CATTEDRA DI LINGUA INGLESE

Transcription

1 CATTEDRA DI LINGUA INGLESE Letture di base 1 PROF ADRIAN BEDFORD UNIVERSITÀ DEGLI STUDI DI NAPOLI PARTHENOPE Dipartimento Di Giurisprudenza Via Generale Parisi, Napoli 1

2 CONTENTS 1. The United Kingdom page 3 2. The United Kingdom system of Government page 4 3. The monarchy page 4 4. The British Constitution an overview page 5 5. Parliament page 6 6. Powers of the House of Lords page 8 7. Organisation of the House of Lords page 9 8. The Lower House page The Executive page The British legal system page Solicitors and Barristers page Different kinds of practice page Qualifying as a solicitor page Barristers page Training page The courts of England and Wales page The magistrate s court page The Defendant page The magistrate or Justice of the Peace page The County Court page The Crown Court page The High Court page The Court of Appeal page The House of Lords as a Court page The Legal System of the United States of America page Common Law and Civil Law Systems page Constitutional Law page Statutory Law page 30 2

3 THE UNITED KINGDOM The United Kingdom of Great Britain and Northern Ireland is a constitutional monarchy and a unitary state which is made up of the island of Great Britain (including England, Scotland and Wales) and of Northern Ireland. The common language is English; Welsh and Gaelic are spoken regionally. The British Isles are not constitutionally part of the United Kingdom; these islands, comprising the Channel Islands (the main ones of which are Jersey, Guernsey, Alderney and Sark) and the Isle of Man are separate dependencies of the British Crown. The name Great Britain refers to the main island on which are situated England, Wales and Scotland. Great refers to the size of the island and distinguishes it from Bretagne in France. The word for Britain and Bretagne are the same in most European languages. The independent Kingdoms of England and Scotland were first linked by personal union of the Crowns of both countries when James VI of Scotland succeeded to the throne of England (as King James I) in The political unification of the two countries was only effected more than 100 years later through the Treaty of Union of The treaty and the subsequent Acts of Union abolished the separate parliaments and established one parliament for Great Britain which was situated in London. Great Britain was united to Ireland by the Act of Union of 1800, which came into effect in the following year. By this Act, provision was made for Irish representation in the Parliament at Westminster, as provision had been made for Scottish representation in the Act of In the twentieth century, the new Scottish Parliament was elected on May 6, 1999, and sat for the first time the following week on May 12. It took up its full legislative powers on July 1, an important day in Scotland's history. The United Kingdom of Great Britain and Ireland existed from 1801 until 1922, at which time, in consequence of the partition of Northern and Southern Ireland, the title was changed to the present one of The United Kingdom of Great Britain and Northern Ireland. The Irish Treaty of 6 th December, 1921 gave Dominion Status to 26 Irish Counties under the name of the Irish Free State (Saorstat Eireann); in 1937 the Irish Free State assumed a republican form of government but the new state continued in association with the British Commonwealth until 18 th April The Republic of Ireland is now an independent state and Northern Ireland remains under the British Government. English Law and Scots law are very different from each other in form and substance. The separate evolution of the two legal systems, both before and after Union, has resulted in different principles, institutions and traditions. Although in modern times Scots law has been greatly influenced by English law, it is still based upon principles of Roman or Civil law and upon rules of Canon, feudal or customary law origin. In spite of the existence of a common Parliament for England and Scotland for over 250 years there has been no assimilation of the legal systems of the two countries. A fusion of law has, however, taken place between England and Wales, as a consequence of the subjugation of the latter country in the middle ages. The law of Northern Ireland, although administered as a separate system, is similar in many essentials to English law. 3

4 THE UK SYSTEM OF GOVERNMENT The constitutional principles, rules and practices of the United Kingdom have never been codified; they derive from statute law, from common law, and from conventions of the constitution, which are not laws at all, but political practices which have become considered as indispensable to the smooth working of the machinery of government without taking written form. The monarchy, followed by the legislative, executive and judicial organs of government will be discussed in turn. The monarchy is the most ancient non-religious institution in the United Kingdom, with a continuous history for over a thousand years. The monarchy is hereditary and the present laws regarding the Crown derive from provisions of the Act of Settlement of 1701 which secured the Protestant succession, meaning that no Catholic can become monarch. This succession cannot now be altered, under a provision of the Statute of Westminster in 1931 except by common consensus of the member states of the Commonwealth which owe allegiance to the Crown. Queen Elizabeth II, who succeeded to the throne in 1952, is, in addition to being an integral part of the legislature, the head of the judiciary, the commander-in-chief of the armed forces of the Crown and the temporal head of the established Church of England. The Monarchy Her Most Excellent Majesty, Queen Elizabeth II The monarchy in the United Kingdom has evolved over the centuries from absolute personal authority to the present constitutional from by which the Queen reigns but does not rule. Her Majesty s government governs in the name of the Queen who must act on the advice of her ministers. The Queen summons, prorogues (dismisses at the end of a session) and dissolves Parliament; she usually opens new sessions of Parliament with a speech from the throne in which the major governmental policies are outlined. These acts form part of the Royal Prerogative, defined as the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown. Prerogative rights are of legislative, executive and judicial character. The Monarch must give the Royal Assent before a Bill which has passed all its stages in both Houses of Parliament can become a legal enactment (Act of Parliament). The Monarch s consent and approval are required before a Cabinet can 4

5 be formed or a minister take up office. As Head of State the Monarch has the power to sign international agreements, to cede or receive territory, and to declare war or make peace. The Monarch confers honours and makes appointments to all important offices of state, including judges, officers in the armed services, diplomats and the leading positions in the Established Church (Church of England). As the fountain of justice, it is only the Monarch who is able to remit all or part of the penalties imposed upon persons convicted of crimes on the advice of the appropriate minister. At the present, the Monarch, although exercising residual authority by consent of Parliament and according to the advice of the government of the day, is regularly informed and consulted on many as aspects of public affairs. The British Constitution an overview What is Sovereignty? Sovereignty is the legitimate and exclusive right to exercise power within a given area. In other words, sovereignty is Supreme Power. Different types of sovereignty exist: Legal Sovereignty: where Supreme Power lies according to the law Political Sovereignty: where Supreme Power lies in reality Pooled Sovereignty (In the EU, a supranational organisation, decisions are made by European Institutions on which all members are represented, but none has a overall say) Most democratic political systems have both the separation of powers and checks and balances to prevent a single institution becoming omnipotent. What is Parliamentary Sovereignty? Parliamentary Sovereignty is regarded as the main principle of the British Constitution. In other words, Parliament holds the supreme authority in the UK. AV Dicey wrote that Parliament has under the British Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. In what ways is Parliament sovereign? Parliament has the ultimate political authority. Most key decisions (but not all, as some military and foreign decisions are in the hands of the PM) must be approved by Parliament. All powers exercised by ministers (except for the prerogative powers of the PM), devolved governments, local governments and other public bodies are granted by parliament and can be removed by Parliament. All new primary legislation must be passed by parliament and secondary legislation made by ministers can be overruled by Parliament. Parliament is not bound by its predecessors (i.e. past Parliaments cannot control the actions of the current Parliament). Parliament cannot bind its successors (i.e. it cannot pass laws that cannot be repealed or amended by future Parliaments). Is Parliament really Sovereign? Parliamentary sovereignty has been undermined in a number of areas: - Political Parties: Since the reductions in the power of the House of Lords in 1911 and 1949, the balance of power has shifted to the House of Commons. Combined with the dominance of political parties in elections since the start of the C20, this has led to tight party control over MP s and disciplined parliamentary groups that make the business of the House of Commons very predictable. 5

6 Practical reality dictates that the British Government is the majority party in the House of Commons. Strong party discipline makes this majority reliable and almost guarantees the Government victory in Commons votes an Elective Dictatorship. Also backed by the Civil Service machine it is easy to argue that sovereignty actually lies with the executive not Parliament. However, Prime Ministers who systematically repress the powers of party and parliament tend to meet their fate Margaret Thatcher is a classic example of this. - The Public: At least once every five years the House of Commons is re-elected, and so at that point sovereignty really lies with the people. However, after the general election sovereignty returns to Parliament for the next five years. - The European Union: When Britain signed the Treaty of Rome in 1973 it accepted that the status of European law is superior to British law. This has given British courts the power of judicial review over Acts of Parliament. Therefore courts can scrutinise Acts of Parliament, refer them to the European Court of Justice and even suspend those Acts. However, Parliament is free to withdraw Britain from the EU at any time, so technically sovereignty still lies with Parliament. Parliament The Houses of Parliament Parliament is the legislative organ and is constitutionally composed of the Monarch, the House of Lords, and the House of Commons. The Queen in Parliament represents the supreme authority within the United Kingdom. The two Houses mentioned above have distinct but interconnecting roles. The House of Lords In general, the functions of the House of Lords are similar to those of the House of Commons in legislating, debating and questioning the executive. There are two important exceptions: members of the Lords do not represent constituencies, and are not involved in matters of taxation and finance. The role of the Lords is generally recognised to be complementary to that of the Commons and it acts as a 6

7 revising chamber for many of the more important and controversial bills (proposals for a new law). All bills (except money bills, which deal with tax questions) go through both Houses before becoming Acts, and may start in either House. Normally, the consent of the Lords is required before Acts of Parliament can be passed, and the Lords can amend all legislation, with the exception of bills to raise taxation, nowadays the responsibility of the Commons. Amendments have to be agreed to by both Houses. The House of Lords is as active as the Commons in amending bills, and spends two-thirds of its time revising legislation. Following the Lords' rejection of the Liberal Government's budget of 1909, the Parliament Act of 1911 ended their power to reject legislation. A power of delay was substituted, which was limited even more by the Parliament Act of The House of Commons can present a bill (except one to prolong the life of Parliament) for Royal Assent after one year and in a new session even if the Lords have not given their agreement. There is also a convention (known as the 'Salisbury' convention) that the Government's manifesto commitments, in the form of Government Bills, are not rejected by the House of Lords at second reading. The House of Lords is also the final court of appeal for civil cases in the United Kingdom and for criminal cases in England, Wales and Northern Ireland. Only the twelve full-time Lords of Appeal (Law Lords) - take part in judicial proceedings. The work of the House of Lords it s role and function The House of Lords is the second Chamber of the United Kingdom Parliament. It plays an important part in revising legislation and keeping a check on Government by observing its activities. It complements the work of the Commons, whose members are elected to represent their constituents. Members of the Lords are not elected and are unpaid, though they receive an expense allowance. They have a wide range of experience and provide a source of independent expertise. The House also has a judicial role as the final Court of Appeal. What it does and how it spends its time Revising legislation The House spends about two thirds (60%) of its time on legislation. It examines and revises Bills from the Commons. It also initiates Bills which are usually non-controversial. Increasingly, a bigger share of Government Bills start in the Lords, to spread the amount of time spent on legislation more evenly throughout the parliamentary year between the two Houses. Scrutinising the Government As well as revising legislation, the House questions and debates policy and other issues: Questioning Ministers 4 oral questions called Starred Questions can be asked at the start of each day's business when attendance is high. They allow ministers to be cross questioned for half an hour about government and other policy issues. In addition, over 4,000 written questions are asked each year. "Unstarred Questions": These are "mini" debates (1-1½ hours-long) and provide opportunities to raise issues of concern. A government spokesman will reply at the end of the debate. Debates: Most Wednesdays are for general debates. One Wednesday a month, until the Spring Bank Holiday recess, is set aside for two "Short Debates" (maximum 2 1 /2 hours). Topics are chosen by ballot. Other debates are agreed between the business managers (e.g. whips) of the political parties. Independent Expertise - the Select Committees The specialist expertise which characterises much of the membership of the House of Lords is deployed in its two major investigative select committees. 7

8 European Union Select Committee The Committee was set up in 1974 to scrutinise and report on proposed European legislation. It has six sub-committees and involves over 70 peers: a) Economic and Financial Affairs, Trade and External Relations b) Energy, Industry and Transport c) Common Foreign and Security Policy d) Environment, Agriculture, Public Health and Consumer Protection e) Law and Institutions (always chaired by a Law Lord) f) Social Affairs, Education and Home Affairs g) Science and Technology Select Committee This was set up in 1980 "to consider science and technology" in the broadest sense. It operates normally through two sub-committees enabling it to carry out two enquiries at a time. Over 20 peers are involved in this work. Many of them are eminent scientists with experience of high office in scientific policy-making, university and industrial research, clinical medicine etc. Constitution Select Committee This was set up in 2001 to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. The Committee began its work with an enquiry into the working of devolution, looking at relations between institutions in the UK, including their administrations, the role of Parliaments and Assemblies and the European Union. Economic Affairs Committee Set up in March 2001, with a broad remit to consider economic affairs, its first enquiry concerned the global economy. Ad-hoc Committees These are set up from time to time to examine issues which are outside the province of the main investigative committees Judicial Work The House of Lords is the Supreme Court of Appeal for the whole of the United Kingdom in both civil and criminal cases (except Scottish criminal cases). This work is carried out by 12 salaried Lords of Appeal in Ordinary (Law Lords) who are life peers. The Law Lords also take part in legislative work of the House. Powers of the House of Lords The powers of the House of Lords are limited by a combination of law and convention: The Parliament Acts 1911 and 1949 These define the powers of the Lords in relation to public bills: Money bills: These are certified by the Speaker and deal with taxation of public expenditure. Money bills start in the Commons and must receive Royal Assent no more than a month after being introduced in the Lords even if the Lords have not passed them. Most other Commons bills: The Lords can block a bill they disagree with for about a year but the elected House of Commons can reintroduce it in the following session and pass it without the Lords consent. Bills which are not subject to the Parliament Acts are: Bills prolonging the length of a parliament beyond 5 years. Private Bills Bills sent up to the Lords less than a month before the end of a session Bills which start in the Lords 8

9 Although rarely invoked, the Parliament Acts provide a framework and a means of solving disagreement between the Commons and Lords. Organisation of the House of Lords The Speaker (kind of president) of the House of Lords is the Lord Chancellor. The Lord Chancellor's powers as Speaker are very limited compared with those of the Speaker of the House of Commons, since the Lords themselves control the proceedings under the guidance of the Leader of the House. The Lord Chancellor is really responsible for the administration of justice and the appointment of judges. Lords business is expected to be conducted in an orderly and polite fashion without the need for an active Speaker. The Lord Chancellor sits on a special seat called the Woolsack except when the House is in committee, but does not call upon members to speak and has no powers to call the House to order. The Woolsack is a seat stuffed with wool on which the Lord Chancellor sits. It was introduced by King Edward III ( ) and originally stuffed with English wool as a reminder of England's traditional source of wealth - the wool trade - and as a sign of prosperity. Today the Woolsack is stuffed with wool from several countries of the Commonwealth, to symbolise unity. There are also a number of other office holders in the House of Lords. These include government ministers and whips, the Leader and Chief Whip of the main opposition party, and two Chairmen of Committees. The Leader of the House occupies a special position in the House of Lords: as well as leading the party in government he has a responsibility to the House as a whole. It is to him, and not the Lord Chancellor, that members turn for advice and leadership on points of order and procedure. He is a senior government minister and member of the cabinet, who is responsible for the administration of legislation in the House of Lords, and is the main government spokesman in the House. These office holders and officers, together with the Law Lords, receive salaries. All other members of the House of Lords are unpaid, but they are entitled to reimbursement of their expenses, within maximum limits for each day on which they attend the House. The Clerk of the Parliaments, a role like that of a chief executive, is head of the administration. The Gentleman Usher of the Black Rod has ceremonial and royal duties and is in charge of security, access and domestic matters. Members of the House of Lords are not elected and, with the exception of bishops who leave the House on retirement, they retain their seats for life. The House of Commons The Lower House The House of Commons is traditionally regarded as the lower house, but it is the main parliamentary arena for political battle. A Government can only remain in office for as long as it has the support of a majority in the House of Commons. The present system depends upon the existence of organized political parties, each of which presents its policies for electoral approval. Most candidates in elections, and almost all winning candidates, belong to one of three main parties. The party which wins most seats (It: seggi), although not necessarily the most votes, at a general election, or which has the support of a majority of members in the House of Commons, usually forms the Government. By tradition, the leader of the majority party is asked by the Sovereign to form a government. About 100 of its members in the House of Commons and the House of Lords receive ministerial appointments, including appointment to the Cabinet (group of ministers in charge of government departments) on the advice of the Prime Minister. The largest minority party becomes the official Opposition, with its own leader and 'shadow cabinet'. 9

10 The Party System in Parliament Leaders of the Government and Opposition sit on the front benches on either side of the Commons chamber with their supporters - the backbenchers - sitting behind them. Similar arrangements for the parties also apply to the House of Lords; however, Lords who do not wish to be associated with any political party may sit on the 'cross benches'. The effectiveness of the party system in Parliament mainly depends on the relationship between the Government and the opposition parties. In general, the Opposition s aims are: 1. to contribute to the formulation of policy and legislation by constructive criticism; 2. to oppose the government proposals it considers objectionable; to seek amendments to government Bills; 3. to put forward its own policies in order to improve its chances of winning the next general election. The Opposition performs this role both by debating issues and putting questions to both Houses. As with the House of Lords, the House of Commons debates new legislation as part of the process of making an Act of Parliament, but the Commons has primacy over the non-elected House of Lords.. When the two houses disagree, the Parliament Acts can be invoked to ensure that the will of the elected chamber prevails. The Leaders of the two Houses (a senior cabinet minister) are responsible for enabling the Houses to debate matters about which they are concerned. Outside Parliament, party control is exercised by the national and local organizations. Parties are organized at parliamentary constituency (It: collegio) level and also hold local government elections. Inside Parliament, party control is exercised by the Chief Whips and their assistants, who are chosen within the party. Their duties include keeping members informed of parliamentary business which will be discussed in the immediate future, maintaining the party's voting strength by ensuring members attend important debates, and informing the party leadership the opinions of the backbench (ordinary member of parliament, not a member of the cabinet) members. Debates and Divisions Parliamentary procedure is based on custom and precedent, partly codified by each House in its Standing Orders (regulations). The system of debate is similar in both Houses. Every subject starts off as a proposal or 'motion' made by a member. A ballot is held once a week and four MPs gain the right to speak during the following week, the Speaker choosing the fifth. During debates, in which the various stages in passing a law are discussed, in the House of Commons all speeches are addressed to the Speaker or one of the Deputy Speakers. MPs may not read their speeches, although they may refresh their memories by referring to notes. In general, no MP may speak twice on the same question, except to clarify part of a speech that has been misunderstood or 'by leave of the House' (with the special permission). Divisions At the end of the debate the occupant of the Chair 'puts the question' whether to agree with the motion or not. The question may be decided without voting, or by a simple majority vote. In the Commons, voting is supervised by the Speaker who announces the result. Votes may be taken by acclamation - the norm for uncontroversial business. However, if MPs or Peers wish to 'divide the House', which generally happens on more controversial votes, then a division is held. Members have to file through one of two division lobbies (long chambers at the sides of the house of commons), one for the Ayes to 10

11 vote yes, one for the Noes to vote no. The numbers going through each lobby are counted and the result given (in the Commons) to the Speaker by the 'tellers' (MPs appointed to supervise the vote). The Speaker has the deciding vote if necessary. The Executive Her Majesty's Government is the body of ministers responsible for the conduct of national affairs. The Prime Minister is appointed by the Queen, and all other ministers are appointed by the Queen on the recommendation of the Prime Minister. Most ministers are members of the Commons, although the Government is also fully represented by ministers in the Lords. The Lord Chancellor (responsible for the administration of justice and the appointment of justice) is always a member of the House of Lords. The composition of governments can vary both in the number of ministers and in the titles of some offices. New ministerial offices may be created, others may be abolished, and functions may be transferred from one minister to another. The Prime Minister The Prime Minister is also, by tradition, First Lord of the Treasury and Minister for the Civil Service. The Prime Minister's unique position of authority derives from majority support in the House of Commons and from the power to appoint and dismiss ministers. By modern convention, the Prime Minister always sits in the House of Commons. The Prime Minister presides over the Cabinet, is responsible for the distributing functions among ministers and informs the Queen at regular meetings of the general business of the Government. The Prime Minister's other responsibilities include recommending a number of appointments to the Queen. The Prime Minister's Office at 10 Downing Street, the official residence in London, has a staff of civil servants (It: funzionari) who assist the Prime Minister. The Prime Minister may also appoint special advisors to the Office to assist in the formation of policies. Departmental Ministers Ministers in charge of government departments are usually in the Cabinet; they are known as 'Secretary of State' or 'Minister', or may have a special title, as in the case of the Chancellor of the Exchequer. The government consists of the minister appointed by the Crown on the recommendation of the Prime Minister, who is appointed directly by the Crown and is the leader of the political party which has a majority of seats in the House of Commons. The office of Prime Minister dates from the eighteenth century and is the subject of a number of constitutional conventions. The Prime Minister is the head of the government and presides over meetings of the Cabinet; by Convention he is always a Member of the House of Commons. He consults and advises the Monarch on government business, supervises and co-ordinates the work of the various ministries and departments and is the principal representative for the government in the House of Commons. He also makes recommendations to the Monarch on many important public appointments, including the Lord Chief Justice (Chief judge of the High Court and member of the Court of Appeal). The Cabinet is the nucleus of government; it s members consist of a small group of the most important ministers who are selected by the Prime Minister. The size of the Cabinet is today about 23 and its principle function, is to determine, control and integrate the policies of the government for submission to Parliament. The Cabinet meets in private and its deliberations are secret; no vote is taken, and, by the principle of Cabinet unanimity, collective responsibility is assumed for all decisions taken. 11

12 Other ministers There are over 100 ministers of the Crown at the moment. They include departmental ministers (e.g., the Secretary of State for Foreign and Commonwealth Affairs. Chancellor of the Exchequer (treasury); ministers of state (additional ministers in departments with a lot of work); and junior ministers (usually known as Parliamentary Secretary or Parliamentary Under Secretary) in all ministries and departments. The Lord Chancellor deserves special mention at this point. The Lord High Chancellor of Great Britain presides over the Lords both in its legislative capacity and as a final court of appeal; he is a member of the Cabinet and also has departmental responsibilities in connection with the appointment of certain judges. He advises on, and frequently initiates, law reform programmes with the help of the Law Commissions, the Law Reform Committee and ad hoc committees. The United Kingdom has no Ministry of Justice. Responsibility of the administration of the judicial system in England and Wales is divided between the courts themselves, the Lord Chancellor, and the Home Secretary. The Lord Chancellor is concerned with the composition of the courts, with civil law, parts of criminal procedure and law reform in general. The Home Secretary is connected with the prevention of criminal offences, the apprehension, trial and treatment of offenders, and with the prison service. The British Legal System There are two legal systems in Britain; one is shared by England and Wales; one is unique to Scotland. They are recognisable, not only by their differing traditions, but in substance - in their structures and procedures. In England and Wales the Norman Conquest (1066) did not abolish native Anglo-Saxon traditions, but began the rationalisation of the customary laws of the land. This process laid the foundations of the legal system of England and Wales by encouraging those principles of law that were common to all the realm - the Common Law. It is this approach of assimilating and rationalising diverse legal principles that perhaps typifies the legal system of England and Wales. In Scotland, where historically there were close trading and academic links with much of Europe, civil law formed the basis of the legal system. The Treaty of Union, which joined the English and Scottish Parliaments in 1707, provided for the retention of a separate system of private and local law, offering an interesting example of a legal system combining both civil and common law principles. The same commercial and fiscal laws have tended to apply throughout England, Scotland and Wales. This might be seen as an example of an early economic and political community, with shared, but independent, legal systems. Moreover, the same principles of commercial law are now widely used as the basis of international trade. Today, both legal systems still respond to new situations and challenges, as is evidenced by new approaches and the applications of new technology in courts, chambers and offices alike. The Courts of England and Wales The structures and procedures of the courts of England and Wales reflect a concern to effect efficient and speedy justice. The balance between efficiency and justice is embodied by the fact that, although most cases are heard locally by lay magistrates, the accused has the right to opt for trial by his peers - by jury. Prosecutions are brought by an independent barrister for the Crown Prosecution Service so that the judge has no role in directly eliciting evidence as to guilt or innocence; it is for the jury to decide whether guilt has been proved beyond reasonable doubt on the basis only of the evidence presented by the Crown. Equally, in both jurisdictions, civil courts, which deal with disputes other than criminal, are complimented by Tribunals for specific areas of law, such as welfare and employment, as well as informal court procedures dealing with small claims. Criminal Courts The Magistrates Court is the lowest tier of criminal court in England and Wales, dealing with about ninety-eight per cent of all criminal cases. The 450 courts are funded jointly by local and central government. Most cases are tied (try = giudicare) by Justices of the Peace (JPs), numbering 12

13 approximately 30,000. They are appointed by the Lord Chancellor for the Crown, on the recommendation of local committees. JPs are nominated on the basis of their judgement and character and come from a wide variety of backgrounds. JPs are not professionally qualified, and are not paid, but they are assisted by professional clerks, who are fully qualified lawyers. However some cases in the Magistrates Courts are tried by professionally qualified full-time stipendiary magistrates. The Crown Court tries more serious criminal cases, as well as hearing appeals from the Magistrates Courts. It sits in over ninety permanent centres throughout England and Wales, each centre being designated as first, second or third tier, reflecting the seriousness of the offences tried. Trial of cases is by a jury of twelve people selected at random from the electoral register. Civil Courts The 250 County Courts of England and Wales, deal with cases of lesser value, importance and complexity. Indeed, claims of under 1,000 can be dealt with by the increasingly popular small claims procedure, which provides for informal arbitration. Parties in such proceedings are encouraged to handle small claims by themselves, rather than being formally represented by an advocate. In the County Court formal cases are heard before District Judges, who hear uncontested and smaller value claims; higher value claims being dealt with by Circuit Judges. Each court is assigned at least one District and one Circuit Judge. The High Court sits at the Royal Courts of Justice and at County Courts around the country. It deals principally with more substantial and complex civil cases. Land, property and inheritance matters are dealt with by its Chancery Division, along with patent issues and industrial disputes. The Queen's Bench Division deals with common law business such as tort and contractual disputes. There is also a Family Division. Appeal is to the Court of Appeal (Civil Division), which also hears appeals from the County Courts and from tribunals. The Court of Appeal (Civil Division), which is housed in the Royal Courts of Justice, is constituted from two or three Lord Justices of Appeal, and may include the Master of the Rolls. There may be further appeal to the House of Lords. European Community Law Joining the European Community in 1972 has had an important effect on the constitution and laws of Britain. Regulations drafted by the European Commission, and the provisions of the Treaty of Rome are directly applicable by British courts. When there is a difficulty interpreting the effect of European Community Law there is a power to refer to the European Court of Justice (ECJ) for a preliminary ruling. Determinations of European Community law made by the ECJ as a result of references from the House of Lords and other courts are binding and authoritative statements for the purposes of the decision of future cases, the ECJ is not to be confused with the European Court of Human Rights which, along with the European Commission on Human Rights, determines issues relating to the European Convention on Human Rights. Although the Convention is not justifiable by British courts, when grievances have been upheld by the Court of Human Rights or Commission on Human Rights, Compliance has normally resulted, sometimes in the form of the introduction of new statutory rights. Characteristics of British Legal Processes The Common Law heritage of the British legal systems is enshrined in certain distinctive characteristics of the legal process. Significantly, the legal systems both use the adversarial system for deciding cases, which has moulded the form of at least, the trial process. The adversarial system is founded on the conception that justice should not only be done, but be seen to be done. Thus, the success or failure of a case is determined by the persuasiveness of the parties' arguments, taking into account the evidence accepted by the Court. Accordingly, there is extensive use of juries in criminal cases, consisting of randomly selected members of the public, whose responsibility it is to decide matters of fact, leaving the judge to determine the application of the law. In criminal cases there is the right to legal advice and representation. A defendant in a criminal trial and parties to civil proceedings may represent themselves, although, in most criminal and some civil cases, legal aid is made available to ensure the availability of appropriate advice and representation. 13

14 The importance of persuasive legal argument is a key aspect of both legal systems. Arguments on matters of law, presented by the parties' legal representatives, if accepted by and in the verdict of a court, may become authoritative and binding statements of law through the system of precedent. The concept of precedent stems from the fact that the Common Law is rooted in a series of legal customs and principles. Decisions in cases that lay down precedents may, to a certain extent, be seen to be further defining the scope and application of those customs and principles. Therefore, any subsequent court, hearing a case involving the same issue of law and sufficiently similar facts, may be bound by the reasoning of the previous court. However, in Scotland, greater importance is attached to identifying principles of law in court judgements and in the works of institutional writers. The system of precedent is not an inflexible one. A superior court is bound to overrule precedents set by lower courts of record or its own previous decisions, if they were wrongly decided. Moreover, the House of Lords can overrule its own previous decisions, when to do otherwise would be contrary to the interests of justice. Ultimately, all Common Law precedents can be suspended or superseded by Parliamentary legislation. The system of precedent means that lawyers and their clients can receive guidance as to the likely outcome of a legal issue by having regard to previous judgements. Strong arguments in court become part of the fabric of law, allowing decisions to be made in a predictable manner. 14

15 SOLICITORS AND BARRISTERS Solicitors A solicitor's role is to give specialist legal advice and help and are the main advisers on all matters of law to the public. There are over 60,000 solicitors practising in England and Wales and their work varies enormously. A solicitor's job is to provide clients (members of the public, businesses, voluntary bodies, charities etc.) with skilled legal advice and representation, including representing them in lower courts. Most solicitors work in private practice, which is a partnership of solicitors who offer services to clients. Others work as employed solicitors for central and Local Government, the Crown Prosecution Service, the Magistrates' Courts Service, a commercial or industrial organisation or other bodies. Different Kinds of Practice Private Practice There are solicitors firms in nearly every town in England and Wales. A solicitor is usually the first point of contact for anyone looking for legal advice. A solicitor's firm can vary from a large organisation with hundreds of partners, thousands of employees and offices all over the world, to a small local firm. General Practice Solicitors in general practice usually work in a small or medium-sized firm, and serve the local community, dealing with the legal problems of the public. They may carry out conveyancing (atti di trasferimento di diritti immobiliari), investigate claims (richieste di risarcimento danni) which arise from injury (lesion)e, or advise and represent people in court on their client's behalf in criminal matters. Family law and child care law are important nowadays, and solicitors often represent clients in court in divorce cases. They make wills (testamenti) and administer the estates (properietà e patrimoni) of people who have died. Solicitors often advise businesses on such matters as employment law, contracts and company formation. Solicitors are often at the centre of a local business community. Other Opportunities Not all solicitors work in private practice. It is possible for solicitors to work as in-house legal advisers to a commercial or industrial organisation, to a government department or a local authority. The largest employer of lawyers in England and Wales is the Crown Prosecution Service (pubblica accusa), which prosecutes cases in the courts. Other opportunities include the Magistrates' Courts Service, charities, voluntary organisations (organizzazioni senza fine di lucro), and even the armed services. Qualifying as a Solicitor Training Because the law is complex, the training of solicitors takes a long time and can be difficult. The Law Society (ordine degli avvocati) makes the rules for legal education and training required and they are designed to guarantee that the trainee receives an education which is both thorough and broad. How to Qualify The quickest and most common route to qualification is by means of a qualifying law degree, or, if you decide to take a degree in a subject other than law, you will have to complete a one year full-time (or two years part-time) course leading to the Common Professional Examination or the postgraduate Diploma in Law. These courses are offered at a number of institutions, but you need a very good degree as competition for places is intense. The course will give you the basic knowledge in law which you need to qualify as a solicitor. After successful completion of the law degree, or CPE, or Diploma in Law, you will have to undertake the Legal Practice Course, which is the professional training for solicitors. This course takes one academic year, or two years if study part-time. Again, competition for a place on the LPC is very tough. Good academic grades are essential. The course teaches the practical application of the law to the needs of clients, and is offered by a number of different colleges and universities. Having successfully completed the Legal Practice Course, the 15

16 would-be solicitor has to enter a two year training contract with a firm of solicitors or other approved organisation (such as a local authority or the Crown Prosecution Service), gaining practical experience in a variety of areas of law. This is called serving articles. At this stage, you will be paid a salary and will be a trainee solicitor. Summary University degree in law (3 years) legal practice course (1 year) articles (2 years) Degree in other subjects (3 years) CPE (1 year) LPC (1year) articles (2 years) Barristers It is important to understand the difference between the two branches of the legal profession: solicitors and barristers. A barrister specialises in giving advice on detailed issues and representing clients in court. In contrast, a solicitor provides more general initial advice, instructs a barrister (if necessary) and liases with the client and the barrister. About a quarter of barristers are not in independent practice as described above, but are employed by the Government Legal Service, the Crown Prosecution Service, local government, the armed forces or a variety of commercial organisations. The type of work they do will depend on the employer, but will require the same ability to give specialised legal advice. Training The academic stage The first part of training to become a barrister is known as the academic stage. It serves as a general introduction to the law. This usually consists of either a law degree or a degree in another subject supplemented by a one-year "conversion course". This could take the form of the Common Professional Examination (CPE) or a diploma in law. During the academic stage you will have to study foundations of legal knowledge. These are usually covered in the following subjects: constitutional and administrative law criminal law law of contract law of tort land law equity and trusts EU LAW If your law degree does not cover all of these foundations of legal knowledge-for example, if you choose other options or if you study law with another subject-you will have to complete the relevant parts of the CPE or diploma before passing on to the next stage of training. 2. Joining an Inn The academic stage of training provides a general, theoretical introduction to the law. The next step is to acquire some legal training specific to work as a barrister In order to pass to the next stage, you should become a member of an Inn of Court (although you may have done so at an earlier point in the academic stage). You can only apply to join one Inn. They all have a senior member of staff to deal with students and pupils. The Inns all run "sponsorship" schemes too. These link students with senior barristers in relevant areas of specialisation-another valuable source of information. 3 The Vocational Stage The vocational stage at an Inn of Court or approved law school consists of a one year course: the Bar Vocational Course (BVC). It is now possible to do the course on a part-time basis over two years. It includes: debating, mooting (holding mock trials), work for a Citizen's Advice Bureau, attending 16

17 court, marshalling (shadowing a judge), or, at the very least, reading the legal pages in the newspapers. Any of these activities should assist you in the search for a pupillage. Unlike the courses which make up the academic stage of training, the Bar Vocational Course places a 60% emphasis on skills, with only 40% of the year's work covering knowledge. The other major elements of the course are professional conduct and two specialist options. In many classes students play an active part, which often involves role-playing exercises. They may find themselves interviewing one another, negotiating solutions to legal problems, even enacting court procedures, as well as drafting documents and written recommendations. Some exercises may be based on cases similar to those that barristers receive in the early days of practice. Both the skills and knowledge elements of the course emphasise the need for a professional approach to work. To lay the foundations for this, the course will include classes on professional conduct. Main skills taught on the Bar Vocational Course Casework skills Fact Management, Legal Reseach Written Skills General written word skills Opinion-writing (that is giving written advice) Drafting (of various types of documents) Interpersonal skills Conference skills Negotiation Advocacy (court or tribunal appearances) Assessment Key areas of knowledge are often assessed through multiple choice tests. Written skills are evaluated by means of written papers, while advocacy, negotiation and conference skills may be appraised by videoed performance of practical exercises. Main areas of knowledge taught on the Bar Vocational Course Civil litigation Criminal litigation Evidence Sentencing Two optional subjects Pupillage the practical stage The vocational stage of training to be a barrister provides essential off-the-job training. Indeed, anyone successfully completing the vocational stage is eligible to be called to the Bar (a graduationstyle ceremony at their Inn), whether or not they are going on to practise. However; it is only during pupillage that barristers can use to the full the valuable lessons learned during previous stages of training. Pupillage generally takes one year, although it is split into six-month periods or "sixes". You can choose to do your first and second sixes at two different sets of chambers (barrister s office) rather than one if you wish. Neither route guarantees that you will obtain a tenancy (a permanent place in chambers). In fact, "third sixes", undertaken by those who fail to become tenants at the first attempt, are becoming increasingly commonplace. Training and experience All pupils are assigned to one or more pupilmasters or pupilmistresses, experienced barristers who organise training, delegate work and evaluate performance. Pupillages also give chambers the opportunity to assess pupils with a view to ensuring that they become effective practitioners. There is no doubt that pupillage is hard work. The first six (months) generally consists of observing and assisting your pupilmaster or pupilmistress and other barristers from chambers. 17

18 There will be a great deal of research, together with document writing and document-reading. At the end of a satisfactory first six, you receive a certificate enabling you to take on work of your own. The transition to the second six is therefore significant and quite daunting. This is where you start to build your own reputation. You have cases of your own, clients of your own, court appearances on your own resulting in cases won or cases lost. A certain amount of training takes place outside the environment of chambers. The Bar Council requires all pupils to attend two compulsory courses. The first gives further training in advocacy and the second practical help with managing a practice, including advice on financial issues. There are also voluntary, but highly recommended, courses in accountancy and EU law. Obtaining a tenancy (full position with a barristers chambers) As mentioned on the previous pages, although pupillage is the principal means by which chambers take on junior tenants, even an excellent pupillage is no guarantee of a tenancy. Competition is intense. At the moment only about 60% of those who make it to pupillage obtain tenancies. However, the Bar is open to anyone with ability, regardless of sex, sexual orientation, race or disability. The Bar Council has a rigorous Equality Code for the Bar and has equal opportunities officers to enforce it. Independent practice or the employed Bar? Qualifying as a barrister does not simply offer you a career in chambers There are many exciting and lucrative career opportunities in: The armed forces Local government Government Legal Service CivilService (amministrazione pubblica) Crown Prosecution Service Association of Magistrates' Courts summary University degree in law (3 years) bvc (1 year) pupillage (1 year) TENANCY Degree in other subjects (3 years) CPE (1 year) bvc (1year) pupillage (1 year) TENANCY 18

19 THE COURTS OF ENGLAND AND WALES 1. The Magistrate's Courts hear criminal trials 2. A magistrate is also called a justice of the peace 3. They deal with almost 97% of all criminal cases 4. Six months is the maximum sentence given 5. Magistrates are often not legally qualified The Magistrates' Court What is the Magistrate s Court? The 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. Most cases are of no public interest and are not reported in newspapers. However, these courts are a very important in British justice, and nearly all of the UK's criminals will pass through their doors. In our massively complex society, which is governed by a myriad of rules, the magistrate's courts perform a fast and relatively cheap public service, handling everything from common assault to driving while disqualified. How does it work? Magistrates may be legally qualified and salaried (stipendiary magistrates) or unqualified and unpaid lay justices, and there is also a legally qualified clerk attached to each court to assist the magistrates. There are about 29,000 lay justices and more than 60 stipendiary magistrates. A magistrates' court is normally composed of at least two, and not more than seven, magistrates, when trying a case. Magistrates' courts handle all the less serious crimes, such as parking offences, which cannot be tried by a jury. These are known as "summary" offences. Certain more serious crimes such as manslaughter and arson can only be tried at the Crown Court, where a jury may be present. These are known as solemn or indictable offences (passibile di pena). Some crimes fall into the category of being "triable either way", and these can be heard in either court. An example would be if a potentially serious offence such as theft was committed in a small way, such as theft of a packet of crisps. For certain offences, the magistrate will take an initial look at the evidence to make sure there is enough there for the case to proceed to the Crown Court. The majority of defendants (imputati) plead (si dichiara) guilty and the court then decides what sentence to impose. If the plea is not guilty then the court tries the case and the burden of proof (onere della prova) is on the prosecution who must prove the accused is guilty according to a standard known as "beyond reasonable doubt". Just like the referee at a football match, the magistrate is there to make sure both sides to the proceedings act in accordance with the rules. The lawyers argue the case, and the magistrate makes sure the argument is fair. The magistrate also decides the appropriate penalty. Summary offences are divided into five levels of seriousness, with maximum fines for each level. Some offences triable in the magistrate's court can get prison sentences of up to six months. Since 1997, the defendant who pleads not guilty can choose to go to the Crown Court for trial, if the offence falls into the category of being triable either way. According to statistics, less than one in 20 elect to do so. The advantage of going to the Crown Court is that you get a trial by jury and this means 19

20 you stand a higher chance of acquittal. Defendants who plead not guilty stand a 20% chance of acquittal in the Magistrate's Court but a 60% chance in the Crown Court. The disadvantages are that the process takes longer, is more expensive, and carries the risk that the defendant will end up receiving a much higher sentence! The magistrates also deal with civil matters, but to a much lesser degree. These include non-payment of council tax and the granting of licenses to taxis and bars. The Defendant The Magistrates' Court is the most widespread court in the legal system in England and Wales. It's the court where people first appear when they have been charged (accusato) with a criminal offence. There are some offences, such as Common Assault (aggressione), which can only be tried (giudicati) there. The defendant can be summoned (convocato) to court to face a criminal charge in a variety of ways. They can be there in answer to a summons (citazione). Alternatively, it can follow arrest authorised by a warrant (mandato d arresto), or after an arrest made without a warrant, such as when the police has seen a breach of the peace (violazione dell ordine pubblico), a disturbance (rissa) in the street or a theft in progress. A summons is a document issued by a Justice of the Peace or Justices' Clerk. They have to make sure that it describes an offence known to law and that there is jurisdiction to deal with it. In other words, is it a crime and is this court the right place in which to hear it? Are the statutory requirements satisfied - if there is a time limit, has that expired? The accused will usually have been arrested by the police, interviewed and charged with an offence in a police station. The accused may be offered police bail (libertà provvisoria) with an instruction to appear at a particular magistrates' court on a specific date. If this is denied, then they will appear at the court in custody (sotto custodia). At the first appearance (comparizione in giudizio) the accused should be represented by a solicitor - who can make a bail application, if police bail has been refused. A Duty Solicitor is available in Court if the person does not have their own legal advice. The first thing that happens at court is the formal identification of the accused - he or she will be asked for their name, address and date of birth. The court clerk will then ask the defendant to enter a plea (dichiararsi) to the charge. If they have not seen any of the prosecution papers, the lawyer may ask for an adjournment. If a not guilty plea is entered, the court will either adjourn (rinviare) for a pre-trial examination of the details or to fix a trial date. At the trial, the accused has the opportunity to put their case and prosecution witnesses are crossexamined on their behalf. If they plead guilty, the magistrates may pass sentence on that day. However, they may adjourn the case for reports to be prepared if they consider the offence to be serious enough. The court will take a guilty plea favourably into account when passing sentence. There are however more serious offences which can be tried in either the Magistrates' Court or the Crown Court. They include bodily harm, burglary and the like. In these cases, if the defendant decides to plead not guilty, the prosecution will ask the court what action it proposes to take. It can either accept jurisdiction - in other words hear the case itself - or commit the matter to the Crown Court for trial. 20

21 One reason for referring the case to the higher court is that the magistrates may not think their sentencing powers are sufficient for the gravity of the offence. The maximum sentence it can pass is twelve months in prison for two or more serious offences (six months for each of the two offences, as the maximum sentence is six months). After sentence, the defendant may appeal to a higher court if they think the magistrates were wrong, or if they think the sentence too severe. They should see a solicitor before appealing because proceedings must be started only within 21 days of the magistrates' decision. The Magistrate or Justice of the Peace Cases are heard in front of Magistrates or JPs as they are called who are mainly lay people who have good common sense and personal integrity. They should also have a good knowledge of people and their local community as well as the ability to listen to all sides of an argument and to contribute to fair and reasonable decisions. Magistrates sit as a bench (collegio giudicante) of three, one of whom has been trained to take the chair. There is always a qualified clerk on hand to deal with points of law and procedure. They deal with less serious criminal cases such as minor theft, public disorder and motoring offences. When first appointed (nominato), magistrates have to do a training course to help them to understand their duties. They need to learn enough about law and procedure, as well as having a working knowledge of the rules of evidence. They are also trained to appreciate the nature and purpose of sentencing. Throughout the initial period, they have the benefit of a personal tutor. The Lord Chancellor appoints magistrates on behalf of the Queen. Magistrates are required to sit for a minimum of 26 half days each year. However, they should be available for up to 35 half days per year, and they should also be prepared to sit for a whole day at a time if circumstances make this necessary. The job of the magistrate is to listen to the evidence presented to them and then make a fair, objective and unbiased (imparziale) decision. They must understand the facts and then apply the law to them. Magistrates perform a wide variety of tasks when sitting in court. In criminal cases they might, for example, have to determine whether the defendant is guilty or not, pass sentence on defendants found guilty, decide whether or not to grant bail, decide whether a case should be adjourned, or commit a defendant to the Crown court (the criminal court which is higher in authority than the magistrates' court). You might be required to make decisions on a range of issues affecting children and families. You would also be asked to decide whether to grant certain licences, such as liquor licences. How the job is done In a magistrates' court the justices usually sit as a bench of three. In some cases involving children or family issues, there must be at least one man and one woman on the bench. They might also, on occasion, sit in the Crown Court beside a legally qualified judge to hear appeals from the magistrates' courts. 21

22 Who can apply (fare domanda)? In order to become a magistrate, you must have lived in the geographical area in which you plan to serve for a minimum of 12 months, and you must have a reasonable knowledge of the area. Otherwise there are no specific qualifications, although you must be able to see and hear well! The key qualities the selection board will be looking for are good character, understanding and communication, social awareness, maturity and good judgment, and naturally commitment and reliability. Aspirant magistrates must be able to understand documents, comprehend facts and follow arguments. Who can't apply? The Lord Chancellor will not generally appoint a person under 27 or over 65. Magistrates must retire at the age of 70. Undischarged bankrupts, serving members of HM Forces, traffic wardens and members of the police force are not eligible to apply. Neither can you apply if you are a close relative (father, mother, son, daughter, brother, sister or in-law) of a magistrate in the same court area, or of a police officer, special constable, and civilian employee of a police force or traffic warden in the same court area. Training Once appointed, magistrates have to do a training course to help them understand their duties and to gain knowledge of the law. By the end of this course must know court procedure and the rules of evidence, and to appreciate the nature and purpose of sentencing. 1. The Court was established in It processes most minor civil law matters 3. There are over 230 County Courts in the UK 4. It deals with property cases up to 30, And personal injury claims less than 50,000 The County Court What is the County Court? The County Courts are the first contact most people have with the civil law process in England and Wales. Similarly to the magistrates' courts that deal with the majority of criminal cases, the County Courts deal with most of the civil cases - those relating to family or property law - such as divorce or disputes over land. The County Court primarily deals with civil law, so it doesn't fight crime in the same was as the criminal courts in England and Wales. However, the County Court does hear more formal cases before a district or circuit judge, and deals with over 95 per cent of all divorce cases. The judge will be advised by a court clerk on all matters, and will preside over most common law matters. The 230 county courts are scattered around the towns and cities that require their services. All property cases up to 30,000, ( )all personal injury claims less than 50,000, ( 72,600) and bankruptcy matters are all heard by the District Judge at the county court. 22

23 What is the Crown Court? The Crown Court The Crown Court deals with all serious offences triable before a judge and jury, and these include murder, rape, serious assault, kidnapping, conspiracy, fraud, armed robbery, and Official Secrets Act offences. These offences cannot be tried at the Magistrates' court. The most famous Crown Court is 'The Old Bailey', otherwise known as the Central Criminal Court. It has been the stage for some of the UK's most notorious criminals such as John Christie, who took 10 women back to his home and killed them, and Ruth Ellis, the last woman to be hanged in England. However, the Old Bailey is just one of more than 90 Crown Court centres throughout England and Wales. These centres are divided into six geographical areas The Crown Court is part of the Supreme Court of Judicature. It is presided over by a professional judge. If the case is serious, the judge is likely to be a High Court judge, who would normally be part of the Queen's Bench Division. The Crown Court is also the appeal court against convictions and sentences by magistrates. When appealing against conviction, the Crown Court judge re-hears all the evidence that witnesses have already given in the lower court, but there is no jury. For all appeals from the magistrate s court, the judge sits with two, three, or four lay magistrates. How does it work? The Old Bailey When there is a jury, the judge's role is limited to deciding matters of law and summing up (riassumere le testimonianze) for the jury. A jury consists of 12 people aged between 18 and 70 taken from the electoral list. What happens in the jury room is secret, and can never be discussed. The jury decides whether the accused is guilty or not, by looking at the facts that have been established. Normally defendants will have to wait about three months for their case to come to trial, and this wait will sometimes be in custody. The Crown Court is very busy when it sits. The average time taken to 23

24 conduct a trial is seven hours, which is about one and a half court days. There are, on average, about 120,000 defendants annually, and about one quarter of these will plead not guilty. It is not unusual for defendants to meet their barrister for the first time on the morning of their case, for a conference of just 15 minutes. Barristers often only receive their instructions for a case on the day before trial. This has caused speculation that miscarriages of justice (errore giudiziario) may happen. The Government has promised a reform of the criminal court system. Prime Minister Tony Blair announced in June 2002 that he wanted to give greater emphasis to the rights of the victims of crime, and proposed changing the law to allow juries to be informed of previous convictions, and eliminating the "double jeopardy" (rischio di condanna) rule, which stops people being tried for the same crime twice event after of the discovery of new evidence. The Royal Courts of Justice The High Court The High Court 1. The High Court was created in It is composed of three separate divisions 3. The largest part is the Queen's Bench Division 4. It is a civil court, but has some criminal powers 5. Juries may be asked to participate in some cases What is 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. Together with the Court of Appeal, it is based at the gothic buildings of the Royal Courts of Justice on the Strand, London (pictured), but also sits at 26 towns around the country. It forms the Supreme Court of Judicature, with the Court of Appeal and the Crown Court. And it is divided into three divisions. These are: the Queen's Bench Division, the Chancery Division, and the Family Division. 24

25 How does it work? The Queen's Bench Division (QBD) is headed by the Lord Chief Justice, and has nearly 70 judges. It hears contract and tort cases where the claimant is seeking damages above a certain amount. A judge usually sits alone, but a jury of 12 may be employed to hear cases involving fraud, libel, slander, malicious prosecution and false imprisonment. The QBD includes a Commercial Court, which has specialist judges dealing with insurance, banking and commercial matters; and an Admiralty Court, which deals with shipping matters such as claims for damage caused by collision at sea and salvage rights (ricupero marittimo) following the sinking of a vessel. There is a Technology and Construction Court, which was specially created in 1998 to hear any High Court cases involving technically complex matters, for example, those involving computers and engineering disputes. The QBD hears challenges against the power of local authorities to make certain decisions, a type of case known as a judicial review. On average, more than 110,000 claims are started in the QBD each year but only about 700 trials will be completed. The reason is that the vast majority of cases are settled by the parties prior to the court hearing (cause definite in sede extragiudiziale). The Chancery Division is headed by the Lord Chancellor and has about 17 judges. Disputes concerning insolvency, mortgages, copyright and patents, trust property, probate and intellectual property matters, are heard in this to this court. Cases are heard by a single judge and juries are never used. It hears a small amount of appeals on tax and bankruptcy matters. The Family Division is headed by the President of the Family Division, and has about 17 judges. It hears cases concerning access and custody of children, nullity of marriage and other matters concerning the family. It consists of a single judge and never uses a jury. It hears appeals from magistrates courts, when these concern family matters. The QBD, alone, fights crime. It does this in two ways. First, it hears appeal by way of case stated from criminal cases in the Magistrates' court. This is a procedure where a court refers a statement of the facts and a question of law to a superior court for advice. Second, it hears applications for the ancient legal right of "habeas corpus". This is a law that demands the liberty of anyone who is being unlawfully detained, whether that be by the police, a hospital, a prison, or another person. What is its history? The High Court has a complex history, because the form it takes today is the result of many amalgamations and reincarnations. It was created in 1875 and effectively combined the previously separate courts of the High Court of Chancery, Court of Queen's Bench, Court of Common Pleas, Court of Exchequer, High Court of Admiralty, Court of Probate (omologazione del testamento), Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy. An extensive list which reflects the broad role the High Court has. 25

26 Court of Appeal What is the Court of Appeal? If a convicted person feels he or she has not had a fair trial in the Crown Court and has been wrongfully (ingiustamente) convicted, or that the sentence imposed by the judges is unfair, then he or she can take their case to the Court of Appeal (Criminal Division), where more senior judges will consider the merits of their case. Therefore the defendant must first get permission (or leave) to appeal from the Court of Appeal, or a certificate that states the case is appropriate for appeal from the judge who has heard it. A Court of Appeal judge (there are 35 Lords Justices of Appeal) will decide whether the case is suitable for reconsideration. Only about a quarter of cases put forward for appeal will actually be allowed to go ahead. However, this is no guarantee that the case will ultimately be successful. The Court hears about 6,000 criminal appeals and applications per year. How does it work? The test for the court is whether it is satisfied that the only verdict which a reasonable jury could have returned after a proper summing up would have been one of guilty. If the convicted person is claiming that their sentence is too severe then the judges can reduce it. However, they have no power to increase it. Criminal trials favour the defendant at all times as it is a basic principle of English law that the accused is innocent until proven guilty. Consequently, when the prosecution wants to appeal against an acquittal, their powers are more limited. They cannot appeal against the findings of a jury unless the jury or witnesses have been bribed or threatened. The prosecution can challenge a sentence that they think is too lenient. The prosecution do this by writing to the attorney-general (ministro della giustizia) and asking him to refer a case to the Court of Appeal for re-sentencing. It is not just the prosecution who can ask the attorney-general to do this. Members of the public, such as distressed relatives of the victim, can also request this. The Court of Appeal also sits as the Civil Division to hear civil cases. This part of the court is headed by the Master of the Rolls (presidente dell albo degli avvocati). Cases are heard by at least three judgesthe Court of Appeal (Civil Division) is a busy court, hearing about 1,000 cases each year. In some cases the Lords Justices of Appeal may be joined by the Lord Chancellor, the President of the Family Division, the Vice Chancellor of the Chancery Division, and High Court judges. 26

27 The House of Lords as a Court 1. It is situated at the Houses of Parliament 2. It is the highest court throughout the UK 3. The judges are called Law Lords 4. The Lord Chancellor is the head of the House 5. The Lords only hear arguments on points of law What is the House of Lords? The austere grandeur of Westminster seats not only the most powerful politicians in the land, but also the most powerful judges. The House of Lords is the highest law court in England, Wales and Northern Ireland for criminal and civil cases, and the highest court in Scotland for civil cases. But from within their impressive surrounds, the Law Lords (Lords of Appeal in Ordinary) conduct a fairly relaxed court. Unlike other judges who appear before the public attired in all the intimidating magnificence of their wig and gown, the Law Lords dress like businessmen to hear cases, in black or darkly coloured suits. In contrast to the High Court judge who sits behind his bench, on a platform raised above the members of the public and legal representatives, the Law Lord sits at eye level, behind a horseshoe-shaped table. Nor will you find any charismatic barristers performing to a jury, exhibits produced, witnesses crossexamined or evidence provided. By the time a case reaches the House of Lords, all factual details of the case will have been determined, and the Law Lords will hear argument only on the way the law ought to be interpreted as it applies to a particular situation. There are between nine and 11 law lords, of whom two will have come from the Scottish judiciary and sometimes one from Northern Ireland. The Lord Chancellor, and former Lord Chancellors are also entitled to sit. A case will be heard by at least three, but sometimes up to seven, Law Lords, and the outcome is decided by a majority verdict. The correct title for the House of Lords sitting in its judicial capacity is the Appellate committee of the House of Lords. Law Lords are made life peers and are entitled to attend political debates. However, they almost always adhere to the political convention of separation of powers, a constitutional principle that states that those who make the law should not also interpret the law. Consequently, they rarely attend debates except those directly concerned with the administration of justice. How does it work? 27