This book is about the English legal system. It is helpful to note, right at the very beginning, that the system was never designed in full at one point. It is over a thousand years old and it has evolved over that time.
Even some of the elements within the system which appear to run all the way through, such as the monarchy, have changed considerably over the centuries. Monarchs in the tenth century, for example, did not rule over the whole of what would be today seen as the UK, and their powers were not limited by conventions as they are in modern times.
It is also important to note that the system has not come to a stop today. It is still growing and developing and always will do. At one time in the long history of the legal system, there was no democratic parliament to make law, but now there is. At one time, law could be declared by the monarch, but now that is impossible.
For a long time before the twentieth century there was no organised system of appeals in criminal cases but today there is such a system. In its early stages of development, the legal system had no organised law reporting so, in law courts, previous cases were analysed only in an oral way with lawyers and judges giving accounts of previous cases from memory, whereas today we have libraries full of voluminous law reports and all major decisions published in full online. Indeed, communications technology is completely altering the way the system works by allowing for new relationships between lawyers and their clients to exist in an electronic sphere. Precedents (previous cases which are relevant to the one in dispute) from all around the world can be consulted instantly in court using a computer, and mobile telephony can be used to summon witnesses to legal cases.
The pen and parchment allowed law to work in one particular way; the printing press meant law could be developed to a higher level of sophistication; the prevalence of the typewriter and photocopying facilities changed things further; and the internet and mobile telephony take law into a different sphere. It is clear that the story has not stopped here and that law will continue to develop in relation to technology.
Law, though, is also affected by the politics and the economy that surround it. New laws affecting the way the legal system works can be passed by one parliament but subsequently repealed when a different group of politicians gain power and want to change the legal system in accordance with their political views. In this textbook we aim not only to explain the law and mechanisms of the legal system but to situate those changes in the context of such matters as how the law came to be what it is and what social, economic and political issues arise from the legal system.
In Chapter 1 we examine the different approaches to legal study and the way that this book engages with such study. We also examine basic questions affecting the study of the legal system such as what is meant by law and how law can be classified according to different criteria.
In Chapter 2 we examine the rule of law and human rights. These are very important ideas at the centre of the modern legal system. They are always in the thinking of lawyers, judges, legislators and civil servants and quite often they are ideas which are explicitly part of legal discussions. In its briefest form, the ‘rule of law’ is the idea that everyone is governed by the existing law, that no one is above it, and that random or capricious decisions in law courts are undesirable. The rule of law refers to an idea by which people are governed by rules, not by the whim of rulers.
The story of ‘human rights’ is a long one whose origins can be traced back many centuries, but such rights were systematically enshrined in documents by the United Nations and in Europe only from the middle of the last century. Since then they have become democratically implanted in many countries such as the UK. They cover basic unalterable rights, such as that no one should be tortured, and other rights such as the right to freedom of expression, which can only be taken away where there is a compelling need under such criteria that it is in the interests of a democracy.
In Chapter 3 we examine various types of legislation as sources of law. In general language, people speak about ‘the law’ as if it were one single thing, but in fact there are various sorts of law, including law that we follow from being a member of the European Union, legislation direct from the UK Parliament, and the judicial decisions of the higher level courts in the UK. Legislation is a prodigious source of modern law. In recent times, Parliament has been making about 25 new Acts a year.
In Chapter 4 we examine case decisions as a source of law. The higher courts – in particular the Court of Appeal and the Supreme Court – produce a large annual output of decisions that become part of English law.
In Chapter 5, we examine the third main source of law in the English legal system: law from both the European Union and the European Court of Human Rights. At this stage we have decided there is little purpose to be served by an in-depth analysis of the process leading to and the consequences of Brexit. Such analysis will be needed in the future but for the moment it is mainly a matter of speculation.
In Chapters 6 and 7 we examine the civil courts and the civil process. In general terms ‘civil law’ means the law which governs the relationship between organisations like companies, and between individuals and organisations, and between individuals. This is different from the criminal process and courts, which we look at in Chapters 9, 10, and 11, where one of the parties is the state and that party is prosecuting an individual or organisation for committing a crime.
In one sense, the civil courts and civil process are sub-compartments of the English legal system. It is, though, not quite as straightforward as that. It is not the case that the buildings and the people who work in the civil side of law are entirely separate from the people and buildings concerned with the criminal side of the system. Some judges and lawyers, and some of the court and governmental buildings, deal with both civil and criminal matters. The civil courts have their own system of procedures and rules and their own special set of court orders and remedies. Typically, for example, a litigant in the civil process wishes to have an award of damages to compensate them for some harm or loss, or an order (an injunction) to stop someone from doing something legally wrong.
In Chapter 8 we examine the Family Courts and Process, a hugely important part of the system that deals with marriage, divorce, cohabitation, disputes between parents over the upbringing of their children, financial support for children upon separation or divorce, local authority powers to protect children and adoption.
In Chapters 9, 10 and 11 we examine the Criminal Courts and criminal process. Prosecutions for crimes are brought by the state against individuals or groups of individuals or organisations such as companies. To be convicted of a crime is a serious matter and, where the crime is a serious one, conviction can result in a life-changing sentence for the convict. Of all prosecutions brought each year, of which there are over 1.5 million, 98 per cent are carried out in magistrates’ courts, with the remainder being held as trials before a jury in Crown Courts.
The state is mighty and powerful and highly resourced, whereas the individual is comparatively weak and poorly resourced. So, over time, rules about what evidence can be heard in court have evolved to prevent the state getting a conviction where the evidence would not sustain a fair conviction. No one, for example, can be convicted on the basis of a confession alone – there must be other credible evidence against them. That rule is to prevent confessions being extracted from suspects by improper means. Today, there are debates about whether defendants in criminal trials have too many rights; we examine these issues in these chapters.
In Chapter 12 we examine the judiciary. Much of modern law comes from democratically passed legislation but these laws will often be given clear meaning only once they are interpreted and applied by judges in law courts (we examine the rule of statutory interpretation in Chapter 3). So, as the judiciary plays such a critically important role in ‘making law’, it becomes very important to analyse and evaluate this body of people, this legal institution. In this chapter we examine the constitutional role of the judiciary and such issues as how judges are selected and trained, and how their conduct is regulated.
In Chapter 13 we examine the role of judicial reasoning and politics. The scientific study of how judges arrive at the judgments in cases is of momentous importance because it is through that route that so much of English law is made real.
In Chapter 14 we examine the jury. The system of the jury trial has ancient origins and has been an indispensable part of the English legal system ever since. It is now replicated in over 50 countries of the Commonwealth and is, according to one theory, the most important element in a legal system that guarantees against the tyranny of the state.
In Chapter 15 we examine arbitration, tribunal adjudication and alternative dispute resolution. Going through the law courts to resolve a civil dispute or family law dispute is almost always a very long, expensive and confrontational event. There is considerable doubt about whether that approach is the best one in all cases. In this chapter we look at the alternative mechanisms to standard law court hearings. These began as adventurous innovations on the outskirts of the legal system, but their success in various ways has given them a progressively larger and more important role within the legal system. Arbitration, tribunal adjudication and alternative dispute resolution are now a central part of the legal system.
In Chapter 16 we examine legal services. For most citizens the legal system’s main manifestation is through its lawyers. This chapter examines and evaluates the systems through which legal advice and representation in court are provided. We examine the different types of lawyer, such as solicitors and barristers, and the changing structure of legal services. Recently we have moved into an era where lawyers can be involved in offering legal services in businesses which combine with other professionals such as accountants, and where commercial companies (even supermarkets) can own law firms.
In Chapter 17 we examine the funding of legal services. Most citizens, of course, do not know any more about the law than they know about chemistry or medicine. It is therefore problematic if they have to try to defend themselves against a criminal or civil action without a lawyer. How should legal services be provided to people who could not otherwise afford to pay for a lawyer? In this chapter we examine the rules of the legal aid system and its changing features in the light of the economic and political environment. In 1950, 85 per cent of the English population was covered by the legal aid system, whereas by 2014 the proportion of people covered had fallen to 25 per cent. The significance and consequences of access to law are covered in this chapter.