United Kingdom - Courts
Today different types of case are dealt with in specific courts: for example, all criminal cases will start in the magistrates’ court, but the more serious criminal matters are committed (or sent) to the Crown Court. Appeals from the Crown Court will go to the High Court, and potentially to the Court of Appeal or even the Supreme Court.
Civil cases will sometimes be dealt with by magistrates, but may well go to a county court. Again, appeals will go to the High Court and then to the Court of Appeal – although to different divisions of those courts. The tribunals system has its own structure for dealing with cases and appeals, but decisions from different chambers of the Upper Tribunal, and the Employment Appeals Tribunal, may also go to the Court of Appeal. The courts structure covers England and Wales; the tribunals system covers England, Wales, and in some cases Northern Ireland and Scotland.
Justice must not only be done – it must be seen to be done. It was for this reason that the House of Lords in the Pinochet case in 1999 held that a decision it had given had to be set aside and the appeal before it heard again by a panel of different Law Lords. It had come to light after the original decision that one of the Law Lords might have given an appearance that he was not independent and impartial because of a connection with a campaigning organisation which was involved in the case.
With the Constitutional Reform Act 2005, for the first time in almost 900 years, judicial independence was officially enshrined in law. An independent Supreme Court was established, separate from the House of Lords and with its own independent appointments system, staff, budget and building.
Before the Supreme Court was created, the 12 most senior judges – the Lords of Appeal in Ordinary, or Law Lords as they were often called – sat in the House of Lords. The House of Lords was the highest court in the land – the supreme court of appeal. It acted as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bound all courts below. As members of the House of Lords, the judges not only heard cases, but were also able to become involved in debating and the subsequent enactment of Government legislation (although, in practice, they rarely did so).
As part of the constitutional changes of April 2006, the Lord Chief Justice became responsible for some 400 statutory functions, which were previously the responsibility of the Lord Chancellor. For example, the Lord Chief Justice now decides where judges sit, and the type of cases they hear.
The Tribunals Service was created on 3 April 2006, and brought together the administration of a large number of individual tribunals, resulting in a more common and consistent approach for users. On November 3, 2008, the Tribunals, Courts and Enforcement Act came into force. This created a new two-tier Tribunal system: a First–tier Tribunal and an Upper Tribunal, both of which are split into Chambers. Each Chamber comprises similar jurisdictions or bring together similar types of experts to hear appeals.
The High Court judges currently appointed in England and Wales deal with the more complex and difficult cases. High Court judges usually sit in London, but they also travel to major court centres around the country as well as sitting in London. They try serious criminal cases, important civil cases and assist the Lord Justices to hear criminal appeals.
The Queen’s Bench Division deals with contract and tort (civil wrongs), judicial reviews and libel, and includes specialist courts: the Commercial Court, the Admiralty Court and the Administration Court. It consists of about 73 judges, headed by the President of the Queen’s Bench Division.
The Family Division, which deals with family law and probate cases, consists of about 19 judges headed by the President of the Family Division. The Chancery Division deals with company law, partnership claims, conveyancing, land law, probate, patent and taxation cases, and consists of 18 High Court judges, headed by the Chancellor of the High Court. The division includes three specialist courts: the Companies Court, the Patents Court and the Bankruptcy Court. Chancery Division judges normally sit in London, but also hear cases in Cardiff, Bristol, Birmingham, Manchester, Liverpool, Leeds and Newcastle.
The Court of Appeal is based at the Royal Courts of Justice in London, but has occasional sittings elsewhere in England and Wales. It consists of a Civil Division and a Criminal Division, which between them hear appeals in a wide range of cases covering civil, family and criminal justice. In some cases a further appeal lies, with leave, to the Supreme Court, but in practice the Court of Appeal is the final court of appeal for the great majority of cases.
In cases raising important points of law, the decisions of the Court of Appeal may be appealed to the Supreme Court.
The United Kingdom's courts system is complicated and – in places – confusing, because it has developed over 1,000 years rather than being designed from scratch. The trial by ordeal, used until almost the end of the 12th century to determine guilt or innocence in criminal cases. Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.
If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence. The number of ‘not guilty’ verdicts recorded by this system is not known. Another, extremely popular ‘ordeal’ involved water; the accused would be tied up and thrown into a lake or other body of water. If innocent, he or she would sink.
There were two problems with this method, which was often used to try suspected witches: the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink; and opinion is divided as to whether those who did sink were fished out afterwards. William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.
Criminal and civil disputes could also be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could employ their own champions, so the system wasn’t perhaps as fair as it might be. Trial by combat gradually fell into disuse for civil cases, although it wasn’t until someone involved in a dispute in 1818 tried to insist on it that it was realised this was still, technically, an option. Trial by combat was quickly banned, forcing litigants to rely on more conventional routes.
The seeds of the modern justice system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. When Henry came to the throne, there were just 18 judges in the country – compared to more than 40,000 today. In 1178, Henry II first chose five members of his personal household – two clergy and three lay – “to hear all the complaints of the realm and to do right”. This, supervised by the King and “wise men” of the realm, was the origin of the Court of Common Pleas. Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Council.
By the time of Henry VIII, the Court of Chancery had become a rival to the common law courts. But as the years went by, the Court of Chancery began to be known for the same problems it had been set up to combat: expense and delay. Also, the Lord Chancellor was free to give whatever ruling he liked in a Chancery court, unbound by the law – which made it almost impossible for lawyers to advise their clients correctly.
It was not until 1830 that there was any change to the nearly 300-year-old assize courts. By the Law Terms Act of that year, the Court of Great Sessions was abolished and the Welsh counties and Chester were brought into the general circuit system. Shortly afterwards, the new Central Criminal Court was set up, unifying the administration of justice in London and surrounding areas. In 1856, judges of the Central Criminal Court were also given the right to hear cases outside the court’s ordinary jurisdiction, to ensure a fair trial where local prejudice existed or when it could offer an early trial and so avoid the delay involved in waiting for the next assizes.
In 1873, Parliament passed the Judicature Act which merged common law and equity. Although one of the Divisions of the High Court is still called Chancery, all courts could now administer both equity and common law – with equity to reign supreme in any dispute. The same Act established the High Court and the Court of Appeal and provided a right of appeal in civil cases to the Court of Appeal. Criminal appeal rights remained limited until the establishment of a Court of Criminal Appeal under the Criminal Appeal Act 1907. The Court of Criminal Appeal sat for nearly 60 years, until its existence as a separate body was ended by the Criminal Appeal Act 1966. Its jurisdiction passed to the Court of Appeal.
The Royal Commission on Assizes and Quarter Sessions, 1966-1969, led to the abolition of courts of assize and quarter sessions and the establishment of a new Crown Court to deal with business from both, under the terms of the Courts Act 1971.
until 2006, the Lord Chancellor was part of the executive, the legislature and the judiciary. The Lord Chancellor’s role changed drastically on April 3 2006 as a result of the Constitutional Reform Act 2005. This latest major change to affect the judiciary has been described as the most significant since Magna Carta. The Act establishes the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role previously performed by the Lord Chancellor. For the first time an express statutory duty is placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognised as a fully independent branch of the government.
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