English Legal System Concentrate PDF

2. Introduction to Sources of Law and Court Structure English Legal System Concentrate: Law Revision and Study Guide (2nd edn) Mark Thomas and Claire McGourlay p. 19 2. Introduction to Sources of Law and Court Structure Mark Thomas, Senior Lecturer, Nottingham Trent University, and Claire McGourlay, Professor of Law, the University of Manchester https://doi.org/10.1093/he/9780198855026.003.0002 Published in print: 06 August 2020 Published online: September 2020 Abstract Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter introduces the various sources of law before proceeding onto a discussion of the courts of England and Wales. The courts of England and Wales can be divided into numerous different classifications. There are three different ways that courts may be classified: criminal and civil courts, trial and appellate courts, and superior and inferior courts. In England and Wales, there is often thought to be a stark divide between criminal and civil courts. Criminal courts deal with individuals who have ‘allegedly’ committed a criminal offence and it is the role of the arbiters of fact to determine the guilt or innocence of a defendant based on the evidence presented before them. On the other hand, civil courts deal primarily with the resolution of private disputes between individuals. Such disputes can include matters of contract law, personal injury, and family law. However, the jurisdiction of some courts is not limited to one area of law, but rather is approachable for both substantive areas of law. Keywords: sources of law, court structure, criminal courts, civil courts, trial courts, appellate courts, superior courts, inferior courts, private disputes, criminal offence Key facts The courts of England and Wales can be divided into numerous different classifications. The necessity for such classification can be questioned. The courts follow a structured hierarchy, with cases being heard only in certain courts. The UK is a signatory state to the European Union (EU) and the European Convention on Human Rights (ECHR). It thus must act in accordance with those institutions. Page 1 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure p. 20 Chapter overview Sources of law in England and Wales You will see from the contents page of this book that this chapter, along with Chapters 3, 4, and 5, deal with the ‘sources’ of English law. This chapter introduces you to the various sources of law, their respective positions, and worth in the English legal system. The chapter then introduces you to the court structure of England and Wales—this is a necessary read before you consider the principles of precedent in Chapter 4. Sources of law: an introduction During the course of your studies, you will be faced with a vast number of sources which you will need to read, understand, apply, and analyse. It is first necessary to make an initial distinction between the different sources of law (see Table 2.1). The distinction to be made is between ‘primary sources’ and ‘secondary sources’. Page 2 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Table 2.1 Sources of law Primary sources of law Secondary sources of law Primary sources are the pre-eminent forms of legal Secondary sources are best characterized as sources which information. Primary sources include legislation supplement primary sources of law. They include such things as (Chapter 3) and case law (Chapter 4). These sources are journal articles, textbooks, and reports. Secondary sources are a ‘primary’ in nature, given that they are a statement of vital part of your studies, given that they are often intended to law passed down by a legal institution (whether that be assist with your understanding of the primary sources (e.g. a Parliament passing an Act of Parliament, or the Court journal article which critically analyses the state of case law in a of Appeal handing down a judgment in a case). particular area of law). Whilst these secondary sources are not Primary sources are respected for their legal status and statements of law, they can be exceptionally persuasive in a binding nature in law. legal argument. Whilst you will come into contact with both sources of law during your time in study, the remaining part of this section of the chapter focuses on primary sources of law and their influencers. For more information on how best to use secondary sources, see Stacie Strong, How to Write Law Essays and Exams (5th edn, p. 21 Oxford University Press 2018). Before we ↵ proceed to introduce you to legislation and case law, it is first necessary to introduce you to the concept of a ‘constitution’ and the respective ‘lawmakers’ in the UK. Constitution The first question is: ‘What is a “constitution”?’ A constitution is best described as a system of governance; a set of statements detailing the role, powers, duties, structure, and responsibility of the state and its citizens. Jonathan Law, A Dictionary of Law (9th edn, Oxford University Press 2018) defines a constitution as: ‘The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state’. It is often said that the UK does not have a ‘written constitution’. Indeed, this statement is correct to an extent. In comparison to the USA, for example, which has had a written (or ‘codified’) constitution since 1787, the UK does not have a single written document laying down the fundamental rights and responsibilities for their citizens and the operation of the state. However, it is incorrect to say that the UK has an entirely unwritten constitution; rather, it is better to express that the UK has a largely unwritten constitution. The UK’s constitution consists largely of legislation (contained in various different statute books; not one single document) and case law. In addition, the UK’s system of governance features concepts known as ‘customs’ and ‘constitutional conventions’. Customs indicate practices that are followed to such an extent that they are treated as law, whilst constitutional conventions are sets of non- legally binding rules and principles which are treated as though they were binding due to their historical p. 22 backing. We discuss these in more detail in Chapter 3. ↵ Page 3 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Looking for extra marks? Consider the respective advantages and disadvantages of a written constitution. By way of advantage, a codified constitution provides simple access, which should be easy to understand and comprehend. An aggrieved individual will be able to point to the constitution in respect of rights which they allege have been infringed. On the other hand, a codified constitution is a rigid construct and is generally inflexible; should any changes need to be made to a constitution, this would often require a special procedure to be adopted (unlike a change in UK legislation, which requires no special procedure to change). Lawmakers Before we go on to consider these varying sources of law, it is important to establish who the makers of the law are. The UK is built on a tripartite system involving three branches of the government. These branches are: the executive; the legislature; the judiciary. Looking for extra marks? In considering the tripartite system of lawmakers, give thought to the notion of ‘separation of powers’. This concept, notably explained by the political philosopher Baron de Montesquieu, is a fundamental aspect of UK governance in that the three branches of government are separate, preventing any one institution from becoming too powerful. This system can be compared with the United States, which adopts a ‘fusion of powers’ model. See Colin Faragher, Public Law Concentrate (6th edn, Oxford University Press 2019). p. 23 Table 2.2 explains these branches in further detail and their role in the law-making process. ↵ Table 2.2 Lawmakers of the UK Branch of Description Role government Executive The executive is made up of senior members of the political party To implement the law currently in power. The executive is headed by the Prime Minister. Page 4 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Branch of Description Role government Legislature The legislature is another word for ‘Parliament’ and includes the To make the law House of Commons, the House of Lords, and the Monarch. Judiciary The judiciary is the courts system in England and Wales, including To interpret and apply the both senior and first instance courts. law (see Chapter 4 as to whether the judiciary has overstepped its role) Influences on lawmakers It must be appreciated that certain events, bodies, and pressures may have a strong influence on the lawmakers. The most prevalent examples of influences on the lawmakers can be seen in three entities: the Law Commission; the media; and public pressure groups. The Law Commission, established by the Law Commissions Act (LCA) 1965, is an independent, permanent, and full-time body responsible for keeping ‘under review all the law’ (s3 LCA 1965). The Law Commission consists of a Chairman, and four Law Commissioners, each specializing in a particular area of law (e.g. criminal law). The Law Commission may conduct an investigation into an area of law by recommendation of the government (through the Lord Chancellor) or of its own accord. The Law Commission’s success has varied over the years. Examples of such achievements include the introduction of the Occupiers’ Liability Act 1984, the Land Registration Act 2002, and the Fraud Act 2006. Figure 2.1 details the general approach taken by the Law Commission. Page 5 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Figure 2.1 Approach of the Law Commission The media represents (and often influences) public opinion to the extent that such opinion may in itself influence the law. A classic example is that of the double jeopardy rule abolished by the Criminal Justice p. 24 Act (CJA) 2003 in cases where there is new compelling evidence which ↵ indicates that an acquitted person is, in fact, guilty. This rule was abolished as a result of significant pressure from the media in a campaign after the suspects in the Stephen Lawrence murder trial were acquitted despite substantial evidence against them. The media influenced the government to undertake an inquiry led by Sir William Macpherson. This inquiry in itself led to a Law Commission Report which recommended the law of double jeopardy be changed. Pressure groups are groups of individuals who share a common interest, idea, or campaign. There are many different forms of pressure group, including the likes of ‘section groups’ and ‘cause groups’. Pressure groups work in many different ways, including lobbying of MPs, signing of petitions, publicity campaigns, and organized marches. Pressure groups rely significantly on the media to get their message across and often work in unison to achieve a certain goal. Some well-known pressure groups include the likes of: Fathers4Justice (campaigning for fathers’ rights to have access to their children); Amnesty International (campaigning for human rights); and Greenpeace (campaigning for environmental issues). Page 6 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Other law reform bodies include the Criminal Law Revision Committee (CLRC), which existed between 1957 and 1987 and the Law Reform Committee, which contributes to law reform in civil matters. In addition, special commissions or committees may be created to review a specific area of law. These commissions are often chaired by a presiding or retired judge (the commission being named after that judge). Some examples of these temporary commissions include: the Philips Commission (1981)—formally known as the Royal Commission on Police Procedure, which resulted in the introduction of the Police and Criminal Evidence Act (PACE) 1984. the Runciman Commission (1993)—formally known as the Royal Commission on Criminal Justice, which resulted in the introduction of the Criminal Appeal Act 1995 and the Criminal Procedure and Investigations Act 1996. Legislation Legislation can best be described as a set of rules and responsibilities created by the government (whether central or local) and which must be adhered to by members of society. These rules may indicate what an individual is not permitted to do (e.g. commit a criminal offence), or may regulate the relationship between individuals (e.g. the responsibilities of an employer to their employee). See Chapter 3 for more detail on legislation. Case law Case law refers to the decisions and judgments of the courts. The operation of case law is determined through the doctrine of precedent; quite simply, a senior court will bind an inferior court (i.e. the inferior court must follow the law as stated by the superior court). See Chapter 4 for more detail on case law. p. 25 International influences UK law is also dictated and influenced based upon the UK’s membership or position in relation to a number of international sources of law. For instance, between 1972 and 2020 the UK was a member of the European Union (EU). The EU dictates substantive law, procedure, and rules that are to be followed by Member States (e.g. the EU states law regarding worker rights in employment which must be followed by Member States). The UK is in the process of leaving the EU which will mean that it will no longer be bound by EU law; however, this does not mean that EU law will not still be influential. In addition, the UK is a signatory of the European Convention on Human Rights (ECHR); an international treaty protecting certain fundamental rights (e.g. the right to life, freedom of expression etc.). See Chapter 5 for more detail on the EU, the ECHR, and other international influences. Hierarchy of the courts As detailed in Chapter 4, understanding court hierarchy is essential to the concept of judicial precedent. Precedent dictates which courts must follow the decision of the appeal court in question. Page 7 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure A useful layout of such a hierarchy is detailed in Figure 2.2. Figure 2.2 Court hierarchy Classification of the courts Courts may be classified in three different ways: criminal and civil courts; trial and appellate courts; and superior and inferior courts. Criminal and civil courts In England and Wales, there is often thought to be a stark divide between criminal and civil courts. Table 2.3 demonstrates the different type of courts and the work they generally undertake. p. 26 ↵ As Table 2.3 shows, however, the jurisdiction of some courts is not limited to one area of law, but rather is approachable for both substantive areas of law. The obvious examples are the Supreme Court and the Court of Appeal, with both courts hearing appeals in criminal and civil matters. However, dual jurisdiction is also present in the lower courts. For example, the magistrates’ court may deal with civil law matters such as licensing, betting and gaming, civil debts etc. Likewise, the High Court of Justice is largely a civil court but it also has a limited criminal jurisdiction on such matters as appeals from the magistrates’ court on points of law (appeal by way of case stated). Table 2.3 Criminal and civil courts Criminal matters Civil matters Magistrates’ court Magistrates’ court Youth Court County Court Crown Court High Court Page 8 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Criminal matters Civil matters High Court Family Court Court of Appeal (Criminal Division) Court of Appeal (Civil Division) Supreme Court It is as a result of this dual jurisdiction exercised by some courts that Steve Wilson et al., The English Legal System (4th edn, Oxford University Press 2020) comment that it is ‘not possible to classify courts as criminal or civil courts’, while Gillespie remarks that such classification is ‘impracticable’ (Gillespie and Weare (2019), see ‘Key debates’ below). Despite this, we shall consider the general differences between p. 27 criminal and civil courts. ↵ Looking for extra marks? When citing a secondary source, for example Gillespie, ensure that you ‘critically engage’ with that source. Do not simply cite what the source says, engage with it. This means: (i) stating whether you agree or disagree with the source; (ii) stating the extent to which you agree or disagree with the source; (iii) explaining your reasoning for holding that view; and (iv) if you disagree with a source, stating why your argument is stronger/better and, if you can, providing authority to substantiate your point. Critical engagement is a key skill that one must adopt when studying law and will assist you in reaching your highest potential. The role of the courts As you would expect, criminal courts deal with individuals who have ‘allegedly’ committed a criminal offence and it is the role of the arbiters of fact to determine the guilt or innocence of a defendant based on the evidence presented before them. If convicted, it is then for the arbiter of law to determine the appropriate punishment in line with statutory guidelines. Civil courts, on the other hand, deal primarily with the resolution of private disputes between individuals. Such disputes can include matters of contract law, personal injury, and family law. At the conclusion of a civil matter, the trial judge will then award appropriate remedies to the successful party. Monetary damages, often known as ‘compensation’, are the most common remedy. Page 9 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Revision tip One important point to note is that a particular circumstance may give rise to proceedings in both the criminal and civil courts. For example, should Mark be driving his car recklessly and knock Claire down whilst she was walking in the street, this could lead to a criminal charge being brought against Mark under the Road Traffic Act 1988, whilst at the same time a claim in the civil courts may be brought for negligence. Evidence that Mark was convicted in the criminal proceedings can subsequently be used against him in the civil proceedings (s11 Civil Evidence Act 1968). Public vs private law Given the relationship between the state and the individual in criminal matters, it is often appropriate to refer to criminal law as an element of ‘public law’. One may question this statement on the grounds that, ‘Well, surely criminal offences against the person or property are not matters of public law.’ All criminal matters are an element of public law due to the vertical relationship between the state and the individual. The state brings the case against the defendant, not the victim. You may assume then that civil law, as the counterpart to criminal law, is solely to do with ‘private law’. This is an accurate statement with regard to actions in contract law and tort law; however, other civil matters which concern a relationship between the state and the individual, such as child proceedings brought by the local authority, are deemed to be matters of public law. Likewise, although disputes over taxation often fall within the remit of the criminal law, such disputes are generally civil law matters between the individual and the state, thus amounting to a public law matter. Procedures of the criminal and civil courts In criminal courts, the case (known as a ‘charge’) is brought against the defendant generally by the Crown Prosecution Service (CPS); however, all persons have the right to bring criminal proceedings against an individual. This power is preserved by s6(1) Prosecution of Offences Act 1985 and is what certain bodies, such as the RSPCA use to bring private prosecutions for particular actions. Where the charge is brought by the CPS, any such charge is on behalf of the Crown (known as ‘Regina’), i.e. the monarch-in-law. The ‘golden rule’ in criminal proceedings is that the burden of proving guilt in a criminal trial is on the p. 28 prosecution (Woolmington v DPP (1935)). They must prove the guilt of a defendant ↵ ‘beyond a reasonable doubt’, or as the Court of Appeal held in R v Majid (2009), so that the arbiters of fact are ‘sure’. This golden rule is subject to exceptions, the most notable being the defence of insanity, where the burden of proof is reversed and the defence bears the burden to prove insanity in accordance with M’Naghten’s Case (1843). As opposed to the prosecution, who must prove such matters beyond a reasonable doubt, the defence bears the lower standard of the ‘balance of probabilities’ (see below for the definition of this term). Page 10 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Woolmington v DPP AC 462 (HL) FACTS: The defendant, Woolmington, stole a double-barrelled shotgun and cartridges from his employer and shot and killed his wife, Violet. HELD: Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to … the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (Viscount Sankey) In the civil courts, however, the individual who brings the claim against the defendant is known as the claimant. Prior to the Civil Procedure Rules (CPR) 1998, the claimant was known as the plaintiff. If you read any case law before 1998, then references will be made to the plaintiff; however, the correct language used today is claimant. Generally, in civil proceedings, the claimant will be suing the defendant or applying for an order against the defendant. Both proceedings are brought in accordance with the CPR 1998. In civil proceedings, the burden of proof remains on the claimant. This is in accordance with the Latin maxim ‘ei incumbit probatio qui dicit’ (‘He who asserts must prove’). The civil standard of proof is on the balance of probabilities, which has been interpreted by Denning J in Miller v Minister of Pensions (1947) as ‘more probable than not’. Table 2.4 provides an overview of the differences between the two courts. Trial and appellate courts A case, whether it be a criminal or a civil case, will always commence in a court of first instance (also known as a court of original jurisdiction). The court of first instance is synonymous with a court of trial. Such courts are concerned with undertaking a fact-finding exercise and reaching a decision on the facts presented before it. The decisions reached by the trial courts may, and often are, challenged on appeal. For example, convictions in the Crown Court may result in an appeal to the Court of Appeal which, if successful, quashes any such conviction and replaces it with an acquittal. Likewise, in civil law, where a p. 29 decision is plainly wrong in law, this too can be challenged and the decision corrected. ↵ Page 11 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Table 2.4 Comparison between criminal and civil courts Comparator Criminal courts Civil courts Name of parties Prosecution Claimant Defendant Defendant Burden of proof Generally on the prosecution On the claimant Standard of proof When the burden is on the prosecution: ‘Beyond a reasonable doubt’ ‘Balance of probabilities’ When the burden is on the defendant: ‘Balance of probabilities’ Such challenges take place in the appellate courts, which are concerned with questions of law, as opposed to questions of fact. As with the hurdles that are faced when one attempts to categorize the courts by division of criminal and civil law, one also faces challenges in attempting to categorize by jurisdiction. This is because, unlike the magistrates’ court, which maintains only original jurisdiction, other courts, such as the Crown Court and the High Court of Justice exercise both original and appellate jurisdiction. For example, the Crown Court holds original jurisdiction in hearing cases on indictment or either-way offences and appellate jurisdiction in hearing appeals, in the form of a full retrial, from the magistrates’ court. Likewise, the County Court has a sort of internal appellate jurisdiction in that appeals from decisions of district judges in the County Court would remain in that Court, but would be heard by a circuit judge. It is perhaps better, therefore, to express that it is circuit judges that have appellate jurisdiction, as opposed to the County Court itself. See Chapter 7 for more on criminal procedure and Chapter 8 for civil procedure. Gillespie and Weare (2019) concludes that as a result of this, categorization by jurisdiction ‘does not assist either’. Table 2.5 demonstrates which courts act as trial courts and which act with appellate jurisdiction. Also, refer back to the diagram featured in the chapter overview. Table 2.5 Trial courts and appellate courts Court Trial court Appellate court County Court ✓ ✓ High Court of Justice ✓ ✓ Family Court ✓ ✓ Magistrates’ court ✓ ✗ Youth Court ✓ ✗ Crown Court ✓ ✓ Page 12 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Court Trial court Appellate court Court of Appeal ✗ ✓ Supreme Court ✗ ✓ Superior and inferior courts Finally, the courts can also be divided into ‘superior courts’ and ‘inferior courts’. Superior courts The starting point is s1(1) Senior Courts Act (SCA) 1981, which provides: The Senior Courts of England and Wales shall consist of the Court of Appeal, the High Court of Justice and the Crown Court, each having such jurisdiction as is conferred on it by or under this or any other Act. Prior to the creation of the Supreme Court by the Constitutional Reform Act (CRA) 2005, the Senior Courts p. 30 were known as ‘The Supreme Court’. This renaming, which was an obvious ↵ necessity, was brought about by s59(1) CRA 2005. There are other courts that have been declared as ‘superior’ by statute. Two key examples are: the Supreme Court (s40(1) CRA 2005); and the Employment Appeal Tribunal (s20(3) Employment Tribunals Act (ETA) 1996). Does this mean that the superior courts are those established by statute? Interestingly, the House of Lords acted as a superior court without legislative recognition, and perhaps the true understanding of the superior courts can be found in Goff LJ’s judgment in ex parte Muldoon and Others (1983), where his Lordship stated: It is necessary to look at the relevant functions of the tribunal in question including its constitution, jurisdiction and powers and its relationship with the High Court in order to decide whether the tribunal should properly be regarded as inferior … Following Goff LJ’s statement, then, a superior court is one: with unlimited jurisdiction; and p. 31 that is not subject to supervision by the High Court of Justice. Page 13 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Looking for extra marks? The above statement is not 100 per cent accurate. You can demonstrate your knowledge to an examiner by making clear that certain courts, such as the Crown Court, are senior courts and yet remain subject to the supervision of the High Court of Justice (e.g. appeals originating from the magistrates’ court and proceeding to the Crown Court may be appealed further to the High Court). It may be the case, therefore, that this is not the most appropriate way to categorize senior courts. Inferior courts The inferior courts include the magistrates’ court and the County Court and are those which are limited in their jurisdiction and powers, and are subject to review by a superior court. With no statutory statement that a court is ‘superior’, one could assume that a lack of express statement implies the court is, in fact, ‘inferior’. By no means should the word ‘inferior’ cast an opinion that the court is ‘subordinate’ or ‘less worthy of recognition’, especially given that the majority of cases are determined by the inferior courts, often without a successful appeal. Revision tip Remember to always ask ‘Why?’ The best lawyers are those that live in continuous doubt and always wonder why something is so. You should hopefully be asking yourself: ‘Why is there a need to classify the courts?’ Once you have considered arguments for and against your question, you can use authority to substantiate any argument that you make, ultimately leading to higher marks than a person who simply accepts the law as it is. The courts of England and Wales Now we shall consider in greater detail the specific courts within England and Wales. Figure 2.3 provides you with an overview of the court structure to get a feel of the hierarchy of the courts and the stages that a case may proceed through the system. Page 14 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Figure 2.3 Court structure The old ‘higher courts’ of the Middle Ages were reorganized into the modern court structure we know today by the Judicature Acts of 1873 and 1875, which created the High Court of Justice and the Court of Appeal. Civil cases There are several civil courts which hold civil jurisdiction; they are the County Court, the magistrates’ court the High Court of Justice, and the Family Court. Below we shall also consider tribunals, which form an important aspect of the civil justice system but sit outside the ordinary court structure. County Court As a result of s17 Crime and Courts Act 2013, there is now one single County Court. Prior to this Act, like the magistrates’ court, there were a number of county courts (173 to be exact) but no single entity. Now, like the Crown Court, County Court business is dealt with in one of the many County Court centres. Most County Court centres are assigned at least one circuit judge and one district judge. These numbers may vary, however. Page 15 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure p. 32 ↵ Generally, cases worth over £15,000 or involving greater importance or complexity will be heard by a circuit judge. Cases worth less than £15,000 or involving less complexity or importance will generally be heard by a district judge. Section 17 also established the County Court as a court of record. Magistrates’ court Whilst the majority of the work of the magistrates’ court is concerned with criminal matters (see below under ‘Criminal cases’), the magistrates’ court does hold limited jurisdiction in civil matters. In particular, specially trained magistrates sit as a ‘family panel’ in the Family Proceedings Courts dealing with both public and private family law work. In addition, the magistrates’ courts hold jurisdiction over civil matters such as non-payment of council tax and licensing appeals from decisions of local authorities. Family Court Section 17 Crime and Courts Act 2013 also had the effect of introducing a new court, known as the Family Court. Prior to this, family law matters were divided between the jurisdiction of the county courts and the p. 33 magistrates’ courts. As a result of s17, however, all family law ↵ matters, with a small number of exceptions, must be commenced in the Family Court. Family law is divided into public and private family law (see Table 2.6). Table 2.6 Types of family law Type of Work undertaken law Public These are cases brought by local authorities or an authorized person (the National Society for Prevention of Cruelty to Children, NSPCC) in relation to care orders, supervision orders, and emergency protection orders. Private These are cases brought by private individuals. These cases generally concern divorce or separation and child arrangement orders (CAOs). These cases may also include circumstances of adoption and domestic violence. High Court of Justice The High Court of Justice, more commonly known simply as the High Court, is a single court that sits in the Royal Courts of Justice alongside the Court of Appeal (though, do note that the High Court has a number of ‘District Registries’ which sit in various parts of England and Wales). The High Court acts in both a trial and appellate capacity; this section focuses on the trial capacity of the court, whilst the next section, ‘Divisional Courts of the High Court’, focuses on the appellate capacity. In its travelling capacity, the High Court was once known as the Assize Court. The Assize Court was abolished upon the creation of the Crown Court in 1972. The High Court is composed of three ‘divisions’ which deal with certain types of work. These divisions are: Page 16 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Queen’s Bench Division (QBD): deals with all ‘common law’ cases relating to contract and tort, except those specifically allocated to the Chancery Division. The QBD consists of a specialist court, called the Administrative Court, which largely deals with judicial review proceedings. The Administrative Court itself features a specialist court, namely the Planning Court, which deals with any planning matters (e.g. planning permission for building sites). The head of the QBD is the Lord Chief Justice, who is assisted by the President of the QBD. Chancery Division (Ch): deals with specialist civil work involving companies, intellectual property, disputes relating to trust property, and probate. Although the work may be wide and varied, it is focused on business and property disputes. The head of the Chancery Division is the Chancellor of the High Court (‘the Chancellor’) and cases in the Division are heard by a single specialist judge. Family Division (Fam): created by the Administration of Justice Act 1970, the Family Division deals with appeals from the Family Court and has exclusive original jurisdiction in certain family matters, such as wardship (i.e. giving custody of a child to the state). The head of the Family Division is the President of the Family Division. p. 34 ↵ Interestingly, the QBD and the Chancery Division operate a dual role for certain ‘specialist courts’ which cover a multitude of different courts designed for certain commercial disputes. On 13 March 2017, it was announced that these specialist courts would become one single entity known as the ‘Business and Property Courts of England and Wales’. This change brought together a number of different courts under one heading. This is designed to allow for greater flexibility and ease of access for international disputes. The Business and Property Courts sit in the Rolls Building in the Royal Court of Justice. However, these courts also sit in numerous locations across the country to ensure that there is sufficient access to the courts. By way of example, the Admiralty Court also sits in Birmingham, Bristol, Leeds, Liverpool, Manchester, and Newcastle. Table 2.7 details the courts which feature under this heading. Table 2.7 Business and property courts Court Division Work they undertake Commercial Court QBD Deals with national and international business disputes, including insurance, banking, arbitration, and other commercial matters Admiralty Court QBD Deals with matters relating to shipping and maritime disputes, including such matters as collision of ships and damage to cargo Technology and QBD Deals with national and international construction, engineering, and technology Construction Court disputes; also deals with computer litigation, environmental issues, and nuisance claims Business List Ch Deals with business-related matters, such as banking and financial services, claims against directors, and partnership disputes Insolvency and Ch Deals with corporate and personal insolvency and pure company work (in the specialist Companies List Companies Court) Page 17 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Court Division Work they undertake Financial List QBD/Ch Deals with financial disputes over £50 million or equivalent, or which require particular market expertise, or raise issues of general market importance Competition List Ch Deals with competition claims under the EU and national competition rules, e.g. market abuse by restricting or distorting competition Intellectual Ch Deals with all disputes involving intellectual property. Work is divided into (i) the Property List Patents Court, which deals with patent and registered design disputes; and (ii) the Intellectual Property and Enterprise Court (IPEC), which deals with all other IP disputes, such as copyright and trade-mark infringement. Property, Trusts and Ch Deals with such matters as landlord and tenant disputes, administration of estates, and Probate List probate claims The civil system, similar to the criminal system, is designed to be as efficient as possible. To be so efficient, p. 35 civil claims are divided into different ‘tracks’. Where a claim will be heard ↵ will depend on the track. Rule 26.1(2) CPR 1998 sets out that there are three tracks: small-claims track; fast-track; and multi- track. Table 2.8 sets out the different tracks in greater detail. A second important point to note, which shall be expanded upon later in this text, is that in general the County Court and the High Court of Justice have concurrent jurisdiction. This means that the claimant has the choice as to where proceedings are commenced (Practice Direction 7A.1 (PD7A.1) CPR 1998). However, r7.1 CPR 1998 states that there are certain restrictions on where proceedings can be started. We shall address these when dealing with the County Court and High Court of Justice individually. Civil courts p. 36 will be dealt with in more detail in Chapter 8. ↵ Table 2.8 Civil claim tracks and their courts Type of claim and court Qualifications Examples Small-claims track County Less than £10,000; and Personal injury cases valued at £4,000 for loss of Court Claims for pain, suffering, and loss of earnings and other losses plus a claim for £800 amenity (PSLA) are not more than for damages for PSLA £1,000 Fast-track Between £10,000 and £25,000; and Personal injury cases valued between £10,000 County Court Lasts not longer than one day; and and £25,000 Does not require more than one Personal injury cases valued under £10,000 but expert per party damages for PSLA exceed £1,000 Multi-track Over £25,000; or Personal injury case valued at £32,000 Page 18 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Type of claim and court Qualifications Examples County Court or High Court Under £25,000 BUT requires longer Breach of contract case valued at £18,000, but of Justice (if over £50,000 for than one day or more than one expert requiring at least three days’ hearing personal injury cases or per party otherwise over £100,000) Divisional Courts of the High Court The name of this court is rather confusing given that the High Court is divided into three divisions (as discussed above). The Divisional Courts, however, are the appellate courts of the High Court. Each of the Divisions listed above have the capacity to act as a court of appeal from the courts and tribunals below them. By s66(3) Senior Courts Act 1981, a Divisional Court must sit with no less than two High Court judges, but will generally sit as a bench of three. Table 2.9 details the types of appeals faced by the Divisional Courts: Table 2.9 Appeals to the Divisional Courts Divisional Court Examples of types of appeal Queen’s Bench Judicial review cases of decisions made by inferior courts and tribunals. The majority of cases Divisional Court are dealt with by the specialist Administrative Court. Chancery Divisional Decisions of masters in courts below, income tax cases from the Commissioners of Inland Court Revenue, and bankruptcy claims/insolvency decisions from the County Court Family Divisional Appeals from the Family Court and family cases which are considered to be complex or of Court importance Criminal cases The two main criminal courts are: the magistrates’ court (and the Youth Court); and the Crown Court. Page 19 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Revision tip Ensure you correctly spell magistrates’ court. The apostrophe follows the ‘s’. It makes little sense to lose marks on such simple spelling mistakes. Please also note that magistrates’ court is spelled with a lower case ‘m’ and ‘c’, whereas the Crown Court is spelled with an upper case ‘C’ and ‘C’. This is because there is only one Crown Court but multiple magistrates’ courts. Before we proceed into our discussion on the two different courts, it will first be useful to discuss the categories of offences which determine whether an offence will be tried in the magistrates’ court or the Crown Court. In general, the classification of an offence will be prescribed by the statute creating it, normally by way of the description of the nature of the penalty on conviction. The three types of offences are as follows: p. 37 ↵ Summary-only offences: these are the least serious of the three offences and are triable only in the magistrates’ court. Created by statute, all summary offences can be identified by statement of the maximum penalty, which may range from a custodial to a community sentence, which may be imposed upon conviction for an offence (e.g. driving whilst intoxicated through drink or drugs is a summary-only offence contrary to s4(1) Road Traffic Act 1988). Either-way offences: these are offences which, dependent on the particular facts of the case, may or may not be serious. Such offence may be identified in two ways. First, sch 1 Magistrates’ Courts Act (MCA) 1980 lists the offences that are triable either way. Secondly, the statute that creates the offence will specify two penalties, one upon conviction summarily and the other upon conviction on indictment (e.g. theft is a triable either-way offence contrary to s1 Theft Act 1968). Indictable-only offences: these are the most serious of the three offences and are triable only in the Crown Court. A helpful starting point is sch 1(a) Interpretation Act 1978, which provides that ‘indictable offence’ means an offence which is ‘triable on indictment, whether it is exclusively so triable or triable either way’. It is important to note at this stage that all common law offences are indictable, for example murder. Revision tip Pay close attention to the wording of sch 1(a)! It provides that an indictable offence includes both an indictable-only offence and an either-way offence. Therefore, if you ever see reference to an ‘indictable’ offence (not an ‘indictable-only’ offence), be aware that it includes offences triable either-way. By way of example, a ‘citizen’s arrest’ may be effected under s24A(1) Police and Criminal Evidence Act 1984 where another person is (amongst other circumstances) in the act of Page 20 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure committing an ‘indictable’ offence. This means that the power of citizen’s arrest is available for both either-way and indictable-only offences, but not summary-only offences. A fine but vital distinction. p. 38 Table 2.10 details the types of criminal offences in England and Wales. ↵ Table 2.10 Types of offences Type of offence Court in which it will be heard Examples and sentence Summary-only Magistrates’ court Common assault—six months maximum Either-way Magistrates’ court or Crown Court Assault occasioning actual bodily harm (ABH)—six months (Mags) or five years (Crown) maximum Theft—six months (Mags) or seven years (Crown) maximum Indictable-only Crown Court Murder—life maximum Rape—life maximum Magistrates’ court In England and Wales, there are around 330 magistrates’ courts which deal, roughly, with 99 per cent of all criminal cases. The magistrates’ courts deal with all summary-only offences and the vast majority of either-way offences. The magistrates’ court may consist of lay magistrates or a district judge. Lay magistrates sit as a bench of at least two—but normally three—in criminal matters (one chair and two ‘wingers’), whilst a district judge will sit alone. Magistrates are arbiters of both fact and law, by which we mean that they must make decisions on any points of law raised and make a factual finding. They are assisted in their task by a legal adviser (also known as a legal clerk), who may advise the lay bench on any points of law. All criminal cases, regardless of their classification, will start in the magistrates’ court. The process of hearing the case is dependent on the classification of offence (see Chapter 7 for more detail): summary-only: everything is heard in the magistrates’ court; either-way: the magistrates will conduct a ‘mode-of-trial’ hearing to determine whether the offence will stay in the magistrates’ court or will be sent to the Crown Court; indictable-only: whilst the magistrates will determine matters such as bail, the case will be automatically sent for trial in the Crown Court (s51 Crime and Disorder Act (CDA) 1998). Page 21 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Youth Court The Youth Court deals with criminal cases involving juveniles (i.e. those persons between the ages of 10 and 17, inclusive). As soon as an individual reaches the age of 18, they will be tried in the ordinary adult courts. Magistrates hold jurisdiction to sit in the Youth Court and must sit as a mixed bench of three. In addition, magistrates who sit in the Youth Court must have special training. The procedure in the Youth Court is less formal and only authorized persons may attend (attendance of the media is restricted). All criminal cases (regardless of whether they are summary or indictable) involving juveniles must be dealt with in the Youth Court; however, there are a number of notable exceptions: Charges involving homicide, firearms, or violent offences must be sent to the Crown Court (s51A CDA 1998). Charges involving ‘specified offences’, such as rape and manslaughter, and where the court considers the youth to be a ‘dangerous offender’ must be sent to the Crown Court (s51A(2) CDA 1998). Charges involving ‘serious offences’, i.e. those that are punishable by life imprisonment or imprisonment for 10 years or more, and where the offence charged might attract a lengthy sentence, must be sent to the Crown Court (s51A(2) CDA 1998). There are other exceptions to this rule, for which you are advised to consult a criminal procedure text. p. 39 Crown Court Created by the Courts Act 1971, the Crown Court deals with the more serious criminal offences which will be heard by a judge and jury. Unlike the magistrates’ courts, the Crown Court is a single entity which sits in 77 court centres across England and Wales. For example, the Old Bailey (or more formally, the Central Criminal Court) is just another Crown Court centre which sits in the City of London. In addition to its original jurisdiction over serious criminal matters, the Crown Court also hears appeals from the magistrates’ court. These appeals are dealt with in more detail in Chapter 7. There are three different types of Crown Court centre, based on the type of work that they deal with. These are: first-tier centres: these centres are visited by High Court judges for criminal work in the Crown Court and civil work in the High Court; second-tier centres: these centres are visited by High Court judges for criminal work in the Crown Court only; third-tier centres: these centres are not normally visited by High Court judges and handle criminal work in the Crown Court only. Further to this, offences that are to be tried in the Crown Court are divided into three classes of seriousness. These classes determine the type of judge which will sit in the case: Page 22 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Class 1 offences: the most serious criminal offences, including treason and murder; generally heard by a High Court judge. Class 2 offences: very serious offences, including rape; generally heard by a circuit judge, under the authority of the Presiding Judge. Class 3 offences: includes all other offences not covered by Class 1 or 2 including burglary, grievous bodily harm, and robbery; generally tried by a circuit judge or recorder. Criminal courts shall be dealt with in more detail in Chapter 7. Divisional Court The Divisional Court of the High Court of Justice holds a limited criminal jurisdiction. In particular, criminal appeals in summary cases may proceed to the Divisional Court. The process is rather confusing so it may be helpful to refer to Figure 2.4, which demonstrates the appeal process. Figure 2.4 Appeals to the Divisional Court From decisions of the magistrates’ court, any party to the proceedings may appeal to the Divisional Court by way of ‘case stated’ (s111 Magistrates’ Courts Act 1980). In addition, should a case be appealed first to the Crown Court from the magistrates’ court for a re-hearing, it may then be subsequently appealed to the Divisional Court by way of case stated (s28 Senior Courts Act 1981). p. 40 ↵ The Administrative Court of the Queen’s Bench Division will hear these criminal appeals in the capacity of a Divisional Court. Any further appeals then proceed to the Supreme Court, leapfrogging the Court of Appeal (s1(2) Administration of Justice Act 1960). Page 23 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Appellate courts This section deals with the two main appeal courts in England and Wales, the Court of Appeal and the Supreme Court. For a discussion of the appellate jurisdiction of the Divisional Court and the Crown Court, see ‘Criminal cases’ above. Court of Appeal Based in the Royal Courts of Justice, the Court of Appeal is the highest of the ‘senior courts’. Formerly divided into the Court of Appeal (CA) and the Court of Criminal Appeal (CCA), the Court became a single entity split into two divisions—the Civil Division and the Criminal Division—in 1966, following the Criminal Appeal Act 1966. The CA is comprised of Lord and Lady Justices of Appeal, abbreviated to ‘LJ’. The head of the Civil Division is the Master of the Rolls and the head of the Criminal Division is the Lord Chief Justice. Court of Appeal (Civil Division) Appeals from the County Court and the High Court are governed by Part 52 Civil Procedure Rules (CPR) 1998 and Practice Direction 52. An appeal can be heard by a single judge (s54(2) SCA 1981) but ordinarily the Court will sit with at least two judges (normally three). The test for allowing an appeal in civil proceedings is provided by r52.21(3) CPR 1998, which states p. 41 that: ↵ The appeal court will allow an appeal where the decision of the lower court was: (a) wrong (meaning that the court below (i) erred in law; or (ii) erred in fact; or (iii) erred (to the appropriate extent) in the exercise of its discretion); or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. Court of Appeal (Criminal Division) The Criminal Division mainly deals with appeals from the Crown Court against conviction or sentence. The Court may also hear appeals from the Attorney General, known as ‘references’ under s36 Criminal Justice Act (CJA) 1972 and s36 CJA 1988. The 1972 Act concerns appeals on points of law, meaning that an acquittal in the lower courts will not be affected by the decision of the Court of Appeal. The 1988 Act, however, is concerned with appeals against ‘unduly lenient sentences’. The CA also hears cases referred to them by the Criminal Cases Review Commission (CCRC) under s9 Criminal Appeal Act (CAA) 1995. Page 24 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure The Criminal Division ordinarily sits in panels of three. When determining an appeal against conviction, the Court must sit in an uneven number of no less than three judges (s55(2) SCA 1981). When determining an appeal against sentence, the Court may sit as a panel of two (s55(4) SCA 1981). In the event of a stalemate, where the judges are divided, the matter must be relisted and heard before a new bench of not less than three judges (s55(5) SCA 1981). The test for allowing an appeal in criminal proceedings is provided for by s2(1) CAA 1968, which provides that: Subject to the provisions of this Act, the Court of Appeal— (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case. Looking for extra marks? Consider whether the test of ‘unsafe’ is sufficient to ensure that there are no miscarriages of justice in England and Wales. The common problem that arises is that the Court of Appeal will find that evidence was improperly admitted or procedure was not correctly followed; however, often it concludes that such wrongs do not make the conviction unsafe, i.e. the arbiters of fact would have still reached the same conclusion, regardless. Supreme Court The Supreme Court, formerly the Judicial/Appellate Committee of the House of Lords, was created on 1 October 2009 by s23 Constitutional Reform Act (CRA) 2005. The change was made as a statement of the separation of powers between the House of Lords in its legislative capacity and the Appellate Committee of the House of Lords in its judicial capacity. This was made clear by Lord Phillips during a speech opening p. 42 the Supreme Court. ↵ Looking for extra marks? Often questions are asked as to the function of the Supreme Court as the highest court in the land. In answering this question, it is important to question why the Supreme Court was created in the first place. It is even more important for you to state your own opinion as to whether such creation was the correct decision on the part of the legislature and whether the Court has fulfilled its function as a result of its creation. Page 25 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure The Supreme Court acts as the final court of appeal for all civil cases and criminal cases from England, Wales, and Northern Ireland. In civil matters, the Supreme Court also hears appeals from Scotland; however, in criminal matters, the highest court in the land in Scotland is the High Court of Justiciary and criminal appeals will never be heard from Scotland in the UK Supreme Court. The Supreme Court will only hear cases which have been designated as a ‘matter of general public p. 43 importance’ and they consider that such a case ought to be heard by the Court. ↵ Looking for extra marks? In recent times, the Supreme Court has been criticized for ‘overstepping the mark’ in light of the decisions it has reached involving constitutional matters. Particularly, following the decision of the Supreme Court in 2019 that Parliament was unlawfully prorogued (see Chapter 3), there have been numerous calls to take action in relation to the highest court of the land. Some commentators have contended that the Court be abolished (see comments of Martin Howe QC on www.lawyersforbritain.org ) or for the justices of the Court to be elected to their posts. Consider the following three decisions and assess where you stand on this matter: has the Court overstepped the mark? R (Miller) v The Prime Minister (2019)—Supreme Court rules that Parliament was unlawfully prorogued (see Chapter 3 for more details). R (Privacy International) v Investigatory Powers Tribunal (2019)—Supreme Court rules that the Investigatory Powers Tribunal (IPT) is subject to judicial review by the High Court, despite an express legislative statement to the contrary in the Regulation of Investigatory Powers Act 2000, s67(8). R (UNISON) v Lord Chancellor (2017)—Supreme Court rules that a Fees Order introduced to Employment Tribunal hearing and appeals by the Lord Chancellor was unlawful (see below under ‘Employment Tribunal’ for more details). The legislative routes to the Supreme Court vary according to the court and the area of law. Table 2.11 sets out the routes of appeal to the Supreme Court. Table 2.11 Legislative routes of appeal to the Supreme Court Area of law Court appealing from Legislation Criminal Court of Appeal s33(2) Criminal Appeal Act (CAA) 1968 High Court s1(1)(a); s1(2) Administration of Justice Act (AJA) 1960 Civil Court of Appeal s1(1) Administration of Justice (Appeals) Act (AJAA) 1934 Page 26 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Area of law Court appealing from Legislation High Court (‘Leapfrog’) ss12–15 Administration of Justice Act (AJA) 1969 The Supreme Court consists of 12 judges, known as ‘Justices of the Supreme Court’ (s23(6) CRA 2005). They are led by a President and a Deputy President. Substantive appeals are generally heard by five justices, although it can sit in larger panels, so long as there is an odd number of justices (s42(1)(a) CRA 2005). Looking for extra marks? Look up and remember the names of the key judicial officers at the present moment. Key names to research include the holder of the office of the Lord Chief Justice, the President and Deputy President of the Supreme Court, and the Master of the Rolls. This is a simple and easy way to demonstrate to the examiner that you are aware of the key personnel in the legal system and the power they hold. The Supreme Court website has published the criteria used to determine whether the Court will sit in panels of more than five. They are: if the court is being asked to depart, or may decide to depart from, a previous decision; a case of high constitutional importance (11 justices sat in the R (Miller) v The Prime Minister (2019)); a case of great public importance; a case where a conflict that arises between decisions in the House of Lords, Judicial Committee of the Privy Council, and/or the Supreme Court has to be reconciled; a case raising an important point in relation to the ECHR. European and international courts Privy Council of the United Kingdom Governed by the Judicial Committee Act 1833, the Privy Council (formally known as the Judicial Committee of the Privy Council) hears appeals from 23 Commonwealth countries and four independent republics, which formed part of the former colonial empire. The Court is composed of the same justices that appear in p. 44 the Supreme Court. Given this composition, ↵ the Privy Council sits in the same building as the Supreme Court. The Privy Council does not have any appellate capacity within the English legal system. The impact of Privy Council judgments on domestic courts is considered in Chapter 4. Page 27 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Court of Justice of the European Union Based in Luxembourg, the Court of Justice of the European Union (CJEU, formerly known, but still referred to, as the European Court of Justice (ECJ)) has jurisdiction to make rulings interpreting EU law. The CJEU is composed of one judge from each of the Member States, together with a number of Advocates General who advise on law only. The CJEU’s role under the Treaty on the Functioning of the European Union (TFEU) is ‘to ensure that in the interpretation and application of the Treaties the law is observed’. Article 267 TFEU states that the CJEU has jurisdiction to give rulings on interpretation of the TFEU and the acts of EU institutions. English courts can make an ‘Article 267 reference’ to the CJEU on matters of EU law. See Chapter 5 for more information on the CJEU and other EU institutions. European Court of Human Rights The European Court of Human Rights (ECtHR), which sits in Strasbourg, has jurisdiction over all cases involving the interpretation or application of the ECHR. Such rights can be enforced in our own law as a result of the Human Rights Act (HRA) 1998, which transposed the Convention into domestic law. Tribunals and other courts Tribunals Tribunals can best be described as adjudicative bodies which apply laws and rules to a case in order to resolve disputes between individuals and the state. Originally established by Parliament on an ad hoc basis to enable individuals to challenge decisions of state officials which were outside the formal court system, tribunals are now an established and unified element of the civil justice system. By way of the Tribunals, Courts and Enforcement Act (TCEA) 2007, a simplified two-tiered statutory framework of tribunals was created. These were: First-tier Tribunal; and p. 45 Upper Tribunal. Revision tip It is technically incorrect to say that tribunals are not a part of the justice system. Indeed they are, but they are outside the formal court structure. Page 28 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure These two tribunals are organized into ‘chambers’, each headed by a chamber president. The First-tier Tribunal acts as a court of first instance and consists of seven chambers, such as the Social Entitlement chamber, the Tax chamber, and the Property chamber. The Upper Tribunal acts as the appellate tribunal (on a point of law) and consists of four chambers: the Administrative Appeals chamber, Tax and Chancery chamber, Immigration and Asylum chamber, and Lands chamber. If, however, an individual wishes to appeal from the Upper Tribunal, they must do so in the civil courts, specifically the Court of Appeal and Supreme Court. Looking for extra marks? In Gilchrist v Revenue and Customs Commissioners (2014), the Tax and Chancery chamber ruled that the Upper Tribunal is not bound by decisions of the High Court. Richards J declared that upon enactment of the TCEA 2007, the Upper Tribunal became a court of superior record and was not to be bound by decisions of the High Court. Use this knowledge to indicate the sheer importance and weight afforded to the tribunal system by the TCEA 2007. Cases in the tribunals are heard by tribunal judges who are led by the Senior President of Tribunals. In broad terms, there are two types of tribunals: those which resolve disputes between the individual and the state, for example the Asylum Support Tribunal; and those which regulate disputes between private parties, for example the Employment Tribunal. For a full list of tribunals in England and Wales, see www.judiciary.gov.uk. Employment Tribunal Despite the unification in the TCEA 2007, the Employment Tribunal (ET) remains outside of the unified tribunal structure. Employment Tribunals are governed by the Employment Tribunals Act 1996, which identifies the jurisdiction, membership, and procedure of the ETs. The ETs, as the name suggests, deal with disputes involving workers and their labour rights. Such disputes often involve contentious terms of employment, dismissal claims, and redundancy payments. Discrimination claims are also within the jurisdiction of the ETs by way of the Equality Act 2010; matters such as sex discrimination and gender pay have been particularly newsworthy in recent years. For example, on 10 January 2020 Samira Ahmed, a television presenter, won a claim for sex discrimination in the Employment Tribunal on account of the pay gap between herself and her male counterparts (Ahmed v BBC (2020)). Appeals are made to the Employment Appeal Tribunal (EAT) on a point of law, and further appeals to the Court of Appeal and Supreme Court. As an alternative to the tribunal structure, a judicial mediation scheme is available to bring the parties together before an employment judge for a mediation case management Page 29 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure discussion. The judge remains neutral and seeks to assist the parties to resolve the dispute between p. 46 themselves. The Advisory, Conciliation and ↵ Arbitration Service (ACAS) also offers a voluntary arbitration process in relation to unfair dismissal claims as an alternative to the tribunals. Looking for extra marks? Tribunal fees have been a controversial matter since the introduction of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (‘the Fees Order’). Prior to that Order, a claimant could bring proceedings in an ET and appeal to the EAT without paying any fee. In R (UNISON) v Lord Chancellor (2017), UNISON brought a judicial review claim on the ground that the Fees Order unlawfully prevents or restricts access to justice. Whilst the lower courts dismissed the claim of UNISON, the Supreme Court unanimously allowed the appeal, ruling that the Fees Order was unlawful and quashed the Order on the basis that that there was a ‘real risk that persons will effectively be prevented from having access to justice’, and that the degree of intrusion was ‘greater than is justified by the objectives which the measure is intended to serve’. This case arguably demonstrates an increasing willingness on the part of the Supreme Court to intervene in constitutional matters. Coroners’ Court The Coroners’ Court is not part of the unified court structure administered by HM Courts and Tribunals Service. Instead, as of May 2019, there are 88 separate Coroner Areas in England and Wales, each with their own jurisdiction, and funded by their local authorities. It is for these reasons that Coroners’ Courts are often referred to as ‘territorial’, in the sense that it is the location of the dead body which dictates which coroner has jurisdiction in any particular case. Despite this territorial nature, the coroner system is headed by a Chief Coroner, a role created by the Coroners and Justice Act (CorJA) 2009. Under s1 CorJA 2009, the Coroners’ Court has a duty to conduct an investigation into a person’s death if the coroner has reason to suspect that: (a) the deceased died a violent or unnatural death; (b) the cause of death is unknown; or (c) the deceased died while in custody or otherwise in state detention. As part of an investigation, a coroner must undertake an ‘inquest’ (s6 CorJA 2009). The general rule under s7(1) is that a jury is not required for an inquest. However, by s7(2), an inquest into a death must be held with a jury if the senior coroner has reason to suspect that the deceased died while in custody or otherwise in state detention, and that either the death was a violent or unnatural one, or the cause of death is unknown, or that the death resulted from an act or omission of a police officer, or a member of a service Page 30 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure police force, in the purported execution of the officer’s or member’s duty as such, or that the death was caused by a notifiable accident, poisoning, or disease. In addition, by s7(3) an inquest may be held with a jury if the senior coroner considers that there is sufficient reason for doing so. Court of Protection The Court of Protection is a specialist court, established under the Mental Capacity Act (MCA) 2005. The p. 47 Court is a supreme court of record and is treated in the same vein as the ↵ High Court in terms of authority. The role of the Court of Protection is to make specific decisions, or appoint other people to make decisions (known as ‘deputies’) on behalf of individuals who lack the capacity to do so themselves under the MCA 2005. Such decisions include property matters and matters of health and welfare. The Central Registry sits at Archway in North London, as well as a number of regional courts across England and Wales. Cases are heard by district, circuit, and High Court judges. Hearings are normally in private, but certain hearings may allow for media attendance. Online courts and the future Technology and the world around us continue to modernize. Despite this so-called ‘digital boom’, the English courts have been slow to accept the changes, with a continuing unwillingness to change their procedures. Many spectators continue to baulk at the sight of stacks upon stacks of lever-arch files bound in pink tape, bulging at the sides. Despite popular belief, in both the criminal and civil setting there has been a remarkable (and often reluctant) increase in the use of technology over the years. At the start of 2016, the government announced a system of ‘digital by default’ whereby both the civil and criminal courts would become ‘paperless’. The government commented that it was committed to investing £675 million in modernizing the legal system by going digital, a number that shocked many in the legal profession. This investment would appear futile, however, given the closure of court buildings left, right, and centre across the UK. As a result, the government had little choice but to consider new ways of dealing with individuals and their legal issues. In the criminal context, the then Director of Public Prosecutions (DPP), Alison Saunders, appeared content with the idea of ‘e-bundles’ to reduce the use of paper and to speed up criminal trials. Likewise in civil cases, and as a result of the final report of the Civil Courts Structure Review (published in July 2016) by Briggs LJ, the proposal of an ‘Online Court’, allowing for disputes to be resolved by the courts in an online and interactive fashion, appears to be an element of our not-so-distant legal future (expected April 2020). The use of information and communication technology (ICT) in alternative dispute resolution (ADR) has developed radically in recent years. Online dispute resolution (ODR), also known as internet dispute resolution (iDR) or electronic ADR (eADR), allows for disputes and disagreements to be resolved in an online setting. Techniques such as e-negotiation, e-mediation, and e-arbitration are commonly employed to resolve matters across a range of issues, such as sale of goods and personal injury. In the private sector, Page 31 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure these techniques have been successfully operated for a number of years by such corporations as eBay, Cybersettle, and Modria, to name a few. eBay, in particular, handles over 60 million disputes each and every year using their own ODR with an e-negotiation focused approach. In his Final Report, Briggs LJ observes that it remains ‘practically inevitable’ for the future to involve the creation of a single online portal for the issue and conduct of all court proceedings. Such creation would be a sign of moving with the times, but whether such a move is at the cost of justice to those involved is a p. 48 matter yet to be seen. There remains a number ↵ of ‘sticking points’ that have been raised by those in practice that any pilot stage will need to bear in mind. For example, there is a need to ensure that costs are still awarded to allow legal professionals to remain involved in their client’s or potential client’s affairs and to have computers available in court buildings in order to allow those without access to technology a chance to have access to justice. Key debates Topic Creation of the Supreme Court Academic Kate Malleson Viewpoint Argues that the introduction of the Supreme Court is of an ‘evolutionary nature’ as opposed to a revolution and recounts that such a constitutional change is likely to ‘be marked by continuity rather than radical change’. Source Kate Malleson, ‘The Evolving Role of the Supreme Court’ PL 724, 771 Topic Use of the County Court Academic John Baldwin Viewpoint Argues that litigants who used the County Court system were ‘generally satisfied’ due to the informal and layman nature of the court’s operations. Source John Baldwin, ‘Litigants’ Experiences of Adjudication in the County Courts’ (1999) 18 Civil Quarterly Review 12, 14 Topic Classification of courts Academic Alisdair Gillespie and Siobhan Weare Viewpoint Argues that ‘In practice it is rarely necessary to classify the courts and instead a distinction is drawn between the types of justice. Some would argue that there are three types of justice systems: criminal, civil, and family, but in reality, the distinction is between two: civil and criminal. Accordingly, it can be said that the need for classification, at least in practice, is perhaps questionable.’ Page 32 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 2. Introduction to Sources of Law and Court Structure Source Alisdair Gillespie and Siobhan Weare, The English Legal System (7th edn, Oxford University Press 2019) 195 p. 49 Exam question Essay question ‘The classification of courts in England and Wales is a pointless exercise. We have criminal courts and civil courts and that is the end of the matter.’ Critically discuss this statement with reference to the court structure, classification, and functions of the court. Online resources This chapter is accompanied by a selection of online resources to help you with this topic, including: an outline answer to the essay question multiple-choice questions. © Oxford University Press 2020 Related Links Visit the online resources for this title Test yourself: Multiple choice questions with instant feedback Find This Title In the OUP print catalogue Page 33 of 33 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025

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