Inglese giuridico - Appunti

Criminal Law: relates to acts committed against the law which are punished by the state (the state

prosecutes the offender); and Civil Law: concerns relationships between private persons, the rights

and duties of individuals, organizations and associations, concerning also compensation and

injunction. Rights, liabilities and duties are created and defined or regulated by substantive law as

opposed to procedural law which determines how a case is administred by the courts.

The Constitution

The head of the UK state is the Queen, but the government carries the authority of the Crown. The

UK Parliament has two chambers: the House of Commons and the House of Lords, which have

similar functions: legislation, scrutiny and debating current issues.

1) House of Commons is a publicly elected body of members which debates the big political

issues and proposals for new laws. The Commons alone is responsible for making decisions

on financial Bills (such as new taxes);

2) House of Lords is the second and upper chamber, its members are mostly appointed with a

minority elected (in replacing of the hereditary peers). It makes laws and considers financial

Bills without the power to block or amend them, but may only delay them for a month

This two-chambers system acts as a check and balance for both Houses and is clear in the process of

approving new laws, in which the Parliament debates and votes bills (proposals). These bills could

become law only after the agreement of both chambers, but the are exceptions: if Commons pass

the same Bill in two successive years, it can become law without the agreement of the Lords. When

a bill has the agreement of both Houses, and also is given Royal Assent (the formality of monarch's

approvation) it becomes an Act of Parliament.

There is no written constitution, but constitutional law consists of statute law, common law and

consitutional conventions, whilst the parlamentary procedure is mostly based on Standing Orders

(written rules) and Custom and Practice. Jurisdiction

In UK there four countries (England, Wales, Scotland and N.Ireland) and three distinct jurisdictions

(England&Wales, Scotland and Nothern Ireland). All have a common law tradition, but each has its

own hierarchy of courts, legal rules and legal profession. They share a legislature in the

Westminster Parliament for the making of new laws, but Wales and Nothern Ireland each have their

own Assembly and since 1999 Scotland has its Scottish Parliament which has the power to legislate

on any subject not specifically reserved to the UK Parliament. In 1973 UK accessed to the

European Communities adding a further legislative authority in the legal system, in which there is

also the European Convention of Human Rights (ECHR).

The Court System in the UK

Her Majesty's Court Service (HMCS) is an executive agency of the Ministry of Justice which

controls the effective and efficient delivery of justice, in order to ensure a quick and cost-effective

access to the system of justice. Previously named Lord Chancellor's Department (LCD), in 2005

this new agency was launched, headed by the Secretary of State for Justice, linking the

administration of Magistrates' Courts, Crown, County and Suoreme Courts for the first time.

Both criminal and civil courts in the UK hear evidence and aim to determine what exactly happened

in a case. The lower courts decide matters of fact and the upper courts dela with points of law.

Magistrates' Courts deal with many civil simple cases such as family matters, liquor licensing and

betting and gaming, but they are also a key part of the criminal justice system. In the Magistrates'

Courts, to punish law breakers, resolve local disputes and keep order in the community, the are

usually panels of three magistrates (Justices of the Peace) supported by a legally qualified Court

Clerk. These three magistrates, named lay magistrates, are appointed by the Crown from the local

community, are unpaid and have no legal qualification. Whilst unpaid they could have subsistence,

travel and loss of earings allowance. In Magistrates' Courts there are also about 130 District Judges

(before August 2000 known as Stipendiary Judges), who are full time paid, who are required to

have at least seven years of experience as a Barrister or Solicitor and two years as a Deputy District

Judge, and who sit alone dealing with more complex cases. Magistrates cannot normally order

sentences of imprisonment exceeding 6months (or 12 months for consecutive sentences) or fines

exceeding £5000. When they think necessary a more severe sentence the offender may be

committed to the Crown Court (in cases triable either way). In Magistrates' Courts there is no jury.

Tribunals are set up by Acts of Parliament, they decide rights and obbligations of private citizens

towards each other and towards a government derpartment or public authority relating to the areas

they cover, such as Social Security, Employment, Mental Health, Immigration. Through a less

formal procedure a panel of three judges (two lay members and a legally qualified chairperson) tries

to resolve disputes without the need for legal representation. The costs of the hearing are borne by

the public purse, while legal representation, if required by the complexity of the procedure, is at the

cost of each party. These Tribunals are inferior to the courts and can refer to decisions of higher

courts before making their decisions.

County Courts (also referred as Small Claims Courts) deal with civil matters: first instance for

complex civil cases such as contract disputes (f.e. breach of contract), compensation claims (f.e.

personal injury), bankruptcy cases, consumer complaints about faulty goods or services and divorce

or adoption issues; they moreover deal with family matters appeals form the Magistrates' Courts.

Claimants (plaintiffs) may seek a legal remedy without the need to use solicitors in case of claims

for small amounts. In County Courts sit District Judges, Circuit Judges (have been qualified for ten

years) and Recorders (part-time judges with ten years' standing as a barrister or solicitor) usually

without a jury (now rare in civil actions).

Crown Court deals with more serious criminal cases (such as murder, rape or robbery) and deals

moreover with appeals and cases transferred or sent for sentence from Magistrates' Courts. The

Crown Court can also deal with some civil and family matters and it is divided into three tiers,

depending on the type of case. In Crown Court trials sit Circuit Judges, Recorders and a 12 person

jury.

High Court of Justice deals with more complex civil cases, such as the administration of estates

and actions for the recovery of land. This Court is divided into three divisions:

1) Family Division is concerned with personal human matters such as divorce, children,

probate and medical treatment, it also has exclusive jurisdiction in cases related to wardship;

2) The Chancery Division undertakes business and property related disputes, trusts law,

probate law, insolvency and land law. It also deals with company law matters (patents,

intellectual property, company fraud, bankruptcy and competition). All tax appeals are

assigned to this division;

3) The Queen's Bench Division undertakes damages in respect of contract law (breach of

contract and non-payment of a debt), personal injury, negligence, libel and slander, but it

also has special responsibility as a supervisory court.

The High Court has firts instance and appellate jurisdiction, the High Court Judges are appointed by

the Queen following the recommendations of the Prime Minister.

Court of Appeal is the highest court within the Senior Courts (including High Court and Crown

Court) which sits in London at the Royal Courts of Justice (12 courts), consists of two divisions:

1) The Civil Division hears appeals from the High Court, County Courts across England and

Wales and from certain Tribunals;

2) The Criminal Division hears appeals from the Crown Court.

The Court of Appeal can reverse or uphold a decision of the lower courts with binding decisions.

When points of law of general public importance are involved some civil cases may leapfrog from

High Court to the House of Lords, bypassing the Court of Appeal. Appellants must apply for leave

to appeal. The Lord Justices of Appeal are required to have at least ten years as a lawyer in the High

Court and, in practice, to be a High Curt Judge (appointed by the Queen following the

recommendations of the Prime Minister).

The Supreme Court is the final court of appeal for all UK civil and criminal cases from England,

Wales and Nothern Ireland. It hears appeals of general public importance or cases of the greatest

public and constitutional importance. The new Spreme Court is a UK body, legally separate from

the England and Wales courts as it is also the Supreme Court of both Scotland and Nothern Ireland.

Before the creation of the new Supreme Court, the 12 most senior judges sat in the House of Lords,

which was the supreme court of appeal. The Law Lords were involved in the Parliamentary process,

but now these judges (qualified as lawyers for at least 15years and usually drawn from judges in the

Courts of Appeal and Court of Session) are entirely separate from it. The Supreme Court's decisions

are binding on all courts below, but not on itself.

The legal professions in England and Wales

The basic difference between barristers and solicitors is that a barrister mainly defends people in

court and a solicitor mainly works outside court with some exceptions.

1) Solicitor is the first point of contact with the law for a client in UK. He/she listen to the

client, understanding his/her needs, and then explains the legal position and tenders advice

according to his/her specialist knowledge of different law areas such as family, crime,

finance, property and employment. There are only a few solicitors who are allowed to

present cases in the higher courts. Many more solicitors work in their litigation departments,

spending much of their time preparing briefs for counsel, tendering advise to their clients,

undertaking negotiations and drafting legal documents. It is primarly a desk job, but it does

involve travelling to visit clients and representing them in court (normally Magistrates'

Courts and County Courts). Solicitors are normally salaried, they can work for a big range

of organizations such as commercial or non-commercial law firms, the government, private

businesses, banks and corporations and they may be offered a share in the profits of the

practice if they are successful. In UK there are at nearly 118.000 solicitors.

2) Barristers are self-employed in the independent Bar, which is an advocacy profession,

independent body with about 15.387 practicing barristers, or employed in-house as lawyers

or advisors by banks, corporations and solicitors firms. They are specialists with particular

skills in advocacy, consultants who will examine the case and decide what strategy to take in

court (higher courts than solicitors) in which they wear a wig and gown pleading the case on

behalf of their clients in front of a judge. Ba