For historic reasons, the legal system
in Scotland differs from that of the rest of the UK. The Scottish
legal system is based on Roman law (ie: a principle applied to a
case), because of the ancient connection with France. After the
Act of Union in 1707, the Scottish system was allowed to stay in
place; however, most of the law is the same and the law laid down
by Parliament is almost always followed in Scotland. The major
area of difference is in landholding.
The system for the rest of the UK is based upon Norman practice,
ie: Case Law. There used to be travelling courts which tried
cases
and established precedents which were then followed by other
courts. This system of precedents still continues.
A typical example is the case of Lloyds Bank versus Bundy. In
this case, a farmer called Bundy had borrowed money from Lloyds Bank
against the security of his farm. The property was in his sole
name, although he had lived at the farm with his wife for many
years. Mrs. Bundy had not signed the bank documents for the loan. Mr. Bundy failed to repay the
loan or make repayments and so
the bank sued to get possession of the farm which it would then sell to
recover its money. Lord Justice Denning (sitting in the highest
appeal court) ruled that, as the wife had contributed to the house over
many years, she was entitled to a share of it and that the bank had no
right to deprive Mrs. Bundy of her home in order to satisfy the bank's
demand for repayments. The bank would have to wait until the farm
was sold at some future date. In other words, the bank's security
was limited to Mr. Bundy's share of the property and, as the property
was indivisible, the bank could not have the farm. The precedent
set by this case sent shivers throughout the banking system as all banks
had lent money to businesses against the matrimonial home which, more
often than not, was in the sole name of the husband and the wife had not
been party to the loan agreement.
This precedent did not require a new law to be passed by
Parliament; the precedent has become the 'law of the land'. So now, if I wish to borrow money from the bank
against my house, my wife has to sign all the documents.
There is also Statute Law, law laid down by parliament, which is
superior to case law.
There are basically two types of law.
Disputes between individuals - business contracts, divorce, libel,
etc.
A plaintiff brings a case against (sues) the defendant(s).
As a result of the case, the plaintiff hopes to be awarded
damages (a sum of money) or obtain an injunction against the defendant
to prevent the defendant taking an action (or repeating a statement.)
It
is a civil offence to drive faster than the speed limit: a criminal
offence to drive in such a way as to endanger life
Breaking
the law - murder, theft, criminal fraud
Cases are brought by the
state - the Director of Public Prosecutions (DPP) and are
referred to as 'The Crown versus the Accused.' (In
Scotland, the cases are brought by the Procurators Fiscal)
A Defendant
is innocent until proved guilty 'beyond all reasonable
doubt.' (In Civil actions, a case is proved on the 'balance
of probablilities' )
If a defendant is found not guilty:
he (she) is acquitted. The decision is called the verdict.
COURTS
IN ENGLAND AND WALES
The lowest
level of court for trying minor offences and the first hearing of
serious cases which are passed up to a higher court. Mostly unpaid
members of the public (local businessmen, Headmasters) act as Justices
of the Peace (JPs). The magistrates are assisted by a
legally qualified clerk.
In London and some of the other major cities,
the main magistrates' courts are held by professional magistrates
called Stipendiary Magistrates as they receive a 'stipend'
or salary (about £70,000 a year). There are about one hundred of
these magistrates, who are qualified solicitors.
There are Magistrates
Courts in all towns.
Offenders under 17 years old are sent to Juvenile
courts.
for criminal offences. In
the larger towns, Judge and Jury (of 12 ordinary men and women).
The Judge decides the punishment according to the law and taking into
account previous offences.
for civil cases: Bankruptcy,
Divorce, etc.
for more serious civil cases and
appeals from County Courts. Three judges without a jury.
for appeals from criminal cases.
The highest court in the land. The Lord
Chancellor presides over Law Lords.
SOLICITORS deal with
property and all forms of law. Some have right of appearance to
appear in courts above the level of Magistrates Courts, but advocacy in
the higher courts is mostly undertaken by:
BARRISTERS usually
specialise in particular areas of the law. Senior barristers 'take
silk ' and become QCs (Queen's Counsel). They wear wigs and
gowns in court as do JUDGES who are selected from barristers.
Solicitors
and barristers earn fees (a senior barrister can earn over £1million a
year and senior solicitors several hundred thousand pounds).
Judges are salaried (£100,000-£150,000), but they get a pension for
which the other two have to make provision for themselves.
A few
solicitors (and barristers) now work for contingency fees in civil cases
where the plaintiff would not be able to afford to bring an
action. The legal team would get a share of the damages
awarded. This is common in the US, but rare in the UK (so far).
