The Court System of the uk Today Appealing to History...

Different countries develop their own form of dispute resolution, which is more fit for their culture and historical background. Prior to the Norman Conquest, there was no system of law which was common to England. Justice was administered locally. There was no English law as such. Rather, there was a variety of different regional systems. During the reign of Henry II, judges were sent to the provinces where they could become familiar with local customs and could use their knowledge to develop a single law that was common to the entire country. Thus the system of courts and common law developed at Westminster and around the country by means of itinerant judges. That was a single system of law for the whole country: common law. This approach established the importance of judicial decisions as a source of law, though it was not truly formalized until the establishment of a reliable system of case reporting in 1865.

The doctrine of precedent was based on the principles of stare decisis, obiter dicta and ratio decidendi according to which a later court is to be bound to apply the same reasoning as an earlier court where the two cases raise substantially the same questions of principle. The binding nature of the doctrine of precedent created foundation of certainty. However, apart from certainty the law needs some flexibility.

By the 14^th century, the common law had ceased to be flexible and failed to meet the demands of the new cases. More and more litigants who could not obtain redress from the common law would petition the King. Eventually, it was the Lord-Chancellor rather than the King who heard petitions. As the number of such petitions grew the Court of Chancery was established and equity developed as a system of justice from the common law. Equity introduced a number of remedies unknown in the common law. This quite frequently allowed seeking such a remedy when all the common law remedies had been exhausted. At the same time equity was never a rival of the common law. It simply provided additional "alternative" ways of achieving justice.

For example, the common law relied on a single remedy: damages. However this remedy was often found to be inadequate or inappropriate. Equity was able to develop a range of alternative, discretionary remedies.

For centuries, the system of law and equity were separately. The creation of a single organized system of courts in England dates back to 1873-1875 when the Judicature Act brought the two systems together so that all courts could grant both legal and equitable remedies. It should be noted that this was a procedural fusion of common law and equity, i.e. from that point all courts had both common law and equitable jurisdiction. As far as substantive law is concerned the two systems remain distinct. It was established that where there was a conflict between the two systems Equity should prevail.

English Courts Today

The current arrangement of the system of justice in England and Wales is based on its historical development. At the moment the court structure in England and Wales comprises the following elements:

• the House of Lords (The Appellate Committee)

• the Supreme Court consisting of:

1. the Court of Appeal

2. the High Court

3. the Crown Court

• County Courts

• Magistrates'Courts

A certain number of cases may also be referred to the European Court of Justice, which has jurisdiction on matters of European Community law.

The House of Lords is at the top of the structure. Lords of Appeal in Ordinary commonly known as the Law Lords, each of them being a full member of the House and a life peer, perform their judicial functions sitting as the House itself or more commonly hearing appeals as a Committee of the House known as the Appellate Committee. Before an appeal may be lodged it is necessary that the permission of the lower court or of the House itself be granted.

Thus the House of Lords is the final point of appeal. The House of Lords hears appeals from the Court of Appeal and in exceptional circumstances from the High Court. Apart from England and Wales it may also hear appeals from Northern Ireland and in civil cases from Scotland. The Law Lords may also sit as the Judicial Committee of the Privy Council to hear appeals from those Commonwealth countries whose legal systems are still linked to the United Kingdom.

The Supreme Court is not a separate entity. It comprises the Court of Appeal, High Court of Justice and the Crown Court and only exists as a combination of the three.

The Court of Appeal sits in London at the Royal Courts of Justice (RCJ) in the Strand and consists of the Civil Division which hears appeals from the High

Court and from the County Courts and the Criminal Division which hears appeals from the Crown Court. The Court of Appeal has appellate jurisdiction only and is composed of Lord Justices of Appeal together with a number of ex officio members.

Cases involving points of law may be further referred by either of the Division to the Appellate Committee of the House of Lords. On some occasions where an important point of law is involved appeals may go direct to the House of Lords from either the High Court or the Crown Court.

The High Court of Justice deals with important civil disputes (i.e. cases where large sums of money or other important issues are involved). There are three Divisions of the High Court:

The Queen's Bench Division presided over by the Lord Chief Justice deals with actions for damages arising from torts, breaches of contract and libel. The Court also hears disputes arising from trade and commerce (the Commercial Court) as well as from shipping disputes (the Admiralty Court). Both the Commercial Court and the Admiralty Court have been created as part of the Queen's Bench Division of the High Court of Justice. The Administrative Court in the Queen's Bench Division deals with a variety of judicial review matters.

The Family Division headed by the President deals with matrimonial and family matters, including issues relating to children, wardship and adoption applications, divorce. It also deals with non-contentious probate, i/e/ cases concerned with wills where there is no dispute and, the distribution of estates under the intestacy laws when no will has been made.

The Chancery Division presided over by the Vice-Chancellor has jurisdiction over a wide range of issues, including land matters, trusts, contentious probate, company, partnership and bankruptcy matters as well as intellectual property disputes.

The Family and Chancery Division may sit with a High Court judge alone as a Division of the High Court, or with two or more puisne judges as a Divisional Court. The distinction is based on the jurisdiction. When the Divisions of the High Court exercise a supervisory function over lower courts acting as an appellate court they sit as Divisional Courts.

The Crown Court deals with all those criminal cases which the Magistrates are not empowered to deal with. Practically all its work is concerned with cases committed for trial or sentence by the Magistrates or with appeals from their decisions. Although there are 78 centres exercising functions of the Crown Court across England and Wales there is only one Crown Court.

The County Courts, in their present form, were introduced in 1846 by an Act of Parliament. They were intended to provide a means of recovering small debts and to give, in a limited range of cases, similar remedies to those obtained in the High Court. This has remained their main function but they now have jurisdiction to hear a broad spectrum of civil cases, including, within specified limits, virtually all those issues which are covered by the three Divisions of the

High Court. An exception is actions founded on defamation, i.e. libel and slander. Applications relating to adoption of children and actions for the possession of property are examples of matters which may be dealt with by the County Courts. In fact about 90 per cent of all civil proceedings are commenced and concluded in these courts.

Generally the County Courts and the High Court have concurrent jurisdiction and a litigant may seek redress from either of the courts, depending, though, on the complexity of the case and the amount of damages claimed. Claims under £50,000 are likely to be dealt with by the County Courts, and those over £50,000 by the High Court.

Each County Court has its own district. Some of the Courts' powers are exercisable only within their district, while others are not subject to territorial limitations. Certain designated County Courts have jurisdiction to deal with divorce and other family matters, insolvency and admiralty matters.

The Magistrates' Courts deal with minor family matters, some forms of civil debts as well as minor criminal offences that can be tried either way where the defendant has elected to be tried summarily. The magistrates have limited sentencing powers. Where they are of the opinion that the offence deserves a more severe sentence, the magistrates can commit the offender for sentencing at the Crown Court. The magistrates' court usually sits as a bench of three lay magistrates with a legally qualified clerk to advise them on points of law. Apart from lay magistrates there are also professional magistrates or stipendiaries. A stipendiary magistrate sits alone.

Farewell to the Traditional System of Justice or Just a New Supreme Court?

One of the most significant changes in the judicial system of England and Wales is the introduction of a brand new institution, which will be totally different from all the bodies existing within the system so far - the new Supreme Court.

The new Supreme Court is supposed to put the relationship between the executive, the legislature and the judiciary on the modern footing respecting the separation of powers between the three. The functions of the highest courts in the land are currently divided between the House of Lords (the Appellate Committee) and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. The Human Rights Act 1998, which made the European Convention on Human Rights as a part of English domestic law, makes stricter requirements to ensuring independence and impartiality of the judicial system.

It raises questions about whether there is sufficient independence from the executive and the legislative when the highest court of appeal is situated within one of the chambers of Parliament. The Government believes that the creation of a separate Supreme Court will be an important part of the reforms which will rearrange the relationship between the Judiciary, the Government and Parliament to preserve and increase independence of English judges.

The idea of the reform of the highest court in the land is about abolishing the jurisdiction of the House of Lords within the UK's judicial system and vesting the functions currently performed by the Appellate Committee of the House of Lords in a new Supreme Court which will by no means be connected to Parliament. It should be understood that this will not be a Supreme Court based on the US model with the power to strike down and annul legislation and assert the primacy of the constitution. Nor will it be a constitutional court based on the German model of a court which would give definite rulings on difficult points of law the way the European Court of Justice does. A Supreme Court along one of such models would be a departure from the UK's constitutional traditions where Parliament is supreme. Regardless of the membership in the European Union and the Human Rights Act this principle remains intact.

As regards the Judicial Committee of the Privy Council it also acts as the final court of appeal for a number of Commonwealth and overseas territory jurisdictions, as well as for the Crown Dependencies. In that capacity, it is acting as a court of appeal for independent jurisdictions and it seems that it is going to continue to provide this important function. Instead of the Lords of Appeal in Ordinary being appointed to the Judicial Committee, the members of the Supreme Court will be so appointed.

The initial members of the new Supreme Court will be the existing Lords of Appeal in Ordinary. The Government proposes that members of the Supreme Court should lose the right to sit and vote in the House while they are members of the Supreme Court. Anyone who is a member of the House before joining the Court will retain the peerage and title, and will be free to return to the House when he or she ceases to sit on the Court. It is proposed that the members of the Court will be appointed on the same basis as senior judges now are. That is, they will be appointed during good behaviour, but may be removed by Her Majesty on the address of both Houses of Parliament. The statutory retirement age is likely to be fixed at 75, so that each member can be assured of comparatively long tenure and the Court enjoys some stability.

The new Supreme Court will be the highest court in all three jurisdictions in the realm, i.e. it will be the supreme court of the United Kingdom. There is, however, already the Supreme Court of England and Wales, which consists of the Court of Appeal, the High Court and the Crown Court by virtue of the Supreme Court Act 1981. In Scotland the term 'Supreme Court' has also been used to refer to the Court of Session and the High Court of Justiciary collectively. There is also a Supreme Court of Northern Ireland. However, to avoid confusion, in the future the title of Supreme Court will be reserved for the Court to be created as a result of this constitutional reform. The new Court cannot become part of any existing Supreme Courts because its authority will extend to all three jurisdictions.

The Lord Chancellor Sinking into Oblivion

The abolition of the office of Lord Chancellor is another element of the constitutional reform. As for the Lord Chancellor's ministerial responsibilities the Secretary of State for Constitutional Affairs should take over as a Departmental Minister. The newly created Department for Constitutional Affairs incorporates most of the responsibilities of the former Lord Chancellor's Department. However, the Secretary of State for Constitutional Affairs as a Minister is riot involved in running the judicial selection process, is not supposed to sit as a Judge or Speaker in the House of Lords thus putting the relationship between the Executive, the Legislature and the Judiciary on another basis. Such an approach would enhance the separation of powers although it has never been part of British tradition. The post of the Lord Chancellor will be finally abolished after the Judicial Appointments Commission and the new Supreme Court are in place.

The Government's objective is to clarify the ministerial responsibilities which will be transferred to the Secretary of State for Constitutional Affairs, and to remove those duties and functions which are inappropriate to a Government Minister. Lord Falconer has been appointed as Secretary of State for Constitutional Affairs and Lord Chancellor until such time as the destination of all the Lord Chancellor's functions has been settled and that office has been abolished. Until that time Lord Falconer will continue to carry out the Lord Chancellor's functions. Part of the purpose of reforming the office of Lord Chancellor is to address the confusion of roles his office has produced.

The Lord Chancellor is a senior Judge and Head of the Judiciary in England and Wales and Northern Ireland. The newly appointed Secretary of State will not sit in any judicial capacity in any part of the UK. Nevertheless, by law the Lord Chancellor is President of the Supreme Court of Judicature of England and Wales (which consists of the Court of Appeal, the High Court of Justice and the Crown Court, as defined by the Supreme Court Act 1981, and which should not be confused with the new Supreme Court described above as an element of the constitutional reform). The Lord Chancellor is also President of the Chancery Division and a Judge of the Court of Appeal. He is also the presiding Chairman of the Appellate Committee of the House of Lords (i.e. the House of Lords sitting in its judicial capacity) and a member of the Judicial Committee of the Privy Council where he usually presides.

The Lord Chancellor is currently responsible for the appointment, or making recommendations for the appointment, of a large number of full-time and part-time judges. The Lord Chancellor also currently appoints lay magistrates in England and Wales and Justices of Peace in Northern Ireland.

As part of the constitutional reform it is proposed that functions exercised by the Lord Chancellor in a judicial capacity should be transferred to the Lord Chief Justice or some other judicial office-holder. In other words the Lord Chief Justice will assume the role of the Lord Chancellor as Head of the Judiciary. The Secretary of State for Constitutional Affairs will not be a judge and shall not sit in a judicial capacity. His role will be primarily political. The Secretary of State will retain responsibility over the policy for appointment of judges, although the selection process will be carried out independently. The Secretary of State will also retain the Lord Chancellor's role of protection judicial independence. Another function still vested in the Secretary of State will be to provide and allocate resources for the administration of justice whereas the Lord Chief Justice is intended to deal with the well-being, training, guidance, deployment and role of individual judges.