Lingua giuridica inglese

Statutory law

Statutory law is the major source of law and comes from a variety of sources. The draft of statutory law is called a bill.

House of Commons

In the House of Commons, there are the Members of Parliament; they are voted by people and represent the citizens. A bill is presented to the House of Commons before going to the House of Lords.

House of Lords

Members of the House of Lords comment and sometimes revise legislation that comes from the House of Commons. Members are chosen by the Prime Minister and inherit their jobs. After the bill passes to the Queen...

Queen

The Queen must sign every legislation act. This stage is called Royal Assent. It is a formality because the last time that a monarch refused to sign an act was in 1707.

The English legal system

The English legal system is actually English law in England and Wales. It comes from a variety of sources and from a thousand years of national history.

Unwritten law

The main feature is the absence of a written code.

Common law

Common law is made up through customs and judicial decisions. When many judges have decided similar cases in the same way, their decision becomes law for future judges. In a decision, there are three parts; future judges must follow only the part called ratio decidendi.

Judicial precedent

It's a law source because it influences or binds courts in later similar cases.

Equity

Equity is a system created to mitigate the strictness of common law; its purpose was to have more fairness. Many legal rules have equity-based law.

Statutory interpretation

It's necessary that judges interpret law to bring out its full meaning. Judges use a variety of approaches when there is an issue of statutory interpretation. There are some rules of interpretation, but judges aren't bound to follow them. These are:

1. Literal Rule - Provides that words must be given their plain, ordinary, and literal meaning.
2. Golden Rule - Provides that words must be given their plain, ordinary, and literal meaning as far as possible but only to the extent that they do not produce absurdity or affront public policy.
3. Mischief Rule - Involves an examination of the former law in an attempt to deduce parliament's intention.

Judicial precedent

Most cases are similar to cases that have been heard before. If the facts are similar enough, defenders, prosecutors, and judges can use arguments and decisions from earlier cases. There are three key conventions:

1. Stare Decisis - Means "let previous decisions stand." Higher courts take priority over lower courts and then a decision of higher courts binds lower courts. Stare Decisis allows previous decisions to influence later similar cases.
2. Obiter Dicta - When a judge makes a judgment, he may give many supporting arguments and explanations as to why he comes to a particular decision. This is known as Obiter Dicta. It includes the judge's thought processes, judge's explanation as to why one decision was chosen, and how the judge is going to apply the decision.
3. Ratio Decidendi - It is the core of the decision. This is the part that binds the courts. It is the piece that the other judges need to follow when looking at the case they are trying.

Significato di Bind

Lo legare le corti, cioè le corti sono costrette a seguire quella decisione.

Binding Precedent

Lo only Ratio Decidendi effectively binds the judges in later cases.

The civil courts

County Courts

County courts were created in 1846 to provide a system of accessible local courts. Currently, there are around 220 county courts. They hear a large range of cases. Examples:

• Uncontested divorce cases
• Disputes between landlords and their tenants
• Personal injury cases
• Cases involving Race Relations Act 1976

Civil Procedure Rules 1999

The process used in all civil courts is laid out by Civil Procedure Rules 1999. It tried to update court procedures and simplify the language in courts. This is also known as Woolf Reform by the name of Lord Woolf. Aims of this reform are:

• Ensure both sides are treated fairly
• Deal with cases according to importance
• Persuade both sides to reveal all relevant facts they hold on the case
• Encourage an agreement before or during a court hearing if possible

In this reform, cases are divided into three categories called Tracks. The hope of this division is to hear every case in a court more quickly:

1. Small Claims Track

In this category, there are cases involving sums of money under £5000. These cases are heard in County Courts.

2. Fast Track System

Cases involving sums of money between £5000 and £15,000. Fast track cases are usually heard within a day but if they are particularly complex they may go up to the next level.

3. Multi Track System

Cases involving sums of money over £15,000. This system allows more time for a solution.

Part of a Civil Case

Word Claimant - Who starts a civil case (in italiano: attore). Called Party - The other part (in italiano: convenuto).

High Court

There are 24 regional High Courts in England; they decide about more complex cases. The High Court is divided into three divisions that are specialized in three different types of cases.

1) Chancery Division

It decides about these cases:

• Business disputes
• Bankruptcy proceedings
• Copyright disputes

It is headed by Lord Chancellor. It has 18 High Court judges hearing cases.

2) Queen's Bench Division

It decides about these cases:

• Contract disputes
• Debt
• Personal injuries and tort

It has 70 High Court Judges and is headed by Lord Chief Justice.

3) Family Division

Hears complex divorces and child custody cases. Normally in High Court there is one judge that decides over a case but in the Queen's Bench Division may have a civil jury in defamation cases.

Appeal to Magistrate Courts

Two possibilities depending if it's volunteer or lay persons to decide.

• Lay person - These are people without legal qualification. The court is usually made up of three persons known as Justice of the Peace (JP's). They received their power from the Justices' Clerk, a specially appointed official who is legally qualified. They may receive expenses and where appropriate they can claim a loss of earnings allowance. Apart from this, they are unpaid.
• District Judge - District Judge Magistrates' Court are run by district judges, who are qualified lawyers.

Magistrates' Court Procedures

All criminal trials start in Magistrates' Court. There are two different procedures which they control:

1. Committal Proceeding - Its function is to ensure that the magistrates are satisfied that there is a case for the defendant to answer. Before it was possible to publish the committal proceedings in the press, now it is possible only if the defendant allows this.
2. Summary Trials - Most cases (62% of total) are determined by a plea of guilty rather than following a trial.

In cases where guilt is established, the magistrates have to impose a penalty. In many cases where the penalty is a fine, magistrates have to follow this up with enforcement proceedings.

Magistrates' Court Jurisdiction

Magistrates' Court → all criminal proceedings begin in the Magistrates' Court and 90% end there. Types of cases are:

• Trial of summary offences
• Bail applications
• Issue of summonses and warrants for arrest

It also has an extensive civic jurisdiction for local problems, for example:

• Highways
• Public health and licensing
• Recovery of civil tax

Family Proceedings Court

Covers proceedings regarding children.

Youth Court

Covers proceedings regarding children.

Crown Courts

In that are covered the most serious criminal cases. It is divided into three sections located in 92 court center locations. These centers are grouped in six sections. Offences dealt with in the Crown Court are divided into three categories under the direction of Lord Chief Justice. The aim is that the most serious offences are dealt with by the most senior judge. It also decides about cases referred from Magistrates' Court when this decides that their own powers of sentencing are inadequate. Also, Crown Court hears appeals from decisions of the Magistrates' Court.

The legal profession

Legal Executives

Many of the staff employed in a solicitor's office aren't formally qualified as solicitors, however, they provide a great deal of legal service to the public. Their representative body is the Institute of Legal Executives (ILEX). It organizes its own training programs and examinations which must be passed before a legal executive can call himself/herself Fellow of the Institute. Their roles are:

• Important role in many legal practices
• Taking additional courses and exams they can become solicitors

Also, there are other people who provide particular kinds of legal and law-related services:

• Licensed conveyancers
• Patent agents
• Insolvency practitioners
• Tax advisers

They support solicitors and barristers' work. Their representative body is the Paralegal Association.

Solicitors

Currently, there are around 104,500 practising solicitors in England and Wales. Features:

• Their legal work is out of the court
• Give advice to clients on contentious and non-contentious matters
• They draw up contracts and wills
• Cannot appear in every court and have limited rights of audience
• Normally work in partnership or in large organizations called law firms
• They are regulated by the Law Society

Training to become a Solicitor

There are two routes to become a solicitor:

1. First route: Study law at university (which takes 3-4 years) and after 1 year of Legal Practice Course (LPC).
2. Second route: Study a subject other than law and after take 1-year course, the Common Professional Examination (CPE).

After that, the students must take a 2-year apprenticeship with a solicitor and after he's admitted to the Roll. The Roll is a list of people that is qualified as solicitors and is kept by "Master of Roll" Head of the Court of Appeal.

Barristers

Currently, in England and Wales, there are around 9,000 barristers. Differently from solicitors, they cannot work in partnership. Their functions are:

• Represent people before a court as their advocate
• Give counsel and opinions
• Draft documents

Usually, barristers don't talk with their clients directly but with their solicitor; solicitors have a more direct contact with the client. A change of rules in 2007 allows that in some circumstances a member of the public may contact a barrister directly. In court, they usually wear a cotton gown and a wig.

Training to become a Barrister

There are two routes to become a barrister:

1. First route – Students study law at university and after they have to take 1-year course the Bar Vocational Course (BVC), this involves training in the skills required to present a case in court.
2. Second route – Students study another subject than law and after have to take 1 year of Common Professional Examination (CPE) before taking the BVC.

After that, the student has to work for a senior barrister to gain experience. Barristers are governed by the General Council of the Bar or Bar Council and the Inns of Court. All barristers must be members of one of the Inns of Court. They are four:

• Lincoln's Inn
• Inner Temple
• Middle Temple
• Gray's Inn

After 10 years, a barrister can become Queen's Counsel, which is an honorary title awarded by Lord Chancellor. Queen's Counsel in court wears a silk gown and not the normal cotton gown.

Criminal law

Criminal law deals with serious offences against the state or society. In a case where a defendant pleads not guilty, the prosecution must prove that he is "guilty beyond reasonable doubt." Where a criminal law is broken, the state considers prison as a penalty. Prison is the hardest punishment used. A judge must consider all other options before imposing a prison sentence. A prison sentence is also known as a custodial sentence.

Criminal Law Scope

It covers a wide range of offences from traffic violation and shoplifting to major crimes like armed robbery and murder. The most serious cases are heard in Crown Court. Sources of criminal law include:

• Acts of Parliament
• Law made by judges (common law)

Categories of Offences

1. Summary offences - Are heard by magistrates and are seen as less serious crimes.
2. Either way offences - Can be heard either in the Magistrates’ Court or in the Crown Court depending on severity.
3. Indictable offences - Are the most serious criminal cases and are heard in Crown Court. An example is murder.

Actus reus & Mens rea

Actus reus is the guilty act. It is an essential concept in criminal law. Sometimes an omission will also be considered to be actus reus. Mens rea is the mental element of the crime. To accuse a person of breaching criminal law, prosecutors must prove both elements: actus reus & mens rea.

Types of Sentences Available

• Custodial Sentences - These are passed when an offence is so serious that the only response could be custodial or the case involves violence or sexual offence. While the public needs protection from the defendant.
• Mandatory Sentences - No matter what the circumstances surrounding the case, every murder conviction carries a compulsory life sentence.
• Crime Sentences Act 1997 - Provides a life sentence if two or more serious offences are committed by the defendant.
• Concurrent Sentences - Are all served at the same time. If in five sentences a defendant has 50 years of prison, he will stay in prison for a total of 50 years.
• Anti-Social Behaviour Order - Crime and Disorder Act 1998 made some rules for younger offenders whose behaviour causes concern to the local community.
• Fines - When a court gives a sentence to pay a fine, money will be paid by the defendant to the state and not to the victim. If it's paid to the victim, it is called a compensation order.

The jury

The jury is most often used in criminal proceedings in the Crown Court and rarely used in civil cases. Criteria to be part of a jury are in Criminal Justice Act 2003:

• Age between 18 and 70
• Registered as an elector
• Ordinarily resident in UK for at least 5 years

These persons cannot be part of a jury:

• Persons on bail
• Persons who have been sentenced to imprisonment for 5 years or more
• Persons who in the last 10 years have served any sentence
• Received a suspended sentence, a community rehabilitation order, community punishment order, a drug treatment and testing or a drug abstinence order

These persons are excused from jury service:

• Persons who have served a jury in last 2 years
• Full-time personnel of the Armed Forces
• Who have good reasons like: illness, pre-arranged holiday commitments, difficulty with child care, work, or study commitments

The judge may also excuse other persons for other reasons (Juries Act 1974).

Summons

The JCSB operates a centralized system that randomly selects potential jurors from the electoral register. The court officer produces lists (known as "panels") of jurors from which particular juries are chosen by ballot in open court.