British Law PDF

British Law Lecture 1 : Common Law and Civil Law ★ John Henry Merryman defines a « legal tradition » as a set of historical attitudes about law: its nature, role, organization, operation, teaching, and study. - Common law Common law legal systems are based on many shared attitudes which distinguish them from civil law. Common law is very old and widely distributed, it takes its origin from the Northern Conquest in 1066 (11th). It is more due to the legal system in the 12th century known as “the Writ System”. Today the common law traditions existed throughout the English countries (United Kingdom, Canada, anglophone African countries, India, Caribbean...), it is the legacy of colonialism as it is spread in every part of the world. - Civil law The Civil Law tradition is even older than the Common Law tradition. The Civil law tradition is more distributed and takes its origin to the 12th tables of Roma (5th before Christ) or to the Justinian Code at 6th after Christ. In both cases, the Civil Law tradition is older than the Common Law tradition. A legal system is an operating set of institutions, procedures and rules. The Legal systems usually correspond to Nations, every State in the world has his own legal systems. Today, civil law tradition is throughout Western Europe (France), Central Europe, South America, Central America, Francophone Africa, Asia, Eastern Europe and Russia. France has a legal system but it's different from other legal systems in the civil law system. Those two legal systems are the two most widespread laws, even if they are not the only ones. The Legal system traditions is a set of historical attitudes, of institutions, procedure that is different from a country to another. A legal tradition is a set of different attitudes toward the law or nature of law. The tradition is similar in French law and German law for example. It is not a thing but a concept shaped by our attitude. ➔ What is the law? How is it organised? How is it taught? What's the nature of the law? Civil law tradition recognised three sources of law : statutes (codes, legislations) regulations (administrative law, regulatory law) customs (justice common). 1 Common law also recognise these three but they have one more : Judges made law (stare decisis= let the decision stand), they decide everything about juridique things, court decisions are the primary source of law. It tells a court to follow a prior court decision. We are not telling the court to recognise the parliament. We are telling the judge to recognise another judge, telling judge number 2 to obey the number one decision. These traditions are about: what is the law ? In Common law tradition, the judge is the most important actor of the law. This doctrine is rejected by the Civil Law Tradition where the judge has a much less power and role. Oliver Wendell Holmes once said: « the Law is what the judge says it is » The greatest names of the Common Law Tradition are all judges like BRACTON, GLANVILLE, SIR EDWARD COKE, JOHN MARSHALL, O.W. HOMES. In Civil law tradition the judge is a civil servant, a fonctionnary. In the Roman Tradition (iudex), a judge wasn't a prominent man of the law, he wasn't educated particularity in the law, he had access to the 12 tablets ( like everyone else) but wasn't a " jurist ". He was an ordinary person (merchant , farmer,...). He was basically like an arbitrator I would arbitrate a dispute). If there was a question of law, he didn't know, it was given to him by a " Praetor ". Acknowledge Praetor was guided by a jurist council. So the judge wasn't the most important in the law. The roman judge had no law making power whereas in common law the judge is the law maker. The greatest names in the Civil Law Tradition are not judges but legislators like NAPOLEON and SAVIGNY or scholars, lawmakers like JUSTINIAN, GAIUS,. Why is the Civil Law Tradition that way ? - Traditions inherited from Roma or Constantinople, it didn't make judges important actors. - The doctrine of the rationale of the separation of powers (judges are not supposed to make law) = rational, the legal system, anti-judicial ideologie. - The legal system of judges. - An inherited attitude from the French Revolution: anti-judicial ideology. Before the French Revolution, the office of judge was property (like being an object), you could buy, sell, and inherit a judge's chair. MONTESQUIEU inherited his judge chair and then sold it and went to do other things where he was good at. Before the Revolution judges were aristocracy so they were against the revolution, they were anti-peasant. So when revolution came the aristocracy of the Robe failed to keep 2 in power. A new rationalist doctrine of separation of power emerged. It was ideologically popular. Since we didn't want judges to make the law → Rationalistic. So the judges don't make law but apply it. In the Common, law judges are seen as progressive forces : 17th century → revolutionary role , part of the forces of progress in English constitution history. The judges weren't attacked during the English revolution, rather worshipped = inherited this 17th century idea of judges => politically given checks and balances in the USA. Judges were the representative of progress in the english revolution constitution in the contrary in the civil law they were not credible. For the civil law « tradition » there was a problem judges don't make law. So how to make the law “judge proof”. ★ Frederic the GREAT is one of the greatest figures, he created the prussian code for the judges that just apply the code. Problem, this code was so big that people didn't really get the point of it and judges couldn't apply it. So the german created the supreme court. In France they created the “tribunal de cassation” that soon became « la cour de cassation ». It was juridictionalised. “La cour de Cassation” basically makes law, and reads the decision of the “Conseil Constitutionnel” as the primary source of law. Despite the folklore (myth) of the civil law « tradition » judges in civil law countries “precedent” to make decisions. Judges don't make law but use precedent cases to judge current cases. The difference between the two laws (common and civil) is not what they do but what they ought to do. Just like common law judge, civil law judge found out a few things: - The code doesn't apply itself (no self application). You can't just read the code and apply it. You have to figure out what it is trying to say, what it defines legal or illegal. - They have to apply stature that is not clear because they are written by politicians. - The legislation is incomplete so the judge has to fill in and figure out by themselves what to do. - Even if there is a law, the situation and the society change, so they have to figure out themselves how to apply old law to new situations, to the current era. So an important distinction for the 2 traditions of law: they dont lie in what courts do but in what the dom folklore tells them to do. In the Civil Law Tradition, the judges are not supposed to make law. Whereas, in the Common Law Tradition, it is one of their roles they have the responsibility to make law. We call judge made law, Common Law has different meanings: 3 The law that was common to all English men. In the USA = English law. Ex: When saying New Jersey common law => court decisions from the court of New Jersey. Judge made law, court opinions, and court decisions. Schools of Jurisprudence in the Common law : => Common Law Tradition that denies that judges should make law ★ William BLACKSTONE (1723-1780) : he believed that judges were depository of the law so they should just apply it and not make it. For him these judges were deceiving people by using their knowledge. He swore to determine cases based on the law and not his personal belief. BLACKSTONE was a consevative school of Jurisprudence. ★ Jeremy BENTHOM (1748-1832): he was against BLACKSTONE belief. That belief was ancestor worship. ★ Oliver WENDELL HOMELS (1841-1935): “the law is what the judge says it is”. He represented the school of legal realism. A good judge is someone that knows the law. Within the Common Law Tradition, there were different schools of jurisprudence. ★ Roscoe POUND (1870-1960) : He developed sociological jurisprudence. They would incorporate things from daily life to the law. They used the law to fight social injustice. For him, lawyers and judges were educated people. The law needs to serve the needs of a changing society. The judges deciding case by case are better to do that than legislators or Constitutional writers. Lecture 2: Understanding Anglo-Saxon Customary Law 4 The Norman Conquest made certain changes in the administration of law that were much greater at first than the changes in the existing substantive Anglo-Saxon law, an elaborate and codified customary law. Alfred the Great’s Domboc & Legal Treatise known as Bracton. Every legal rule and norm has his own genesis (origin or mode of formation of the system). The common law system came from the archaic (very old) legal system of the Anglo-Saxon. It came from Germanic customary law. Most of our “modern” legal concepts developed in the last 900 years (since the Normans). A few came from Anglo-Saxon times and a few from older Germanic Customary Law. One old Norm term entered the “old english” Viking Dane-law. “Old English” = the way we talk about the anglo-saxons language. The word “law” came from Germanic customary law. This “Middle English” emerged after Normans = legacy. The anglo-saxon customary law was a part of the anglo-saxon custom = custom was law. There was no legal profession, no judges, no lawyers, there was no body with technical legal knowledge = everything was informal. Most communities were left on their own. They were peasants, so they produced for themselves but were left out of the commercial world. There was no contract law. People did sell things but without any contract. The sales took place at delivery. Furthermore, there was no “private ownership” of the land, so no “property law”. Lands could not be bought or sold. Even if there was no commercial law, private property law or even contract law, there still was a law. ★ Alfred the GREAT (871-899) modeled himself on Charlemagne. He was the first to unify all the Anglo-Saxon Kingdoms (6 Kingdoms). They were all using “odl english” (= before the Norman Conquest), but the anglo-saxon written law wasn't in english but in germanic. Alfred had a code made in 895 called the “Dom Boc '' (pronunciation = “Doom Book”). This code was a list of punishments, of his judgement. It mentions all the penalties and punishments for wrongful acts that had to be reinforced by your family or your clan (large grouping of family). It means that if you have done something wrong, there was the law but it had to be enforced by your family or clan. There was no appeal (= courts or judges) but the law had to be enforced, it was the customary law. The Dom Book was preserved after all those years so we know something about the criminal law of that time. There was a written anglo-saxon law. The emprisonnement was unknown to them as they didn't have any jails (they only held them until the trial then had their “doom”). The list of the crimes and punishment recognised by the anglo-saxon law: - Treason → death penalty 5 - Homicide → compensation (a bot = give something of value to the victim as a compensation. There were 2 parts: They were paid to the King. It was a sort of revenue for justice. The Wite = paid to the king of the victim. - Wounding → compensation (scale based on the rank). People of high rank get high compensation and people of low rank get low compensation. - Assault → threatening to hurt, to wound someone but not actually doing it. It is based on the same scale as for wounding. - Theft → slavery of theft and family to victims, a status and property in the anglo-saxon society, slavery as a punishment, here slave was a status not a property. There was no slave market. An intelligent place to begin the Common Law would be the 12th and 13th century. It started with the Norman Conquest, William the Conqueror promised to enforce law, it existed under Edward the Confessor. The Common Law became an object of study of the legal profession. There was 2 meanings of the word “Common Law”: - When the word “common law” is not capitalised, we are talking about judges making the decisions : “judges made law”. - When the word “Common Law” is capitalised, it is about the English law expanded throughout the British Empire = basically British Law, the history of British law but Common Law (Common Law = the law that was common to all English men). In the early 13th century, the jurists were the product of the Norman Conquest (1066). As a legitimate heir, William had a blood claim to the crown of England. ★ The House of Norman: The house of Normans didn’t change the law of England, it changed the administration of the law of England. The Normans were good administrators. But it didn't alter the administration customs. From the 12th to the 15th century, the Plantagenets (a very powerful royal family known in all of Europe). It created a new system of Royal Courts. The Plantagenets created judges and the Writ System common to all the subjects in the English realm. The writs were a form of written command in the name of a court or other legal authority to act or abstain from acting in a particular way. Writs weren't only good in England but anywhere that could be enforced by Angevins. The writ was the first document that we go to in history of the Common Law, The Legal Treatise known as “Bracton”. It was only a book about law and not the law. ★ BRACTON took notes of the cases that were being heard in the 13th century Royal Court and his notes became the legal treatise about the common law. His notes were all about property and criminal law. The 1th century is the primary source to look at the Common Law. 6 Meanwhile, legal education was being provided in the institutions “Inns of Courts”. Barristers first started to use the moot court method (= simulation of trial). In London, the legal profession established a guild (an associate of merchants & artisans who oversee the practice of their trade in a particular area In London). It was composed of the Bar (barristers/lawyers/attorneys) and the Bench (judges). Out of the shires and the borought, trials and ordeals were still used by families. It was the standard operating procedure. The questions about the law were answered by juries (people that would swear an oath to God). The trials were based on people's personal knowledge of local customs. There were no police so if a crime was committed it was up to you (family member), King member, member of household (domestic servant, slave), clan. A person without family, kin, clan was unprotected. Men had a moral/social obligation of vengeance/obtain compensation when one of their kinsmen was a victim of someone's crime. This behaviour is called the “rule based behaviour”, within complex societies, it was an act of vengeance/compensate duties you had to your kin. It was also called the “blood feud”. Blood = blood relation like common ancestors in clan or actual family members. Feud = faith, faithfulness, honor, duty, fidelity. The actes of “blood feud” were closely regulated by law and custom: - Type of vengeance - Amount of compensation - Place of payment Legal defenses are in place, ex: no compensation for killing an “outlaw”. The idea of imprisonment was unknown. (Goals only held defendants until trial). There was no “isonomy”, no equality of law, Feudal law = rank, rights and privilege, privileges were abusive. Lecture 3 : Magna Carta and the Rule of Law Magna Carta was a royal charter under the seal of King John. It was granted on 7 running hill on June 15th 1215 = the documents. It was sealed and not signed by King John. If Magna Carta were redrafted today, as an active parliament. It was made into 4 parts: 1) A single clause : “CAP. 1” (article 1). It protected the rights and liberties of the Church. It’s understood constitutionally today to be the Church of England. The people writing the document were actually church men. 2) 14 provisions (articles) which would relate to the landholding. But in a very old 13th century futile language. 3) 14 provisions related to the administration of justice. 4) 9 provisions that deal with elements of futile life, of the feudal system that doesn't exist anymore. The original Magna Carta was oral. So what there is in the British library are original copies of the oral one and each copy is different. All copies are unique. Many copies were made and were called original. They were written by hand so every one of them is different, they were “sealed” and then sent out to Cathedrals since there weren't many “public buildings' '. There are only 4 left, one is at Lincoln Cathedral, one at Salisbury Cathedral and the other two are at the British legal Library. In form, Magna Carta looks like any type of medieval charter. It is a small legal document: - it was written in Latin - On a parchment (animal skin not paper) so it could not last long, it was sealed: a charter having a seal is what makes it legal = Data Per Manum Nostrum. Given by « our hand » = The King. In form it was typical but in substance, it was different: It granted “liberties to all free men of our realm”. It granted liberty and not equality. This royal grant of liberty also said that even the King was bound by the law. This principle is known as “rule of law” meaning that no man is above the law, the book rules the law. Everyone is subject to the law including the King. This idea that all power comes through the law and not from the King. It is the biggest principle that exists from Magna Carta. They adopted that idea and didn’t invent it. ★ The author was Sir William BLACKSTONE. He wrote the book “The Great Charter” in 1759. He is the man that gave us Magna Carta history. He did the research and was able to do so because they had things based on written records. The history of Magna Carta, there was no single written document. Magna Carta is the “unwritten British Constitution”. It is written but not in the sense that you can simply go and see (the original original). There is no single written Magna Carta but there are a lot of copies. 8 In 1215, every single copy of “Magna Carta '' was annulled so it isn't even the “original copy”. In the same year they were made, copied, sealed and sent out and then annulled by the Pope because King John didn't want them valid. It was historically true but not legally true. The original 1215 version of the Magna Carta was annulled by the Pope Innocent. In 1217, the new King Henry III passed the “forest charter” that dealt with royal forests. 1/3 of the forest belongs to the King. People would randomly go in the forests so he set some rules. He called the Forest charter the first charter so he needed to distinguish it from the previous one thus naming it Magna Carta. In 1217 the great charter was given the name Magna Carta. There was no title on the document before. The first time it was called « Magna Carta » was 1218. Henry’s « Great Charter » of 1225 became the So speaking of the legal Magna Carta is the one from 1225. That’s the one that’s on the statute book. The other one isn’t because it was annulled. ★ Edward the 1st of England was the son of Edward zero. He provided a document known as “the conformation of Magna Carta” in 1297. Magna Carta was confirmed for a total of 55 times between Henry the 3rd and Henry the 5th. The text is divided into 4 chapters (capitulor) but in the original, there aren't even paragraphs. They did that in order to fit everything on the skin, they even had to abbreviate the words. It was only in the 15th century that strides started to add numerous systems. But then people stopped reading it, after it was printed. There are different numbers assigned to the same text. The most famous chapter is Cap 29 in the UK but Cap 39 in the US. Most of what is known and believed of Magna Carta is completely false. ★ Sir Edward COKE (1552-1634) was a legal writer, he was very interested in the Magna Carta. He produced 13 law reports and 4 volumes of commentaries “Coke's law reports”. They provided a case report in order to understand the common law. He was a lawyer and a barrister and would defend Englishmen against James the 1st of England charity. COKE was also a member of the parliament who eulogised Magna Carta multiple times. He's the one who “revived” and made it an important document today. He started referring to Magna Carta in order to make arguments for the foundation of the law (fundamental law), today it's the same as the constitution. He became the chief Justice of the court of common police (common law court). He started making law while reasoning with Magna Carta. He considered it to be the ancient confirmed Constitution of England. In Dr. Bonham's case in 1610, when he was dealing with a case, he needed the name of the case and the date. He said that “in many cases, the Common law will control acts of Parliament”. He meant that even the Parliament is subject to the rule of law. His construction of the Magna Carta is superior to the Parliament. His most important work is the “Petition of the Right” (1628): behind this, he drew explicitly on Magna Carta. He's citing the documents directly. He gave a doctrinal reading 9 that would be then read by American and British royals in the next 200 years : Institutes of the laws of England The 2nd institute provides an extensive clause of Magna Carta. It’s the doctrinal version of what Magna Carta is. He’s the one that invoked the liberties that are written in the Magna Carta. It was published after his death. He created the doctrine but didn’t live to see it accomplished. His ideas influenced the English Civil War.Ex: his idea was to abolish monarchy and that’s what they did during the civil war. They then had a restoration and brought back the Stewarts (they came back to power as the royal family) : a Stewart restoration. His writing became the explicit ideology of the Whig (the liberals). In 1689, one of the most important documents of the British Constitution was published: the Bill of rights. It inherited all of COKE's views and even if he saw dead, he won the fight, his ideas were the principle of the Bill of Rights. Parliament was not in Magna Carta because it didn't really exist in 1215. The Parliament confirmed Magna Carta multiple times, because of its implications. His royal seal implied that no man was above the common law: that was the implication of the Magna Carta. ★ Thomas Bonhon was a medical care doctor. He got his diploma in 1584 in Cambridge. He tried to go to London to practice medicine to become a Barber-surgeon (a practitioner). The college of physicians were the only ones who could give him a license to practice medicine. So he was fined and imprisoned for practicing medicine without a license. He appealed for a Writ of Harper's Corpus (writ to help get out of prison). COKE says it's wrong to restrain someone from practicing their profession and it's wrong for physicians to throw BONHAM in prison without a trial. College and Physicians Act 1553 Lecture 4: The ancient courts The Supreme Court of Judicature Act of 1873 fused law and equality. 10 - CIVIL SIDE - The County Courts are the starting point in the English judicial system. It is the beginning of most serial cases. The county court resolved minor cases, damaging less than 15 000 pounds. It applies in every county in england. It was the place where most people got their local justice. Arranged in judicial justice. By 1846, equity was given to the county court. The county courts were successful and had a good reputation because they had simple procedures and low cost. They have no jury (for the most part, except for administrative cases). Except if you have a case of liars and slander you do need a jury. There is a difference between the county court and the hundreds. The district judge is a full time judge appointed in district ct, they have deputes district who were solicitor, beristor? There are also the registrars, they are like judges, they are solicitors who help administrators in given decisions, they decide pre-trial motions. They make decisions on small claims. They are appointed by the Lord chancellor. In the county court, solicitors may appear as advocates and not only baristors. There are circuit judges. They go around different courts. The recorder civil is a paid judge. That was on the civil side. On the civil side, the High court of Justice deals with serious civil matters. They were Anglo Saxon courts. The Anglo Saxons divided their kingdom into shires (comtés). Hundreds were in town. Sometimes hundreds would correspond to the parish. “The hundreds” is a false name, it was roughly "hundred people". 100 people would meet at least once a year and organise themselves into tithings ( group of about 10 families). Justice : People would gather together and accuse people. They knew each other and accused themselves. Police didn't exist, Alfred the Great didn't have police. The families were the enforcement mechanism. The 100 were a first step into Criminal Law. They had a procedure called the Franck pledge. This procedure was simple: once to get together, each family had to produce members of their own group for hearing. No court house, it may occur very well. Outside, no specific place. People showed up at least once a year. People believed in the system (were deeply religious). => Minor crimes would be tried on the spot. The accusation would be made and guilt or innocence would be decided and the punishment would be administered. If there was a serious crime, it wouldn't be decided in the 100s court but the shire court. There, there was a building called a gaol (where they were being held until the shire court). This was the criminal justice system in the Anglo Saxons kingdom. Most people knew what the law was and they were the ones running the 11 procedure. 100 years after the Norman conquest, Henry II created a new mechanism called the assizes : not a building, an event that's held. An institution is just a patterned form of behavior. The assizes of Clarendon were courts. 12 men needed to come to the shire court. (Meeting, not a place) They could present to the loyal officer a report of all of the offenses that had been committed and produced all of the offenders (délinquant/coupable). It's a new procedure added to an old institution, elsewhere Henry would use other procedures. During the crusade, crusaders who returned had a problem: people had occupied their land. => The assizes became popular. The shire court would issue a summons (assignation) to appear. It was a procedure added by the assizes. If they didn't appear (no police). If you received 5 summons and failed to appear, you were deemed (juger considérer) an outlaw. An outlaw because you failed to appear an assize. Now that Henry had started to involve himself in modernizing the legal system, the King had the power to decide. People who wanted justice from the King, "made pleas of the crown": the birth of common law. => Cases were given to the emerging court. If the amount disputed was 40 shillings, the shire court would hear them, if it was over, the King's officer would decide. The primary source of wealth was land. The big cases dealing with land would be heard in the royal court. Court would be used to design who surrounds the court. The King's court would move with the King. Sheriff was a royal officer appointed to conduct a King’s business in the shire, so he could stay in London. Eventually, people didn't have to chase down (poursuivre) the King. => The King’s powers were executive, legislative and judicial. The King executed law and decided cases, could appoint one of his officers to do that and take away that appointment. Magna Curia and lesser Curia were used to talk about the court, the people surrounding the King. The Magna Curia: Ecclesiastics, Kings most important advisors, tenants in chief: the great council. Magna curia for major land disputes but for anything else it would go to the Lesser Curia. Lesser Curia: the King's household : the people who took race of the Kings bedroom: proximity to people of power. The people who followed the King, were loyal.They were known as "justices" The King would take people from his household and appoint them justices. Because it was an absolute monarchy. There were justices in eyre. They would supersede (succéder, remplacer) the sheriff. They would hear the case representing the King so the sheriff wouldn't have to make a decision. (ex: justices of jail delivery). 12 - Justices of gaol delivery: the ones who heard the pleas of the crown, serious Criminal matter. - The commissioners of Oyer and Terminer: more important crimes. - The justices of the peace: local citizens who were empowered by the King: started in 1195 - goes on until today. They are ordinary citizens with judicial power (judges) 12th century. Originally the JP were people who would take care of inmates. By 1344, they were hearing cases and acting like judges. In order to be heard at a royal court, you needed a writ from the Chancery: a document written on parchment. The writ you would get from Chancery: medieval writing office. It was in Westminster Cathedral. In the cathedral, you’d get chancellors: religious people who worked in Westminster Cathedral writing. The whole Royal system depended on chancery writing these writs. If you have a writ with the King seal, the King didn't have to come. It was an efficient way to rule. Writ would address a particular court. The first writ was the writ of right: round 0 for common law in the 12th century. It authorised a judge to hear a land dispute (big economic issue). In the 12 the century: writ of possessory assizes. Sheriff would gather 12 men for land dispossessions. It was popular getting the King to get land back. The first court called the court of common pleas (1178): people needed to be permanently appointed to justice. They sat in Westminster palace (on a bench). They were called the bench (was the first permanent royal court) 1234: when they first started keeping their records. The records of that court is where the common law comes from. By 1272, they started having a chief justice. They were dealing with civil matters. For criminal matters, the court of the Kings bench was created. There was the writ quo warranto: judges doing administrative law overseeing administration. There was the writ of prohibition: public officer to cease doing something - Writ of Mandamus: order an officer to perform his duty. - Writ of certiorari: Royal officers had to send the case up to the King's ear. - Writ of error: the King's bench would send the case to another court. There were numerous writs. Court of exchequer of pleas: each square represented a shire and the money from the shire was deposited on the floor. It became a tax court. They produced the writ quo minus where the debtor was forced to pay the creditor for him to pay taxes. The most important court was on top: the court of chancery. It became a court in 1474. The lord chancellor was the most important minister of the court. 13 The body of law produced in chancery is called equity. One of the writs in the court of chancery were the writ of subpoena (assignation). The chancellor wasn't a judge. He was exercising direct legal power, the decisions of the judges were called decrees. To conclude: there is no judiciary system. They had independent things that were woven to the King, around the Kings were the King's council. Those Kings officers will get powers. It will evolve in the House of Commons. The King’s council also enforced the law through chancery, the exchequer of pleas. In addition to law making, there was also due process of law: something beyond making law and power, the court of common pleas and the records they keep became a court of common pleas. The Ecclesiastics courts : family law (marriages. Inheritance, religious offenses - big issue during Protestant ref. 1544 made King Henry the Head of Church of England, therefore the Ecclesiasticus court was part of the King's power. No separate judicial system. - CRIMINAL SIDE - On the criminal side, we have the Magistrates court, nothing like the one in the USA anywhere else. All the criminal cases start here. The more serious cases move out to the crown court. You were brought before the magistrates. The thing that makes them totally unique is that they are judged by laymen, someone who is not an expert in the field, ordinary people who don't know the law. They act as judges, they sit part-time on banc = collective decision. Unusual for the English system made of one judge. We could have as few as two, but two ordinary citizens is dangerous (normally 3) but we could have 2 to 7 magistrates. These were called Justices of the Peace known as JP. Approximately 20000 JPs in England, also known as magistrates because they are on court. People got to have JP at the end of their name but they didn't get paid, it was a civic duty to perform that you volunteer for. They were also appointed by the Lords Chancellor in the name of the Queen. They treat minor criminal cases like domestic disputes. They also deal with unlicensed, with people doing things without a licence like doctors. There is no jury in the magistrates court. No jury in a criminal court. If there is a matter of law, the laymen didn't know what to do. So they are assisted by a law clerk, appointed by the lord chancellor. Sometimes we only have one magistrate, called a stipendiary? Magistrate. The magistrate court has speedy procedure, it is their strength. They have a high rate of conviction which is bad. You are more likely to be found guilty by your neighbours. They are not exactly popular but they are efficient as they are a great support. The crown court deals with more serious matters. England and Wales are broken up 14 into severalls regions. The crown court in London is known as the central criminal court. Known as the Old Bailey. The crown court is practically one single entity. They have 77 courts all around the country so it is possible to be mutated to another court. They hear indictable offences, serious offences. They divide indictable offences into 3 classes of importance? - Robbery (3 classe) : heard by a recorder or a JP. - Assault (2 classe) : someone threatening you with a knife - Murder (1 classe) : heard by a high court judge The judge sits alone in the crown court and the defendant can request a jury trial. - Example of criminal case: Regina vs Wang (2005) Established that the judge can not request a jury? He was waiting and his abg was stolen. Lecture 5: The Origins of the Jury Trial ★ Frederic MAITLAND (father of English legal history) had to find a body of neighbours summoned under oath by a public official who had to answer the question: what happened? The Anglo-Saxon, the Wager of Law (Defender Unica Manu) = defending yourself 15 while under an oath, denying fact on your own by raising one's hand. This procedure was made by the anglo-saxon. People would swear they didn't do what they were accused of doing. This would be used for debt, you would offer to wage your law. The “Wager of Law”, there was 1 defendant and 11 “oath helpers”. So there were 12 compurgators because they came to “purge” you from accusations. They would swear an oath on a Bible. Today it will be called character witnesses. If they all swore this under oath in court, then the defendant would be free. It was a difficult thing to do because if they found out later that he lied, they would be facing serious penalties (excommunication, excluded from the society, social and economic life...). It was outlawed in 1833. The Normans came and introduced another method, the “Trial by Battle” (Defendere Se Corpus Suum = defending yourself with your body. Combat was a legal trial). It was only used in two types of cases: The private accusation of felony: used when accusing someone of a serious crime = The plaintiff would make a private accusation towards the defendant and so then they would fight it out where the judge was the supervisor. Here the judge is an empire. If there was no judge, it wasn’t a proper trial. To contest ownership of land: the big economic case. You could hire a champion to fight for you until one of them surrenders: say the word craven (lâche) (I surrender). The fight usually ended with exhaustion, frequently that no one would surrender or die. In this system, we have a burden of proof (charge de la preuve). It was replaced by the assizes of Clarendon (that appear in 1166). The Normans also introduced the Inquest. Today it would be the equivalent of the Grand Jury as they are the one conducting the investigation. Charlemagne (a lawyer) brought this technique from Italy. He established the state’s right to obtain information from his subjects, it's the method that will be developed in Europe. This method fixed the State right to assure that they have all the evidence. In the Domesday Books in 888, the result of an inquest was 2 million words, this inquest lasted 4 years (1086-1890). William I did a census for taxation of land ownership. The Plantagenets introduced Trial by Ordeals, the administrative law. There was also the Possessory Assizes. People would be called for an event. All of the people have some personal knowledge of who owned the land. If this jury found that the plaintiff had been dispossessed of his land, the defenders had to restore the land to the plaintiff. There was no police, enforcement of order was up to the law, but you had the right to take back land. The Domesday book: Determined who owned what. William the conqueror created a survey for taxation. It's England's public record. The Plantagenets "possessory assizes". The assizes added something new. 16 ★ Glanville (1118) published a treatise on the law and customs of England. The assize of Clarendon (1166) represented a veritable change. You would seek a writ to order an assize to be held down. The assize system lasted 800 years and was abolished in 1971. The sources that allow us to know all this, the earliest come from Glanville (Anglo Norman source), he wrote a work in 1891 called « a treaty’s on the laws and customs on the realm of England ». Made by Ranoulf de Glanville he was sort of high chief. It created two kind of grand juries: The petit Jury, the presenting jury: this would have 12 men from each Hundred. They would voluntarily accuse someone of serious crime (taking someone else land). The Grand Jury, the Attaining Jury: Made up of 24 for each hundred too. They could have reversed the verdict if they found that the 12 men had lied. = Trial by Ordeal. There were several ways a trial by ordeal could occur: Hot water: an object would be dropped in a cauldron of hot water. You had to grab the object to be proven innocent. Cold water: you would be tight and they would throw on you cold water. If you floated you were a witch and proven guilty but if you didn't flow you would be innocent. Hot iron: a piece of iron was heated on until glowing. Then you had to take it in your hand and walk with it for a certain distance. If your wound was infected, it would mean that you were guilty. Morsol: they would give you a piece of food with a feather on it but the defendant didn't know. If you choked and gagged you were guilty. All these forms were irrational. It was used in criminal cases and it produced a lot of acquaintances. Most of the people undergoing an ordeal were proven innocent. So criminals will begin to calculate the penalty. It was a big problem for the criminal law. The catholic church was opposed to the ordeals that were introduced by the plantagenets. It was understood as testing God as there wasn't anything about it in the Bible and plus they were taking their oath on a bible for the ordeals. When the church forbade priests, Ordeals were banned. All of this was made under supervision of priests. The ordeal was used in criminal cases: God sent a message. The procedure would declare innocence or guilt. => The biggest problem came with the Catholic Church which would do things if 17 The bible shows that it is legitimate. Made them stop it. In 1215, Pope Innocent (4th Lateran council) in Rome said trial by combat was heresy. It was mentioned in Magna Carta cap 39 (29) "you have the right to legal judgment by your peers”. When the Catholic Church forbade church from participating, ordeals didn't work because they needed representation of God. Since the priest couldn’t be there they had the 12 men present. Judges began to resort to presenting juries which brings us to : « Trial by Juries ». They took these presenting juries, they ranged all up to 48 people. They were asked for their opinion on guilt or innocence. Some members of the presenting juries could be accusers. So sometimes it was very biased. The equival rates went way down then. Trial by Jury was a new procedure so the accused could waive his rights to the jury. It is still possible today. The waivable right. So what do the judges do? [to waive = to give away your rights] If someone waives a jury trial, the statute of Westminster (1275): “prison forte et dure”. The judges changed in the court cases the words that were written in the statute of westminster to “peine forte et dure” = became a powerful kind of torture. You could be crunched by stones, put into prison. People would definitely choose that rather than choosing the trial by jury. Because if you were found guilty your property was taken and children would be left with nothing. So they preferred to be crushed than make their family suffer. By 1352: they started taking the accusers out of the jury. By the 14th century, they took the accusers out of the jury. This date is an important reform. By 1450, the jury began hearing witnesses for the first time, they would testify. Extended to civil law by the 15th and 16th century. In criminal cases, the grand jury survived, today it is a collection of neighbours who issue indictment (= accused). They were abolished in 1948 in England. We distinguish it from the 12 men of Petit Jury. In about half the states of America, we still have a grand jury. The Bushell's Case (1670): A judge can't force a jury into changing his judgment. It is the case that made juries independent. The juries determined the fact and the judge made the law. This case involved William PENN, he was a nonconformist (the quickers or quacker dunno). He was charged with unlawful assembly since he was holding meetings as the protestants were being persecuted. The juries refused to find him guilty for holding religious gatherings. So the judge locked up the juries until they changed their judgment. The judge found them “In Contempt of court”. The jury was sent to prison and they had to pay a fine. 18 Justice Vaun was BRAXTON talking about these presenting judges. He said that if you force a jury (person under oath) to make a decision then it's not a jury as he is not following the procedure. ★ BUSHEL appealed for the writ of Habeas Corpus which brought a person to Court. A judge can get someone out of jail and give them a hearing. Chief Justice John VAUN said: “the jury and not the judge find what the fact is” = great division between the judge and jury. In BUSHEL' case, Justice VAUN discussed the debate that happened because they were questioning if the jury committed perjury (swear but lie). He says it's no problem because there’s already an attaining jury. It’s also asked : « what if a jury disobeys the judge » : they would be punished with Prison Forte et dure = establishing the statute of Westminster. Lecture 6: Modern English Courts The Supreme Court of Judicature Act of 1873 fused law and equity under a unified court system. Civil side: The County Courts are the starting point in the English judicial system. It is the beginning of most civil cases. The county court resolves minor cases with damaged that are less than 50 000 pounds (ex: fraud, defamation...). It applies in every county in england. It 19 was the place where most people got their local justice (first instance). Arranged in judicial justice. By 1846, jurisdiction of the equity was given to the county court. The county courts were successful and had a good reputation because they had simple procedures and low cost. They have no jury (for the most part, except for administrative cases). Except if you have a case of liar and slander you do need a jury. Difference between the county court and the hundreds. The district judge is a full time judge appointed in the district. They have deputies district who were solicitors, barristers with 7 years of experience. There are also the registrars, they are like judges, they are solicitors who help administrators in given decisions, they decide pre-trial motions. They make decisions on small claims. They are appointed by the Lord chancellor. In civil matters, where there is no jury, you don’t need a barrister. In the county court, solicitors may appear as advocates and not only barristers. There are special offices: circuit judges. They go around different courts. The recorder civil is a paid judge who specialises in matters and is used in circuit judges. That was on the civil side. On the civil side, the High court of Justice deals with serious civil matter, Criminal side: The Magistrates Court (not like the one in the USA or anywhere else). All the criminal cases start here. Plus, the more serious cases are moved out to the crown courts. English expression : brought before the magistrates There are usually 3 of them (magistrates). The thing that makes them totally unique is that they were staffed entirely by laymen (someone who is not an expert or trained in the field, an ordinary person who doesn't know the law. They act like judges, they sit on a bench so it's a collective decision. It was unusual for the English system as it was generally made of one judge. They could be 2 to 7 magistrats. They were called “Justices of the Peace” known as JP. There was approximately 20 000 JP in England. They were also known as magistrats rather than judges because they were on court. Because they were JP's they didn't get paid as it was an honorary position (few exceptions). It’s usually a volunteer = a civic duty. They were also appointed by the Lord Chancellor in the name of the Queen. They treat minor criminal cases like domestic disputes, unpaid utility bills, traffic tickets, parking offenses. We have no jury in this magistrates court, so there wasn’t always a jury in a criminal trial. If there is a matter of law, the laymen didn't know what to do so they were assisted by solicitors called law clerks (appointed by the Lord Chancellor). They advise the J.P. On points of law. Sometimes, there would be only magistrates and stipendiary magistrates. They were paid professionals (usually solicitors) who sat alone. Instead of having 3 clueless, there was only one better. 20 The magistrates court had a speedy procedure, it was their strength. People are immediately brought to them after their offense instead of waiting around. They had a high rate of conviction which was bad. You were more likely to be found guilty by your neighbours. They are not exactly popular but they are efficient as they are a great support. The Crown Court dealt with more serious matters. They came out of courts of Assizes. England and Wales are broken up into seven regions (not districts). There is one in London also known as the “Central Criminal Court” used to be known as “Old Bailey”. The Crown Courts are institutionally one single entity (despite centralisation). They have 77 courts spread across the country. So it is possible to be mutated to another court. They hear indictable offences, serious offences. - They divided indictable offences into 3 classes of seriousness: - Robbery (3 classe) heard by a recorder of a JP. - Assault (2 classe) threatened or stabbed with a knife, brought before circuit judge. - Murder (1 classe) premeditated, homicide, heard by a high court judge. In crown courts, the judge sits alone, the defendant can request a jury trial. Example of the case Regina vs Wang (2005). This established that a judge in England or Wales is not entitled to judge in order to return a verdict of guilty. This mafia Chinese whatever dude was waiting for the train of his bag was stolen. There was a search and found the thief... Civil side: Higher than the County Court, there was the High court of Justice. It was for serious matters. These came from the plantagenets. They had civil court jurisdiction. There were 97 high court judges. In 1873 : creation of this court out of 5 royal courts : Courts of chancery, the court of probate (wills, inheritances), court of divorce and admiralty (maritime law), kings bench and court of common pleas (where common law was born). They’re all combined in the high court of justice. They broke these 5 diff things into 3 divisions : - Chancery division - Family division - Queen’s bench (when queen dies it’ll be called the king’s bench) Chancery has 18 of those judges, revised by vice lord chancellor. They deal with estate law, trust (?) Pandora paper stuff, partnerships, bankruptcy, patents. The family 21 division has 15. They handle marriage disputes, legitimacy questions, adoption, guardianship, aka family law. The queen’s bench has 64 judges. They handle all cases that used to be in the king's bench, common police, all other subjects of common law. They also handle … and civil matters that are important (over 30 or 50k pounds). Above this : court of appeals for England and Wales. It’s split into a civil and criminal division : it’s the fundamental division of Anglo-American law. There are 38 justices of appeals (used to be called lord justices of appeals). There is : - The (lord) Chief Justice : president of the criminal division of this court. - The master of the roles : president of the civil division of this court. - The president of the queen’s bench division. - The president of the family division. - Chancellor. In 2009 : Supreme Court In 2005, the labour government passed an act : constitutional reform act of 2005 : The house of lords lost all of its judicial functions : problems with a legislative body performing judicial functions. It was out of phase : those who make law shouldn’t be those who execute it. 12 lords of appeal became justices of the Supreme Court. These justices on the Supreme Court lost their right to speak or vote unless they retired (in the House of Lords). When they created the supreme court life peers were replaced (In 2010, sir john Dison appointed to not be a life peer). What does ‘sir’ mean a knight hood : you’re not a lord but a knight. The Supreme Court also took over all of the revolutions of the Privy council. The privy council was a private council of the king or queen of England. They handled all sorts of matters but then it was reduced to a judicial function. It's the final court of appeal. It had survived the decolonization of the British empire because members of council could use it. All devolutionary powers given to the Supreme Court. The Supreme Court : The highest appealed court of England and Wales. Do Scotland and Northern Ireland have other high courts ? [[email protected]] 22 Lecture 7: The Lord Chancellor He is appointed by the Queen but not really, a political appointment by the Prime Minister who does that in the name of the Queen, the head of state. The Lord chancellor is simply a cabinet member today, he is the Secretary of State of Justice. The word Lord of Chancellor is only used by the british. The Great Seal (of the realm), the office of lord chancellor has its historical origin in the Carolingian Dynasty. Originally the lord chancellor was the keeper of the Royal Seal. This was a merovingien institution and not a carolingian institution. It was a diplomatic seal and borrowed by the merovingians during the roman empire. 23 Just like the French “Garde des Sceaux ''. He still acts as the legal custodian and that seal is the custodian; it symbolises the sovereign's approval of important state documents. There is no mandate to be lord chancellor. But it's not hereditary. There were 5 seals. Sealing in wax is melted in a mold and attached to a document by a ribbon. There would be no one to sign the treaties so they would seal them. The green wax seals were used for the letter patent. It elevated one to the peerage and became a peer. Ex: a lord. The blue one authorised the action concerning the royal family. The red wax appointed bishops. The idea of a royal seal is simple, the King would not have to sign every single document. French Chancellors wrote letters patent, they would be directed from the King to a single. They could be letters of nobility, financial transactions from the King to a person, letters delivering justice to a person, or a pardon (still exists in some countries). French chancellors also wrote charters authorizing grants of land. The early Capetian charters (Capetian dynasty) got their legitimacy from the number of witnesses. But as monarchy in France grew in power, the royal seals were considered authority. The Normans introduced the office of lord chancellor to England, they didn’t invent it. They were bringing it over from the Capetians. The Norman’s adopted the morse of the people they conquered. Etymologically, the word chancellor referred to a head of a medieval writing office called chancery. This was a Norman word referring to the lattice word part of the church where writing was done. Formally, the chancellor had been a church man : he could write He was the chief royal chaplain : the confessor of the king. The king would sometimes confide his secrets to the right hand man, the confident of the king, the power of religion who would be the chief royal chaplain. In France the chancellor was the archbishop. This ended in England when Thomas Wolsey refused to annul the Henry 8th 1st marriage. Henry then refused to have a church man as chancellor. When did Thomas Wolsey refuse to annul : 1529 Since 1529 most lord chancellors have been lay men. Was 1529 the first constitutional reform then ? The lord chancellor had legislative powers : Originally he was an oral minister : sat in the king's court. He worked for the king. That king's court is referred to as the ‘Curia Regis’. This court would later become parliament. The Lord Chancellor became a ‘prolocutor’ or speaker He would be seated in, what would become : upper house (for nobles). This then evolved in the House of Lords Therefore the Lord Chancellor presiding officer of the House of Lords. Since a significant act in 2005 : the role : presiding officer of the House of Lords => 24 now belongs to the lord speaker. The seat in the upper house. This is a reform of the lord chancellor's office. The executive power : The Lord Chancellor is a member of the Privy Council. The Privy Council was formerly the all powerful body of private councillors. They were the king's advisors, they would advise the king on how to exercise his royal prerogatives. Over time it had more and more responsibilities. So one of the committees of the Privy Council was the cabinet = the seat of government today. The Privy Council would issue things called : orders in council. This would be to make : a government regulation, an appointment, etc… It’s an executive function of the government. There was another committee called : the judicial committee of the Privy Council. It was the court of the last result for the British empire. Now for common law, it’s the highest court available for C.L. The privy council was not the highest court in England, Wales or Scotland but in the empire. His office was known as the lord chancellor's office until 1971 then as lord chancellor’s department (a ministry). Then they changed again in 2003 : from lord chancellor's department to department of constitutional affairs until 2007. Today it's the department of justice or ministry (short for administry) of justice. Today, he is called the secretary for state of justice (Lord Chancellor). He’s responsible for all aspects of criminal law. He heads the department of justice. It has 77k employees (a 77k ministry) and a 8k pound budget. The judicial power : When common law courts could not provide remedy, people could petition the king for one. In 1280, « petitions for justice » were addressed to the king (Edward 1st), and were handed over to the chancellor or personal confessor. It was a member of P.C, a church man. He would address these to his chancellor and would handle the most important dossiers. Since chancellors were church men, they had no legal training. They decided cases not on legal precedents but on morality. They would make decisions without law but with what they believed was right and wrong, from 1280 to 1527. In 1527 : Thomas MOORE, a lawyer, was appointed lord chancellor. After him, they were all lawyers because it was understood that it needed to be a lawyer. By the time of Edward the 3rd, the chancery of Westminster had become the high court of chancery. Lord chancellors were all barristers, all lawyers, the church had nothing to do with it anymore. The lord chancellor would determine cases according to fairness : equity (different from equality). Around 1557, this court began keeping records, therefore we’ve got precedents. So this started to look like law but it still was something different so they couldn’t call it law but equity. This then began to rival with common law. If you were a loser in Common Law court 25 you could go over to equity and call for an injunction. It was a sort of remedy. It would forbid the royal officers to do something authorized by writs. It was straight from the king since it was in the high courts. If someone was thrown in prison (could die or be tortured until submission to decision) : You could go and petition the king by getting a operation of justice. For that you had to go to the chancery and get a writ of Habeas Corpus (invented by chancery). This created a conflict between courts of common law (ensuring judicial decisions) and court of chancery. In 1615, the Earl of Oxford’s case happened. When 2 courts got in an institutional dead-blocker cause they’re not answerable to one another. They’re different like separate bodies of jurisprudence. They evolved separately, drawn from separate powers, etc... ★ The Chief Justice of the kings bench, Sir Edward Coke was the « Vladimir Lenin of the English civil war ». He was representing the common law and had issued a common law judgement. The lord chancellor : lord ELLESMERE issued an injunction, this was like King Kong vs Godzilla. The matter was brought before Sir Francis BACON, attorney general of James the 1st. It was decided in conflict between law and equity : equity prevails. Equity (as a body of law) : made of series of maximes, a set of legal principles understood to supplement the C.M Developed in court of equity as principals. Ex of maxime : If a buyer buys land and makes land : he gets an equitable title, has a right under equity till conveyance is made then has the official title of owner. There is no such thing as an equitable remedy in common law. It’s sometimes better than legal damages. C.M doesn’t always have a remedy. Another ex of Maxime : Equity delights in equality Laches (other maximum equity) : acted as statute of limitation. Equity acts in personae, more than just a liability over property but a liability over a person too = If property is outside the realm but person is inside the realm then equity could act on that person. One who comes to equity must come with clean hands. A man who killed his grandfather (was gonna be out of will) : wasn’t allowed to inherit. Did prevent will to change but couldn’t inherit. Equity follows law. This is a basic principle, not here to replace law. But if enforcing law to ensure justice then equity follows law. Equity aids the vigilant. Once equity had become a body of law, there was no reason to have a separate court. In 1873 : the judicature act => the courts of law and the courts of equity were fused in the high courts of justice. In 2005 : last reform = the constitutional reform act : The Lord Chancellor used to be head of justiciary then role transferred to lord of justice. It used to sit on the judicial 26 committee but was replaced by the Supreme Court in 2009. The office of lord chancellor is seen as violating the separation of powers so the Lord Chancellor is no longer the formal head of judiciary under this reform act. It’s now required to be a senior lawyer but no longer a member of the House of Lords. ★ Jack STRAW was not a member of the House of Lords but a Member of Parliament, member of the House of Commons. The Lord Chancellor no longer sits as speaker of the House of Lords, it's now the lord's speaker. The Legislative power was taken away by the constitutional reform act. The law lords were no longer seated in the House of Lords, instead they created a new Supreme Court. All newly appointed members will not take peerage and instead of being called law lords they’re called justices of the Supreme Court. There is a concordat established in the constitutional reform act between the government and the judiciary about all of the former judicial functions of the lord chancellor Instead of the lord chancellor making all of the appointments, they’re made through a judicial appointments commission later signed by the lord chancellor then the wand is waved by queen Elizabeth 2nd. An act enshrines the principle of judicial independence and the rule of law : a principle seen in Magna Carta that’s brought up to date in 2005. Lecture 8: The Legal Profession : “The Bar & Bench” Barristers and Solicitors : In the civil law tradition, the legal profession is fragmented: France, Russia, Spain, Germany. Whereas the legal profession in the common law countries is unified: Australia. In the civil law countries there are distinguished/distinct legal carriers: most people become lawyers. You also can become a prosecutor, a government attorney. You do an apprenticeship in the law firm/school to try to join the barre association. If after law school you want to be a notary, you need an apprenticeship with a notary and pass a national exam.You have to wait for a vacancy to open. If you want to be a professor in law school, you become an assistant and you wait for a vacancy to open. 27 People involved in the civil law country in the legal profession go in a different path, this makes your choice become more different and you make it early and stick with it. You become locked with your choice. Your carrier, especially the government carrier, is bureaucratised. You have to start your career at the bottom and evaluate your professional position to move up. You can have a promotion and may be faced with office politics that can be good and bad, it’s considered as a particular type of career. Seniority really matters in legal professions. You can have merit promotion and there is also office politics. In the Common law tradition, an American, there all are English lawyers, whatever their profession they are still lawyers. Some graduates of American and English law school start by being private attorneys and instead of staying in that profession since they are lawyers, they become persecutors, professors in the university, and judges. If they still remain in the law school, and deal with a famous case they can become a professor, and after becoming a judge, you don't follow a separate track. Judges in the common law tradition are lawyers, prosecutors are lawyers, law professors are lawyers. It is common for them to change from one profession to another. Their legal education is called a law degree. It's a unified legal profession. The differences between a civil law judge and a common law judge is important : In the civil law system, the judge has a minor role to do, he does some routine work. You have to learn how to do it and to do it. It could be given to inexperienced people. The common law judge plays a major role in the common law system: “judge made law”. The reasons go from case to case. + declaring the constitutionality of a law in a case. Looking at a statute means looking at a previous judge's decision. You don’t have a 23 years old judge on these courts. A common law judge is someone who is senior: you become a judge after a long successful lawyer career. The bench is the crowning achievement of your career (You made a perfect career to become judge). The English legal profession: The Bar The two functions of lawyer attorney is divided into two professions: - The advice function is executed by solicitors: When you need legal advice. They perform the counseling function, drafting documents. - The advocate function is executed by barristers. He’s the one who represents you in Court, if you need to go to Court. The legal representation in court. In America both functions are performed by an attorney. Most of the work of the lawyers is advice. The counsellor said that there are more and more solicitors to make money. In 2016 there were 175,160 solicitors for 16,045 barristors When a solicitor's case needs to be headed to High Court, the solicitor engages a 28 barrister. Barristers had a monopoly in appearing in court. They dealt with the solicitors and not the client traditionally. Barristers are divided into “junior barristers” and “senior barristers”. They would split the fee. Junior barristers get 2⁄3 of the fee and the senior barristers get 1⁄3 of the fee. Junior barristers are the ones who do the preparation and work more and in the concerned case the senior barristers do the action, like actors, they are considered as specials but they don’t do more work and they’re less paid. The senior barristers are called the “QC”, the Queen’s Council or the “Silks”, if the queen dies someday. England might have a king so the name might change to “KC” (King’s Council). Only the QC can become judges at Court, but they have to become a senior barrister for that because there is not any judge school. In England, the winner n'a pas a payer les frais d'attorney but it is to the loser side to pay them. In America, each party pays its own fees. There are also the “skills” (soie), they are not judges, they are barristers, they are wearing robes and costumes. Their job is in the court on stage, they use their costume. In the USA, we don’t have solicitors.There is only an attorney who performs the dual role. In England, the losing party pays the winner. The fee is reasonable, it’s seen by the court. In the USA, every side pays their own money, whether they win or they lose. In the 14th century, there were servientes regis (=sergeants). It came from the knight's templar. They were so rich that they became the most powerful administration in the world. They had a class called “frère surgeons”. Now it is a military rank. They became known as “sergeants-at-law” to distinguish them from the military. They were the only ones that could appeal in the court of common plea. In 1292 Edward the first issued a court of common plae. He directed the court of common pleas to attorneys and learners. They were the only ones allowed in the court and applied the procedures. They appointed attorneys and learners. The legal education was in the hands of learners. It resulted in the isolation of lawyers because it was lawyers who taught lawyers and so on and so forth. A perspective first year of school for a student: - Try to be admitted into an Inn of Court, the Inn of chancery was literally an Inn, (long stay hotel). - At this Inn you would study law. After two year, if you showed some talent, you would be admitted into the Inns of 29 Court. 4 examples: Lincoln's Inn, the Inner Temple, the Middle Temple (for the knights templars) and the Gray's Inn 1707, some of them were tortured, the knights templers are gone. You have inner temple and middle temple and sergeants. These temples are not law schools, they are unique English institutions. Students would live at the Inn of court, they were Inns, you would sleep, eat, study there. You would spend four to five years doing two things, answering legal questions and arguing moot court. Moots = exercising, simulation technique, use a case that had occurred in court to answer a question. It was to make the students exercise. Inns of court located into the legal sector. Because there started to be written reports, after their exercise, the students would go study these reports. Moot courts were the vehicule of the learning of the legal system/education. Moot came from an anglo-saxon word. It means a meeting or a court. A moot case means one that is not settled by judicial opinion. It was the basis of what was called the socratic method. After 4 or 5 years in an Inn of court, you would become an inner barrister. You would spend 8 more years (in total 15 years) doing your apprenticeship and training. You would follow the utter barrister into court. At the end of 8 years, you would be called to the Bar and become an utter barrister. Only an utter barrister could become sergeant-at-law. You would be part of the guild. The Sergeant-at-law was abolished in 1877 (at the end of the 19th century). Inner barrister is the ancestor of the junior barrister and the utter barrister the ancestor of the senior barrister. Barrister had the monopoly, and often gave lectures at the end of court. They were attorneys and professors. From 1640 to 1646, the English Civil War (Revolution that failed). You stop having classes at the end of the court because they created a written constitution. They started again in 1846. For two hundred years, English teaching courts were closed. Legal education system has not existed for two centuries. 30 Lecture 9: Legal professions It is made up of barristers and solicitors. The legal profession in the UK is a fragmented one. The ending of law school didn't stop the teaching of law. You would learn the law on the job. In 1846, the Inns of Court reopened. If you want to be a barrister, you would have to get a law degree in the Inns of court (The Inns of Court: there are 4: Lincoln, Gray’s Inn, Inner temple, Middle temple), one of those four Inns. These Inns are governed by masters of the Bench. They were inner judges running an Inns of Court. To be a master you needed to be a judge or a barrister. The rules were strict. You must die at your Inn in a period of 8 years. It means that you have kept terms (semester) by eating there. The Inn of Court is not a law school, they are not taking law classes because they 31 already had before the Inn of Court. Since 1975, a university law degree has been recquier. After they get their law degree, they take the Bar Vocational Court, a general examination in advocacy. They take this at the City law school. You have to pay to go there but it's worth it. It is kind of a “concour” but not one. (“Bar School” for barristers). If they pass this general exam, they become a pupil, an apprentice in this profession. You have a barrister that is accepting you as his apprentice. The senior barrister is a “pupil master” if they accept you as a pupil. It's the tradition of internships coming from the Guild. This apprenticeship of pupillage goes on for one year. Because most of the barristers were not really interested in pupillage, as it was a volontaire work. The idea was that if you become a pupil you could become a future member of your pupil master firm. Since 1981, they have allowed something called a “commercial pupillage”. It is under an approved barristers in commercial or industry and after 5 years of this commercial pupillage, you can represent a business (equivalent in France today is the DGCE). Barrister doing business law. After you finished your pupillage, you were “called to the Bar”. You joined one of the 6 circuits in England. The 6 circuits were: - The midland and oxford circuit - The north eastern circuit - The northern circuit - The south eastern circuit - Wales and Chester circuit - The western circuit England and Wales were broken into districts, you would practice your barrister in those circuits but you were allowed to take other cases of other circuits. There was no partnership in the English law. One barrister can't be the partner of another barrister. You would share chambers (the law offices) but it's not a partnership. The Inns of court are basically chambers. When you share chambers, they would share clerks and business expenses. An experienced barrister can apply to take the silk (QC), it is an appointment by that king : This type of work experience involves shadowing a barrister for a working week, seeing what they do in chambers, and also potentially seeing what it is like in the courts, demonstrating the more vocational side of being a barrister. To find out more about mini pupillage, click on the link – mini pupillage. According to a study by the telegram, most barristers earn from 25000 pound to 300 000 pound. For those who have more than 10 years of experience (senior barristers working in the private sector can earn a million pound a year). Barristers for the prosecutor you get 30 000 to 90 000 pounds. The solicitors: 32 - The early profession of solicitor came out of 3 different profession: attorney, proctors and solicitors: - Attorneys work at the early stages of the case, soliciting at the Kings bench and the court of common pleas. - The proctors worked for the ecclesiastique court and admiralty. They were the lawyers of this combined division who would go before the church's court, they would argue cases of admiralty. The solicitors were lawyers for the court of chancery, they weren't called solicitors at the time because you would go to the chancery to claim what you had to claim to the king directly. The only way to have a response was to engage a person to solicit for you as your case to take many years. It is where the word came from. In 1831, the 3 branches gathered under the name of solicitor. They found a society called the society of gentlemen practitioners in the court of Law and Equity. They became known as the “Law society”. It was the equivalent of the Inns of Court. Fused their names in 1875 under the name of solicitors. In 1903, created the solicitors “final exam”, if you passed your were a solicitor. The law society is the society responsible for prescribing this exam. The society also regulates the practices/profession and supervises the fees that solicitors could charge and compensate clients for malpractice. In 1922: solicitors were required to have 1 year of Formal education. To provide that, they created in London schools called law society's college of law or one of the various polytechnical schools if it was too expensive : 1 year of college geared towards soliciting. It was like a one year prepa but there weren't any concours. It led to the creation of a law school curriculum in universities Before 1922 there were only three universities that provide those services, Oxford, Cambridge, and University college of London (UCL). The solicitors acquire the right to advocate in law court. In 1990, a law was passed by the court and the legal series acts. They were now allowed to wear wigs. Before 1990, they were only allowed to appear in a magistrate court to help barrister and represent in the county court. In 1993, the lord chancellor approved certain solicitors who qualified to do advocacing, the monopoly no longer exists. You have to pass 2 courses. A solicitors can then advocate in a court To become a solicitor: it will take 3 years. You have to go to the law society, spend 1 year preparing for the solicitors final exam, You then become a clerk, a trainee under a barrister or governor. You could also work for a solicitor in a court. After apprenticeship, the master of the roles will register you on the list, after that, you have to renew a certificate or work for a commercial firm, or a government department, or you could become a notably (notaire) there is a society called the notary public?, or you 33 could work for a law center. You would be a mature law student. You go to the law society and take the common Professional Examination. It gives you a graduate diploma in law. You can do it in 1 full time year of study or 2 part time years. You take legal practice courts and bar professional training courses. These courts are offered by university, city law school or you go to a private institution like caplain? From the Caplain law school. In the legal practice school, you study the 7 fondation of law: Contract law, criminal law, EU law, public law, equity and trust law, tort law and land law. You then spend 2 years as a trainee solicitor, as a clerk. Your ambition is to be offered a partnership in the 5 years as solicitors are allowed to do so. You would be approximately 35 years old. The typical solicitor is a man. There were 160 000 solicitors ( 60% in the London area) and 30 000 barristers. Now solicitors are allowed to advertise their specialty. There is a licensing process. Solicitors could earn 65000 to 76000; 100000 a year for those who have been practicing for more than 10 years. The law clerk in chambers : master administrators of the chamber, doesn't need to have a law degree, it's an administrative position. You need the law clerk to arrange for the barristers : who's available... Law clerks can make more money than barristers. They have power because they decide who to send the case to. The "cab rank rule": you have to accept whatever case you get. This is how the clerk is powerful even though they're not barristers. As a result : division but lines between two professions are becoming blurred. Before, it was a solicitor who hired a barrister to represent you in court, today your solicitor might be the one who represents you in court. Before, your solicitor would brief you on your barrister : everything prepared. The junior and senior barrister would carry the briefs. Classically the barrister would receive the brief the day before the case. Today a solicitor who's too busy can give it to a junior barrister to do the briefing. The bar council (organization for barrister) can allow specialized lay clients to directly instruct a barrister themselves. Big law firms do more and more of the barrister work. They do everything themselves when they are given an in-house barrister. The losers in the process : barristers. The bigger money earners tend to be solicitors. Fewer and fewer people want to become barristers. In the last few years, there has been a decline in the number of barristers. Since barristers cannot form partnerships, many of them have a hard time. To respond to this one of the changes is their chambers are more and more resembling corporations in order to survive. Some believe that a fusion of the two professions is not far away on the horizon. 34 Lecture 10 : Criminal Justice in England It start with the Magistrate Court: If the system of criminal justice had to depend on professional judges, it would break down. But it functions well because of 30 000 unpaid judges, the justice of the peace. They have a part time job, a volunteer job. They are amators. They deal with more than 95% of the criminal cases because it's about facts and there isn't really much discussion about law. They deal with about 2 million cases and most of these crimes are petty offenses. Most of the people are brought there for trivial offences but not all of them, 10s of thousands of people are brought before the magistrates and sent to prison by the magistrates. 35 You have to do 26 half days a year to be considered as a JP. There is a push to try to make them 36 half days. They are backed up with 200 justices clerks (people that have knowledge of the law, solicitors or barristers) and about 2000 legal advisors to keep this form just being arbitrary decisions. The most famous magistrate's court used to be: the Bow Street Magistrates Court (bought by Qatari investors in 2016 and they're turning it into a hotel). The magistrate court is the first step in every case even for major offenses. [...] On the other side, there is the defendant. The Usher is kind of like the police officer. The Usher is the court police (bring people in...). The police are the ones who bring you to court, they are the ones who testify against you. The JP were the first of the police force but weren't the police. The police are actors in the criminal case. The police originally come from Richard Lion-heart who created the Justices of the Peace (JP) in the 13th Century as local police officers. These Justices of the Peace had royal appointments, there wasn't a police force, but a few people were constables (agents of the police). They assisted the police. Today, a constable is the lowest rank in the British police force. They were violent people. To say that they were the police is making it analogic. The term still exists. No police force until the 19th century. In 1829, The home secretary was a man called Robert Peel who created the police. He passed an act called the metropolitan police act which created the metropolitan police (in London). The first police force in England dates from 1829. In England perceived the police as having a different function than the one that oppresses people. Law enforcement and criminal justice agents. They started a trend in all of the major cities over the course of the 19th century and at the beginning of the 20th century. Police existed all around England. There were around 50,000 constables and police officers. There were 240 constables. At the bottom, there was the police constable, then the sergeant, then the inspectors, then the chief inspector, then the superintendent and at least the chief superintendent. In the countryside, there is an assistant chief constable and a deputy chief constable (which is the highest rank in the police and a chief constable. They had a military style organisation, but there is a class distinction. The constables give you a constable's caution, it's what happens when a constable arrests you. Constable can say: "you do not have to say anything, it may harm your defense if you do not while questioned. If you mention something it may be used against you in court. Anything you said may be given in evidence." while arresting you. The constable can testify against you in court. In 1842, the metropolitan police created a detective branche with 8 plain clothes people. They were necessary because of the emerging law of evidence. It was a different service. It's the beginning of detective. In 1879, the detectives were reformed into the 36 criminal investigation department; they have their own ranks. The lowest ranking member of the CID is the detective constable (DC). Above them there is the detective sergeant and then detective inspector? Above there is the detective chief inspector (kind of the chief). Above that is the detective superintendent and the detective chief superintendent. We can see a consistency in ranking. The prosecutors have to determine what you are going to be charged with and they try to separate into different degrees the seriousness of the crime. They are the first step in the system. Independant fonction the criminal justice and the judges. The law's level of charging: The summary offences are the less serious cases, like driving in England when you are not used to it, or minor assault (fighting). Most of them can be dealt with by the magistrats. The serious crimes or indictable offences, you could be indictate for, its an accusation (murder, rape, robbery) you would have to be heard in a crown court (higher court). In between the two, there are the either-way offences, the magistrate would decide whether to send you in a crown court or to judge you themselves (stolen goods, robbery w/o injury...). The way it used to work is that prosecution was in the hands of the police before 1996. But in 1986 they passed a law which profoundly changed the system called crown prosecution service (CPS). They were an independent body. There are crown prosecution services all around the country, not just in London. More than 2 000 lawyers, solicitors and barristers. There are 42 CPS all around the country. Each one of these has one chief prosecutor headed by one director, chief crown prosecutor. He's in charge of that service. They have a rule, they have to have a realistic prospect of conviction. There is no duty in law to prosecute someone, prosecution is discretionary. In order to prosecute they have to have a realistic prospect and it means it is more likely that you'll convict that they would be found not-guilty (more than 50% chance of being found guilty). Not everyone gets prosecuted because the prosecutor takes over from the police, they have their own institutions (different objectives), the prosecutors want convictions. There are certain serious crimes where they need an attorney general that is in a higher rank, above the chief crown prosecutor.The attorney general is a political one, the government number one attorney. He's assisted by solicitor general (originally were the queen's lawyers). Today, they're political appointments. For the most serious crimes the attorney general has to act, if not available, solicitor general. In the criminal court, the most impressive people are judges and barristers. The barristers are very visible. The trial tends to start at 10:30 am: the usher will let you in, the clerk will be seated at the clerks table, the court's stenographer but there is no jury of the judge or witnesses of the 37 accused person yet. The barristers represent the prosecutor and the defense. They wear wigs and gowns (perruques et robes). They're seated in a front row of the barrister. Then the judge announced " court rise" or "be upstanding in court". Everyone rises. The defendant is then brought in. If the defendant has been on bail then they have to arrive on their own. You have to confirm your identity in the dork? The clerk identifies you and the clerk reads the charges against you and then he asks you "Are you guilty or not guilty". At that point around 70% of people say they are guilty. If you say "guilty" , the trial is over. If they say non guilty they have a right to a jury. You can have a trial without a jury. Most of the decisions happen in the court. It's a 12 men jury. The jury is then informed of the charges against the defendant. You have the right to have a person exempted from the jury. The right of choosing a jury is becoming an art (make probabilistic statements by asking questions). Most people randomly selected want to get out of the duty. Although everyone had a chance on the voting list, the jury is statistically composed of certain kinds of people. Often poor minorities are brought in more than middle class ppl (work). The prosecution makes the opening speech in which they have to explain what the charges are to the jury. If you get a Jury, the prosecutor has to explain to the jury what the case is (presents evidence, and has to explain the standard of proof (burden of proof). In a crime the standard of court is proof beyond reasonable doubt. The prosecutor makes the examination in chief. The first witness is called and must take an oath, the oath is "I swear by almighty god that the evidence I present is the truth, the whole truth and nothing but the truth.'' After a witness is questioned, then the defense is cross examined by the attorney on the other side, if needed to rehabilitate the witness, the prosecution can reexamine the witness. That goes on for every witness that the prosecution has. The defense attorney can motion the judge (ask him to do something) to acquit saying no evidence. If the judge disagrees the defense presents his examination in chief, then cross examination.. At this point barristers make their closing speeches to appeal to the jury, try to persuade them. The barrister sits down and it's up to the judge to summarize the case with the main point of the case then the judge and jury leaves the court then goes back into the changer and no one else is allowed. The defendant also leaves the court. What happens if he's guilty : they go to sentencing but it won't happen on the same day. A sentence report is presented in the Mitigating the circumstance is to justify what happened.Finally the judge passed its sentence. 38 Lecture 11 : The Monarchy Walter Bagehot, The English Constitution (1867) The monarchy is very popular in england. The English don’t have this concept of democracy but it is a kind of democracy. The queen is the head of state of all the countries of the commonwealth, not only in England. ★ Walter Bagehot wrote a political essay named the English Constitution in 1867. It's about the law and not so much a description of how the institutions of government worked at that time. Authoritarian source is a secondary source of law which has authority. The monarchy is very popular in England. The English don't have this concept of democracy but it is kind of a democracy. All the other democracies in the UK are also democracies. The Queen is the head of the State. There is also a common law larger than just England, that also included the United States. The constitution of England is not a law book but a political essay about the law and 39 not so much a description of how the institutions of government worked at that time. Authoritative source that most sources aren’t (authoritarian source = secondary source of law that have authority). It’s not doctrinal either, it is primary law but it’s quoted very often. This work has influenced later commentators : A. V. Dicey quotes Bagehot often in Introduction to the state of the law Constitution. There are a lot of one-liners in it. Most cited quote “a family on the throne is an interesting idea. It brings down the pride of sovereignty to the level of petty life.” or “You might as well adopt a father as make a monarchy” BAGEHOT. The English in the book is clear. ➔Stylish analysis. Bagehot (1826-1867): periode of the expansion of the democracy He lived at the time where English democracy emerged. His generation came of age in 1848 when ordinary people got the right to vote. And democratic revolution broke out around Europe. Some people were trying to get away from empires. Many people were revolutionaries (Marx) but he wasn't one of the revolutionaries, he was the son of a banker. When he was a kid there were changes happening in England. In 1842 in England, Half a million voters were given the franchise (droit de vote). => The house of commons became the most important house. He was a skeptical Whig (or liberal). He wrote from the center left of British politics (left of the TORIES). He supported reforms and since that reform happened, he became a voice of that reform. In 1851, he came to Pairs after studying law at Lincoln’s inn: trained as a Barrister (avocat). He witnessed Louis-Napoleon “coup d'état” and that the 2nd empire happened. He helped build the barricades in Paris and then went back to England. In 1858, he married the daughter of the owner of the Economist magazine. He became the editor of the Economist magazine in 1559. And from 1859 to 1577, he was the head chief. Despite his career, he was a man of great talent. His book/essay, the English Constitution was not only about Britain and the english Constitution. It also does a comparison with France, Australia and the United States. The book also has been one the political systems in the United States. At that time, the USA was the only other free government in the world and France was not during Napoleon III. He witnessed in his 10 years at the economist magazine, the civil war in the US (1861 to 1864). He blamed the American civil war on the flaws in the American constitution and that is why they had a civil war. He was federalism as the flaw. He was writing this work with the background of the civil war in the US, with Napoleon III in France. He asked a simple question: Why does the parliamentary system work in some countries and not in others ? Constitutional Monarchy = democracy and different from the absolute monarchy. So he saw the constitutional monarchy to be better than a president and better than an Emperor. So why has constitutional monarchy, in his view, been more effective than the presidential system or the imperial system that he saw in France ? 40 Western Europe: Republics but also lots of constitutional monarchies: Sweden, Denmark, Luxembourg, Lichtenstein, Monaco... Why does it continue to exist? He believed that constitutional monarchy is better than a constitutional republic. Bagehot believed in constitutional monarchy. Some people in England believed in republicanism but it’s a minority. In Chapter 1 of the book: He distinguishes the dignified parts of government from the efficient part of government. The monarchy (Queen..) is the dignified part of government and the cabinet is the efficient part of government (which governs). The dignified part of the government excites people and the efficient part of the government is the part that makes the rule. They’re both important: “Every constitutio

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