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Magistrates and Judges

Courts and Judges

Text 1: Courts and Judges

Pre-reading task

1. Before you read the text, look at the following statements and mark what you think the answers are. Then scan the text and check your initial hypotheses.

a. In England and Wales, more than 90 per cent of criminal cases are decided by Justices of the Peace who have no legal qualifications.

b. If the accused pleads guilty, the prosecution nevertheless True / False

has to prove his guilt to the court.

c. If a person has been acquitted, he cannot be tried again for True / False

the same offence.

2. Now read the text and answer the questions that follow. True / False

Courts

You will now be familiar with the division of law into civil and criminal. This division is reflected to some extent in the structure of the courts. In some countries, there are different courts for settling civil disputes and for criminal prosecutions, in others both kinds of prosecution are dealt with in one court. In England, the system is somewhat 'mixed': although certain courts exercise a purely civil or criminal jurisdiction, most English courts (and judges) hear both civil and criminal cases. The court in which a case is first heard is called the court of first instance, or trial court. In almost all cases, it is possible to appeal to a higher court for reconsideration of the decision of the original court. These courts are called the appellate courts.

The lowest English court is the magistrates' court. (By tradition, the names of some courts begin with capital letters; others do not). Magistrates (also called Justices of the Peace, JPs) are not professional judges, they are lay persons with no formal legal qualifications. The magistrates' court is concerned mainly with minor criminal matters, such as motoring offences, parking violations, and some civil wrongs, such as non-payment of council tax or family matters. Some magistrates' courts, called 'youth courts', exercise jurisdiction over crimes committed by juvenile offenders and other matters relating to children- under 18. All criminal cases brought to trial begin in the magistrates' court and 97 percent end there - this gives some indication of the importance of this court. More serious offences are dealt with in the Crown Court. Whether or not a case will be committed to the Crown Court depends on the nature of the offence. There are three types of criminal offence: summary, indictable and triable either way.

Summary offences are minor offences tried in the magistrates' court, without a jury, before a bench of three lay magistrates or one district judge. They are called so because they must be tried summarily, i.e. speedily by the most convenient court. They include motoring offences, minor thefts and assaults, criminal damage, prostitution, and drunk and disorderly behaviour in a public place. Indictable offences are the most serious offences, such as murder, manslaughter, rape or arson. An indictment is a formal document listing in sufficient detail the charges against the defendant. Magistrates do not try indictable offences, they will only hold a preliminary hearing to consider the evidence and establish whether it forms a prima facie case (whether it is supported by some evidence) against the accused. If a reasonable case does exist, they will send the accused to the Crown Court for trial, where it will be heard by a judge and jury. If not, the case will be discharged, i.e. the accused will be allowed to leave the court without punishment, but it can be resumed if the prosecuting authorities find further evidence. Offences triableeither way are offences which can be committed in a serious or minor way, e.g. theft or burglary. If the magistrates decide that the case should be tried summarily, the accused can still insist on trial by jury in the Crown Court, and then the case will be an indictable offence and will be committed to the Crown Court. Some defendants do that in the hope that a lay jury may be more compassionate than a bench. However, if the magistrates decide that the case is an indictable offence, the accused cannot elect to be tried summarily. The power of magistrates to impose fines or imprisonment is limited. Therefore, sometimes, if they feel that the case merits a more severe sentence, then, following conviction, they can send the person convicted to the Crown Court for sentencing.

Proceedings in the Crown Court {also called the Circuit Court} are always presided over by a judge, whether a High Court judge for more serious crimes, or a circuit judge or a recorder for less serious cases. When the accused pleads 'not guilty', the case will always be heard in the presence of a jury. If the defendant pleads guilty, then the jury is not required and the judge will pass sentence. Unlike the magistrates' court, where proceedings are always held in open court and may be witnessed by any member of the public, proceedings in Crown Courts are sometimes closed to the public. This happens, for example, when a child is giving evidence of sexual abuse or when a witness might be threatened by someone watching the proceedings.

Although some civil cases are dealt with at magistrates' courts, the majority begin in the county court and are heard by a circuit judge or a district judge. They almost always sit alone, without a jury, and consider a wide range of matters: contract and tort, property and partnerships. They will be permitted to try family cases only if they have been specially trained and approved for that work. Since 1991 there is no upper financial limit for actions, although those involving large financial claims are usually heard in the High Court. Where a claim is for less than £1000 the district judge (in whose hands is the administration of the county court) will arbitrate the matter using the small claims procedure. This is a very informal and inexpensive procedure, since no costs are awarded to the successful party.

The High Court is mainly concerned with civil claims involving large sums of money, as well as with appeals from the lower courts. It is staffed with High Court judges, and is divided into three divisions: the Queen's Bench Division (QBD) that deals mainly with contract and tort; the Chancery Division that hears disputes relating to trusts, mortgages, the property of the dead, bankruptcy and company liquidation; and the Family Division dealing with family matters. Within each of the Divisions of the High Court there are Divisional Courts that deal with appeals. A single judge will hear a case at first instance; two or more may be required to sit in an appeal case. The High Court judges work a rota, trying cases in London as well as in the major court centres throughout the country. This practice of going on a circuit dates back to the twelfth century.

The Court of Appeal hears most of the important civil and criminal appeals from courts in England and Wales. Its Civil Division is headed by the Master of the Rolls (MR) and the Criminal Division by the Lord Chief Justice (LCJ), who is also the head of the judiciary. The appeals will normally be heard by three Lord Justice~ of Appeal sitting together. No witnesses are called and no fresh evidence is allowed to be produced, but the barristers may argue their cases. In almost all cases the decision of the Court of Appeal is final but where a point of law of great public importance is concerned and it is felt that the law could be clarified on this subject, then an appeal is made to the highest court in the land, the House of Lords.

The House of Lords is more correctly called the Appellate Committee of the House of Lords. Judges in the House of Lords are called Lords of Appeal in Ordinary but are commonly known as the Law Lords. The House of Lords judges are life peers created from the rank of judges. They may sit and vote in the House of Lords like any other peer but by tradition they only concern themselves with legislation which relates to legal matters. Normally each appeal is heard by five Law Lords, although in some rare instances cases are heard by a panel of seven. Very few criminal cases ever come 'to the Law Lords, and it is not possible for anyone to take his case to the House of Lords: they must ask the Court of Appeal or the House of Lords itself for 'leave to appeal' (permission). House of Lords' decisions are binding on all other courts but the House of Lords is not bound by its own decision: sometimes it will overrule its previous decision and thus change the law..

In June 2003 the Government announced its intention to create a new Supreme Court to replace the Appellate Committee of the House of Lords. The main reasons for the establishment of this court are constitutional and based upon the need for a clear separation of powers. It is felt that it is necessary to remove the Lords elf Appeal in Ordinary from the legislature and end the anomaly of the position whereby the highest court in the land is situated within one of the chambers of Parliament.

Most English domestic law is not affected by the United Kingdom's membership of the European Union but if the decision of the European Court of Justice ( ECJ), which sits in Luxembourg, comes into conflict with the national law, Parliament can then decide whether and how to amend it, unless it can retain the law by arguing that the country's vital interests are at stake. When an English court is in doubt as to the interpretation of law, it may refer a case to the ECJ for guidance and the ECJ will give a ruling after which the national court will give its decision.

Magistrates and Judges

What is striking to an outside observer of the English legal system is that magistrates are not professional judges but are lay persons, without legal experience, appointed on behalf of the Crown to keep the peace within a specified district. Members of their local community respected for their judgment and common sense, they dispose of 97 percent of all criminal cases in the country. In the eyes of the general public, their greatest advantage is that they are free of the habits of thought which characterise professional lawyers. Lay magistracy has existed in England and Wales since the 12^th century. Nowadays headteachers, doctors and people active in their community are the kind of people who are invited to become magistrates. If a person wishes to become a JP, he may apply to the Lord Chancellor. On average, they are required to sit 35 days each year, and they serve until retirement or removal. They are not paid for their work, receiving only out-of-pocket expenses for what they do; sums for the loss of earnings are payable but these are not generous. Although not legally qualified, they do receive some basic training, and in their work they are advised on the law by the clerk of the court. The justices' clerk is a professional lawyer of at least five years' standing. He must give the magistrates legal advice but may not take part in the actual decision making. Usually a case is heard by a bench of three lay magistrates but in large cities, where it might be difficult to obtain the services of sufficient numbers of lay magistrates, there are professional, legally qualified magistrates who are called district judges (formerly, stipendiary magistrates). There are about 100 of them (as against some 30,000 lay magistrates); they are paid for their work and are allowed to sit alone on the bench.

Unlike magistrates, who work only in the lowest courts, judges can work in all courts. They are independent, their salaries are fixed by statute and they hold office 'during good behaviour', that is, for life. Professional judges deal mostly with civil cases, and only with the most serious crimes, which are relatively few in number. Most judges are full-time judges; but there are also many part-time judges who, when they are not sitting as judges, carryon their careers as solicitors or barristers. A distinctive feature of the British system is that Britain does not have a career judiciary. Unlike many countries on the continent, where law graduates can choose to be a judge at the outset of their careers, judges in England are chosen from lawyers who have served for 10-15 years and have gained considerable experience in judicial matters. They are appointed by the Judicial Appointments Commission. On the other side of the Atlantic, in the United States, judges are not appointed but elected. However, in England it is feared that such a system, if adopted, may lead to politicisation of the judiciary.

In addition to the above you should be aware of the roles of the law officers of the state. The Lord Chancellor is the government's principal legal spokesman. The Attorney General is the chief legal adviser to the government. His consent is required to bring a prosecution in certain cases involving state security. The Director of Public Prosecutions (DPP) is a civil servant who is responsible for the running of the prosecution service. His consent is required to proceed in cases involving certain criminal offences.

Judges in England are independent of the executive. Only the courts have the authority to overturn a decision made by a government ministry that acted illegally or beyond its authorised powers. This is known as preventing an abuse of power. This freedom, which enables them to exercise restraint over government action, is fiercely defended by the judiciary. Since, historically, there is no rigid separation between the legislative and the executive powers in England, it is crucial that they should be subject to outside checks. And one of the most important checks is the independence of the judges. This conviction has been forcefully expressed by one of the greatest twentieth-century judges Lord Denning: 'No member of the Government, no Member of Parliament, and no official of any Government department has any right whatever to direct or influence or to interfere with the decisions of any 6f the judges. It is the sure knowledge of this that gives the people their confidence in the judges... '

Not only are the courts independent of the executive but they have the power to review decisions of government officials. This is done by way of 'judicial review', a special procedure which enables individuals to challenge decisions by the executive in the Administrative Court, which is part of the Queen's Bench Division of the High Court.