English Legal System

An Emerald Guide

• Publisher: Straightforward Publishing Digital
• Year: 2015
• ISBN:
  9781847166319

Emerald's Guide to the English Legal System is an ideal introductory book for the person who needs an insight into how the English Legal System functions at all levels. The book is updated to 2015. This book examines the workings of the English Legal system, looking at the main institutions and the role of Parliament and the law and also the role of the European Union and its role in the English Legal System. The book will prove an invaluable guide for all those who wish to develop their knowledge in this area and is written in a clear concise style.

1

The Framework of Law

Law covers a wide variety of areas. There are different categories of law: national law; international law which is divided into public and private law and further sub-categories discussed later.

International law

International law concerns itself with inter-nation disputes and conflict. This law, in the main, derives from various treaties which have been agreed over time between different governments.

National law

This is the law which applies within each individual nation. Within national law there is a distinction between public and private law. Public law involves the government or state in some way and private law is concerned with disputes and conflict between individuals and businesses. Public and private law, as mentioned can be further sub-divided.

Public law

There are three distinct areas of public law:

1. Constitutional law

Constitutional law controls and sets out the framework for government, and methods of government.

2. Administrative law

This controls how the ministers of government, both national and local, can operate. A key part of administrative law is that of the right to judicial review of decisions made by government.

3. Criminal law

Criminal law deals with the types of behaviour, whether individual or on a business level, which are considered outside the boundaries of the general law and accepted moral codes and which are punishable. A person who commits a crime is said to have offended against the State and the State has the right to prosecute them and punish them if found guilty.

Private law

Private law is usually termed civil law and there are many differing branches. The main ones dealing with everyday matters are family law, contract law, tort (negligence) company law and employment law. Civil law is very different in nature from criminal law. Whereas criminal law deals with crimes against the state private or civil law deals with disputes between individuals

Distinctions between criminal law cases and civil cases

There are key differences between criminal and civil cases. The cases take place in different courts. In general, criminal law cases will be heard in either Magistrates Courts or the Crown Court. Civil cases are heard either in the High Court or, more often than not, in the County Court. Some civil cases, especially matters concerning family, can be heard in the Magistrates Court.

In criminal cases, the terminology used to describe key personnel is different to that of those involved in civil cases. The person commencing a criminal case is called a prosecutor, whilst in civil cases they are called the claimant.

In criminal cases, the terminology used generally is different. A person is either found guilty or not guilty. In a civil case a defendant is found liable or not liable. At the end of a criminal case, the person, if found guilty, will be punished and sentenced appropriately. In a civil case, the person if found to be liable will be ordered to put right the matter. This is usually done by an award of money as compensation, known as damages although other remedies may be ordered.

In criminal cases, the standard of proof is very high. A criminal case must be proven beyond all reasonable doubt. Civil cases are proved on the balance of probabilities. This is a lower standard of proof.

Overleaf is a summary of civil and criminal law cases.

Civil cases	Criminal cases
Object of law	To uphold the rights of individuals	To maintain law and order
Person starting case	Individuals who are affected	Usually State through police or Crown Prosecution Service
Terminology	Claimant	Prosecutor
Courts	County Court or High Court or Tribunal	Magistrates court or Crown Court
Standard of proof	The balance of probability	Beyond reasonable doubt
People making Decision	Judge	Magistrates or jury
Decision	Liable or not liable	Guilty or not guilty
Powers of court	Usually damages, injunction, performance of contract rescission or rectification	Prison, fine, community order, discharge etc.

Defining law

Having considered the various divisions of law it is now time to consider definitions of law. One broad definition of law was that provided by Sir John Salmond. He defined the law as being ‘the body of principles recognised and applied by the state in the administration of justice’. This neatly encapsulates the meaning and application of law in one brief sentence.

Law applies throughout a country to people generally. There are other sets of rules applied more individually to people and organisations, for example rules governing sports or rules which have developed as a result of local customs and traditions.

Law and morality

Moral values of communities set out a framework for how people should behave. Concepts of morality differ from culture to culture, although there are common denominators, for example outlawing extreme and harmful behaviour such as rape or murder. Morality often springs from a religious base, the bible for Christians and the Koran for Muslims are key examples. The law of a country will, usually, reflect the moral values accepted by most of a country but will differ in certain aspects. One example is that adultery is often considered a crime in Muslim countries but not so in Christian countries.

In England and Wales there has been a move away from religious belief and the development of law reflects this. For example a limited form of euthanasia has been accepted as legal, as reflected in the ruling in Airedale NHS Trust v Bland (1993), where it was ruled that medical staff could withdraw life support systems from a patient who could breathe unaided but who was in a persistent vegetative state. Similarly, with abortion which is legalised. Whilst there are many groups who believe that euthanasia and abortion are immoral the law has moved differently.

Law and justice

Although justice is the main goal of the law it doesn’t always provide a just outcome. There is the problem of defining justice as was outlined by Lord Wright, who said:

‘ the guiding principle of a judge in deciding cases is to do justice; that is justice according to the law, but still justice. I have not found any satisfactory definition of justice…what is just in a particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man’.

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