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Law making by the judges

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There is one other respect in which the position of the senior judges is unique. It is only judges of the superior courts who have the power to create new law by deciding new points in such a way that their decisions become precedents. Decisions of lower court judges, and even of magistrates, may sometimes involve quite new points of law, to which there is no clear answer; and when this happens, the point must be decided. But their decisions do not constitute legal precedents. On the other hand, decisions of high court judges and, still more, of the appeal judges, on novel points of law are precedents which may be published in the law reports. Such decisions "bind" lower courts to follow them,so that these judges have a quasi-legislative function which is interwoven with their primary function of actually deciding the case in front of them. This law-making function of the Court of Appeal and the House of Lords can be very important. Much of the work of these courts involves deciding new points which have never arisen (or been litigated) in quite the same way before. Moreover, decisions of these courts are powerful precedents. A decision of the House of Lords binds all the other courts in the country - indeed, it binds everybody else too, including (for example) the government. If the government dislikes a judicial decision of the House of Lords sufficiently strongly, it can introduce a Bill in Parliament to change the law as thus laid down. But, short of that extreme response, governments, like everyone else, accept that what the House of Lords says is the law, "is" the law.

The binding force of judicial precedentsis not something that is only relevant in other cases which arise in court. Most disputes involving legal rights and obligations are not litigated in court at all. They are settled more or less amicably between parties, with or without lawyers or other advisers. When lawyers (or other advisers with some knowledge of the law) are involved in attempting to settle such disputes, they rely upon judicial precedents in the same way that lawyers do in court. For instance, a person arguing with the tax authorities might claim that the interpretation of a particular section of the Taxing Act has been determined by a decision of the House of Lords which settles the matter in his favour. If that was indeed the case it would be unhesitatingly accepted by the tax authorities. So the principle of the binding force of precedents is not a rule of interest only to lawyers. It is a constitutional principle which is accepted by the govemment and all other bodies exercising authority.

So far we have been talking mainly of civil courts and the civil law, but there are parallel courts dealing with the criminal law, and here also there are marked differences between superior courts trying a small number of serious cases and lower courts trying huge numbers of less serious cases. Broadly the distinction between more and less serious criminal cases is reflected by the fact that serious cases are triable before a jury, while less serious cases are tried by magistrates without a jury. Appeals from jury trials - but only where the accused is found guilty – go before a special division of the Court of Appeal, known as the Criminal Division, and in rare cases, further appeals go before the House of Lords as in civil cases. As with civil cases, appeals are mostly on points of law, and not on the facts.





As we have seen, serious criminal cases are tried before a jury. The jury consists of twelve persons who are selected from the jury list, which is with some exceptions, the ordinary list of voters. The jury must be selected at random, and even the judge has no power to direct that (for instance) in a case with racial overtones the jury should be racially-mixed, or that in a sexual case there should be a balance of the sexes.

In theory a jury is only the arbiter of the “facts”, while the judge remains responsible for decisions on the “law”. The judge also controls the trial and gives instructions on the law to the jury, and sentencing is exclusively within his province if the accused is found guilty. In practice, because the jury is ultimately required to render a verdict on the whole case, Guilty or Not Guilty, a jury is able, if it wishes, to disregard a judge's directions on the law and acquit an accused person even though, on the facts as they find them, he is undoubtly guilty of the offence. No judge can prevent a jury behaving like this, and no appeal lies against a verdict of acquittal.

How valuable is the jury in modern times? This is a very controversial question. On one side the jury has much ancient history behind it (though some have argued it is more mythology than true history) as a bastion of the liberty of the subject against repressive governments. To a minor degree the jury can, and occasionally still does, play this role. A 'perverse acquittal' is undoubtedly rendered from time to time as a gesture of defiance against an oppressive prosecution.

The last well-known case of this kind was probably the acquittal of a senior civil servant in 1985 on charges under the Official Secrets Act. The accused did not deny the substance of the charges against him in this case, which were based on the fact that he had sent secret official documents to a Member of Parliament which were claimed to show that ministers had deceived the House of Commons. On the admitted facts, the accused was undoubtedly guilty, and the judge directed the jury to this effect, but the jury acquitted him in the teeth of this direction. They probably felt that the prosecution was oppressive, and that if there was any truth in the allegations it was only right and proper that Parliament should see the documents anyhow.

In a sense the jury's behaviour in this case was vindicated by amendments later made to the Official Secrets Act, as a result of which the accused's behaviour would no longer be a crime. Cases of this kind are certainly rare. But if lawyers, police, and the prosecuting authorities get too much out of touch with public opinion in certain spheres, the jury is a constant reminder that 'government by consent' is no empty phrase.

Some lawyers believe that the jury remains a valuable safeguard in other cases involving public authorities, for instance, a civil case of wrongful arrest brought against the police, where a jury may still be ordered. It is widely believed that judges are much more likely to believe the police witnesses in litigation of this kind, while juries may be more sceptical of police evidence. On the other hand, it cannot be said that juries are always capable of discovering false allegations, police lies, or other injustices if the evidence before them does not reveal the reality behind the case.

Moreover, only a tiny fraction of criminal cases are tried by juries anyhow. In recent years, for instance, magistrates have dealt with about two million cases annually, while juries have tried about 26,000. There are also worries in some quarters that many cases of serious fraud, involving very complicated financial dealings, are incapable of being followed by juries. Sometimes prosecutions may simply not be brought because the barristers believe the case is too complex to explain to any jury; in other cases, a prosecution may be brought, but nobody knows whether the jury really understands it. It must also be said that some people today (including many senior police officials) also believe that juries acquit far too many guilty people.


The legal profession


The practising legal profession in England is divided into two main groups: barristers (who are often called 'counsel') and solicitors. The relationship between the two parts of the practising profession has at least an appearance of conforming to the elitist pattern which dominates the court structure. For here too we have a very small 'higher' or 'senior' branch to the profession - the bar - and a much larger 'junior' branch. There were in 1993 fewer than 8,000 barristers in private practice in the whole of England and Wales, while there were some 55,000 solicitors in private practice. Both parts of the profession have been growing very rapidly, and the number of solicitors has more than doubled in the past twenty years or so. Much of this rapid growth is undoubtedly due to the demand for legal services paid for by the State system of legal aid, so taxpayers have to some degree been funding this extraordinary increase in the number of practising lawyers. The legal aid system is discussed further below.

In one sense it is correct to regard the bar as the senior part of the profession. All higher judicial appointments were until very recently open only to those with experience of practice at the bar; and the higher courts were only open to advocates drawn from the bar, although solicitors have had the right to appear in some lower courts. Although new statutory changes have recently come into force which enable solicitors to obtain rights of audience (and therefore ultimately to become qualified for the judiciary) the long term impact of these changes remains to be seen.

In their professional relationship, barristers often appear to be treated as the senior profession. A client with a legal problem must always approach a solicitor first - barristers do not deal directly with members of the public, but only through the intermediary of a solicitor. Solicitors may consult barristers by 'taking counsel's opinion' on difficult questions, and usually rely upon the resulting opinion implicitly; they always defer to barristers with regard to the initiation and conduct of legal proceedings. Of course, solicitors may suggest this or that point to counsel in conference, or in their instructions, but the barrister is usually left to decide. Doubtless a solicitor who is seriously dissatisfied with counsel's advice would seek advice from other counsel, but he is unlikely to reject one barrister's opinion without obtaining another.

However, this version of a profession divided into a senior and junior branch can be seriously misleading. For one thing, the bar is a very young profession: not long ago one survey showed that 70 per cent of practising barristers were under 40 years of age, and doubtless quite a large proportion are under 30. Barristers of tender years and limited experience are unlikely to be professionally more competent than solicitors of greater age and experience. Then also, there are today a small number of very large firms of solicitors (almost all in London) who specialize in very complicated commercial and tax matters. These solicitors are often far more experienced than any barrister in this kind of work (and are paid accordingly) though it is still the case that if matters go to court, a barrister has to be instructed to handle the case, and can then be expected to concentrate on the case, and bring to bear a higher degree of expertise than the solicitor could findthe time to do.

One of the things which most strikes foreign observers of English courts is the peculiar nature of the traditional court dress. Judges in many countries wear robes or gowns of some kind, but in England the court dress of barristers and judges is unique - they wear not only gowns, but also eighteenth-century style wigs. Why does the profession continue with these trappings? Do they serve a useful purpose of any kind? The answer to the firstquestion is almost certainly that the profession continues to wear traditional dress simply because it is customary, and this is a somewhat conservative profession which is, rather more than most professions, attached to its customs and traditions. On the other hand, few English people seem to find the present customs seriously worrying, and a recent survey of jurors surprised most people by showing strong support for the traditional costume.


The cost of legal services

The very high cost of legal services and of litigation in England means that for people of modest means, going to law is almost impossible. In criminal cases, also, it means that the State has to provide and pay for lawyers because it is today regarded as a fundamental human right that anybody accused of serious crimes, with the risk of being sent to jail, must be provided with legal counsel to defend him. In civil matters, also, there is an extensive system of legal aid, paid for by taxpayers, though this is only available free to the poorer members of the community. To bring a case before a court a citizen who cannot altord to pay himself, can apply for legal aid, which is granted at the discretion of the authorities, where they are advised by lawyers that there appears to be a reasonable case in law. Citizens of moderate means may be required to pay part of the cost themselves.

Recently, there have been a variety of attempts to provide legal remedies of some kind to people who do not feel they can afford the burden of litigation. For instance, many public and commercial institutions have recently appointed Ombudsmen who can investigate and deal with complaints at their own expense (their costs are met by the institutions they supervise, even though they are independent of them), and they can often award compensation to claimants. Indeed, they are sometimes more useful than ordinary litigation because they can rely on standards of fair practice as well as on the law itself, so claimants may find it easier to obtain substantial justice from an Ombudsman than from the law, where claimants can still be defeated by technicalities. Today Ombudsmen exist for several distinct types of commercial activity, such as the work of banking, insurance and the home-lending institutions which the English call building societies. The legal professions also have an Ombudsman of their own to deal with complaints against lawyers. In addition there are Ombudsmen for many public services, such as the National Health Service, and local government services, as well as the national Ombudsman who can investigate allegations of administration in the civil service or government departments, though only at the request of a member of parliament. Ombudsmen work quite differently from courts. They operate in private, they do not hold hearings, but rely just on documents and even letters. They are much less formal than courts, and because they are responsible for making their own inquiries, they do not need barristers to present cases to them. But their powers are limited in various ways. They can usually only order compensation in fairly minor cases, and they do not have any general power to enforce the law, but only to deal with problems arising in particular kinds of institutions or relationships, for instance, between a client and his bank or insurance company, or between a citizen and his municipal authority. So although Ombudsmen can be very useful, they do not necessarily eliminate the demand for ordinary litigation.


Magistrates' courts

If the structure and function of the county courts appear to differ little from methods of resolving cornparatively minor civil matters in many (comrnon law systems, the structure of the magistrates’ courts may seem most unique. Established throughout England and Wales, magistrates' courts primarily are staffed by ordinary but carefully chosen citizens. Part-time lay members sit in collegiate form without a jury to resolve in summary form the great bulk of minor crirninal charges. Three magistrates usually sit, choosing their own chairman.

The use of lay as opposed to professional judges for less serious criminal matters has strong historical roots. The return of English soldiers nourished with plundering from the continental wars and the Crusades, and the loss of as much as one-half of the population from the Black Death, encouraged government control of both wages and the free movement of persons. A few of the most influential persons in each community were appointed to keep the peace under the Justices of the Peace Act 1361.

Now nearly twenty thousand justices, or magistrates, serve throughout England and Wales. Appointed by the Lord Chancellor from nominations of local commissions, the magistrates accept office as a public duty, for the prestige of being a part of the judicial system and being per mitted to append to their names the initials J.P. They were compensated in earlier years, but the remuneration has been abolished. The lay magistrates are assisted by a law trained clerk, in larger cities a full-time position, but in smaller towns a part-time local solicitor. The clerk advises on procedural and substantive issues, but at the magistrates' request may participate in the discussion leading to judgment.

Magistrates are often referred to as "the great un- paid," or by critics as "the great unlearned," an opprobrium which applies only to the lay magistrates. In the larger cities, full-time, salaried, law trained stipen- diary magistrates sit in the magistrates' courts. The stipendiary magistrates, who are usually solicitors, sit not in collegiate form, but alone.

Criminal jurisdiction is the paramount role of the magistrates' courts in the system of English justice. Summary offences, those generally of a minor character, are tried without a jury. The benefit is speed and the low cost of appearance, in contrast to a proceeding before the Crown Court. The disadvantage is a highly probable conviction. A large percentage of magistrates' cases are violations of the road traffic acts and regulations, although most persons so charged plead guilty and submit by mail specified fines without a personal court appearance. Certain indictable of- fenses may be tried before a magistrates' court, but the more serious are tried in the Crown Court.

The magistrates' court plays an important role involving young persons. When the court convenes to hear juvenile offences, it assumes a status separate from the criminal environment of magistrates' court proceedings. The juvenile proceeding is closed to the public, press coverage is limited and at least one of the required three lay justices must be female. This special status carries through to any issue requiring detention, which usually will be in a community home rather than confinement with adult offenders.

Jurisdiction of the magistrates' courts extends beyond its principal criminal law responsibility to include minor civilissues involving the collection of specific debts, such as national insurance contributions and utility charges, licensing matters, and some juvenile and domestic issues. The magistrate system involves an extraordinary use of lay persons to adjudicate the vast majority of minor offences committed within a community.



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