Dicey III

Criminal and Civil Law

In English Law, one of the most important distinctions is between Criminal and Civil Law. For Law students at any level, it is important to be able to discuss what distinguishes them.

Here's a framework -

Governing Relationships
Criminal - between an individual and the rest of the community [embodied in the 'State']
Civil - between individuals

Courts
(This is a generalisation - there are exceptions - especially in Magistrates Courts which have some civil jurisdiction)
Criminal - Magistrates Court; Crown Court
Civil - County Court; High Court.
The Court of Appeal has a Criminal and a Civil Division.

Parties
Criminal - Prosecution/Prosecutor (usually a case is brought by the authorities, but most offences could be the subject of a private prosecution) and Defendant
Civil - Claimant and Defendant/Respondent

Who can bring a case?
Criminal - Generally anyone (though in practice it is the Authorities - and some offences may only be brought by certain officials eg. DPP)
Civil - Limited to a person who has suffered the loss

Who can halt a case?
Criminal - generally only the State
Civil - only the parties themselves

Language Used
Criminal - Prosecutes; Guilt
Civil - Claims (sues); Liability

Standard of Proof
Criminal - Beyond reasonable doubt
Civil - Balance of probabilities

Purpose
Criminal - Sanctions - Imprisonment; Fines; other punishments; discharge (conditional or unconditional)
Civil - Remedies - compensation;

If faced with an exam question on the differences - do illustrate the answer with examples. It is important to stress that the same event may lead to criminal AND civil proceedings.

See for Yourself

Reading about Parliament and the Courts in a textbook can sometimes be less than exciting – and a little bit dry. One of the best ways to gain an understanding of how they work is to visit them in person.

Apart from some limited exceptions (mainly where young people are involved), the courts are open to the public. A visit to a Magistrates Court and a Crown Court can help make sense of ‘criminal procedure’. You can see the arguments put forward by the prosecution and defence; the examination and cross-examination. The role of key personnel may be seen. What role does the judge or the clerk play? What interactions are going on between the lawyers; the magistrates or the jury?

The higher courts – the Court of Appeal and the Supreme Court – are worth visiting too. More emphasis is placed on legal argument than challenging the ‘assertions of fact’ by witnesses.

For information about the courts – There is a list of Magistrates Courts here; and a Court finder here. The Royal Courts of Justice in the Strand has the High Court and the Court of Appeal, but there are also ‘branches’ of both in major cities (such as Birmingham).

Parliament is open to the public. Visit the Parliamentary website for details of how to visit – for the tour; or to sit in the Chambers and committees.

W200 Revision Posts

In the almost 5 years that this blog has been running - I have writen a number of articles that may be of use to my W200 law students - particularly when, as now, it is time for exam revision. There are a number of ways that this blog can be used

1 search for a particular word or phrase using the "Search this Blog" app to the right.

2 read the posts below (by clicking the address)

The Legislative Process

The Process http://washminster.blogspot.com/2009/11/legislative-process.html
The nuts & bolts http://washminster.blogspot.com/2010/12/nuts-and-bolts-of-making-law.html
Pre-legislative scrutiny http://washminster.blogspot.com/2008/01/pre-legislative-scrutiny.html
Fast track http://washminster.blogspot.com/2009/11/fast-track-legislation.html
How to prep http://washminster.blogspot.com/2010/12/how-to-prep-yourself-about-current-bill.html
Following the Lords http://washminster.blogspot.com/2011/01/following-lords.html
Making Better Law http://washminster.blogspot.com/2011/01/making-better-law.html

2nd Reading http://washminster.blogspot.com/2010/09/second-reading.html
Committee Stage http://washminster.blogspot.com/2010/09/committee-stage.html
Public Bill Cttes http://washminster.blogspot.com/2008/01/public-bill-committees.html
 http://washminster.blogspot.com/2008/03/public-bills.html
Report Stage http://washminster.blogspot.com/2010/09/report-stage.html

Henry VIII Clauses http://washminster.blogspot.com/2007/06/henry-viii-clauses.html

UK Courts

The English Legal System http://washminster.blogspot.com/2010/10/english-legal-system.html
Law in Action http://washminster.blogspot.com/2011/02/law-in-action.html
Opening of the Supreme Court http://washminster.blogspot.com/2009/10/uk-supreme-court.html
Keeping up with Britain’s top Court http://washminster.blogspot.com/2010/12/keeping-up-with-britains-top-court.html
Local Courts http://washminster.blogspot.com/2011/02/local-courts.html

For the Institutions of the European Union - it is worth reading the EU's webpage on institutions - http://europa.eu/about-eu/institutions-bodies/index_en.htm

Local Courts in the USA

In England and Wales we have a single legal system - which has criminal and civil aspects. In the United States the state legal system (for example that of Virginia, Maryland, Wisconsin or California) exists alongside the Federal legal system.

Virginia State Courts

"There is a general district court in each city and county in Virginia. The general district court handles traffic violations, hears minor criminal cases known as misdemeanors, and conducts preliminary hearings for more serious criminal cases called felonies.


General district courts have exclusive authority to hear civil cases with claims of $4,500 or less and share authority with the circuit courts to hear cases with claims between $4,500 and $15,000. Examples of civil cases are landlord and tenant disputes, contract disputes and personal injury actions."

"The circuit court is the trial court of general jurisdiction in Virginia; this means that the court has authority to try a full range of cases both civil and criminal. Civil cases involve disputes essentially private in nature between two or more parties; criminal cases are controversies between the State and persons accused of a crime. Only in a circuit court is a jury provided for the trial of these disputes and controversies."
A diagram of the Virginia State Court structure is accessible here.

Federal Courts

"The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. Every day hundreds of people across the nation are selected for jury duty and help decide some of these cases.

There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. Three territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have district courts that hear federal cases, including bankruptcy cases."

A diagram of the structure is available here.

So in Alexandria, Virginia you will find

STATE

The Alexandria General District Court at 520 King Street
The Alexandria Circuit Court at 520 King Street
(The Court of Appeals and the Virginia Supreme Court are 100 miles away in Richmond)

FEDERAL

Virginia Eastern District Court at 401 Courthouse Square
Virginia Eastern Bankruptcy Court at 200 South Washington Street

Law in Action

Leaning about a legal system and its practices can be done from a textbook - but visiting a real court makes the words of the book come alive. It is a principle of Common Law systems - such as the English and US systems - that, except in special circumstances (where young people are involved; or the matter is purely domestic, or national security may be endangered), the courts are open to the public.

So if you are learning about Magistrates Courts or County Courts - why not visit the one in your local town? Crown Courts can be found in most large towns - and the High Court sits in various places around England. The Court of Appeal (as well as the High Court) sits in the Royal Courtsof Justice in the Strand, London. The Supreme Court meets in a building on the western side of Parliament Square.

If you are a student, let the court officials know - talking to them, and the lawyers can give a real insight to how the courts work - and will make any textbook, however dry, come alive.

Details of Courts in England and Wales can be found here.

The English Legal System

There are two ways of looking at the English Legal System - by Courts or by personnel.

The highest Court  is now the Supreme Court. It is the final court of appeal in the English Legal systems. Although the European Court of Justice (ECJ) makes rulings which s2(1) of the European Communities Act 1972 requires the British courts to apply - "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly" - there is no appeal to the ECJ. Preliminary rulings can be requested under Art 234 of the Treaty, but this procedure can only be used while an English case is in progress.. Similarly the European Court of Human Rights is not an appeal court. The Human Rights Act 1998 s2(1) says that "A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—.(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights...", and an individual can still bring a case against the British Government in the ECHR in Strasbourg.

The Courts can be classified into civil and criminal courts, although there are some overlapping jurisdictions. In general criminal cases will be heard in the Magistrates Courts and more serious cases in the Crown Court. Civil cases are generally heard in either the County or High Courts. The Court of Appeal is divided into a Criminal Division and a Civil Division. A diagram of the structure of the courts can be found here.

The Court's Service (HMCS) is responsible for managing the magistrates’ courts, the Crown Court, county courts, the High Court and Court of Appeal in England and Wales.

The hierarchy of the Courts is important for the application of the doctrine of precedent. The judgements of the Supreme Court (and its predecessor, the House of Lords) are binding on all courts below it. It can decide to break with its own precedents. The Court of Appeal is bound by the Supreme Court and its own precedents (save for the circumstances set out in Young v Bristol Aeroplane). Divisional courts of the High Court have adopted the rule laid down in Young's case although judges sitting at first instance are not bound to follow the decisions of other High Court judges although they tend to do so for the sake of certainty. Crown Courts can only create a binding precedent when a High Court judge is sitting. The decisions of County and Magistrates courts do not create binding precedent.

The correct way to an address a judge is set out here.

The Legal Profession is made up of Judges, Barristers and Solicitors. The judiciary includes professional judges as well as part time, lay magistrates. An excellent resource on the different types of judges and magistrates can be found here.

Individuals can be represented, or take advice from Solicitors or Barristers. The Law Society is the body which regulates Solicitors. It also oversees the training of solicitors - and designates which degrees are "qualifying law degrees". The Bar Council oversees Barristers.