Courts, Judges, Tribunals and Cases Lecture

Reading Case
- Parts of a case – ‘Anatomy’:
o Name of the case
o Court
o Names of judges presiding
o Hearing date
o Head note
o List of cases refer to
o Page numbers, paragraph numbers or letters in the margin
o Details of the appeal
o Names of Counsel
o The judgment

Name of the Case (Civil)

- The parties (A v B) or
o In Eng, Wales and NI the claimant (was plaintiff) and the defendant
o In Scotland the pursuer against the defender

Name of the Case (Criminal)

- In Eng, Wales and NI says, “the crown” (R v Baddie where R is for Regina or Rex) and the defendant
- In Scotland the name of the procurator fiscal (prosecutor) or HMA (say “Her Majesty’s Advocate”) against
the accused

The Judgment
- Several elements
o Finding of the material facts
o Statement of the legal issues
o Statement of the principles
o A decision based on these principles
o Only the principles of law that are essential to the decision make up the ratio
o Rest obiter dicta
- Majority decisions
- Dissenting judgements
- Leading judgement

Law Reports – Hierarchy

- If cases are to be used effectively as a source of law through the operation of the doctrine of judicial precednt
then an efficient law reporting structure is required

Scotland
- Session Cases (official)
o (Court of Session Practice Note #5 of 2004)
o Scottish Council of Law Reporting
- Scots Law Times
- Scottish Criminal Case Reports and Scottish Civil Law Reports
- Specialist Reports

England
- Law Reports (official – AC, QBD, CD, Fam)
o (Practice Direction and Statements – Lord Chief Justice, March 2012)
o Incorporated Council of Law Reporting in England and Wales
- Weekly Law Reports or All England Reports
- Specialist Reports

Judicial Precedent

Precedent Basics
 - Precedent is a core doctrine of common law system
- What is it?
o A statement of law by a court which binds other courts which area of equal or lesser importance
- What is the purpose of the rule?
o To provide certainty in a system of law which has cases as a source of law

Precedent, Where to Find It

- Judgments issued by the various courts
- Law Reports
o Record of the facts and the arguments and reasons given for a decision
o Written by reporters
- Why read cases?
o To find out the law
o Follow/understand the legal reasoning
o Develop a critical understanding of the law

Precedent, Key Phrases

- Stare decisis (this is an abbreviation of stare rationibus decidendis)
o Simply means ‘let the decision stand’
- Ratio decidendi
o Means ‘the reason for the decision’
- Obiter dictum / obiter dicta
o Means something or some things said in the decision which are not part of the ratio

Precedent in Practice
- What does it mean in practice?
o A court is bound to follow the decision reached by a superior court in a previous case on the same
legal issue
o Appeal Courts other than the Supreme Court are bound by their previous decisions

Precedent in Practice, Hierarchy

- Supreme Court
o Decisions are binding on all courts in Eng and Wales, NI and on civil courts in Scotland in relation to
appeals from there – exception is where decision conflicts with a decision or the CJEU or the ECHR
o Regard own past decisions as binding but will depart when it appears right to do so (practice
statement 1966)

Precedent in Practice, England

- CA
o Is bound by Supreme Court decisions
o CA (Civil) bound by own decisions
o CA (Crim) normally will follow but has flexibility
o CA (Civil) and (Criminal) must follow Supreme Court and CA decisions and are bound by own past
decisions
- High Court
o Bound by Supreme Court, CA and DIVct decisions
o Does not need to follow its own decisions
- Inferior Courts
o Do not create precedents and must follow decisions of all the above courts

Precedent in Practice, Scotland

- All courts bound by CJEU and also Supreme Court cases that originated in Scotland
- Court of Session Inner House (IH) decisions bind IH and Outer House (OH), Sheriff Appeal Courts and
Sheriff Courts
- Sheriff Appeal Court decisions bind subsequent Sheriff Appeal Courts and Sheriff Courts
- OH, and Sheriffs do not create precedent
- High Court of Justiciary sitting as an Appeal Court can depart from own decisions. Decisions are binding on
HCoJ (trail), Sheriff Appeal Courts, Sheriff Courts and JP Courts
- Sheriff Courts are bound by appeal decisions of HCJ
 o Bound by own decisions

Persuasive Cases
- Persuasive rather than binding
o Authorities which are not binding but which you think may support your arguments
- Decisions of lower courts cannot bind superior courts

Distinguish That Annoying Case

- Possibility of distinguishing the case in hand from otherwise binding authority allows for some flexibility in
the system – counsel and judges can argue that they are not bound by previous decisions
- Grounds:
o The facts in the earlier case are not similar enough for the ratio to be in point
o The point of law in the earlier case was not part of the ratio but merely obiter

UK Courts and Tribunals

- Fundamental components of the justice systems of each jurisdiction and as such, sources of law
- Justice systems across the UK split into two parts:
o Civil Justice
o Criminal Justice

UK Courts
- What does jurisdiction mean?
o Courts operate across types of justice (civil and criminal), some have only civil capacity, some
criminal, some both
o Some courts, usually the higher courts, have capacity across as entire geographical jurisdiction
o Some, lower courts may only operate locally and within specified limits in relation to both cause and
outcome/disposal
- Civil justice
o Provides people with a means to enforce and protect their legal rights, and secondly, to regulate
disputes between two or more parties which arise in relation to these rights
- Criminal justice
o Exists to prosecute those who are alleged to engage in criminal activity and sentence those found
guilty

UK Justice System – Difference?

- Scottish system is largely devolved to the Scottish Parliament, court structures reflect pre-devolution
distinctions
- England and Wales, similarities with Scotland though very different in appearance, governed by UK
Parliament
- Northern Ireland similar system to England and Wales

Courts, Tribunals and Institutions

Courts – Scotland
- Justice of the Peace Courts
o Introduced in 2007 by Criminal Proceedings etc. (Reform) (Scotland) Act 2007
o Local jurisdiction only (Sheriffdoms)
o A lay court where a Justice of the Peace who is not legally qualifies sits with a legally qualified clerk
o Normally limited to 60 days imprisonment of a fine not exceeding £2,500
- Sheriff Courts
o Local courts with jurisdiction in respect of a wide range of civil and criminal matters
o Six Sheriffdoms in Scotland
o Each Sheriffdom comprises or Sheriff Courts districts
o http://www.scotcourts.gov.uk/docs/default-source/default-document-library/locations-map.pdf
o e.g. Dundee Sheriff Court district sits in the Sheriffdom of Tayside, Central and Fife
o Key points:
 Criminal
 Sheriff Courts deals with vast majority of crimes (along with Justice of the Peace
Courts) but not, e.g., treason, rape or murder
  Sheriff Court business is either solemn (Sheriff and Jury, less than 5 years
imprisonment or unlimited fine) or summary (no jury, less than 1-year imprisonment
or fine up to £10,000)
 Civil
 Vast majority of civil cases heard in Sheriff Courts (e.g. enforcement of contract
delictual claims, divorce, adoption and much more)
 Radical change following Courts Reform (Sc) Act 2014:
o A new national Sheriff Appeal Court to deal with both civil and criminal
appeals from Sheriff Court
o All civil cases (excluding family cases) with a value of less than £100,000
must be heard in Sheriff Court
o Simple procedure under £5,000
 Ordinary cause more than £5,000 less than £100,000
o New summary Sheriffs to deal with claims under £5,000
o New (“Sheriff Court as”) personal injuries court
- College of Justice
o Phrase used to describe Scotland’s upper courts being the High Court of Justiciary and the Court of
Session
- High Court of Justiciary
o Scotland’s Supreme Criminal Court. Has jurisdiction over the whole of Scotland and over all crimes
and unlimited powers of disposal at common law
o Also sits as an appeal court when the court consists of at least three judges (Court of Criminal Appeal)
- Court of Session
o Has jurisdiction over most civil matters in Scotland. It sits only in Parliament House in Edinburgh
o Split into Outer and Inner House
 Outer = First instance cases
 Inner = Primarily appeals
o Split into First and Second Divisions of = status
o Had expensive concurrent jurisdiction with the Sheriff Court but not claims of less than £100,000
cannot be heard in Court of Session

“Higher Still” Courts

- Supreme Court of the United Kingdom
o Constitutional Reform Act 2005
o Final Court of Appeal in Scottish Civil Cases (Not Criminal)
o Also deals with devolution issues
- European Court of Justice (CJEU)
o Exists to ensure that EU law is correctly interpreted and observed in members states. A national court
sends a question (but not the rest of the dispute) to the CJEU for an authoritative ruling on law which
binds that national court
o Created to ensure that a country which is party to the European Convention on Human Rights
(ECHR) complied with its obligations under the ECHR
o Scottish courts and tribunals “must take into account” the decisions and opinions of the Strasbourg
Court
o Not binding but very influential

Other Courts/Tribunals
- Other courts/tribunals include
o Scottish Land Court
o Court of the Lord Lyon
o Employment Tribunals
o Children’s Hearings System

Courts – England and Wales, Northern Ireland

- Magistrates’ Court
o The lowest court in England, Wales and NI but with significant civil and criminal jurisdiction
o All criminal cases start in the Magistrates’ Court and 95% are concluded there
o Geographical area tied to ‘local justice areas’
 o Introduced in 2005 by Courts Act 2003
o Local justice areas
o Cases may only be heard in courts which are in:
 A place in the local justice area in which the offence is alleged to have been committed
 A place in the local justice area in which the person charged with the offence resides
 A place in the local justice area in which the witnesses, or the majority of the witnesses reside
 A place where other cases raising similar issues are being dealt with
o Civil:
 Deal with a wide range of civil and also family proceedings, adoption etc (it is then referred
to as a family proceedings court)
o Criminal:
 Minor offences (£5,000 and less than 6 months imprisonment, although higher for multiple
offences)
- County Courts
o The county court, often referred to as the small claims court, deals with civil matters, such as:
 Claims for debt repayment, including enforcing court orders and return of goods bought n
credit
 Housing disputes, including mortgage and council rent arrears and re-possession
 Family issues such as relationship breakdown or adoption
 Personal Injury
 Breach of contract concerning goods or property

Senior Courts
- Crown Court
o Crown court cases originate from Magistrates’ Courts
o Deals with more serious criminal cases such as:
 Murder, rape or robbery
 Some of which are on appeal or referred from magistrates’ courts
o Trials are heard by a judge and a 12-person jury
o The Crown Court also hears appeals against decisions of magistrates’ courts
- The High Courts
o This sits in three divisions referred to in full as “The High Court of Justice…
 … Queen’s Bench Division or
 … Chancery Division or
 … Family Division”
o (for N.I. refer to “The High Court of Justice in Northern Ireland…” then the division)
o These are collectively referred to as the Royal Courts of Justice
o Queen’s Bench:
 Deals mainly in claims for damages in respect of;
 Personal injury
 Negligence
 Breach of contract
 Libel and slander (defamation)
 Non-payment of a debt
 Possession of land or property
o Chancery Division:
 Deals mainly with claims in relation to:
 Companies
 Patents, Intellectual property
 Bankruptcy and Insolvency
o The Family Division
 Deals with more serious cases across all matrimonial matters, The Children Act 1989, The
Child Abduction and Custody Act 1985
 It also deals with matters relating to Part IV Family Law Act 1996 (Family Homes and
Domestic Violence), Adoption, Probate and Court of Protection Work
- Court of Appeal
o The Court of Appeal is the highest court within the senior courts
o The Court of Appeal has two divisions:
  The Criminal Division, which hears appeals from:
 The three divisions of the High Court (Chancery, Queen’s Bench and Family
Division)
 From County Courts across England & Wales, and Northern Ireland
 From certain Tribunals such as the Employment Appeal Tribunal, the Immigration
Appeal Tribunal, the Lands Tribunal and the Social Security Commissioners

“Higher Still” Courts

- Supreme Court of the United Kingdom
o Final court of appeal in civil cases and criminal cases
o Also deals with devolution issues in relation to the Northern Ireland and Welsh Assemblies
- Court of Justice of the European Union (CJEU)
o Exists to ensure the EU Law is currently interpreted and observed in member states. A national court
sends a question (but not the rest of the dispute) to the CJEU or an authoritative ruling on law which
binds that national court
- European Court of Human Rights (ECtHR)
o Created to ensure that a country which is party to the European Convention on Human Rights
(ECHR) complies with its obligations under the ECHR
o England & Wales and Northern Ireland courts and tribunals “must take into account” the decisions
and opinions of the Strasbourg Court
o Not binding but very influential

Judges

Scotland
- Justice of the Peace Courts
o Justice of the Peace
o Summary Sheriffs
- Sheriff Courts
o Sheriffs
o Summary Sheriffs
- Court of Session (Outer House)
o Lords Ordinary
- Court of Session (Inner House)
o Lord Justice Clerk
o Lord President (Lord Justice General)
o Senators of the College of Justice – Lords Commissioners of Justiciary
- High Court of Justiciary
o Lord Justice Clerk
o Lord President (Lord Justice General)
o Senators of the College of Justice – Lords Commissioners of Justiciary
- Supreme Court
o Justice of the Supreme Court

Judicial Independence
- Constitutional Reform Act 2005
- Enshrined in The Judiciary & Courts (Sc) Act 2008
- The Act introduced a duty on Scottish Ministers, the Lord Advocate and MSPs to uphold the continued
independence of the judiciary, barring them from trying to exert influence through any special access to
judges

Appointment
- The Judicial Appointments Board for Scotland (JABs) makes recommendation for appointment
- Salaried judges (i.e. all above JPs) are appointed by the Queen from a pool produced by the JABs on the First
Minister’s recommendation (or by the FM acting as Minister of Crown) after consultation with Lord
President. (For “Scottish” judges in UK Supreme Court see slide “England (3 of 4)”)

Training
 - Since its establishment in 1997, judicial training in Scotland has been in the hands of the Judicial Studies
Committee (“JSC”)

England & Wales

- Magistrate Court
o Magistrates
o District Judges
- Crown Court
o Recorder
o Circuit Judges
- County Court
o Recorder
o Circuit Judges
- County Court
o District Judges (County Court)
- High Court
o High Court Judges (assigned to one of the three divisions)
o Chancellor Division – Chancellor of the High Court
o President of the Queen’s Bench Division
o President of the Family Division
- Court of Appeal
o Court of Appeal Judges
o Lord Chief Justice (Head of Criminal Justice)
o Master of the Rolls (Head of Civil Justice)
- Supreme Court
o Justices of the Supreme Court

Judicial Independence
- Constitutional Reform Act 2005

Appointment
- Senior judiciary appointed by the Crown (the Queen or the Lord Chancellor) on recommendation of the Prime
Minister, from a pool determined by the JAC. This is so also for “Scottish” appointments to the UK Supreme
Court
- The Judicial Appointments Commission (JAC) is an independent commission that selects candidates for
judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends
to Scotland or Northern Ireland

Training
- The Judicial College is directly responsible for training full (salaried) and part-time (fee-paid) judges in the
courts in England and Wales, and for training judges and members of tribunals within the scope of the
Tribunals, Courts and Enforcement Act 2007 which included reserved tribunals across the UK
- The Judicial College is also responsible for overseeing the training of magistrates

Diversity
- One reason for introducing the JABs and JAC was to introduce a degree of transparency, a focus on
demonstrable and “appropriate” judicial attributes and to increase diversity
- To take the previous Scottish system as example, the Lord Advocate (until recently always a white, middle
aged, privately educated male) looked around the Faculty of Advocates and decided, on his own, out of the
predominantly white, male, privately educated members of Faculty, which was most suited to be appointed to
the bench. Quite often the Lord Advocate was forced to be brave and decide that in fact he was the “best man
for the job” to receive the privilege, salary & pension that comes with being a judge
- Does the sex, race, class, religion etc of a judge matter?
- At the time of writing only three of the 12 justices of the UK Supreme Court are women, Lady Hale
(President), Lady Black and Lady Arden. As far as we know, none of the 12 are from a minority ethnic group
and none are LGBTI (though one of the previous Scottish Justices, Lord Rogers, was gay). Whether any are
from a working-class background again is not known though doubted
- “The UKSC is committed to providing fair and open access to justice for everyone. We recognise; respect and
value diversity… We will strive to become an organisation that reflects fully the diversity of the society we
serve…” Equality & Diversity Strategy