A Devolved Parliament

The United Kingdom does not have a single legal system. Instead, England and Wales, Scotland and Northern Ireland have their own, with considerable differences in law, judicial procedure and court structure. There is, however, substantial similarity on many points and a large volume of modern legislation, including EC legislation, applies throughout the UK. In all three systems there is a common distinction between criminal law and civil law.

Most minor civil cases are dealt with by the county courts, of which there are about 270. Cases are heard by circuit judges or district judges. Magistrates courts are the lowest tier of the criminal justice system. Justice is delivered not by professional judges or lawyers, but by appointed representatives of the community, called Magistrates. Their main job is to deliver ‘summary justice’ to people charged with less serious crimes. They refer grave offences to the Crown Court.

Appeals from the Crown Court are made to the Court of Appeal. A further appeal from the Court of Appeal to the House of Lords can be brought if a point of law of general public importance is considered to be involved.

Although English legal dress has a long history, it has for the most part evolved in the same way as common law, without written regulation. Before the 17th century lawyers did not wear wigs, but professional discipline required that their hair and beards should be moderately short. Nevertheless, the introduction of wigs into polite society in the reign of Charles II (1660-85) was an innovation which could not be resisted! After a period of disapproval, wigs were generally assumed by lawyers in the 1680s.
Early wigs are difficult to identify in portraits of the period because they were of a natural colour and were sometimes combined with a lock of growing hair at the forehead. However, wigs soon became larger and increasingly stylised. By the middle of the 17th century wigs of powdered white or grey hair were the universal custom, but during George III’s reign (1760-1820) wigs went rapidly out of general use.
Although bishops were given royal permission to abandon their wigs in the 1830s, this was not necessarily true of other officials. There is a story that Lord Eldon, the Lord Chancellor of the day, was refused permission to leave off his wig at court!
In the 1860s the counsel were permitted to remove their wigs during a heatwave - this attracted some comment in the press and it was suggested that wigs were abandoned altogether by the legal profession. However, the proposal met with little support, though it has been a common occurrence ever since for judges to allow wigs to be left off in very hot weather, and sometimes turbans are allowed to be worn instead of wigs on religious grounds.

Criminal law deals with wrongs affecting the community for which a prosecution may be brought in the criminal courts. Civil law is about deciding disputes between two or more parties—individuals, companies or other organisations—and for providing a means of legal scrutiny of the actions of public bodies. The purpose of civil proceedings is not to punish, but to obtain compensation or some other appropriate remedy, although in England and Wales the payment of damages may sometimes have a punitive element.

The distinction between civil and criminal matters is not precise. All courts in England and Wales, and Northern Ireland have both a civil and a criminal jurisdiction (apart from county courts, whose jurisdiction is exclusively civil). However, the court of trial and the rules of procedure and evidence will usually differ in civil and criminal cases.

Statutes passed by Parliament are the ultimate source of law. There are no legal limits on what may be done by Act of Parliament, although a legal duty exists to comply with European Community (EC) law. In addition, statutes passed by the Scottish Parliament are a source of law in Scotland. A statute may also confer power on a minister, local authority or other executive body to make delegated legislation.

Modern statutes are usually brought into effect by an Order made by a minister of the Crown. The Order allows provisions to become effective when practical. Pilot schemes can be set up to test the operation of statutory provisions. Changing policies or circumstances may sometimes mean that provisions are not brought into effect, and may be repealed.

Common law in England and Wales covers many key areas which have, over the centuries, developed through the decisions of the courts. The concept of binding precedent means that decisions of higher courts bind those courts lower down in the court hierarchy, ensuring consistency of judicial approach. Judges give reasons for their decisions, and principles of law are stated, developed and modified. When government action is being tested, the court is considering the legality of that action and will try to ensure that government is not overstepping its proper role; the court does not seek to substitute its discretion for that of the public authority being challenged. Sources of law in Scotland include decisions of the courts as well as Acts of the previous Scottish parliament which ended in 1707.

EC law, which applies in the UK as a member of the European Union, is derived from the EC treaties, from the Community legislation adopted under them, and from the decisions of the European Court of Justice. That court has the highest authority, under the Treaty of Rome, to decide points of EC law. Where a point arises before a British court, it may refer the point of law to the Court of Justice for it to decide. Sometimes a court is obliged to make a reference to the European Court.

The decisions of the Court of Justice do not directly bind British courts, but the UK is under treaty obligation to uphold EC law. Consequently, British courts are obliged to apply EC law, even at the expense of not applying the provision of an Act of

Parliament. If a rule of statute or common law is incompatible with European Community law, it is Community law that will be applied by a British court. Under the Scotland Act 1998, the Parliament and the Executive are bound, as a matter of domestic law, to act in accordance with EC obligations.

The European Convention on Human Rights is an international treaty covering, among other rights, an individual’s right to life, prohibition of torture, right to a fair trial, right to respect for family and private life, freedom of expression and freedom of assembly. Most Convention rights can be limited by public authorities under certain circumstances. Individual rights sometimes have to be balanced against one another or the wider public interest.

The Convention was incorporated into UK law under the Human Rights Act 1998 on 2 October 2000. It requires all public authorities, including the courts, to act compatibly with the Convention rights (unless an Act of Parliament leaves no choice). It enables individuals to rely on those rights in any legal proceedings and to bring a claim against a public authority which has acted incompatibly with those rights. The Act requires a court to give effect to legislation, as far as possible, in a way that is compatible with Convention rights. A court cannot declare invalid an Act of Parliament which is incompatible with the Convention, but the higher courts may make a declaration of incompatibility. It will be up to Parliament to decide what action to take, if any, following such a declaration. In this way the Human Rights Act lays down a set of basic human rights against which laws and administration can be tested. In Scotland, as with EC law, the Scottish Executive and Scottish Parliament have to act in a way which is compatible with the Convention.

The law is enforced by judicial officers, both professional judges and lay justices who, together with juries in certain cases, are responsible for deciding disputed cases. The law also depends on officers of the court who have general or specialised functions of an administrative, and sometimes of a judicial nature in the courts to which they are attached.

Judges are legally qualified, being appointed from the ranks of practising barristers and advocates or solicitors. They have independence of office, and can be removed only in rare and limited circumstances involving misconduct or incapacity. They are not subject to ministerial control or direction. Full-time judges are generally expected to have previously sat in a part-time capacity (for about 15 days a year) in the same or a similar jurisdiction. There are approximately 3,500 full and part-time judges, including District Judges (Magistrates’ Courts), sitting in the civil and criminal courts in England and Wales plus approximately 10,000 full and part-time judiciary and members sitting in tribunals handling a range of disputes and appeals.

Magistrates in England and Wales, and justices of the peace in Scotland, are trained in order to give them sufficient knowledge of the law, including the rules of evidence, and of the nature and purpose of sentencing. There are nearly 30,000 lay magistrates working on a part-time, voluntary basis in England and Wales and around 260 full and part-time professional District Judges and Deputy District Judges (Magistrates’ Courts). There are 4,000 justices of the peace in Scotland. In Northern Ireland there are 19 resident magistrates, who are drawn from practising solicitors or barristers, with powers similar to those of District Judges (Magistrates’ Courts) and 18 deputy (part-time) magistrates.

Although people are free to conduct their own cases if they so wish, barristers (in Scotland, advocates) and solicitors, or other authorised litigators, generally represent the interests of parties to a dispute. (There are over 10,000 practising barristers in England and Wales and around 85,000 practising solicitors. Scotland has over 400 practising advocates and some 8,600 solicitors; in Northern Ireland there are about 450 barristers.) Barristers practise as individuals, but join a group of other barristers, in Chambers. Advocates in Scotland practise as individuals; they do not operate from Chambers and work independently of each other. Solicitors usually operate in partnership with other solicitors, unless they are selfemployed. Large firms of solicitors employ not only qualified staff, but also legal executives and support staff. Certain legal functions may be performed by non-lawyers—licensed conveyancers can act in conveyancing matters (the transfer of interests in land).

The Bar Council is the professional body representing barristers (in Scotland, the Faculty of Advocates); and the Law Society of England and Wales, Law Society of Scotland and Law Society of Northern Ireland represent solicitors. The profession is self-regulating, with the professional bodies exercising disciplinary control over their members.

The Legal Services Ombudsman for England and Wales oversees the way in which relevant professional bodies handle complaints about barristers, solicitors, legal executives, licensed conveyancers and patent agents. The Scottish Legal Services Ombudsman performs a similar task.

Government ministers, together with police authorities and chief constables, are responsible for providing an effective and efficient police service in the UK.

There are 52 police forces organised on a local basis—43 in England and Wales, eight in Scotland and one in Northern Ireland. Each force in Great Britain has volunteer special constables who perform police duties in their spare time, without pay, acting in support of regular officers. Civilian staff in England and Wales number about 54,600.

Police strength in England and Wales is about 125,500 (of which the Metropolitan Police numbers around 25,000). There are just over 15,100 officers in Scotland and 8,500 (plus 5,000 reserves) in the Northern Ireland Police Service (formerly called the Royal Ulster Constabulary—RUC).

Police authorities, in consultation with the chief constables and local community, set local policing objectives, while the Government sets ministerial priorities for the police as a whole.

The National Criminal Intelligence Service (NCIS) has the leading role in collecting and analysing criminal intelligence for use by police forces and other law enforcement agencies in the UK. NCIS coordinates the activities of the Security Services in support of the law enforcement agencies against organised crime, and liaises with the International Criminal Police Organisation (INTERPOL), which promotes international cooperation between police forces. It also provides the channel for communication between the UK and EUROPOL.

The role of the National Crime Squad, with 1,400 officers is to prevent and detect organised and serious crime across police force and national boundaries and to support provincial forces in their investigation of serious crime. The Scottish Crime Squad performs the same function in Scotland.

The FSS, a Home Office executive agency, provides scientific support in the investigation of crime to police forces in England and Wales through six regional laboratories. It also operates the national DNA database, which provides intelligence information to police forces by matching DNA profiles taken from suspects to profiles from samples left at the scenes of crime. In Scotland forensic science services are provided by four regional laboratories. The largest of these is based in Dundee. Northern Ireland has its own laboratory.

Police powers and procedures are defined by legislation and accompanying codes of practice. Evidence obtained in breach of the codes may be ruled inadmissible in court. The codes must be available in all police stations.

Stop and search—Police officers can stop and search people and vehicles if they reasonably suspect that they will find stolen goods, offensive weapons or implements that could be used for burglary and other offences. An officer must record the grounds for the search, and anything found, and the person stopped is entitled to a copy of the officer’s report. (Some 857,200 stop and searches were carried out by the police in England and Wales in 1999–2000.)

Arrest—The police may arrest a suspect on a warrant issued by a court, but can arrest without a warrant for arrestable offences (for which the sentence is fixed by law or for which the term of imprisonment is five years or more).

Detention and questioning—Suspects must be cautioned before the police can ask any questions about an offence. For arrestable offences, a suspect can be detained in police custody without charge for up to 24 hours. Someone suspected of a serious arrestable offence can be held for up to 96 hours, but not beyond 36 hours unless a warrant is obtained from a magistrates’ court. If someone thinks that his or her detention is unlawful, he or she may apply to the High Court for a writ of habeas corpus against the person responsible, requiring them to appear before the court to justify the detention. Habeas corpus proceedings take precedence over others.

Charging—Once there is sufficient evidence, the police have to decide whether a detained person should be charged with an offence. If the police institute criminal proceedings against a suspect, the Crown Prosecution Service (ügyészség) then takes control of the case.

The police in Scotland can arrest someone without a warrant, under wide common law powers, if suspects are seen or reported as committing a crime or are a danger to themselves or others. They also have specific statutory powers of arrest for some offences. In other cases they may apply to a justice of the peace for a warrant. As in England and Wales, Scottish police have powers to enter a building without a warrant if they are pursuing someone who has committed, or attempted to commit, a serious crime. A court can grant the police a warrant to search premises for stated items in connection with a crime, again as in England and Wales. The police may search anyone suspected of carrying an offensive weapon. Someone suspected of an imprisonable offence may be held for police questioning without being arrested, but for no more than six hours without being charged. If arrested, suspects must be charged and cautioned. The case is then referred to the procurator fiscal.

The law in Northern Ireland relating to police powers in the investigation of crime and to evidence in criminal proceedings is similar to that in force in England and Wales.

The policy in Great Britain is that the police should not be armed but that there should be specialist firearms officers, deployed on the authority of a senior officer where an operational need arises. In 1999–2000 there were over 11,000 operations in Great Britain where firearms were issued to the police. Most forces operate armed response vehicles to contain firearms incidents. In Northern Ireland police officers are issued with firearms for their personal protection

Various government departments, agencies and individuals share the responsibility of administering the system which dispenses justice in England and Wales. Most Acts of Parliament and the common law apply equally in both countries, although since devolution some legislation has applied differently in Wales.

The Lord Chancelor heads the judiciary and sits as a member of the judicial committee of the House of Lords. He also presides over the upper House in its law-making role, and, as a senior Cabinet minister, is in charge of the Lord Chancellor’s Department. This Department has overall responsibility (through the Court Service) for the court system in England and Wales, which includes the Supreme Court—comprising the Court of Appeal, High Court and Crown Court—the county courts and some tribunals. The Lord Chancellor advises the Crown on the appointment of all senior judges in England and Wales, and appoints most other judges and magistrates, consulting national executives and Senior Judiciary in Scotland and Wales where appropriate for tribunal appointments. In addition, he has policy responsibility for locally managed magistrates’ courts and responsibility for the civil justice process; promoting general reforms of the civil law; and arrangements for publicly financed legal services. He is also responsible for open government, including freedom of information and data protection; royal, Church and hereditary issues and Lords Lieutenants; Crown Dependencies and human rights issues.

The Home Secretary has overall responsibility for criminal law, the police service, the prison system, the probation service, and for advising the Crown on the exercise of the royal prerogative of mercy. (Think of the scandal in April 2006 when it came to light that the Home Secretary, Charles Clarke of Tony Blair's government had wrongly released 1,000 foreign prisoners of whom more than 250 (rapists, murderers and child sex criminals) were released after the Home Office found out about the "system failure"!)

The Attorney-General and the Solicitor-General are the Government’s main legal advisers, providing advice on a range of legal matters, including proposed legislation. They may also represent the Crown in difficult or publicly important domestic and international cases. In addition to his various civil law functions, the Attorney-General has final responsibility for enforcing the criminal law. The Solicitor-General is the Attorney-General’s deputy.

The Crown Prosecution Service (CPS) is headed by the Director of Public Prosecutions (DPP), who reports to the Attorney-General. Other prosecuting authorities include the Serious Fraud Office, which also answers to the Attorney-General, and bodies such as the Inland Revenue, Customs and Excise Commissioners, local authorities and trading standards departments which prosecute cases in their own discrete areas of work. Individual citizens may bring private prosecutions for most crimes, but some need the consent of the Attorney-General and these may be taken over by the DPP.

The four Heads of Division and other senior members of the judiciary may perform specific administrative functions. The Lord Chief Justice of England and Wales,1 for example, has some responsibilities for the organisation and work of the criminal courts, including issuing practice directions to the courts and members of the legal professions on criminal law and court procedures. Individual judges may be asked to carry out specific duties such as chairing a national inquiry, while other functions are performed by statutory committees comprising legal professionals and lay representatives. The Civil Procedure Rule Committee is responsible for making rules that govern the civil justice process.

Executive bodies or agencies such as the Prison Service and the Forensic Science Service manage their own functions. Since 1998 the Youth Justice Board for England and Wales has monitored the youth justice system, promoted good practice and advised the Home Secretary on its operation and the setting of national standards.

In addition, a wide range of other statutory and non-statutory advisory bodies gives advice to the Government. These include

the police inspectorates, the magistrates’ courts service, the probation service, the Audit Commission, the Criminal Justice Consultative Committee, law reform bodies such as the Law Commission and ad hoc Royal Commissions and departmental committees.

The CPS is responsible for prosecuting people in England and Wales who have been charged

by the police with a criminal offence. Although it works closely with the police, it is a governmental body independent of them. With headquarters in London and York, the service comprises 42 geographical Areas. These correspond to the 43 police forces in England and Wales, with the CPS London Area covering the operational boundaries of both City of London and Metropolitan Police Forces. Each Area is headed by a Chief Crown Prosecutor (CCP) supported by an Area Business Manager. The role of the CPS is to:

The Serious Fraud Office prosecutes cases of serious or complex fraud, with teams of lawyers, accountants, police officers and other specialists conducting investigations. The Office has wide powers that go beyond those normally available to the police and prosecuting authorities.

For minor offences, the police may decide to caution an offender rather than prosecute.

A caution is not the same as a conviction, and will not be given unless the person admits the offence. Under the Crime and Disorder Act 1998, cautioning for young offenders has been replaced with the final warning scheme.

If the police decide to charge someone, that person may be released on bail to attend a magistrates’ court. If not granted police bail, the defendant must be brought before a magistrates’ court (or, if under 18, a youth court) as soon as possible. There is a general right to bail, but magistrates may withhold it if there are grounds for believing that an accused person would run away, commit an offence, interfere with a witness or otherwise get in the way of justice. If bail is refused, an accused person has the right to apply again, subject to some limitations, to the Crown Court or to a High Court judge. In certain circumstances, the prosecution may appeal to a Crown Court judge against the granting of bail by magistrates.

Once a person has been charged, it is for the CPS to decide whether the case should proceed.

There are two types of criminal offences. Summary offences are the least serious and may be tried only in a magistrates’ court. Indictable offences are subdivided into ‘indictable-only’ (such as murder, manslaughter or robbery) which must be tried on indictment3 at the Crown Court by judge and jury, and ‘eitherway’, which may be tried either summarily or on indictment. Under a new procedure introduced in January 2001, indictable-only cases are sent straight to the Crown Court from an initial appearance before the magistrates. The defence may, if it wishes, challenge the prosecution case as soon as it has been served by making an application to the judge for the case to be dismissed.

Either-way offences, such as theft and burglary, can vary greatly in seriousness and a magistrates’ court must decide whether the

case is serious enough to be sent to the Crown Court. If the magistrates decide in favour of summary trial, however, the accused person has the right to a trial by jury in the Crown Court if he or she chooses.

Where an either-way case is to be tried on indictment, the magistrates’ court commits it to the Crown Court for trial if it is satisfied that there is a case to answer. In most cases this is accepted by the defence and the magistrates do not need to consider the evidence, but if the defence challenges the case, the magistrates consider the documentary evidence—without witnesses being called. In 1999, 1.9 million defendants were dealt with by magistrates’ courts, while 77,000 were dealt with in the Crown Court.

A magistrates’ court usually comprises three representatives of the local community who do not have professional legal qualifications, known as lay magistrates or justices of the peace ( JPs). They sit with a court clerk who advises them on law and procedure. In some areas a paid professional District Judge (Magistrates’ Courts) sits alone instead of the JPs. District Judges (Magistrates’ Courts) are becoming more common, although most cases are still dealt with by lay magistrates.

Magistrates’ courts committees (MCCs), made up of magistrates selected by their colleagues, are responsible for running the magistrates’ courts service locally. During 2000–01 the MCCs were reorganised and their number reduced, improving efficiency and bringing their boundaries into closer alignment with those of other criminal justice agencies, such as the police and the CPS.

Youth courts are specialist magistrates’ courts, which sit separately from those dealing with adults. They handle all but the most serious charges against people aged at least ten (the age of criminal responsibility) and under 18. Young offenders may also be tried in an adult magistrates’ court or in a Crown Court, depending on the type of offence they have committed. Only JPs who have been specially trained for the job sit in youth courts. Proceedings are held in private.

The Crown Court sits at about 90 venues, in six regional areas called circuits, and is presided over by High Court judges, circuit judges and part-time recorders. The type ofjudge dealing with a case and instructing the jury of 12 members of the general public will depend on which Crown Court the case is being heard in. Not all Crown Courts handle cases of the same level of seriousness.

An independent review of the practices and procedures of, and the rules of evidence applied by, the criminal courts in England and Wales was announced by the Lord Chancellor in December 1999.

The prosecution and the defence form the two opposing sides in criminal trials. The law presumes an accused person is innocent until proved guilty beyond reasonable doubt by the prosecution. Accused people have a right at all stages to stay silent; however, when questioned, failure to mention facts which they later rely upon in their defence may not be helpful to their case. There are rules governing the pre-trial disclosure of material by both the prosecution and the defence. A judge may, in a case to be tried on indictment, hold a preliminary hearing, where pleas of guilty or not guilty are taken. If the defendant pleads guilty, the judge will simply decide upon the appropriate sentence. If a not guilty plea is entered, the prosecution and defence are expected to help the judge identify the key issues and provide any additional information required for the proper and efficient trial of the case.

Criminal trials normally take place in open court (that is, members of the public and press are allowed to hear the proceedings, unless there are specific reasons why this would not be appropriate) and it is the prosecution’s job to prove their case. Strict rules of evidence govern how this may be done. Certain types of evidence may be excluded because they could be prejudicial or unreliable. Written statements by witnesses are allowed with the consent of the other party or in limited circumstances at the discretion of the court. Otherwise evidence is taken from witnesses testifying orally on oath. Child witnesses may testify without taking the oath and their evidence must be received by the court unless the child is incapable of giving intelligible

testimony. A child in some circumstances can testify via a live TV link or the court may consider a video-recorded interview, subject to the defence having the right to question the child in cross-examination.

In England and Wales a government-funded organisation, Victim Support, provides practical help and emotional support to victims of crime with the help of around 16,000 volunteers. It also runs the Witness Service, which advises victims and other witnesses attending Crown Court centres (and is developing similar services in magistrates’ courts). Victim Support Scotland provides a volunteer-based service similar to that provided by Victim Support in England and Wales. A separate scheme operates in Northern Ireland. In 1998 the Government published a report—Speaking up for Justice—on improving the treatment of witnesses (including children) who become involved in the criminal justice system in England and Wales. Twenty-six of the report’s recommendations required statutory force and were included in the Youth Justice and Criminal Evidence Act 1999. The implementation plan includes the provision of pagers for intimidated witnesses, new rules on cross-examination and evidence, and practical help and protection for vulnerable witnesses (including children).

Blameless victims of violent crime in England, Wales and Scotland may be eligible for compensation from public funds under the Criminal Injuries Compensation Scheme. In Northern Ireland there are separate statutory arrangements for compensation for criminal injuries, and for malicious damage to property.

In jury trials the judge decides questions of law, sums up the case to the jury, and discharges or sentences the accused. The jury is responsible for deciding questions of fact. The jury’s verdict may be ‘guilty’ or ‘not guilty’ and the latter would result in an acquittal. Juries may, subject to certain conditions, reach a verdict by a majority of at least 10–2.

If an accused person is acquitted, there is no right of appeal from the prosecution, and the accused cannot be tried again for that same offence. However, an acquittal may be set aside and a retrial ordered if there is proof that a juror has been interfered with or intimidated. A jury is independent of the judiciary and any attempt to interfere with its members is a criminal offence. People aged between 18 and 70 whose names appear on the electoral register are liable to be chosen at random for jury service. Various occupations, such as police officers, lawyers and doctors, are exempted from serving.

The court will sentence the offender after considering all the relevant information it has on the case, which may include a pre-sentence or any other specialist report, and a mitigating plea by the defence. Magistrates may impose a fine of up to Ł5,000 and/or a maximum sentence of six months’ imprisonment, but can send the offender to the Crown Court if they feel their sentencing powers are not sufficient. Taking away someone’s freedom is only done where the offence is so serious that this action alone is justified. In 1999, 8% of males and 3% of females found guilty of all offences were given a custodial sentence. A term of up to two years’ imprisonment may be

suspended. Courts are required to impose minimum three-year sentences on offenders convicted of a third offence of domestic burglary. A second serious violent or sexual offence requires a court to order a life sentence unless there are exceptional circumstances. Life imprisonment is the mandatory sentence for murder, and is also available for certain other serious offences. The death penalty is no longer available for any offence; it has not been used in the United Kingdom since 1965.

Community sentences may include community rehabilitation orders (involving supervision in the community—see p. 235); community punishment orders (unpaid work within the community); community

punishment and rehabilitation orders (elements of both probation supervision and community service work); curfew orders (requiring the offender to remain at a specified place for specified periods, usually monitored by electronic tagging); and drug treatment and testing orders (see p. 217). The Criminal Justice and Court Services Act 2000 contained two new measures: drug abstinence orders, which require an offender to abstain from misusing Class A drugs and to undertake drugs tests on instruction; and exclusion orders (likely to be monitored by electronic tagging) requiring offenders to stay away from a certain place for specified periods. Both types of order are to be piloted during 2001 before being introduced nationally.

A fine is the most common punishment, and most offenders are fined for summary offences. A court may also make compensation orders, which require the offender to pay compensation for personal injury, loss or damage resulting from an offence; or impose a conditional discharge, where the offender, if he or she offends again, may be sentenced for both the original offence and for the new one.

In May 2000 the Government announced a review of the legal framework for sentencing and its impact on reducing re-offending. The review—the Halliday Report—was published in May 2001. It made wide-ranging proposals, including increased severity of sentencing of persistent offenders, and restructuring of sentences under 12 months.

The main custodial sentence for 12 to 17 year olds is the detention and training order which was introduced in April 2000 and replaced detention in a young offender institution and the secure training order. It is a two-part sentence which combines a period of custody with a period under supervision in the community. It may last for a minimum of four months to a maximum of two years and there is provision for the custodial element to be shortened or lengthened depending on the young offender’s progress.

Offenders under 18 convicted of certain serious offences may be detained for a period not exceeding the maximum term ofimprisonment which would be available for that offence in the case of an adult. Those convicted of murder are detained ‘during Her Majesty’s pleasure’—the equivalent of a life sentence in the case of an adult.

Non-custodial penalties include: conditional discharge; fines and compensation orders (with

the offender’s parents having to pay); supervision orders (where the offender must comply with specific requirements, such as staying in local authority accommodation); and attendance centre orders. Those aged 16 or 17 may also be given the same community rehabilitation, community punishment, community punishment and rehabilitation, drug treatment and testing, curfew and exclusion orders as older offenders. From February 2001 the courts have been able to sentence offenders aged 10–15 to a curfew order with electronic tagging. This was previously only available for offenders aged 16 or over.

Other new orders are also available, including a reparation order, which requires young offenders to compensate the victim(s) of their offence or the community which they have harmed in some non-financial way; and an action plan order, making them comply with an individually tailored programme intended to alter their offending behaviour.

Complementing these are parenting orders, which require a parent or guardian to attend counselling and guidance sessions, and may direct them to comply with other requirements; and child safety orders, which place a child under ten who is at risk of becoming involved in crime or is behaving in an anti-social manner under the supervision of a specified, responsible officer.

Prohibitive anti-social behaviour orders (ASBOs) may be applied to individuals or groups whose threatening and disruptive conduct harasses the local community. Anyone in breach of such an order is guilty of a criminal offence. ASBOs and sex offender orders are applicable throughout the UK. By the end of March 2001, around 215 ASBOs had been issued.

A young offender convicted in court for the first time and pleading guilty may be sentenced to a referral order where an absolute discharge or custodial sentence is not

appropriate. These orders are being piloted in seven areas in England and Wales. The offender is referred to a panel of two community volunteers and a member of the Youth Offending Team who agree a programme of activity aimed primarily at preventing re-offending. The target date for national implementation of referral orders is April 2002.

A person convicted by a magistrates’ court may appeal to the High Court, on points of law, and to the Crown Court, for their trial to be reheard. Appeals from the Crown Court go to the Court of Appeal (Criminal Division). A further appeal can be made to the House of Lords on points of law of public importance, if permission is given. A prosecutor cannot appeal against an acquittal, but there is a system for reviewing rulings of law and sentences which are too lenient. The Criminal Cases Review Commission, which is independent of both government and the courts, reviews alleged miscarriages of justice in England, Wales and Northern Ireland. Referral of a case to this body depends on some new argument or evidence coming to light, not previously raised at the trial or on appeal.

The coroner (usually a senior lawyer or doctor) must hold an inquest if a person died a violent or unnatural death, or died suddenly while in prison or in other specified circumstances. He or she may also need to hold an inquest if the cause of death remains unknown following a post-mortem examination. The coroner’s court establishes how, when and where the death occurred. A coroner may sit alone or, in certain circumstances, with a jury.

Jurisdiction in civil matters is split between the High Court and the county courts and, to a limited extent, magistrates’ courts. Some 90% of all cases are dealt with by the county courts, but most civil disputes do not go to

court at all, and most of those which do, do not reach a trial. Many are dealt with through statutory or voluntary complaints mechanisms, or through mediation and negotiation. Arbitration is common in commercial and building disputes. Ombudsmen have the power to determine complaints in the public sector, and, on a voluntary basis, in some private sector activities (for example, banking, insurance and pensions).

A large number of tribunals exist to determine disputes. Most deal with cases that involve the rights of private citizens against decisions of the State in areas such as social security, income tax and mental health. Some tribunals deal with other disputes, such as employment. In all, there are some 70 tribunals which together deal with over 1 million cases a year.

The Queen’s Bench Division deals with disputes relating to contracts, general commercial matters (in a specialist Commercial Court), and breaches of duty—known as ‘liability in tort’— (covering general civil wrongs, such as accidents caused by negligence, or defamation of character). The Administrative Court has special responsibility for dealing with applications for judicial review of the actions of public bodies, and has the power to declare the action of a public individual, department or body unlawful.

The Chancery Division deals with disputes relating to land, wills, companies and insolvency.

The Family Division deals with matrimonial matters, including divorce, and the welfare of children.

About 220 county courts handle claims in contract and in tort (of these, 179 deal with family issues including divorce and the welfare of children) and a wide range of statutory matters. The majority of claims dealt with concern the recovery and collection of debt. The next most common types of claims relate

to recovery of land and personal injury. Magistrates’ courts have limited civil jurisdiction: in family matters (when they sit as a Family Proceedings Court) and in miscellaneous civil orders.

Appeals in most civil cases were reformed by the Access to Justice Act 1999 (see below). Appeals from magistrates’ courts in civil matters go to the High Court, on matters of law, or to the Crown Court, if the case is to be re-heard. A further appeal on points of law of public importance goes to the House of Lords.

a unified code of procedural rules, replacing separate sets for the High Court and county court and enabling both to deal with cases more appropriately. Courts now take a more active case management role than before, handling them in a way which is proportionate to their value, complexity and importance;

pre-action protocols (for clinical negligence, personal injury, construction and other professional negligence disputes), which set standards and timetables for the conduct of cases before court proceedings are started; and

disputed claims are assigned by a judge according to the value and complexity of the case. These are the:

— small claims track, for cases worth less than Ł5,000, at an informal hearing by a district judge;

— fast track, for cases from Ł5,000 to Ł15,000, setting a fixed timetable from allocation to trial; and

— multi-track, for cases worth over Ł15,000 or of unusual complexity, which are supervised by a judge and given timetables tailored to each case.

Judges have a key role in reducing cost, delay and complexity, by managing cases to

ensure that people going to law and their representatives keep to the timetable, and undertake only necessary work.

The Access to Justice Act 1999 reformed the workings of the appeals system according to the principles of proportionality and efficiency, by:

diverting from the Court of Appeal those cases which, by their nature, do not require the attention of the most senior judges in the country; and

making various changes to the working methods and constitution of the Court, which will enable it to allocate its resources more effectively.

The Civil Justice Council oversees the working of the civil justice system, and makes proposals for its improvement.

The Scottish legal system differs in many respects from that of England and Wales. This is because, during the 16th century, it based itself partly on medieval church laws and partly on those borrowed from other European legal systems. The 1707 Treaty of Union allowed Scotland to keep Scots law, its own courts and legal profession. The prosecution, prison and police services are also separate from those in England and Wales.

Scots law has legal principles, rules and concepts modelled on a combination of medieval church laws and those borrowed from other European systems. The main sources are judge-made law, certain legal treatises having ‘institutional’ authority, legislation, and EC law. The first two sources are sometimes referred to as the common law of Scotland. Legislation, as in the rest of the UK, consists of statutes (Acts of Parliament) or subordinate legislation authorised by Parliament.

When arrested, an accused person may be released by the police to await summons, on an undertaking to appear in court at a specified time, or be held in custody to appear in court on the next working day. Following that appearance, the accused may be remanded in custody until trial or released by the court on bail. If released on bail, he or she must agree to appear at trial when required, not to commit an offence while on bail, and not to interfere with witnesses or obstruct justice. There is a right of appeal to the High Court against the refusal of bail, or by the prosecutor against the granting of bail, or against the conditions imposed.

Prosecution Arrangements

The Crown Office and Procurator Fiscal Service provides Scotland’s independent public prosecution and deaths investigation service. The Department is headed by the Lord Advocate, assisted by the Solicitor-General for Scotland (who are the Scottish Law Officers and members of the Scottish Executive). The Crown Agent, a senior civil servant, is responsible for the running of the Department.

Procurators fiscal and Crown Office officials prepare prosecutions in the High Court which are conducted by the Lord Advocate and the Solicitor-General for Scotland; they in turn delegate the bulk of their work to advocates depute, collectively known as Crown Counsel, of whom there are 13. In all other criminal courts the decision to prosecute is made, and prosecution carried out, by procurators fiscal, who are the Lord Advocate’s local representatives (one for each sheriff court). They are lawyers and full-time civil servants subject to the direction of the Department.

The police report gives details of alleged crimes to the local procurator fiscal who has discretion whether or not to prosecute. He or she may receive instructions from the Crown Counsel on behalf of the Lord Advocate.

The office of coroner does not exist in Scotland. Instead the local procurator fiscal inquires into sudden or suspicious deaths. When appropriate, a fatal accident inquiry may be held before the sheriff; this is mandatory in cases of death resulting from industrial accidents and deaths in custody.

Criminal Courts

There are three criminal courts in Scotland: the High Court of Justiciary, the sheriff court and the district court. Cases are heard under one of two types of criminal procedure:

In solemn procedure in both the High Court of Justiciary and the sheriff court, an accused person’s trial takes place before a judge sitting with a jury of 15 people selected at random from the general public. As in England and Wales, the alleged offence is set out in a document called an indictment. The judge decides questions of law and the jury decides questions of fact and may reach a decision by a simple majority. They may decide to find the accused ‘guilty’, ‘not guilty’ or ‘not proven’; the last two are acquittals and have the effect that the accused cannot be tried again for the same offence.

In summary procedure in sheriff and district courts, the judge sits without a jury and decides questions of both fact and law. The offence charged is set out in a document called a summary complaint.

Pre-trial hearings (called ‘diets’) in summary and solemn cases are intended to establish the state of readiness of both the defence and the prosecution.

The High Court of Justiciary is the supreme criminal court in Scotland, sitting in Edinburgh, Glasgow and on circuit in other towns. It tries the most serious crimes and has exclusive jurisdiction in cases involving murder, treason and rape.

The 49 sheriff courts deal mainly with less serious offences committed within their area of jurisdiction. These courts are organised in six sheriffdoms; at the head of each is a sheriff principal. There are over 100 permanent sheriffs, most of whom are appointed to particular courts. The sheriff has jurisdiction in both summary and solemn criminal cases. Under summary procedure, the sheriff may impose prison sentences of up to three months (although more in some cases) or a fine of Ł5,000. Under solemn procedure, the sheriff may impose imprisonment for up to three years and unlimited financial penalties, and has an additional power of remit to the High Court of Justiciary if he or she thinks a heavier sentence should be imposed. The sheriff also has available a range of non-custodial sentences, principally community service and probation.

District courts, which deal with minor offences, are the administrative responsibility of the local authority. The longest prison sentence which can be imposed is generally 60 days and the maximum fine is Ł2,500. The bench of a district court will usually be made up of one or more Justices of the Peace. A local authority may also appoint a stipendiary magistrate, who must be a professional lawyer of at least five years’ standing, and who has the same summary criminal jurisdiction and powers as a sheriff. At present, only Glasgow has stipendiary magistrates sitting in the district court. A government review of the operation of the district courts was announced in May 2000.

In Scotland a court must obtain a social enquiry report before imposing a custodial sentence if the accused is aged under 21 or has not previously served a custodial sentence. A report is also required before making a probation or community service order, or in cases involving people already subject to supervision.

Non-custodial sentences available to the courts include fines, probation orders, community service orders, restriction of liberty orders (monitored by electronic tagging) and supervised attendance orders (which provide an alternative to imprisonment for non-payment of fines, and incorporate aspects of work and training).

Criminal proceedings may be brought against any child aged eight or over, but the instructions of the Lord Advocate are necessary before anyone under 16 years of age is prosecuted. Most children under 16 who have committed an offence or are considered to be in need of care and protection may be brought before a Children’s Hearing. The hearing, consisting of three people who are not lawyers, determines whether compulsory measures of care are required and, if so, the form they should take.

institutions. Remission of part of the sentence for good behaviour, release on parole and supervision on release are available.

The High Court of Justiciary sits as the Scottish Court of Criminal Appeal. In both solemn and summary procedure, a convicted person may appeal against conviction, or sentence, or both. The Court may authorise a retrial if it sets aside a conviction. There is no appeal from this court in criminal cases. The Scottish Criminal Cases Review Commission is responsible for considering alleged miscarriages of justice and referring cases meeting the relevant criteria to the Court of Appeal for review.

The main civil courts are the Court of Session (the supreme court, subject to appeal only to the House of Lords in London) and sheriff court (the principal local court).

may hear cases from the outset or on transfer from sheriff courts and tribunals on appeal. A leading principle of the court is that cases starting there are both prepared for decision, and decided, by judges sitting alone whose decisions are subject to review by several judges. The total number of judges is 32, of whom 24, called Lords Ordinary, mainly decide cases in the first instance. This branch of the court is called the Outer House. The other eight judges are divided into two divisions of four judges each, forming the Inner House. The First Division is presided over by the Lord President of the Court of Session and the Second Division by the Lord Justice-Clerk. The main business of each division is to review, on appeal, the decisions of the Lords Ordinary or inferior courts.

In addition to its criminal jurisdiction, the sheriff court deals with most civil law cases in Scotland. There is, with very few exceptions, no upper limit to the financial level with

which the court can deal, and a broad range of remedies can be granted. Cases may include debts, contracts, reparation, rent restrictions,

actions affecting the use of property, leases and tenancies, child protection issues and family actions. There is a right of appeal in some cases from the sheriff to the sheriff principal and then, in some cases, to the Court of Session.

The House of Lords hears relatively few appeals in civil matters from Scotland but, since devolution, the Judicial Committee of the Privy Council (JCPC) has had jurisdiction to consider disputes involving devolution issues. When dealing with Scottish cases, the JCPC usually includes at least two Scottish judges and can sit in London or elsewhere as appropriate.

Civil Proceedings

The formal proceedings in the Court of Session are started by serving the defender with a summons or, in sheriff court cases in ordinary actions, an initial writ. A defender who intends to contest the action must inform the court; if he or she fails to do so, the court normally grants a decree in absence in favour of the pursuer. Where a case is contested, both parties must prepare written pleadings, after which a hearing will normally be arranged.

In summary cause actions involving sums between Ł750 and Ł1,500 in the sheriff court, a summons incorporates a statement of claim. The procedure is designed to let most actions be settled without the parties having to appear in court. Normally, they, or their representatives, need appear only when an action is defended.

In cases below Ł750 a special small claim procedure allows those who do not have legal advice to raise claims themselves. The procedures are similar to, but less formal than, the summary cause procedure. In addition to the courts, there is a wide range of tribunals which administer justice in special types of case. Many of these are the same as in the rest of Great Britain; others, such as the Land Court, the Lands Tribunal and the Children’s Hearings, only apply to Scotland.

Administration of the Scottish Legal System

The Scottish Executive Justice Department, under the Minister for Justice, is responsible

for civil law and criminal justice, including criminal justice social work services, police, prisons, courts administration, legal aid, and liaison with the legal profession in Scotland. The Scottish Court Service, an executive agency of the Scottish Executive Justice Department, deals with the work of the Supreme Courts and the sheriff courts.

The Lord Advocate and the Solicitor-General for Scotland provide the Scottish Executive with advice on legal matters and represent its interests in the courts. Since devolution, the Advocate-General for Scotland has provided advice on Scots law to the UK Government.

The role of the Scottish Parliament is to make laws on matters devolved to it (see chapter 4). In these areas, it is able to amend or repeal existing Acts of the UK Parliament and to pass new legislation for Scotland of its own. It can also consider and pass private legislation, promoted by individuals or bodies (for example, local authorities).

The Court of Session and the High Court of Justiciary enact the rules regulating their own procedure and the procedures of the sheriff courts and the lay summary courts. The Court of Session and Criminal Courts Rules Councils, and the Sheriff Court Rules Council, consisting of judges and legal practitioners, advise the courts about amending the rules.

Legal System in Northern Ireland

Northern Ireland’s legal system is similar to that of England and Wales. Jury trials have the same place in the system, except in the case of offences involving acts of terrorism. In addition, cases go through the same stages in the courts and the legal profession has the same two branches.

Superior Courts

The Supreme Court of Judicature comprises the Court of Appeal, the High Court and the Crown Court. All matters relating to these courts are under the jurisdiction of the UK Parliament. Judges are appointed by the Crown.

The Court of Appeal consists of the Lord Chief Justice (as President) and two Lords Justices of Appeal. The High Court is made up of the Lord Chief Justice and five other judges. The practice and procedure of the Court of Appeal and the High Court are virtually the same as in the corresponding courts in England and Wales. Both courts sit in the Royal Courts of Justice in Belfast.

The Court of Appeal has power to review the civil law decisions of the High Court and the criminal law decisions of the Crown Court, and may in certain cases review the decisions of county courts and magistrates’ courts. Subject to certain restrictions, an appeal from a judgment of the Court of Appeal can go to the House of Lords.

The High Court is divided into a Queen’s Bench Division, dealing with most civil law matters; a Chancery Division, dealing with, for instance, trusts and estates, title to land, mortgages and charges, wills and company matters; and a Family Division, dealing principally with such matters as matrimonial cases, adoption, children in care and undisputed wills.

The inferior courts are the county courts and the magistrates’ courts, both of which differ in a number of ways from their counterparts in England and Wales.

County courts are primarily civil law courts. They are presided over by one of 14 county court judges, two of whom—in Belfast and Londonderry—have the title of recorder. Appeals go from the county courts to the High Court. The county courts also handle appeals from the magistrates’ courts in both criminal and civil matters. In civil matters, the county courts decide most actions in which the amount or the value of specific articles claimed is below a certain level. The courts also deal with actions involving title to, or the recovery of, land; equity matters such as trusts and estates; mortgages; and the sale of land and partnerships.

The day-to-day work of dealing summarily with minor local criminal cases is carried outin magistrates’ courts presided over by a fulltime, legally qualified resident magistrate (RM). The magistrates’ courts also exercise jurisdiction in certain family law cases and have a very limited jurisdiction in other civil cases.

People accused of offences specified under emergency legislation are tried in the Crown Court without a jury. The prosecution must prove guilt beyond reasonable doubt and the defendant has the right to be represented by a lawyer of his or her choice. The judge has to set out in a written statement the reasons for conviction and there is an automatic right of appeal to the Court of Appeal against conviction and/or sentence on points of fact as well as of law.

The Lord Chancellor is responsible for court administration, while the Northern Ireland Office, under the Secretary of State, deals with policy and legislation concerning criminal law, the police and the penal system. The Lord Chancellor has general responsibility for legal aid, advice and assistance.

The Director of Public Prosecutions for Northern Ireland, who is responsible to the Attorney-General, prosecutes all offences tried on indictment, and may do so in other (summary) cases. Most summary offences are prosecuted by the police.

The Prison Service in England and Wales, the Scottish Prison Service and the Northern Ireland Prison Service are all executive agencies. There are currently 138 prison establishments in England and Wales (nine of which are run by private contractors), 17 Scottish establishments and three establishments in Northern Ireland.

Prison accommodation ranges from open prisons to high-security establishments. Sentenced prisoners are classified into

different risk-level groups for security purposes. Women prisoners are held in separate prisons or in separate accommodation in mixed prisons. There are no open prisons in Northern Ireland.

Independent Oversight of the Prison System

Every prison establishment in England, Wales and Northern Ireland has a board of visitors, comprising volunteers drawn from the local community appointed by the Home Secretary or Secretary of State for Northern Ireland. Boards, which are independent, monitor complaints by prisoners and concerns of staff, and report as necessary to ministers.

Independent Prisons Inspectorates report on the treatment of prisoners and prison conditions, and submit annual reports to Parliament. Each prison establishment is visited about once every three years.

In England and Wales prisoners who fail to get satisfaction from the Prison Service’s internal request and complaints system may complain to the independent Prisons Ombudsman.

Privileges and Discipline

Prisoners in the UK may write and receive letters, be visited by relatives and friends, and make telephone calls. Privileges include a personal radio; books, magazines and newspapers; and watching television. Earnable privileges, dependent on good behaviour, include extra and improved visits, higher rates of pay, community visits, and longer periods out of cell.

Offences against prison discipline are dealt with by prison governors, who act as adjudicators. In England, Wales and Scotland measures to counter drug misuse in prisons include mandatory drug testing. Voluntary testing has been piloted in Northern Ireland, but there is no mandatory programme. People awaiting trial in custody have certain rights and privileges not granted to convicted prisoners.

National Statistics, UK 2002, The Official Yearbook of Great Britain and Northern Ireland

statute law	írott jog
common law	szokásjog, polgárjog
conventions	egyezmények, szokások
judge	bíró
barrister	ügyvéd (bíróság előtti felszólalási joggal)
solicitor	ügyvéd (magasabb bíróság előtti felszólalási jog nélkül)
Bar Council	ügyvédi kamara