English Legal System in Context

Transcription

1 English Legal System in Context Third edition Fiona Cownie Barrister of Lincoln's Inn H K Bevan Professor of Law, University of Hull Anthony Bradney Professor of Law, University of Leicester Mandy Burton Lecturer in Law, University of Leicester LexisNexis UK

2 Contents Preface v Preface to the second edition vii Preface to the first edition ix Table of statutes xvii Table of cases xxiii Chapter 1 What is 'the English legal system'? 1 Introduction 1 'English legal system' textbooks 2 The rule-centred paradigm 4 Dispute avoidance, dispute settlement and 'the English legal system' 6 Problems with the state-rule-centred paradigm 9 Textbooks for lawyers 12 'The English legal system' and law reform 13 Alternative legal theories 13 The process paradigm 14 'Law in action' and Legal Realism 15 Legal anthropology 17 Semi-autonomous legal fields 19 Informal legal systems 20 Legal pluralism 22 An integrated theory of law 23 The English Legal System 24 Chapter 2 Courts 25 The definition of courts 25 The importance of courts 26 The function of courts 27 The centrality of courts 30

3 xii Contents Courts as rule-makers 3 3 The court as legislature 35 Limits to the judicial legislature 37 Conclusion 38 Chapter 3 Courts in 'the English legal system' 40 Introduction 40 Categories of courts 40 Courts of record 40 Superior courts and inferior courts 41 Reported courts 43 Individual courts 45 European Union courts 45 The House of Lords 51 The Judicial Committee of the Privy Council 56 The Court of Appeal 57 The High Court 60 The Crown Court 65 The county court 70 Magistrates' courts 72 Courts of special jurisdiction 75 Conclusion 78 Chapter 4 Tribunals 81 Introduction 81 The Franks Report 82 The differences between courts and tribunals 83 Tribunals and administrative agencies 85 The number of tribunals 86 Employment tribunals 87 Jurisdiction 87 Procedure 88 Who judges? 90 Who uses employment tribunals? 91 Representation 93 The Special Educational Needs and Disability Tribunal 94 Jurisdiction 94 Procedure and hearing 95 Conclusion 97 Chapter 5 English legal reasoning: the use of case law 98 Introduction 98 The legal system as legal reasoning 99 The idea of precedent 100 The advantage and disadvantages of precedent 101 The problem of the concept of precedent 103 The present system of precedent 107

4 Contents Ratio and obiter 107 Finding the ratio 111 The hierarchy of courts 114 Using precedents 117 The use of language 119 Conclusion 121 Chapter 6 English legal reasoning: reading statutes 123 Introduction 123 The statute as a text 126 Enacting coalitions 127 'The words which Parliament used' 127 Principles of statutory interpretation 128 The literal rule 129 The golden rule and the purposive approach 131 The mischief rule 134 Fundamental rights 138 Rules of particular application 139 The Human Rights Act Interpretative communities 142 Conclusion 144 Chapter 7 The university law school and law students 146 Introduction 146 Law students 147 The nature of university law schools 149 The black-letter tradition 149 Training for a hierarchy 151 University law schools and gender 155 Conclusion 158 Chapter 8 Solicitors and barristers 161 Introduction 161 The legal profession^) 165 Solicitors 166 The training of solicitors 166 Ethnicity and entry into the solicitors' profession 170 Gender and the solicitors' profession 172 The work of the solicitor 176 Form of organisation 177 Barristers 178 The training of barristers 178 The Bar and discrimination 179 The barrister and the barristers' clerk 181 Barristers and rights of audience 182 Conclusion 186

5 xiv Contents Chapter 9 Judges and judging 187 Introduction 187 The separation of powers 188 The independence of the judiciary 189 Independence, separation and judicial office 192 The selection of the judiciary 193 Barristers and judges 194 Discrimination and the judiciary 194 Judges and the legitimacy of the legal system 196 Changes to methods of judicial selection 197 The selection of magistrates 199 Judicial style 202 Conclusion 204 Chapter 10 The civil court in action 205 Introduction 205 Personal injury claims 207 Introduction 207 Claims consciousness 211 Legal aid 213 Trade unions, legal expenses insurance and conditional fees 214 Issuing proceedings 216 Settlement 218 Obtaining damages 220 Divorce 220 Conclusion 223 Chapter 11 Private security and other non-police agencies 224 Introduction 224 Private security 225 The role of private security 226 Interaction of private security with the public police 230 Control of private security 234 Other non-police forms of social control 235 Interaction with the criminal justice system 236 Further interaction between public police and private agencies 240 Conclusion 241 Chapter 12 The public police: uncovering crime and powers of stop and search 242 Uncovering crime 242 The public's role in uncovering crime 242 The police's role in uncovering crime 245 The legal powers to stop and search 247 Stop and search in practice 250 Remedies for non-compliance with the Codes of Practice and PACE 254

6 Contents xv Stop and search and 'due process'/'crime control' 256 Notification and recording requirements 257 Consensual stop and searches 260 Monitoring and supervision 261 Conclusion 261 Chapter 13 Powers of arrest and search 263 Voluntary assistance 263 Powers of arrest 265 Arrestable offences 265 General arrest conditions 267 Breach of the peace 268 Other powers of arrest 268 Arrest and the investigative process 269 Arrest in context 270 'Reasonable suspicion' 270 'Previous' 271 Disorder and police authority 271 General suspiciousness 272 Information received 272 Workload 273 Victim 273 Some issues relating to arrest practices 274 Requirements for a valid arrest 276 Arrest powers of other actors in the legal system 277 Officers of Customs and Excise 278 Private security personnel 278 Powers of entry, search and seizure 281 Consensual searches 285 Other powers of entry, search and seizure in PACE 287 Other people with powers of entry, search and seizure 290 Conclusion 291 Chapter 14 Detention, investigation and prosecution 292 Detention 292 Detention in the police station 292 Reviews of detention 293 Continued detention 294 Further detention 295 In the police station: the custody officer and the custody record 296 Investigation 299 Searches and the taking of fingerprints and samples 299 Rights of persons in custody 301 Interviewing suspects 307 The right to silence 313 Confessions 319 Charging detained persons 322 B ail or custody 323

7 xvi Contents Prosecution 326 The decision to prosecute 326 Amending charges 329 Prosecution in perspective 329 Investigation and prosecution by non-police agencies - a pluralist perspective 332 Conclusion 334 Chapter 15 The magistrates' court 335 Introduction 335 Mode of trial 336 Bail decisions 340 Summary trial 346 Legal aid 348 Committal for trial at the Crown Court 349 Other significant actors in the magistrates' court 350 Chapter 16 The Crown Court 354 Introduction 354 Disclosure of evidence 355 Cases that do not go to full trial 357 Case management 357 Case conferences 358 The barrister's relationship with the defendant 359 Plea bargains 360 A culture of crime control 364 Jury trial 365 The function of the jury 365 The composition of the jury 3 68 Trial 370 Decision-making by the jury 371 The further demise of jury trial 373 Conclusion 373 Bibliography 375 Index 401