of the Chancery Division and specialist courts of the King’s Bench Divisions of the High Court.

The business and property courts include:

·       The Commercial Court (e.g. shipping, sale of goods, insurance and reinsurance)

·       The Business List

·       The Admiralty Court

·       The Circuit Commercial Court (previously the Mercantile Court)

·       The Technology and Construction Court

·       The Financial List (e.g. banking and financial markets)

·       The Insolvency List

The Family Division

Judges who sit in the High Court can hear all cases relating to children and have an exclusive jurisdiction in wardship – a type of court order which gives custody of a minor (under 18) child to the court, with day-to-day care carried out by an individual(s) or local authority.

Judges in the High Court also hear appeals from the Family Court, which is the main court of first instance for both public and private family matters (at an equivalent level to the county courts). Briefly, public family law concerns the safety and protection of children and related issues, and private family law concerns divorce and ancillary financial arrangements.

Rights of audience

Solicitors can carry out advocacy in the lower courts (Magistrates’ Court; County Court; the Tribunals; and Appeal Tribunals).

Solicitors are not generally authorised to carry out advocacy in the 'Higher Courts - Barristers ordinarily carry out advocacy in the Higher Court (Civil disputes - High Court, CoA and Supreme Court)

If solicitors wish to carry out advocacy in the High Courts, they need to undertake training and pass assessments to obtain Higher Rights of Audience.

The Court of Appeal

The Court of Appeal is based at the Royal Courts of Justice in London but has occasional sittings elsewhere in England and Wales. It consists of a Civil Division and a Criminal Division, which between them hear appeals on a wide range of cases covering civil, family and criminal justice. In some cases, a further appeal lies, with permission, to the Supreme Court, but in practice the Court of Appeal is the final court of appeal for the great majority of cases.

All Court of Appeal judges are senior judges with lengthy judicial experience. Appointment is by the monarch on the recommendation of a selection panel convened by the Judicial Appointments Commission

The judges of the Court of Appeal are the Heads of Division (the Lord Chief Justice of England and Wales, the Master of the Rolls, the President of the King’s Bench Division, the President of the Family Division and the Chancellor of the High Court) and the Lords Justices of Appeal.

The Lord Justices of Appeal = referred to verbally as "Lord/Lady Justice [Surname]" /, in writing, as "[Surname] LJ".

Court of Appeal - Civil and Criminal Divisions

The Civil Division hears appeals from the High Court, County Courts (if judgement was given by a Circuit Judge) and certain tribunals such as the Employment Appeal Tribunal and the Immigration Appeal Tribunal.

It is headed by the Master of the Rolls. Cases are generally heard by three judges, consisting of any combination of the Heads of Division and Lords Justices of Appeal.

The Criminal Division hears appeals from the Crown Court. It is headed by the Lord Chief Justice, who is the Head of the Judiciary and President of the Courts of England and Wales. The Lord Chief Justice assumed the role of Head of the Judiciary following the Constitutional Reform Act 2005, which changed the role of the Lord Chancellor from a mixed judicial and political one to a fully political one.

Cases in the Criminal Division are generally heard by three judges, consisting of the Lord Chief Justice or the President of the King’s Bench Division or one of the Lords Justices of Appeal, together with two High Court Judges or one High Court Judge and one specially nominated Senior Circuit Judge.

The Supreme Court

The Supreme Court is at the apex of the legal system of the United Kingdom. It hears appeals from courts in England and Wales, Scotland and Northern Ireland on the most significant cases.

It was established by the Constitutional Reform Act 2005 to replace the old Appellate Committee of the House of Lords. However, it did not start sitting until October 2009.

There are twelve Supreme Court judges, known as 'Justices'. They are known as "Lord/Lady [surname]". The full Court sits when the most important cases, usually those of constitutional significance, are heard. The senior judge is known as the President.

Permission to appeal to the Supreme Court is required and will only be granted if the issue raised is of 'general public importance'. Recent issues include:

·       The availability of damages for the payment of commercial surrogacy fees

·       The lawfulness of prorogation of Parliament by the Prime Minister

·       Whether the applicable standard of proof in inquest proceedings in the case of suicide is civil/criminal standard

Civil appeals

It should be noted that, in cases of high importance, which are very likely in any event to reach the Supreme Court, it is possible for the case to by-pass the Court of Appeal. This clearly saves time and legal costs.

The procedure is known as a ‘leapfrog appeal’ and means that the judgment of the High Court is appealed directly to the Supreme Court. This was provided for by sections 12-16 the Administration of Justice Act 1969 in relation to the House of Lords and it has since been confirmed that the practice also applies to the Supreme Court.

Legal professionals and court personnel[KL3] 

Legal services and reserved legal work

The provision of legal services to the public in England and Wales is governed by the Legal Services Act 2007. The Act lists a number of legal services that are called 'reserved legal activities' and can only be carried out by an 'authorised person'. Reserved legal work includes: Conveyancing, Litigation, Advocacy, Probate, Oaths administration

Solicitors

'Authorised persons' under the Legal Services Act 2007.

Solicitors are usually the first point of contact for a client with any legal problem. Solicitors work in all areas of the law, and in practices ranging from sole traders through small High Street firms, to large commercial firms.

The work of a solicitor depends on the area of law they practise in, and the nature of that practice.

Solicitors work can be very broadly divided into 'contentious' and 'non contentious' categories.

Solicitors' functions - The work of solicitors includes:

·       Obtaining information from the client about their legal problem or issue

·       Giving the client legally accurate and commercially sound advice on their options

·       Managing the procedural aspects of litigation (e.g. starting legal proceedings)

·       Managing the procedural aspects of a transaction (e.g. conveyancing)

·       Communicating and negotiating with other parties

·       Drafting legal documentation such as wills, deeds and contracts

·       Drafting documents for legal proceedings, such as particulars of claim

·       Representing clients in court, where appropriate

Solicitors' rights of audience

Solicitors are granted rights of audience in all courts and tribunals when they are registered. They cannot exercise rights of audience in the senior courts until they have complied with additional assessment requirements. Once passed, the solicitor has so-called "higher rights" of audience. An application for civil higher rights of audience permits solicitors to appear in civil proceedings in the Crown Court, High Court, Court of Appeal and Supreme Court.

Criminal advocacy must comply with the SRA Quality Assurance Scheme for Advocates Regulations.

Routes to qualification as a solicitor

The routes to qualification as a solicitor were changed by the introduction of a 'Solicitors' Qualifying Examination' or SQE.  To qualify as a solicitor, the new requirements are to:

·       have a degree in any subject (or equivalent qualification or work experience)

·       pass both stages of the SQE assessment - SQE1 focuses on legal knowledge and SQE2 on practical legal skills

·       have 2 years' qualifying work experience

·       pass the SRA's character and suitability requirements.

Legal apprenticeships

Legal apprenticeships offer an alternative route to qualification as a solicitor/paralegal/Legal Executive. As an apprentice you are an employee of a law firm which sponsors you throughout the apprenticeship. You are paid a salary, learn on the job and are given time during the working week to complete your academic studies.

·       Paralegal Apprenticeship (a two-year level 3 apprenticeship)

·       Chartered Legal Executive Apprenticeship (a five-year level 6 apprenticeship)

·       Solicitor Apprenticeship (a six-year level 7 apprenticeship)

What legal apprentices do

Daily tasks, over the course of a legal apprenticeship, are likely to include:

·       Drafting correspondence to clients

·       Attending client meetings, taking minutes as necessary

·       Attending interviews

·       Negotiating and drafting contracts and other legal documents

·       Researching and reporting back to supervisors / clients on various aspects of the law

·       Proofreading legal documents

·       Administrative tasks such as document reproduction / management.

Paralegals

'Paralegal' is an umbrella term for someone who provides legal services but is not a qualified lawyer, and so not a 'regulated person'. Paralegals don't need any particular qualifications.

A paralegal cannot carry out work that is reserved for regulated lawyers unless their work is supervised, and they work in a firm regulated by an approved regulator.

Paralegals who are members of the Chartered Institute for Legal Executives must follow the CILEx Code and are regulated as individuals by CILEx Regulation.

Chartered Legal Executives

A Chartered Legal Executive (CLE) is a lawyer who has completed all the elements of the route to qualification at the Chartered Institute of Legal Executives (CILEx).

CLEs are not 'authorised persons' under the Legal Services Act 2007 and require supervision from an 'authorised person' if carrying out reserved legal work, unless they are a CILEx Practitioner= no supervision is required.

CLEs and CILEx practitioners are regulated by CILEx Regulation an independent regulator set up by the Chartered Institute of Legal Executives (CILEx) under the Legal Services Act 2007.

Barristers

Barristers are qualified lawyers and 'authorised persons' under the Legal Services Act 2007. Most are specialist advocates, who frequently appear before courts and tribunals to represent their client's interests.

Once fully qualified, barristers have full rights of audience before all courts and tribunals.

Regulated by the Bar Standards Board.

The majority are self-employed but share office premises, administrative and marking services. These groups of self-employed barristers are known as 'chambers', usually by their address e.g. "1 Kings Bench Walk". Some are employed by commercial and public sector organisations.

Qualifying as a barrister

To qualify as a barrister, the following is required:

·       A qualifying law degree

·       The successful completion of a period of vocational training (Bar Training Course)

·       Joining and being 'called to the Bar' by an Inn of Court

·       The successful completion of twelve months of pupillage (supervised, on the job training either in chambers or by an organisation which employs barristers)

Why instruct a barrister?

Most clients turn to a barrister when they need specialist advocacy services or specialist legal advice, or the drafting of more complex documents in litigation such as a defence or a skeleton argument for a court hearing.

Most barristers specialise in a particular area of law, such as employment, personal injury, or family. Self-employed barristers are personally and individually responsible for the work they do for a client and are required to have professional indemnity insurance.

It was previously the case that members of the public could not instruct a barrister without going through a solicitor. That is no longer the case. Suitably experienced and qualified barristers are now permitted to accept instructions from members of the public, through 'direct public access'.

Judicial assistants

Judges in the High Court, Court of Appeal, and Supreme Court have 'judicial assistants'.

The role of judicial assistant offers those in the early years of their professional practice a ringside view of the trial process and judicial decision-making from the perspective of the judge, for the most complex, high value and often high-profile cases.

JAs aid the Judges to whom they are assigned in the preparation and management of the cases before them, typically in carrying out legal research; reading, marking up and summarising case documents and transcripts; and providing general support for the judges in the organisation of their work and hearings.

Aimed at qualified barristers and solicitors in the early stages of their legal career, applicants need to be able to demonstrate an outstanding intellectual ability, excellent organisational skills and the ability to manage large and complicated workloads, as well as a high level of professional integrity.

Court personnel

There are many non-legally qualified individuals working in courts and tribunals, from administrative staff in the listing office, to court ushers and security staff.

Every court, whether civil or criminal, will have a number of 'court ushers'. Ushers are responsible for making sure that everyone involved in a case is present and knows what they are expected to do. This is particularly important when parties are not legally represented. The usher will liaise between the parties and the Judge, for example by inviting the parties into court when the Judge is ready.

In the Magistrates' Court, qualified 'Legal Advisers' are present throughout each hearing to assist the Magistrates (who are usually not legally qualified) and advise them on the law. Court clerks are also present throughout hearings in the senior courts; they assist the Judge with the procedural and administrative aspects of the case.

Judicial appointments

Judges are appointed by the Judicial Appointments Commission, following – for all except the most senior appointments - an application, online tests, and interviews/selection days.

The majority of judicial roles require legal qualifications and professional experience (as a solicitor or barrister) although there are many non-qualified specialist roles for example as lay Tribunal members.

There is a statutory requirement for at least 5 or 7 years of post-qualification experience for legally qualified posts – depending on the level of court or Tribunal.

If you are a CILEx Fellow, you can apply for judicial posts up to the level of District Judge in the County or Magistrates' Court.

Judicial diversity

Under the Constitutional Reform Act 2005, the Judicial Appointments Commission is under a statutory duty to:

·       Select candidates solely on merit

·       Select only people of good character

·       Have regard to the need to encourage diversity in the range of persons available for judicial selection

The JAC have identified four main target groups of people who are underrepresented in the judiciary : women, BAME people, disabled people, and solicitors.

Action on diversity

The Judicial Appointments Commission reports developing a number of initiatives to increase diversity in the judiciary, including:

·       Observations of live role plays, telephone assessments and interviews are carried out to ensure consistency and the use of fair selection principles across panels.

·       All online tests are marked automatically, and therefore name-blind.

·       Progression of target candidate groups is monitored at key stages in the selection process: post-application, after each stage of shortlisting and post-selection day.

·       Equality impact assessments are carried out on all major changes to policies and the selection process to ensure that the changes will not have adverse effects on any particular group.

·       Reasonable adjustments are considered at all stages of the process for candidates with physical, sensory and mental health disabilities, and long-term health conditions.

·       The JAC follows its published process, assessing candidates against a bespoke competency framework for each exercise.

Diversity statistics

Despite efforts to increase diversity within the senior levels of the legal profession, and thereby the judiciary, progress remains to be made.

The judicial diversity statistics published on 11 July 2019 by the JAC, showing the figures as at 1 April 2019 show (inter alia) that:

·       32% of judges in the courts and 46% of tribunal judges were women. 51% of non-legal members of tribunals were women

·       23% of Judges in the Court of Appeal and 27% in the High Court were women

·       Of the 143 judges in the court that were appointed to a senior judicial role in 2018/19, 45% were women

·       BAME representation among judges in the court was generally lower than the general population, but in those aged 50 to 59 it was similar to general population at this age (10% compared to 11%), while BAME representation among tribunal judges was similar or higher than that of the general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the general population at all age groups.

Judicial independence

'Judicial independence' is a cornerstone of the rule of law. It means that judges make their decisions independently of any external pressure, be it financial, political, or professional.

The main provisions designed to ensure judicial independence in this jurisdiction are:

·       The payment of a salary

·       An independent judicial appointments process

·       Judges cannot be members of political parties or hold political appointments

·       Judges may not decide cases in which they have a personal interest

·       Judicial decisions tainted by actual or apparent bias, may be overturned.

Juries: history and function

History of Juries

The jury system was imported to Britain after the Norman Conquest in 1066. The right for a man to be punished only pursuant to ‘the lawful judgment of his equals’ is enshrined in the Magna Carta of 1215.

The functions of juries have changed significantly over the years. The first jurors acted as witnesses, providing information about local matters. Later, under Henry II (1133-89), the jury began to take on an important judicial function, moving from reporting on events they knew about, to deliberating on evidence produced by the parties involved in a dispute. The jury has been called the ‘bulwark of the liberties’ of the individual against the state and is seen by many as an essential part of the English Legal System. Lord Devlin in 1956 wrote ‘Trial by jury is more than instrument of justice and more than one wheel of the constitution; it is the lamp that shows freedom lives.’ Though juries are symbolically important in the criminal justice system, they operate only in a minority of cases and their role is constantly being reduced to save money. Juries only decide cases heard in the Crown Court. Crown Court trials represent no more than 2 per cent of all criminal trials, with most criminal prosecutions taking place in the magistrates’ courts.

The Role of the Jury

Juries hear criminal cases that are:

·       Triable on indictment, where the accused pleads not guilty. This category includes the most serious offences, such as murder, manslaughter, rape and robbery.

·       Triable either-way offences, where the defendant elects to have a trial before a jury

The role of the jury is to weigh up the evidence and determine issues of fact, that is decide what happened, the ‘true facts’ of the case, and reach a verdict on that basis.

In a criminal trial, at the close of the case, after the prosecution and defence have presented their version of events and examined and cross-examined the accused, the alleged victim, and any witnesses – the judge sums up the issues and legal principles, and then the jury retires to consider its verdict. This will either be ‘guilty’ if the prosecuting body, usually the Crown Prosecution Service (CPS), has established its case beyond reasonable doubt, or ‘not guilty’ if not.

In reaching a verdict, the jury is only entitled to consider evidence that arose in court.

Although a judge may direct a jury to acquit, the judge may not direct the jury to convict.

The decision whether the prosecution has proven its case is always a matter for the jury alone.

Juror’s right to give a verdict according to their conscience - juries may acquit a defendant, even when the law demands a guilty verdict. Confirmed by the House of Lords in R v Wang [2005]. The trial judge rejected the defendant’s defence and told the jury ‘I direct that you return guilty verdicts.’ The House of Lords quashed the convictions. Delivering a unanimous judgment, Lord Bingham said ‘No matter how inescapable a judge may consider a conclusion to be, in the sense that any other conclusion would be perverse, it remains his duty to leave the decision to the jury and not to dictate what the verdict should be’.

A judge cannot pressurise a jury into reaching a guilty verdict. In R v McKenna and Others [1960] Cassells J said ‘It is a cardinal principle of our criminal law that in considering their verdict – concerning as it does, the liberty of the subject – a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat’.

Jury Equity

One of the strengths of jury trials is that a jury may acquit anyone, regardless of the law or the weight of the evidence. This principle is known as ‘jury equity’. Two examples of ‘jury equity’ are:

·       R v Ponting [1985], a jury acquitted the accused, Clive Ponting, of charges brought under the Official Secrets Act 1911. There was no argument that the accused had committed all the elements of the offence, and the judge had directed the jury that, as a matter of law, he had no defence. However, despite this clear indication from the judge that the defence was unavailable, the jury returned a verdict of ‘not guilty’.

·       R v Gilderdale (2010): In January 2010 Mrs. Gilderdale was acquitted of the attempted murder of her 31-year-old daughter who had been suffering from ME since she was 14 years old. Mrs. Gilderdale who had cared for her daughter throughout her suffering had eventually agreed to help her daughter to die. Given the strength of the prosecution evidence and the guilty plea to the assisted suicide charge, the jury’s verdict is widely seen as an example of jury equity. The trial judge, Bean J commented ‘I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows common sense, decency and humanity which makes jury trials so important in a case of this kind’

Majority verdicts

In England & Wales, the jury is made up of 12 jurors.

Ideally juries should produce a unanimous verdict, but the concept of majority verdicts was introduced in 1967 and is now regulated by s.17 of the Juries Act 1974, which states ‘a jury’s verdict need not be unanimous’ where at least 10 of them agree, or in rare case where there are ten jurors, at least nine of them agree.’

When the jury withdraws to consider its verdict, the jurors are told by the judge to reach a unanimous verdict. If this is not possible after a period of reasonable deliberation, the jury can reach a majority verdict. The foreman of the jury must state in open court the numbers of jurors agreeing and disagreeing with the verdict.

The main advantage of a majority verdict is that it avoids the problem of one juror with extreme and/ or intractable views holding out against the rest and should lessen the need for expensive and time-consuming retrials. Conversely, it has been argued that majority verdicts ‘dilute’ the concept of proof beyond reasonable doubt, on the ground that if one juror is not satisfied as to guilt, there must be a doubt and therefore this gives less protection to the innocent. This, in turn, weakens public confidence in the system.

Advantages of the Jury System

·       Public Participation: Juries allow the ordinary citizen to take part in the administration of justice, so that verdicts are seen to be those of society rather than of the judicial system and satisfy the constitutional tradition of judgment by one’s peers. Lord Denning has described jury service as giving ‘ordinary folk their finest lesson in citizenship’. Public involvement in the justice system has been argued as a ‘sign of a healthy and democratic society’ (Home Office paper), which not only improves the quality of justice by participation of the public, but the community is enriched by it ‘…jury trials keep the law in touch with the public and encourage lawmakers to take account of their wishes’. Dominic Grieve (In Defence of the Jury Trial) commented ‘It seems to me that one way for the system to maintain legitimacy is for people to have a way of genuinely being part of the decision-making process. Indeed, it is hard to think of a more civil duty that virtually any member of the public may be called upon to conduct’

·       Juries are the best judges of facts: Many defences in criminal law involve a ‘reasonable man test’, e.g. diminished responsibility, duress, self-defence, who better to undertake this task than jurors? As ordinary members of the public they are better equipped than judges or magistrates to assess issues such as the credibility of witnesses and the defendant’s dishonesty. As most jurors only serve once, they approach their cases relatively fresh and with an open mind, unlike judges and magistrates, who are vulnerable to becoming ‘case hardened’, meaning cynical, having heard similar arguments in similar cases over many years. There is also a ‘strength in numbers’ argument, 12 heads being better than 3 magistrates or 1 judge. Weight of numbers arguably helps to minimise the possible risks of prejudicial views influencing the verdict.

·       Clear separation of responsibility: Juries arguably provide a better balance to proceedings in the trial courts, dividing the responsibilities of the trial into those who determine the law (the judge) and those who determine the facts (the jury)

·       Certainty: A clear verdict of guilty or not guilty and no reasons provides certainty.

·       Encourages openness and intelligibility: Because a jury is composed of randomly selected members of the public, lawyers, particularly prosecution lawyers, must present their evidence in a manner which the jury can understand. The prosecution bearing the burden of proof, to get a conviction, needs to persuade the jury of the defendant’s guilt ‘beyond reasonable doubt’. This allows for trials to be readily comprehensible to the public. If there was no jury, trials are likely to be more specialised, technical and include legal jargon.

·       Jury Equity: the principle of ‘jury equity’ enables juries to acquit anyone, regardless of the law or the weight of the evidence. Although juries must reach a decision based on the evidence, arguably consciousness plays a part.

Disadvantages of the Jury System

·       Cost and time: Jury trials are more expensive than trial by magistrates as trials are lengthier, arguably costing up to eight times more. The jury process is time-consuming for all involved, with juries spending much of their time waiting around to be summoned into court.

·       Lacking skill: Lord Denning MR argued that the selection of jurors is too wide, resulting in jurors not competent to perform their task. Lord Denning suggested jurors should be selected in the same way as magistrates, with interviews and references. This would improve the decision making of the jury as a whole. There is a danger this would create a more complicated selection process, more time-consuming and costly, and select more intelligent, better educated people from a narrower socio-economic group. In R v Young (1995) jurors deliberating the verdict, stayed overnight in a hotel. There, they used a Ouija board to contact the victims’ spirits to decide the defendant’s guilt. The jury’s conviction of guilt was overturned and a retrial ordered. In the high-profile trial of Vicky Pryce, the judge made critical comments of the jury referring to ‘absolutely fundamental deficits in their understanding’ after receiving questions showing a failure to understand the most basic aspects of the case. This resulted in a retrial.

·       Absence of reasons: Jury deliberations are confidential, and the jury do not provide reasons for their verdict. (This is further considered elsewhere in your notes.) Darbyshire (The Lamp that Shows that Freedom Lives – Is it Worth the Candle? 1991) is critical of jurors and jury equity writing ‘Jurors will sometimes acquit, or convict, for a variety of extraneous reasons, which have nothing to do with replacing the law with their own sense of fairness or equity. They include the pressure of incarceration in the jury room and replacement of the high standard of proof ‘beyond reasonable doubt’ with a lesser standard… Jurors also sometimes base their decisions on sympathy or hostility towards other trial participants, notably counsel and witnesses’. Darbyshire claims the ‘jury is an anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law’. A 1979 study by Baldwin and McConville found that 25% of acquittals were questionable, calling them ‘an arbitrary and unpredictable business’

·       Compulsory jury service: For many people jury service can be a rewarding experience. Some people have a negative attitude towards it and may perceive jury service as an obligation rather than as a privilege. Some jurors may regard jury service as time-consuming, inconvenient and financially disadvantageous. These attitudes may lead to people seeking excusal or deferral. Those unsuccessful in being excused or deferred may be resentful and not take their responsibility seriously enough or try to get the deliberations over as quickly as possible.

·       Distress caused to jury members: Juries trying cases involving serious crimes of violence, particularly rape, murder or child abuse may have to listen to deeply distressing evidence and, in some cases, to inspect photographs of injuries. After Rosemary West’s murder trial in 1995, some jurors were offered professional counselling. Since these cases the Ministry of Justice has provided that court-appointed welfare officers should be made available. However, these are provided only in cases judges deem to be exceptional and only if jurors request their help.

·       Bias/ Racist jurors in criminal trials: Article 6 of the European Convention of Human Rights (ECHR) confers the right to a fair trial by an impartial tribunal. Ingman (2008) suggests jurors may be biased for or against certain groups, for example, they may favour attractive members of the opposite sex or be prejudiced against the police or be racially prejudiced. In Sander v UK (2001), the Article 6 right was found to be infringed where one juror admitted he may have made racist comments but denied being racist. In Gregory v UK (1998) Article 6 rights were not found to be infringed where one juror alleged during the trial other jurors made racist comments or jokes, which they denied. It is argued Gregory failed as it concerned an unsubstantiated allegation. Both cases concerned evidence raised during the trial.

Jury eligibility and selection

Rules of Eligibility

The rules of eligibility to serve on a jury are contained in s.1 of the Juries Act 1974 (as amended by the Criminal Justice and Courts Act 2015). To serve as a juror an individual must be:

·       Registered as an elector

·       Aged between 18 and 75 years. The minimum age is 18 years. The maximum age was raised from 65 in 1988 and again in 2016 to 75 years.

·       Ordinarily resident in the United Kingdom (UK), the Channel Islands, or the Isle of Man for five years from the age of thirteen.

Ineligibility

April 2004>4 categories of people for jury service under the previous provisions of the Juries Act 1974:

·       Group A: the Judiciary, which include current and retired judges and magistrates

·       Group B: Other persons concerned with the Administration of justice: a large group including police, barristers and solicitors ‘whether or not in actual practice as such’

·       Group C: the Clergy, etc, including ‘a man in holy orders, a regular minister of any religious denomination’ and a ‘vowed member of any religious order living in a monastery, convent or other religious community’.

·       Group D: Mentally Disordered Persons, include persons ‘liable to be detained’ under the Mental Health Act 1983 or resident in hospital on account of Mental disorder.

S.321 of the Criminal Justice Act 2003 which came into effect in April 2004, abolished Groups A, B and C. This means that judges, lawyers, the police and clergy all became eligible for jury service. Only Group D remain ineligible.

The core objective of the reform was to broaden the pool of potential jurors, and to make the jury more representative of society.

A wider pool has led to more appeals and arguments on ‘apparent bias’.

In R v Abdrikov and others [2007], three separate cases were joined into a single appeal, arguing that the presence of certain jurors created a risk of ‘apparent bias’ and hence breached the appellants’ entitlement to a fair trial by an ‘independent and impartial tribunal’ guaranteed by Article 6 of the European Convention of Human Rights (ECHR). The appellants in the three cases were:

·       Nurlon Abdrikov, convicted of attempted murder by a jury, containing a serving police officer, who had no connection to the case. The officer’s presence on the jury was only revealed at a very late stage in the trial when the jury had retired to consider their verdict;

·       Richard Green, a heroin addict, convicted for actual bodily harm (ABH). In his jury, was a police officer, PC Mason. The victim in this case was a serving police officer, Sergeant Burgess. At the time of the incident PC Mason and Sergeant Burgess were both serving the same London borough and had served in the same police station at the same time, although the two were not known to each other. PC Mason’s presence was discovered after the trial

·       Ken Williamson, convicted of rape. His jury contained a solicitor who had been employed by the Crown Prosecution Service (CPS) since 1986. Whilst disclosed in advance and challenged, the trial judge permitted him to serve as a juror.

The appellants invoked an established principle, endorsed by the European Court of Human Rights, claiming that it was ‘of fundamental importance that justice should not only be seen to be done, but should manifestly and undoubtedly be seen to be done’. The appellants argued this principle had not been met due to the presence of jurors employed by the police and the CPS. The Court of Appeal rejected all three appeals. The House of Lords allowed the appeals in two of the cases: Green and Williamson. The appeals were allowed and the convictions quashed on the basis that ‘a fair minded and informed observer would consider there to be a ‘real and possible source of unfairness’.

Lord Bingham, giving the leading judgment, recognised ‘that most adult human beings, as a result of their education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone’

Lord Rodger said there was a risk in any Crown Court trial that some jurors may be homophobic, sexist or racist. However, giving a dissenting judgment, he said that the law takes steps to minimise the risk by making jurors take an oath or affirm that they will ‘faithfully try the defendant and give a true verdict according to the evidence’ and by making the judge give them a direction that they must assess the evidence impartially. The presence of the other eleven jurors would ‘neutralise any bias on the part of one or more members and so reach an impartial verdict’.

Disqualification from Jury Service

Schedule 1 of the Juries Act 1974, and preserved by the Criminal Justice Act 2003, lists those disqualified from jury service as:

·       Persons sentenced to 5 years or more imprisonment: disqualified for life;

·       Persons sentenced to up to 5 years (including suspended sentences) disqualified for 10 years;

·       Those convicted of offences under s.20A-D of the Juries Act 1974 (covered in your notes elsewhere); disqualified for 10 years;

·       Persons on bail

Excusal from Jury Service

Under the Juries Act 1974 as amended by the Criminal Justice Act 2003, the only people entitled to be excused are:

·       Any person who had served on a jury within the preceding 2 years;

·       Members of the Armed Forces (a certificate is required to show it would be prejudicial to the efficiency of the service if that member was absent from duty)

Previously MPs, doctors, dentists, nurses and vets, and members of religious societies or orders could be excused -  entitlement to automatic refusal was removed by the Criminal Justice Act 2003. Now persons may have their jury duty excused or deferred only at the discretion of the Jury Central Summoning Bureau (JCSB) if they can show ‘good reason’. A Home office study in 1999 common reasons included: medical (40%); care of children and elderly (20%); work/ financial reasons (20%); non-resident; being a student (6%); transport and other problems.

The process of selection

Juries are selected from the electoral register. This is designed to ensure a random selection. Lord Denning in R v Sheffield Crown Court ex parte Brownlow [1980] said ‘We believe that 12 persons selected at random are likely to be a cross section of the people as a whole – and thus represent the view of the common man … the parties must take them as they come’.

The policy of random selection is not without problems, as certain groups in society, for example, young people, students and members of ethnic minority groups tend to be underrepresented on the electoral register and therefore on juries too.

The Court of Appeal has turned down several claims to a ‘right’ to a multi- racial jury, stressing the overriding importance of random selection. In R v Ford [1989] Lord Lane CJ said that ‘such a principle cannot be correct, for it would depend on an underlying premise that jurors of a particular racial origin or holding particular religious beliefs are incapable of giving an impartial verdict’.

R v Binns and Others [1982] involved 12 young male defendants, all but one of whom was of West Indian origin. The judge and the prosecution accepted the proposition that the jury should contain a reasonable proportion of black people. Eventually a jury was sworn in containing one young man, two middle aged West Indian origin women and one young Asian man. All of the defendants were acquitted. This decision was disapproved of in R v Ford.

There have been recommendations arguing that in some cases race should be taken into account, where race is likely to be relevant to an important issue in the case.

However, the government in its 2002 White Paper, Justice for All, rejected this proposal, claiming ‘it would be wrong to interfere with the composition of the jury in these cases’. There is no right therefore to a multi-racial jury and this is an argument unlikely to succeed.

Jury deliberations and the impact of Social Media and the Internet

Jury deliberations

Jury deliberations are confidential and must not be disclosed. The Jury does not provide reasons for their decision.

S.74 of the Criminal Justice and Courts Act 2015 (CJCA 2015) inserted several new provisions into the Juries Act 1974, effective April 2015.

S.20D(1) JA 1974 (as amended) provides that it is an offence for a person ‘intentionally to …disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations’.

There are exceptions to allow the jury to deliver their verdict (s.20E(1) JA 1974) and to state the numbers agreeing/ disagreeing with the verdict.

Appeals by the defence against conviction are more common, which usually relate to an alleged misdirection by the judge on a point of law or evidence. What about appeals by the defence against decisions of the jury?

It was previously legally impossible to bring an appeal against conviction based on evidence of allegations of improprieties that may have occurred during jury’s deliberations (the confidentiality principle). Only appeals based on extraneous matters could proceed previously.

The Court of Appeal and the House of Lords in R v Qureshi [2001] and R v Mirza [2004] declared they were unable to investigate post-verdict allegations of jury impropriety, including allegations of racism, due to this confidentiality principle. In both cases the allegations included disparaging remarks, racist remarks, bullying attitudes and alleged prejudices.

The House of Lords cited an old common law rule, which had the same effect as the confidentiality principle, preventing appeal judges from investigating appeals relating to alleged irregularities in the course of jury deliberations. The common law rule was designed to ensure the confidentiality of jury deliberations, essential to the proper functioning of the jury process and ensuring jurors are protected from harassment.

Following amendments made by the CJCA 2015 effective from April 2015, S.20E(2) – S.20(F) JA 1974 (as amended), now allows in certain circumstances, the Court of Appeal (Criminal Division) to hear evidence of events affecting the jury, such as a serious ‘irregularity’ which is enough to bring a conviction into doubt, particularly concerning allegations of jury misconduct.

S.20E(2) – S.20(F) JA 1974 (as amended), state:

·       S.20F(1) if the person making the disclosure reasonably believes that (i) an offence or contempt of court has been or may have been committed by or in relation to a juror in connection with those proceedings or (ii) conduct of a juror in connection with those proceedings may provide grounds for an appeal against conviction or sentence.

·       S.20F(7) it is not an offence under s.20D(1) to disclose information in any evidence in contempt of court proceedings in relation to a juror’s breach or conduct.

Appeals against decisions of the jury remain difficult to succeed and what amounts to a ‘serious enough irregularity’ remains to be considered further. Would similar cases to R v Mirza and R v Qureshi succeed under the new amendments as a serious irregularity?

The secrecy of Jury deliberations

Arguments in favour of secrecy are that:

·       It ensures freedom of discussion in the jury room;

·       It protects jurors from outside influences, and from harassment;

·       If the public knew how juries reached their verdict they might respect the decision less;

·       Without secrecy citizens would be reluctant to serve as jurors;

·       It ensures the finality of the verdict;

·       It enables jurors to bring in unpopular verdicts; and

·       It prevents unreliable disclosures by jurors and misunderstanding of verdicts.

The Arguments against secrecy and in favour of disclosure are that this reform would:

·       Make juries more accountable;

·       Make it easier to inquire into the reliability of convictions and rectify injustices;

·       Show where reform is required;

·       Educate the public; and ensure each juror’s freedom of expression

Impact of social media and the internet

The rule that jurors are banned from considering evidence not raised in court exists to ensure defendants get a fair trial and are not convicted based on, for example, whispered gossip to which they have not had the opportunity to respond.

Recent cases have highlighted the problems created for the proper administration of justice if jurors succumb to the temptation to either discuss a case on social media or conduct their own online research into the case. Doing so risks breaching their obligation to decide cases solely on the evidence that they see and hear in the courtroom.

These cases have led to the creation of new criminal offences in the Criminal Justice and Courts Act 2015 (CJCA 2015), which came into effect in April 2015:

·       New S.15 Juries Act 1974 (JA 1974): empowering a trial judge to order members of jury to surrender ‘electronic communications devices’ such as smartphones or tablets. The power is exercisable at the judge’s discretion, and will be available if the judge considers that to do so ‘is necessary or expedient in the interests of justice’ and that such an order would be ‘a proportionate means of safeguarding those interests’. Failure to comply would be a criminal offence.

·       New s.20A JA 1974: creating a new offence of conducting ‘research’ into a case during the trial period by a member of the jury. The offence will only be committed if the juror ‘intentionally seeks information’ and ‘when doing so, knows or ought reasonably to know that the information is or may be relevant to the case’. This includes searching an electronic database; including by means of internet; visiting or inspecting a place or object; conducting an experiment; or asking another to seek the information connected to the case. Information relevant to the case includes information about the person involved in events relevant to the case, the trial judge and any other person involved in the trial, whether as a ‘lawyer, a witness or otherwise’. The new offence is designed to deal with the situation which arose in Attorney General v Dallas [2012] where the juror conducted her own research into the case, obtaining information not adduced in evidence and which might have played a part in her verdict, and disclosing some or all of that information to her fellow jurors. This wasted jury time, added public expense and subjected the complainant to give evidence again at a retrial. Lord Judge CJ said the juror ‘did not merely risk prejudice to the due administration of justice, but she caused prejudice to it.’

·       New s.20A JB 1974: creating a new offence of ‘intentionally disclosing information obtained during prohibited research with other jurors’. The new offence is designed to deal with the situation which arose in Attorney General v Beard [2013] where the juror conducted research into the case and disclosed his findings to another juror.

·       New s.20A JC 1974: creating a new offence of ‘intentionally engaging in prohibited conduct’, defined as ‘conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of evidence presented in proceedings on the issue. The new offence is designed to deal with the situation which arose in Attorney General v Fraill and Sewart [2011] and Attorney General v Davey [2013]. In Fraill the juror contacted one of the defendants via Facebook and they discussed the case whilst it was still ongoing. In the latter case a juror posted a comment on Facebook about how he was going to decide the fate of the accused, whom he described as a ‘paedophile’ even though the case was still ongoing. In both cases the jurors were charged with and convicted of contempt of court. Lord Judge CJ in Fraill said_‘if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system… so precious to the administration of justice, will be seriously undermined, and …public confidence on which it depends will be shaken’._

Lord Judge CJ stressed that ‘…jury deliberations, and ultimately their verdict, must be based –and exclusively based – on the evidence in the court…Information provided by the internet is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him to the risk of being influenced, even unconsciously, by whatever emerges from the internet. This offends our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.’

Crosby, (2012 study) said ‘between 5 and 12% of jurors actively look for information about their trial online, while between 13 and 26% come across it while browsing news websites. Another research study by Professor Thomas in 2013 found that three-quarters of jurors understood the rules limiting access to the internet during trial, but the remaining quarter were confused. A fifth thought they were not allowed to look at the internet at all during the trial, including their own emails, while 5% thought there were no restrictions on the use of the internet during the trial. Some jurors may not understand the logic behind the ban and therefore see no harm in ignoring it.

The Role of Laymen: Magistrates

Magistrates

Magistrates’ courts are presided over by Justices of the Peace, also known as Magistrates or ‘lay magistrates’, as they are lay people and generally have no legal qualifications, although having a legal qualification does not prevent them from becoming a magistrate. They are advised and supported in court by legally trained personnel known as ‘Legal Advisors’, also known as ‘Justices’ Clerks’. Advice can also be provided by ‘Assistant Justices’ Clerks’. Legal Advisors are qualified barristers or solicitors that are assigned to work with magistrates.

Magistrates are required to undertake practical training to help prepare them for their role. They are volunteers, they are not paid a salary but can claim expenses.

The system of training, development and appraisal for magistrates are overseen by the Judicial College and delivered by Magistrates Area Training Committees. There are around 300 magistrates’ courts in England & Wales hearing a range of criminal and some civil cases, such as family proceedings. Most magistrates’ work concern criminal cases. All criminal cases commence in the magistrates’ court, and most are dealt with their entirety in that court. Magistrates’ courts deal with bail applications; trials and sentencing for summary-only offences and either-way offences where appropriate and can also issue search warrants.

The Role of Magistrates

Magistrates sit in panels known as ‘benches’, usually made up of three magistrates. One member of the panel, selected on a random basis, will chair the bench and speak in court to ask questions and give judgments. The other two magistrates are referred to as ‘wingers’. All members of the bench have an equal role in making decisions upon the cases that come before them.

Magistrates are usually asked to sit in court for 26 half-days per year. Although they usually sit in the magistrates’ court, they may also be required to sit in the Crown Court to hear criminal appeals from the magistrates’ court. In such appeals two magistrates will hear the case together with a circuit judge.

To ensure consistency in decision-making between different magistrates’ courts throughout the country, magistrates are issued with structured decision-making guidelines; and sentencing guidelines to ensure sentences for similar crimes are consistent both locally and nationally.

Legal Advisors/ Justices’ clerk, work alongside magistrates that are presiding over criminal cases or specific civil proceedings, providing them with advice on applicable laws and judicial procedures.

Magistrates determine issues of fact and are guided on the law by the Legal Advisor.

The magistrate considers and analyses the facts of the case, and the Legal Advisor provides them with guidance on the legal concepts, precedents and rules, which are relevant to the matter being heard.

Legal Advisors also make sure that court proceedings move along smoothly, explain procedures to defendants and witnesses to avoid disruptions and make sure that all the people involved in court proceedings conform to the conventions of the court. For instance, they “swear in” witnesses.

Additional responsibilities include overseeing and managing administrative matters and setting up hearing schedules in accordance with the availability of magistrates.

The Role of Legal Advisors

There is more legal responsibility when working within the Magistrates court as Legal Advisors assist a bench of non-lawyers. According to the National Career service, Legal Advisors:

·       manage court schedules

·       prepare for court sessions and making sure evidence is ready

·       advise magistrates on how the court works

·       advise magistrates on the law

·       read charges to the court

·       deal with legal aid applications

·       research legal issues and collect legal statistics

·       help run the courtroom

·       train staff and magistrates

Appointment of Magistrates

Magistrates are appointed by the Lord Chancellor following the recommendation of a local advisory committee for the area in question, which will advertise to encourage applications from members of the public.

Once the local advisory committee has recommended someone to be a magistrate, approval is requested from the Lord Chief Justice.

The aim of the application process is to try to encourage applicants from a diverse range of social and ethnic backgrounds, whatever their gender or age, to ensure the ‘Bench’ is suitably diverse. In this context ‘Bench’ refers to magistrates as a group and should not be confused with ‘bench’ used to describe a panel of magistrates sitting in court.

The September 2020 judicial diversity statistics (Ministry of Justice) reveal that as of 1 April 2020, 56% of magistrates in England & Wales were female; 13% were from BAME backgrounds and 49% were aged 60 or over. Just 1% were aged under 30. Numbers of magistrates have fallen. The Ministry of Justice has called this a ‘crisis in magistrate numbers’ saying, ‘there are now simply not enough magistrates to do the work that needs to be done’.

Candidates must satisfy the Lord Chancellor that they meet six criteria:

·       Good character;

·       Understanding and communication;

·       Social awareness;

·       Maturity and sound temperament;

·       Sound judgement;

·       Commitment and reliability.

Because of the need to maintain public confidence in the impartiality of the judiciary, people who work in certain occupations (for example, police officers) cannot become magistrates. Persons guilty of a serious crime; a number of minor offences; banned from driving in the past 5-10 years or declared bankrupt cannot apply as they cannot establish Good Character.

Magistrates need to demonstrate they have the following ‘right personal qualities’ - that they:

·       Are aware of social issues

·       Are mature, understand people and have a sense of fairness

·       Are reliable and committed to serving the community

·       Can understand documents, follow evidence and communicate effectively

·       Can think logically, weigh up arguments and reach a fair decision

Advantages and Disadvantages of criminal hearings before Magistrates courts and Crown Courts

Magistrates Court

Less expensive

Less time consuming

Less severe sentences. (Magistrates are limited to a maximum sentence of 6 months imprisonment)

Magistrates hear all the evidence even if successfully excluded

Higher conviction rate. Case hardened!

Crown Court

Higher acquittal rates (30% compared to 2% in magistrates courts)

‘Voir Dire’ - judge hears arguments to exclude evidence in absence of jury

More experienced judges

Jury forms a less biased judgement

Higher powers of punishment

More time consuming - Slower (processes inc. jury)

Higher costs – defendant could be liable for defence and prosecution costs if convicted

More likely to be presented to public eye/news

 [KL1]Workshop 1

 [KL2]Workshop 2

 [KL3]Workshop 3

Sources of Law:

Definition of Law: A system of rules recognized by a community that regulates actions and is enforceable through penalties.

Legal Evolution: Law must reflect societal wishes for credibility and evolve alongside societal changes. The current legal system is a product of historical legal development.

Timeline of Legal Development:

• Pre-1066: Local customs of Anglo-Saxon society.

• 1066-1485: Formation and imposition of common law on local customs.

• 1485-1870s: Development of equity; coexistence of common law and equity.

• 1870s-Present: Joint jurisdiction, significant statute law development, and growing influence of European Union law.

King’s Council: Served as itinerant courts administering high justice.

• Key Courts Established:

  • Court of Exchequer: Royal finances.

  • Court of Common Pleas: Land ownership disputes.

  • King’s Bench: Serious criminal matters.

Common Law: Evolved through King’s courts, based on common customs. Established under King Henry II.

Writ System: A procedure requiring purchase of a writ to initiate court action, limiting access to the King's courts.

• Types of Writs:

  • Writ of right: Recovery of land.

  • Personal actions: Writs for damages (e.g., Debt, Trespass).

Judicial Function: Judges interpret laws, apply them to cases, and issue final judgments. They don’t create laws but rely on statutes and precedents.

Stare Decisis: A foundational principle of common law where judges must follow established precedents from higher courts.

Equity: Developed due to limitations of common law; operates on principles of fairness.

• Equitable Remedies: Specific performance, injunctions, declarations, rescission, and rectification.

Legislation: Two types - Primary (Acts of Parliament) and Secondary (delegated legislation).

• Legislative Process: Bills go through readings and committee stages in Parliament before royal assent.

Judicial Structure: Includes various levels from Magistrates' courts to the Supreme Court, addressing criminal and civil matters differently.

Jurors: Ensure public participation in justice; entitled to reach verdicts based on conscience. Majority verdicts are permitted to balance decision-making.

Magistrates and Legal Professionals: Lay individuals support the judicial process. Magistrates oversee low-level cases, advised by legal advisors.