23 November, 2007

A (very, very brief) guide to English law…

Criminal cases

Where a person is accused of a crime, they are not taken to court by their victim but by the Crown on behalf of society. Thus, if Smith is accused of raping Jones, the court case would be R v Smith (the ‘R’ stands for Rex or Regina and when spoken is “Crown”). The reason for this is that the crimes that are being tried are so bad that they offend the whole of society and society is therefore taking action against them.

The ‘leviathan’ of the state interferes in people’s rights to do what they want (like theft) in order to protect the majority. As everyone, even criminals, benefit when there is less crime in society, when a person commits a crime they are breaking an unwritten contract between them and the state and as such the state has the right to punish them accordingly.


Juries are the arbiter of facts in English criminal law. Juries do not award sentences for crimes, they merely rule whether a person, on the basis of the facts put to the jury, is guilty or not guilty.

A jury consists of 12 people drawn randomly from society (now, this also includes lawyers and judges). A jury sits for ten working days. In England, Barristers are not permitted to routinely ‘strike’ members of the jury before the trial unless there is an exceptional reason (such as the juror already knowing the defendant well).

Pros of keeping trial by jury

  1. Fundamental to our concept of justice as a society
  2. Shows society’s disapproval of the action as the defendant is being judged by his peers
  3. More representative than magistrates and judges (who tend to be white, male and middle-class)

Problems with trial by jury

  1. Juries are more likely to return a ‘not guilty’ verdict than judges/magistrates are
  2. Defendants are abusing the system. Of the 70% who elect for a jury trial (over a trial in the magistrates), 90% plead guilty before the end of the trial.
  3. Juries are unable to understand complex matters such as the issues which appear fraud trials.

Innocence and Guilt

A person is completely innocent until proven guilty. A person in prison awaiting trial or a person who has been arrested and has not yet been charged is not at all guilty at that point.

If a person has been taken to court and charged with a crime, if he is found ‘not guilty’ then that is an absolute ‘not guilty’, he is as innocent of the crime as he would be if he had never been charged in the first place.

In criminal cases, the burden lies on the prosecution to prove to the jury or judge that the defendant is guilty beyond all reasonable doubt (90%+).


Damages are awarded in civil law, especially tort law. Tort law is basically ‘compensation’ law. If you were in a car accident, tripped over a paving stone, given bad advice by a doctor or given unsafe equipment at work, you could sue the person who committed the bad act for negligence (a subcategory of tort). The purpose of damages in English law is to put the claimant back in the position they would have been in had the tort never been committed. English law (generally) does not have ‘punitive damages’ where the aim is to punish the wrongdoer. In the USA, punitive damages are often awarded (eg: Erin Brockovich).

Tort law is a form of civil law. The cases are therefore brought between one individual and another, not by the Crown. With the exception of libel, juries do not sit on civil cases in England. In the USA, many civil cases are still in front of juries.

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