Chapter 2: The Legal Systems

Chapter 2: The Legal Systems

a) Legal system

The legal system in United Kingdom:

• In legal practice in the UK the distinction between civil law and criminal law is more important to practicing lawyers. 
• The written constitution West minister has 
  • House of Commons 
  • House of Lords 
• Head of  state- The Monarch 
• No written constitution
• Jurisdiction

  • 4 countries 3 distinctive jurisdiction in UK:

    England and Wales 

    Scotland

    Northern Ireland 

b) Sources of law

(I) Legislation:  

• Predominant source of law in the UK are;

  • a) primary legislation-knows as ‘Acts’,

     b) secondary-known as by laws/ begin life as draft  called ‘bills’

• Parliament can enact any law it choses or repeal obsolete laws.

                 EU laws is the exception to this

• A new act is passed in order to:
  • Update or amend existing legislations
  • Legislate for new circumstances, enforce government policies.
  • Ensure UK compliance with international or EU laws. 
  • Consolidate laws by bringing them together 
  • Codify rules 

• Early development of bill 

  Government may proceed to initiate a consultative process by the publication of a green paper.

  These are published following the consultation or discussion with pressure groups, bodies, organization. 

• Passing as act 
  • All acts must be submitted to both houses.
  • Legislative process involves 3 readings in both houses;

    • 1st readings – tittle is read to Member of Parliament 

      2nd reading – Member of Parliament debate proposals, standing committee, and debate and approved

      3rd reading – the bill is represented 

  • Then goes to the readings is the upper house.
  • Parliamentary counsels – undertake the drafting of legislation 
  • Finally bill must receive royal assent from monarch. 
  • Government bills are introduced by government 
  • Private member bills are proposed by Member of Parliament

Custom 

• Common law system in UK.
• The legal system in many countries including Australia, Canada (except Quebes), USA (Except Louisiana), Ghana, Hongkong, India, Pakistan is based on common law.   
• The common law consists of the substantive law and procedure rules that are created by the judicial decision made in courts.
• Essential to common law 
  • The hierarchy of the courts

  • The principle of binding precedent 

    This means the decision of a higher court is binding to a lower court.

  • During trial counsel cite cases 
  • Case law
  • Judge in case may make other statements of law
  • Human rights Act 1988 – made UK refer to ultimate authority of the European court of Human Rights. 
  • Hierarchy of the courts is an essential to the common law
  • Here, the decision of higher court is binding to a lower court.
  • They also consider the decision of lower court but are not binding to follow them.

  • However, a rule set by a court of greater or equal status must be applied in common law.

     

The court system 

The court system in England and Wales

• Both criminal and civil courts in England and Wales primarily hear evidence.
• Lower courts – decide matters of fact
• Upper courts – decide matters of law
• Simple civil actions – e.g. family matters such as undefended divorce, heard either magistrate court or country courts

Magistrate court

• A single stipendiary (full time paid Magistrate who has qualified as lawyer)

• 3 lay magistrates (unpaid and established member of local community)

  No jury 

Country courts

• Also hears complex 1st instance civil case.
• E.g. contract disputes, consumer complaints
• Circuit judges and recorders sit
• Without juries usually. 
•  

High court of justice

Has both jurisdiction:

• Original jurisdiction
• Appellate jurisdiction 

If a point of law of general public importance are involved civil cases may leap frog from high court to House of Lords. 

House of Lords

• Binding on all other courts but not necessarily on itself.

  Consists of 12 life peers from judges and barristers.

Criminal courts 

• 95% of criminal cases are tried in magistrates.

Crown court

• For more severe punishment.

  May hear cases in circuit areas. 

  A jury of 12 people decides whether the defendant is guilty of the crime he or she is charged with.

d) Criminal justice and criminal proceedings:

Criminal justice

• Is the system of practices directed at upholding social control, deterring and mitigating crime or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. 
• The state prosecutes those who violate laws with crime.
• Police investigates the crime, approached and detains the suspects,
• A file on case is sent to CPS (Crown Prosecution service)

Criminal proceedings

• Initiated either by the serving of summons or by a warrant of arrest.
• Lawyer of CPS acts as public prosecutor

• Legal aid by criminal defense service 

  (R is the abbreviation for the Crown- Reign for a Queen and Reα for a king, i.e. R v. Green)

Criminal court proceeding 

• Justice is adversarial; each sides collects and presents their own evidence, attacks their opponents by cross examination. 
• In criminal trial.
  • The burden of proof is on the prosecution to prove beyond reasonable doubt that the accused is guilty. 
  • May be granted bail and temporarily released.
  • Statutory requirement for disclosure by the prosecution and defense. 
  • Courts verdict, if not guilty then acquitted. 

e) Civil procedure

• All cases concerning the goods, property, debt, repayment, breach of contract are subject to civil procedure rules.
• The Rules of 1999 in England and Wales made radical changes to civil process.
• The judge performs the role of case manager.
• The court sets timetable for litigation. 
• Proceeding with a claim:
  • Claims are initiated by the use of claim forms nation function as summons.
  • Claim form are used for the claimant to ask the court to make as an order.
  • The defendant with a response pack, either admit the claims using a form of submission, or defend it using a form of defense. 
  • Cases are advocated to track, small claims, fast track

f) Tribunals 

• Those bodies have functions of courts of law and are essentially judicial.
• Independently of the executive they delete the right and obligations of private citizens towards each other and towards a government. 
• Tribunal is a type of court with the authority to deal with a particular problem of disagreement.
• The intention of the tribunals is to provide a less formal proceeding in which claimants could lodge complains and respondents defend claim.
• The tribunal in Nepal is established through the act.
• Article 126 of Constitution of Nepal, 2072 has mentioned the power relating to justice shall be exercised by courts and other judicial bodies.
• Article 152(1) mentioned about other specialized courts, judicial bodies or tribunals. 
• They are revenue tribunal (Revenue tribunal act), tax tribunal, Debt recovery tribunal, foreign employment tribunal, etc. 

• Tribunals dealt with specific cases and particular problems or disagreement. 

  Prepared and edited by Pushpa Thapa.