英语国家概念-L8

Chapter

8

Justice and the Law

There is no single legal system in the United Kingdom. There is,

however,

a

general similarity between the separate systems of Eng

land

and Wales and of

Northern

Ireland.

Between

the

Scottish

system

and

those

of

the

rest

of

the

United

Kingdom

the

differences

are

more

extensive,

although

there

is

substantial identity at many points.

A feature common to all systems of law in the United Kingdom is that there is

no

complete

code.

The

sources

of

law

include:

(1)

statutes

(Acts

of

Parliament

and

subordinate

legislation

made

under

powers

conferred

by

Parliament);

(2)

a

large

amount of

unwrit

-

ten

from numerous decisions of the courts and other sources; (3) equity law (a

supplementary means to deal with cases not covered by common law); and (4)

European

Community

law,

which

derives

from

Britain's

membership

of

the

European

Union

and

is

confined,

mainly

to

economic

and

social

matters.

Another

common

feature

is

the

distinction

made

between

criminal

law

(concerned

with

wrongs

against

the

community

as

a

whole)

and

civil

law

(concerned

with

disputes

between

individua's

about

their

rights,

duties

and

obligations; and dealings between individuals and companies, and between one

company and another).

I .Criminal Proceedings

In

England

and

Wales,

once

the

police

have

charged

a

person

with

a

criminal offence, the

Crown Prosecution Service

assumes control of the case

and

independently

reviews

the

evidence

to

decide

whether

to

prosecute.

In

Scotland,

the

Lord

Advocate,

the

principal

Law

Officer

of

the

Crown,

is

responsible for prosecutions in the High Court, the sheriff courts and the district

courts. It is the law throughout the United Kingdom that as soon as anyone is

arrested, he must be charged and brought before the court with the least pos-

sible delay. Unless the case with which an arrested person is charged is

very serious, he will usually be granted bail if he cannot

be brought before

the court within a day.

All criminal trials are held in open court because the criminal law presumes the

innocence of the accused until he has been proved guilty beyond reasonable

doubt; every possible step is taken to deny

to the prosecution any advantage

over the defence. No accused person has to answer the questions of the police

before trial; if he does make a statement, this cannot be used in evidence at

his trial unless he has been cautioned in the proper terms; he is not compelled

to give vidence or to submit to cross- exarnihation in court.

Every accused person has the right to employ a legal adviser to conduct his

defence; if he cannot afford to pay, he may be granted aid at public expense. If

he is charged with murder, and has insufficient means, he must be granted legal

aid.

In criminal trials by jury, the judge passes sentence (as in all trials) but the

jury

decides

the

issue

of

guilt

or

innocence.

The

jury

consists

of

ordinary,

indepenedent

citizens

summoned

by

the

court:12

in

England,

Wales

and

Northern Ireland, and 15 in Scotland. People between the

ages of 18 and

70

(65

in

Scotland)

whose

names

appear

on

the

electoral

register,

with

certain exceptions,

are liable for jury service and their

names are chosen at

random.

If.

the

verdict

of

the

jury

cannot

be

unanimous,

it

must

be

by

a

majority.

In

England,

Wales

and

Northern

Ireland

if

the

jury

cannot

reach

a

unanimous decision the judge may allow a majority verdict provided that, in the

normal

jury

of

12

people,

there

are

not

more

than

two

dissenters.

In

Scotland the jury's verdict of

15 members

are

in favour. A

verdict of

acquittal for

the

accused,

who can

never again be charged with that specific crime,

II. Crimna1 Courts

1. England and Wales

Criminal courts in England and Wales include:

Magistrates'

Courts

which

try

summary

offences

(the

less

serious

offences

and the vast majority of criminal cases) and

less serious cases of burglary and some assaults).

can also be tried by jury in the Crown Court. A magistrates' court, which is

open to the public

and the media, usually consists of three unpaid

magistrates - known as justices of the peace - who are advised on points

of

law

and procedure by a

legally qualified clerk or

a qualified assistant.

A

magistrates'

court

sits

without

a

jury.

There

are

about

29,400

lay

magistrates serving

450

courts. A few full-time, legally qualified stipendiary

magistrates may sit alone; they usually preside in courts in urban areas where

the

workload

is

heavy.

In

1994

there

were

79

stipendiary

magistrates

in

England and Wales.

Youth Courts

which try most cases involving people under 18. These are

specialist magistrates' courts

which either sit

apart from other courts or are

held

at

a

different

time.

There

are

restricions

on

public

access

and

media

coverage. Where a young person under 18 is charged jointly with someone of 18

or over, the case is heard in an ordinary magistrates' court or the Crown Court.

If the young person is found guilty, the court may transfer the case to a youth

court for sentence.

The

Crown

Court

which

tries

the

most

serious

offences

(murder,

manslaughter, rape and robbery) and

by magistrates - The Crown Court sits at 93 centres and is presided over by

High Court judges, full-time Circuit Judges and part-time Recorders. England

and

Wales

are

divided

into

six

circuits

for

the

purpose

of

hearing

criminal

cases.

Each

circuit

is

divided

into

areas

containing

one

or

more

centres

of

High

Court

and

Crown

Court.

The

six

circuits

are:

Midland

and

Oxford,

North-eastern,

Northern,

South-eastern

(including

London),

Wales

and

Chester, and Western.

2. Scotland

There

are

three

criminal

courts

in

Scotland:

(1)

the

High

Court

of

Justiciary which tries the most serious crimes and has exclusive jurisdiction in

cases involving murder, treason and rape; (2) the sheriff court which deals

with

less

serious offences; and (3) the district court which tries minor offences.

Scotland has two

types of criminal procedure, known

as solemn

procedure

and

summary procedure.

In solemn procedure, a def endant is tried by a judge

sitting with a jury. In summary procedure the judge sits without a jury. All cases

in the

High Court

and the

more serious ones in sheriff courts are tried by a

judge

and

jury.

Summary

procedure

is

used

in

the

less serious

cases

in

the

sheriff courts, and in all cases in the district court. District court judges are

lay justices of the peace. In Glasgow there are also stipendiary magistrates who

are full-time lawyers with the same criminal jurisdiction in summary procedure

as the sheriff. Children under 16 who have committed an offence are normally

dealt with by children's hearings.

3. Northern Ireland

Cases involving

minor s

ummary offences are

he

ard

by

magistrates'

courts

presided

over

by

a

full-time,

legally

qualified

resident

magistrate

(a

paid

judge

with

legal

qualifications,

similar

to

stipendiary

magistrates

in

England

and

Wales).

County

courts

are

primarily

civil

law

courts.

Young

offenders under 17 are dealt

with by a juvenile court consisting of the resident

magistrate and two specially qualified lay members, at least one of whom must

be a woman.

The Crown Court

deals with criminal trials on indictment. It is served by High

Court and county court judges. Contested cases are heard by a judge and jury.

Appeals

in

criminal

cases

in

England

and

Wales

may

be

heard

by

the

Crown

Court,

the

High

Court,

the

Court

of

Appeal

(Criminal

Division),

and

in

certain cases, where points of law certified as of general public importance are

involved, by the House of Lords. in Scotland, appeals are heard by three or more

judges of the High Court of J usticiary; there is no final appeal to the House of

Lords. In Northern Ireland, appeals from magistrates' courts against conviction

or sentence are heard by the county court. An appeal on a point of law alone can

be

heard by

the

Northern

Ireland

Court

of

Appeal,

which

also

hears

appeals

from the Crown Court against conviction or sentence. Procedures for a further

appeal to the House of Lords are similar to those in England and Wales.

III. Civil Courts

1. England and Wales

Magistrates' Courts

have limited civil jurisdiction which extends

to family

proceedings

for

custody

and

maintenance

ozders

adoption

orders,

guardianship

orders

and

family

protection

orders.

The

courts

also

have

jurisdiction over public health cases and the recovery of local taxes.

The

main

courts

of

civil

jurisdiction

in

England

and

Wales

are

the

County

Courts

of which there are 270. The jurisdiction of county courts includes: (1)

actions founded upon contract and tort (actionable wrongs such as negligence,

defamation,

malicious

prosecution,

nuisance

and

trespass);

(2)

trust

and

mortgages cases;

(3)

actions for the recovery of

land; (4) cases

involving

disputes

between

landlords

and

tenants;

(5)

complaints

about

race

and

sex

discrimination;

(5)

admiralty case-s (maritime questions

and offences)

and

patent cases; and (6) divorce cases and other family matters.

All judges of the Supreme Court and all circ

uit judges and

recorders

have the power to sit in the county courts, but each court has one or more

circuit judges appointed to it by the Lord Chancellor; regular sittings are

normally taken by them.

The High Court

deals with the more complicated civil cases. Its jurisdiction

covers mainly civil and some criminal cases; it also deals with appeals from

tribunals and from magistrates' courts in both civil and criminal matters. The

High Court has three divisions: (1) The

Family Division,

which is

concerned with family law, including adoption and wills; (2) the

chancery

Division,

which deals with corporate and personal insolvency; disputes in the