§3. The English Legal system

Private prosecutions

It should not be forgotten that although prosecution of criminal offences is usually the prerogative of the State, it remains open to the private individual to initiate a private prosecution in relation to a criminal offence. It has to be remembered, however, that even in the private prosecution, the test of the burden of proof remains the criminal one requiring the facts to be proved beyond reasonable doubt.

As the rule of law already is an existing constitutional principle of the UK and one that may be more contentious in the future, it becomes imperative to attempt to define what it actually means. It was the exact task that Lord Bingham set by his own in the lecture under consideration and he suggested that at its core was the idea that ‘all people and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.

Bingham has expressed his basic understanding of John Locke’s dictum that ‘Wherever law ends, tyranny begins’. He also was the man, who made the prediction: The law must be accessible and so far as possible intelligible, clear and predictable. Without challenging the value or legitimacy of judicial development of the law, have been taken to extremes, such judicial creativity can destroy itself the rule of law.

In particular, the rights provided for under Arts 8, 9, 10 and 11 are subject to legal restrictions such as are: “... necessary in a democratic society in the interests of national security or public safety, for the prevention of crime, for the protection of health or morals or the protection of the rights and freedoms of others”. The UK entered such derogation in relation to the extended detention of terrorist suspects without charge, under the Prevention of Terrorism (Temporary Provisions) Act1989, subsequently replaced and extended by the Terrorism Act⁶ 2000.

A crucial distinction between criminal and civil law is the level of proof required in the different types of cases. In the criminal case, the prosecution is required to prove that the defendant is guilty beyond reasonable doubt, whereas in a civil case, the degree of proof is much lower and has only to be on the balance of probabilities. This difference in the level of proof raises the possibility of someone being able to succeed in a civil case, although there may not be sufficient evidence for a criminal prosecution.

The community trigger

The community trigger is intended as a means of recourse for those victims of anti-social behavior who consider that there has not been an appropriate response to their complaints about such behavior.

The community remedy document

The word ‘remedy’ was formed from Anglo-French remedie, Old French remede – “remedy, cure” and directly from Latin remedium – “a cure, remedy, medicine, antidote”. By official dates is in use since 1300.

This provision looks to provide for the victim of low-level crime or anti-social behavior to have a say in deciding the punishment imposed on, or actions required to be carried out by, offenders where they are dealt with without a formal court hearing.

Presumption of Validity

Presumption comes from the ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as "One does not ordinarily pay a debt before term."^[2]

The same concept was found in ancient Roman law, where, for example, if there was doubt as to whether a child was really the issue of someone who had left money in a will, the presumption was in favour of the child.^[3] Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent.

The presumption of validity disfavors interpretations that would nullify the provision or the entire instrument. The presumption might be viewed as a species of the presumption against ineffectiveness since an interpretation that renders a provision invalid (unlawful) “obstructs” its application to the maximum.

Principle of Interrelating Canons

Transitive, "bring into reciprocal relation," from inter- “between" + relate (v.). Intransitive sense "come into reciprocal relation" is attested from 1912.

Principles of interpretation are guides to solving the puzzle of textual meaning, and as in any good mystery, different clues often point in different directions. It is a rare case in which each side does not appeal to a different canon to suggest its desired outcome. The skill of sound construction lies in assessing the clarity and weight of each clue and deciding where the balance lies.

Mandatory/Permissive Canon

The word mandatory was originally "of the nature of a mandate", from Latin ‘mandatorius’ – “pertaining to a mandator", from Latin ‘mandatus’ – “past participle of mandare”. Sense of "obligatory because commanded" is from 1818.

The word permissive was originally understood like "allowing passing through," from Old French ‘permissif’, from Latin ‘permiss’ – “to let go, let pass, let loose". In sense of "tolerant, liberal" it is first recorded 1956; by 1966 it had definite overtones of sexual freedom. Earlier it meant "permitted, allowed".

The text of this canon is entirely clear, and its content so obvious as to be hardly worth the saying. The trouble comes in identifying which words are mandatory and which permissive. The traditional, commonly repeated rule is that shall is mandatory and may is permissive:

• The tenant shall provide written notice of an intent to vacate no fewer than 30 days before moving. (This states an obligation.)

• The tenant may vacate the premises on 30 days’ written notice. (This grants permission, with a condition.)

Legislative jurisdiction

The adjective ‘legislative’ was formed from the word ‘legistate’ – “a lawgiver, a maker of laws”, from Latin ‘legis lator’ – “proposer of a law," from ‘legis’, genitive of ‘lex’ – “law" + ‘lator’ – “proposer," agent noun of ‘lātus’ – “borne, brought, carried", which was used as past tense of ‘ferre’ – “to carry".

Jurisdiction however was formed in the meaning "administration of justice," from Old French ‘juridicion’ and directly from Latin ‘iurisdictionem’ – “administration of justice, jurisdiction," from phrase ‘iuris dictio’, genitive of ‘ius’ – “law, right" + ‘diction’ – “a saying".

This is the right of a State to pass laws that have a bearing on conduct. Some States take the view domestically that they are entitled to pass legislation covering matters which take place throughout the globe. States are entitled to protest assertions of legislative jurisdiction which are unwarranted under international law, and there is an increasing trend towards them doing so.

Conclusion

There are several points which immediately strike the reader. There are various ways of categorising law, which initially tend to confuse the non-lawyer and the new student of law. It should not be forgotten that although prosecution of criminal offences is usually the prerogative of the State, it remains open to the private individual to initiate a private prosecution in relation to a criminal offence.