Legal System
A. Legal system in the UK
Generally, the study of law distinguishes between public law and private law. But in legal practice in the UK the distinction between civil law and criminal law is more important to practicing lawyers. Public law relates to the state. It is concerned with the laws which govern processes in local and national government and conflicts between the individual and the state in areas such as immigration and Social Security.
Private law is concerned with the relationship between legal persons, that is, individuals and corporations, end includes family law, contract law and property law. Criminal law deals with certain forms of conduct for weeks the state reserves punishment for example murder and theft.
Bastid prosecutes the offender. Civil law concerns relationship between private persons, their rights, and their duties. It is also concerned with conduct which may give rise to a claim by a legal person for compensation or an injunction - in order made by the court. However, these filled up lot tends to overlap with others. For example, a road accident case may lead to a criminal prosecution as well as a civil action for compensation.
Substantive law creates, defines, or regulates rights, liabilities, and duties in all areas of law. It is contrasted with procedural law which defines the procedure by which law is to be enforced.
The head of the constitution
The head of state is the monarch, but the government carries the authority of the crown (the monarch). The Westminster parliament has two chambers: the House of Lords in the House of Commons, which sit separately and are constituted on different principles. The Commons is an elected body of members. Substantial reform is being carried out in the Upper House, the House of Lords, where it is supposed that the majority of members be appointed, with a minority elected, replacing the hereditary peers. There is no written constitution in the UK, but constitutional law consists of statute law, common law, and constitutional conventions.
Jurisdiction
there are four countries and three distinct jurisdictions in the United Kingdom: England and Wales, Scotland in Northern Ireland. All share all legislature in the Westminster parliament for the making of new laws and have a common law tradition, but it has its own hierarchy of courts, legal rules, and legal profession. Welsh and Northern Ireland each have their own Assembly and since 1999 Scottish Member of Parliament have sat in their own parliament. Under an act of the Westminster parliament, They Scottish Parliament has power to legislate on any subject not specifically reserved to the Westminster parliament such is defense for foreign policy. The UK's accession to the European Communities in 1973, authorized by the European communities Act 1972, has meant the addition of further legislative authority in the legal system. The UK is also a signatory of the European Convention of human rights and this has been incorporated into UK law.
Question for practice
Describe some of the distinctive features of your legal system in constitution first as if to foreign lawyer, then to a foreign lay man.
For more information:
www.senate.gov/.
Sources of Law: Legislation
A Background to making a new law
How are laws made in the UK?
The predominant sources of law in the United Kingdom are:
· Primary legislation, known as acts of parliament or statutes, which begin life as drafts called Bills.
· secondary or delegated legislation, such is statutory instruments, by-laws, and professional regulations
New act is passed in order to:
· Update or amend existing legislation
· legislate for new circumstances and enforce government policies
· insert UK compliance with international Law
· consolidate laws by bringing together into one statute all the existing statute on one topic
· purify rules by bringing together all the case law and statutes on a particular subject where the principles are established.
Parliament can enact any law it chooses or repeal obsolete laws which are no longer relevant, and the course must enforce it.
B Early development of a Bill
The government may proceed to initiate a consultative process by the publication of Green paper in which its proposals are set out in an early stage with the intention of attracting public response and comment. The government’s White Papers contain their more definite proposals, although these are often published following consultation or discussion with pressure groups, professional bodies, or voluntary organizations. A Bill does not have to be preceded by a white or green paper, although it may have been presented for public scrutiny, that is examination, in draft form earlier.
C Passing an Act
All Acts must be submitted to both Houses of Parliament in the draft form of a Bill. The legislative process involves three readings in both houses. At the first reading, the title is read to members of parliament; at the second reading, members of parliament debate proposals. Then a standing committee will scrutinize the provisions in the Bills and amend it to ensure that it enshrines the principles debated and approved at the second reading. This is reported back to member of parliaments. At the third reading, the Bill is represented. The bill then goes through readings in the Upper House. The actual drafting of the legislation is undertaken by parliamentary counsel. Finally, a bill must receive Royal Assent from the monarch before it becomes law on the specified date. In fact, this stage has been reduced to a formal reading of the short title of an Act in both Houses of Parliament and is now a formality.
The government bills are introduced by the government; private members Bills are proposed by members of parliament. Both methods may result in Public Acts that govern the general public. Private Acts affect particular individuals or institutions.
Describe the process of making new a law in your country. What are the strengths and weaknesses of the process?
Give three reasons why legislation is an important source of law in Nepal. (Board Exam 2079)
For information
www.lexadin.nl/wlg/legis/nofr/legis.htm
Sources of law: common law
Common law in the UK
The legal system in many countries, including Australia, Canada, Hong Kong, India Jamaica, Malaysia, New Zealand, Pakistan, Tanzania, the USA (except Louisiana), The Bahamas Zambia these based on the common law. Common law consists of substantive law and procedural rules that are created by the judicial decisions made in the courts. Although the legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts.
Essential to common law is the hierarchy of the courts in all of the UK jurisdiction and the principle of binding precedent. That is to say, the decision of a higher court is binding on a lower court. In other words, the decision of the higher court must be followed, and in the course of a trial the judges must refer to existing precedents. They will also consider decisions made in a lower court, although they are not bound to follow them. This means the decision of the lower court is not binding in the higher court. However, rules set by a court of greater or equal status must be applied if it is relevant or pertinent.
During a trial, counsel will cite cases And I don't attempt to distinguish the case at trial from those referred to or, alternatively, argue that the rule at law reasoned And established in a previous case is applicable and should be followed. Hence the term case law. A case law will inevitably involve many facts and issues of evidence. The eventual decision itself does not actually set the precedent. The precedent is the rule of law which the first instance judge relied on in determining the case’s outcome.
Judges in a case may make other statements of law. Whilst not constituting binding precedents, these may be considered in subsequent cases and may be cited as persuasive authority, If appropriate. Since the Human Rights Act of 1998, all posts in the United Kingdom must now refer to the ultimate authority of the European Court of human rights, including all previous decision made by the court.
Law reports
The development and application of the common law system pivots upon the existence of a comprehensive system of reporting cases. The Law Reports, published annually by the council of Law Reporting, are perhaps the most authority and frequently cited set reports, differing from other series of law reports.
(Note: common sources of Law - legislation, precedent, custom)
Question for practice
Explain to a colleague from a different jurisdiction how cases are used and recorded in your legal system.
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The Court System in the UK
Both criminal and civil courts in England and Wales primarily hear evidence and aim to determine what exactly happened in the case. Broadly speaking, the lower courts decide matters of fact and the upper courts normally deal with points of law. In England, simple civil actions, for example family matters such as undefended divorce are normally heard in either the Magistrate’s Court or in the County Courts. This means that some cases are triable in both criminal and civil courts in England.
Judges have different titles depending on their experience, training, and level. A single stipendiary magistrate or three lay magistrates sit in the magistrate’s court. A stipendiary is a full-time paid magistrate who is qualified as a lawyer and a lay magistrate is unpaid and is an established member of the local community. There is no jury in a Magistrate Court. Family cases may go on appeal from the Magistrate Court to the county courts. The county court also hears complex first is instance civil cases such as contract disputes, compensation claims, consumer complaints about faulty goods and bankruptcy cases. Claimants also known as plaintiffs may seek a legal remedy for some harm or injury they have suffered. There are circuit judges and recorders who sit in the County Court usually without a jury. Juries are now rare in civil actions, so normally the judge considers both the law and fact.
Civil Courts
· The County Court or the Court of First Instance
· The High Court of Justice (Queen’s Bench Division, Chancery Division and Family Division)
· The Court of Appeal (Civil Division)
· At top is, The House of Lords
More complex civil cases, such is the administration of the States and actions for the recovery of land, are heard in the High Court of justice, which is divided into 3 divisions. They are the Family Division, Chancery Division and Queen’s Bench. The court has both original, that is first instance, and appellate jurisdiction. From the High Court cases may go on appeal to the civil division of the Court of Appeal, which can reverse or uphold a decision of the lower courts. Its decisions bind all the lower courts. Civil cases may leap frog from the High Court to the House of Lords, bypassing the court of appeal when points of law of general public importance are involved. Appellants must, however, apply for leave to appeal. Decisions of the House of Lords are binding on all other courts but not necessarily on itself. The court of the House of Lords consists of 12 life peers appointed from judges and barristers. The quorum or minimum number of law Lords for an appeal hearing is normally three but generally there is a sitting of five judges.
A circuit is a geographical division for legal purposes: England and Wales are divided into six
A recorder is a part time judge with 10 years standing as a barrister or solicitors.
Criminal Courts
· The Magistrate’s Court
· The Crown Court
· The Court of Appeal (criminal division)
· The House of Lords
(Note: The House of Lords is the highest court, that is supreme court)
About 90% of all criminal cases in England and Wales are tried in the magistrates courts, which deal with petty crimes that is less serious ones. In certain circumstances, the court may commit an accused person to the crown court for more severe punishment either by way of a fine or imprisonment. Except in cases of homicide, children under 14 and young persons that is minors between 14 and 17 years of age must always be tried summarily, meaning without a jury by a youth court. Are youth court is a branch of the Magistrates Court. Indictable offenses, that is, more serious ones such as theft, assault, drug dealing and murder, are reserved for trial in the crown court. In almost all criminal cases, the state, in the name of the crown court, persecutes a person alleged to have committed a crime. In England and Wales, a jury of 12 people decides whether the defendant is guilty of the crime she or he is charged with. The crown court may hear cases in circuit areas. From the crown court, appeal against one conviction or sentence lies to the criminal division of the court of appeal. If leave to appeal is granted by the court, cases may go on appeal to the House of Lords.
Question for practice
Draw a diagram of your court system and explain the court structure to a foreign client who is pursuing an action in your courts. Use your own language for the names of the court but use English to describe their function.
For more information:
www/lexadin.nl/wlg/courts/nofr/courts.htm
Criminal justice and criminal proceedings
Criminal justice
The state prosecutes those charged with a crime. The police investigate a crime and may apprehend suspects and detain them in custody. If the police decide an offender should be prosecuted, a file on the case is sent to the Crown prosecution service (CPS). The Crown Prosecution Service is the national prosecution service for England and Wales. The CPS must consider whether there is enough evidence for a realistic prospect of conviction, and if so, whether the public interest requires a prosecution. They can decide to either go ahead with the prosecution, send the case back to the police for caution, or take no further action. Criminal proceedings can be initiated either by the serving of a summons setting out the offence and requiring the accused to attend court or in more serious cases, by a warrant of arrest issued by a Magistrates Court. Lawyers from the CPS may act as public prosecutors. The Criminal Defense Service provides legal aid, which funds in the service of an independent duty Solicitor who represents the accused in the police station and in court. However, at the end of a Crown Court case the judge has the power to order the defendant to pay some or all of the defense costs.
Categories of criminal offence
There are three categories of criminal offence. Summary offences, tried without a jury, are minor crimes only triable in the Magistrates’ Court. Indictable offenses are serious crimes such as murder, rape, robbery, drug dealing and assault which can only be heard in the Crown Court. The formal document containing the alleged offences, supported by facts, is called the indictment. OK which can be heard in either the Magistrates’ Court or the Crown Court, such as theft or burglary, is triable either way. If the defendant pleads guilty the Magistrates’ Court can either proceed to sentence or commit to the Crown Court for sentence, where more severe penalties are available. If there is no guilty plea, the hood can decide the mode of trial. The person charged may request a trial by jury. If granted, such trials take place in the Crown Court.
Note: Categories of criminal offence:
· Summary offences
· indictable offenses: indictable offences are also known as notifiable offences in the UK
· either way offences
Criminal Court proceedings
the English system of justice is adversarial, which means that each side collects and presents their own evidence end attacks their opponents by cross-examination. In a criminal trial, the burden of proof is on the prosecution to prove beyond reasonable doubt that the accused is guilty. A person accused or under arrest for an offence may be granted bail and temporarily released. However, bail may be refused, For example if there are grounds for believing that the accused would fail to appear for trial or commit case before the jury is sworn in. Prior to the trial, there is a statutory requirement for disclosure by the prosecution and defense of material relevant to the case, for example details of any alibis. ‘Alibis’ refers to people who can provide proof of the accused’s whereabouts at the time of the crime, Or witnesses who may have seen something relevant to the crime. Once a trial has begun, the defendant may be advised by counsel to change his or her plea to guilty, in expectation of a reduced sentence. If, at the end of the trial, the course verdict is not guilty then the defendant is acquitted.
Question for practice:
1. Describe the process of a criminal trial in your legal system as if to a client from a different system.
2. Define criminal proceedings and describe the criminal proceeding in Nepal by using the words given below: (Board Exam 2079)
First information report, investigation, warrant of arrest, detention, bail, indictment, hearing, conviction, reasonable doubt, acquittal
3. What differences do you find between your criminal justice system and the justice system portrayed in the novel ‘Theodore Boone: Half the Man Twice the Lawyer’? Discuss. (Board Exam 2079)
4. What is civil proceeding? Describe the civil proceeding in Nepal by using these terms: claim form, claimant, defendant, admit, form of submission, form of defense, counter claim, judgment. (Board Exam 2077)
5. Describe briefly how a criminal proceeding is generally initiated. . (Board Exam 2077- short question)
For more information:
Civil Procedure
Civil Procedure rules
All cases concerning goods, property, debt repayment and breach of contract are subject to Civil Procedure Rules. The Rules, which came into force in 1999 in England and Wales, made radical changes to civil process in the county court and the High Court.
The judge performs the rule of case manager. The court sets a timetable for litigation, with the parties being under an obligation to the court to adhere to timescales which control the progress of the case. Procedure Rules are supplemented by detailed instructions made by the judge which support the rules known as practice directions.
Proceeding with a claim
most claims are initiated by the use of a claim form, which functions as a summons. The claim form can be used for different types of claims, for example for specified or unspecified monetary sums, or for the claimant to ask the court to make an order. Once a claim has been issued, a copy is served on, that is, delivered to, the defendant with a response back inviting them to either admit the claim, using a form of admission, or to defend it, using a form of defense. The response pack also contains an acknowledgement of service form to confirm receipt of the claim end of counterclaim form for the defendant to use if they wish to claim against the claimant. A defendant must respond within 14 days of service of the particulars of the claim. If the defendant does not respond, Judgment may be given in favour of the claimant. The defendant may be able to get a time extension for filing a reply on defense by using the part of the acknowledgement of service form which states in intention to defend the claim.
Cases are allocated to a regime or track by a procedural judge according to their monetary value. Claims of 5000 or less are allocated to a small claim track while claims up to 15,000 are allocated to a fast track. Most complex claims with a greater value are allocated to a multitrack regime. Fast track directions might include disclosure, when the claimant tells the defense of any relevant documents in their possession. This is followed by inspection, initiated by a written request by the claimant to look at relevant documents held by the defense, and an exchange of witness statements. The multitrack regime is intended to be flexible and does not have a standard procedure. In all regimes, parties are encouraged to settle their differences and for this purpose a stay in proceedings, that is, what temporary halt, maybe agreed. Case management conferences are often conducted by telephone and give parties the opportunity to review the process and make decisions. If a defendant is ordered to pay by a judge and fails to do so, The claimant can enforce the judgment in the Magistrates’ Court.
A question for practice:
Describe the process of a civil claim in your legal system as if to a client from a different system who wants to initiate a claim. Use an example if possible.
For more information:
Beyond the Textbook (For Nepal)
Civil Procedure
Despite the cases contained in the provision of the Court Arrangement, as accordance to section 9 of the Common Code of Nepal, all the cases of individual interest regarding the rights, duties and liabilities fall under civil cases, and dealt under civil procedures.
The legal procedures are the same whether the case is civil or criminal nature. An eminent writer is Salmond described the following five processes for Civil Procedure, which are regarded and followed in the Nepalese legal system, Muluki Ain, Procedural Act 2028, Special Judiciary Act 2031, and Evidence Act 2031 are known as the procedural law. The following steps come under the Civil Procedure:
1. Summon: to call the defendant party in the court is the first process after a case filed by the plaintiff. The notice is issued to the defendant mentioning the subject matter and time to be attended in the court. The notice is called a summon.
2. Pleading: both the parties have the right to power their claim in front of the bench. Plaintiff, the first party, has the burden to prove his/her claim and defendant, the second party also has the right to prove his non-acceptance with the help of evidence against the plaintiff. This kind of procedure of discussion is known as pleading.
3. Proof: the physical evidence presented from the side of parties (plaintiff and defendant) is called proof. For example, witness, written document etc.
4. Judgment: the judicial authority of the court (Judges) gives verdict on a case on the basis of claims of the parties, legal provisions, and examination of the proof. It is the final decision and binding to the parties.
5. Execution: the last process please to execute the verdict, which is made by the court i.e., realization of debts, payment of fine, to keep in the prison etc. Execution is the most important stage in the Civil Procedure because the victim party gets relief or justice, and the defaulter or culprit gets the punishment in reality.
Tribunals: the status and range of tribunals
Tribunals in the UK
The system of course in the United Kingdom is supplemented by a substantial number of tribunals, set up by acts of parliament. Tribunals are those bodies whose functions, like those of courts of law, are essentially judicial. Independently of the executive, they decide the rights and obligation of private citizens towards each other and towards a government department or public authority.
The growth in the number and importance of tribunals is closely related to the development of an increasingly active welfare state with the legislation powering areas previously considered private. Some examples are:
· Social Security Appeal Tribunal
· employment tribunal
· mental health review tribunal
· immigration Appeal Tribunal
· lands tribunal
some tribunals have a significant effect in the areas of law involved. However, they are nonetheless inferior to the courts and Their decisions are subject to judicial review-examination by a higher court of the decision-making process in a lower court.
Composition of Tribunals and procedure
A tribunal consists of three members. The chairperson is normally the only legally qualified member. The other two are lay representatives who usually have special expertise in the area governed by the tribunal, gained from practical experience. The tribunal will also have all the usual administrative support enjoyed by a court: hearing clerks, who are responsible for administering procedures, clerical staff, and hearing accommodation.
The intention of tribunals was to provide a less formal proceeding in which claimants could lodge claims, and untimely resolve they are disputes without the need for legal representation. However, procedures have become more complicated, and cases brought before tribunals are often presented by solicitors and barristers. For example, a case of unfair dismissal - where an employer appears to not be acting in a reasonable way in removing an employee -Could be brought to an employment tribunal. Procedure at that tribunal may include a stage where a government agency tries to broker a settlement so that a claim may be withdrawn. The cost of the hearing is borne by the public purse, that is, Paid from tax revenue, but legal representation is at the cost of each party. Witness statements are normally exchanged before the hearing and read the hearing both parties may question witnesses and address the tribunal. The tribunal can refer to decisions of higher courts before making its decision in a specific case.
A question for practice
Describe how disputes between private citizens are resolved in your legal system. What are some of the advantages and disadvantages of tribunals?
For more information:
www.council-on-tribunals.gov.uk/.
It's nice writing
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