The English Legal System

Introduction to English Law

Before the Norman conquest, different areas in England were governed by the different law system. The law system based on the local custom hence, the law is varied from place to place. Thus, the King had only little control over the country as a whole and there was no effective central government. In 1066, William the Conqueror gained England throne and established a strong central government and began to standardize the law. The main purposes were to consolidate his power and to ease the tax collection. The representatives of King were sent out to the countryside to check the local administration and the jobs were given to adjudicating in local disputes according to local law (Elliott, 2007). Soon, a common law had been produced through many discussion and sifting process on the various customs from the different part of country. However, the common law was too rigid and harsh. Thus, the law of equity was established and acted as supplement or remedies to the common law where the application of the common law was too harshly (Law Teacher, 2014). In fact, English Law was established through the evaluation from common law and equity law. The principles behind common law are still used today in creating case law. The English Law was only adapted in England and Wales. This is because the United Kingdom (UK) was established by the union of four separate nations, which is consists of England, Wales, Scotland and Northern Ireland. However, there are three legal systems in UK. England and Wales have a same court system which is adopting English Law while the Scotland has another court system, Scot Law its own Parliament. The third court system in Northern Ireland is adopting common law. However, there are still certain areas which are governed by the main UK Parliament. Besides that, UK is one of the members of the European Union as well as being a signatory of the European Convention of Human Rights (ECHR). In this easy will be mainly focused on the Legal System of England and Wales and writes about the sources for English law.

Sources of Law

The sources for UK Law came into existence by various ways. However, the main sources of UK law are the Statue law, Case law and the European Law which is also called as the primary source. It refers to the law itself, is original and authoritative statements of law (Library, 2012) Statue Law or Legislation is the main source of UK law it is applied to the whole UK. According to Kelly (2011), the UK constitutional law recognized that the Parliament had the power to enact or revoke any new law as it sees fit. Parliament consists of three distinct elements: House of Commons, the House of Lords and the Monarch. Since the Parliament is the supreme legal authority in UK, therefore, the legislation that passed by the Parliament is superior to all other sources of law and it may not be challenged in courts (Library, 2012). The legislative process normally will be started with a Bill. It must be given three reading in both the House of Commons and the House of Lords before it presented for the royal assent. A bill must passed through the first reading, second reading, committee stage, report stage and the third reading (Kelly, 2000). Case Law is another important source of UK law which created by judges in the course of deciding cases. The doctrine of stare decisis or binding precedent refers to the fact that courts are bound by previous decisions of courts which are equal or above them in the court hierarchy but not necessarily by those inferior courts (Kelly, 2000). In other words, when judges try cases, they will check to see whether a similar situation has already come before a court. If the precedent was set by the other equal or higher courts, the judge should follow the rule of law that have been established in the earlier case (Kelly, 2000). The European Economic Community (EEC) which is now changed to European Community (EU) came into existence in 1957. UK joined the community in 1973. In order to be admitted as a member, UK Parliament passed the European Communities Act 1972 and agreed that the EU law is effective in UK courts (Maclntyre, 2007). EU law represents a very important source of UK law as it superior to national law and stands supreme. There are different forms of EU law including treaties, regulations, directives and decisions (Elliott, 2007). All the legislations are binding on Member States and have to be adhered to. In addition, EU law was made by the Council, the Commission and the European Parliament. It starts with a proposal from the Commission, yet the Council has the bigger power in the legislative process. The other sources of UK law are known as the secondary sources which refer to the commentaries on the law. Other sources of UK law including custom, textbook, and the European Convention of Human Rights (ECHR). The custom was the basis of common law. Although most of the custom rules have been revoked, but it still plays a small part in modern law. For instance, it used is in a case where a traditional local practice is being challenged (Elliott, 2007). The requirements that a local custom must satisfy in order to be recognized are: have existed from time immemorial that is 1189; have been exercised continuously within that period; have been exercised peacefully and without opposition; have been felt to be obligatory; be capable of precise definition; have been consistent with other customs and must be reasonable. However, custom law was not so important for UK law. The Human Rights Act 1998 came into effect in October 2000. This act incorporates the main provisions of the ECHR into UK law. However, the implementation is not complete as Parliamentary sovereignty is preservedi (Maclntyre, 2007). Academic textbooks are one of the secondary sources of law in UK. For example, Smith & Hogan’s Criminal Law.

Court Structure

Based on the historical reasons, UK does not have a single unified legal. Instead, there are three types of court systems in UK. The same court system is applied in England and Wales which have consist of five levels. The highest level jurisdiction is the House of Lords, followed by Court of Appeal, High Court, County Court, Crown Court and Magistrates Courts. Figure 1 Court Structure in UK The Figure 1 shows the structure of the courts system in England and Wales. The different types of case are deal with the specific courts. Basically, the court structure has divided into two sections which are between the civil and criminal law.

Criminal and Civil Courts

The crimes are offences against the law of the land and are usually prosecuted by the State (Kelly, 2011). Criminal cases are heard in different courts depending on the seriousness. There are three types of criminal offences: summary offences, which are the least serious criminal cases and tried by Magistrates without recourse to a jury; indictable offences, which are the most serious criminal cases and it required to be tried before a judge and jury in the Crown Court; either way offences, which are open to trial in either of the preceding ways. At the moment, the decision as to whether the case is heard in the Magistrate court or the Crown court is decided by the accused (Kelly, 2000).The appeals from Crown Court will the sent to High Court and might send to the Court of Appeal and even the Supreme Court (Judiciary, 2014). Civil actions are between individuals. Civil cases are normally heard by the Magistrates and County Court (Judiciary, 2014). However, the Magistrate court has limited but important civil jurisdiction in licensing and especially for the family proceeding court under the Children Act 1989. The County court try personal injuries cases that worth up to A£ 50,000 and other actions up to A£25,000.The appeals will be heard by the High Court and the Court of Appeal by the different division such as Family, Chancery or Queen’s Bench (Kelly, 2011).

Superior and Subordinate Courts

The legal system has divide into senior courts and subordinate courts. The senior court has more authority than others subordinate courts (Elsa, 2013). In other words, the judges seat on the subordinate courts are bound to follow the decisions of the senior courts. The House of Lords which is formerly called the Supreme Court now, held the highest power among the other courts. The House of Lords was the highest appeal court in England and Wales. However, the Supreme Court replaced the House of Lords in year 2009. Same with the House of Lords, it hears appeals from the Court of Appeal and the High Court but only in exceptional circumstances such as very serious criminal case (Judiciary, 2014). It also hears appeal from the Court of Session in Scotland. The appeals normally consist of five Justices the maximum is nine (Justis, 2013). Judicial Committee of the Privy Council is the final court of appeal for certain Commonwealth countries that have retained this option (Kelly, 2011). Most of the appeals heard by the Committee is civil cases and rarely heard criminal cases that relating legal questions; the Committee does not hear the appeal against the criminal sentence. However, some of the functions of the Committee were taken over by the new Supreme Court in 2009 (Justis, 2013). In UK the Superior courts are known as senior courts, the senior courts in England and Wales consists of the Court of Appeal, followed by High Court and Crown Court. In other words, the decisions made by the Court of Appeal must be followed by the High Court and the Crown Court. The Court of Appeal has two divisions which is the Civil Division that hears appeal from the High Court and County Court as well as certain superior tribunals. Criminal Division only hears the appeal from Crown Court that connected with the serious crime. The decisions of Court of Appeal may be appealed to the Supreme Court (Kelly, 2000). High Court is functioned as civil court of first request and appellate court for civil and criminal cases from the subordinate courts (Kelly, 2011). High Court also has divided into three divisions which consist of the Queen’s Bench Division (QBD), Chancery Division and the Family division. Moreover, each division has a confusingly named Divisional Court which hears appeal from other legal fora (Kelly, 2000). The divisions of High Court are not separate courts yet, the particular kinds of cases will be sent to each division depending on the subject matter (Elsa, 2013). QBD heard the civil cases related to the contract and tort cases. The Commercial Court is part of the QBD. It is staff by judges with specialist experience in commercial law; the Chancery Division heard cases relating to equity, trust, tax, partnership, bankruptcy and land (FindLaw UK, 2014); the Family Division dealt with all the matrimonial matters including custody of children, adoption, and divorce. Besides that, the decisions of the High Court may be appealed to the Court of Appeal. Crown Court is a criminal court of both original and appellate jurisdiction. It dealt with the indictable criminal cases that have been appealed from Magistrates Court including with the serious criminal cases such as murder, rape and robbery (Elsa, 2013). The decisions of the Crown Court may be appealed to the Criminal Division of the Court of Appeal. The subordinate courts in England and Wales consist of County Court, followed by Magistrates Court, Youth Court and Tribunals services. In other words, the County Court is the highest level of court in the subordinate court among the other. Thus, the decisions made by County Court must be followed by the others. The County Court only dealt with civil matters including the most matter under the value of A£ 5000. For instance, claims for repayment of debts, breach of contract for goods or property, family issues and etc. The cases in County Court are heard by a judge without a jury. The decision of County Court may be appealed to the High Court. The Magistrates Court dealt with summary criminal cases and committals to the Crown Court including the simple civil case from youth courts, with gaming and liquor. Cases in Magistrates Court are normally heard by either a panel of three Magistrates or by a District Judge without a jury (FindLaw UK, 2014). The criminal decisions of Magistrate Court may be appealed to Crown Court, while the civil decisions may be appealed to the County Court. The Magistrate Court is presided over by a bench of lay magistrates or justices of the peace which is not legally qualified or a legally trained district judge who is formerly known as stipendiary magistrate sitting in each local justice area (Justis, 2013). Youth Court is similar to the Magistrates court and it dealt with the offender who is under age 18. The Youth Court is presided over by a specially trained subset of experienced adult magistrates or a district judge. In addition, Youth Court is never opened to public (FindLaw UK, 2014). There are many other specialist courts in UK. They often described as Tribunals rather than Courts. The Tribunals Service was created on 3 April 2006 (Judiciary, 2014). It makes decisions on the matters including immigration, criminal injuries compensation, social security, education, employment, tax, lands, and children support. The decisions of Tribunals may be appealed to the High Court (Justis, 2013). There is a similar court system in Northern Ireland which also consists of five levels including: the Supreme court, followed by the Court of Appeal, High Court, Crown Court, County Court and Magistrate Court. The court system of Scotland has consists of four levels including the Supreme Court and the Judicial Committee of the Privy Council, followed by the Court of Session and the High Court of Justiciary and followed by the Sheriff Court and Distinct Court.

Relevant Case

PHOTOLIBRARY GROUP LTD V BURDA SENATOR [2008] Fact: The Photolibrary Group Ltd (claimant) has supplied the Burda Senator (defendant) a German Publisher of gardening magazines with their non-digital photographic transparencies for over a number of years. The transparencies were sent to Burda’s London office with a delivery note that included terms and conditions of business. The delivery note has stated that in the event of loss while in the possession of the customer, a fee varying from A£450 to A£750 per item should be paid to claimant. The defendants lost nearly two thousand of the claimant’s transparencies and the claimants claimed over A£1.2 million under a clause in the delivery note. However, the defendant argued that there was never a contract relating to the transparencies also, the delivery note was not part of the contract as they had never signed it. Their only obligation was to take reasonable care of the transparencies while in their possession. Held: The case was held on High Court, the judge held that the delivery note was part of the contract between claimant and the defendant. The delivery note was to be treated as an offer which was accepted by the acceptance of the transparencies and their onward transmission to Germany. On the other hands, regardless of who made the offer and acceptance, the terms in the delivery note were simply incorporated through the previous course of dealing between the parties. Thus, the claimant was successful in establishing a contract and its terms included the provisions covering compensation for loss (Management, 2008) It means that, when a business has been concluded regularly by the same parties with the same basis over a number of years, it can be assume that the contractual position is understood by both sides. In this case, the parties were used to deal with each other and a well-established business practice had developed. The judge commented that where goods are delivered by way of business from one to another, it will be very uncommon that there is no contract between those parties.

Conclusion

As a conclusion, many of the features of the English legal system have their roots in mediaeval England. The English law has not been codified to a great extent. The law which originated in the King’s or Queen’s courts is known as common law. The sources for English law was came from various ways. It was due to the membership of EU and being a signatory of the ECHR and etc. The key features of English law consist of Continuity, Absence of codification, the system of precedent, the judiciary and the common law and equity. UK court structure is very confusing due to its three legal systems. England and Wales have the same legal system and law. Scotland has its own system of law and courts. Northern Ireland has a similar system to England and Wales. Basically, the court system structure has divided into two distinct sectors under the criminal and civil laws. The criminal law is designed to punish wrongdoer who have broken the criminal law. Civil law is designed to compensate those who have been injured by others in certain ways. .

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