Criminal Courts and Civil Courts: Lecture # 11

Lecture # 11
Criminal courts and Civil Courts

By: Salik Aziz Vaince
[0313-7575311]
 Machinery of Justice
 Institutions and processes involved in the resolution of legal matters.
 Civil Cases: Arise when an individual believes that their rights have been infringed in some way
e.g. law of contract, law of tort and family law.
 Criminal Cases: The crime is regarded as an action against the state and society as a whole.
 Jurisdiction: The right and power to interpret and apply the law and territory within which power
can be exercised.
 Introduction to Judiciary
 The judiciary is the branch of government that deals with interpretation of a nation’s laws, resolution
of legal conflicts, and judgments for violations of the law.
 The judiciary (also known as the judicial system) is the system of courts that interprets and applies the
law in the name of the state, is composed of judges and courts. Under the doctrine of the separation
of powers, the judiciary generally does not make law and the judicial system is deliberately kept
separate from the nation’s legislative body (that is, in a plenary fashion, which is the responsibility of
the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law
and applies it to the facts of each case.
 This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a
court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower
courts.
 Barrister’s and solicitors are specialists who study the law in order to help clients navigate the judicial
system.
 Legal systems of various kinds have existed since the dawn of civilization. Precedents of the modern
judicial system include ancient Greek and Roman law. English common law established by the Magna
Carta is the most direct ancestor of many current legal systems. By the 18th century, many countries
around the world had developed some form of a judiciary.
 The judiciary also provides a mechanism for the resolution of disputes.
 In many jurisdictions the judicial branch has the power to change laws through the process of judicial
review (only in case of delegated legislation). Courts with judicial review power may annul the laws
and rules of the state when it finds them incompatible with a higher norm, such as primary legislation,
the provisions of the constitution or international law (declaration of incompatibility). Judges
constitute a critical force for interpretation and implementation law.
 Definition
 The system of law courts that administer justice and constitute the judicial branch of government.
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 The judicial process
 The literature on the judicial process in Britain is extensive.
 However few works on the courts or judges come from the pens of political scientists. In particular the
process of policy making, the judicial process has generally been deemed to be of peripheral (Related
to the key issue but not of central importance) interest.
 This is largely because:
- The judiciary is subordinate, with public policy made by the executive and the legislature.
- The judiciary is notionally independent and politically neutral.
 However these assumptions have been challenged in recent years.
 A subordinate branch?
 Under the doctrine of parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down
an Act of Parliament. However this was not always the case, prior to the Glorious Revolution of 1688,
the supremacy of statute law was not clearly established.
 However, the subordination of common law to statute law does not mean the subordination of the
judiciary to the executive. Courts retain certain powers:
- Of interpreting the precise meaning of a statute.
- Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra
vires (beyond powers).
- Of applying the concept of natural justice to the actions of ministers and others.
 Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by
passing amending legislation.
 The power of judicial review provides the judiciary with a potentially significant role in the policy
process.
 In recent decades there has been an upsurge (A sudden forceful flow) in judicial activism for several
reasons:
- Judges have been more willing to review and quash ministerial action.
- British membership of the EU.
- The incorporation of the ECHR into domestic law.
- Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland.
- The creation of a Supreme Court in 2009.
 An Autonomous (free from external control) Branch?
 The judiciary is deemed to be independent of the other two branches of government.
 The independence of the judiciary is safeguarded in a number of ways:
- Since the Act of Settlement of 1701, senior judges have held office 'during good behavior' and can
only be removed by the Queen following an address by both Houses of Parliament (only one judge,
in 1830) has thus been removed.
- Judges' salaries are a charge on the Consolidated Fund and so do not have to be voted every year
by Parliament.

- The House of Commons generally bars any reference by Members to matters that are sub judice
(awaiting trial).
 By convention, judges refrain from politically partisan activity and have generally refrained from
commenting on matters of public policy (the Kilmuir Guidelines issued in 1955).
 It was seen that the self-interest both of politicians and judges confined them to their respective
spheres.
 However, the dividing line is not as clear as it seems:
- There is an overlap of personnel, particularly in the higher reaches.
- Some Members of Parliament serve or have served as recorders (part-time but salaried judges in
the Crown Court) and several sit as local magistrates.
 However since the 2005 constitutional reform Act there is less of an overlap then there used to be?
The line between political and judicial activity cannot always be drawn for those holding political
office, who at times have to take judicial or quasi-judicial decisions.
 As members of an executive accountable to Parliament they are affected by public opinion to an
extent that judges are not.
 However, judges are not completely immune from public controversy:
- Judges have been invited to chair public inquiries into various disasters or scandals. Their reports
sometimes bring the judges into party political controversy.
- Judges have been more willing in recent years to enter public debate on matters of controversy
and to comment on matters of public policy.
 The Courts
 UK courts system is complicated and – in places – confusing, because it has developed over 1,000
years rather than being designed from Putting together quickly whatever is available. It evolved as and
when the need arose to meet a particular need.
 Different types of cases are dealt with in specific courts: for example, all criminal cases will start in the
magistrates’ court, but the more serious criminal matters are committed (or sent) to the Crown Court.
Appeals from the Crown Court will go to the High Court, and potentially to the Court of Appeal or even
to the head of the system stands the Supreme Court (from 2009 prior it was HOL). The higher courts –
the Crown Court, the High Court and the Court of Appeal – are known collectively, as the Senior Courts
of England and Wales.
 Civil cases in county courts. Most of the civil cases are not heard in the civil courts but in one of the
alternative forums - tribunals, or by Alternative Dispute Resolution or settled.
 The tribunals system has its own structure for dealing with cases and appeals, but decisions from
different chambers of the Upper Tribunal, and the Employment Appeals Tribunal, may also go to the
Court of Appeal.
 Apart from a number of specialized courts and tribunals, the organizational division of courts is that
between criminal law and civil law.

 How the courts work
 There are different types of courts in England and Wales which cover between them all legal disputes,
from defendants accused of crimes, consumers in debt, children at risk of harm, businesses involved in
commercial disputes or individuals asserting their employment rights. The main three types of court
are:
 criminal courts - dealing with all cases where a crime has been committed and there is enough
evidence gathered against the alleged offender for there to be a reasonable chance of a conviction
 civil courts - dealing with disputes between private individuals and/or organisations, such as the non-
repayment of a debt, personal injury, the breach of a contract concerning goods or property, housing
disputes, bankruptcy or insolvency
 family courts - dealing with disputes relating to family matters including divorces, disputes about
financial issues or custody of the children following the breakdown of a relationship, domestic
violence, adoption or protection of children from abuse or neglect
Criminal Courts
 The two courts which hear the criminal trials are the Magistrate Court and the Crown court; which can
be decided on the basis of the category of crime. For example summary offences at magistrate court
and indictable (serious) can only tried in Crown court.
 In these courts majority of the defendants plead guilty to the charge against them and court will
decide the punishment.
 In case where accused pleads not guilty then court’s role is to try the case and decide guilty or not
guilty; the burden of proof is on prosecution to prove beyond reasonable doubt.
 The trial is an adversarial one, with prosecution and defence presenting their cases and cross-
examining each other’s witnesses, while the role of judge is as a referee, overseeing the trial and
making sure that legal rules are followed correctly. The judge cannot investigate the case, nor see
additional witnesses. The detail about these courts is discussed as under:
1. Magistrates' courts 3. Youth courts
2. Crown Court
1. Magistrates' courts
 There are over 400 magistrate’s courts in England and wales. The Courts deals with criminal offences
over which they have jurisdiction.
 Cases are heard by magistrates, who may be a qualified district judge or unqualified lay magistrate
(not legally trained and are drawn from the ranks of the public discussed in later lectures in detail). In
court, they will be advised on questions of law, practice and procedure by a Magistrates' Clerk (who
must have been qualified as a barrister or solicitor for at least five years).
 More than nine out of every ten criminal cases in England and Wales are tried in magistrates’ courts.
 Cases a magistrates’ court deals with
 All criminal court cases start in a magistrates' court, and the vast majority will finish there. A small
number will be referred to a higher court, usually the Crown Court. In magistrates court the defendant

is not entitled to trial by jury. They are known as summary offences. Summary offences involve a
maximum penalty of six months imprisonment and/or a fine of up to £5,000.
 About 1.5 million to 2 million criminal cases go through the magistrates' courts each year.
 In criminal matters courts have the jurisdiction on different matters, the jurisdiction is included as:
1. Magistrate court deals with approximately 97 % of all criminal cases which includes:
 All summary cases, e.g.,
- most motoring offences
- minor criminal damage
- being drunk and disorderly behaviour
- these are categorized as least serious crimes, further divided into 5 different levels with
different level of fines
 It can also deal with some of the more serious offences, e.g.,
- burglary
- drugs offences
2. There are some ‘either way’ offences and can be heard either in a magistrates’ court or a Crown Court
if the defendant also agrees. The defendant is first asked whether he pleads guilty or not guilty. If he
pleads guilty, then he has no right to ask to go to the Crown Court although the magistrate may still
decide to send him there for sentence.
3. First hearing of all indictable offences, these cases then sent to the Crown court.
4. Side matters of criminal cases for example issuing search warrant for arrest and bail applications. In
these cases, the court decides to:
- kept in custody - e.g. a police or court cell
- Grant ‘bail’, and let out on strict conditions - e.g. to keep away from named places or people, or
remand defendants in custody.
 This may happen if:
- another court hearing is needed
- the court needs more information before passing sentence
- your case is passed to the Crown Court for trial or sentencing
5. Cases of Youth Court (defendants of age 10-17).
6. Decide whether a case should be adjourned.
7. Pass sentence on a defendant who has been found guilty.
8. Sit in the Crown Court with a judge to hear appeals from Magistrates' courts against conviction or
sentence.
 Civil cases
 Magistrates can deal with a limited number of civil cases such as:
1. Council tax 3. income tax arrears,
2. VAT 4. Residence orders

5. Magistrates hear cases in the Family Proceedings Court and make decisions on a range of issues
affecting children and families, For example, making orders for residence of and contact with children,
some matrimonial problems, welfare of children, adoption.
 Civil decisions may be appealed to the County Courts.
 The courts also have limited jurisdiction of administrative functions such as the licensing of public
houses, liquor Licences, permits relating to betting and the registration of gaming clubs.
 Sentences a magistrates’ court can give
 The court can give punishments including:
- up to 6 months in prison (or up to 12 months in total for more than one offence), although the
Criminal Justice Act 2003 gives power for this to be increased to 15 months in future.
- a fine of up to £5,000
- a community sentence, like doing unpaid work in the community
 Courts can also give a combination of punishments - e.g. a fine and unpaid work in the community.
 If the court decides your sentence should be for longer than 6 months, it can pass your case to the
Crown Court for sentencing.
 For a single criminal offence committed by an adult, magistrates' sentencing powers include the
imposition of fines, community service orders, probation orders or a period of not more than six
months in custody.
 Appealing a sentence or conviction
 If you disagree with the magistrate court’s verdict, you may be able to appeal.
 There are two routes for an appeal against conviction. It could be an appeal to the High Court
(Divisional Court of the Queen’s Bench Division). The case would be heard by a court of two or more
judges and one will be a lord justice of appeal. There is a further appeal of the House of Lords but it
must be a point of law of general public importance.
 Both the defendant and the prosecution can appeal. Grounds are limited. This would be based on a
case stated from the magistrate’s court where the facts would be agreed and the case is based on:
(a) Point of law
(b) That the magistrates acted beyond their jurisdiction. If the prosecution succeeds on appeal the
court can direct the magistrates to convict and pass the appropriate sentence.
 The alternative route would be to appeal to the Crown Court but the defendant must have pleaded
not guilty at his trial. The appeal against sentence is a separate appeal and can proceed irrespective of
whether he pleaded guilty or not. The case proceeds de novo ((Latin) from the beginning). The case is
heard by a judge and between two and four magistrates sitting in the Crown Court.
 The Magistrates Court is the main pillar of the English Legal System
 The magistrate’s court is very important in England and Wales because approximately 97 % criminal
cases are heard by this court. The magistrate’s court has an extensive jurisdiction both criminal and
civil.
 Criminal: This covers all summary offences and offences which can be tried in either court. The court
has a number of other functions such as the decision about where a case is going to be tried and also
whether bail should be granted and other administrative procedures. It has an extensive jurisdiction
over youth offences for which magistrates will receive special training.

 The Anti-Social Behaviour Order or ASBO as its normally referred to entered UK law in 1998 as part of
their Crime and Disorder Act. The ideal behind the ASBO was to tackle the growing problem of anti-
social behaviour that many communities in the UK were suffering from. The ASBO is usually issued a
magistrates' court in England and Wales as a means of handing out a punishment to very young
offenders without giving them any kind of custodial sentence.
 Civil: This covers family matters and also matters such as debt collection. The licensing jurisdiction has
recently been transferred.
 What goes on in a Magistrate's Court?
 A Magistrates’ court is a court which deals with criminal cases; Cases are normally heard by either a
panel of 3 magistrates or by a District Judge without a jury. They are normally only used for the less
serious criminal offences, or for a first hearing of all criminal cases before transferring the case to the
Crown Court where a jury will decide the defendant’s fate.
 Criminal decisions of the Magistrates’ Courts may be appealed to the Crown Court.
 In the magistrate court the clerk will check the name and address of the defendant and then whether
he pleads guilty or not guilty. Over 90 % pleads guilty and then court will establish appropriate penalty.
 Guilty Plea
 The steps when a defendant pleads guilty are as below:
1. The crown prosecutor or associate prosecutor from the CPS will give a resume of facts of the case
to the court.
2. The judge will ask from the defendant if he agrees with those facts, if does not then magistrate
may have to hold an inquiry.
3. The defendant’s past record of convictions, if any is given to the court and considered relevant.
4. Other information about the defendant’s background, such as his financial position is given to the
court.
5. The relevant reports of the defendant also considered by the magistrate these may include; pre-
sentence report by probation officer or a medical report of defendant’s mental health.
6. The defendant or his lawyers can then explain any matter which might persuade the magistrate to
have lenient sentence. This is called making a speech in mitigation.
7. Finally magistrate decides the sentence.
 Not Guilty Plea
 In case when the defendant not pleads guilty then the next procedure is lengthy and to some extent
complicated. Both sides will produce evidence to the court.
1. Remember the burden of proof is on prosecution, it will begin the case with a short speech and
outline what the case is and what they want to prove.
2. The prosecution witnesses will then be called one at a time to give evidence, and prosecutor will
question from each to establish what he or she saw and heard. This is called examination in chief.
(Examination-in-chief: This is where you obtain evidence from your own witnesses. You need to
ensure that your witnesses give clear evidence and that they do not talk too fast in order that notes
can be taken. Ensure the witness faces the Judge when answering questions and is not looking at
you. This will enhance the quality of their evidence. When asking your witnesses questions, you

need to try to elicit from them only the evidence that is relevant. Always therefore bear in mind
why you are asking your witness a particular question and what is you want to hear from them.
Leading Questions: During examination-in-chief the solicitor advocate is forbidden from asking
their witnesses leading questions. A leading question is one which requires a 'yes' or 'no' response.
In its phrasing it suggests its own answer. By way of an example, was the man wearing a red and
white jumper? By suggesting the answer to the witness you reduce the witness' impact. Leading
questions are forbidden in examination-in-chief because the solicitor is not allowed to lead their
witness and in effect put words into their mouth. When you call your own witness you hope and
expect that they will provide evidence that is favourable to your case and will 'come up to proof'.
As a general rule when you ask your witness questions you should phrase your questions using
simple words and phrases to ensure the witness fully understands what you are asking them.)
3. After the prosecution finishes the examination in chief of a witness, the defence will then cross-
examine that witness to test their evidence and try to show that it is not reliable.
4. The prosecution may also produce relevant exhibits, such as property found in the possession of
the defendant or documents which help to establish the case.
5. At the end of the prosecution case the defence can submit to the magistrates that there is no case
to answer and that the case should be dismissed at this point, because the prosecution has to
prove the case and if its evidence does not establish a case, then it must be dismissed.
6. A small number of cases will be dismissed at this stage. Majority of the case will continue and the
defence will have to give their evidence to the court. Usually defendant himself gives evidence,
though he does not have to.
7. However, since the Criminal Justice and Public Order Act 1994, the magistrates can draw their own
conclusions from the fact that the accused stays silent and does not explain his side of the matter.
8. If the defendant does give evidence, he can be cross-examined by the prosecutor, as can any
defence witness. The defence can call any witnesses and produce any evidence that it believes will
help to disprove the prosecution’s case.
9. Once all the evidence has been given, the defence has the right to make a speech pointing out the
weaknesses of the case to the magistrates and try to persuade them to acquit the defendant.
10. Further speeches are not usually allowed unless there is a point of law to be argued.
11. The magistrates then decide if the defendant is guilty or not guilty. If they convict, they will then
hear about his past record and may also look at reports and hear a speech in mitigation from the
defence. They will then pass the sentence.
12. If the magistrates dismiss the case, the defendant is free to go and cannot usually be tried for that
offence again. There is, however, one exception when the when the defendant can be retried. This
is where the prosecution successfully appeals against the acquittal.

Flow chart of proceedings for a summary offence in the magistrate court
PLEA
Guilty Not Guilty
Prosecutor outlines Trial with prosecution evidence

The facts of case and defence evidence
Decision by the magistrate
Past Record
Guilty not guilty
Extra information e.g. reports

Past record Free to go
Mitigation Extra information e.g. reports
Sentence Mitigation
Sentence
 Triable Either way offences
 Plea before venue
1. Under the plea before venue procedure the defendants is first asked whether he pleads guilty or
not guilty.
2. If he pleads guilty, then he has no right to ask to go to the crown court although the magistrates
may still decide to send him there for sentence.
 Mode of Trial
1. If the defendant pleads not guilty then the magistrates must carry out ‘mode of trial’ proceedings
to establish where the case will be tried.
2. In this the magistrates first decide if they think the case is suitable for trial in the Magistrates court
and whether they are prepared to accept jurisdiction.
3. Under section 19 of the magistrate Court Act 1980 they must consider the nature and seriousness
of the case, their own powers of punishment and any representations of the prosecution and
defence.

4. Case involving complex questions of fact or law should be sent to the crown court. Other relevant
factors which may make a case more suitable for trial at the crown court include:
- Where there was breach of trust by a person
- Where the crime was committed by an organized gang
- Where the amount involved was more than twice the amount the magistrate can fine the
defendant.
- "[Questions of law are questions about what the correct legal test is.
"Questions of fact are questions about what actually took place between the parties.
Questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
"A simple example will illustrate these concepts. In the law of tort, the question what
negligence means is a question of law. The question whether the defendant did this or that is a
question of fact. And, once it has been decided that the applicable standard is one of
negligence, the question whether the defendant satisfied the appropriate standard of care is a
question of mixed law and fact."]
5. In rare cases where the Attorney-General, Solicitor-General or the Director of Public Prosecutions is
the prosecutor, the magistrate, under section 19(4) of the Magistrates Court Act 1980, must send
the case to the Crown Court if that is what the prosecution wants.
6. In other cases the prosecution’s wishes are just part of the matters to be considered by the
magistrates before they decide whether they are prepared to hear the case or whether it should be
tried at the Crown Court.
 Defendant’s choice
1. If the magistrates are prepared to accept jurisdiction, the defendant is then told he has the right to
choose trial by jury, but may be tried by the magistrates if he agrees to this course.
2. However, he is also warned that if the case is tried by the magistrates and at the end of the case he
is found guilty, the magistrates can send him to the Crown Court for sentence if they feel their
powers of punishment are insufficient.
 Choosing trial by jury
 The people in jury are ignorant of the law, directed by a judge who is likely to be wholly out of touch
with ordinary life.
1. Since 1997 defendants pleading guilty to a triable either way offence at the magistrates court in
the plea before venue procedure have not been able to choose to go to the crown court.
2. This is sensible since there will be no trial of the case, so the defendants are not losing a right to
trial by jury.
3. Defendants who are pleading not guilty have had the right to choose where they want the case to
be dealt with.
4. This has been seen as an important part of civil liberties, as trial by jury is viewed as a protection
of individual rights.
5. However, not many defendants choose to go to the crown court.
6. It was noticeable that when all defendants could choose to go to the crown courts less than one
out of 20 choose to do so.
Plea before venue: Defendant is asked whether he pleads guilty or not guilty
Guilty Not guilty
Magistrates will hear facts and decide if their Mode of trial hearing magistrates decide whether
sentencing powers are sufficient or not to accept jurisdiction
If sufficient, will send for sentencing if not, will send to crown court Accept Jurisdiction Refuse jurisdiction
Defendants chose place of trial Sent to crown court

for trial
Choose Magistrates court trial held there choose crown court trial held there
 Implications of choosing jury trial

 There are several factors involved in a defendant’s choice of the Crown Court as the venue for his trial.
The main reason for choosing the crown court is that the decision on guilt or innocence is made by a
jury and this gives a better chance of an acquittal. Only 20% of defendants who plead not guilty at the
magistrate’s court will be found not guilty at the magistrates courts, whereas 60% of those who plead
not guilty at the Crown court are acquitted. This does not mean the jury acquits a large number as this
figure includes cases where the case is discharged by the judge without trial. This is when the
prosecution at the crown court does not offer evidence against the defendant. This may be because
by the time the case reaches the crown court, the prosecution accepts that the defendant is not
guilty, or it may be because witness have failed or refused to come to court and the prosecution is left
with insufficient evidence for the case to proceed. Some other points to be considered are:
- Cases at the crown court are more expensive.
- If the defendant is represented this must be by a barrister or solicitor with a certificate of
advocacy giving rights of audience at the crown courts.
- There is a risk of a higher sentence if the defendant is found guilty in the crown court.
- Most defendants who chose the crown court did so, on the advice of their lawyers and the
main factor was the higher chance of an acquittal.
- There were many factors, however, which influenced the choice, including (where defendants
were in custody) a wish to serve part of the sentence in a remand prison.

 Cases that magistrates pass to the Crown Court
 Where the trial is going to be held at the crown court, the magistrates must officially send the case to
the crown court.
 The most serious offences like murder, robbery or rape can only be dealt with in the Crown Court,
which is able to hand out more severe sentences. A number of crimes, including certain drug offences
and serious fraud offences, can be dealt with by either magistrates' courts or the Crown Court - these
are called either-way offences. For triable either way offences, magistrates will hold a plea before
venue and, if the defendant pleads not guilty, a mode of trial hearing. If, at this hearing it is decided
that the case is to be tried in the crown court, the magistrate will then transfer the case to the crown
court.
 About 100,000 cases per year are passed to the Crown Court to be tried. A further 40,000 cases are
also passed to the Crown Court because the punishment the magistrates' court thinks the defendant
deserves is more than it can give.
 Magistrates also deal with offences where the defendant can choose trial by jury but decides to have
their case heard in the magistrates' court. If the defendant chooses trial by jury, the case will be passed
on to the Crown Court.
 Some cases begin in the magistrates' court and then automatically transferred to the Crown Court for
trial by jury. Magistrates’ courts always pass the most serious crimes to the Crown Court, e.g.:
1. murder 3. robbery
2. rape
 These are known as ‘indictable offences’. For indictable offences the case is transferred to the crown
court immediately from the first hearing at the magistrate’s court (s 51 of the Crime and Disorder Act
1998).
 The role of the clerk in magistrate court
 Every bench of magistrates is assisted by a clerk who is also known as legal adviser. The senior clerk in
each court has to be a barrister or solicitor of at least five years standing.
 The role of the clerk is to guide the magistrates on question of law, practice and procedure.
 The clerk makes sure that the correct procedure is followed in court. For example, at the start of a case
it is the clerk who will ask the defendant if he pleads guilty or not guilty.
 The clerk is not meant to take part in the decision making process; that is the magistrates role.
 This means that the clerk should not retire with the justices when they leave the court at the end of
the case to consider their verdict.
 The senior clerk has been granted greater powers to deal with routine matters which previously had to
be done by magistrates. For example clerks can now issue warrants for arrest, extend police bail,
adjourn criminal proceedings (where the defendant is on bail and the terms on the bail are not being
changed), and conduct early administrative hearings.
 Appeals from the magistrate court
 There is a system of appeal routes available from a decision by the magistrates Court.

 The route used will depend on whether the appeal is only on a point of law, or whether it is for other
reasons.
 The two appeal routes are to the Crown Court, or to the Queen’s Bench Divisional Court QBD.
 Appeals to the Crown Court
 This is the normal route of appeal and is only available to the defence. If the defendant pleaded guilty
at the Magistrates court, then he can only appeal against sentence.
 If the defendant pleaded not guilty and was convicted, then the appeal can be against conviction
and/or sentence.
 In both cases the defendant has an automatic right to appeal and does not need to get leave
(permission) to appeal.
 At the Crown court the case is completely re-heard by a judge and two magistrates. They can come to
the same decision as the magistrates and confirm the conviction, or they can decide that the case is
not proved and reverse the decision.
 In some cases it is possible for them to vary the decision and find the defendant guilty of a lesser
offence.
 Where the appeal is against sentence, the Crown Court can confirm the sentence or they can increase
or decrease it. However, any increase can only be up to the magistrate’s maximum powers for the
case.
 There are lots of appeals to the Crown Court but half of those who appeal are successful.
 If it becomes apparent that there is a point of law to be decided, then the Crown court can decide that
point of law, but there is the possibility of a further appeal by way of a case stated appeal being made
to QBD court.
 Case stated appeal
 There are appeals on a point of law which go to the QBD court. Both the prosecution and the defence
can use this appeal route and it can be direct from the magistrates Court, or following an appeal to the
Crown Court.
 The magistrates (or the Crown court) are asked to state the case by setting out their findings of fact
and their decision.
 The appeal is then argued on the basis of what the law is on those facts; no witnesses are called. The
appeal is heard by a panel of two or three HC judges from the QBD, though in some cases a judge
from the COA may from part of the panel.
 This route is only used by the defendant against a conviction, or by the prosecution against an
acquittal.
 It cannot be used to challenge the sentence. The appeal is because they claim the magistrates came to
the wrong decision because they made mistake about the law.
 The divisional court may confirm, vary or reverse the decision or send back the case to the
magistrate’s court for the magistrates to implement the decision on the law.
 There are only a small number of appeals by way of case stated made each year.

 Further appeal to the Supreme Court
 From the decision of the QBD court there is a possibility of a further appeal to the SC, such an appeal
can only be made if:
1. The divisional court certifies that a point of law of general public importance is involved.
2. The divisional court or the SC gives leave (permission) to appeal because the point is one which
ought to be considered by the SC.
 C (a minor) v DPP (Director Public Prosecution) 1994
 Facts: The appellant was a boy of 12 in 1992 when he was seen by police holding a motor-cycle parked
in a private driveway; another boy was trying to force the padlock and chain with a crowbar. The boys
ran away as the police approached, leaving the crowbar behind with the bike, which had been
damaged. The appellant was caught in a nearby nursing home. He was subsequently convicted of
interfering with a motor vehicle with the intention to commit theft, contrary to s. 9(1) of the Criminal
Attempts Act 1981. The magistrates inferred that the appellant knew he was in serious trouble. They
drew this inference from the nature of the damage done to the motor-bike, and from the attempt to
escape from the pursuing police. On appeal to the Divisional Court by way of case stated (C v. DPP
[1994] 3 All ER 190), the defence submitted that these facts were insufficient to support the inference
drawn by the magistrates, and that there was therefore no evidence to rebut the presumption that a
child between the ages of 10 and 14 is doli incapax; that is, that the child did not know his or her act to
be seriously wrong. The doli incapax rule provides that unless the presumption is rebutted the child
must be acquitted; it is sometimes described as a requirement that the prosecution proves the young
defendant acted with a ‘mischievous discretion’. On the basis of the facts found the justices drew the
inference that the defendant had known that what he had done was seriously wrong and found that
there was sufficient evidence to rebut the presumption that he was only 12 years old he was incapable
of committing a crime and they convicted him.
 Held: dismissing the appeal, that in modern times the presumption that a child between the ages of 10
and 14 was doli incapax did a serious disservice to the law, and to require the prosecution to
specifically prove that a child understood the obliquity of what he had done when an act of obvious
dishonesty or grave violence had been committed was unreal and contrary to common sense: that the
conditions under which the presumption was developed no longer applied and its abolition would
cause no injustice to the defendant: that since earlier decisions had proceeded on the unargued
premise that the presumption simply applied there was no impediment to the court's authority to
abolish the rule: and that, accordingly, the presumption was no longer part of the law of England. The
presumption of 10-14 doli incapax (mischievous discretion) had been discussed in official reports, a
draft Bill produced by the Law Commission in 1985 had proposed its abolition, but a white paper in
1990 had indicated that the government had no intention of changing the law in this respect. This
presumption was ultimately abolished by the Crime and Disorder Act 1998.
Lord Lowry gave the following guidelines for judicial law-making:
- judges should beware of imposing a remedy where the solution to a problem is doubtful;
- they should be cautious about making changes if Parliament has rejected opportunities of dealing with
a known problem or has legislated while leaving the problem untouched;
- they are more suited to dealing with purely legal problems than disputed matters of social policy;
- fundamental legal doctrines should not lightly be set aside; and
- Judges should not change the law unless they can achieve finality and certainty.
2. Crown Court
 Until 1971 very serious criminal cases were dealt with by High Court Judges when they toured the
country holding Assize Courts.
 Other indictable offences were heard at Quarter Sessions, which were intended to sit four times a
year. This system was out of date and unable to cope with the growing number of criminal cases –
following the Beeching Commission Report 1969; both Assizes and Quarter Sessions were abolished.
 In their place, the Courts Act 1971 set up the Crown Court to deal with all cases which were not tried
at the Magistrates Court.
 The Crown Court deals with indictable criminal cases that have been transferred from the Magistrates’
Courts, including hearing of serious criminal cases (such as murder, rape and robbery), cases sent for
sentencing, and appeals. Cases are heard by a judge and a jury. Decisions of the Crown Court may be
appealed to the Criminal Division of the Court of Appeal. A Crown Court:
 Crown Court normally has a jury, which decides if you’re guilty or not and a judge - who decides what
sentence you get.
 A Crown Court can give a range of sentences including:
- community sentences
- prison sentences - including life sentences
- Appealing a sentence or conviction
- If you disagree with the Crown Court’s verdict, you may be able to appeal.
 The Crown Court was established by The Courts Act 1971, there is only one Crown Court that sits in 77
centers.
- More serious cases (and appeals from magistrates' courts) are heard in Crown Courts
- Appeals go either to the Queen's Bench Division of the High Court or to the Criminal Division of the
Court of Appeal
- In practice, appeals are rare: less than 1 per cent of those convicted appeal against conviction or
sentence
- The cost of pursuing an appeal would, in the overwhelming majority of cases, far exceed the fine
imposed
 Jurisdiction
 The court deals with:
- All cases on indictment, wherever committed,
- Convictions in the magistrates' court that are referred to the Crown Court for sentencing.
- Sentence in cases where accused found guilty by the magistrates but they consider they do not
have the power to pass the appropriate sentence,
- Certain civil work, such as dealing with appeals over licensing.
- Judges in the Crown Courts can impose a fine of any amount.

- The highest fine ever imposed was on 7th October 2005 of £10 million (reduced to £7.5 million on
appeal) on the rail maintenance company Balfour Beatty that was implicated in the Hatfield train
crash where 4 died 102 injured.
- Judges can impose a sentence of custody (imprisonment) for life.
- (The European Commission fined Microsoft 500 million Euros in 2004).
 Constitution
- Judges = All Judges of the High Court
- Court of Appeal judge requested by 'Lord Chancellor and Secretary of State for Justice' (then
regarded as a judge of the High Court).
- Circuit Judges
- Recorders
- Justices of the Peace 2-4 sit with the judge when hearing appeals.
 Distribution of Crown Court Business
 The Crown Court currently sits in 77 different centers throughout England and Wales. There are three
kinds of centre:
 High Court and Crown Court centers are divided into three tiers.
 (a) Fist Tier
 These exist in main Centres throughout the country, for example there are first tier Crown Courts in
Birmingham, Bristol and Manchester.
 At each centre there is a High Court and a Crown Court with separate judges for civil and criminal work.
 The Crown Court is permanently staffed by High Court judges as well as Circuit Judges and Recorders,
and the court can deal with all categories of crime triable on indictment (charging a person with some
offense by prosecution).
 (b) Second Tier
 This is a Crown court only, but High Court judges sit there on a regular basis to hear criminal cases, as
well as Circuit Judges and recorders.
 All categories of crime triable on indictment can be tried here.
 (c) Third Tier
 This is staffed only by Circuit Judges and Recorders.
 The most serious cases, such as murder, manslaughter and rape are not usually tried here as there is
no High Court judge to deal with them.
 Work distributed on the class of offence
 Class I: High Court judge
- Misprision of treason and treason felony.
- Murder.
- Genocide. (The systematic killing of people on the basis of ethnicity, religion, political opinion,
social status, etc.)
- Torture, hostage-taking and offences under the War Crimes Act 1991
- an offence under the Official Secrets Acts
- Soliciting, incitement, attempt or conspiracy to commit any of the above offences.
 Class 2: High Court judge, or a circuit judge.
- Manslaughter.
- Infanticide. ( A person who murders an infant)
- Child destruction.
- Abortion (section 58 of the Offences against the Person Act 1861).
- Rape
- Sexual intercourse with a girl under 13.
- Incest with girl under 13.
- Sedition (an illegal action inciting resistance to lawful authority and tending to cause the disruption
or overthrow of the government)
- An offence under section 1 of the Geneva Conventions Act 1957
- Mutiny (Open rebellion against constituted authority)
- Piracy
 Class 3 High Court judge, a circuit judge or recorder.
- All offences triable only on indictment other than those in classes 1, 2 and 4; and
 Class 4:
- Wounding or causing grievous bodily harm with intent (section 18 of the Offences against the
Person Act 1861).
- Robbery or assault with intent to rob (section 8 of the Theft Act 1968).
- Soliciting, incitement or attempt to commit any of the above offences.
- Conspiracy at common law or conspiracy to commit any offence other than those included in
classes 1, 2 and 3.
- All offences, which are triable either way.
- Appeals and committal for sentence, judge sits alone, all others judge and jury.
 Types of cases the Crown Court deals with
 A Crown Court deals with serious criminal cases, e.g.:
- murder - robbery
- rape
 It also deals with:
- appeals against a magistrates’ court conviction or sentence
- cases passed from a magistrates’ court for trial or sentencing
 Preliminary matters
 The indictment
 This is a document which formally sets out the charges against the defendant. Although the
defendant will have been sent for trial charged with specific crimes, the indictment can be drawn up
for any offence that the witness statements reveal.

 In more complicated cases the indictment may be for several counts, as in figure below:
 Sample Indictment
DONBRIDGE CROWN COURT
The Queen v Jhon Wilkie charged as follows:
STATEMENT OF OFFENCE
Murder contrary to the common law
PARTICULARS OF OFFENCE
Jhon Wilkie on the 4th day of April 1997 murdered Abraham Lincoln
 Criminal procedure Rules

 Criminal Procedure Rules to deal with all aspects of criminal cases came into force in April 2005.
 The overriding objective of the Rules is that criminal cases be dealt with justly.
 Disclosure by prosecution and defence
 The Criminal Procedure and Investigations Act 1996 places a duty on both sides to make certain points
known to the other.
 The prosecutions, who have already given the defence statements of all the evidence they propose to
use at trial, must also disclose previously undisclosed material which in the prosecutors opinion might
reasonably be considered capable of undermining the case for the prosecution against the accused.
 This is designed to prevent the sort of miscarriage of justice which occurred in Stefan Kiszko’s case [On
August 14 1964 an 11 year old girl Lesley Molseed from Rockdale Greater Manchester was found
murdered on Rushworth moor. A 23 year old tax clerk Stefan Kiszko served 16 years in prison after
being wrongly convicted of the murder; this was described by one MP as one of the greatest
miscarriages of all time. The police kept saying "ADMIT IT AND YOU WILL BE ON YOUR WAY HOME IN
UNDER 24 HOURS" After admitting to the murder to police, Kiszko was charged with Molseed's
murder. In fact, his innocence could have been demonstrated at the trial. The pathologist who
examined Molseed's clothes found traces of sperm, whereas the sample taken from Kiszko by the
police contained no sperm, and there was medical evidence that Kiszko had broken his ankle some
months before the murder and, in view of that and his being overweight, he would have found it
difficult to scale the slope to the murder spot. The sperm findings were suppressed by the police and
never disclosed to the defence team or the jury: neither was the medical evidence of his broken ankle
nor not being able to walk properly disclosed to the court. Kiszko launched an appeal, but it was
dismissed on 25 May 1978, when Lord Justice Bridge said "We can find no grounds whatsoever to
condemn the jury's verdict of murder as in any way unsafe or unsatisfactory; the appeal is dismissed".
of the incompetence of the criminal justice system. Convicted of the (sexual) murder of a young girl in
1976, Stefan Kiszko spent 16 years in prison until he was released in 1992. He died of a heart attack the
following year at his mother's home aged 44; his mother, who had waged a long campaign to prove her

son's innocence, died six months later] through the prosecution hiding something which could help
prove the innocence of the defendant.
 The 1996 Act also imposes a duty on the defence in cases which are to be tried on indictment.
 In these, after the prosecution’s primary disclosure, the defence must give a written statement to the
prosecution setting out:
- The nature of the accused’s defence, including any particular defence on which he intends to rely
- The matters of fact on which he takes issue with the prosecution and why he takes issue
- Any point of law which he wishes to take, and the case authority on which he will be relying
 The defendant also has to give details about any alibi (a defense by an accused person purporting to
show that he or she could not have committed the crime in question) and the witnesses he intends
calling to support that alibi.
 This information allows the prosecution to run police checks on the alibi witnesses.
 Plea and case management hearing
 Under the criminal procedure rules, most cases sent to the crown court are dealt with first at a plea
and case management hearing (PCMH).
 The first purpose of a PCMH is to find out whether the defendant is pleading guilty or not guilty.
 All the charges on the indictment are read out to the defendant in open court, and he is asked how he
pleads to each charge. This process is called ‘arraignment’.
 If the defendant pleads guilty, the judge will, if possible, sentence the defendant immediately. This
means that defendants who plead guilty will not have an unnecessarily long wait for their case to come
to court.
 Where a defendant pleads not guilty the judge will require the prosecution and defence to identify the
key issues, both of fact and law that are involved in the case. He will then give any directions that are
necessary to organize the actual trial, for instance the prosecution and defence may agree that certain
witness need not attend court as their evidence is not in dispute.
 Other points such as whether it will be necessary to use a video link for any witness are also agreed on.
 The aim of the PCMH is to speed up the actual trial process and to ensure that time will not be wasted
on unnecessary points. It also allows the court to plan its lists.
 The criminal procedure rules encourage active case management. Case management in the crown
court includes:
- The early identification of the real issues
- The early identification of the needs of witnesses
- Achieving a certainty as to what must be done, by whom, and when, in particular by the early
setting of a timetable for the progress of a case
- Monitoring the progress of the case and compliance with directions
- Ensuring that the evidence, whether disputed or not, is presented in the shortest and clearest way
- Discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and
avoiding unnecessary hearing.
- Encouraging the participants to co-operate in the progression of the case and
- Making use of technology
Full criminal procedure rules are available online on the Ministry of Justice website,
www.justice.gov.uk
 The trial
 It is normal for a defendant appearing at the crown court to be represented, usually by a barrister,
although solicitor who has a certificate of advocacy can also appear at the crown court.
 Defendants can represent themselves, but there was concern over the effect this could have on
witness who were cross examined at length by a defendant in prison.
 As a result the Youth Justice and Criminal Evidence Act 1999 forbid cross-examination in person by
defendants who are charged with sexual offences or where there is a child witness.
 At the trial where the defendant pleads not guilty, the order of events will normally be:
1. The jury is sworn (stated on oath) in to try the case.
2. The prosecution will make an opening speech to the jury explaining what the case is about and
what they intend to prove.
3. The prosecution witnesses give evidence and can be cross-examined by the defence; the
prosecution will also produce any other evidence such as documents or video recording.
4. At the end of the prosecution case the defence may submit that there is no case he will direct the
jury to acquit the defendant.
5. The defence may make an opening speech provided they intend calling evidence other than the
defendant.
6. The defence witnesses give evidence and are cross-examined by the prosecution; the defendant
does not have to give evidence personally but the judge may comment on the failure to do in his
summing up to the jury.
7. The prosecutor makes a closing speech to the jury pointing out the strength of the prosecution
case.
8. The defence makes a closing speech to the jury pointing out the weaknesses of the prosecution.
9. The judge sums up the case to the jury and directs them on any relevant law.
10. The jury retires to consider their verdict in private.
11. The jury’s verdict is given in open court.
12. If the verdict is guilty the judge then sentences the accused; if the verdict is not guilty the accused
is discharged. Normally, once a defendant is found not guilty he can never be tried for that offence
again. However, the Criminal Justice Act 2003 removes this ‘double jeopardy’ rule for serious cases
if ‘new and compelling evidence’ comes to light, so that a defendant can be tried a second time.
The DPP has to consent to the reopening of investigations in the case. Once the evidence has been
found, then the prosecution has to apply to the court of appeal for the original acquittal to be
quashed. This power has been used in cases where new techniques of DNA testing now show that
a defendant who is acquitted is in fact the offender. (Billy Dunlop pleaded guilty to murdering pizza
delivery girl Julie Hogg. His acquittal was quashed after the changes in double jeopardy rule by
Criminal Justice Act 2003)

 Appeals from the Crown Court
 It is important that there should be adequate routes of appeal. The functions of an appeal process
serve not only to protect the defendant from a miscarriage of justice, but also to allow uniform
development of the law.
 Appeals by the defendant
 The defendant has the possibility of appealing against conviction and/or sentence to the Court of
Appeal (Criminal Division). So, at the end of any trial in which a defendant has been found guilty, his
lawyer should advise him on the possibility of an appeal.
 This must be done verbally at the court, or in writing within 14 days of the trial.
 It is intended to make sure that each defendant has advice within the time limits for making an appeal.
 In order to appeal, a notice of appeal must be filed at the Court of Appeal (Criminal Division) within 28-
days of conviction.
 Leave to Appeal
 An appeal that can only be pursued once you have been granted leave (permission) by the court that
will hear the appeal. Whether or not the court will grant leave depends on the facts and
circumstances of your case.
 The rules on appeals are set out in the Criminal Appeal Act 1995 and in all cases the defendant must
get leave to appeal from the court of appeal, or a certificate that the case is fit for appeal from the trial
judge.
 The idea of having to get leave is that the case is fit for appeal from the trial judge. The idea of having
to get leave is that cases which are without merit are filtered out and the courts time saved.
 The application for leave to appeal is considered by a single judge of the court of appeal in private,
although if he refuses it is possible to apply to a full court of appeal for leave.
 It is difficult to get leave (app 30% in 2008), even when a defendant gets leave to appeal that does not
mean that the actual appeal will be successful. On appeal against conviction only one third of
defendants are successful in their appeals.
 The Criminal Appeal Act 1995
 The Criminal Appeal Act 1995 simplified the grounds under which the court can allow an appeal. The
Act sates that the Court of Appeal:
a. Shall allow an appeal against conviction if they think that the conviction is unsafe; and
b. Shall dismiss such an appeal in any other case.
 Since the ECHR has been incorporated into UK law by the HRA 1998, the court of appeal has taken a
broad approach to the meaning of ‘unsafe’. In particular, a conviction has been held to be ‘unsafe’
where the defendant has been denied a fair trial.
 New evidence
 Any new evidence must appear to be capable of belief and would afford a ground for an appeal. This
has to be considered together with whether it would have been admissible at the trial and why it was
not produced at that trial.

 Court of Appeal’s powers
 The court of appeal can allow a defendant’s appeal and quash the conviction.
 Alternatively it can vary the conviction to that of a lesser offence of which the jury could have
convicted the defendant.
 As far as sentencing is concerned the court can decrease, but not increase it on the defendant’s
appeal.
 Where the appeal is not successful, the court can decide to dismiss the appeal.
 The court of appeal also has the power to order that there should be a re-trial of the case in front of a
new jury. The power was given to it in 1988, but initially was not often used, for example, in 1989 only
one re-trial was ordered. However, its use has increased with between 50 and 70 re-trials being
ordered each year.
 Appeals by the prosecution
 Originally the prosecution had no right to appeal against either the verdict or sentence passed in the
Crown court. Gradually, however, some limited rights of appeal have been given to them by
Parliament.
 Against an Acquittal
 With one small exception, the prosecution cannot appeal against a finding of not guilty by a jury.
 The exception is for cases where the acquittal was the result of the jury or witnesses being ‘nobbled’
i.e. where some jurors are bribed or threatened by associates of the defendant.
 In these circumstances, provided there has been an actual conviction for jury nobbling, the Criminal
Procedure and Investigations Act 1996 allows an application to be made to the HC for another order
quashing the acquittal.
 Once the acquittal is quashed, the prosecution could then start new proceedings for the same offence.
As yet this power has never been used.
 Referring a point of law
 However, the prosecution has a special referral right in case where the defendant is acquitted.
 This is under s 36 of the Criminal Justice Act 1972 which allows the Attorney-General to refer a point of
law to the Court of Appeal, in order to get a ruling on the law.
 The decision by the Court of Appeal on that point of law does not affect the acquittal but it creates a
precedent for any future case involving the same point of law.
 Against sentence
 Under s 36 of the Criminal Justice Act 1988 the Attorney-General can apply for leave to refer an unduly
lenient sentence to the Court of Appeal for re-sentencing.
 This power was initially available for indictable cases only, but was extended in 1994 to many triable
either way offences, provided that the trial of the case took place at a Crown Court.
 This power is used successfully in a number of cases each year. There has recently been an increase in
the number of each referral.
 One case which was referred in 2004 was that of Luan Plakici, who had been found guilty of
kidnapping, prosecuting girls for sex and living off prostitution.
 He had brought young girls for sex and living off prostitution. He had brought young girls into Britain
from Eastern Europe and then forced them to work as prostitutes. At his trial he was sentenced to ten
years imprisonment. On the Attorney-General’s reference, the Court of Appeal increased this to 23
years imprisonment.
 The main difficulty is how does the Attorney-General learn of cases which ought to be referred to
the Court of Appeal?
 In fact, about 300 cases are brought to the Attorney-General’s attention each year, with most of these
being sent to him by the Crown Prosecution Service CPS.
 It is also possible for the public to write to the Attorney-General’s office and a small number of cases a
year are reported in this way, usually by distressed relatives of the victim of the crime, who feel that
the original sentence was inadequate.
 Members of Parliament will also sometimes refer cases to the Attorney-General on behalf of
aggrieved constituents.
 Whenever a case is sent to the Attorney-General he will look through the papers on the trial and
decide whether to refer the case to the Court of Appeal.
 Appeals to the Supreme Court
 Both the prosecution and the defence may appeal from the Court of Appeal to the Supreme Court SC,
but it is necessary to have the case certified as involving a point of law of general public importance,
and to get leave to appeal, either from the SC or from the COA.
 There are very few criminal appeals heard by the SC. In 2003 there were 22 petitions for leave to
appeal considered, but leave was granted in only seven of these.
 Reference to the European Court of Justice ECJ
 Where a point of European law is involved in a case it is possible for any court to make a reference to
the ECJ under Article 177 of the Treaty of Rome.
 However, this is a fairly rare occurrence in criminal cases, as most of the criminal law is purely domestic
and not affected by EU law.
 The Criminal Cases Review Commission CCRC
 The Criminal Cases Review Commission (CCRC) is an independent public body that was set up in March
1997 by the Criminal Appeal Act 1995. Our purpose is to review possible miscarriages of justice in the
criminal courts of England, Wales and Northern Ireland and refer appropriate cases to the appeal
courts. The Commission is based in Birmingham and has about 90 staff, including a core of about 50
caseworkers, supported by administrative staff.
 There are eleven Commissioners, appointed in accordance with the Office for the Commissioner for
Public Appointments' Code of Practice. They work with the Senior Management Team to ensure the
Commission runs efficiently.
 CCRC is completely independent and impartial and do not represent the prosecution or the defence.
 Aims of CCRC
- To enhance public confidence in the criminal justice system, to give hope and bring justice to those
wrongly convicted, and based on our experience to contribute to reform and improvements in the law

- To investigate cases as quickly as possible and with thoroughness and care
- To work constructively with our stakeholders and to the highest standards of quality
- To treat applicants, and anyone affected by our work, with courtesy, respect and consideration
- To promote public understanding of the Commission’s role
3. Youth courts
 Young offenders aged 10-17 are dealt with in the Youth Court which is a branch of the Magistrates
court. Children under the age of 10 cannot be charged with a criminal offence.
 There are some exceptional cases in which young offenders can be tried in the Crown Court. These are
cases where the defendant is charged with murder or manslaughter, rape, and causing death by
dangerous driving. In addition it is possible for those aged 14 and over, to be sent to the Crown Court
for trial in any case where they are charged with a serious offence.
 The Youth Court sits in private, with only those who are involved in the case allowed into the court
room.
 Members of the press may be present, but they cannot publish the name of any young offender or
other information which could identify him, such as address or school.
 The magistrates who sit on the bench in these courts must be under 65 and have special training to
deal with young offenders.
 There must be at least one female magistrate and one male magistrate on the bench.
 The procedure in the court is less formal than in the adult courts and the parents or guardian of any
children less than 16 yrs. of age are required to be present for the proceedings. The court can also ask
parents of those aged 16 or 17 to attend.
 Constitution
 A youth court has either:
 3 magistrates  a district judge
 There isn’t a jury in a youth court.
 How youth courts are different from adult courts
 Youth courts are less formal than adult courts, e.g.:
 members of the public are not allowed in to the court (unless they get permission)
 you are called by your first name
 Types of cases a youth court deals with
 A youth court deals with cases like:
 theft and burglary
 anti-social behavior
 drugs offences
 For serious crimes, like murder or rape, the case starts in the youth court but will be passed to a Crown
Court.
 Sentences a youth court can give
 The court can give a range of sentences including:
 community sentences
 Detention and Training Orders carried out in secure centers for young people
 Appealing a sentence
 If you disagree with the court’s verdict, you may be able to appeal. Court staff can give you information
on how to appeal.
 Court of Appeal (criminal division)
 The Court of Appeal consists of 2 divisions, the Criminal Division and the Civil Decision. Decisions of the
Court of Appeal may be appealed to the Supreme Court (formerly the House of Lords).
 Criminal Division
 The Criminal Division of the Court of Appeal hears appeals from the Crown Court.
 The Court of Appeal deals with civil and criminal appeals in England and Wales. Civil appeals from the
High Court and the County Court are dealt with, as well as from the Employment Appeal Tribunal and
the Lands Tribunal.
 Criminal appeals include appeals against convictions in the Crown Court, and points of law referred by
the Attorney General following acquittal in the Crown Court or where the sentence imposed was
unduly lenient.
 Jurisdiction
 The Court of Appeal Criminal Division
 Hears appeals from Crown Court, or
 From convictions in magistrates' court but where defendant has been sentenced by the Crown Court.
 Appeals against conviction on matters of law may be made as of right, but leave of the court is needed
for other reasons.
 Appeals against sentence may only be made with leave.
 If leave refused, convicted person may appeal to the Home Secretary, who has the power to refer the
case back to the Court of Appeal.
 Powers
 Dismiss ("quash") the decision
 Vary the sentence making it longer or shorter
 Order a new trial.
 Constitution
 Head = The Lord Chief Justice
 Judges = Lords Justices of Appeal,
 High Court Judges (usually from the Queen's Bench Division) if asked by the Lord Chief Justice.
 Circuit Judges approved by the 'Lord Chancellor and Secretary of State for Justice ‘and nominated by
the Lord Chief Justice.
 Must consist of at least three judges, but sometimes higher odd numbers e.g. five or seven).
 The Supreme Court
 From the Court of Appeal, a further appeal is possible to the Supreme Court if the court certifies that a
point of law of general public importance is involved

 The Supreme Court is presided over by a President and eleven Justices of the Supreme Court
 The Supreme Court is a relatively new development in the British judiciary only coming into being in
2009
 The Supreme Court of the United Kingdom is the final court in all matter under English Law. It was
established by Constitutional Reform Act 2005 and started work on 1st October 2009. It assumed the
judicial function of the House of Lords – that were carried out by Lord of Appeal in Ordinary.
 The main role of the UK Supreme Court is to hear appeals from courts in the United Kingdom's three
legal systems. It is the court of last resort and highest appellate court in the United Kingdom.
 It deals with civil and criminal appeals from the Court of Appeal or in some cases the High Court where
the case involves a point of law or is of general public importance.
 Supreme Court (formerly the House of Lords)
 In 2009 the Supreme Court replaced the House of Lords as the highest court in England, Wales and
Northern Ireland. As with the House of Lords, the Supreme Court hears appeals from the Court of
Appeal and the High Court (only in exceptional circumstances). It also hears appeals from the Inner
House of the Court of Session in Scotland. Appeals are normally heard by 5 Justices (formerly Lords of
Appeal in Ordinary, or Law Lords), but there can be as many as 9.
 Judicial Committee of the Privy Council
 This court is not the part of the hierarchy so its decisions are not binding but many of its judges are
also members of Supreme Court, their judgments are treated with respect and may often be followed.
The Judicial Committee of the Privy Council is the court of final appeal for Commonwealth countries
that have retained appeals to either Her Majesty in Council or to the Judicial Committee. It is also the
court of final appeal for the High Court of Justiciary in Scotland for issues related to devolution. Some
functions of the Judicial Committee were taken over by the new Supreme Court in 2009.

 Class Activity
 Students should overview the jurisdiction of criminal courts, role and function.
 Students should prepare presentations on each court. Appeals system and appeals courts, grounds for
appeal and pathways.
 Students should prepare flow charts showing pathways and grounds.
NOTE: Past paper question are at the end of the lecture.

Civil Court System - England and Wales
 Introduction
 Civil cases cover a wide range of matters, so there cannot be a specific definition which will cover all of
them. However, a basic definition for civil cases is to say that these arise when an individual or a
business believes that their rights have been infringed in some way, for example contract law, law of
tort, employment law, family law and company law.
 As well as dealing with different areas of law, the types of dispute that can arise within the field of civil
law are equally varied. A company may be claiming that money is owed to it (contract law); this type of
claim may be for a few pounds or for several millions. An individual may be claiming compensation for
injuries suffered in an accident (the tort of negligence), while in another tort case the claim might not
be for money but for another remedy; such as an injunction to prevent someone from building on
disputed land. Other types of court orders include the winding up of company which cannot pay its
debts or a decree of divorce for a marriage that has failed. The list is almost endless.
 Negotiation
1. Court case as a last option.
2. Try to resolve outside the court.
3. By negotiations
4. For resolving the issue discuss with other party.
5. They can resolve by refunding, by replacing or by paying the debt.
 Legal Advice
- If the other party will not settle the claim, then the aggrieved person must decide whether they are
prepared to take the matter further.
- The most common next stage is to get legal advice.
- In the common law legal advice is the giving of the formal opinion regarding the substance or
procedure of the law, usually received from a solicitor, barrister or lawyer, on payment of fee.
- This may lead to a bargaining situation where a series of letters (legal notice) written between the
parties and eventually a compromise is reached.
- However, if after all this, the other side refuses to pay the debt or compensation or whatever else
is claimed, then the aggrieved person must decide if the matter is worth pursuing any further.
- This may involve starting a court case or an alternative form of dispute resolution ADR may be
used.
- Under the UK’s legal service Act it can be provided by any person.
- Legal advice is different from legal information.
- Legal aid:
1. Assistance to people
2. Access to the court system
- Providing:
1. Equality before law
2. Right to counsel
3. Right
4. to fair trial
 Europe
 A/47 of fundamental rights of the European Union, legal aid made available to ensure access to justice.
 England and Wales
- By legal aid and advice Act 1949.
- Fee depending on the type of the case.
- Administered by legal service commission.
- Provided through private firms of solicitors and barrister’s in private practice.
 Making a Claim
- Can I settle this without going to court?
- Other ways to settle
- Letter/legal notice
- Warning: Encourage them to pay/resolve and you will not have to go to the court.
- NOTE: Keep the copy of your letter and any reply.
- Format of legal Notice. (share with students a legal notice from a practical case)
• Will I get my money? • No property
• Be able to pay • Nothing of any value
• Unemployed • Banned for trade
• Bankrupt or No money • Other debts
• The court may not be able to help you in above cases.
• But you may able to get in installments over a time.
• You should report to the concerned department. E.g. insolvency service.
 Starting a court case
 The civil justice system was reformed in 1999 following the Woolf Report.
 Parties are encouraged to give information to each other, in an attempt to prevent the need for so
many court cases to be started.
 So before a claim is issued, especially in personal injury cases, a pre-action ‘protocol’ (The original copy
of any writing, esp. an agreement) should be followed. This is a list of things to be done and if the
parties do not follow the procedure and give the required information to the other party, they may be
liable for certain costs if they then make a court claim.
 The information is usually in a letter explaining brief details of how the claim arises; why it is claimed
that the other party is at fault; details of injury or other damage; and any other relevant matters.
 The defendant is then given three months to investigate the claim and must then reply, setting out if
liability is admitted or if it is denied, with the reasons for the denial.
 If expert evidence is going to be needed, then the parties should try to agree to use one expert.
 This should lead to many claims being settled, but there will still be some which need to go to court.

 Which court to use?
 Where the decision is made to go to court, then the first problem is which court to use. The two courts
which hear civil cases are:
1. The county court
2. The High Court
 For cases where the claim is for £25000 or less, the case must be started in the County Court.
 For larger claims you can usually choose to start a case in either the County Court or the HC. This is still
the position after the Woolf Reforms.
 However, there are some restrictions laid down in the HC and County Courts Jurisdiction Order 1991.
 These are that:
- Personal injury cases for less than £50,000 must be started in the County Court
- Defamation actions must be started in the HC.
 So for most cases over £25,000 a claimant will be able to choose the most convenient court for starting
the case.
 The main points to consider in making the decision are the amount that is being claimed and whether
the case is likely to raise a complex issue of law.
 The fact that a case is started in one court does not necessarily mean that the trial will be there; cases
may be transferred from one court to the other for the actual trial, if this is thought necessary.
 Once a case is defended the case is then allocated to the appropriate track and at the same time it is
possible for it to be transferred to another court.
 Issuing a claim
 If you are using a county court, then you can choose to issue the claim in any of the 230 or so County
Courts in the country.
 If you are using HC, then you can go to one of the 20 District Registries or the main court in London.
 You need a claim form called N1 (see in the fig. below). The court office will give you notes explaining
how to fill in the form.
 Court staff can help to make sure that you have filled in the claim form properly, or you may get help
from advice Centres or a Citizens Advice Bureau.
 Once the form is filled in you should photocopy it so that you have a copy for the court, a copy for
yourself and a copy for each defendant.
 Then take the form to the court office. A court fee for issuing the claim has to be paid. This fee varies
according to how much the claim is for.

 Defending a claim
 When the defendant receives the claim form there are several routes which can be taken.
 They may admit the claim and pay the full amount. Where this happens the case ends. The claimant
has achieved what was wanted.
 In other cases the defendant may dispute the claim. If the defendant wishes to defend the claim, he or
she must send either an acknowledgement of service (Form N9) or a defence to the court within 14
days of receiving the claim.
 If only an acknowledgement of service is sent, then the defendant has an extra 14 days in which to
serve the defence.
 If the defendant does not do either of these things, then the claimant can ask the court to make an
order that the defendant as the money and costs claimed.
 Once the claim is defended the court will allocate the case to the most suitable ‘track’ or way of
dealing with the case.
 Allocation of cases
 The decision on which track should be used is made by the District Judge in the County Court or the
Master (a procedural Judge) In the HC.
 The tracks are:
1. The small claims track
- This is normally used for disputes under £5,000, except for personal injury cases and housing
cases where the limit is usually £1,000.
2. The fast track
- This is used for straightforward disputes of £5,000 to £25,000.
3. The multi-track
- This is for cases over £25,000 or for complex cases under this amount.
 To help the judge consider to which track a claim should be allocated, both parties are sent an
allocation questionnaire.
 If it is thought necessary, the judge can allocate a case to a track that normally deals with claims of a
higher value.
 Alternatively, if the parties agree, the judge can allocate a case to a lower-value track.
 For claims over £25,000 there may also be a decision to transfer the case from the county court to the
HC.
 Claims for between £25,000 and £50,000 are generally tried in the court in which the proceedings were
started.
 Claims for over £50,000 are usually tried in the HC, though they can be tried in the County Court.

Value of claim Court in which case will
usually be tried
Under £5,000 County court small claim
procedure
£5,000 to £25,000 County court fast track
procedure
£25,000 to £50,000 Either HC or county court
multi-track procedure
Over £50,000 HC multi-track procedure
 Small claims
 Clearly, it is important to have a relatively cheap and simple way of making a claim for small amount of
money; otherwise the costs of the action will be far more than the amount in dispute.
 For that reason the small claims procedure was started in 1973, and originally only claims of up to £75
could be made there.
 The limit has since been raised several times, especially in 1991 when the limit was increased to
£1,000; in 1996 after the Woolf Report the limit was increased to £3,000; and in 1999 it became
£5,000.
 Small claims procedure
 People are encouraged to take their own case so that costs are kept low. However, under the new
rules small claims cases are started in the same way as all other cases.
 This makes it more difficult for the ordinary person. The use of lawyers is discouraged, as, though it is
possible to have a lawyer to represent you at a small claims hearing, the winner cannot claim the costs
of using a lawyer from the losing party.
 An alternative to using a lawyer is to have a ‘lay representative’, that is a non-legally qualified person,
to help out your case.
 Small claims cases used to be heard in private, but under the Woolf Reforms they are now heard in an
ordinary court.
 The procedure still allows the District Judge to be flexible in the way he hears the case but the process
is no longer as informal as under the previous system.
 District judge are encouraged to be more inquisitorial and are given training in how to handle small
claims cases, so that they will take an active part in the proceedings, asking questions and making sure
that both parties explain all their important points.
 Advantages of small claims
1. The cost of taking proceedings is low.
2. If you lose you will not have to pay the other person’s lawyers costs.
3. People do not have to use lawyers, but can take the case themselves.
4. The procedure is quicker than for other cases.
5. The district judge should help the parties to explain their case.
 Disadvantages of small claims
1. For case over £1,500, an allocation fee has to be paid, though this is now only £35.
2. Legal funding for paying for a lawyer is not available, though it may be possible to fund the case
through a ‘no win, no fee’.
3. Where the other side is a business they are more likely to use a lawyer. This can put an
unrepresented claimant at a disadvantage.
4. Research by John Baldwin has shown that District Judges are not always very helpful to
unrepresented claimants.
5. Even when you win your case it does not mean that you will get your money from the defendant.
Only about 60 per cent of successful claimants actually received all the money awarded by the
court.
 County court
 There are about 230 county courts, so that most major towns will have a court. The courts can try
nearly all civil cases. The main types of cases are:
 All contract and tort claims
 All cases of the recovery of land
 Disputes over partnerships, trusts and inheritance up to a value of £30,000.
 In addition some county courts have the jurisdiction to hear divorce cases, bankruptcy cases, low level
claims in admiralty cases and matters under the Race Relations Act 1976.
 The county court can try small claims, fast track and multi-track cases and its workload is much
greater than the HC.
 Despite the large claims issued, only a very small number of cases actually proceed to a trial.
 Cases will nearly always be heard in open court and members of the public are entitled to attend; the
exceptions to this are cases involving family matters, for example maintenance hearings, and
proceedings under the Children Act 1989, which are heard in private.
 The whole hearing is more formal and many claimants and defendants will be represented, usually by
a solicitor but sometimes by a barrister.
 The winner of a case may claim costs, including the cost of legal representation.
 All this makes a case in the County Court much more expensive than in the small claims track.
 John Baldwin’s research found that 40 per cent of those taking cases in the main county court viewed
it as an inappropriate and disproportionally expensive way of resolving their dispute.
 Cases are heard by Circuit judges, though in rare cases it is possible for a jury of eight to sit with the
judge.
 Fast track cases
 Claims between £5,000 and £25,000 needed a faster and cheaper method of dealing with them.
 In 1998, before the Woolf Reforms, the statistics for the year show that the average wait for cases in
the county court was 85 weeks from the issue of the claim to the actual hearing in court.
 As well as delay, cases were too expensive. Indeed, the Woolf Report found that the costs of cases
were often higher than the amount claimed.
 As a result of this the new fast track idea was brought in.

 Once a case is defended, the District Judge at the County court will send out the allocation
questionnaire and then make the decision of whether the case is suitable for the fast track.
 Personal injury cases and housing cases over £1,000 and up to £25,000 are also dealt with as fast track
cases.
 Fast track means that the court will set down a very strict timetable for the pre-trial matters.
 This aimed at preventing one or both sides from wasting time and running up unnecessary costs.
 Once a case is set down for hearing, the aim is to have the case heard within 30 weeks. The new
timetables have lessened the delays considerably.
 In 2008 the wait from issue of claim to hearing was 48 weeks. This is a nine-month improvement on
the pre-Woolf era.
 However, the total time of 48 weeks is still quite a long time to wait for a trial of what is meant to be a
fast track case.
 The actual trial will usually be heard by a Circuit Judge and take place in open court with a more formal
procedure than for small claims.
 In order to speed up the trial itself, the hearing will be limited to a maximum of one day and the
number of expert witnesses restricted, with usually only one expert being allowed.
 Multi-track cases
 Claims for more than £25,000 are usually allocated to the multi-track. If the case was started in a
county court then it is likely to be tried there, though it can be sent to the HC, especially for claims of
over £50,000.
 The case will be heard by a Circuit judge who will also be expected to manage the case from the
moment it is allocated to the multi-track route.
 The judge can set timetables.
 It is even possible to ask the parties to try any alternative method of dispute resolution ADR in an
effort to prevent waste of costs.
 High court HC
 The HC is based in London but also has judges sitting at 26 towns and cities throughout England and
wales.
 It has the power to hear any civil case and has three divisions each of which specializes in hearing
certain types of case. These divisions are the
1. The Queen’s bench Divisions QBD
2. The chancery Division
3. The family division
 Queen’s bench Division
 The president of the Queen’s Bench division QBD is the Lord Chief Justice and there are over 70 judges
sitting in the division.
 It deals with contract and tort cases where the amount claimed is over £50,000, though, as seen earlier
in this chapter, a claimant can start an action for any amount of £25,000 and above.
 Only multi-track cases should be dealt with in the HC.

 Also, certain types of action are thought to be more suitable for the HC than the County Court.
 Usually cases are tried by a single judge but there is a right to jury trial for fraud, libel, slander,
malicious prosecution and false imprisonment cases.
 Where a jury is used there will be 12 members.
 Cases in the HC are expensive and can take a long time. The average time between issuing a claim and
the trial is about three years.
 Cases are expensive because of the need to use lawyers and also because of court fees.
 Queen’s Bench Division: Administrative Court
 The Administrative Court of the Queen’s Bench Division hears judicial reviews, statutory appeals and
application, application for habeas corpus, and applications under the Drug Trafficking Act 1984 and
the Criminal Justice Act 1988. It also oversees the legality of decisions and actions of inferior courts and
tribunals, local authorities, Ministers of the Crown, and other public bodies and officials.
 Queen’s Bench Division: Admiralty Court
 The Admiralty Court of the Queen’s Bench Division deals with shipping and maritime disputes,
including collisions, carriage of cargo, limitation, and mortgage disputes. The Court can arrest vessels
and cargoes and sell them within the jurisdiction of England and Wales.
 It also decides disputes over salvage (act of rescuing a ship) rights when a ship has sunk.
 The judge in the Admiralty court sits with two lay assessors, who are chosen from Masters of Trinity
House (Merchant Navies and leading figures in the shipping industry), and who are there to advise the
judge on questions of seamanship and navigation.
 Also, in 1998 the Technology and Construction Court was set up to take over from what had been
called the Official Referee’s Court.
 This court also deals with any cases in the Chancery or The QBD which involve technically complex
issues, such as building and engineering disputes or litigation over computers.
 Queen’s Bench Division: Commercial Court/ Mercantile Court
 The Commercial Court of the Queen’s Bench Division deals with cases arising from national and
international business disputes, including international trade, banking, commodities, and arbitration
disputes. This is a special court which is part of the QBD.
 This court has specialist judges to deal with insurance, banking and other commercial matters, for the
losses caused by large insurance claims.
 In this court a simplified speedier procedure is used and the case may be decided on documentary
evidence.
 The Mercantile Court of the Queen’s Bench Division also deals with claims of lesser value and
complexity than those heard by the Commercial Court.
 Queen’s Bench Division: Technology and Construction Court
 The Technology and Construction Court of the Queen’s Bench Division is a specialist court that deals
principally with technology and construction disputes that involve issues or questions which are
technically complex, and with cases where a trial by a specialist TCC judge is desirable.


 Judicial review
 The QBD also has important supervisory functions over inferior courts and other bodies with decision-
making powers, such as Government ministers or local councils.
 Judicial review is concerned with whether a decision-making process has been carried out legally, as
distinct from the merits of the decision in question.
 Chancery division
 The Lord Chancellor is technically the head of the division, but for practical purposes the Vice-
Chancellor is the head.
 There are about 17 HC judges assisting in the division.
 The Divisional Court of the Chancery Division deals with cases concerning equity, trusts, contentious
probate, tax partnerships, bankruptcy and land. The main business of this division involves disputes
concerned with such matters as insolvency, for both companies and individuals, the enforcement of
mortgage, disputes relating to trust property, copy right and patents, intellectual property matters and
contested probate actions.
 The criticisms of cost and delay which apply to the QBD apply equally to the Chancery division.
 This deals with only a small number of appeals, mainly from decisions made by Tax Commissioners on
the payment of tax and appeals from decisions of the County Court in bankruptcy cases.
 Chancery Division: Companies Court
 There is also a special companies court in the division which deals mainly with winding up companies.
 Juries are never used in the chancery division and cases are heard by a single judge.
 The Companies Court of the Chancery Division deals with cases concerning commercial fraud, business
disputes, insolvency, company management, and disqualification of directors.
 Chancery Division: Patents Court
 The Patents Court of the Chancery Division deals with cases concerning intellectual property,
copyright, patents and trademarks, including passing off.
 Family Division
 The head of this division is the president and 19 HC judges are assigned to the division.
 It has jurisdiction to hear ward ship cases and all cases relating to children under the Children Act 1989.
It also deals with other matters regarding the family, such as declarations of nullity of marriage, and
grants probate in non-contentious probate cases.
 Cases are heard by a single judge and, although juries were once used to decide defended divorce
cases, juries are not now used in this division.
 The main function of this court is to hear appeals from the decisions of the magistrates regarding
family matters and orders affecting children.
 The Divisional Court of the Family Division deals with all matrimonial matters, including custody of
children, parentage, adoption, family homes, domestic violence, separation, annulment, divorce and
medical treatment declarations, and with uncontested probate matters.

 The Woolf Reforms
 The present system of civil justice is based on the reforms recommended by Lord Woolf in his report
Access to justice 1996.
 In 1995 Lord Woolf stated that a civil justice system should:
 Be just in the results it delivers
 Be fair in the way it treats litigants
 Offer appropriate procedure at a reasonable cost
 Deal with cases at a reasonable speed
 Be understandable to those who use it
 Provide as much certainty as the nature of particular cases allow
 Be effective, adequately resourced and organized.
 The report found that virtually none of these points was being achieved in the civil courts, and
criticised the system for being unequal, expensive, slow, uncertain and complicated. The report
contained 303 recommendations. The most important ones proposed:
 Extending small claims up to £3,000 (from the then limit £1,000)
 A fast track for straightforward cases up to £10,000
 A multi-track for cases over £10,000, with capping of costs
 Encouraging the use of alternative dispute resolution ADR
 Giving judges more responsibility for managing cases
 More use of information technology
 Simplifying documents and procedures and having a single set of rules governing proceedings in
both HC and the Count court
 Shorter timetables for cases to reach court and for lengths of trials.
 The proposal to increase the small claims limit to £3,000 was implemented before the full report was
issued.
 Before committing itself to the remainder of the reforms, the Labour Government, which came to
power in 1997, commissioned the ‘Middleton Report as a second opinion.
 This supported most of the Woolf Proposals, but suggested that the small claims limit should be raised
to £5,000 and the fast track route to £15,000.
 As a result of the Woolf and Middleton Reports, the civil justice system was radically reformed in April
1999.
 The civil procedure rules
 From 26 April 1999, new civil procedure rules were brought into effect.
 These use much simpler language than previous rules.
 They also changed the vocabulary used in court case. For example, anyone starting a civil case is now
called the claimant; previously the term used in most cases was the plaintiff.
 The document used to start cases is a claim form, rather than a writ or a summons.

 Overriding objective
 Rule 1.1 of the Civil Procedure Rules states that the overriding objective is to enable the court to deal
with case s justly. This means that courts should try to:
 Ensure that the parties in any case are on an equal footing
 Save expense
 Deal with case in a way which is proportionate to:
- The amount involved (that is avoid the costs of the case being more than the amount
demand)
- The importance of the case (for example the, is there a major point of law involved?)
- The complexity of the issues in the case
 Ensure that the case is dealt with quickly and fairly
 Allocate an appropriate share of the courts resources (so smaller claims do not take up more
time than they justify).
 Judges have more control over proceedings than previously. They can set timetables and make sure
that the parties do not drag out a case unnecessarily.
 Rule 1.4 of the Civil procedure Rules explains that as well as fixing timetables, active case management
by judges include:
 Identify the issues at an early stage
 Deciding which issues need investigation and trial
 Encouraging the parties to use ADR if this is appropriate
 Dealing with any procedural steps without the need for the parties to attend court
 Giving directions to ensure that the trial of a case proceeds quickly and efficiently.
 Applying the rules in court
 Case management has led to the issues in cases being identified more quickly, so that more cases are
settling without the need for a trial.
 In some cases judges have stayed cases for mediation to be tried. Use of ADR has been encouraged by
the courts making cost orders against those who unreasonably refuse to attempt ADR.
 The judges also apply the timetables strictly. This was illustrated by Vinos v Marks and Spencer plc
(2000). In this case the claimant’s solicitors had issued the claim just within the time limit and had told
the defendant’s insurers that they had done so. However, they were then nine days late in serving that
claim on the defendant. The claim was struck out by the court because of this.
 Effect of the Woolf Reforms
 The effect of Woolf reforms are as below:
1. The culture of litigation had changed for the better, with co-operation between the parties improving
2. There were mixed views over whether delay had been reduced
3. Case management conferences were felt to be one of the major successes of the civil procedural rules
4. There was a more uniform procedure across the country
5. There was a very high rate of settlement, often more than 60 %, and in some courts over 80%

6. Process and sanctions attached to it was found to be effective, although it was felt to be too
complicated and difficult to explain to the client
7. There was little or no increase in ADR and out of court mediation: in practice judges rarely stay cases
for mediation, and ADR had not become incorporated into the court process
8. Costs increased overall and the front-loading of costs, with costs in fast0-track cases being
disproportionate
9. The courts were still under- resourced and the IT systems primitive compared with those used by
practitioners
 Appellate courts
 These are courts which hear appeals from lower courts. The main appellate courts are the Divisional
Courts, the Court of Appeal and the Supreme Court.
 Divisional courts
 Each division of the HC has what is called a Divisional Court which has the power to her appeals from
inferior courts and tribunals.
 For most appeals two or three of the judges from the particular division will sit together to hear the
case.
 Queen’s bench Divisional Court
 The most important of the divisional Courts is the QBD. This has two main functions:
1. It hears appeals by way of case stated from criminal cases decided in the magistrate’s court.
2. It has supervisory powers over inferior courts and tribunals and also over the actions and decisions of
public bodies and government ministers. This process is known as judicial review and for this purpose
the court has the power to make what are called prerogative orders. These orders are a mandatory
order, which is an order to perform a duty; a prohibitory order, which is an order to prevent an inferior
court from hearing a case which it has no power to deal with; and a quashing order, which removes the
decision to the QBD so that its legality can be enquired into and the decision quashed if it is found to
be invalid.
 The QBD also hears applications for habeas corpus from those who allege that are being unlawfully
detained. This is an important way of protecting the right to liberty.
 Court of Appeal (civil division)
 The Court of Appeal is the highest court within the Senior Courts of England and Wales, and deals only
with appeals from other courts or tribunals.
 It is divided into two Divisions, criminal and civil, and is based at the Royal Courts of Justice in London.
 The Court of Appeal was set up by the Judicature Act 1873 and was initially intended to be the final
court of appeal.
 However the position of the House of Lords as the final appellate court was re-instated by the
Appellate Jurisdiction Act 1876.
 The judges of the Court of Appeal are the Lord Chief Justice, the Master of the Rolls, the President of
the Queen’s Bench Division, and the President of the Family Division, the Chancellor of the High
Court and the Lord or Lady Justices (currently 38 in number).

 The civil division is the main appellate court for civil cases and it is headed by the master of the Rolls.
 The court of appeal civil division mainly hears appeals from the following courts:
 All three divisions of HC
 The county court for multi-track cases
 The upper ties tribunal
 Permission to appeal
 Permission to appeal is required in most cases. It can be granted by the lower court where the decision
was made or by the court of appeal.
 Permission to appeal will only be granted where the court considers that an appeal would have a real
prospect of success or that there was some other compelling reason why the appeal should be heard.
 Permission to appeal is not required in cases where the liberty of the individual is in issue.
 Supreme Court
 This is the final court of appeal in the English legal system.
 It hears appeals from the Court of Appeal, the Divisional Courts and, on rare occasions, direct from the
HC under what are called the ‘leapfrog’ provisions.
 Appeals are heard by the justices of the Supreme Court. They have to sit as an uneven number panel,
so there can be 3, 5, 7, or even 9 judges sitting to hear an appeal.
 Prior to 2009 the final court of appeal was the House of Lords.
 Permission to Appeal
 On an appeal from the Court of Appeal or the divisional Courts it is necessary to be given permission to
appeal to the Supreme Court.
 This permission can be given by either the Supreme Court or the lower court.
 In leapfrog cases from the HC under the Administration of Justice Act 1969, not only must the Supreme
Court give permission to appeal, but the trial judge must also grant a certificate of satisfaction.
 This will be done only f the case involves a point of law of general public importance which either
involves the interpretation of a statute or is one where the trial judge is bound by previous decision of
the Court of Appeal or Supreme Court.
 This would mean that an appeal to the Court of Appeal would be of no effect as it would also be bound
by that previous decision.
 Leapfrog appeals are rare, with permission to appeal being asked for in only two or three cases each
year.
 The number of appeals heard by the Supreme Court is small; usually about 60 cases per year involving
civil law with about three-quarters of these involving a question of statutory interpretation.
 Appeal routes in civil cases
 Appeals from the county court
 The appeal route from the County Court is set out in part 52 of the civil procedure rules. This means
that generally:
 For fast track cases dealt with by a District Judge the appeal is heard by a circuit judge

 For fast track cases dealt with by a circuit judge the appeal is heard by a HC judge
 For final decisions in multi-track cases heard in the county court (whether by a circuit judge or
by a district judge) the right of appeal is to the court of Appeal
 Appeals from small claims
 In October 2000 appeals against decisions in small claims cases became possible.
 This right of appeal was introduced in order to comply with Article 6 (the right to a fair trial) of the
ECHR.
 The appeal routes are the same as for fast track cases.
 This means that the appeal is to the next judge up in the hierarchy, so if the case was tried by a District
Judge the appeal is to Circuit judge; if the case was dealt with by a circuit judge then the appeal is to a
HC judge.
 Second Appeals
 Where the first appeal is heard by a circuit judge or a HC judge, then there is a possible further appeal
to the court of Appeal.
 However, this will only happen in exceptional cases as s55 of the Access to Justice Act 1999 states that:
 ‘no appeal may be made to the court of Appeal…. Unless the Court of Appeal considers that
a) The appeal would raise an important point of principle or practice, or
b) There is some other compelling reason for the Court of Appeal to hear it.’
 Appeals from the High Court
1. From a decision in the HC the appeal usually goes to the court of Appeal (civil division).
2. In rare cases there may be a leapfrog appeal direct to the Supreme Court under the Administration of
Justice Act 1969. Such an appeal must involve a point of law of general public importance which is
either concerned with the interpretations of a statue or which involves a binding precedent of the
Court of Appeal or the Supreme Court which the trial judge must follow. In addition the Supreme Court
has to give permission to appeal.
 Further appeals
 From a decision of the court of appeal there is a further appeal to the Supreme Court but only if the
Supreme Court or Court of Appeals gives permission to appeal.
 Also note that if a point of European law is involved the case may be referred to the European Court of
Justice under Article 234 of the Treaty of Rome. Such a referral can be made by any English Court.
 The Supreme Court
 The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the
United Kingdom.
 There had, in recent years, been mounting calls for the creation of a new free-standing Supreme Court
separating the highest appeal court from the second house of Parliament, and removing the Lords of
Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to
do so.
 Before the Supreme Court was created, the 12 most senior judges – the Lords of Appeal in Ordinary, or
Law Lords as they were often called – sat in the House of Lords.
 The House of Lords was the highest court in the land – the supreme court of appeal. It acted as the
final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales
and Northern Ireland in criminal cases. Its decisions bound all courts below.
 As members of the House of Lords, the judges not only heard cases, but were also able to become
involved in debating and the subsequent enactment of Government legislation (although, in practice,
they rarely did so).
 The creation of a new Supreme Court means that the most senior judges are now entirely separate
from the Parliamentary process.
 It is important to be aware that the new Supreme Court is a United Kingdom body, legally separate
from the England and Wales courts as it is also the Supreme Court of both Scotland and Northern
Ireland. As such, it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as
head of the judiciary of England and Wales.
 Remedies in civil cases
 Damages
 The main remedy awarded by the courts is an order that an amount of money be paid to the claimant.
This is called an award of damages.
 The object of an award of damages in cases of breach of contract is to put the claimant in the same
position, as far as money can do it, as he would have been had the contract not been broken.
 There is a similar aim in tort cases of awarding damages to place the claimant in the same position as if
the tort had not been committed.
 Obviously there are many situations where monetary compensation does not really compensate for
the loss caused by the breach of contract or the trot.
 This is particularly true of tort cases where the claimant has suffered serious personal injury and may
be left with a permeant disability.
 Special damages
 This is the term for damages which can be calculated specifically.
 For example, in an action for the tort of negligence following a car crash, it is possible to set out exactly
the cost of repairing the car, hiring a replacement while your car is off the road and replacing damaged
clothing.
 It will also be possible to calculate the loss of earnings that has already taken place because of the
injuries, though any sick pay must be taken into account.
 General damages
 These are matters which cannot be neatly itemized. In personal injury cases this will include an
amount for pain and suffering and also for future loss of earnings.
 It will also include an amount for the cost of nursing or other necessary assistance, or for adapting a
home to accommodate a disabled person.
 In 1994 a 37-year old woman who was left paralyzed by a car crash was awarded £3.4 million to
compensate her for her injuries, loss of future earnings and the cost of care as she needed two
permanent nurses.

 Awarding a lump sum like this is not always the most satisfactory way of dealing with monetary
compensation.
 Nominal damages
 Where the claimant wins the case but cannot show that there has been actual loss, it is open to the
court to award a small amount of money in recognition that the claimant’s rights where infringed.
 This usually happens in actions for torts which are actionable per se, that is of themselves or just
because they happened.
 An example is the tort of trespass to land, where the claimant may establish that the defendant has
walked across the claimant’s field without permission or lawful excuse.
 This is enough for the court to award nominal damages to the claimant.
 Of course, if in the process of crossing the field the defendant had damaged a gate then the claimant
would also be entitled to specific damages to cover the cost of repairing the gate.
 Exemplary damages
 These are also called punitive damages, and this is exactly what they are – damages which are
intended to punish the defendant, not merely compensate the claimant.
 Exemplary damages are not available for breach of contract and are only awarded in tort cases in the
following situations:
 Where they are authorised by statute
 Where there has been oppressive, arbitrary or unconstitutional action by servants of the Government
 Where the defendant intended to make a profit from the tort which would be greater than any
compensation due from the tort.
 Exemplary damages are very rarely awarded.
 Equitable remedies
 As these remedies are developed by equity and the key factor of such remedies is that they are not
given automatically.
 The court has discretion in deciding whether or not an equitable remedy should be granted.
 The major equitable remedies are inunctions, specific performance, rescission and rectification.
 Injunctions
 An injunction is a court order requiring a person to do or cease doing a specific action. Temporary
restraining orders and preliminary injunctions are temporary injunctions. They are issued early in a
lawsuit to maintain the status quo by preventing a defendant from becoming insolvent or to stop the
defendant from continuing his or her allegedly harmful actions. Choosing whether to grant temporary
injunctive relief is a discretionary power of the court. Permanent injunctions are issued as a final
judgment in a case. Failure to comply with an injunction may result in being held in contempt of court.
 Specific performance
 "Specific performance" is a specialized remedy used by courts when no other remedy (such as money)
will adequately compensate the other party. If a legal remedy will put the injured party in the position
he or she would have enjoyed had the contract been fully performed, then the court will use that
option instead. The most common reason courts grant specific performance is that the subject of the

contract is unique. When a contract is for the sale of a unique property, mere money damages will not
remedy the purchaser's situation.
 Example: Rina offers to buy Beth's house and Beth accepts, but later decides to keep the property. Real
estate is considered to be unique. Since there is no other piece of property or house exactly like Beth's,
Rina may be entitled to specific performance on the contract. Beth would be compelled to go through
with the sale.
 Courts will enforce specific performance only if the underlying contract was fair and equitable. Other
commodities that courts have found to support specific performance include works of art, custom-
made products, and goods in short supply.
 Rescission
 A rescission is the cancellation of a contract. A rescinded contract is terminated from the beginning –
as though the contract never existed – so a rescission requires that all parties be brought back to the
position they were in before entering into the contract. This means any benefit received as part of the
contract, such as money, must be returned. Rescission can occur as a result of innocent or fraudulent
representation, mutual mistake, and lack of legal capacity, an impossibility to perform a contract not
contemplated by the parties, or duress and undue influence. For example, assume you agreed to sell
and the buyer agreed to buy two acres of land that you thought you owned. Later, it turns out that you
did not have title to the property. Rescission would be the proper remedy.
 Rectification
 Rectification of instrument In English law. To rectify is to correct or define something which is
erroneous or doubtful. Thus, where the parties to an agreement have determined to embody its terms
in the appropriate and conclusive form, but the instrument meant to effect this purpose (e. g., a
conveyance, settlement, etc.) is, by mutual mistake, so framed as not to express the real intention of
the parties, an action may be brought In the chancery division of the high court to have it rectified.

 The Court of Justice of the European Union
 If your problem is one which is covered by European law, your case may be referred to the Court of
Justice of the European Union (CJEU), based in Luxembourg. This may happen if European legislation
has not been implemented properly by a national government, if there is confusion over its
interpretation, or if it has been ignored.
 You must first pursue your case through the national legal system, but the national court can (and in
some cases must) refer an issue to the CJEU for guidance (a ruling). The case is then sent back to the
national court to make a decision based on the ruling of the CJEU.
 The European Court of Human Rights
 The European Court of Human Rights, based in Strasbourg, deals with cases in which a person thinks
their human rights have been contravened and for which there is no legal remedy within the national
legal system.

 Comparison of Criminal courts and civil courts.
 Criminal Courts  Civil Courts
 European Court of Human Rights  Court of Justice of the European Union
 Adjudicates alleged human rights violations of  The Court of Justice comprises three courts:
the ECHR.  European Court of Justice ("ECJ"): answers
 If you exhaust your rights of appeal questions of European law in response to
domestically, the ECtHR in Strasbourg may be queries referred to it by national courts and
your last hope. appeals from the General Court (see below);
 Note, however, that there's no right of appeal note, however, claimants have no direct
from UK courts to the ECtHR. Cases are means to appeal to the ECJ from UK courts.
entirely separate and ultimately it's left to the  General Court of the European Union
UK government to decide what action to take (formerly known as the Court of First
following an adverse ruling. Instance): like the ECJ it has jurisdiction to
 That said, UK courts must take into account decide questions of European law, but unlike
ECtHR rulings when applying the ECHR, and the ECJ claimants can bring direct actions in
convention rights found in the Human Rights the Court; another difference is that UK courts
Act. No court may "without strong reason cannot refer questions to it; as above,
dilute or weaken the effect of the Strasbourg however, claimants have no direct means to
case law". appeal to the General Court from UK courts;
appeals from the Court go to the ECJ (see
above).
 Civil Service Tribunal: specialist court that
decides disputes between the EU and its civil
service; no interaction with UK courts as such,
but its decisions are subject to appeal on
questions of EU law to the General Court, and
sometimes the ECJ, and their decisions on EU
law are binding on UK courts
 Supreme Court of the United Kingdom  Supreme Court of the United Kingdom
 The final court of appeal for all criminal cases  The final court of appeal for all civil cases in
arising in England, Wales and Northern the United Kingdom
Ireland, but not Scotland.
 ----------------------------
 Judicial Committee of the Privy Council
 In cases involving "devolution issues", you may
have a right to appeal above the High Court of
Justiciary to the Privy Council, located in the
Supreme Court Building in London.
 Court of Appeal, Criminal Division  Court of Appeal, Civil Division
 In England and Wales, and Northern Ireland,  In England and Wales, and Northern Ireland,
hears appeals from the Crown Courts. hears appeals from the High Court, tribunals,
Decisions may be taken by a single judge or and some cases from the county courts.
following a full hearing. If a single judge  ----------------------------
dismisses your appeal, you may take your case  Inner House of the Court of Session
to the Criminal Cases Review Commission,  Final court of appeal for civil claims in Scotland
who can refer the case back to the Court of before matters goes to the Supreme Court for
Appeal for a full hearing. the United Kingdom. Note, in rare cases, the
 ---------------------------- Court may also stand as a court of first
 High Court of Justiciary instance.
 Sitting as the Court of Criminal Appeal, is
normally the final court of appeal for criminal
cases arising in Scotland (although see box
above regarding jurisdiction for "devolution
issues"). May also sit as a court of first
instance (see two boxes down).
 Crown Courts  High Court of Justice
hear appeals from Magistrates' Courts. hear higher value claims.
 If a Crown Court dismisses your appeal, you  Comprises three divisions and multiple courts:
may take your case to the Criminal Cases  High Court Queen's Bench Division: handles
Review Commission, which may refer your contract and tort cases; also houses the:
case to the Court of Appeal.  Commercial Court: deals with insurance,
 The Crown Court also acts as a court of first banking, and other commercial matters;
instance for serious criminal offences (see box  Mercantile Court: processes lower value/less
below). complex commercial cases not handled by the
 or Commercial Court;
 High Court of Justice
 In England and Wales, and Northern Ireland,  Admiralty Court: responsible for shipping
the Administrative Court of the High Court disputes;
Queen's Bench Division is technically classed  Technology and Construction Court: as its
as a civil court (see box to the right) but it still name suggests, handles technically complex
conducts judicial review of decisions/actions in matters;
criminal cases in the Magistrates' Courts and  Administrative Court: looks at
Crown Courts (see box below). decisions/actions of inferior courts, tribunals,
 ---------------------------- local authorities, government ministers and
 High Court of Justiciary other public bodies/officials (which is known
 Sitting as a court of first instance for more as "judicial review");
serious and complex Scottish criminal cases.  High Court Chancery Division: houses the:
 If the Court dismisses your appeal, you may  Companies Court: deals with commercial
take your case to the Scottish Criminal Cases fraud, business disputes, insolvency, company
Review Commission, which may refer your management, and disqualification of directors;
case to the Criminal Court of Appeal (see two  Divisional Court: processes cases concerning
boxes up). equity, trusts, probate, tax, partnerships,
 or bankruptcy and land;
 Outer House of the Court of Session  Patents Court: handles intellectual property
 As above, technically a civil court, but it disputes (not just patents, but also copyright,
conducts judicial review of decisions/actions in trademarks, etc.).
Scottish criminal cases below the High Court  High Court Family Division: this division houses
of Justiciary. only one court, the Divisional Court, which is
responsible for processing family law cases,

including matrimony, child custody, etc.
 ----------------------------
 Sheriffs Principal, Civil
 Hear appeals from Sheriffs' Courts (see below)
in Scotland.
 Crown Courts  County Courts
processes serious (indictable) criminal act as general trial courts for lower value
offences. Also, hears appeals from claims. Higher value claims are tried in the
Magistrates' Courts (see box above). High Court (see above).
 or  or
 Magistrates' Courts (incl. Youth Courts)  Magistrates' Courts / Family Proceedings
 Handle trials of less serious, summary (non- Court
indictable) criminal offences.  May handle issues related to maintenance,
 ---------------------------- paternity, residence, contact, and care
 Sheriffs' Court, Criminal proceedings.
 In Scotland, processes serious (indictable)  ----------------------------
criminal offences.  Outer House of the Court of Session
 If the Court dismisses your appeal, you may  General trial court for civil matters in Scotland.
take your case to the Scottish Criminal Cases Usually handles more complex and higher
Review Commission, which may refer your value claims.
case to the Criminal Court of Appeal (see two  or
boxes up).  Sheriffs' Courts , Civil
 or  General trial court for lower value, less
 District Courts complex claims. Appeals go to the Sheriff
 Justices of the Peace preside over trials of Principal or Court of Session.
relatively minor criminal offences in Scotland.  ----------------------------
 If the Court dismisses your appeal, you may  Tribunals
take your case to the Scottish Criminal Cases
Review Commission, which may refer your  There are a number of tribunals for specialist
case to the Criminal Court of Appeal (see two areas, such as employment, immigration,
boxes up). social security, pensions, child welfare, and
mental health, which have jurisdiction across
the UK.
 Appeals go to specially constituted appellate
tribunals or specific courts identified by
statute.

 The judges
 The most senior judges are the members of the Supreme Court
 They are eminent lawyers, normally drawn from the ranks of the Court of Appeal
 The other most senior judicial appointments the Lord Chief Justice, Master of the Rolls, President of
the Family Division and the Lord Justices of Appeal

 The Lord Justices are drawn from High Court judges or from barristers of at least ten years’ standing,
although solicitors are now also eligible for consideration
 The attraction in becoming a judge lies only partially in the salary
 Rather, the attraction lies in the status that attaches to holding a position at the top of one’s profession
 For many barristers, the ultimate goal is to become Lord Chief Justice, Master of the Rolls or a Justice
of the Supreme Court
 Judges thus form a socially and professionally exclusive or near-exclusive body
 This exclusivity has been attacked for having unfortunate consequences
 One is that judges are out of touch with society itself
 The male-oriented nature of the judiciary has led to claims that judges are insufficiently sensitive in
cases involving women
 The background of the judges has also led to allegations of in-built bias
 The effect of gender and social exclusivity has been a cause of concern among jurists as well as
ministers
 The background of judges
 Are overwhelmingly male and white
 The majority went to public school and then graduated from Oxford or Cambridge
 Senior judgeships are the almost exclusive preserve of barristers
 Because of these factors there has been some attempt in recent years to try and expand the type of
people who are made judges
 Judicial activism
 The deferential attitude of the courts towards government began to change in the 1960s
 Judges appeared worried at encroachments on individual liberties by governments and thus more
willing to use their powers of judicial review
 Judges increasingly found against both Labour and Conservative governments
 The number of applications for judicial review rose sharply, as did those where leave was granted
 In Conway v Rimmer in 1968, the House of Lords ruled against a claim of the Home Secretary that the
production of certain documents would be contrary to the public interest
 At the beginning of the 1980s, there were about 500 applications a year for leave to apply for judicial
review
 The figure grew throughout the decade, exceeding 1,000 in 1985, 1,500 in 1987 and 2,000 in 1990
 In the 1990s, it generally exceeded 3,000 and in 1998 it reached 4,539
 In 2007 it reached 6,690
 Despite the growth of judicial activism applications the extent and impact of judicial activism should
not be exaggerated:
 Statutory interpretation allows judges some but not complete leeway
 Only a minority of applications for judicial review concern government departments – many are
directed at local authorities
 Most applications fail and legal aid is short

 Governments win most of the cases against it, it’s just that the cases they lose make the headlines
 Challenges to British law
 The number of cases brought in the ECJ against the UK, alleging a failure to fulfill its obligations, is a
relatively small one
 Out of 207 cases brought before the ECJ in 2009 only 13 were brought against the UK and even this
constituted a high number compared to previous years
 In 2007, out of 212 cases, only 2 were brought against in the UK; in the previous year, it was 4 out of
193 cases
 Even so the impact of membership of the EC has introduced a major new judicial dimension to the
British constitution
 The courts now appear to have acquired, in part, a power that they lost in 1688
 The Executive and the Courts
 The Act has thus had a major effect on the relationship of Parliament and the executive to the courts
 Parliament has, in effect, handed over its traditional power of protecting rights to the courts
 Enforcing the rights embodied in the Act has on occasion brought the courts into conflict with the
executive
 Though the courts have not gone as far as some critics would wish, they have used their powers to
limit the executive
 The impact of devolution
 The devolution of powers to elected assemblies in different parts of the United Kingdom has also
enlarged the scope for judicial activity
 There are complex provisions for determining whether a particular function is exercisable by a
devolved body and whether it has exceeded its powers or whether a failure to act puts it in breach of
the ECHR. These are known as ‘devolution issues’
 The provisions of the devolution legislation create notable scope for judicial activity
 There is scope for the courts to interpret the legislation in a constructive manner
 There is also scope for the courts to move away from the intentions of the Westminster Parliament
 As with the Human Rights Act, the cases may be more significant for their quality, and their deterrent
effect, than for their number
 The number of ‘devolution issues’ brought before the courts is relatively rare
 Demands for change
 Recent years have seen various calls for change in the judicial process
 Some of these have focused on the court’s constitutional role in relation to government and the
protection of rights
 Others have focused on decisions of the courts in domestic criminal and civil cases
 Partly this involves constraining the Executive

 Arguments for giving more power to judges
 A written document, such as the ECHR, clarifies and protects the rights of the individual. Citizens know
precisely what their rights are, and those rights are protected by law
 It puts interpretation in the hands of neutral judges, independent of the political process
 It prevents encroachment by politicians in government and Parliament. Politicians will be reluctant to
tamper with a document, such as the ECHR, now that it is part of the law. Entrenchment of the
measure – that is, imposing extraordinary provisions for its amendment – would put the rights beyond
the reach of a simple majority in both Houses of Parliament
 It prevents encroachment by other public bodies, such as the police
 Citizens know their rights in relation to public bodies and are able to seek judicial redress if those rights
are infringed
 It ensures a greater knowledge of rights. It is an educative tool, citizens being much more rights
conscious
 Arguments against giving more power to judges
 It confuses rather than clarifies rights
 It transfers power from an elected to a non-elected body
 It does not necessarily prevent encroachment by public bodies
 It creates a false sense of security. There is a danger that people will believe that rights are fully
protected when later interpretation by the courts may prove them wrong
 If a document is entrenched, it embodies rights that are the product of a particular generation. A
document that is not entrenched can be modified by a simple majority in both Houses of Parliament
 Applying the law
 The courts have thus proved controversial in terms of their constitutional role
 They have also been the subject of debate in terms of their traditional role in interpreting and
enforcing the law
 The debate has encompassed not only the judges but also the whole process of criminal and civil
justice
 Lower courts, including the Court of Appeal, came in for particular criticism in the late 1980s and early
1990s as a result of several cases of miscarriages of justice
 The Appeal Court came in for particular criticism for its apparent reluctance even to consider that
there might have been miscarriages of justice
 Another criticism has been the insensitivity of some judges in particular cases, notably rape cases
 The result of such cases may have limited public regard for judges, little bit not on a major scal e
 In 2000, the European Court of Human Rights ruled that the minimum term of imprisonment (or
‘tariff’) for murder committed by juveniles should be set by the courts and not by the Home Secretary
 In effect, the power thus passed to the Lord Chief Justice
 Other aspects of the criminal justice system have also attracted criticism.
 The activity and policy of the Crown Prosecution Service have also been particular targets

 The CPS has been criticized for failing to prosecute in several highly publicized cases where it has felt
that the chances of obtaining a conviction were not high enough to justify proceeding
 Another problem has been that of access to the System
 Pursuing a court case is expensive and makes it difficult for many to get fair access to the legal system
 Implementing change
 Various proposals have been advanced for reform of the judiciary and of the system of criminal justice
 There have been moves to create greater openness in the recruitment of senior judges as well as to
extend the right to appear before the senior courts
 In 1998, new judges were required to reveal whether they were freemasons
 The 1999 Access to Justice Act created a community legal service
 The Crown Prosecution Service has undergone significant change
 The courts are undergoing significant change – the changes of the past decade probably surpassing
anything experienced in the previous half-century
 However the pressure for reform continues.
 Class Activity
 Overview of jurisdiction of civil courts, role and function.
 Students should prepare presentations on each court. Appeals system and appeals courts, grounds for
appeal and pathways.
 Students should prepare flow charts showing pathways and grounds.
 Compulsory Activity: Must go through the website “You be the judge” [www.ybtj.justice.gov.uk] to
understand the procedure of courts in the UK. As a judge you can pass a sentence, it’s very much
interesting and informative for law students so don’t miss a chance to be a judge in the court/case of
your own choice.
 Past papers questions
 Q1. Your friend Lenny has just been convicted of an offence in the Magistrates Court. HE says he did
not do it and want to appeal. Critically analyses the different ways that he may appeal against the
decision of court? [MAY / JUNE 2004]
 Q2. A friend’s son has been convicted of theft in the Magistrates Court and wishes to know whether
there is any chance to appeal the decision. Explain the routes of appeal that are available to him and
discuss whether you think the right to appeal from the Magistrates decision is adequate.
[October/November 2005]
 Q3. The magistrate court is the main pillar of the English Legal System. Discuss this statement.
 Q4. Twelve people ignorant of the law, directed by a judge who is likely to be wholly out of touch with
ordinary life, would you say that this is a fair description of trial in the Crown Court? Give reasons for
your answer. [October/November 2007]
 Q5. Samantha has had a bad day. The caring Credit Card Company charged her £25 for late payment of
her account which she is sure that she paid on time. Whilst reading her statement. She hears a crash

and looks outside to see that a digger driven by an employee of E & F Builders has accidently
demolished the extension to her home, built only a month ago at a cost of £100,000. Convicted that
legal action is her only remedy, Samantha now seeks advice. Explain to her the legal procedure she
must follow for her claims and the options open to her if she does not meet with success.
 Q6. Michael has been convicted of robbery at the Crown Court. He is sentenced to five years
imprisonment. The prosecution considers that the sentence passed is too lenient. Michael insists that
he is innocent and that the jury’s verdict is wrong. Consider critically the avenues of appeal, if any;
open to the parties in this case. [May/June 2009]
 Q7. ‘Magistrates are members of the public who come from the communities they serve’. Explain (a)
the process of selecting magistrates and (b) the work that they carry out in the court. How effective do
you consider their role to be in the judicial system? [May/June 2009]
 Q8. Kerry is on her lunch break from the Pick-a-Chick factory, eating her sandwiches on a grass verge at
the side of the road. Jason drives his car at excessive speed along the road. The car amounts the verge
and collides with Kerry. One of her legs is broken and she is unable to return to work for six months.
Consider critically the role of both the civil and criminal courts in dealing with this situation. [May/June
2010]
 Q9. Agatha Runcible has pleaded not guilty to careless driving at the Brideshead Magistrates’ Court.
Consider critically the process which will follow and the roles of those involved in her trial.
 Q10. ‘Simple, speedy and summary justice’. How accurate is this description of the work of the
Magistrate Court? [October/November 2011]
 Q11. Lizzie wishes to recover from her sister, Jane, a diamond necklace valued at £25, 000. Lizzie says
the necklace was promised to her by their mother just before she died. Jane refuses to part with the
necklace. What steps will Lizzie now have to take to seek recovery of the necklace? If she is
unsuccessful, are there any further remedies open to her? Discuss the problems associated with civil
litigation. [May/June 2012]
 Q12. Critically assess the extent to which untrained and unqualified members of the public are used in
decision making in the criminal courts. [October/November 2013]
 Q13. Louise, aged 26, has been convicted in the Magistrates’ Court of theft of a gold bracelet worth
£1000 and sentenced to six months in prison. She wishes to appeal against both her conviction and her
sentence. Explain and evaluate the different ways in which she may appeal against these decisions.
[May/June 2014]

Criminal Courts and Civil Courts: Lecture # 11

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Criminal Courts and Civil Courts: Lecture # 11

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Lecture # 11

Criminal courts and Civil Courts

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Guilty Not Guilty

Prosecutor outlines Trial with prosecution evidence

Decision by the magistrate

Extra information e.g. reports

Mitigation Extra information e.g. reports

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Guilty Not guilty

Defendants chose place of trial Sent to crown court

 Implications of choosing jury trial

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DONBRIDGE CROWN COURT

The Queen v Jhon Wilkie charged as follows:

Murder contrary to the common law

 Criminal procedure Rules

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NOTE: Past paper question are at the end of the lecture.

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