Essay: Composition and Roles of Judiciary in the UK Legal System

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Law and the Legal System
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Contents
Essay: Composition and Roles of Judiciary....................................................................................3
References........................................................................................................................................9
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Essay: Composition and Roles of Judiciary
The judicial system of the United Kingdom (UK) is one of the most renowned systems of
judiciary throughout the world. It has a well-organise, impartial and independent judicial system.
It has been working effectively and efficiently as the guardian of citizen’s rights and liberties.
The Judicial system of the UK has some exceptional features in addition to the unique
organizational pattern which may not be found anywhere throughout the globe. The British
judiciary provides impartial and quick justice which has made it a model judicial system in the
world. There are three separate legal systems operating in the UK (Bar-Siman-Tov, 2015). These
are England and Wales, Northern Ireland and Scotland. The main factor that is common among
all the legal systems in the UK is the absence of a complete code as all unwritten or common law
or legislation are part of the ‘Constitution’. Unlike many other countries, the British legal system
has no codified criminal or penal code but rather the focus of the legal system is on the
independence of judicial and prosecuting authorities. This essay aims to elaborate more on the
salient features of the British Judicial System.
In the English Legal System, there are four main types of law applicable. These laws include
civil law, criminal law, statute and common law. Civil Law is a codified system of laws which
primarily focuses on protection of private rights of citizens of the UK and offer them legal
remedies in circumstances involving disputes of any nature. Civil law covers various areas of
law including tort, property law, family law, contract law and many more. However, civil law
does not deal with matters of criminal or political nature. The main aim of civil law is to ensure
that the party whose rights have been breached gets justice (Loughlin, 2018). It ensures that the
breached party is compensated to bring it to the position where the physical or monetary loss
caused is reversed. In civil law, the suit is bought by the party whose rights have been breached
and such party is called the plaintiff. The party against whom the suit is brought is called the
defendant.
Criminal Law is another area of law which deals with actions of an individual which are
otherwise prohibited in the society. The crimes are defined under this law and the criminal is
prosecuted by the State. The suspected or accused persons are bought on trial under this law and
if found guilty, they are imposed with penalties and imprisonment. The main objective of
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criminal law is to protect and promote a safe environment for all the citizens and secure the
interest of people in society (Murkens, 2018). It aims to main social order and stability in society
and prohibits the conduct which is unjustifiable. The conduct which may cause substantial harm
to people in society is also prohibited under this law.
The third type of law is Common Law. It is the area of law which is originated from the judicial
decisions of judges of court or tribunal. These laws are uncodified but are valid and enforceable
as any other statutory law. When the codified laws or statutes are not clear on any subject or
when there exists no law on any matter, then, then the judges enact the common law and all the
junior courts of the enacting court are bound by this enacted law. Common law is also known as
precedents and the enforceability of this law is based on the doctrine of ‘stare decisis’. This
doctrine binds the courts to follow the precedents, if any, in matters of nature similar to the one
in which the law was primarily enacted. In the UK, common law holds great significance.
Almost the entire legal system of the UK is based on Common law (O'Connor, 2012). For
example, in the UK, ‘outraging public decency’ has been recognised as an offence under
criminal law. The offences like ‘upskirting’ have been punished by the authorities based on this
law. Upskirting is an offence in which a person takes the pictures of private parts of an
individual, without his or her permission, by placing a camera between his or her legs. However,
this common law has acted as a motivation to enact new legislation and recently, Voyeurism
(Offences) Act has been enacted by UK Parliament under which ‘upskirting’ has been
recognised as a crime.
The last and most significant type of law is the Statute. In the UK, the Parliament is responsible
to enact a law with the help of its two houses, House of Lords and House of Commons. Both
these houses pass a bill and when this bill receives the accent of Crown, it becomes law enacted
by Parliament. These are the codified laws and prevail over any other law in the UK. In other
words, the laws enacted by Parliament are called statutes or Legislations. These take the form of
‘Act’ after enactment and the Act can be divided into two categories, namely, Public Law and
Private Law. The areas covered under Public Law affects the public at large and the areas
covered under Private Law affects the rights of an individual citizen (Brouwer, 2018).
Year after year, the enforcement of criminal laws has been seen as a challenging national
problem. To ensure that the enforcement is made more efficient, the authorities rely on various
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principles relating to criminal law. These principles help the authorities in making better and
informed decisions and making the decision-making process more reliable and justified. Judicial
Precedent is a principle of criminal law. According to this principle, there are various rules
established in cases decided by authorities and the judges in subsequent cases of similar nature
must ensure that the precedents are bound and taken into consideration to make a more effective
decision. These precedents can further be divided into the binding and persuasive precedent.
Binding Precedent is also referred to as mandatory precedent. This precedent binds all the
inferior courts to follow the ratio decendi of the decision given by their superior courts or courts
with higher authority when the facts of the case are similar to the case in which precedent was
established. The judicial made law is recognised by this precedent. However, the courts falling
under the same jurisdiction are only bound by this doctrine (Flatley, 2016). Another type of
precedent is Persuasive Precedent. This is a principle which focuses on the precedents
established by inferior courts and states that the superior courts are not bound by any precedent
established by their inferior courts. However, reference can be taken from such precedents for
decision making. These precedents are useful for providing the judges of higher courts with
guidance and information on the matter to be decided.
The principle of applicability of precedents relies on another principal. Such other principal is
called Court Hierarchy. The term hierarchy refers to the court structure which is established on
the basis of their jurisdictions, levels of authority and areas of responsibility. It is considered as
the most essential component of the entire English Legal System. For the purpose of the
administration of justice, the court hierarchy provides a clear structure and clarity. This structure
allows the parties to appeal in circumstances when they are not satisfied with the decision.
Further, it also allows the courts to function the doctrine of precedents effectively as the position
of higher and inferior courts is clearly defined by this principle (Peay, 2015).
For making a decision under criminal law, the judges rely on the intention of parties and the
actions performed by them for the crime to happen. In legal terms, these are the principles knows
as ‘mens rea’ and ‘actus rea’. Both these terms are Latin terms and mean ‘guilty mind’ and
‘guilty act’ respectively. Mens Rea refers to the intention of an accused person with reference to
the crime committed. For holding an accused guilty of a crime, the judges aim to identify if the
person accused had an intention of committing that crime or it happened due to any other factor.
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The knowledge of an accused person with respect to the crime also holds great significance here.
It is identified that whether the person was aware that his actions or lack of actions may result in
the crime. Therefore, in order to decide the criminal matters, this principle is highly significant
(Clough, 2016). Further, Actus Rea is considered an external factor of the crime. This principle
refers to the actions of an individual which may result in a crime for which the individual is
accused. For punishing an accused under criminal law, his ‘actus rea’ must be proved ‘beyond a
reasonable doubt’ and it is also important that the actus rea is combined with the ‘mens rea’. A
person is not punished under criminal law unless he had an intention to commit the crime,
subject to certain exceptions.
In addition to the above-discussed principles, there are other principles called the burden of proof
and standard of proof which are essential for deciding criminal matters. In criminal law, the party
accusing an individual of committing an offence shall be under an obligation to prove the
accused person guilty of the crime. Such an obligation to prove the guilt of the accused is called
a burden of proof. The main logic behind this principle is that one party is believed to be
innocent by the court and another party is required to prove the claims made by it. Further, the
principle of the standard of proof can be defined as the degree of evidence and the level of
certainty which I required to hold the accused party guilty under both civil and criminal law. The
standard of proof can be divided into three categories including beyond a reasonable doubt, clear
and convincing evidence and the preponderance of the evidence (Hambly, et.al., 2018).
Under the UK legal system, mainly, there are two types of courts which deal with criminal
matters. These courts are Magistrate Court and Crown Court. Magistrate Courts are the courts
which have primary jurisdiction to hear criminal offences. The criminal offences, which are of
extremely serious nature are heard by Crown Court. There are three main types of offences
which are dealt with by the Magistrate Court. These offences include summary offences, either-
way offences and indictable offences. Summary offences are crimes of least serious nature such
as offences relating to public order or driving. Either-way Offences are the offences in which
both Crown Court and Magistrate Court have authority to hear. Here, the defendant has a choice
to choose the court in which he wants his case to proceed. Such offences are matters relating to
theft, stolen goods and such others (Flatley, 2016). Indictable offences are the offences of serious
nature which are transferred by Magistrate Court to Crown Court for hearing. Such offences
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include manslaughter, rape, murder or robbery. The Magistrate Court has authority to order
sentences including 6 months imprisonment, fines or community sentence. In Magistrate Court,
the judgements are given by a Magistrate who is the civil officer responsible for law
administration. Other authorities involved are laypersons and legal advisors. Lay persons are the
persons with lack of training in any particular subject or area and Legal Advisors are the legal
professionals appointed by Government or organization to assist them on legal matters.
In Crown Court, four types of offences are heard. These include indictable offences, either-way
offences, appeal cases and the cases based on the seriousness of the offence. Indictable offences
are the ones transferred by Magistrate Court due to their serious nature. Either-way offences are
the ones in which the defendant chooses Crown Court to be heard. Appeal Cases are the matters
in which the decision of Magistrate Court is appealed against and the offences based on their
seriousness are the ones in which the accused is held guilty by the Magistrate Court but the
punishment for the offence is beyond the jurisdiction of Magistrate Court and therefore they are
transferred to the Crown Court for sentencing. Such offences can further be classified into three
categories including Class 1, 2 and 3. The offences in Class 1 are most serious in nature and are
heard mostly by the High Court. Examples of such offence are murder or treason. Class 2
offences are offences such as rape and are heard by Circuit Judge. Class 3 offences are offences
such as kidnapping or robbery and are heard by circuit judge or recorder (Bell, 2015). The
Crown Court provides various sentences including imprisonment or community services.
There are various terms that can be referred to in the judicial system. These terms include judge,
jury, judicial independence and judicial immunity. A judge is a person who undertakes the
responsibility of deciding on any dispute based on applicable principles of law and the laws itself
impartially in an open court. A jury is a term used for 12 people who are randomly chosen from
the public and are given the responsibility for deciding upon the matter. The term judicial
independence means that the judge must not be influenced by any governmental authorities and
must be free from any interference. Judicial Immunity provides protection to the judges from
any liability that may arise as a result of their judicial actions (Judicial Office, 2016).
When a person is aggrieved by the decision made by judicial authorities, he or she may approach
the court of higher authority for a more satisfied decision. Such approaching to higher authority
is called appeal. In criminal courts, the route for appeal begins from the Magistrate Court.
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When a person is aggrieved by the decision of the Magistrate Court, he or she may approach
Crown Court. For matters decided by Crown Court, the appeals can be made in Court of Appeal
(Criminal Division), after permission from the Judge is sought. If the decision of the Court of
Appeal is also not satisfactory, it can be appealed against in the Supreme Court. As per the
procedure for appeal, the permission to make any appeals must be sought in Form NG and for
the appeals to Supreme Court, Form SC must be used. Then, if the appeal is allowed by the
court, the matter is heard and decided upon. However, in the event of rejection for the request to
appeal, another request can be made in an oral hearing. The parties shall have the right to
appeal if the permission is granted by the Court. Such appeal must be made by parties within 28
days of sentencing or conviction, as the case may be after the permission is granted. For the
matter, not appealable, the parties can file leave to appeal to the appellate court, as a matter of
right (Anthony, 2015).
Therefore, based on the above-discussed facts, it can be concluded that the judicial system of the
UK is highly effective and efficient in deciding matters. It is well-organised and highly relies on
the defined structure. The UK legal system may not have a written constitution but has
established law and procedures to ensure that the rights and interests of citizens of the UK are
protected and guaranteed. In additions, the legal system is continuously developing to improve
its efficiency (Dandurand, 2014). It is using technology to make its processes accessible to a
larger population and to speed up the process.
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References
 Anthony, G., 2015. Administrative Justice in the United Kingdom. Italian Journal of
Public Law, 7(1), 9-33.
 Bar-Siman-Tov, I., 2015. The role of courts in improving the legislative process. The
Theory and Practice of Legislation, 3(3), pp.295-313.
 Bell, B., 2015. Fighting Crime: Can the Police do more with less? (No. 031). Centre for
Economic Performance, LSE.
 Brouwer, R., 2018. On the Meaning of System in the Common and Civil Law Traditions:
Two Approaches to Legal Unity. Utrecht J. Int'l & Eur. L., 34, p.45.
 Clough, J., 2016. Criminal Law Legislation Update: As at 25 October 2016. The Journal
of Criminal Law, 80(6), pp.389-390.
 Dandurand, Y., 2014. Criminal justice reform and the system’s efficiency. In Criminal
Law Forum, Springer Netherlands, vol. 25 (3-4), pp. 383-440.
 Flatley, J., 2016. Crime in England and Wales: Year ending December 2015. London:
Office for National Statistics.
 Hambly, O., Rixom, J. and Singh, S., 2018. Hate Crime: A Thematic Review of the
Current Evidence. Home Office.
 Judicial Office, 2016. The Judicial System of England and Wales A visitor’s guide.
Judiciary.uk. [Online]. Available at:
https://www.judiciary.uk/wp-content/uploads/2016/05/international-visitors-guide-
10a.pdf [Accessed on 5 March 2019].
 Loughlin, M., 2018. The British constitution: thoughts on the cause of the present
discontents. London School of Economics and Political Science.
 Murkens, J.E.K., 2018. Judicious review: the constitutional practice of the UK Supreme
Court. The Cambridge Law Journal, 77(2), pp.349-374.
 O'Connor, V., 2012. Common law and civil law traditions. INPROL.
 Peay, J., 2015. Mental incapacity and criminal liability: Redrawing the fault
lines?. International journal of law and psychiatry, 40, pp.25-35.
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