1.1 Look through these questions before reading text 1.
Which parts of Great Britain share a single system of courts?
What is meant by “precedent”?
What are the two branches into which the legal profession is divided? What has made the long established system of dividing these two types of lawyer more relaxed?
What are the two main types of courts in Great Britain?
Who are Justices of the Peace? Are there any unpaid “amateur” legal officers similar to Justices of the Peace in your country?
What cases do the magistrates’ courts try?
What are the functions of the judge?
What is the role of the jury? Why do you think the defence has the right to the last speech at the trial before the judge sums up the evidence for the jury?
What is the highest court in Great Britain?
LAW AND THE COURTS
Although the United Kingdom is a unitary state, England and Wales, Scotland and Northern Ireland, all have their own legal systems, with considerable differences in law, organisation and practice. However a large volume of modern legislation applies throughout the United Kingdom.
The System of Justice. The system of justice in England and Wales, in both civil and criminal cases, is (as it is in North America) an adversarial system. In formal terms it is not the business of any court to find out “the truth”. Its job is simply to decide “yes” or “no” to a particular proposition (in criminal cases, that a certain person is guilty of a certain crime) after it has heard arguments and evidence from both sides (in criminal cases these sides are known as the defence and the prosecution).
There is a common distinction between criminal law and civil law, but there is no criminal code or civil code. The law as a whole consists partly of statutes, or Acts of Parliament, and partly of common law which is made up of past decisions of judges (if the matter is not regulated by statutes) in accordance with custom and reason. Thus, a large part of the civil law is not contained in statutes at all but made up of a mass of precedents, previous court decisions, interpreted in authoritative legal text books.
The personnel of the law. The courts of the UK are the Queen’s Courts, since the Crown is the historic source of all judicial power.
Judges are normally appointed from practising barristers. Lay magistrates in England and Wales need no legal qualification but are trained to give them sufficient knowledge of the law. The legal profession is divided into two branches: barristers and solicitors. Barristers are known collectively as “the Bar”, and collectively and individually as “counsel”. Solicitors undertake legal business for individual and corporate clients, while barristers advise on legal problems submitted though solicitors and present cases in the higher courts.
But in the years around the turn of the century, the rules dividing the roles of these two types of lawyer were relaxed. It became permissible both for members of the public to approach barristers directly without going through a solicitor first, and also for solicitors to present cases in some higher courts, without hiring the services of a barrister. As a result, the two kinds of lawyer came into competition with each other for the first time. Now, in the popular image barristers are in some sense “senior” to solicitors, more highly educated and so, perhaps, “better”. Unlike solicitors they are mostly self-employed and have a prestige similar to that of doctors. They belong to one of the four Inns of Court, ancient institutions resembling Oxbridge colleges. And it is mostly barristers from whose ranks judges are appointed.
Courts in England and Wales. There are two main kinds of courts, and, respectively, two kinds of judicial officers. Very serious offences such as murder, manslaughter, rape and robbery are tried only by the Crown Court presided over by a judge sitting with a jury. The least serious offences and the vast majority of criminal cases – are tried by unpaid lay magistrates sitting without a jury. Magistrates’ courts are one example of the importance of amateurism in British public life. Magistrates, who are also known as Justices of the Peace (JPs), are not trained lawyers. They are just ordinary people of good reputation who have been appointed to the job by a local committee. They do not get a salary or a fee for their work (though they get paid expenses). Inevitably, they tend to come from the wealthier sections of society and, in times past, their prejudices were very obvious. They were especially harsh, for instance, on people found guilty of poaching (hunting animals on private land), even though these people sometimes had to poach in order to put food on their families’ tables. These days efforts are made to recruit JPs from as broad a section of society as possible.
Even serious criminal cases are first heard in a magistrates’ court. However, in these cases, the JPs only need to decide the there is a prima facie case against the accused (in other words, that it is possible that he or she is guilty). If they do, they then refer the case to a Crown Court, where a professional lawyer acts as a judge. Unlike most other countries in the world, the decision regarding guilt or innocence is not taken by the judge but by a jury. Juries consist of 12 (in Scotland sometimes 15) people selected at random from the list of voters. In order to reach a verdict, there must be agreement among at least ten of them. If this does not happen, the judge has to declare a mistrial and the case must start all over again with a different jury. The duty of the judge during a trial is to act as the referee while the prosecution and defence put their cases across. It is also the judge’s job to impose a punishment (known as “pronouncing sentence”) on those found guilty. A convicted person may appeal to the Court of Criminal Appeal in London either to have the conviction quashed (i.e. the jury’s previous verdict is overruled and they are pronounced “not guilty”) or to have the sentence reduced.
The final appeal. The highest court of all in Britain used to be the House of Lords. But this long-established system was considered an anachronism an also a contradiction of the principle of the separation of powers (which states that the people who make the laws and those who decide whether they have been broken should not be the same people). Since 2009, the highest court in the UK has been the Supreme Court, presided over by twelve independently appointed judges, known as Justices of the Supreme Court. The 12 former Law Lords in the House of Lords are the first justices of the Supreme Court and are disqualified from sitting or voting in the House of Lords. When they retire from the Supreme Court they can return to the House of Lords as full members but newly-appointed Justices of the Supreme Court will not have seats in the House of Lords. The Supreme Court hears matters on important points of law, mostly civil cases. It also hears some criminal cases of great public importance (except those in Scotland, where the High Court of Justiciary is the highest criminal court).
Recent reforms, including the creation of the Ministry of Justice and the election of a Lord Speaker for the House of Lords, have significantly altered the role of Lord Chancellor who is no longer the head of the judiciary and there is no requirement for the Lord Chancellor to be a member of the House of Lords. But the role has not disappeared – it has merely been amalgamated with that of Secretary of State for Justice. Jack Straw MP is currently Justice Secretary and Lord Chancellor, leading on policy for courts, prisons, probation and constitutional affairs. He also performs ceremonial duties as Lord Chancellor at State Opening of Parliament.
FOR YOUR INFORMATION… Trial by Jury In Britain, it is a centuries old practice that anybody accused of a serious crime has the right to be tried by “12 good men and true”, as the saying goes (though of course nowadays women are allowed to be good and true as well!). But modern British governments and some legal experts have sometimes expressed doubts about the jury system.
One reason for these may be that juries so often find the defendant “not guilty” after remaining stable at around 32% for decades, acquittal rates in the 1990s shot up to 43% (perhaps because juries are less reverential towards police officers, lawyers and judges than they used to be).
But there are more serious reasons for doubts. Modern cases often involve a mass of technical information that an ordinary person cannot be expected to understand. Making this problem worse, it is argued, is the fact that juries are often unrepresentative. It is the duty of every citizen to be available for jury service, but few people want to do it. It means spending weeks, sometimes longer, stuck in a court room listening to frequently boring evidence, instead of getting on with your normal life. And though you get paid expenses, you do not actually earn a fee. So people often try to escape jury service by providing special reasons why they cannot do it. Naturally, it is the more intelligent people who are more successful in these attempts. In 2001, a graffito was found in the toilets of the Central Criminal Court in London (the Old Bailey) which read “I’m being tried by 12 people too stupid to get out of jury service”.
Nevertheless, the jury system remains as a central principle of the law in Britain and, like the absence of identity cards, is widely regarded as a symbol of British freedoms.
The sentence of this court is…
If it is someone’s first offence, and the crime is a small one, even a guilty person is often unconditionally discharged and can go free without punishment.
The next step up the ladder is a conditional discharge and/or a suspended sentence. In both cases, this means that the guilty person is set free. But if he or she commits another crime within a stated time, the first crime will be taken into account (and any suspended sentence will be imposed). He or she may also be put on probation, which means that regular meetings with a social worker must take place.
A very common form punishment for minor offences is a fine, which means that the guilty person has to pay a sum of money.
Another possibility is that the convicted person is sentenced to a certain number of hours of community service.
Wherever possible, magistrates and judges try not to imprison people. This costs the state money, the country’s prisons are already overcrowded and prisons have a reputation for being “schools for crime”.
As in the rest of Europe, there is no death penalty in Britain. It was abolished in 1969. For murderers there is an obligatory life sentence.
1.2 Give the English equivalents to the following Russian word combinations:
система соперничества между защитой и обвинением
уголовный / гражданский кодекс
на рубеже веков
обращаться к адвокату напрямую
набирать мировых судей из самых разных слоев населения
подвергать свидетеля подробному или перекрестному допросу
Section 3. 3.1 Read the text, do the task (3.2) given below the text. THE LEGAL PROFESSION
There are two distinct kinds of lawyers in Britain. One of these is a solicitor. Everybody who needs a lawyer has to go to one of these. They handle most legal matters for their clients, including the drawing up of documents (such as wills, divorce papers and contracts), communicating with other parties, and presenting their clients’ cases in magistrates’ courts. However, only since 1994 have solicitors been allowed to present cases in higher courts. If the trial is to be heard in one of these, the solicitor normally hires the services of the other kind of lawyer – a barrister. The main function of barristers is to present cases in court. They also offer expert legal opinions when asked.
The training of the two kinds of lawyer is very different. All solicitors have to pass the Law Society exam. They study for this exam while ‘articled’ to established firms of solicitors where they do much of the everyday junior work until they are qualified. After their exams, new solicitors have to secure a two-year training contract with a firm of solicitors to complete their qualification.
Barristers have to attend one of the four Inns of Court in London. These ancient institutions are modeled somewhat on Oxbridge colleges. For example, although there are some lectures, the only attendance requirement is to eat dinner there on a certain number of evenings each term. After four years, the trainee barristers then sit exams. If they pass, they are ‘called to the bar’ and are recognized as barristers. However, they are still not allowed to present a case in a crown court. They can only do this after several more years of association with a senior barrister, after which the most able of them apply to ‘take silk’. Those whose applications are accepted can put the letter QC (Queen’s Counsel) after their names.
Neither kind of lawyer needs a university qualification. The vast majority of barristers and most solicitors do in fact go to university, but they do not necessarily study law there. This arrangement is typically British.
The different styles of training reflect the different worlds that the two kinds of lawyer live in, and also the different skills that they develop. Solicitors have to deal with the realities of the everyday world and its problems. Most of their work is done away from the courts. They often become experts in the details of particular areas of the law. Barristers, on the other hand, live a more rarefied existence. For one thing, they tend to come from the upper strata of society. Furthermore, their protection from everyday realities is increased by certain legal rules. For, example, they are not supposed to talk to any of their clients, or to their client’s witnesses, except in the presence of the solicitor who has hired them. They are experts on general principles of the law rather than on details, and they acquire the special skill of eloquence in public speaking. When they present a case in court, they, like judges, put on the archaic gown and wig which, it is supposed, emphasize the impersonal majesty of the law.
It is exclusively from the ranks of barristers that judges are appointed. Once they have been appointed, it is almost impossible for them to be dismissed. The only way that this can be done is by a resolution of both Houses of Parliament, and this is something that has never happened. Moreover, their retiring age is later than in most other occupations. They also get very high salaries. These things are considered necessary in order to ensure their independence from interference, by the state or any other party.
Although judges are well paid their current earnings are less than those which successful barristers can make. An established barrister may accept appointment as a full-time judge, even at some sacrifice of current income, for any of a combination of reasons: higher status, easier life, the prospect of a pension when he retires.
However, the result of their background and their absolute security in their jobs is that, although they are often people of great learning and intelligence, some judges appear to have difficulty understanding the problems and circumstances of ordinary people, and to be out of step with general public opinion. The judgements and opinions that they give in court sometimes make the headlines because they are so spectacularly out of date. (The inability of some of them to comprehend the meaning of racial equality is one example. A senior Old Bailey judge in the 1980s once referred to black people as ‘nig-nogs’4 and to some Asians involved in a case as ‘murderous Sikhs’.)
The difference in training that the two kinds of lawyer (barristers and solicitors) get. What do these different styles of training reflect?
What are the advantages and disadvantages of a judge's office?