Bruce: Chapter 2

2.1 The civil courts today

(a) The House of Lords and Privy Council
As Parliament developed, the House of Lords - which had maintained a close relationship with the Curia Regis - took
over the judicial role. By the fifteenth century it was established that the Commons generally did not interfere in the
exercise of the judicial function. Later on appeals from the King's Bench were sent to the House of Lords. Though the
Judicature Acts 1873-5 has been intended to create a Supreme Court, political pressure caused the retention of the
House of Lords as the ultimate appellate tribunal, and by the Appellate Judicature Act 1876, it was confirmed as the
supreme civil appeal court.
The House of Lords is presided over by the Lord Chancellor, who is a member of the government and usually a
former Member of Parliament; in debates in the Lords he has a function similar to that of the Speaker of the House
of Commons. He is responsible for the administration of justice and, in practice, for the appointment of judges and
of Queen's Counsel. In the law reports he is identified by the initials ‘L.C.’ after his name.
Appeals were originally heard by all members of the House of Lords, who were advised by judges specially called in.
Since the second half of the nineteenth century, however, lay peers have played no part in the judicial business of
the House. Appeals in the House of Lords are now heard by the Lords of Appeal in Ordinary, the so-called 'Law
Lords’. These judges must have been judges for at least two years or have a ten-year High Court qualification as
defined in the Courts and Legal Services Act 1990. In practice they are promoted from the Court of Appeal. Usually
five judges sit together to hear the appeal, and their opinions on the case under consideration are delivered in the
form of speeches either for allowing or for dismissing the appeal. This, of course, means that an appellant's success
or failure may be determined by a 3:2 vote.
The Administration of Justice Act 1969 introduced a new system of appeal, designed to save both time and money,
known as the leapfrogging procedure. If the point of the appeal turns in part at least on the proper construction of
an Act of Parliament the appellant may now by-pass or leap-frog' the Court of Appeal, where a further appeal from
that court would have been necessary in any event. This procedure may be used with the consent of both parties
where the Appeal Committee of the House of Lords grants leave.
The same 'Law Lords' may also sit in a similar capacity as members of the Judicial Committee of the Privy Council.
This tribunal hears appeals from Commonwealth countries and appeals from disciplinary tribunals of certain
professional bodies. The advice of the Privy Council is not binding on other courts but it is, of course, very strongly
persuasive.
(b) The Court of Appeal
This court was set up by the Judicature Acts 1873-5 and now sits in two divisions, civil and criminal. Its constitution is
now governed by the Supreme Court Act 1981 which provides generally for its administration. The Supreme Court
Act is a misleading title. Originally, the Court of Appeal was intended to be the one and only court to hear appeals.
On that basis, it would indeed be the Supreme Court. However, political pressures at the time decreed otherwise
and led to the retention of the House of Lords as, in fact, the Supreme Court of Appeal. Nevertheless, the title of
‘Supreme Court’ has been retained and is now taken as reference to the Court of Appeal, the High Court of Justice
and the Crown Court.
In practice, the court is staffed mainly by Lords Justices of Appeal who are not the same as the 'Law Lords'. The civil
division of the Court of Appeal is presided over by the Master of the Rolls. The civil division may hear appeals from
the High Court, County Courts and some tribunals. An appeal may be brought on a point of either law or fact but, in
practice, an appellate court is understandably reluctant to interfere with a judge's finding as to fact - after all, he has
had the best opportunity to weigh up the witnesses. Appeals are therefore, in practice, almost invariably based on
points of law. Further appeal may lie, with leave, to the House of Lords where there is a point of law of general
public importance. The criminal division is headed by the Lord Chief Justice and hears appeals from the Crown Court
against both conviction and sentence under the provisions of the Criminal Appeal Act 1968.
(c) The High Court
The High Court, created by the Judicature Acts 1873-5 is now regulated by the Supreme Court Act 1981. It consists of
the Lord Chancellor, the Lord Chief Justice, the President of the Family Division and the Vice-Chancellor. The vast
majority of the judges of the High Court are known as puisne judges. Such judges are now to be appointed from
lawyers (and no longer exclusively barristers) who have held the relevant High Court qualifications for ten years.
The High Court sits in three divisions (the Queen's Bench Division, the Chancery Division and the Family Division),
each of which has an unlimited jurisdiction, and so may hear cases involving any degree of complexity or any sum of
money. Each division requires separate study.
(i) Queen's Bench Division: This is the largest division of the High Court and is the successor to the old common-law
courts. It is staffed by the Lord Chief Justice and about seventy puisne judges. The division enjoys three aspects to its
jurisdiction.
1. First instance: The principal jurisdiction of the Queen's Bench Division is in matters such as the larger claims in
contract and in court. Since the Administration of Justice Act 1970 the admiralty jurisdiction of the old Probate,
Divorce and Admiralty Division has been vested in the Queen's Bench Division. The case is almost invariably tried
by a judge sitting without a jury, and is begun by a writ.
2. Appellate: Judges of the Queen's Bench Division also sit as judges of the Divisional Court to hear appeals on
matters of law mainly from the magistrates' courts. Appeals based on fact are dealt with by a rehearing in the
Crown Court, The difference is simply that a defendant who feels that he has been convicted against the weight
of the evidence will appeal to the Crown Court. A party (either prosecution or defence) who feels that the
magistrates got the law wrong will ask the Divisional Court to determine just that point of law.
3. Supervisory: The Queen's Bench Division may control inferior courts and tribunals by prerogative orders such as
certiorari which is an order used to remove case from an inferior court for investigation. By the order of
prohibition the court may restrain an inferior court from pursuing a particular course of action. Similarly,
anybody arrested by the police or anyone else and held for an excessive period may apply to the Queen's Bench
Division for an order of habeas corpus, which requires the police to produce that person so that the legality of
his detention can be considered.
These individual components are now part of the overall armoury today known as judicial review by which the
courts can review the legality of actions taken by government, local councils and a wide range of other organizations
such as unions and clubs. The procedure is regulated by the Supreme Court Act 1981. Such applications for review
are heard by a special court consisting of two judges who sit as a Divisional Court. Applications for judicial review
may be made on grounds such as:
1. want or excess of jurisdiction (as when an inferior court, tribunal or public authority exceeds its jurisdiction); or
2. where there is an error of law on the face of the record (as when a judge made a mistake as to law in the course
of judgment); or
3. failure to comply with the rules of natural justice.
(ii) Chancery Division: the principal judge of this division is theoretically the Lord Chancellor. In practice, however, it
is headed by the Vice-Chancellor. The division is the smallest in the form 'Sir Donald Nicholls, of the three and
consists of only fifteen puisne judges. No jury is present and the court sits in London. Its jurisdiction includes trusts,
mortgages, the sale of land and company matters. The division also has a limited appellate capacity from hearings of
the Inland Revenue Commissioners, who exist to determine disputes between tax inspectors and payers.
(iii) Family Division: was created by the Administration of Justice Act 1970. There are about six teen puisne judges
headed by the President. Its original jurisdiction is a wide one covering, divorce, nullity, legitimacy, wardship and the
property and financial disputes of broken marriage.
(d) The County Courts
County Courts were set up in 1846 to deal with small claims so that such disputes could be settled locally and
cheaply. There are now nearly three hundred such courts throughout England and Wales staffed by circuit judges
who are appointed mainly from barristers of at least ten years' standing. Recorders and assistant recorders also sit as
part-time judges to hear the very wide range of cases coming before the County Court. Usually, as in the High Court,
the judge sits alone to determine issues both of fact and law. Very occasionally, however, a jury will be brought in to
determine the facts of cases involving complaints such as libel, slander, malicious prosecution or false imprisonment.
In such cases, the jury will be made up of only eight members.
Until the summer of 1991, the County Court was limited to trying actions where the subject-matter did not exceed
£5000 in value. Under the new regulations, there is unlimited jurisdiction for most cases in the County Court. The
new rules provide that, except in major personal injury claims where the plaintiff expects to recover more than
£50000, all claims now start in the County Court. Claims above £50000 will be tried in the High Court unless they are
so straightforward that such transfer is not considered necessary Claims falling between those financial limits will be
allocated between the High Court and County Courts according to considerations such as the complexity of the
issues and the availability of judges to try the case.
Since the Matrimonial Causes Act 1967, certain designated County Courts have had jurisdiction to hear undefended
divorce petitions. This jurisdiction was extended in 1986 to allow the County Courts to try the few remaining
defended divorce petitions.
Much of the financial aspect of matrimonial litigation is undertaken by the district judge. Much of the administrative
work formerly car ride on by registrars has been delegated to the court staff. Claims below £1 000 are automatically
referred to hearing by way of arbitration, when the district judge hears the case informally.
The Mayor's and City of London Court: this court is an amalgamation of two ancient courts. It is now the County
Court for the City of London and sits at the Guildhall. As a County Court, it is staffed by a circuit Judge. Appeal lies in
the usual way to the Court of Appeal (Civil Division).
(e) The magistrates' courts
These courts do not exercise any general civil jurisdiction as such, but rather fulfil certain minor administrative
functions. They also enforce payment of the council tax Imposed by local councils when hard-pressed house-holders
prove unable or unwilling to meet such impost. Magistrates also sit as a domestic court to hear simple disputes
between husband and wife over each other's conduct, their children or maintenance. They also have power to order
spouses not to use or threaten violence against their partner or any child.
2.2 The criminal courts today
An actual case would be heard first in the magistrates' court, and sent if necessary to the Crown Court. An appeal
would be heard in the Court of Appeal (Criminal Division).
(a) The magistrates' courts
The magistrates' court is the lowest criminal court. There is no jury in these courts and all questions of fact and
ultimately of guilt or innocence are decided either by a number of lay magistrates (sometimes known as justices of
the peace - a relic of fourteenth-century English high society) or by a stipendiary magistrate. Lay magistrates have
no legal qualifications at all although today some basic training is given to instruct them how to act properly in court.
On the other hand, a stipendiary magistrate is a lawyer, appointed from barristers and solicitors of seven years'
standing. The stipendiary sits full-time and is paid a salary or 'stipend' from where he gets his title. The lay
magistrate, in contrast, sits only part-time, and is unsalaried although he does receive expenses and allowances.
Whichever type of magistrates are sitting there is also a clerk to the court, who is either a barrister or solicitor, and
whose duty it is to advise on all matters of law, procedure and sentencing.
There are two principal kinds of criminal offence:
 Indictable offences: may only be tried 'on indictment', which means in the Crown Court with a judge and jury.
Murder, robbery and rape are all such offences.
 Summary offences: may only be dealt with in the lower courts - common assault and drunkenness are such
matters.
Hybrid offences may be tried in either or in the magistrates' court. Such offences, said to be triable 'either way', have
traditionally been tried by magistrates only when the defendant has given his con sent to be tried summarily.
Obviously, almost all those pleading guilty would choose to have their cases swiftly heard by the magistrates and
thus know their fate as soon as possible. Further, an early plea of guilty at the first opportunity has long been seen as
some of the best mitigation. On the other hand, those pleading not guilty have almost invariably taken the view that
their prospects of acquittal by magistrates are poor and that trial in the Crown Court is a more professional and
fairer determination. The recommendations of the Runciman Commission, if implemented, would take the choice of
trial away from the defendant and entrust it to the magistrates themselves to decide whether or not to allow the
defendant to be tried in the Crown Court.
Proceedings are often begun in the magistrates’ court by a summons, which is an order of a magistrate inviting
someone to attend court to answer the said information' - the account outlined by a prosecutor when he applies for
a summons. In court the prosecutor will open his case dealing, if necessary, with any matters of law raised, and will
then call his witnesses, who may be questioned (cross-examined) by the defendant; he does not, however, make any
speeches. A defendant may choose to give evidence but cannot be compelled to do so. The court then gives its
findings (often after a retirement where lay magistrates are sitting) but only very exceptionally does it give any
reasons for that finding.
The appeal procedure depends whether the appeal is based on fact or on law. Appeals on fact are heard by the
Crown Court where the case is reheard. Appeals as to law are heard in the Divisional Courts of the Queen's Bench
Division by way of a procedure known as 'case stated.
At present, a magistrates’ court also has another function: its members may sit as examining justices to operate a
filtering process for cases going to the Crown Court. A case cannot go straight to the Crown Court. Almost all the
cases heard at the Crown Court are sent there after a committal in the magistrates' court, if the lower court is
satisfied that there is a ‘case to answer’, that is, that the evidence justifies a defendant being put to the anxiety and
expense of trial by jury.
At a committal the magistrates will also have to decide whether the defendant should await trial in the peace and
quiet of his own home (on bail) or in the security, if not the comfort, of Her Majesty's Prison (in custody). Appeal
against the refusal of bail lies to a High Court judge or, under new regulations, to the Crown Court.
(b) The Crown Court
The Crown Court is a criminal court of first-instance jurisdiction. This court tries all serious criminal charges and sits
throughout England and Wales. For administrative convenience, the country is divided into six circuits: Northern,
North Eastern, Midland and Oxford, South Eastern, Western, and Wales and Chester. Each circuit is under the
supervision of a presiding judge who is responsible for the smooth working of all courts in that circuit. The Crown
Court sits at various towns and cities throughout each circuit. The first-tier courts hear the most serious charges,
while a third tier court hears minor charges.
The High Court judge, known popularly as ‘the Red Judge’, from the colour of his robes, is drawn from the Queen's
Bench Division. He is addressed in court as 'My Lord'.
A circuit judge also sits in the County Court and is addressed as 'Your Honour'. In practice, most Crown Court cases
are heard by circuit judges.
A recorder or assistant recorder, who will be a practising barrister or solicitor of standing in the profession, sits as a
judge on a part-time basis. He is also addressed as ‘Your Honour’. Such posts are the first rung on the judicial ladder,
and are essential to cope with the workload of the Crown Court.
For the purposes of trial at the Crown Court offences are classified into four groups:
1. offences which may be tried only by a High Court judge, for instance, murder or treason;
2. offences which are usually tried by a High Court judge, for example, manslaughter or rape;
3. other offences not failing within (4) which may be tried by a High Court judge, circuit judge or recorder, such as
robbery;
4. hybrid offences which may be tried by any judge but which are usually tried by a circuit judge, recorder or
assistant recorder, for example, theft.
A defendant does not come direct to the Crown Court, but has to be committed there from the magistrates' court.
Normally he will be sent to the nearest appropriate Crown Court, but he can be tried elsewhere if there is such local
outrage that jurors drawn from the neighbourhood might be prejudiced against the defendant.
The judge also sits with a jury, who will decide whether a defendant is guilty or not guilty. They must follow the
judge's rulings as to the law. It is his duty to deal with all points of law, to decide questions of the admissibility of
evidence and generally to ensure a fair trial.
Jurors are now selected at random from among local residents who are old enough to vote in elections. Some people
are not eligible to sit on a jury - for example, judges, lawyers and the police. Others, including certain criminals, are
disqualified and random police checks are now made to exclude such people from sitting as jurors. Others still may
be excused jury service, for example Members of Parliament and members of certain professions, such as dentists
doctors.
When all the evidence has then retire and consider been heard the judge will sum up. The jury must their verdict. At
one time, the verdict had to be unanimous. Ideally, this is still the most satisfactory verdict, but nowadays, if certain
conditions have been satisfied, the court may accept a majority verdict where the majority is not less than 10:2.
Instead of returning a verdict of guilty of the crime charged, the jury may convict on a lesser charge.
(c) Court of Appeal: Criminal Division
The court is staffed by Lords Justices of Appeal who often sit with puisne judges of the Queen's Bench Division.
Appeals on law may be brought as of right. In contrast, anyone basing his appeal on fact (even only in part) must
receive leave of either the Court of Appeal or a High Court judge before he may bring his appeal.
While an appeal is pending the court may release the appellant on bail. There is now power for the Court of Appeal
to hear fresh evidence where it is expedient in the interests of justice for it to do so, always provided that the
evidence is likely to be credible and that there is a reasonable explanation why it was not put before the jury at the
Crown Court. In practice, most appeals are based on a misdirection or even non-direction by the trial judge.
The circumstances in which the Court of Appeal may allow an appeal against conviction are if the Court of Appeal
think:
(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or
unsatisfactory; or
(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of
law; or
(c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.
It is of fundamental importance to bear in mind that the judges in the Court of Appeal do not try the facts of the case
that was done by the jury in the Crown Court. It is not the function of the judges in the Court of Appeal to overturn
that verdict of the jury merely because they would not have convicted the appellant.
Under the Criminal Appeal Act 1968, the judges job was limited by Parliament to dismissing all appeals unless they
thought either that the conviction was 'unsafe or unsatisfactory' or there had been a wrong decision on a question of
law or where there had been a material irregularity during the trial. In that particular appeal, of course, the judges
regarded the new evidence as discrediting the original scientific evidence and as showing that the police evidence at
trial had been so unreliable that the convictions were indeed 'unsafe and unsatisfactory'.
If the court allows the appeal it may also quash the conviction, with the result that the appellant will go free with no
the stain on his character. Alternatively, the court may substitute a conviction for a lesser offence. On occasion, even
though the point raised in the appeal has been decided in favour of the appellant, the court may nevertheless
dismiss the appeal 'if they consider that no miscarriage of justice has actually occurred'.
A person sentenced by a judge of the Crown Court may also appeal against the sentence passed upon him, if the
Court of Appeal grants leave to do so. A convicted person may appeal against the sentence on the ground that the
judge passed a sentence not justified by law or where the judge has sentenced on the wrong factual basis or where,
and most importantly, the sentence was either wrong in principle or manifestly excessive.
Even if a sentence is at the top end of the range for a particular offence, the Court of Appeal will not intervene unless
the sentence was manifestly excessive. If the Court of Appeal decides that the original sentence was excessive, the
judges may:
(a) quash any sentence or order which is the subject of appeal, and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court
below had power to pass or make when dealing with that offence.