The nuts and bolts of law.
Courts are divided into two divisions: the criminal division and the civil division.
Courts go up in tiers (levels).
In the criminal division it is magistrate’s court then crown court, then court of appeal, then the supreme court. Cases can then go to the European Court of Human Rights.
In the civil division the county court is the lowest court. Then there is the high court, then the court of appeal and then the supreme court. Cases can also go to the European Court of Human Rights.
Notice that at court of appeal is the same for both divisions. The same goes for the supreme court and ECHR. The same judges at these tiers hear both criminal and civil cases.
A case will have a short name like
Massingbird v Simmonds . The first named party is the party that moved the action. In this case Massingbird moved the action.
A party is the person or organisation in a case. We say party because it can be one person, more than one person, an organisation or several organisations together.
The second named party (in this case Simmonds) defends the action.
The year of decision is sometimes given in square bracket afterwards. Note it is the year of decision which is not always the year a case started.
Take Fazwi v Zia . If the case began in 1989 but the case was decided in 1990 then the year of decision is given: 1990.
The ”v” is read as ”and” in Commonwealth countries. SO for Fawzi v Zia one says ”Fawzi and Zia.” It is NOT ”Fawzi vee Zia”
The” v” comes from the Latin ”versus” which means against. In the United States people say ”v” or ”versus”. Some people in Commonwealth countries have picked up this American practise and read te letter ‘v’ as ”vee’ when talking about the name of a case or else they say the word ”versus.” In Commonwealth countries this is considered to be a mistake. I know it seems illogical – if you see a ‘v’ you would assume that you should say ”vee” or the word it stands for ”versus”.
So, to recap – Thistlewood v Michaels is read as ”Thistlewood and Michaels”.
Sometimes more than one party moves an action. Moreover, more than one party can defend an action. It could be Vinson, Simons and Haq v Peters, Borough and Fairclough. In this case it would seem ridiculous to read it as ”Vinson, Simons and Haq and Peters, Borough and Fairclough.”
In this situation for the letter ‘v’ one reads ”against”. Yes, the English words against and not the Latin word ”versus.”
It would be ”Vinson, Simons and Haq against Peters, Borough and Fairclough.”
Even if there is only one party on either side one can still use the word ”against” between them. For instance, in the fictitious case of Clyde v Benson it could be read as ”Clyde against Benson” or ”Clyde and Benson” whichever you prefer.
Sometimes there are several parties to an action. You do not need to list them all. Take this fictive case:
Faron, House, Porterfield and ICI v BBC, Whitehouse, Grass and Terrington.
It is acceptable to say ”Farron and others against BBC and others.”
The name of a case is usually in italics. A case may be heard again and again in which case it is called number 1 , number 2, number 2 and so on.
Bow Street Court Stipendary Magistrate v Pincochet Ugarte [Number 2] is an example of this. That is because the Pinochet Ugarte case went through several stages.
People often put the year of decision to help understand the historicity of the case. It also helps to distinguish between cases with similar names.
In criminal cases it is the Crown that moves the action.
Then Crown v Samuel would be an example. The Crown can be written as ”R”. This is because of the Latin word ”regina” meaning ”queen” or the Latin word ”rex” meaning ”king.”
R v Byng is read as ”R against Byng” or ”R and Byng.” It is also acceptable to say ”The Crown.”
It is not the Queen who personally moves the action. Her title is used as a constitutional abstraction to personify the state.
In other countries it is the name of the country that is used in criminal cases.
India v Mahsood.
Personal names are sometimes used because too many people have the same surname and it gets confusing.
There might be R v Smith case already so one would say R v Smith (Frederick) to distinguish it.
Read the Western Law Reports. There are law reports that specialise in certain areas of law.
Court of Appeal reports only deal with reports at that level.
A report will summarise the salient facts and any developments. Millions of cases go on each year. They cannot all be reported. Most of them do not change the law so are not reported. Court reporters do not have time to read up on all cases. Many cases are open and shut. If a case is very straightforward or there is no innovation there is nothing to report.
A gigantic case can involve millions of words of oral submission and written documents. No one can process all of this or remember it. A report can only be a summary of the key points. What was decided and why? Why is that significant?
There are superb resources for looking up more cases. Lexis Nexus is perhaps the best. The name is Latin for ”network of the law.”
OUT OF COURT
There is so much focus on courts that it is easy to overlook the fact that most legal work happens outside of court. Barristers prepare cases by reading their briefs. They have meetings with clients – these are called conferences.
Solicitors meet clients and prepare documents. They write official letters asking for this or that and replying to other letters.
Law firms advise their clients. They make out of court settlements. Solicitors handle property transactions, divorces, pre nuptial agreements and wills. They draw up contracts. None of this usually involves a day in court.
People litigate against each other. That means they try to sue each other. This usually involves solicitors not barristers. People often make an agreement without going to court. This reduces the risk for both sides. The side that pays out pays out less than it would if it lost in court. The party receiving the payment receives less than it would if the case went to court and won. On the other hand that party is guaranteed something. The claimant might lose in court. Moreover, legal costs are kept down.
People are increasingly litigious – eager to sue each other. To sue someone comes from ”pursue” – as in chase them through the courts. This only applies to civil actions.
People who start court actions can withdraw it at any time.
They are addressed as ”Mr Justice Name” or ”Miss Justice Name”. They are not called ”Your Honour” in the Commonwealth.
At a certain level a judge is addressed as ”my lord” even if he does not have the title ‘Lord’ although some judges do have the title ”lord.”
Judges must be respectable and neutral. They approach matters objectively. Judges strive to be unemotional. They must uphold the law and seek to do justice. Sometimes these aims clash. Lord Hoffman said that sometimes he felt very sorry for a party in a case but he recognised that the law and or justice favoured the other party. Therefore Lord Hoffman was duty bound to rule for the party whose case was founded on law and /or rooted in justice.
There is no law against them being politically active but none are. If a judge brings the judiciary into disrepute he or she will be required to retire. This can be even if what the judge did was not illegal. They refrain from making comments on political matters. Politicians should not publicly criticise judges and very rarely do. Judges do not feel they can speak up in their own defence as they strive to avoid straying into the public sphere.
Judges are said to sit ”on the bench.” A recorder is a low ranking civil judge. A recorder can also practise as a barrister one some days as sit on the bench on others.
Above average barristers tend to be the ones appointed to the bench – i.e. made judges. This is because average and below average barristers are not considered good enough to be judges. The real high fliers earn so much that they would make less money if they became judges. Judges are highly paid to reflect their status and erudition. It also makes them difficult to bribe. Only one judge in the last 10 years has been convicted of bribery. No others have even been accused. Judges have a guaranteed income, good holidays, they work reasonable hours and they have a handsome pension. These are the attractions of being a judge. Judges are normally required to retire when they reach the age of 70.
Judges cannot be removed unless they do something disgraceful nor can they have their salaries docked. The purpose of this is to ensure their neutrality. If they could be penalised for returning judgments that were uncongenial to the government then the independence of the judiciary would be gravely impugned.
THE SUPREME COURT.
A panel of judges hears cases in the Supreme Court. The panel hearing a case is called a ‘constitution’. They usually sit as a constitution of five judges. It must be an even number. This is so if they disagree there must be a majority. If an even number heard a case there could be deadlock.
The majority ruling is presented. One judge will give his opinion. He or she will express the view of the others. Once this judgement has been delivered other members of the majority might add something that the first judge did not say. Quite often other members of the majority say ”I have nothing further to add.” If there is a minority then the minority judges also state their opinion. The dissenting judgement is that of the minority.
In court cases barristers normally wear a black gown, a white stirch with a starched collar, a white wig, the black waistcoat and black-grey trousers. Women have the choice of a skirt or trousers so long as the garment is of the right material and colour. When barristers wear this anachronistic garb they are said to be robed.
Judges wear robes and a wig. Barristers and judges wigs used to be made of horse hair. They are usually manufactured from synthetic material.
Judges seldom wear the full bottomed wig. These are only worn for one procession a year. This garners a lot of media coverage which is why there is the misconception that judges usually wear these elaborate wigs.
When a case involves children as witnesses a court makes special allowances. Appearing in a courtroom is daunting for anyone especially a child. A judge may order barristers to appear unrobed in the courtroom. This means that they wear suits as a person would for any professional meeting. Wigs and gowns are not worn. This is intended to make the experience less bizarre and frightening for the children. Sometimes judges allow the children to give evidence from another place and the evidence is presented by video link.
A barrister is a type of lawyer. There are two legal professions – solicitors and barristers.
After a Law degree a person can do the Bar Professional Training Course – (BPTC.)
If someone does not have a law degree she can do the Common Professional Exam (CPE). This is a one year course. Having passed this then the person can do the BPTC. The results in BPTC are oustanding, highly competent, competent and fail.
The BPTC is a demanding course. After passing the exams a person is then called to the Bar. This means he or she has become a barrister. The ceremony is called ”the Call”. The barristers wear their robes and wigs for the first time. Those being called to the bar that day are the callees. A barrister will list her year of call as 1992 – for example. That means that was the year she became a barrister. Then a barrister will say how many years call she has – as in how many years she has been a barrister. Some jobs are available only for those of at least 10 years call. On a barrister’s CV it might say ”Call: 2004” as in she was called to the bar in that year.
INNS OF COURT.
There are four Inns of Court. These are Grey’s Inn, Lincoln’s Inn, Middle Temple and Inner Temple. All are based in London. A barrister must belong to one of the four Inns even if he or she practises in another part of England or in Wales.
The Inns are all the same standard. They all do all types of law. It is not the case that one is better than another.
In the Middle Ages serjeants at law (barristers) set up these inns. Law students lived and dined in the inns. So did some serjeants at law and barristers. They would also arrange for accommodation for lawyers or judges travelling around the realm. The word ‘temple’ in the name of two of the inns alludes to when Knights Templar stayed in these inns on their way to the Crusades. There was an Outer Temple centuries ago but it no longer exists.
Each inn has its owning dining room, bar, library chapel and even sports ground.
Each inn is divided into dozens of chambers. A chamber is like an office. There might be one barrister in a chamber – this is highly unusual. Usually there are thirty of forty barristers in a chambers. Every chamber is part of an inn of court. Even if a chambers is in Newcastle or Cardiff it is nominally part of one of the inns of court in London.
Barristers share the services of clerks (secrtaries). The clerks are usually male. Clerks deal with money and solicitors. There are normally several clerks in a chambers. The head clerk is well paid. The others start on minimum wage.
Barristers then try to get pupillage. This means being an assistant to a fully qualified barrister. The qualified barrister is called the ”pupil master.” A pupil will do a ”six” and then another ”six”. A ”six” is a period of six months as a pupil to a barrister. At the end of a six the pupil master is asked to sign a certificate of competence for the pupil. These are invariably signed. It is so extremely difficult to get a pupillage that people very rarely fail in them.
A potential pupil should apply to a chambers that specialises in her or her preferred area of law.
Pupillages are very oversubscribed. Many able candidates are rejected. There are very demanding interviews for pupillages.
After two ”sixes” a barrister applies for tenancy. A tenancy is a place in chambers.
This is the real stumbling block. There are three times more candidates for tenancy than there are tenancies. Anyone without a first class degree and an outstanding result in the Bar course can more or less forget it.