Presentation on theme: "Chapter 9 Justice and the Law November, 2007 Xiao Huiyun."— Presentation transcript:
Chapter 9 Justice and the Law November, 2007 Xiao Huiyun
A 1 Introduction – Basic Principles of *** English Law What are the basic principles of English Law? Explain “The Rule of Law”. What is the Law that is higher than man-made law? What are the criteria? What kind of orders are soldiers expected to disobey? Give examples. Should the pilot who bombarded the Chinese Embassy in Yugoslavia be punished for the atrocity? Why or why not?
A 1 Introduction – Basic Principles of English Law The Rule of Law, Natural Law and Natural Justice The Rule of Law is an aspect of the British Constitution.British Constitution It involves: The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities. There can be no punishment unless a court decides there has been a breach of law. Everyone, regardless of your position in society, is subject to the law.
A 1 Introduction – Basic Principles of English Law cont Natural Law: A system of universal moral and ethical principles that are inherent in human nature and that people can discover by using their natural intelligence (e.g., murder is wrong; parents are responsible for the acts of their minor children) Natural Law is higher than Man-made law. Eg. Nuremberg War Crimes Trial Natural Justice -- reflections of prevailing moral view of society.
Natural Law Theory It holds that there are universal moral principles, which are founded in “human nature.” Any set of universal moral principles can be considered a set of natural moral law. These theories maintain that morality is founded upon characteristics that human share; moral rights and obligations are determined by the limitations and possibilities that are inherent to the human nature.
Basic principles – simple sum-up The rule of law----everybody is subject to the law ----laws must not be arbitrary ----a person is innocent until proven guilty Natural law ----a law is higher than a man-made law Natural justice----reflection of the prevailing moral view of the society
A 1 Introduction -- Two branches of law Civil law -- defines and enforces the duties or obligations of persons to one another. Criminal law -- by contrast, defines and enforces the obligations of persons to society as a whole.
A 1 Introduction – Sources of British Law Common Law – decided by judges, their decisions in cases being arrived at after considering the customs and practices of the people involved. This kind of law has evolved long before Parliament became the main law- making body. Statute Law – made by Parliament Case Law – has evolved through decisions in actual trials European Union law
A 1 The Supremacy of Parliament Parliament can pass, repeal and alter any of Britain’s laws. This is one of the major powers that a government has. Parliament also has the power – after going through its own parliamentary processes – of altering its own laws. In theory there is no body that can declare a law passed by Parliament as unconstitutional - though the full impact of the European Court is not yet known.European Court But decisions of the European Court must be accepted in UK.
A 2 Structure of the Courts Criminal & Civil Law p 153 Precedence p 153 The legal system in England & Wales pp The legal system in Scotland
The Court System Civil branch Criminal branch County Court Magistrates’ Court (JPs, stipendiary magistrates) Crown Court High Court (QBD, CCD, FD) Court of Appeal Supreme Court
Court cont 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
Courts cont Magistrates’ Court The overwhelming 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. It is rare for the sort of cases dealt with in these courts to grab the nation’s attention,or hit the headlines. However,these courts are a vital cog in the wheel of justice, and nearly all of the UK’s criminals will pass through their doors.
Courts cont The Crown Court The Crown Court deals with all indictable cases,which are 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.
Courts cont 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. Along with the Court of Appeal, it is based at the gothic building of the Royal Courts of Justice on the Strand,London, but also sits at 26 towns around the country.
Courts cont Court of appeal If a convicted person feels he or she has not had a fair trial in the Crown Court/High Court and has been wrongfully convicted,or that the sentence imposed by the judges is unfair,then he or she can take their case to the Court of Appeal,where more senior judges will consider the merits of their case.
Courts cont The House of Lords (to be replaced by Supreme Court) *The highest law court *The Law Lords conduct a fairly relaxed court --dress like businessmen to hear cases --sit at eye level,behind a horseshoe- shaped table --rarely attend political debate Lord Chancellor -- Charles Leslie Falconer, Baron Falconer of Thoroton, Secretary of State for Constitutional Affairs Charles Leslie Falconer, Baron Falconer of Thoroton
Constitutional Reform Bill During 2003, Labour developed a Constitutional Reform Bill: Abolish the Lord Chancellor and his department, replace with Secretary of State for Constitutional Affairs Set up Supreme Court to replace Law Lords Changes to appointment of judges
Progress of the Bill Lack of consultation beforehand caused much difficulty in both Houses and with public Lords made many amendments Bill finally approved March 2005
Constitutional Reform Act 2005 (1) Lord Chancellor remains, but with much less power over judiciary and no longer automatically Speaker of Lords Title will usually be held by the Secretary of State for Constitutional Affairs Holder can come from either House
Constitutional Reform Act 2005 (2) New Supreme Court formed, with independently appointed members Will move into new buildings in Middlesex Guildhall in 2008 Lords will lose its judicial functions
A 3 Legal Advice & Assistance *** Who pays for it? 3 forms of legal aid Legal Advice & Assistance – who offers aid? ? Civil legal Aid– represented by whom? Criminal Legal Aid -- privilege or right? represented by whom?
A 4 Inside the Courts Judicial independence "is basic to the (British) Constitution."(British) Constitution The independence of judges is secured by: While in office they behave in a professional manner; if they maintain the highest of standards in all areas, they cannot be touched by the government if they come to a decision that is against a government act Those in the judiciary are paid out of the Consolidated Fund so that they are free of annual parliamentary criticism, which might be used to mould future judicial decisions See p155 for more information
A 4 Inside the Courts cont *** What are the qualifications for judges? Where do magistrates come from? What are their jobs? How important are they? Are they paid for the jobs? In which branch of court do you find a jury? Sentencing What is the most severe punishment in Britain? Pp
How Are Magistrates Appointed? ApplicationApplication Advisory Committee InterviewsInterviews Recommendation to the Lord Chancellor AppointmentAppointment Requirements of local communities: number, gender, ethnicity, etc qualifications Qualifications/Disqualifications: e.g. age, residence, occupation, criminal record No formal qualification is Qualifications
A 5 Outside the Court – The Professional Barristers and Solicitors Differences in training Work See pp , handouts
Law Degree(3 years) School of Law Bar Exams(1 year) Pupilage(1 year) Independent practice in ‘chambers’ 5 years
Solicitor A solicitor
Solicitor Training Law Degree(3 years) Law Society Exams(1 year) Articles(3 years) Work for a Solicitor’s firm become a partner 7 years
A 6 Problems in the English Legal System Outdated practice System elitist Weak points of jury system Advantages and disadvantages of the jury system Lay magistrates See p 159
Potential or Possible Advantages of the Jury System The system is the chief bulwark of the common man against abuse by the state or by individual members of the legal system. It gives the public a part to play in the legal process and makes the ordinary people gain a sense of involvement. Jurors usually have more first-hand qualification than any judge to form a valid opinion upon facts connected with the daily life of ordinary people. The system ensures that the judgment of guilt or innocence is made by the accused’s equals, not by a judge whom many will see as being out of touch with ordinary people and no better at making judgments about facts.
Potential or Possible Disadvantages of the Jury System Jurors may have a lot of difficulty following arguments and/or evidence in a complex case. Evidence shows that gender or race discrimination and prejudice still exist among some jurors. Juries are likely to be influenced by one dominant personality among their members and also, by the impression they pick up from the judge’s summing-up, rather than solely from the facts presented to them during the hearing. Jurors are more easily swayed by emotional witnesses’ accounts or barristers’ appeals, and sometimes do not pay as much regard to facts or documentary evidence as expected.
Potential or Possible Disadvantages Lay Magistrates The system of Lay Magistrates ensures that critical decisions affecting personal liberty, reputation and rights are taken by ordinary individuals. So there is an analogy with trial by jury in the Crown Court, except that there a Judge rules on the law, whilst the jury decides the facts of the case. Magistrates do both of these things. As for potential or possible advantages and disadvantages of Lay Magistrates, some of the same things as above will apply e.g. gender, race. In addition, an extra advantage of the system is that magistrates handle the bulk of criminal cases (95%) preventing the higher courts from becoming overloaded with cases.