Chapter 9 Justice and the Law

1. Chapter 9 Justice and the Law November, 2005 Xiao Huiyun

2. Pictures

4. A 1 Introduction – Basic Principles of *** English Law • What are the basic principles of English Law? • Explain “The Rule of Law”. • What is the Law that is higher than man-made law? What are the criteria? • What kind of orders are soldiers expected to disobey? Give examples. • Should the pilot who bombarded the Chinese Embassy in Yugoslavia be punished for the atrocity? Why or why not?

5. A 1 Introduction – Basic Principles of English Law • The Rule of Law, Natural Law and Natural Justice • The Rule of Law is an aspect of the British Constitution. • It involves: • The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities. • There can be no punishment unless a court decides there has been a breach of law. • Everyone, regardless of your position in society, is subject to the law.

6. A 1 Introduction – Basic Principles of English Law cont • Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children) • Natural Law is higher than Man-made law. Eg. Nuremberg War Crimes Trial • Natural Justice -- reflections of prevailing moral view of society .

7. Basic principles • The rule of law----everybody is subject to the law ----laws must not be arbitrary ----a person is innocent until proven guilty • Natural law ----a law is higher than a man-made law • Natural justice----reflection of the prevailing moral view of the society

8. A 1 Introduction –Sources of British Law • Common Law – decided by judges, their decisions in cases being arrived at after considering the customs and practices of the people involved. This kind of law has evolved long before Parliament became the main law-making body. • Statute Law – made by Parliament • Case Law – has evolved through decisions in actual trials • European Union law

9. A 1 The Supremacy of Parliament • Parliament can pass, repeal and alter any of Britain’s laws. This is one of the major powers that a government has . • Parliament also has the power – after going through its own parliamentary processes – of altering its own laws. • In theory there is no body that can declare a law passed by Parliament as unconstitutional - though the full impact of the European Court is not yet known. • But decisions of the European Court must be accepted in UK.

10. A 1 Introduction -- Two branches of law • Civil law -- defines and enforces the duties or obligations of persons to one another. • Criminal law -- by contrast, defines and enforces the obligations of persons to society as a whole.

11. A 2 Structure of the Courts • Criminal & Civil Law p 153 • Precedence p 153 • The legal system in England & Wales pp153-154, handouts • The legal system in Scotland handouts

12. The Court System Civil branchCriminal branch House of Lords Court of Appeal Court of Appeal High Court (QBD, CCD, FD) Crown Court County Court Magistrates’ Court (JPs, stipendiary magistrates)

13. Court cont • 1. The Magistrate's Courts hear criminal trials2. A magistrate is also called a justice of the peace3. They deal with almost 97% of all criminal cases4. Six months is the maximum sentence given5. Magistrates are often not legally qualified

14. Courts cont • Magistrates’ Court • The overwhelming majority of the public who come into contact with the court system will do so with the Magistrates’ court,and there are more than 700 magistrates’courts in England and Wales. It is rare for the sort of cases dealt with in these courts to grab the nation’s attention,or hit the headlines. However ,these courts are a vital cog in the wheel of justice, and nearly all of the UK’s criminals will pass through their doors.

15. Courts cont • The Crown Court • The Crown Court deals with all indictable cases,which are serious offences triable before a judge and jury,and these include murder, rape, serious assault, kidnapping, conspiracy, fraud, armed robbery,and Official SecretsActoffences. These offences cannot be tried at the magistrates’ court.

16. Courts cont • The High Court • The High Court is a civil court and has the authority to hear any civil case in England and Wales. It handles everything from libel and litigation to shipping cases and divorce. Along with the Court of Appeal, it is based at the gothic building of the Royal Courts of Justice on the Strand,London, but also sits at 26 towns around the country.

17. Courts cont • Court of appeal • If a convicted person feels he or she has not had a fair trial in the Crown Court/High Court and has been wrongfully convicted,or that the sentence imposed by the judges is unfair,then he or she can take their case to the Court of Appeal,where more senior judges will consider the merits of their case.

18. Courts cont The House of Lords *The highest law court *The Law Lords conduct a fairly relaxed court --dress like businessmen to hear cases --sit at eye level,behind a horseshoe-shaped table --rarely attend political debate Lord Chancellor -- Charles Leslie Falconer , Baron Falconer of Thoroton,Secrataryof State for Constitutional Affairs Charles Leslie Falconer, Baron Falconer of Thoroton

19. A 3 Legal Advice & Assistance *** • Who pays for it? • 3 forms of legal aid • Legal Advice & Assistance – who offers aid? ? • Civil legal Aid– represented by whom? • Criminal Legal Aid -- privilege or right? represented by whom?

20. A 4 Inside the Courts • Judicial independence "is basic to the (British) Constitution." • The independence of judges is secured by: • While in office they behave in a professional manner; if they maintain the highest of standards in all areas, they cannot be touched by the government if they come to a decision that is against a government act • Those in the judiciary are paid out of the Consolidated Fund so that they are free of annual parliamentary criticism, which might be used to mould future judicial decisions • See p155 for more information

21. A 4 Inside the Courts cont *** • What are the qualifications for judges? • Where do magistrates come from? What are their jobs? How important are they? Are they paid for the jobs? • In which branch of court do you find a jury? • Sentencing • What is the most severe punishment in Britain? • Pp 155-157

22. How Are Magistrates Appointed? Requirements of local communities: number, gender, ethnicity, etc Application Advisory Committee Qualifications qualifications Interviews Qualifications/Disqualifications: e.g. age, residence, occupation, criminal record No formal qualification is Recommendation to the Lord Chancellor Appointment

23. English Judges

24. A 5 Outside the Court –The Professional • Barristers and Solicitors • Differences in training • Work • See pp157-159, handouts

25. Barrister

26. Barrister Independent practice in ‘chambers’ Pupilage(1 year) School of Law Bar Exams(1 year) Law Degree(3 years) 5 years

27. A solicitor Solicitor

28. Solicitor Training Work for a Solicitor’s firm become a partner Articles(3 years) Law Society Exams(1 year) 7 years Law Degree(3 years)

29. Training for legal profession in Scotland*** • A bachelor degree in Scottish law from Scottish universities + one year postgraduate course & Diploma in Legal Practice • A period of vocational training for solicitors/advocates • Solicitors for 21 months in solicitor’s office • Advocates for 9 months as a pupil to a member of the Bar

30. A 6 Problems in the English Legal System • Outdated practice • System elitist • Weak points of jury system • Advantages and disadvantages of the jury system • Lay magistrates • See p 159

31. Potential or Possible Advantages of the Jury System • The system is the chief bulwark of the common man against abuse by the state or by individual members of the legal system. • It gives the public a part to play in the legal process and makes the ordinary people gain a sense of involvement. • Jurors usually have more first-hand qualification than any judge to form a valid opinion upon facts connected with the daily life of ordinary people. • The system ensures thatthe judgment of guilt or innocence is made by the accused’s equals, not by a judge whom many will see as being out of touch with ordinary people and no better at making judgments about facts.

32. Potential or Possible Disadvantages of the Jury System • Jurors may have a lot of difficulty following arguments and/or evidence in a complex case. • Evidence shows that gender or race discrimination and prejudice still exist among some jurors. • Juries are likely to be influenced by one dominant personality among their members and also , by the impression they pick up from the judge’s summing-up, rather than solely from the facts presented to them during the hearing. • Jurors are more easily swayed by emotional witnesses’ accounts or barristers’ appeals, and sometimes do not pay as much regard to facts or documentary evidence as expected.

33. Potential or Possible Disadvantages Lay Magistrates • The system of Lay Magistrates ensures that critical decisions affecting personal liberty, reputation and rights are taken by ordinary individuals. So there is an analogy with trial by jury in the Crown Court, except that there a Judge rules on the law, whilst the jury decides the facts of the case. Magistrates do both of these things. As for potential or possible advantages and disadvantages of Lay Magistrates, some of the same things as above will apply e.g. gender, race. In addition, an extra advantage of the system is that magistrates handle the bulk of criminal cases (95%) preventing the higher courts from becoming overloaded with cases.