Tribunals and courts

There is some debate as to whether tribunals are merely part of the machinery of administration of particular projects, or whether their function is the distinct one of adjudication. The Franks Committee favoured the latter view, but others have disagreed and have emphasised the administrative role of such bodies. Parliament initiated various projects and schemes, and included within those projects specialist tribunals to deal with the problems that they inevitably generated. On that basis, it is suggested that tribunals are merely adjuncts to the parent project and that this, therefore, defines their role as more administrative than adjudicatory.

If the foregoing has suggested the theoretical possibility of distinguishing courts and tribunals in relation to their administrative or adjudicatory role, in practice it is difficult to implement such a distinction, for the reason that the members of tribunals may be, and usually are, acting in a judicial capacity. See Pickering v Liverpool Daily Post and Echo Newspapers in which it was held that a mental health review tribunal was a court whose proceedings were subject to the law of contempt. Although a newspaper was entitled to publish the fact that a named person had made an application to the tribunal, together with the date of the hearing and its decision, it wasnot allowed to publish the reasons for the decision or any conditions applied.

If the precise distinction between tribunals and courts is a matter of uncertainty, what is certain is that tribunals are inferior to the normal courts. One of the main purposes of the tribunal system is to prevent the ordinary courts of law from being overburdened by cases, but tribunals are still subject to judicial review on the basis of breach of natural justice, or where it acts in an ultra vires manner, or, indeed, where it goes wrong in relation to the application of the law when deciding cases.

In addition to the control of the courts, tribunals are also subject to the supervision of the Council on Tribunals, which was originally established under the Tribunals and Inquiries Act 1958, as subsequently amended by the Tribunals and Inquiries Acts 1971 and 1992, the latter of which is the current legislation. Members of the Council are appointed by the Lord Chancellor and their role is to keep the general operation of the system under review.

In May 2000, Lord Irvine LC appointed High Court judge Sir Andrew Leggatt to review the current operation of the tribunal system as a whole. However, consideration of Sir Andrew’s findings and recommendations will be postponed until later in this chapter.

Domestic tribunals

The foregoing has focused on public administrative tribunals set up under particular legislative provisions to deal with matters of public relevance. The term ‘tribunal’, however, is also used in relation to the internal disciplinary procedures of particular institutions. Whether these institutions are created under legislation or not is immaterial; the point is that domestic tribunals relate mainly to matters of private, rather than public, concern, although, at times, the two can overlap. Examples of domestic tribunals are the disciplinary committees of professional institutions such as the Bar, The Law Society or the British Medical Association; trade unions; and universities. The power that each of these tribunals has is very great and is controlled by means of the ordinary courts, ensuring that the rules of natural justice are complied with and that the tribunal does not act ultra vires, that is, beyond its powers. Matters relating to trade union membership and discipline are additionally regulated by the Employment Rights Act 1996.

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Arbitration under codes of conduct

When it was first established in 1973, the small claims procedure was seen as a mechanism through which consumers could enforce their rights against recalcitrant traders. In reality, the arbitration procedure has proved to be just as useful for, and used just as much by, traders and businesses as consumers. There remains one area of arbitration, however, that is specifically focused on the consumer: arbitration schemes that are run under the auspices of particular trade associations. As part of the regulation of trade practices and in the pursuit of effective measures of consumer protection, the Office of Fair Trading has encouraged the establishment of voluntary codes of practice within particular areas. It is usual to find that such codes of practice provide arbitration schemes to resolve particularly intractable problems between individual consumers and members of the association. Such schemes are never compulsory and do not seek to replace the consumers’ legal rights, but they do provide a relatively inexpensive mechanism for dealing with problems without the need even to bother the county court. Such schemes are numerous; the most famous one is probably the travel industry scheme operated under the auspices of the Association of British Travel Agents, but other associations run similar schemes in such areas as car sales, shoe retailing, dry cleaning, etc. Again, the point of such schemes is to provide a quick, cheap means of dealing with problems without running the risk of completely alienating the consumer from the trade in question.

            Although many of the trade arbitration schemes offered consumers distinct advantages, some did not and, in order to remedy any abuses, the Consumer Arbitration Act 1988 was introduced. This statute provides that, in the case of consumer contracts, no prior agreement between the parties that subsequent disputes will be referred to arbitration can be enforced. However, consumers will be bound by arbitration procedures where they have already entered into them as a consequence of a prior agreement, or have agreed to them subsequently.

ADMINISTRATIVE TRIBUNALS

Although attention tends to be focused on the operation of the courts as the forum within which legal decisions are taken, it is no longer the case that the bulk of legal andquasi-legal questions are determined within that court structure. There are, as alternatives to the court system, a large number of tribunals which have been set up under various Acts of Parliament to rule on the operation of the particular schemes established under those Acts. There are at least 70 different types of administrative tribunal and, within each type, there may well be hundreds of individual tribunals operating locally all over the country to hear particular cases. Almost one million cases are dealt with by tribunals each year and, as the Royal Commission on Legal Services pointed out in 1979, the number of cases then being heard by tribunals was six times greater than the number of contested civil cases dealt with by the High Court and county court combined. It is evident, therefore, that tribunals are of major significance as alternatives to traditional courts in dealing with disputes.

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Evaluation

Problems have become evident in the operation of the arbitration procedure, particularly in cases where one party has been represented whilst the other has not. In spite of the clear intention to facilitate the resolution of disputes cheaply and without the need for legal practitioners, some individuals, particularly large business enterprises, insisted on their right to legal representation. As legal assistance, formerly known as legal aid, is not available in respect of such actions, most individuals cannot afford to be legally represented and, therefore, find themselves at a distinct disadvantage when opposed by professional lawyers.

            One solution to this difficulty would have been to make legal assistance available in the case of arbitration. Such a proposal is very unlikely ever to come to fruition, mainly on economic grounds, but also on the ground that the use of professional lawyers in such cases would contradict the spirit and the whole purpose of the procedure.

            Alternatively, it might have been provided that no party could be legallyrepresented in arbitration procedures, but to introduce such a measure would   have been a denial of an important civil right.

The actual method chosen to deal with the problem was to lift the restrictions on the rights of audience in small debt proceedings. Parties to the proceedings were entitled to be accompanied by a McKenzie friend to give them advice, but such people had no right of audience and, thus, had no right actually to represent their friend in any arbitration In October 1992, under the Courts and Legal Services Act 1990, the Lord Chancellor extended the right of audience to lay representatives in small claims courts. This decision has the effect of allowing individuals access to non-professional, but expert, advice and advocacy. Members of such organisations as citizens advice bureaux and legal advice centres will now be permitted to represent their clients, although they will still not be permitted to issue proceedings. In cases involving claims of more than £1,000, they may even charge a fee.

            The increase in the maximum amount to be claimed to £5,000 introduces two particular difficulties with regard to representation. The first, and by far the more serious, is the fact that the raising of the ceiling to what is a not inconsiderable sum of money means that individuals will lose legal aid to fund their claims in such cases and, therefore, may not have access to the best possible legal advice with respect to their case. The second, and apparently contradictory, point is that the number of lawyers appearing in small claims proceedings may actually increase as a result of the rise in the limit. Whereas it might not be worth paying for legal representation in a £3,000 claim, it might make more economic sense to pay for professional help if the sum being claimed is much higher. Which alternative actually occurs remains to be seen.

            In evaluating the small claims procedure, regard has to be had to the Civil Justice Review of 1996, which specifically considered the arbitration procedure and concluded that it generally works in a satisfactory way to produce a relatively quick, cheap and informal mechanism for resolving many smaller cases without the need to overburden the county courts.

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Relationship to ordinary courts

In general terms, the courts have no objection to individuals settling their disputes on a voluntary basis but, at the same time, they are careful to maintain their supervisory role in such procedures. Arbitration agreements are no different from other terms of a contract and, in line with the normal rules of contract law, courts will strike out any attempt to oust their ultimate jurisdiction as being contrary to public policy. Thus, as has been stated above, arbitration proceedings are open to challenge, through judicial review, on the ground that they were not conducted in a judicial manner.

                The Arbitration Act 1950 allowed for either party to the proceedings to have questions of law authoritatively determined by the High Court through the procedure of case stated. The High Court could also set aside the decision of the arbitrator on grounds of fact, law or procedure. Whereas the arbitration process was supposed to provide a quick and relatively cheap method of deciding disputes, the availability of the appeals procedures meant that parties could delay the final decision and, in so doing, increase the costs. In such circumstances, arbitration became the precursor to a court case, rather than a replacement of it. The Arbitration Act 1979 abolished the case stated procedure and curtailed the right to appeal and, as has been seen, the Arbitration Act 1996 has reduced the grounds for appeal to the court system even further.

Small claims procedure

Arbitration proceedings begin with an individual filing a statement of case at the county court. This document details the grounds of their dispute and requests the other party to be summonsed to appear. There may be preliminary hearings, at which the issues involved are clarified, but it is possible for the dispute to be settled at such hearings. If no compromise can be reached at this stage, a date is set for the small claims hearing.

            Arbitration hearings are usually heard by the district judge, although the parties to the dispute may request that it be referred to the circuit judge or even an outside arbitrator. The judge hearing the case may, at any time before or after the hearing, with the agreement of the parties, consult an expert on the matter under consideration and, again with the approval of the parties, invite an expert to sit on the arbitration in the role of assessor.

            If one of the parties fails to appear at the hearing, the dispute can be decided in their absence. Alternatively, the parties may agree to the case being decided by the arbitrator, solely on the basis of documents and written statements.

            The arbitration procedure is intended to be a less formal forum than that provided by the ordinary courts and, to that end, the CPR 1998 provide that the strict rules of evidence shall not be applied. Parties are encouraged to represent themselves rather than make use of the services of professional lawyers, although they may be legally represented if they wish.

            The CPR 1998 give judges wide discretion to adopt any procedure they consider helpful to ensure that the parties have an equal opportunity to put their case. This discretion is not limitless, however, and it does not remove the normal principles of legal procedure, such as the right of direct cross-examination of one of the parties by the legal representative of the other party

            On the basis of the information provided, the judge decides the case and, if the claimant is successful, makes an award for appropriate compensation. A no-costs rule operates to ensure that the costs of legal representation cannot be recovered, although the losing party may be instructed to pay court fees and the expenses of witnesses. Judgments are legally enforceable.

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THE CRIMINAL AND CIVIL COURTS

Criminal courts

Trials take place in either the magistrates’ courts or the Crown Court, depending on the nature of the offence, as follows:

• Summary offences cover less serious criminal activity and are decided by the magistrates.

• Indictable offences are the most serious and are tried before a jury in the Crown Court.

• Offences triable either way may be tried by magistrates with the agreement of the defendant; otherwise, they go to the Crown Court.

Appeals

• Appeals from magistrates’ courts are to the Crown Court or the High Court by way of case stated.

• Appeals from the Crown Court are to the Court of Appeal, and may be as to sentence or conviction.

• Appeals from the Court of Appeal or the Queen’s Bench Divisional Court are to the House of Lords, but only on a point of law of general public importance.

Civil courts

• Magistrates’ courts have limited but important civil jurisdiction in licensing and, especially, as a family proceedings court under the Children Act 1989.

• County courts try personal injuries cases worth up to £50,000. Other actions up to £25,000 should normally be heard by them. Whether actions between £25,000 and £50,000 are heard in the county court or the High Court depends upon the substance, importance and complexity of the case.

• The High Court consists of three Divisions:

❍ the Queen’s Bench Division deals with contract and tort, amongst other things. Its Divisional Court hears applications for judicial review;

❍ Chancery deals with matters relating to commercial matters, land, bankruptcy, probate, etc. Its Divisional Court hears taxation appeals; and

❍ the Family Division hears matrimonial and child related cases. Its Divisional Court hears appeals from lower courts on these issues.

• The Court of Appeal usually consisting of three judges, hears appeals from the High Court and county court and, in most cases, is the ultimate court of appeal.

• The House of Lords hears appeals on points of law of general importance. Appeals are heard from the Court of Appeal and may rarely, under the ‘leapfrog’ provision, hear appeals from the High Court.

• The Judicial Committee of the Privy Council is the final court of appeal for those Commonwealth countries which have retained it as the head of their national legal systems.

• The European Court of Justice interprets and determines the application of EC law throughout the Community. In such matters, its decisions bind all national courts.

• The European Court of Human Rights decides cases in the light of the European Convention on Human Rights. It has no mechanism for directly enforcing its decisions against Member States. However, the Human Rights Act 1998 has incorporated the Convention into UK law; consequently, UK courts are bound to decide cases in line with its provisions.

LTERNATIVE DISPUTE RESOLUTION

ARBITRATION

The first and oldest of these alternative procedures is arbitration. This is the procedure whereby parties in dispute refer the issue to a third party for resolution, rather than taking the case to the ordinary law courts. Studies have shown a reluctance on the part of commercial undertakings to have recourse to the law to resolve their disputes. At first sight, this appears to be paradoxical. The development of contract law can, to a great extent, be explained as the law’s response to the need for regulation in relation to business activity, and yet businesses decline to make use of its procedures. To some degree, questions of speed and cost explain this peculiar phenomenon, but it can be explained more fully by reference to the introduction to this chapter. It was stated there that informal procedures tend to be most effective where there is a high degree of mutuality and interdependency, and that is precisely the case in most business relationships. Businesses seek to establish and maintain long term relationships with other concerns. The problem with the law is that the court case tends to terminally rupture such relationships. It is not suggested that, in the final analysis, where the stakes are sufficiently high, recourse to the law will not be had; such action, however, does not represent the first, or indeed the preferred, option. In contemporary business practice it is common, if not standard, practice for commercial contracts to contain express clauses referring any future disputes to arbitration. This practice is well established and its legal effectiveness has long been recognised by the law.

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The Family Divisional Court

The Family Divisional Court, which consists of two High Court judges, hears appeals from decisions of magistrates’ courts and county courts in family matters. Commonly, these involve appeals against orders made about financial provision under the Domestic Proceedings and Magistrates’ Courts Act 1978.

Specialist courts

In addition to the Divisions within the High Court, there also are two specialist courts which, although not actually part of the High Court, are equivalent in status. These are:

• the Restrictive Practices Court, established by statute in 1956, which hears cases relating to the area of commercial law concerned with whether an agreement is unlawful owing to the extent to which it restricts the trading capabilities of one of the parties. One QBD judge sits with specialist laypersons to hear these cases; and

• the Employment Appeal Tribunal, which is presided over by similar panels, hearing appeals from employment tribunals.

HOUSE OF LORDS

Acting in its judicial, as opposed to its legislative, capacity, the House of Lords is the final court of appeal in civil as well as criminal law. For most cases, five Lords will sit to hear the appeal, but seven are sometimes convened to hear very important cases.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

As with criminal law, the Privy Council is the final court of appeal for certain Commonwealth countries which have retained this option and from some independent members and associate members of the Commonwealth. In practice, most of the appeals heard by the Committee are civil cases.

            The decisions of the Privy Council are very influential in English courts because they concern points of law that are applicable in this jurisdiction and are pronounced upon by Lords of Appeal in Ordinary in a way which is thus tantamount to a House of Lords ruling. Technically, however, these decisions are of persuasive authority only, although they are normally followed by English courts.

THE EUROPEAN COURT OF JUSTICE

The function of the European Court of Justice which sits in Luxembourg, is to ensure that ‘in the interpretation and application of this Treaty the law is observed’ The ECJ is the ultimate authority on Community law. As the Treaty is often composed in general terms, the Court is often called upon to provide the necessary detail for EC law to operate. By virtue of the European Communities Act 1972, EC law has been enacted into English law, so the decisions of the court have direct authority in the English jurisdiction.

            The court hears disputes between nations and between nations and the institutions of the European Union such as the European Commission. Individuals, however, can only bring an action if they are challenging a decision which affects them personally

THE EUROPEAN COURT OF HUMAN RIGHTS

This Court is the supreme court of the Council of Europe, that is, those States within Europe which have accepted to be bound by the European Convention on Human Rights. It has to be established, and emphasised, from the outset that the substance of this section has absolutely nothing to do with the EU as such; the Council of Europe is a completely distinct organisation and, although membership of the two organisations overlap, they are not the same. The Council of Europe is concerned not with economic matters but with the protection of civil rights and freedoms.

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Pre-action protocols

Part of the problem in the past arose from the fact that the courts could only start to exercise control over the progress of a case, and the way it was handled, once proceedings had been issued. Before that stage, lawyers were at liberty to take inordinate amounts of time to do things related to the case, to write to lawyers on the other side to the dispute, and so forth. Now, a mechanism allows new pre-action requirements to be enforced. The objects of the protocols are:

• to encourage greater contact between the parties at the earliest opportunity;

• to encourage a better exchange of information;

• to encourage better pre-action investigation;

• to put parties in a position where they can settle cases fairly and early; and

• to reduce the need for the case to go all the way to court.

Alternatives to going to court

Rule 4.1 of the CPR 1998 requires the court, as a part of its active case management, to encourage and facilitate the use of alternative dispute resolution   and r 26.4 allows the court to stay proceedings in order to allow the parties to go to ADR either where the parties themselves request it or where the court of its own initiative considers it appropriate. The Commercial Court has already used this policy with notable success. It often acts to send cases to ADR where, for example, one side applies for a lengthy extension of time for the case to be heard.

THE HIGH COURT OF JUSTICE

The High Court has three administrative Divisions: the Court of Chancery; the Queen’s Bench Division; and the Family Division. In addition, each Division has a confusingly named Divisional Court, which hears appeals from other legal fora.

            The majority of High Court judges sit in the Courts of Justice in the Strand, London, although it is possible for the High Court to sit anywhere in England and Wales.

The Queen’s Bench Division

The main civil work of the Queen’s Bench Division is in contract and tort cases. The Commercial Court is part of this Division. It is staffed by judges with specialist experience in commercial law.

The Queen’s Bench Divisional Court

The Queen’s Bench Divisional Court, as distinct from the QBD, exercises appellate jurisdiction. Here, two, or sometimes three, judges sit to hear cases relating to the following circumstances:

• appeals on a point of law by way of case stated from magistrates’ courts, tribunals and the Crown Court;

• applications for judicial review of the decisions made by governmental and public authorities, inferior courts and tribunals; and

• applications for the writ of habeas corpus from persons who claim that they are being unlawfully detained.

The Chancery Divisional Court

Comprising one or two Chancery judges, the Chancery Divisional Court hears appeals from the Commissioners of Inland Revenue on income tax cases and from county courts on matters such as bankruptcy.

The Family Division

The Family Division of the High Court deals with all matrimonial matters, both at first instance and on appeal. It also considers proceedings relating to minors under the  Children Act 1989 and issues under the Domestic Violence and Matrimonial Proceedings Act 1976 and s 30 of the Human Fertilisation and Embryology Act 1990.

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HOUSE OF LORDS

Following the determination of an appeal by the Court of Appeal or the Divisional Court, either the prosecution or the defence may appeal to the House of Lords. Leave from the court below or the House of Lords must be obtained and two other conditions must be fulfilled, according to s 33 of the CAA 1968:

• the court below must certify that a point of law of general public importance is involved; and

• either the court below or the House of Lords must be satisfied that the point of law is one which ought to be considered by the House of Lords.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

The Privy Council is the final court of appeal for certain Commonwealth countries that have retained this option, and for some independent members and associate members of the Commonwealth. The Committee comprises Privy Councillors who hold high judicial office and five Lords of Appeal in Ordinary, sometimes assisted by a judge from the country concerned.

            Most of the appeals heard by the Committee are civil cases. In the rare criminal cases, it is only on matters involving legal questions that appeals are heard; the Committee does not hear appeals against criminal sentence.

THE CIVIL COURT STRUCTURE

Civil actions are between individuals. The State merely provides the legal framework within which they determine and seek to enforce their mutual rights and obligations. Civil cases are cited in the form Smith v Jones.

MAGISTRATES’ COURTS

Although they deal mainly with criminal matters, the magistrates’ courts have a significant civil jurisdiction. They hear family proceedings under the Domestic Proceedings and Magistrates’ Courts Act 1978 and the Children Act 1989. Under such circumstances, the court is termed a ‘family proceedings court’. A family proceedings court must normally be composed of not more than three justices, including, as far as is practicable, both a man and a woman. Justices who sit on such benches must be members of the family panel, which comprises people specially appointed and trained to deal with family matters. Under the Children Act 1989, the court deals with adoption proceedings, applications for residence and contact orders, and maintenance relating to spouses and children. Under the Magistrates’ Courts Act 1978, the court also has the power to make personal protection orders and exclusion orders in cases of matrimonial violence.

            The magistrates’ courts have powers of recovery in relation to the community charge and its replacement, council tax. They also have the power to enforce charges for water, gas and electricity. Magistrates’ courts also function as licensing courts, under which guise they grant, renew or revoke licenses for selling liquor, betting or operating a taxi service.

 Judicial case management

The judge is a case manager under the new regime. The new system allocates cases to one of three tracks, depending upon the complexity and value of the dispute. Previously, lawyers from either side were permitted to wrangle almost endlessly with each other about who should disclose what information and documents to whom and at what stage. Now, the judge is under an obligation to actively manage cases. This

includes:

• encouraging parties to co-operate with each other;

• identifying issues in the dispute at an early stage;

• disposing of summary issues which do not need full investigation;

• helping the parties to settle the whole or part of the case;

• fixing timetables for the case hearing and controlling the progress of the case; and

• considering whether the benefits of a particular method of hearing the dispute justify its costs. If the parties refuse to comply with the new rules, practice directions or protocols, the judge will be able to exercise disciplinary powers. These include:

• using costs sanctions against parties

• striking out;

• refusal to grant extensions of time; and

• refusal to allow documents not previously disclosed to the court and the other  side to be relied upon.

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THE CROWN COURT

The Crown Court, unlike the magistrates’ court, is not a local court, but a single court which sits in over 90 centres. The Crown Court is part of the Supreme Court, which is defined as including the Court of Appeal, the High Court of Justice and the Crown Court. For the purposes of the operation of the Crown Court, England and Wales are divided into six circuits, each with its own headquarters and staff. The centres are divided into three tiers. In first tier centres, High Court judges hear civil and criminal cases, whereas circuit judges and recorders hear only criminal cases. Second tier centres are served by the same types of judge but hear criminal cases only. At third tier centres, recorders and circuit judges hear criminal cases only

Jurisdiction

The Crown Court hears all cases involving trial on indictment. It also hears appeals from those convicted summarily in the magistrates’ courts. At the conclusion of an appeal hearing, the Crown Court has the power to confirm, reverse or vary any part of the decision under appeal  If the appeal is decided against the accused, the Crown Court has the power to impose any sentence which the magistrates could have imposed, including one which is harsher than that originally imposed on the defendant.

CRIMINAL APPEALS

The process of appeal depends upon how a case was originally tried, that is, whether it was tried summarily or on indictment. The following sets out the various routes and procedures involved in appealing against the decisions of particular courts. The system of criminal appeals will undergo some changes during 2005 as a result of the CJA 2003, although the timetable of changes is not yet certain.

Appeals from the Crown Court

Appeals from this court lie to the Court of Appeal which hears appeals against conviction and sentence. The court hears around 8,000 criminal appeals and applications each year.

            Appeals may be made by the defence against conviction, but the prosecution cannot appeal against an acquittal. Under s 36 of the CJA 1972, the Attorney General can refer a case which has resulted in an acquittal to the Court of Appeal where he believes the decision to have been questionable on a point of law. The Court of Appeal only considers the point of law and, even if its finding is contrary to the defendant’s case, the acquittal is not affected. This procedure merely clarifies the law for future cases.

            The Criminal Appeal Act 1995 introduced significant changes to the criminal appeal system. Section 1 of this Act amended the CAA 1968 so as to bring appeals against conviction, appeals against a verdict of not guilty by reason of insanity and appeals against a finding of disability on a question of law alone into line with other appeals against conviction and sentence Now, all appeals against conviction and sentence must first have leave of the Court of Appeal or a certificate of fitness for appeal from the trial judge before the appeal can be taken. Before the new Act came into force, it was possible to appeal without the consent of the trial judge or Court of Appeal on a point of law alone.

            The law now requires the Court of Appeal to allow an appeal against conviction if it thinks that the conviction, verdict or finding is unsafe

            Where there is an appeal against sentence, the court may confirm or alter the original sentence by way of changing the terms or substituting a new form of punishment. It cannot increase the sentence on appeal. However, under the CJA 1988, the Attorney General may refer indictable only cases to the Court of Appeal, where the sentence at trial is regarded as unduly lenient. In such circumstances, the court may impose a harsher sentence.

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Powers of magistrates’ courts

Magistrates’ courts have considerable power. In relation to criminal law, they are empowered to try summary cases, that is, cases which are triable without a jury. Additionally, with the agreement of the accused, they may deal with triable either way cases, that is, cases which can either be tried summarily by the magistrates or on indictment before a jury in the Crown Court.

            The maximum sentence that magistrates can normally impose is a £5,000 fine and/or a six month prison sentence. The sentencing powers of magistrates were increased by the CJA 2003. Section 154 enables them to impose a custodial sentence of up to 12 months for any one offence, and s 155 allows for a custodial sentence of up to 65 weeks for two or more offences. The maximum sentences for many summary offences, however, are much less than these limits. Where a defendant is convicted of two or more offences at the same hearing, consecutive sentences amounting to more than six months are not permitted, although this can rise to 12 months in cases involving offences triable either way. If the magistrates feel that their sentencing powers are insufficient to deal with the defendant, then the offender may be sent to the Crown Court for sentencing.

            Magistrates can impose alternative sentences, such as community service orders or probation orders. They can also discharge offenders either conditionally or absolutely. In addition, they can issue compensation orders. Such orders are used not as a means of punishing the offender, but as a way of compensating the victims of the offenderwithout them having to sue the offender in the civil courts. The maximum payment under any such order is £5,000.

            Where magistrates decide that an offence triable either way should be tried in theCrown Court, they hold committal proceedings. These proceedings are also held where the defendant has been charged with an indictable offence. Acting in this way, the justices become examining magistrates. The object of these proceedings is to determine whether there is a prima facie case against the defendant. If the justices decide that there is a prima facie case, they must commit the defendant to a Crown Court for trial; if not, they must discharge him. Section 44 of the Criminal Procedure and Investigations Act 1996 repeals s 44 of the Criminal Justice and Public Order Act 1994 and, in effect, introduces a new, streamlined version of committal proceedings, in which no oral evidence can be given. The new system of committals is governed by s 47 and Sched 1 to the CPIA 1996. The effect of this law is to abolish the old style mini-trial committals and the right of the defendant to have witnesses called and cross-examined at the magistrates’ court. Now, defendants may only use written evidence at committal stage.

            Magistrates sit in youth courts to try children and young persons. A child is someone who has not reached his 14th birthday and young people are taken to be below the age of 18. These tribunals are not open to the public and sit separately from the ordinary magistrates’ court in order to protect the young defendants  frompublicity

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THE CRIMINAL AND CIVIL COURTS

INTRODUCTION

In the UK, the structure of the court system is divided into two distinct sectors,following the division between criminal and civil law. This chapter locates particular courts within the general hierarchical structure in ascending order of authority It is essential not just to be aware of the role and powers of the individual courts, but also to know the paths of appeal from one court to another within the hierarchy.

THE CRIMINAL COURT STRUCTURE

Crimes are offences against the law of the land and are usually prosecuted by the State. Criminal cases are normally cited in the form R v Brown. Cases are heard in different courts, depending on their seriousness. Offences can be divided into three categories, as follows:

• Summary offences are the least serious and are tried by magistrates, without recourse to a jury.

• Indictable offences are the most serious and are required to be tried before a judge and jury in the Crown Court.

• Either way offences, as their title suggests, are open to trial in either of the preceding ways. At the moment, the decision as to whether the case is heard in the magistrates’ court or the Crown Court is decided by the accused. The previous Labour Government twice attempted to introduce legislation to remove thedefendant’s right to elect for jury trial in relation to either way offences. On both occasions, the proposed Bills were defeated in the House of Lords. In his review of the criminal justice system, published in 2001, Sir Robin Auld also recommended that defendants should lose the right to insist on jury trial. However, it now appears that the Government has decided that the best way of reducing jury trials is by increasing the sentencing powers of magistrates’ courts from a maximum of six months to 12 months, with the introduction of a formal system of sentence discounts for those who plead guilty at an early stage

MAGISTRATES’ COURTS

The office of magistrate or justice of the peace dates from 1195, when Richard I appointed keepers of the peace to deal with those who were accused of breaking theKing’s peace. The JPs originally acted as local administrators for the King, in addition to carrying out their judicial responsibilities.

            There are approximately 700 magistrates’ courts in England and Wales, staffed by some 30,000 part time lay magistrates. In addition, there are 98 full time professional district judges who sit in cities and large towns. The latter used to be known as stipendiary magistrates. Magistrates are empowered to hear and decide a wide variety of legal matters, and the amount and importance of the work they do should not be underestimated. It has been estimated that up to 97% of all criminal cases are dealt with by the magistrates’ courts.

            Lay magistrates are not usually legally qualified and sit as a bench of three. Districtjudges are legally qualified and decide cases on their own. A bench of lay magistrates is legally advised by a justices clerk, who is legally qualified and guides the justices on matters of law, sentencing and procedure, even when not specifically invited to do so. The clerk should not give any opinion on matters of fact. Magistrates are independent of the clerks and the latter should not instruct the magistrates as to what decision they should reach.

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LAW AND LEGAL SOURCES

The nature of law

Legal systems are particular ways of establishing and maintaining social order. Law is a formal mechanism of social control Categories of law Law can be categorised in a number of ways, although the various categories are not mutually exclusive, as follows:

• Common law and civil law relate to distinct legal systems. The English legal system is     a common law one.  

• Common law and equity distinguish the two historical sources and systems of English law.

• Common law is judge made; statute law is produced by Parliament.

• Private law relates to individual citizens; public law relates to institutions of  government.

• Civil law facilitates the interaction of individuals; criminal law enforces particular standards of behavior

The Human Rights Act 1998

The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. The Articles of the Convention cover:

• the right to life

• the prohibition of torture

• the prohibition of slavery and forced labour

• the right to liberty and security

• the right to a fair trial

• the general prohibition of the enactment of retrospective criminal offences

• the right to respect for private and family life

• freedom of thought, conscience and religion

• freedom of expression

• freedom of assembly and association

• the right to marry

• the prohibition of discrimination and

• the political activity of aliens may be restricted

The incorporation of the Convention into UK law means that UK courts can decide cases in line with the above Articles. This has the potential to create friction between the judiciary and the executive/legislature.

Domestic sources of law

• Legislation is the law produced through the parliamentary system; then it is given royal assent. The House of Lords has only limited scope to delay legislation.

• Delegated legislation is a sub-classification of legislation. It appears in the form of: Orders in Council; statutory instruments; bylaws; and professional regulations. Advantages of delegated legislation:

❍ speed of implementation;

❍ the saving of parliamentary time;

❍ access to expertise; and

❍ flexibility.

The disadvantages relate to:

❍ the lack of accountability;

❍ the lack of scrutiny of proposals for such legislation; and

❍ the sheer amount of delegated legislation.

Controls over delegated legislation:

❍ Joint Select Committee on Statutory Instruments; and

❍ ultra vires provisions may be challenged in the courts.

Case law

• Created by judges in the course of deciding cases.

• The doctrine of stare decisis, or binding precedent, refers to the fact that courts are bound by previous decisions of courts which are equal or above them in the court hierarchy.

• The ratio decidendi is binding. Everything else is obiter dicta.

• Precedents may be avoided through either overruling or distinguishing. The advantages of precedent are:

❍ saving the time of all parties concerned;

❍ certainty; and

❍ flexibility. The disadvantages are:

❍ uncertainty;

❍ fixity; and

❍ unconstitutionality

Law reform

The need to reform the law may be assessed by a number of bodies:

• Royal Commissions;

• standing committees;

• ad hoc committees; and

• the Law Commission.

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CUSTOM

The traditional view of the development of the common law tends to adopt an overly romantic view as regards its emergence. This view suggests that the common law is no more than the crystallisation of ancient common customs, this distillation being accomplished by the judiciary in the course of their historic travels around the land in the Middle Ages. This view, however, tends to ignore the political process that gave rise to this procedure. The imposition of a common system of law represented the political victory of a State that had fought to establish and assert its central authority. Viewed in that light, the emergence of the common law can perhaps better be seen as the invention of the judges as representatives of the State and as representing what they wanted the law to be, rather than what people generally thought it was.

One source of customary practice that undoubtedly did find expression in the form of law was business and commercial practice. These customs and practices were  originally constituted in the distinct form of the Law Merchant but, gradually, this became subsumed under the control of the common law courts and ceased to exist apart from the common law.          

Notwithstanding the foregoing, it is still possible for specific local customs to operate as a source of law. In certain circumstances, parties may assert the existence of customary practices in order to support their case. Such local custom may run counter to the strict application of the common law and, where they are found to be legitimate, they will effectively replace the common law. Even in this respect, however, reliance on customary law as opposed to common law, although not impossible, is made unlikely by the stringent tests that have to be satisfied The requirements that a local custom must satisfy in order to be recognised are as follows:

• it must have existed from time immemorial, that is

• it must have been exercised continuously within that period;

• it must have been exercised peacefully and without opposition;

• it must also have been felt to be obligatory;

• it must be capable of precise definition;

• it must have been consistent with other customs; and

• it must be reasonable.

Given this list of requirements, it can be seen why local custom is not an important source of law.

  

LAW REFORM

At one level, law reform is a product of either parliamentary or judicial activity, as hasbeen considered previously. Parliament tends, however, to be concerned with particularities of law reform and the judiciary are constitutionally and practically disbarred from reforming the law on anything other than an opportunistic and piecemeal basis. Therefore, there remains a need for the question of law reform to be considered generally and a requirement that such consideration be conducted in an informed but disinterested manner.

            Reference has already been made to the use of consultative Green Papers by the Government as a mechanism for gauging the opinions of interested parties to particular reforms. More formal advice may be provided through various advisory standing committees. Amongst these is the Law Reform Committee. The function of this Committee is to consider the desirability of changes to the civil law which the Lord Chancellor may refer to it. The Criminal Law Revision Committee performs similar functions in relation to criminal law

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