THE ADMINISTRATION OF THE LEGAL SYSTEMS
The structure of the courts in all three jurisdictions within the United Kingdom tends to be arranged according to the subject-matter of cases brought before the courts rather than the source of the laws to be applied. The latter did form the basis for a great deal of court structure until the end of the nineteenth century and even now has some influence.
England and Wales courts
The more serious criminal cases are tried on the basis of a document called the indictment -
the defendant is indicted on criminal charges specified in the indictment by the prosecutor. In most cases, the prosecution is on behalf of the Crown (the State) and is handled by an official agency called the Crown Prosecution Service, which takes the case over from the police who have already investigated most of the evidence. The first stage will be to decide whether there is a case to answer - what is called a prima facie case. This process, called committal, will be dealt with by a magistrate on the basis of evidence disclosed in papers provided by the prosecutor. If the case proceeds, it is heard in the Crown Court (there is only one Crown Court but it has about 70 centres around the jurisdiction). The trial is before a judge and jury. The judge presides over the trial process by attempting to ensure clarity and fairness. The judge must also consider and decide on legal issues (such as whether a piece of evidence is admissible - should be put before the jury) and also instruct the jury as to the correct view of the law relevant to the case. The jury decides the facts - whose story is more believable - and applies the law to those facts. So, it is the jury not the judge which reaches a verdict on the guilt or innocence of the defendant. In criminal cases, the prosecution has the burden of proof - it must prove guilt, rather than the defendant having to prove innocence. The standard (= level) of proof is heavy - guilt must be proven beyond reasonable doubt.
In less serious criminal cases (which comprise over 90% of criminal cases - see Home Office Research & Statistics Directorate web site for statistics, e.g. see the 1996 British Crime Survey), the case is sent for summary trial in one of over 400 magistrates courts. A summary trial means there is no committal and no jury. The trial is before a bench of magistrates. In most cases, there are three magistrates who are "lay" persons - in other words, they are not professional judges nor are they lawyers, but, like the jury, they are persons from the local community. However, there is now an increasing number of "stipendiary" magistrates - paid magistrates who are qualified lawyers. Stipendiary magistrates are, for historical reasons, most common in London and in other large cities. See The Place Of The Magistrates Court In The English Judicial System, and also The English Magistrate which gives a description of the nature and role of the English Magistracy (See for example, the web site of Trafford Metropolitan Magistrates Court and its Code of Practice).
Those defendants who are dissatisfied by the verdict may be able to appeal:
- from the Magistrates Courts, there is an appeal to the Crown Court on matters of fact or law .
- from the Crown Court, it might be possible to appeal to the Criminal Division of the Court of Appeal on matters of fact or law
- certain legal disputes arising in the magistrates courts or the Crown Court can be taken before the Divisional Court of the High Court
- finally, matters of important legal dispute arising in the Crown Court or Divisional Court may be appealed to the House of Lords - see Information on the Judicial Work of the House of Lords describing the jurisdiction of the House, the Law Lords, procedure, and the history of the House's judicial role. See also the judgments of the House of Lords delivered sinceNovember 1996 on-line. Abstracts of House of Lords cases since 1992 are available here. See also a BBC March 1998 Special Report on "What does the future hold for the Lords ?" The BBC Special Report also includes sections on "The House of Lords: A brief history of time" and "Lords reform under way."
In civil cases, the litigation is commenced by a plaintiff (a private person or company or a public authority) against a defendant. The plaintiff must try to prove the liability of the defendant on the balance of probabilities. The sorts of claims arising in the civil courts are typically about contracts (most common of all), torts (civil wrongs such as the causing a road accident through negligence, damaging a persons reputation through defamation, or affecting the enjoyment of their property through causing a nuisance such as by pollution) and land disputes. The choice of court depends in most cases on the value of the claim. Claims of lesser value will start i na County Court. There are 250 County Courts around the country. They can also deal with divorce and bankruptcy matters. Relatively small claims (less than about £3,000) can be handled by a Small Claims Procedure. This involves a quick hearing, often without lawyers being present, before a District Judge. The parties can however appeal to a Circuit Judge who also deals with full County Court trials. In 1995, nearly 2.5 million "actions" (cases) were commenced. Just over two million were actions for the recovery of debts based on contracts. Almost 200,000 were actions relating to land (mainly for repossession of houses where a mortgage or rent had not been paid). Another 200,000 related to matrimonial proceedings. The Small Claims Procedure dealt with 100,000.
More substantial civil claims (over around £25,000) are heard in the High Court (based in London but also with a few regional centres, often housed within Crown Court buildings). The action is begun by writ, which is accompanied by a statement of claim in which the details of the legal dispute is set out. The High Court is organised according to case type into Divisions:
a Family Division deals with divorce and child welfare matters and also the administration of wills. Child welfare matters include both proceedings brought by child protection agencies, such as local authorities - about 17,000 in 1995. Parents and guardians may also make applications, for example about custody and access - 102,000 in 1995. There were also over 5,000 adoption orders. Divorce is mainly dealt with in the County Courts, but the High Court does hear a small number of complex, contested cases. The Family Division also oversees the uncontested administration of wills - a process called "probate". It authorises the executors to act on behalf of the deceased person if it can be shown that all the papers are in order. There were about a quarter of a million grants of probate in 1995.
a Chancery Division considers complex matters such as disputes about wills, settlements and trusts, bankruptcy, land law, intellectual property (copyright and patents) and corporate laws. In 1995 nearly 11,000 general actions (mainly relating to land disputes) were begun. There were also 13,000 bankruptcy petitions and nearly 18,000 company cases (mainly relating to insolvency). Many of the company cases are dealt with in a specialist sub-Division, the Companies Court. See the Chancery Division judgments.
the Queens Bench Division deals with the remaining business - disputes about contracts or torts or land. The Queens Bench Division has some specialist sub-Divisions, including a Commercial Court (dealing with large and complex business disputes; there were about 200 in 1995), a Crown Office List (dealing with actions against public authorities - about 4,000) and an Admiralty Court (shipping matters - about 500). See the Queen's Bench Division judgments.
See generally The Court Service web site and the Lord Chancellor's Department which are currently under construction.
Any civil trial is in the vast majority of cases by a judge alone. Juries are now very rare in civil cases. Another feature to note is that cases are often slow to pass through the system, measured in months or years rather than weeks as for criminal cases. It is also important to realise that a very large proportion of civil claims are "settled" - the parties agree on how they should be resolved and therefore the case never reaches trial. This applies both to High Court and County Court. In 1995:
- The number of trials in the County Court was just 24,477.
- In the Queens Bench Division, there were 31,737 writs issued but judgement in only 1520 cases
The system of appeal in civil cases is as follows:
- from a County Court or the High Court, there is an appeal to the Civil Division of the Court of Appeal on law only. In 1995 there were 991 final appeals and 756 "interlocutory" appeals (these are appeals from the way the case is being handled through the lower court rather than an appeal about the final verdict). See the Court of Appeal, Civil Division judgments.
- from the High Court, there may be an appeal to the House of Lords on a matter of legal importance - just two cases in 1995
- from the Court of Appeal, there can be an appeal to the House of Lords on fact or law, but usually appeal is only allowed on matters of legal importance - 47 in 1995
Swarbrick & Co, Solicitors provide a web site which enables users to search recent legal cases. The database so far covers the period from 08-Jan-1992 to 05-Feb-1998 and it is frequently updated. See http://chianti.ipl.co.uk/swarb/swarform.html. Law Index by Courts is a good option as it covers a wide variety of UK courts. It also covers cases from the the European Court of Justice and European Court of Human Rights.
Northern Ireland courts
See Northern Ireland Law pages
This Court was set up under the Treaty of Rome of 1957, by which the European Community was established. The Court sits in Luxembourg and consists of judges appointed by all 15 of the Member States (so there is one British judge). The Court has been made part of the English legal system by virtue of the European Communities Act 1972, section 3 of which states as follows
"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)."
Its intervention can arise in two ways under Article 177 of the Treaty of Rome. Firstly, "The Court of Justice shall have jurisdiction to give preliminary rulings concerning...the interpretation of this Treaty ... when such a question is raised before any court of tribunal of a Member State, that court or tribunal may, it if considers that a decision on the question is necessary to enable it to give judgement, request the Court of Justice to give a ruling thereon." This means that any UK court, civil or criminal, can ask for its judgement on a point of Community law if it is felt to be an important point which is necessary for a decision. Secondly, "Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice." This means that where there is no further appeal from the national court (such as from the House of Lords, the case must be referred on points of Community law if they are in dispute.
Further details can be found on the Court of Justice's Homepage
The hierarchy of the courts
The structure now described should be related to the issue of precedent described earlier. In other words, the decisions of which courts are binding on the decisions of which other courts? In what order of authority (this is what "hierarchy" means) are the courts placed?
Up to Court of Appeal level, each judge follow the decisions of all the higher courts above it but need not follow the views of other judges in the same court or a lower court. The Court of Appeal is normally bound by its own previous decisions in civil cases as well as those of the House of Lords. The Court of Appeal can depart from its own decisions in civil cases in the circumstances laid down in a case called Young v Bristol Aeroplane Co. 1 KB 718. This says it can depart from its earlier own decision if (1) made in error (2) if there are two conflicting earlier decisions, the Court can choose one and override the other (3) where a decision conflicts with a later decision of the House of Lords. The Criminal Division of the Court of Appeal is not bound by its previous decisions - it is considered to be more important to be just to the individual than to provide certainty. For an example of how the judges can be flexible in criminal cases, see R v R  1 AC 599,  4 All ER 481, House of Lords.
The House of Lords is not bound by other courts (except the Court of Justice). But if it were bound by its own decisions, the system could become too rigid - the judges would have to await legislation through Parliament to correct any mistakes they made at that level. Rather than rely of the whims of the legislature, the House of Lords decided by a Practice Direction (a decision as to its own procedure) in 1966 that it was not to be bound by its own previous decisions, though it continues to recognise the value of certainty and so will depart from earlier decisions only in rare cases.
The Court of Justice can overrule all other courts on matters of Community law.
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Last Updated 01 July 1998.