Civil courts in UK: does it need a reform?
This paper is going to look into the structure of the civil court of the UK.
There are over four hundred county courts in England and Wales and they are staffed by Circuit Judges and District Judges. The Circuit Judge is appointed by the crown from advice of the Lord Chancellor. The Circuit Judge would usually sit alone although there is the possibility of trial by a jury of eight persons in some cases. A District Judge may also be appointed as a temporary measure to clear up any business in the County Court. The county court will hear cases for claims up to £25,000 or any personal injury case which is less than £50,000, unless the cases are extremely complex (Slapper and Kelly, 2003). The County Court is bound by the decisions of all the higher courts and decisions made by the County Court does not bind any other court. The decision made by the County Court may be appealed, which are usually made to the High Court. As the County Court is very formal, inflexible, costly, time consuming and some issues may be too technical for judges to resolve Alternative Dispute Resolution may be used. Negotiation is favoured by the court as hopefully the matter can be resolved before the court hearing. There may be a tribunal which operates alongside the courts and are used as an alternative to the courts, often because they are more appropriate. A tribunal usually comprises of three people, one legally qualified chairperson and two experts with the knowledge of the individual cases. The use of lawyers are discouraged but there is usually no legal aid for representation. There are also no formal rules of evidence and procedure. There are many benefits to tribunals, the cost is relatively low as there is no need for legal representation. The tribunal process is much more informal than a court room, cases often reach tribunals much faster than the County Court, often within weeks. The disadvantages of the tribunal process is that there is no legal aid available for people who could find it hard to compete with the opposition who may be represented.
The process of Arbitration can be used as an alternative dispute resolution. This is where each party voluntarily submit their dispute to a third party, and agree to be bound by their decision. Commercial arbitration is very common , this is where the parties enter into a contract which states that if any dispute arises it must be referred to an arbitrator so neither party can take the case to court. The advantages of Arbitration are that it is private, this is because it is settled out of court so the public cannot attend. The parties can choose their own arbitrator, when and where the arbitration takes place. The parties are more likely to obtain a ‘friendly’ outcome and continue to do business with the other side. The process is relatively cheap and quick. Disadvantages of Arbitration are that they have fewer powers than the court for obtaining evidence. The arbitrator does not necessarily have any legal knowledge and no legal aid is available.
Conciliation can also be used as an alternative dispute resolution. This is when a conciliator may offer a non binding opinion but the parties concerned may decide to ignore this decision.
Mediation is the least formal method of alternative dispute resolution. The mediator helps the parties to communicate the issues of the case to each other. This is commonly offered for family disputes.
The High Court consists of the Lord Chancellor, the Lord Chief Justice, the President of the Family Division, the Vice Chancellor, the Senior Presiding Judge and not more than 106 High Court Judges (Keenan, 2001). The High Court is made up of three divisions. These are the Queens Bench Division, Chancery Division and the Family Division.
The Queens Bench Division has the largest amount of staff usually between sixty and seventy High Court Judges. The court is looked after by the Lord Chief Justice. The Queens Bench Division hears cases of breach of contract and tort. It also contains the Commercial Court. This court hears cases of a commercial nature such as insurance matters.
The Chancery Division currently has seventeen High Court Judges and is presided over by the Lord Chancellor (Keenan, 2001). The chancellor is only the head of the chancery division and does not try cases. The Chancery Division deals with partnership matters, mortgages, trusts, revenue matters and disputed wills.
The Family Division has sixteen High Court Judges and is presided over by the President of the Division (Keenan, 2001). The court deals with aspects of family law including family property and adoption.
A High Court Judge is bound by the decisions of the House of Lords and the Court of Appeal. If the plaintiff or defendant feels that the decision made was incorrect in the County or High Court appeal is possible and would be made to the Court of Appeal – Civil Division.
Criminal law relates to conduct which the state strongly disapproves of. The state attempts to eradicate this behaviour by punishing the wrong doer. The state represents society as a whole when enforcing criminal law. The state prosecutes the defendant and punishment usually takes the form of a sentence or a fine. In criminal law the state holds the burden of proof and the standard of proof in criminal law is beyond reasonable doubt which means that to get a prosecution the evidence must be substantially in favour of the prosecution.
All criminal cases are heard at first instance in the Magistrates Court. Of all criminal cases ninety five percent begin and end here. Magistrates are appointed by the Lord Chancellor on behalf of and in the name of the Queen. Both summary and hybrid offences are prosecuted in this court. The magistrates can only try less serious offences because they are subject to limitations when it comes to sentencing and fining. The maximum custodial penalty which magistrates may impose for any offence in most cases is six months imprisonment (Martin, 2005). The general maximum fine for any one offence is £5,000 although higher fees are available in cases involving health and safety and pollution (Elliot, 2005). Usually three justices of the peace sit in a Magistrates court. They are not legally qualified and are advised by the court clerk. The Magistrates Court is bound by the decisions of the higher courts and decisions made by the Magistrates Court do not bind any other court.
The Crown Court hears the cases which are too serious for the Magistrates Court. The Crown Court is staffed by High Court Judges, Circuit Judges and Recorders. High Court Judges sit at the most serious cases of criminal law for example murder. Offences such as wounding or causing grievous bodily harm would normally be tried by a Circuit Judge or Recorder. The Crown Court is bound by the decisions of the higher courts. The cases from this court can be appealed to the Court of Appeal – Criminal Division, this appeal must be made within two weeks of the trial.
The House of Lords is the highest court in the land. The court is constituted by the Lord Chancellor and Law Lords. There are usually between nine and twelve Law Lords at any one time and they are appointed by the Queen on the Prime Ministers advice. The Law Lords must have held judicial office for two years and held a Supreme Court qualification for fifteen years. A minimum of three Law Lords are required to constitute a court, but in practice five normally sit to hear an appeal. The decision is made by majority judgement. The House of Lords hears appeals from the Court of Appeal. Its decisions are binding, which means all other courts must follow its decisions. However the House of Lords is not bound by its own decisions.
When Labour came into power in 1997 they promised changes for the House of Lords. In June 2003 Tony Blair intended to abolish the House of Lords and replace it with a supreme court. Blair stated that changes were needed in order that the judiciary becomes separated from the legislature and the executive. This would then bring the United Kingdom in line with other countries such as France and the United States. The reason why Blair proposed there changes was due to the European Convention on Human Rights – Article 6, which stated that judges should be independent and seen to be independent. This new Supreme Court would be completely independent from parliament. The court would no longer sit in the Palace of Westminster and it would have its own staff and budget. The proposal to create a distinct court separate to the House of Lords has not found favour, only a minority of the House of Lords have supported the legislative and judicial power. The proposals for the Supreme Court were to have one hundred and twenty members elected by the public and one hundred and twenty members elected by a statutory commission. The rest which would be up to six hundred would be appointed by political parties in relation to votes. A minimum amount of these would be female and minority groups would be represented. If this reform was to happen the effect would be very significant. Currently we have two appeal courts, the Court of Appeal and the House of Lords. This would still continue with the new reform.
The House of Lords gives consistency in the current system as there are a low number of Law Lords and the Court of Appeal is much more heavily staffed. The House of Lords can reform from the top down which is mainly due to its ability of the lords to override its own previous decisions. I believe that the House of Lords plays an important role in reversing the Court of Appeals decisions. In 1988 the House of Lords had reversed just under four hundred and one of civil appeals and three hundred and thirty one appeals from criminal cases. This is a substantial amount and illustrates the relevance of the House of Lords. The House of Lords has made and continues to make valuable contributions to our legal system for example in the case of RvR (1991) marital rape was made a criminal offence.
In my view the Court of Appeal should be eradicated so that the appeal is made directly to the House of Lords as the current system gives the appealant two chances of having the decision changed and this undermines the role and function of the Court of Appeal as any verdict given can be over turned by the House of Lords. I believe that the House of Lords should consist not only of upper middle class old men who may be fixed in their opinions but of younger more open minded Justices of the Peace from both sexes and different ethnic backgrounds.
C Elliot (2005) English Legal System. Longman , UK
D Keenan (2001) Smith & Keenan’s English Law – 13th Edition. Longman, UK
G Slapper & D Kelly (2003) English Legal System – Fifth Edition. Cavendish, UK
J Martin (2005) The English Legal System – Key Facts. Hodder Arnold, UK
A Ashworth (2003) Principles of Criminal Law. Oxford University Press, UK
C Reed (1999) English and European Legal Systems. Old Bailey Press, UK