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Criminal Law in England and Wales

Find Robert Brown, partner at law firm Corker Binning to learn more about the British legal system, the different types of court and continental law.

Why do we not say ‘law in the United Kingdom’? It is in fact the Law of England and Wales only, although the law in Scotland and in Northern Ireland is substantially similar.

All civilised societies require law. There is a fundamental difference between two main legal systems found across the world: civil law and common law.

Civil law

In civil law countries, such as France, Germany and China, codified statutes predominate. These statutes can generally be traced back to the code of laws commissioned by the Roman Emperor Justinian in the 6th century, but today consist of a comprehensive continuously updated set of legal codes which form a framework of law within which the judge works; bringing the charge, investigating the matter and deciding the case – an inquisitorial system to discover the ‘truth’. A person is brought to trial when the investigating judge believes that the person is guilty. In this system, judges have a limited role in making the law, which is the role of legislators and is set down in statutes or codes.

Common law

Countries such as England and Wales, the United States and India practice common law in which published judicial opinions are of primary importance. The system is an adversarial one in which two adversaries compete to convince the jury that the version of events that they present to the court is the most convincing. The opposing parties can choose what issues are presented or cited as evidence, and what witnesses are called. The judge presides over the trial: his role is only to advise on the law but will clarify issues and summarise the facts for the jury, essentially acting as an impartial referee.

Historically, English monarchy would issue a formal written order, or ‘writ’ to apply justice. Writs could not cover all circumstances, and so appropriate remedies in particular situations were decided based on equitable principles and these were published as ‘case law’ and form precedents which are applied to current cases. Judges are able to draw on precedents from a wide variety of sources in common law, and therefore have a significant role in shaping the law in these jurisdictions.

Influence of historical conquests

Given that all civilised societies require legal systems and through the ages the world has seen periods of historical conquest, it is inevitable that the legal system of any particular territory will be influenced by its history and the legal culture of its precursor state.

Most of Europe, which incidentally was never conquered or occupied by the British people, has predominantly ‘civil law’ systems. In Russia, it is often referred to as the ‘Napoleonic Code’ – a remnant of the legal system imposed upon Russia by the short-lived French occupation of Moscow prior to 1812.

In England, prior to the Norman invasion of 1066, there was no single uniform legal system. Law was based on religion (the primacy of the Roman Catholic Church) and on laws of different regional and ethnic groups: thus the Viking, Dane, Saxon and Celtic systems. All of these were influenced by the predominant language of the time, specifically Latin. Until only very recently in England, Latin was still a very strong feature of ‘English’ law; for example, the use of the term ‘mens rea’, meaning criminal intent.

A big change happened at the time of the Norman Conquest in the 11th century where French domination of most of England and Wales had a dramatic influence on both language and law. The language of law became known specifically as ‘law french’ which reflected the reality of spoken French language at the time, particularly amongst the upper classes, although it fell out of use in the 14th century. Modern legal English is still littered with French language terms, such as ‘attorney’, ‘culprit’, ‘defendant’, ‘jury’ and ‘voir dire’.

In 1215, King John was having problems with a group of rebellious Barons. The Magna Carta was a peace treaty signed at Runnymede; the unpopular King needed money and the Barons owed him taxes. A compromise was drawn up between them which focused on the rights of free men in exchange for loyalty to the King. In particular, it protected the Barons from illegal imprisonment and gave them access to swift justice. Although the Charter concerned only the relationship between the monarchy and the barons, it has been subsequently embraced by Lord Denning in 1956 as ‘the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot’ (the ruler or the person with power). Magna Carta was the origin of the ‘Rule of Law’ in England with its associated fundamental principles: the right to own property; specific rights for women; prohibition of arbitrary detention; and the right to trial by one’s peers – the jury trial.

Subsequently, especially as a result of the growth of the British Empire in the 17th century, the common law system spread to new (colonial) territories under British control: America, including Canada, the Caribbean, many parts of the Middle-East, much of Africa, India and other parts of Asia, to the Far-East and Australasia. The Colonial power imposed ‘English’ law on Queen Victoria’s subjects in all of her dominions in the 19th century.

Interestingly, when life in England became oppressive during the 18th century, religious minorities fled Great Britain to find tolerance and freedom elsewhere: with them on their journey to the Americas, the Pilgrim Fathers took one of the originals of ‘Magna Carta’. It accompanied them on their journey to ‘New England. In its turn, Magna Carta had a substantial influence on the American Bill of Rights and the Constitution of the United States, rejuvenating the civil rights of citizens oppressed by Colonial rule, in particular women’s rights to property.

Criminal law

So, what is ‘criminal’ law? It is not law which is concerned with civil or commercial disputes. It is a body of principles and mechanisms designed to bring criminal suspects to justice by fair trials; to acquit the innocent and convict and punish the guilty. More recently, it would be accepted that the role of criminal law also includes some form of obligation to rehabilitate offenders. For the purpose of this discussion, the criminal law includes the law relating to police investigations, criminal trials and sentencing (meaning punishment). In English criminal law, judgements are made according to the principle ‘beyond reasonable doubt’ in contrast to the principle used in the English civil courts, ‘on the balance of probability’.

Importantly, criminal law is specifically morally based. Virtually all crimes carry an element of immoral responsibility – ‘mens rea’. A person can be convicted and punished only if there is a coincidence of two elements: the ‘mens rea’ and the ‘actus reus’, which is the physical act coinciding with the criminal intent. Thus, crime is associated with concepts such as ‘dishonesty’, ‘malice’, etc.

The Crown Prosecution Service (CPS) is the main public prosecuting authority in England and Wales and will bring to court cases presented to it by the police. It is headed up by the Director of Public Prosecutions (DPP). The Police and Criminal Evidence Act (PACE) 1984 is the Act of Parliament which, along with its associated codes of practice, provides a legislative framework in England and Wales for the powers of police officers to act to combat crime.

The organisation of the criminal courts

All criminal cases start in the Magistrates Court which are presided over by professional or lay judges (magistrates, or Justices of the Peace), where they can also hear minor criminal cases. There is no jury.

The Crown Court is the only court in England and Wales that has the jurisdiction to try cases on indictment and therefore has judge and jury. It is the jury alone that decides on guilt or innocence. The judge directs on the law and he or she is responsible for sentencing. It hears more serious criminal cases, including ‘capital’ offences. The latter description is reserved for those offences that historically led to ‘capital punishment’ or the death penalty – murder and treason. The death penalty was abolished for murder in 1965 in Great Britain, 1973 in Northern Ireland and in 1998 for treason. The most famous Crown Court is the Central Criminal Court in London, more commonly known as the ‘Old Bailey’ after its street address.

The Criminal Division of the Court of Appeal hears appeals from the Crown Court connected with a trial on indictment and its decisions are binding, unless overturned by the Supreme Court. Because there has been a jury trial there is no automatic right of appeal and an appeal can only be made if the court gives permission. Appeals are only allowed if the decision of the lower court was incorrect, in which case new evidence must be presented, or if there was a serious procedural error.

The Supreme Court is the highest appeal court with cases being heard by five of 12 appointed judges. It will only rarely hear criminal cases.

Article 6 of the European Convention on Human Rights (ECHR) protects the right to a prompt public hearing before an independent and impartial tribunal and provides another route in Europe to appeal when the highest court of the land has refused the appeal.

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