Legal English Lessons

8/16/2019 Legal English Lessons

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chapter 1: The English legal system: sources, development and language

Since the way in which England’s legal system developed played a decisive role in the way in whichlegal English also developed, we will start by taking a brief look at the history of English 1 law andlegal language.

1 Sources and development

The wide range of sources of English law, as we will see in greater detail below, themselves eplainmuch of the hybrid, comple nature of legal English. The law in England has evolved from a number of principal sources, namely:

• Legislation2. This is now basically the sole source for introduction of new legal principles,

although many fundamental !elds of law are sub"ect to common law and e#uity. $egislationitself can be divided into three separate types: %cts of &arliament' (known as primary legislation)* Statutory +nstruments (referred to as secondary or delegated legislation)* and&rerogative +nstruments-.

• Common Law . The !rst law common’ to the whole of England with centralised supervision.+t is also known as case law or the law of precedent, since it developed as a result of thedecisions of the courts.

• Equity . +ntroduced to correct failings in the common law. The term itself dates back toTudor times, although the /ourt of /hancery, which administered this kind of "ustice, wasestablished in the 1th century. 0or centuries, common law and e#uity were administered byseparate courts with separate procedures, which were not uni!ed until the udicature %cts123'43-.

• The European Union. Since the 5nited 6ingdom "oined the EE/ in 1738, European lawhas been a direct source of English law.

•European Convention on Human Rights

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. 5nder the 9uman ights %ct 1772, publicbodies are obliged to comply with the E/9.

+n addition to these principal sources, there are various secondary sources of English law, namely:

• Custom. ;uch of early common law was the result of "udges applying English customs thateisted prior to the


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• Canon law . The inAuence of ecclesiastical law was particularly seen in the /ourt of /hancery, which was under the direct responsibility of the /hancellor, an oBice originallyreserved for clerics. This eplains why this court administered a type of moral "ustice./anon law was also applied in the ecclesiastical courts, which eisted as independent courtsuntil 12-3. /ases involving marriage, historically regarded as a religious issue, were dealtwith by this court until that date.

• Roman law . %lthough this forms the basis of most European legal systems, it has only

limited and indirect inAuence on English law. The main route through which oman $awarrived in the English system is Cracton’s De Legius et Consuetudinius !ngliae, writtensometime in the 188Ds4'Ds3, and inAuenced by ustinian. /ommon law "udges dealing with acase of !rst impression2 may have consulted Cracton.

• Books of authority . There are only about a doen books which are accepted as such. Themost fre#uently still referred to are /oke’s "nstitutes of the Laws of England (1@82 onwards)and Clackstone’s Commentaries on the Laws of England (13@-), which was basically the lastbook to be recognised as an authority.

The development of common law and e#uity, in particular, does much to eplain the compleity of legal English, and before moving on to strictly linguistic considerations, we will brieAy look at thesetwo areas.

1.1 The development of the Common Law and Equity

1.8.1 The /ourts

Cefore the institutional stability resulting from the in the presence of the king?.

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egis18, or 6ing’s /ouncil. The Eche#uer of &leas split from the /uria during the 117Ds1', and beganto sit as an independent, central court based in =estminster 9all. +nitially a court of both common lawand e#uity, it lost much of its common law "urisdiction through the formation of the /ourt of /ommon&leas, and from then on concerned itself with e#uitable matters and those common law falling underits "urisdiction, such as actions brought by the monarch against non4paying debtors.

$ike the /ourt of Eche#uer, the /ourt of 6ing’s Cench grew out of the /uria egis. %t !rst, it was notspeci!cally a court of law, but the centre of royal power and national administration. +n 1132, 9enry ++

ordered that !ve "udges of his household should remain in a !ed venue and refer only diBicult casesto him. %lthough originally interpreted as referring to the foundation of the 6ing’s Cench 1, laterscholarship, however, has tended to see this decree as creating the /ourt of /ommon &leas, with the6ing’s Cench branching oB from the former at some later date1-, although the issue is still a matter of controversy. Cy 18', there was clearly an independent 6ing’s Cench, since from this year onwardsdistinct plea rolls are found for each court. The result was a separation between the hearing of matters relevant to the king (listed in the coram rege roll) and those that had no royal connection,namely common pleas (listed in the de anco roll).

The 6ing’s Cench, being a theoretically movable court, was not authoried to hear common pleas,which included all actions for the recovery of property or debt, while actions of trespass (tortscommitted to real property, personal property, or a person) and replevin (a procedure to recover goodsunlawfully withheld from the claimant’s possession) were shared between the two benches. +n

practice, pleas of the /rown were heard only in the 6ing’s Cench. These were cases where the kinghad an interest (e.g. felonies, which were considered oBences against the /rown1@). The 6ing’s Cenchwas further divided into two parts: the /rown side, which had unlimited criminal "urisdiction, and theplea side, which dealt with actions of trespass and appeals of felony.

5nder Edward + (ruled 183841'D3), the 6ing’s actual presence became increasingly rare, and by 1'12the court sat independent of the monarch. 0rom 181 onwards, it also ceased follow the king aroundthe country and became a !ed court sitting in =estminster 9all.

The /ourt of /ommon &leas was the busiest court. %lthough it dealt with some criminal matters in itsearly days, over time its "urisdiction came to eclude them, and became settled in the 1 th century tocover cases where the king had no interest. This in practice meant those between sub"ects, includingactions taken to recover debts or property, which made up the vast ma"ority of civil cases. +t howevercontinued to be used by the king for his own civil actions. The /ourt of /ommon &leas more than any

other shaped medieval common law, and heard many more cases than the 6ing’s Cench.

1.8.8 &rocedure

%s said, 9enry ++ developed the practice of sending "udges from his own central court to hear the various disputes throughout the country. 9owever, there still remained a ma"or practical problem.=hile the itinerant "ustices brought royal "ustice to the counties, there were considerable costs interms of delay. $itigation in the central courts, on the other hand, could be epensive andimpracticable if the persons involved lived far from $ondon. The diBiculties of attendance were solvedby the appearance in around 18DD of a class of professional attorneys, who were allowed to representtheir absent clients through all the stages of a lawsuit. The chief diBiculty, however, was that theconduct of trials by "ury H which rapidly became a common feature of royal "ustice H re#uired the

18 The /uria egis, the forerunner of &arliament, was a council of tenants4in4chief and clerics, whom the king consulted on legislative matters. Since all landin England was the property of the crown, the nobles were in eBect tenants.Tenants4in4chief were barons who held their land as tenants directly from theking, as opposed to through some other nobleman or high4ranking member ofthe clergy.

1' 0or further details, see Caker, .9., %n +ntroduction to English $egal 9istory,Gford, 8DD8, p. 3.

1 %ccording to this originally supposed chronology, the /ourt of /ommon &leas

came into eistence via ;agna /arta, in 181-.1- /f. Turner, alph I., >The Grigins of /ommon &leas and 6ing’s Cench?,in The !merican &ournal of Legal $istory, Temple 5niversity, 1733, p. 82.

1@ This is still the case, with criminal proceedings referred to as ' v (mith, foreample (where ' stands for 'egina, or 'e)).

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presence of at least twelve men from the vicinity where the matter in #uestion occurred. To havere#uired the presence at =estminster of "uries would have brought the system to a point of collapse.The solution was provided by the introduction of trial at nisi prius. The Statute of =estminster ++ in182- established that the "ury would sit and reach verdict in one of the 6ing’s /ourts sitting at=estminster 9all, unless prior (nisi prius) to the date set for the hearing at =estminster, the case washeard at the local court, or assizes, in the claimant’s county. +n practice, and since this was the aim of the statute, trial nearly always did take place locally, thus reducing the costs of taking legal action,which previously re#uired the time and epense of going to $ondon. %lthough the trial took placelocally, it should be noted that actions were still started in =estminster, and only then referred for

local trial at the assies at nisi prius, subse#uently passing back to the original court for review. +nother words, although the main, central part of the process was handled locally, the 6ing’s /ourts stillsupervised the trial, with proceedings starting and ending at =estminster.

This system also eplains the origins of the law of precedent, so central to English law. The king’s "udges would discuss their cases and the decisions they made with the other "udges. These decisionswould be recorded and !led. +n time, a rule, known as stare decisis (also commonly known asprecedent) developed, which is where a "udge would be bound to follow the decision of an earlier "udge* he was re#uired to adopt the earlier "udge’s interpretation of the law and apply the sameprinciples promulgated by that earlier "udge, that is, if the two cases had similar facts to one another.Cy this system of precedent, the pre4


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delegated to the 6ing’s chief minister, the /hancellor, and ultimately led to the creation of a separatecourt, the /ourt of /hancery, which applied rules of fairness and conscience, based on natural "usticeand moral rules. Fue to the very nature of their conception, these rules were often in conAict withthose of the common law, but in such cases would nevertheless prevail.

+n contrast to the common law courts, where form was of crucial importance, in the /ourt of /hanceryno original writ was necessary, and actions were commenced by informal complaint, either by bill orword of mouth. &leading was in English, and as far as possible free from technical language, although

common4law terminology was adopted where convenient. There was no "ury, and the court could sitanywhere. These advantages allowed chancellors to provide swift and inepensive "ustice, especiallyto the poor and oppressed. Gne vital diBerence compared to common law procedure was that in/hancery each case was eamined on the basis of its speci!c facts* the decrees operated in personam*they were binding on the parties in the cause, but did not initially constitute binding precedent.

+t has been said that the /hancery was not a court of law, but a court of conscience. Cy Eliabethantimes there had been established the modern concept of law as a body of rules applicable to a givenset of facts. The chancellor, by contrast, was less concerned with general rules than with individualcases. 9e combined the role of "udge and "ury, and had etensive powers of investigation andenforcement, and was not re#uired to make the same kind of distinctions between fact and law as thecommon law courts. This in itself eplains the slow development of /hancery "urisprudence* in most

cases the court’s aim was to establish the merits of a case on the facts, rather than to apply legalrules. This also eplains why the chancellor’s "ustice was considered superior to that of the commonlaw, which was less Aeible.

+t was in Tudor times that the chancellor’s form of "ustice ac#uired the name of e#uity’.

Gver time, the continued eistence of two parallel systems, each with their own courts andprocedures, created problems of "urisdiction, and the issue was not resolved until their uni!cationunder the udicature %cts of 123'43-. The principles of the two original systems however survived,with the result that modern courts administer both law and e*uity . 9owever, in the case of conAict,e#uity prevails. ;oreover, the /hancery Fivision was created within the 9igh /ourt of ustice, anddeals with many of the matters traditionally brought before the /ourt of /hancery, namely business

disputes, bankruptcy and probate.

%n important point to remember is that the principles of common law and e#uity are both sub"ect tothe doctrine of stare decisis, or binding precedent. /ourts in fact may decide whether or not e#uitableprinciples should be applied in a given case, but not on how they may applied, being bound byprevious e#uitable rulings, although this is an area in which precedent developed more slowly, due tothe very nature of the early /ourt of /hancery, as mentioned previously. The doctrine of bindingprecedent is one reason why language has played such an important role in the common law. +f, in aprior decision, the court ruled that a certain term or formula had a particular meaning, then thisprecise term or form would have to be adopted in future in order to achieve the same particularmeaning. This is one of the main arguments against linguistic change presented by lawyers.

+t may be a good idea at this point to take a closer look at the concept of precedent.

+n law, a precedent is a legal case establishing a principle or rule that a /ourt may need to adopt whendeciding subse#uent cases with similar issues or facts. The term may also refer to the collective bodyof case law that a court should consider when interpreting the law. =hen a precedent establishes animportant legal principle, or represents new or changed law on a particular issue, that precedent isoften known as a landmark decision.

9owever, in order for a precedent to be binding for a /ourt, the precedent must be identical in termsof the law and facts of the case, and must originate from a higher4ranking /ourt.

=e can distinguish between two types of precedent: binding precedent and persuasive precedent.

Bining an persuasive pre!eent

% precedent that must be applied or followed is known as a binding precedent.+n law, a binding precedent (also mandatory precedent or binding authority) is a precedent whichmust be followed by all lower courts. +t is usually created by the decision of a higher court, such as the9ouse of $ords. %lthough higher courts may often adopt the legal reasoning of lower courts. Cindingprecedent relies on the legal principle of stare decisis+

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+n etraordinary circumstances a higher court may overturn or overrule binding precedent, but willoften attempt to distinguish the precedent before overturning it, thereby limiting the scope of theprecedent in any event.

+n a case of !rst impressions, a case which has never been dealt with by any /ourt, there is no bindingprecedent for the court to consider.

% precedent that is not binding, because it has been issued by $ower /ourts, but that is useful orrelevant is known as persuasive precedent or advisory precedent. +n a case of !rst impression, courts

often rely on persuasive precedent from courts in other "urisdictions that have previously dealt withsimilar issues. &ersuasive precedent may become binding through the adoption of the persuasiveprecedent by a higher court.

This means, of course, that in some areas of the law, especially in criminal law, precedents of manycenturies ago are still referred to in /ourt.

1.2 Language

$egal English did not actually start out life as "ust English. The language of legislation and the courtswas in fact predominantly 0rench and $atin. The


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/hapter 8: The language of English law

=e will be looking at legal language in closer detail today. The lesson is divided into two sections:

• Section 1: the features of legal English (vocabulary, style, synta and morphology)

• Section 8: problems interpreting legal English

=e need to eamine legal tets from two diBerent perspectives:

"niviual terminology

Larger te#t organisational units an genres H structure typical of contracts etc.

$e!tion %& the features of legal English

1 The general features of legal English

$ike legal language in other cultures, legal English is a comple type of discourse.

The general features of legal English are as follows

a Latinisms. English law grew out of a system that evolved in the ;iddle %ges when $atin,supported by the power and prestige of the oman /hurch, was the lingua francathroughout Europe for written tets and intellectual debate. Secondly, oman law was acoherent written system that for centuries had been developing over a wide area of Europe.+t was therefore inevitable that some of its language should become used in the tets andprofessional speech of English legislators, who shared a common culture with theircolleagues elsewhere. There are hundreds of $atin phrases in common legal use, such asprima facie, ona %de and res /udicata.

a0 Terms of 'ren!h or (orman origin. Terms dating back to the period following the


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action etc. Cecause these terms are identi!ed so closely with the system that producedthem, some believe they are impossible to translate, but can only be adapted for use bylawyers in a diBerent legal system, such as that in +taly. This is known by translators as theproblem of e#uivalence, and we will have a brief look at this concept later.

a) $emi.te!hni!al or mi#e terms. This group consists of words and phrases from everydaylanguage which have ac#uired additional meanings when used in the specialist contet of legal activity. Gften, terms have a variety of meanings. % case in point is the word issue:

o without issue (without children)

o the parties could not agree on the issue

o the passport was issued by the $iverpool oBice

o parties must wait for process to issue from the court (be served).

b) Everyay vo!a*ulary . This group, which is naturally the largest, consists of terms ingeneral use that are regularly found in legal tets. The fact that a term is commonly used ineveryday English does not however mean that it corresponds to a similar everyday term in+talian. The English paragraph, for eample, corresponds to the +talian comma.

8) 0eatures of the morphology and synta of legal English

a) Unusually long senten!es. Sections of English acts (laws) may be etremely long, of up to8DD4'DD words, with multiple subordination and postponement of the main verb until verylate in the sentence. 9owever, this should not cause a diBiculty to +talian readers, who areused to such compleity in their own legislation.

b) The !omple#ity of English legal synta# . The synta of English legislation and contracts isetremely comple also due to the abundance of restrictive connectors, such as:notwithstanding, under, su/ect to, having regard to, relating to, pursuant to, in order to, inaccordance with, whereas and many more.

c) )*unant use of the passive voi!e. The passive is often used to establish rules whichapply universally, for eample >no late submissions will be accepted?* >payment must bemade within seven days?. The implied sub"ect is too obvious to re#uire stating.

d) Conitionals an hypotheti!al formulations. +n tets like statutes, contracts andhandbooks containing procedural rules, many possible situations and eceptions must beprovided for. The result is that the language in which they are written, and legal languagegenerally, is full of syntactic indicators of condition and hypothesis, which may be eitherpositive (if, when, where, whenever, wherever, provided that, in the event of , and manyothers) or negative (unless, failing, should+++ not+++, e)cept where and so on).

e) )!tive an passive parties in legal relationships& the su/i#es 0er1.or an 0ee . ;ostlegal activity is concerned with the creation, eercise and etinction of rights and withdisputes concerning those rights. +n criminal cases the two parties are the State (or the/rown in England) and the accused, or the prosecution and the defence. +n civil proceedingsthey are the plaintiB (or claimant) and the defendant. +n proceedings the courts ad"udicatebetween the rival claims of two sides or adversaries. This eplains the generic name of

>adversarial procedure? for the English system, rather than the >in#uisitorial procedure?characteristic of the investigating "udge found in +talian criminal law.

Gn the other hand, a feature of legal relationships created at the desire of the parties is the use of thesuBies 1er23or and 1ee to form the names of the active and passive parties. 0or eample, the partywho grants a right is a grantor and the person who receives it is a grantee. +n contracts, a party whichmakes a promise is a promisor, and the party receiving is a promisee. There are many other eamplesof this kind such as lessor2lessee, licensor2licensee, assignor2assignee.

$e!tion 2 -ro*lems interpreting legal te#ts in English

% "nterpretation

Gne result of the comple nature of legal language is that the interpretation of terms and wordscreates not only a problem for foreign students wishing to understand them, but also at times for the "udges and courts in England itself. There are however a number of rules adopted to deal withproblems of how to interpret disputed or unclear terms. The main rules are as follows:

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a the literal rule: words that are reasonably taken to have a single meaning are to be giventhat meaning, however strange the result.

a) Focuments and statutes are to be construed as a whole, the idea being that internalinconsistencies will thus be avoided.

b) The golden rule: ordinary words are to be given their ordinary meanings and technicalterms their technical meanings, unless the outcome is absurd.

c) The mischief rule: when the aim of the statute is to cure defects in the law, any ambiguous

terms are to be construed in such a way as to favour that outcome.d) The e/usdem generis’ rule: when a document contains a list of speci!c items belonging to

the same class followed by general words, the general words are to be interpreted asreferring to other items of the same class (e/usdem generis). 0or eample, if law refers to>cows, pigs, goats and other animals?, the phrase >other animals? means other farm animalsand does not include, for instance, !sh, foes or crocodiles.

e) The rule e)pressio unius est e)clusio alterius’, i.e. the inclusion of the one signi!es theeclusion of the other’. This is the other side of the previous rule, and means that if speci!cwords in a list are not followed by other general ones, the list is to be regarded asehaustive, e.g. >weekends and public holidays? ecludes working weekdays.

f)

/hapter ': The English legal system 1 the legal profession, the courts

Today we will be looking at the English legal system in terms of the administration of "ustice. Thelesson is divided into three sections:

• Section 1: the legal profession

• Section 8: the court system

• Section ': civil and criminal proceedings

$e!tion %& the legal profession

The legal profession in England and =ales has two branches, solicitors and barristers. There are some@3,DDD solicitors in England and =ales, and only 2,-DD practising barristers.

The profession dates back to the 1' th century, with the establishment of the royal courts. $itigation incentral courts, often far from home, re#uired management by men who could follow the king’s courtwherever it might be and who understood its procedures. ;oreover, the increasing technicality of theoral proceedings in court, conducted in 0rench, soon made epert advocacy indispensable. 0rom the very start, these two functions were conceived of as being distinct. The forespeaker’ (advocatus orprolocutor ) who stood beside a litigant and spoke for him, sub"ect to correction, was #uite diBerentfrom the representative (attornatus or procurator ) who stood in another’s shoes and acted on hisbehalf so as to bind him. There has thus never been any #uestion of the English legal profession

dividing into two* the division of function preceded the appearance of a profession, though the preciseallocation of functions has shifted over the centuries.

Barristers represent clients in the courts on the instruction of solicitors, although their eclusiverights of audience in the higher courts have been eroded in recent years. Carristers are litigationspecialists, lawyers that restrict their practice to the courtroom. They form the choicest part of thelegal profession and are collectively known as the Car. Carristers are organised into sets of /hambers,but are essentially self4employed. udges are chosen from among the best barristers with at least 8D years’ professional eperience at the Car.

Carristers are rarely instructed by their clients directly, but by the client’s solicitor, for eample whena case needs to be presented at one of the higher courts. Carristers also act as legal consultants,however, since they often have a highly specialised knowledge of case4law, precedent, and complelegal issues. =hen a solicitor comes up against an unusual point of law, they may seek the opinion of

counsel’ (as barristers are referred to) on the issue.

$oli!itors are organised into !rms of varying sie from sole practitioner to large multinationalpractices. They provide all legal services and instruct barristers. Their main "ob is giving legal advice.Solicitors prepare legal documents such as contracts and wills, and deal with simpler matters, such asconveyance (act of transferring property title from one person to another) and simple civil andcriminal cases in lower courts.

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Barristers an soli!itors& i/eren!es an evelopments Solicitors traditionally dealt with anylegal matter apart from conducting proceedings in courts, with some eceptions. ;inor criminal casestried in ;agistrates’ /ourts, for eample, and small value civil cases tried in county courts are almostalways handled by solicitors. The other branch of the English legal profession, the barrister, hastraditionally carried out the advocacy functions. This is, however, no longer the case, as soli!itor avo!ates (solicitors who have #uali!ed for a grant of rights of audience in the higher courts wherethey have suBicient training and eperience) may act at certain higher levels of court which werepreviously barred to them. Similarly, the public may now engage a barrister directly and without theneed for a solicitor, although only in certain circumstances. The traditional division still continues,

although the general move is towards a fusion of the profession. The only essential diBerence thatremains is that a solicitor is an attorney, which means that they can act in the place of their client forlegal purposes (as in signing contracts), and may conduct litigation by making applications to thecourt, writing letters in litigation to the client’s opponent and so on. % barrister is not an attorney andis usually forbidden, either by law or professional rules or both, from >conducting? litigation. Thismeans that while the barrister speaks on the client’s behalf in court, the barrister does so wheninstructed by a solicitor.

The reasons for a split profession are normally historical, however a number of reasons are stilladvanced for maintaining split professions:

• 9aving an independent barrister reviewing a cause of action gives the client a fresh andindependent opinion from an epert in the !eld.

•

9aving recourse to all of the specialist barristers at the bar enables smaller !rms, whocould not maintain large specialist departments, to compete with larger !rms.

• % barrister acts as a check on the solicitor conducting the trial* if it becomes apparent thatthe claim or defence has not been properly conducted by the solicitor prior to trial, thebarrister can (and usually has a duty to) advise the client of a separate possible claimagainst the solicitor.

• 9aving trials conducted by eperienced specialist advocates makes for smoother, moreprofessionally run trials.

%gainst that, a number of disadvantages are put forward:

• % multiplicity of legal advisers leads to higher costs.

• %s barristers are dependent upon solicitors for referrals of work, it is open to #uestion howwilling barristers are to criticise those who instruct them to the client.

• Carristers are sometimes criticised for being >over4specialised? and not having suBicient

general epertise outside of their !elds in some highly specialised !elds, such as intellectualproperty law or ta law.

Eu!ation. $aw degrees in the 56 are at undergraduate level. &rofessional training is provided atpostgraduate level by means of the Car Iocational /ourse (CI/) for would4be barristers, and the$egal &ractice /ourse ($&/) for solicitors. Students with a !rst degree in a sub"ect other than $awmust follow a one4year #ualifying course (known as the /&E, or /ommon &rofessional Eamination) inthe core sub"ects of law before being eligible for the #ualifying courses. +n order to enter theprofession student solicitors must !nd a post as a trainee solicitor, and barristers must obtain apupillage in a set of barristers’ chambers. Entry to both branches of the profession is etremelycompetitive.

$e!tion 2& the !ourts

% "ntrou!tion

The !ourt system

The lowest !riminal !ourts are the ;agistrates /ourts, which deal with minor oBences. ;ore serious

cases are heard in the /rown /ourt, in front of "udge and "ury. The /rown /ourt also hears casesappealed from the ;agistrates /ourts on factual points. /ases are appealed on points of law to the9igh /ourt (Jueen’s Cench Fivision). %ppeals against conviction and sentence are to the /ourt of %ppeal (/riminal Fivision).

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Civil !ases at !rst instance are heard in the /ounty /ourts (for minor claims) or the 9igh /ourt,which is divided into three divisions: Jueen’s Cench, 0amily and /hancery. /ases may be appealed tothe /ourt of %ppeal (/ivil Fivision). /ases may be appealed from the /ounty /ourt to the 9igh /ourt.

The court of last resort is the Supreme /ourt.

+n addition to the courts there are specialised Tribunals, which hear appeals on decisions made by various public bodies and Kovernment departments, in areas such as employment, immigration, socialsecurity, ta and land.

There has been etensive reform of civil procedure in recent years. 0ollowing on the publication of ama"or report on %ccess to ustice by $ord =oolf in 177@, a completely new set of civil procedure ruleswere put into operation in 1777, as well as new legislation for modernising the courts and legalservices.

%, Courts of law

a The !ounty !ourt The county court deals with civil cases. % case can be started in anycounty court but it may be transferred to the defendant’s local court. +f the case is defendedand the claim is for a !ed amount of money, the case will be transferred automatically bythe court to the defendant’s local court (if the defendant is an individual not a company). +nother cases the defendant can re#uest its transfer.

Eamples of cases dealt with by the county court. /ounty courts can deal with a wide range of cases,but the most common ones are:4

• landlord and tenant disputes, for eample, possession (eviction), rent arrears, repairs

• consumer disputes, for eample, faulty goods or services

• personal in"ury claims (in"uries caused by negligence), for eample, traBic accidents, fallinginto holes in the pavement, accidents at work

• undefended divorce cases

• some domestic violence cases, but these may also be heard in the magistrates court

• race, se and disability discrimination cases

• debt problems, for eample, a creditor seeking payment

• employment problems, for eample, wages or salary owing.

a) The magistrates3 !ourt ;agistrates’ courts deal with criminal and some civil cases, andcases are dealt with either by "ustices of the peace, who are un#uali!ed and who are paidonly epenses, or by Fistrict udges (;agistrates’ /ourts) who receive some payment.;agistrates courts usually only deal with cases which arise in their own area.

/ivil cases in the magistrates’ court. ;agistrates can deal with a limited number of civil cases asfollows:4

• some civil debts, for eample, arrears of income ta, national insurance contributions,council ta and I%T arrears

• licences, for eample, granting, renewing or taking away licences for pubs

• some matrimonial problems, for eample, maintenance

• welfare of children, for eample, adoption proceedings.

b) The Crown Court The /rown /ourt deals with the following types of cases:4

• more serious criminal oBences which will be tried by "udge and "ury

• appeals from the magistrates court (on points of fact) 4 which are dealt with by a "udge andat least two magistrates

+mprisonment and !nes in the /rown /ourt are more severe than in the magistrates court.

c) The High Court The 9igh /ourt deals with civil cases, hears appeals in criminal cases,and also has the power to review the actions of individuals or organisations to make surethey have acted legally and "ustly. The 9igh /ourt has three divisions, as follows:4

The 'amily 4ivision

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The 0amily Fivision deals with comple defended divorce cases, dissolution of civil partnerships,wardship, adoption, domestic violence and so on. +t also deals with appeals from magistrates andcounty courts in matrimonial cases.

• The 5ueen3s Ben!h 4ivision

The Jueens Cench Fivision deals with large andLor comple claims for compensation. +t also dealswith a limited number of appeals from ;agistrates’ /ourts or /rown /ourts (on points of law), as wellas reviewing the actions of organisations to see whether they have acted legally, and with libel andslander actions.

The Chan!ery 4ivision

The /hancery Fivision deals with trusts, contested wills, winding up companies, bankruptcy,mortgages, charities, contested revenue (usually income ta) cases etc.

d) The Court of )ppeal The /ourt of %ppeal deals with civil and criminal appeals in Englandand =ales. /ivil appeals from the 9igh /ourt and the county court are also dealt with./riminal appeals include appeals against convictions in the /rown /ourt, and points of lawreferred by the %ttorney Keneral following ac#uittal in the /rown /ourt or where thesentence imposed was unduly lenient.

e) The $upreme Court of the Unite ingom. 5ntil 'D September 8DD7, the 9ouse of

$ords was the supreme court of appeal. +ts "udicial functions were #uite separate from itslegislative work, and cases were heard by up to 1' senior "udges known as $aw $ords. +ts "udicial functions were taken over on 1 Gctober 8DD7 by the Supreme /ourt. The Supreme/ourt was established by &art ' of the /onstitutional eform %ct 8DD- and started work on1 Gctober 8DD7. The main argument in favour of establishing the court was that the 9ouseof $ords’ role as a legislature and "udiciary should be separated. The main argument againstthe court was that the previous system had worked well and kept costs down.

The reform was motivated by concerns that the historical admiture of legislative, "udicial, andeecutive power might not be in conformance with the re#uirements of the European /onvention on9uman ights, because a "udicial oBicer having legislative or eecutive power might not beconsidered suBiciently impartial to provide a fair trial.

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The English !ourt system

/hapter : Civil procedure: presenting a claim, defence

%, -arties an !laims

/ivil courts, which usually means the /ounty /ourts and the 9igh /ourt of ustice, hear cases broughtby persons who claim to have suBered some wrong, harm or in"ury. These wrongs may be of diBerenttypes, e.g. personal in"ury, loss of or damage to property, damage to reputation or to rights. Thein"ured party who brings the action is called the plaintiB or claimant and their adversary is thedefendant. +n addition to tort and breach of contract, civil cases often involve disputes concerningproperty rights, succession or contentious probate proceedings, divorce suits, unfair dismissal actions,or disputes over industrial or intellectual property, amongst many others. +n some of these matters,e.g. divorce proceedings, the claimant is sometimes called the petitioner and the defendant therespondent.

+n civil proceedings, the plaintiB seeks a remedy. The usual remedy is damages and in fact there is arule that no other remedy will be allowed if the court considers that damages is an ade#uate remedy.Gther forms of remedy are relief H which sometimes involves the eemption from charge, duty orliability H and the granting of an in"unction. +n"unctions are best understood as temporary court ordersissued to one of the parties, usually the defendant, to do or refrain from doing something until thecourt has reached a !nal "udgment in the matter.

% civil action begins when a claimant presents a claim form to the court. +n this form, the claimantsets out the facts relied on, details the nature and ob"ect of the claim, and states the remedy sought,as well as the relevant legal grounds. The court chosen for the presentation of the claim will dependon the value and type of claim. Fetails provided by the 56 government include the followinginstructions:

2%

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&roceedings (whether for damages or for a speci!ed sum) may not be started in the 9igh /ourt unlessthe value of the claim is more than M1-,DDD.

22

&roceedings which include a claim for damages in respect of personal in"uries must not be started inthe 9igh /ourt unless the value of the claim is M-D,DDD or more.

...

27

Sub"ect to paragraphs 8.1 and 8.8 above, a claim should be started in the 9igh /ourt if by reason of:

(1) the !nancial value of the claim and the amount in dispute, andLor

(8) the compleity of the facts, legal issues, remedies or procedures involved, andLor

(') the importance of the outcome of the claim to the public in general,

the claimant believes that the claim ought to be dealt with by a 9igh /ourt "udge.

...

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The following proceedings may not be started in a county court unless the parties have agreedotherwise in writing:

(1) a claim for damages or other remedy for libel or slander, and

(8) a claim in which the title to any toll, fair, market or franchise is in #uestion.

4ractice Directions for Civil rocedure 'ules0

The claim form is then served by the court on the defendant, accompanied by the response pack,which contains three forms: one for acknowledgement of service, one for admission of the claim andone for defence of the claim.

2, 4efen!e

+f the defendant fails to acknowledge service within 81 days, the claimant is entitled to seek default "udgment from the court. +f, on the other hand, the defendant !lls in and returns the admission form,he or she is obviously admitting at least some part of the claim. Thirdly, the return of a defence formsignals the defendant’s intention to contest the action. Iarious types of defence can be set up, thechief ones being the following:

Traverse. 9ere the defendant simply denies the facts alleged in the plaintiB’s claim. This is suBicient,

since the principle of all litigation, civil and criminal, is that the burden of proof rests on the partymaking the claim or accusation against the other party.

Confession an avoian!e. +n this case the defendant admits the literal truth of the facts alleged bythe claimant but adds others which, if true, would eBectively defeat the claim.

9*:e!tion in point of law . This is when the defendant has good grounds to believe that the case islegally inadmissible, being frivolous and veatious or an abuse of the process of the court.

Counter!laim; !ross.!laim or !ross.a!tion. This is virtually a new claim in which the roles of claimant and defendant are reversed, but with the advantage to the defendant that he or she canapply for stay of eecution of any "udgment favourable to the plaintiB on the original action until "udgment is given on the counterclaim.


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This is the appropriate track for ordinary claims not eceeding M-,DDD, with procedural rules of suchsimplicity that it ought to be possible for litigants to conduct the case themselves without the need forlawyers.

The fast tra!k

this is the track used for claims valued at between M-,DDD and M1-,DDD and for those involving non4monetary claims, e.g. claims seeking an in"unction or speci!c performance of the contract when theplaintiB alleges breach of contract. Typical matters for fast track allocation include claims based onprofessional negligence, contentious probate, fraud, defamation and claims against the police. +n fast4

track cases courts have a duty to ensure that trials will not last longer than one day.

The multitra!k

This is the appropriate track for cases valued at over M1-,DDD andLor deemed to be unusually comple.+n general, cases involve commercial and business law, company law and so4called specialistproceedings, including arbitration, maritime law and intellectual and industrial property. ;any of these matters eventually involve hearings of some compleity in the 9igh /ourt. The /hanceryFivision of the 9igh /ourt has "urisdiction over comple issues regarding property, while the Jueen’sCench Fivision, with its dual civil and criminal "urisdiction, hears all issues concerning "udicial review.

7, The trial

+n civil cases, the public hearing is called the trial. The procedure is eternally very similar to that of the criminal trial. There is little formal diBerence between civil and criminal trials, ecept that in civilproceedings "ury trial is the eception rather than the rule and at the !rst instance the decision onboth fact and law is usually made by a single "udge sitting alone. 9owever, in defamation cases thereis a "ury, who not only deliver the verdict but also decide on the amount of damages if the verdict is forthe plaintiB. 9owever one very important diBerence between civil and criminal trials is the standardof proof re#uired. Kiven the risk to an accused person H loss of liberty, a heavy !ne and social disgraceH the standard of proof in criminal cases is higher than in civil trial. 0or a verdict of guilty to berecorded, the prosecution must prove the accused’s guilt >beyond reasonable doubt?, but in civil casesthe standard re#uired is the lower one of proof >on a balance of probabilities?.

/hapter -: Criminal proceedings: arrest, charge and trial

The English or common law system is uni#ue in that the prosecution of crime is not the responsibilityof the courts or the "udiciary but is left in the hands of state or administrative prosecutors who areultimately answerable to the government. This means, for eample, that in the English system of criminal "ustice there is no true counterpart of the eamining magistrate or the procedures associatedwith that !gure.

)rrest an !harge

There are no speci!c terms distinguishing between more and less serious crimes, however thedistinction does of course eist, as is seen clearly in the sentences imposed following the verdict of guilty, as well as in the court and mode of trial. %ll criminal proceedings begin in the ;agistrate’s/ourt and it is there that the decision on the appropriate mode of trial is made. Cut before a person

can be taken before the magistrates he or she must !rst be arrested and charged and this is done inone of two ways: *y summary arrest* *y arrest with a warrant.

Kiven that the police have etensive powers of arrest, the former is by far the more common.9owever, if they have reason to suspect that a person has committed or was about to commit anoBence, the police can give information in writing to a magistrate and obtain a warrant for the arrestof the suspect. % person should be told that he or she is under arrest and the arresting oBicer mustcaution him or her as to their right to remain silent. This caution is to be administered in the followingwords: >you do not have to say anything. Cut it may harm your defence if you do not mention, when#uestioned, something which you later rely on in court. %nything you do say may be given inevidence?. The person will then be taken to the police station. +f the police believe they have enoughevidence they must charge the prisoner. Gtherwise he or she must be released, though of course thesame person may be rearrested later on the same charge or charges if further evidence is discovered.

Types of o/en!e

when an accused person is brought before the magistrates, what happens net will depend on thenature of the oBence charged. %ll oBences are now set out in statutes, though some originally aroseunder common law, and they fall into three categories: summary oBences, indictable oBences, and

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oBences triable either way. Thus what English law actually does is to distinguish between oBences onthe basis of the mode of trial appropriate to each.

$ummary o/en!es. This means the lesser crimes, such as motoring oBences, !t for trial by themagistrates summarily, i.e. before the magistrates themselves without a "ury.

"ni!ta*le o/en!es. These are serious or very serious crimes (e.g. murder, rape or armed robbery),which must be tried before "udge and "ury at the /rown /ourt, following a formal indictment prepared

by a representative of the /rown &rosecution Service (/&S). +n Critain as in all modern countries,crime is always prosecuted in the name of the state (in Critain, the /rown) because of the publicnature of the law infringed and the public interest in punishing crime and seeing that "ustice is done.+n the same way, criminal cases are listed, for eample, as > v ones?, where the ’ stands for 'e) or 'egina. =hen read aloud or referred to orally, it becomes >the /rown (or the Jueen) against ones?.

9/en!es tria*le either way . These are intermediate oBences, like theft or common assault, whichdepending on the seriousness of the facts alleged, may be considered more suitable for trial by themagistrates or the /rown /ourt. 9owever, in the case of oBences triable either way, the accused isentitled to insist on trial at the /rown /ourt if he or she prefers a "ury trial, as is often the case. Thereis nothing the magistrates can do to prevent this ecept warn the accused of the /rown /ourt’sgreater power of sentencing in the event of a verdict of guilty.

+n any case, criminal proceedings, as said, will always begin at the ;agistrates /ourt. "f the o/en!eis summary and the accused pleads guilty, the magistrates may sentence him or her there and then,though this is unusual. +f they decide not to do so, this will normally be because they need more timeto look into the prisoner’s background and previous criminal record. +f the accused is not sentenced,the magistrates must decide whether to grant bail or to remand (order a return to prison until thecase is decided). +f, on the other hand, a person accused of a summary oBence pleads not guilty, a datewill be !ed for the trial and a decision taken on bail.

=here an accused appears before the magistrates !harge with an ini!ta*le o/en!e, theproceedings take the form of a preliminary in#uiry. +f the magistrates decide that there is a prima facie case for trial at a /rown /ourt they move on immediately to the stage known as >committalproceedings?, whereby the accused is indicted for trial at the /rown /ourt. +f the "ustices think theevidence is insuBicient, they may either reduce the charge or discharge (release) the accused.

Though =either way> o/en!es may seem the most complicated, proceedings in these cases are reallyhalfway between the two situations discussed above. %fter the magistrates have heard the charge andlistened to the outline of the prosecution case, they decide whether they are competent to try thematter. %s we have seen, this will depend partly on the gravity of the particular charge and the factsalleged by the prosecution but it should be remembered that the magistrates have limited powers of sentence (a maimum of si months imprisonment andLor a M-,DDD !ne on any one charge). +f theycome to the conclusion that the accused, if found guilty, would deserve a more severe sentence thanthey have power to impose, they must send him or her for trial at the /rown /ourt.

/riminal trial is based on the presumption of inno!en!e, i.e. the accused is considered innocentuntil proven guilty. %s a result, the prosecution bears the burden of proof, "ust as the plaintiB does in acivil trial. 9owever, in both civil and criminal trials, the burden of proof may be reversed if thedefendant alleges some special fact or circumstance that re#uires to be proved separately, e.g. in

criminal law, the special defences of insanity or involuntary behaviour. Gtherwise, it is up to theprosecution to establish both the actus reus (condotta criminale) and the mens rea (dolo).

The Criminal Trial

(Source: 5al-er and 5al-er’s English Legal (ystem)

-u*li!ity

English law regards open "ustice as a fundamental principle, which therefore means that the trialshould be open to the public, and may be reported.

-ro!eure at the hearing

&rosecuting counsel starts by making an opening speech. This will be an outline of the allegationsagainst the defendant and of the evidence which it is proposed to call in support of the allegations.

&rosecution witnesses will then be called and will be sub"ect to eamination in chief by prosecutingcounsel, cross4eamination by defending counsel, and re4eamination by prosecuting counsel. Thepurpose of eamination in chief is to elicit the testimony of witnesses on the relevant matters. %n

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advocate cannot ask the witness leading #uestions. % leading #uestion is one which suggests to thewitness the answer epected or which assumes a fact still to be proved. +t is sometimes said that any#uestion that can be answered with a simple Nes’ or that is the case for the prosecution?, or words to that eBect. There may then be asubmission by defending counsel that there is no case to answer as regards the whole or some part of the indictment. This may be put in two ways: !rst, that there is no evidence that the crime allegedagainst the accused was committed by him* secondly, that the evidence is so tenuous that the "urycould not properly convict on it. This is a matter for the "udge to determine and, although there is noset rule, it is usually regarded that the argument on the submission should take place in the absenceof the "ury. &rosecuting counsel has, of course, a right to reply to defending counsel’s submission. +f the submission is upheld the trial will end at least as regards that part of the indictment, though therewill be a terminating ruling potentially giving right to a possible appeal.

The role of the "udge at this stage is crucial. +f the prosecution evidence is such that no properlydirected "ury could convict upon it, then it is the duty of the "udge to stop the case. This is particularly

so where the prosecution rely wholly on the confession of a person who suBers a signi!cant degree of mental handicap, the confession itself being unconvincing.

The defence case will then open, assuming that the trial is proceeding as to part or all of theindictment. Fefence counsel has no right to make an opening speech to the "ury unless he is callingwitnesses as the fact other than the defendant (whether or not he is also calling the defendant)* eventhen, the matter is in his discretion. =itnesses for the defence are then called. +f the defendant isgiving evidence, it is the general rule that he must give evidence before other witnesses. %n accusedperson is not a compellable witness in his own defence. 9owever, if he fails to testify in his owndefence without good cause, or refuses without good cause to answer any #uestion, the courts maydraw such inference as it thinks proper.

%ll defence witnesses are sub"ect to eamination in chief, cross4eamination, and re4eamination in thenormal way.

The "udge has a right to recall witnesses himself, or even call witnesses whom neither side has called*he may also #uestion witnesses to clarify matters of doubt or to probe further into matters which hethinks have not been suBiciently investigated. 9owever a "udge must be careful not to overstep themark. The "udge’s power to call witnesses should be used sparingly, and only to advance the ends of fairness and "ustice.

?itnesses

The general rule is that all witnesses must give evidence on oath, but a child under the age of 1always gives unsworn evidence. The usual form of oath runs as follows:

>+ swear by %lmighty Kod that the evidence + shall give shall be the truth, the whole truth and nothingbut the truth.?

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The witness holds the make his solemn aBirmation? instead of taking the oath.

The *uren of proof an the right of silen!e

The burden of proof in a criminal case is on the prosecution. The prosecution must prove each elementof the crime charged. This includes, sub"ect to certain limited eceptions, disproving any defence thatis raised.

The fact that the burden of proof is on the prosecution is crucially connected with the basic principlethat an accused person has the right not to self4incriminate. +t is for this reason that an accusedperson cannot, generally, be re#uired to self4incriminate or to testify in his own defence. %n accused isa competent, but not compellable, witness in his own defence. 0urther, if self4incriminatory statementsare obtained from an accused person unfairly, or by a trick, or in circumstances where they should notbe relied on because safeguards created by the law had been invaded or ignored, they will beecluded for evidence.

Con!lusion of the !ase

Each side may address the "ury. The rule is that prosecuting counsel speaks !rst and is then followedby counsel for the defendant. The "udge will then sum up.

The purpose of the summing up is to instruct the "ury as to the burden and standard of proof, the roleof "udge and "ury, and to give directions on points of law where it is necessary to do so. The "udge willalso usually give a summary of facts.

@eri!t

The "ury in general retire to the "ury room to consider their verdict. They are put in charge of oBicersof the court called "ury bailiBs, who do not allow any person to speak to the "ury and do not speak tothem themselves without permission of the court, ecept to ask them if they are agreed upon their verdict. The "ury does not have to stay in the same "ury room until they have reached a conclusion, butthey must not separate, and it is desirable but not essential for them always to be in the custody of one of the court bailiBs while, for eample, staying at a hotel overnight. The "ury may ask for furtherguidance from the "udge upon any point of law or evidence arising in the case, but both the re#uestfor information and the answer to it must be given in open court.

=hen the "ury have concluded their deliberations, they will return to court and one of their number,whom they have appointed foreman, will stand up and deliver the verdict of the "ury.

CR"A"()L L)?

Classi!ation of o/en!es

There are many ways of classifying oBences, and these depend on the purpose of the classi!cation.The main ways are:

• by source

• by police powers

•

by type of oBence• by place of trial

Classifying oences y legal source

%s already eplained, law comes from a variety of sources. GBences may thus be such on the basis of:

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• /ommon $aw ("udge4made)

• statute (de!ned in an act of &arliament)

• regulations (set out in delegated legislation)

Classifying oences y police powers!

The police has powers to detain a suspect who has been arrested. The duration of the detention variesaccording to the category of oBence. There are three categories:

• summary oBences

• indictable oBences

• terrorism oBences

1 Summary GBences

%n arresting oBicer can only arrest if he or she has reasonable grounds for believing that it isnecessary to make the arrest for one of the following reasons:

• to enable a person to be identi!ed

• to prevent a person from causing physical in"ury to himself or others, or to property

• to protect a child or other vulnerable person

• to allow the prompt and eBective investigation of the oBence or conduct of the person

• to prevent any prosecution for the oBence being hindered by the disappearance of theperson in #uestion

=hen the oBence is not one of terrorism or an indictable oBence, the police can only detain a personfor a maimum of 8 hours. They must also allow someone to be informed of the arrest of the suspectand to have legal advice as soon as possible after arrest.

1. +ndictable GBences

0or these the police have the power to detain any person who has been arrested for an initial period of 8 hours. This may then be etended to '@ hours by a high4ranking policeman. &olice then have theright to apply to the magistrate for permission to detain a suspect for up to a maimum of 7@ hours.

8. Terrorism GBences

&olice can detain a person arrested on suspicion of terrorism oBences for 2 hours. %fter this they canapply to a "udge to etend the period up to a maimum of 82 days.

Classifying y the type of harm caused y the crime

=hen studying criminal law it is usual to study oBences according to the type of harm caused. Themain categories are:

• oBences against the person

• oBences against property

• oBences against public order

Classi"cation of oences y where a case will e tried

There are two courts which try criminal cases, namely the ;agistrates’ /ourt and the /rown /ourt.=hich court hears a case will depend on the type of oBence:

• +ndictable only oBences: these must be tried on indictment at the /rown /ourt (e.g. murder,manslaughter, rape)

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• Triable either way oBences: these can be tried either on indictment at the /rown /ourt orsummarily at the ;agistrates’ /ourt (e.g. theft, burglary, assault occasioning actual bodilyharm).

• Summary oBences: these can only be tried at the ;agistrates’ /ourt (e.g. assaulting apoliceman in the eecution of his duty, common assault).

Elements of a !rime

0or all crimes ecept crimes of strict liability, there are two elements which must be approved by theprosecution. These are:

actus reus

mens rea

These terms come from a $atin maim, actus non facit reum nisi mens sit rea , which means the actitself does not constitute guilt unless done with a guilty mind. Coth an act (or omission) and a guiltymind must be proved for most criminal oBences.

1 #ctus reus

The physical element. The ma"ority of criminal oBences re#uire as a starting point some physicalelement on the part of the defendant. &recisely what that physical element is depends on the criminaloBence. 0or eample:

• murder and manslaughter re#uire in most cases that the defendant does an act whichcauses the death of the victim

• battery re#uires that the defendant applies unlawful force to the body of the victim

• theft re#uires that the defendant appropriates property which belongs to another person

%s you can see, the physical element in murder actually subdivides into two elements: an act (conduct)and death (conse#uence). The conse#uence that must follow from the defendant’s act, namely thedeath of the victim, is also considered part of the physical element. This usually follows soon after thedefendant’s act, but in some cases there may be a delay of minutes, hours, days or even longer.

Cir!umstan!es

Some criminal oBences re#uire certain circumstances to eist in addition to the conductLconse#uenceelements. Gne of the physical elements re#uired in rape is that the victim must not have consented.Similarly in theft, in addition to the conduct element of appropriating, there must be property thatbelongs to another at the time of appropriation. +f you take something from the street which has

clearly been abandoned, and therefore has no owner, no crime is committed .

The physi!al element alone is not a !rime

+n theft, for eample, the conduct element is appropriating property, an act which does not imply anywrongdoing per se (such as when you sit on a chair in the library). Thus, in order to commit theft, it isnecessary that the defendant has the intention to permanently deprive the owner of the property andthat the defendant acts dishonestly.

9mission

+t was stated above that in murder and manslaughter in most cases the defendant must do some actwhich causes death. The eception is where the defendant does nothing to prevent the victim’s death.+n certain circumstances the defendant may be under a duty to take positive steps to assist the victim,and failing to take such steps can amount to the physical element of the crimes of murder andmanslaughter.

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1. $ens rea

%s said, the physical element alone is generally speaking not enough to constitute criminal liability.The presence of some mental element is usually re#uired. % diBerent mental element is re#uired foreach crime. Some criminal oBences re#uire one mental element, some more. Some eamples are:

• in murder, the mens rea is intention only

•

in theft, one mental element is intention* however, there is an additional element of dishonesty

• in criminal damage and most non4fatal oBences against the person, such as assault andbattery, the mens rea is intention or recklessness

"ntention

%s noted, in many oBences the mens rea re#uired is an intention. 9owever, intention does not eist asan abstract concept: there must be proof of an intention to cause a particular result: murder re#uiresas its mental element intention to kill or cause serious bodily harm.

egardless of the crime charged, the meaning of >intent? is the same. +n criminal law there are two

types of intent:• ire!t intent H this refers to someone’s aim, purpose or desire

• inire!t or o*lique intent, which is much harder to de!ne. This occurs where thedefendant does not necessarily desire an outcome but realises that it is almost (but not#uite) inevitable. This can seem very similar to recklessness.

Re!klessness

recklessness generally involves the defendant taking an un"usti!able risk of a particular conse#uenceoccurring, with awareness of the risk. ecklessness is a mens rea state suBicient for many crimes,some very serious, including manslaughter, rape, inAicting grievous bodily harm. The problem is

whether recklessness should be assessed sub"ectively, that is by looking at the case from thedefendant’s perspective, or ob"ectively, that is by looking at the case from the perspective of thereasonable man.

(egligen!e

negligence is the mental element that must be proved in order to impose liability on defendants insome forms of civil litigation. +n that contet, it typically means that the defendant is liable if he failsto appreciate circumstances or conse#uences that would have been appreciated by the reasonableman. This mental element is rarely found in mainstream criminal law, because it is seen as too low athreshold to "ustify imposing punishment on the defendant. The eception is one form of manslaughter, in which we talk of >gross? negligence.

$tri!t lia*ility

There are certain oBences where mens rea is not re#uired in respect of at least one aspect of theactus reus. Such oBences are known as strict liability oBences. +n strict liability oBences there may beno blameworthiness on the part of the defendant, who is guilty simply because he has done aprohibited act.

!ctus reus must be proved, and the defendant’s conduct must be voluntary. 9owever, a defendant canbe convicted if his voluntary act inadvertently caused a prohibited conse#uence. This is so even

though the defendant is totally blameless. 0or eample, a butcher asked a vet to eamine the carcassto see if it was !t for human consumption. The vet assured him that it was all right to eat, and so thebutcher oBered it for sale. +n fact it was un!t to eat, and the butcher was convicted of the oBence of eposing unsound meet for sale. +t was a strict liability oBence and even though the butcher had takenreasonable care not to commit the oBence, he was still guilty.

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-arties to a !rime

-rin!ipal o/eners

The person who directly and immediately causes the actus reus of the oBence is the perpetrator orprincipal, while those who assist or contribute to the actus reus are secondary parties or accessories. ust because two or more parties are involved in the commission of a criminal oBence, it does notmean that one of them must be the principal and the other an accessory. They may both, or all beprincipals.

"nno!ent agents

=here the perpetrator of the actus reus is an innocent agent, someone without mens rea, or not guiltybecause of a special defence, then the person most closely connected with the agent is the principal.So, if the defendant, an adult, employs his eight4year4old son to break into houses and steal, the childis an innocent agent, and the father is liable as the principal.

$e!onary parties

%iding, abetting, counselling or procuring

%nyone who aims, abets, counsels or procures the commission of any indictable oBence is liable to betried, indicted and punished as a principal oBender. The elements of this phrase have the followingmeanings:

)iing& helping or assisting the principal, whether prior to or at the time of the commission of theactus reus by the principal. Typical eamples: supplying information or e#uipment* keeping watch*acting as a getaway driver

)*etting& encouraging the principal at the time of the oBence

Counselling& encouraging the principal prior to the commission of the oBence. %lso advising,suggesting or instigating an oBence. The best4known case involves hiring a hitman to carry out a

murder

-ro!uring& used to mean >to produce by endeavour?. +t is enough for the defendant to make somecausal contribution to the performance by the principal of the actus reus. Nou procure a thing bysetting out to see that happens and taking the appropriate steps to produce that happening.

"n!hoate o/en!es

+nchoate oBences are those oBences where the defendant has not actually committed a substantive

crime, such as murder, rape, theft or burglary, but has done one of the following three things:• made an attempt to do so (that is, the defendant has tried to commit the crime but has

failed, for some reason, to complete it)

• entered into a conspiracy with at least one other person to do so

• tried to encourage or persuade someone else to commit a crime. This is incitement

+nchoate literally means >at an early stage?. +nchoate oBences are designed to allow for liability to beimposed on those who have taken some steps towards the commission of an oBence. +t allows thepolice to intervene at an early stage and make arrests before a substantive crime has occurred.

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Aurer

The actus reus elements of murder are causing the death of a human being, under the 6ing or Jueen’speace, within any county of the realm. The mens rea is the intention to kill.

@oluntary manslaughter

The special defence of diminished responsibility may be used if someone kills another when suBeringfrom such abnormality of mind as substantially impairs mental responsibility for his acts.

"nvoluntary manslaughter

1. /onstructive manslaughter

The defendant will be guilty of manslaughter if he kills by an unlawful and dangerous act. Thefollowing elements must be proven to eist:

• the defendant must commit an unlawful act (e.g. assault, criminal damage, arson)

• that act must have caused death

• the defendant must have possessed the mental element will be unlawful act to amount to acriminal oBence

• the act must be dangerous

8. Kross negligence manslaughter

The elements of this form of involuntary manslaughter are:

• the eistence of a duty of care

• breach of that duty causing death

• gross negligence which the "ury consider "usti!es criminal conviction

Causing eath *y angerous riving

"nfanti!ie

+nfanticide is when a woman by any wilful act or omission causes the death of a child under the age of 18 months, but at the time of the act or omission the balance of her mind is disturbed by reason of hernot having fully recovered from the eBects of giving birth to the child. +nfanticide is both a defence tomurder and an oBence in its own right. The purpose is to avoid the mandatory life sentence formurder and allow the "udge discretion in sentencing.

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Common assault

There are two ways of committing this: assault and *attery . %ssault and battery are common lawoBences. There is no statutory de!nition for either assault or battery. The de!nition of both thereforecomes from case law. The act involved is diBerent for assault and battery. 0or assault there is no

touching, only the fear of immediate unlawful force. 0or battery there must be actual force. There aresituations in which both occur. 0or eample, where the defendant approaches the victim shouting thathe is going to get him, then punches the victim in the face. The approaching and shouting are assault,while the punch is battery.

%ssault can be de!ned as an act which causes the victim to apprehend the inAiction of immediate,unlawful force.

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Cattery, meanwhile, is the actual inAiction of unlawful force on another person. 0orce is a slightlymisleading word as it can include the slightest touching.

=e now look at assaults where an in"ury is caused:

$e!tion 7

The lowest level of in"ury is referred to as >actual bodily harm? and it is an oBence under section 3 of the GBences against the &erson %ct of 12@1, which states: >whosoever shall be convicted of anyassault occasioning actual bodily harm shall be liable... to imprisonment for !ve years?.

%ctual bodily harm covers all kinds of in"ury, including bruising, graes and scratches.

$e!tion 2F

The net oBence in seriousness is commonly known as >malicious wounding?. +t is an oBence underthe same act as above. Section 8D states that: >whosoever shall unlawfully and maliciously wound orinAict any grievous bodily harm upon any other person, either with or without a weapon orinstrument, shall be guilty of an oBence and shall be liable to imprisonment for not more than !ve years?.

$e!tion %G

This occurs when the harm is serious and there is also the speci!c intent to do grievous bodily harm.This is often referred to as >wounding with intent?. The maimum sentence for section 12 is lifeimprisonment.

)ministering poison

0or this crime it must be proved that the defendant unlawfully and maliciously administered or causedto be administered any poison or other destructive or noious thing.

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Theft

Theft is de!ned in section 1 of the theft act 17@2, which states that:

>a person is guilty of theft if he dishonestly appropriates property belonging to another with theintention permanently depriving the other of it.?

The actus reus of theft is made up of the three elements in the phrase > appropriate property *elonging to another ?. +n order to prove the actus reus it has to be shown that there wasappropriation by the defendant of something which is property within the de!nition of the %ct andwhich, at the time of appropriation belonged to another.

There are two elements which must be proved for the mens rea of theft. These are that theappropriation of property must be done dishonestly, and there must be the intention of permanentlydepriving the other person of it.

)ppropriation

%ny assumption by a person of the rights of an owner amounts to appropriation. The rights of theowner includes selling the property or destroying it as well such things as assessing it, consuming it,using it, lending it or hiring it out.

-roperty 0or there to be theft, the defendant must have appropriated property. Section gives a de!nition of property as follows:

>&roperty includes money and all other property real or personal, including things in action and otherintangible property?. % thing in action is the right which can be enforced against another person by an

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action in law. %n eample is a bank account. Gther intangible property refers to rights which have nophysical presence that can be stolen, such as a patent.

Belonging to another

0or the purposes of theft, the property must belong to another. 9owever, Section - (1) of the Theft %ct17@2 gives a very wide de!nition of what is meant by >belonging to another?.

>-(1) &roperty shall be regarded as belonging to any person having possession or control of it, orhaving in it any proprietary right or interest...?

Gbviously, the owner of property normally has possession and control of it, but there are many othersituations in which a person can have either possession or control of property. Someone who hires acar has both possession and control during the period of hire.

R9BBERD; BURL)RD )(4 9THER 9''E(CE$ "( THE THE'T )CT$

There are various oBences under the theft acts, and we will only look at some of them:

Ro**ery

obbery is an oBence under section 2 of the Theft %ct 17@2 and is basically theft aggravated by the

use or threat of force. To be found guilty of robbery, all the elements of theft must also eist. Thedefendant must have the mens rea for theft, that is, he must be dishonest and he must intend topermanently deprive the other of the property. 9e must also intend to use force to steal.

Burglary

This is an oBence under section 7 of the Theft %ct 17@2. % person is guilty of burglary if he enters thebuilding as a trespasser, with the intent to steal, inAict grievous bodily harm or do unlawful damage tothe building or anything therein, and, having entered the building as a trespasser, he steals orattempts to steal, or inAicts or attempts to inAict grievous bodily harm (this also used to include rape).

Bla!kmailThis is an oBence under section 81 of the Theft %ct 17@2, which states:

>(1)% person is guilty of blackmail if, with a view to gain for himself or another or with intent to causeloss to another, he makes any unwarranted demand with menaces* and for this purpose a demand withmenaces is unwarranted unless the person making it does so in the belief 4

(a) that he has reasonable grounds for making the demand* and

(b) that the use of the menaces is a proper means of reinforcing the demand

There must be a demand, but that demand may take any form, for eample it may be by words,conduct, in writing or by e4mail. +t doesn’t need to be made eplicitly to the victim, nor does it actuallyhave to be received by the victim, since making the demand is itself the actus reus of the oBence, and

the demand must be made with menaces.

Hanling stolen goos

This is an oBence under section 88 of the Theft %ct 17@2, which states that:

>% person handles stolen goods if (otherwise than in the course of stealing) knowing or believing themto be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in theirretention, removal, disposal or realisation by or for the bene!t of another person or he arranges to doso.?

Aaking o/ without payment

This oBence was created as it became obvious that the Theft %ct 17@2 left gaps in the law where thedefendant was not guilty of any oBence, even though his conduct would be seen as criminal by mostpeople. Such as !lling a car with petrol (the petrol is transferred, so it is the driver’s property onceappropriated) and then leaving without paying. Such situations are now covered by s '(1) of the Theft %ct 1732 (i.e. a diBerent theft act from the Theft %ct 17@2), which states:

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>... % person who, knowing that payment on the spot for any goods supplied or service done isre#uired or epected from him, dishonestly makes oB without having paid as re#uired or epected andwith intent to avoid payment of the amount due shall be guilty of an oBence.?

Criminal 4amage

The basic oBence is set out in section 1(1) of the /riminal Famage %ct 1731:

>a person who without lawful ecuse destroys or damages any property belonging to anotherintending to destroy or damage any such property or being reckless as to whether any such propertywould be destroyed or damaged shall be guilty of an oBence?

=here an oBence under section 1 of the /riminal Famage %ct 1731 is committed by destroying ordamaging property by !re, the oBence becomes arson. The maimum penalty is life imprisonment.

-UBL"C 9R4ER 9''E(CE$

Riot

This is an oBence under section 1 of the &ublic Grder %ct 172@:

>where 18 or more persons who are present together use or threaten unlawful violence for a commonpurpose and the conduct of them (taken together) is such as would cause a person of reasonable!rmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.?

iot is considered a serious oBence and has to be tried on indictment at the /rown /ourt. Themaimum penalty is imprisonment for 1D years. +t is the fact that there is criminal behaviour by alarge group of persons which makes riot regarded as serious.

@iolent isorer

+n this oBence many of the elements are the same as the riot. The diBerences are that only three

people need to be involved, and there is no need for a common purpose.

Harassment; alarm or istress

Section - of the 172@ act provides that:

>a person is guilty of an oBence if he 4 (a) uses threatening, abusive or insulting words or behaviour, ordisorderly behaviour, or (b) displays any writing, sign or other visible representation which isthreatening, abusive or insulting, within the hearing or sight of a person likely to be causedharassment, alarm or distress thereby?.

E(ER)L 4E'E(CE$

%part from speci!c defences that a defendant may submit in any given case for his conduct, there arealso general defences, which may be used for various oBences. These include:

"nsanity

This defence is rarely used, but it raises fundamental #uestions about criminal responsibility and therole of criminal law in dealing with violent people. +t is a general defence and may be pleaded as adefence to any crime re#uiring mens rea. ;edical evidence must be provided. 0or the purposes of thisdefence, insanity means that a person is deprived of the power of reasoning, has a disease of themind, and does not know what he was doing or that what he was doing was wrong.

4uress

=ith this defence, the defendant is claiming that he committed the actus reus of the oBence, withmens rea, but that he did so because he had no eBective choice, being faced with threats of seriousin"ury or death, or with similar threats against others close to him. Furess comes in two types:

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• duress by threats. +n this case the defendant is threatened by another person to commit acriminal oBence

• duress of circumstances. 9ere the threat does not come from a person, but thecircumstances in which the defendant !nds himself. Furess, however, cannot be used as adefence for murder.

(e!essity

There are three necessary re#uirements for the application of the doctrine of necessity:

• the act is needed to avoid inevitable and irreparable evil

• no more should be done than is reasonably necessary for the purpose to be achieved

• the evil inAicted must not be disproportionate to the evil avoided.

This de!nition is very diBerent to that regarded as the classic test for duress of circumstances, whichre#uires that the defendant must have acted in order to avoid a perceived threat of imminent death orserious in"ury and with no reasonable opportunity for escaping from the threat or contacting theauthorities.

Aistake

% mistake of fact prevents the prosecution from establishing that the defendant possessed the relevantmens rea at the time of the oBence, for eample, when someone charged with rape can prove thatthey honestly believed the other person to be consenting.

$elf efen!e

/ausing in"ury or even death to another person may be "usti!ed if the force was reasonably used inself4defence or to protect another person. The use of any force is not "usti!ed if it is not necessary.9owever, in determining whether the use of force was necessary, the "ury must place themselves inthe position that the defendant honestly perceived to eist. +t does not matter if the defendant wrongly

imagined that the threat eisted. +t is not necessary for there to be an attack in progress* it issuBicient if the defendant apprehends an attack. Someone about to be attacked does not have to waitfor his attacker to strike the !rst blow* circumstances may "ustify a pre4emptive strike.

Consent

/onsent is a defence, in theory, to all non4fatal oBences and even homicides. The burden of provinglack of consent rests on the prosecution. The fact that the victim apparently consents to thedefendant’s act does not mean that the law will treat that consent as valid. +f the victim is a child, ormentally retarded, apparent consent may not suBice.

C9(TR)CT$

=hat is signi!cant about a contract is that it is an agreement made between two parties, by whichthey are both bound, and which can be enforced in the courts if necessary. ;any agreements will bemade in written form, and many more will be made orally, and some may even be made by conduct.Such contracts are called simple contracts. % contract can alternatively be described as a *argain.Gne party makes a promise in return for the promise of the other and the promises are mutuallyenforceable because of the price one party has paid for the promise of the other.

;any of the rules of contract law date back to the 17th century, when people believed strongly in theidea of freeom of !ontra!t, in other words the right to contract with whomever we want and on theterms we want. The basic concept is that the parties to a contract should be free to include whateverterms they choose, and in this way the courts will not interfere by trying to make a bad bargain good.

% court will not give relief nearly because the terms of the contract are harsh or unfair to one party.

The idea of freedom of contract is central to enforcement of contracts and runs through many of theindividual rules of contract law:

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• %n agreement (oBer and acceptance) is said not to eist unless there is a consensusad idem, the so4called mutuality of the parties. So even though the parties think thatthey have agreed on something, there will not be an enforceable contract betweenthem unless this mutuality can be shown.

• /ontract law only concerns itself with the enforcement of bargains. The rules onconsideration demonstrate that the courts are not interested in the #uality of thebargain that parties freely reach. They are merely concerned in the eistence of abargain that is then enforceable.

• The re#uirement that an enforceable agreement must also include within it theintention that the parties are legally bound is another eample of freedom of contract. =e will not be bound by agreements that we never intended should carryany legal weight.

• ;any of the terms or obligations of the contract by which the parties are bound aredecided upon by the parties themselves.

• The rules relating to vitiating factors are another eample of freedom of contract,related to the idea of a consensus ad idem. +f a party enters a contract only becauseof false information or is in any way coerced to enter the contract, then the law willdeclare the contract void.

'ormation of the !ontra!t

% contract is completed when both sides honour an agreement by carrying out their particular side of the bargain. +t is a breach of contract when a party fails to do so. +n order to identify a breach of contract, we need proof that the contract actually eists. =e can tell if an arrangement is a contractbecause in order to be considered such it must have been formed according to certain standard rules.These are known as the rules of formation of contract.

% contract is only formed in law with the following can be shown to eist:

• an agreement (oBer and acceptance) H which is based on mutuality between theparties, the so4called consensus ad idem

• consideration H which means that both sides are bound to give something to eachother H the *uid pro *uo or proof that a bargain eists

• intention H it must be the intention of both parties to be legally bound by the termsof the agreement they have reached.

% )greement

%greement is the !rst and most basic of these re#uir

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