A description of the precise procedures that go on in British courts is something for a legal textbook. For those who aren't British, note that it's fairly similar to the American system - an adversarial system with prosecution and defence. This shouldn't be surprising, as the United States inherited The Common Law
from Britain, and many states passed statutes of reception
: laws that more or less said, "The way the law works in England is how it will work here, unless our statutes or constitution say otherwise." It has many of the same tropes, Amoral Attorney
for example. There are differences.
We will be focusing on the criminal aspect here, since that's what the media does. Apparently, tort and contract cases aren't as interesting (never mind that torts are basically private prosecutions in disguise, and both tort and contract cases often involve some of the most hilariously awful behaviour
This applies to England and Wales. Scotland and Northern Ireland do things differently - see below. Some of this stuff applies to other parts of The Commonwealth
But continental law countries, such as France
, have a vastly different system.
Types of Criminal Courts
There are two basic types:
- Magistrate's Court: Less serious offences. Magistrates hold the title JP, Justice of the Peace.
- Crown Court: The serious cases. There are a number of these around the UK, but the most famous is the Central Criminal Court, on the site of the old Newgate Gaol. It is far better known as the Old Bailey (which is the name of the street it stands in). This is usually used for Greater London cases, but others can take place there on certain occasions. It has 20 court rooms.
This is the extent of criminal trial courts; however, some of the "civil" courts might appear in matters related to criminal prosecutions. The Crown Court is, with the High Court of Justice and the Court of Appeal, one of the Senior Courts of England and Wales; High Court judges sit on the Crown Court (about which more below). The High Court's Queen's Bench Division, whose main duty is hearing civil cases in "law" (contract and tort, basically; the latter overlaps with crime a bit, since some crimes are also torts), also serves as a supervisory court, which includes hearing some criminal appeals from the Magistrates' Court and Crown Court. The High Court's Chancery Division and Family Division are Exactly What It Says on the Tin
, with the Family Division having far more to do with the Crown Court's criminal business (since criminal trials often end up causing family trouble; not a few British legal dramas have made occasional forays into its precincts) and thus appearing in media far more often than Chancery (which mostly involves corporations and rich people suing each other over property, as well as tax cases).
Unlike in some US states and other jurisdictions, cameras are not currently allowed in a courtroom, either video or photographic. What you see on news reports are computer re-enactments (using virtual cardboard cutouts, essentially) and drawings of those involved. You can't actually do the drawings in the court itself (also unlike the United States, where there's usually a court artist scribbling away somewhere in the room), so notes are taken and scenes drawn later.
(The Court of Appeal is now televised with a delay and the government is looking into expanding this to the Crown Courts; in addition, a Scottish criminal trial was recorded for a documentary on Channel 4.)
You also do not get the somewhat lurid speculation on new evidence that you find in the US. This is because of the rules of contempt of court. When a paper reports a criminal court case, it usually has to break out the Newspaper Speech Marks
, so you'll get things like "Smith 'spent hours on porn sites'" or "Mandy's 'secret drug deals'".
Newspapers will not give an opinion on the case during the trial, either in headlines or editorials. They cannot discuss the past record of the defendant and the jury are not told this either.
In rape cases, victims have the right to anonymity for life, which has been the case since 1976 - they can choose to waive this right. This does not, however, apply to the defendants (although it did between 1976 and 1988). This has caused some controversy in recent times when people have made up their accusations for malicious reasons. There does not appear to be an easy way to solve this - convictions are rare enough in rape cases as it is without the fear of being publicly exposed.
Children involved in a case also have a general right to anonymity, often being described as "Boy A" or "Girl C". However, there have been a number of cases where a judge has removed their anonymity after a conviction, mostly in cases of extreme depravity (the Jamie Bulger case, for example). This also applies for the rest of their lives. Anonymity can also follow for defendants in familial child abuse cases where identifying them would mean identifying the victim.
Once the case has concluded and the person is found guilty (if that is the case), the restrictions are largely off. You can happily describe Mr. Smith as an evil sicko who needs castrating, comment on his past, accuse the police of failing to do their job properly, etc. This was particularly noticeable with the high profile murders of Holly Wells and Jessica Chapman. As soon as Ian Huntley was convicted it turned out he had committed a whole string of prior assaults.
Breaching these rules puts you in contempt of court and is a criminal offence.
Sentencing is not always immediate; the judge will often ask in serious cases for victim impact statements and/or medical reports. The traditional conclusion in the event of a guilty verdict in a high-profile is the prisoner being driven out of the court in a prison van while photographers try to take photos through the tinted windows.
Wigs, Robes and Accents
The most obvious feature that you'll see in a British court case on screen are the outfits. Let's bring over a famous fictional US lawyer, Perry Mason
. If he was a QC (see below) defending a case in the UK, Perry Mason would be wearing a silk gown over his suit, a black coat and waistcoat, plus a short horsehair wig (these go for at least £300 new). Clerical bands are also worn around stand up collars (for men) or flat ones (women). The bands are often incorrectly portrayed as huge great flappy things.
More junior lawyers are in fact called junior barristers and wear the same attire as their senior counterparts, except that their gowns are not made from silk but from an "inferior" material like wool, cotton, or polyester.
The most noticeable figure is of course the judge. The precise form of address differs, but broadly corresponds to the Judge's colour of attire. What follows is complicated, but that's the British Legal System for you. It takes fancy dress VERY seriously.
- Black: Appeal Court Judges usually sit in threes and wear a black silk gown like QCs. Their wigs are not as curly as a barristers though. They are called 'My Lord' or 'My Lady'. Officially they are 'Lord Justices' and hear criminal appeals in the 'Queens Bench Division'.
- 'Recorders' also wear black. These are part time judges who are also practising barristers; they are usually QCs. They are called 'Your Honour' and look like Appeal Court Judges, but wear the curly wig. Invariably hear shop lifting cases.
- Red: High Court Judges. Sit alone hearing mega serious criminal trials with a Jury. Known as 'Red Judges' they have elaborate fur cuffs and resemble Father Christmas when they've got their glad rags on. Typically drawn from the ranks of distinguished QCs; historically, this required nobbling the Lord Chancellor and his aides. Called 'My Lord' or 'My Lady'. Officially "Mr/Mrs Justice (surname)"
- Purple: Circuit (or 'circus' for a laugh) Judges who hear anything from theft to serious violent crimes with a Jury. Usually retired Barristers who couldn't make QC and have given up on the High Court Bench, and want a nice pension.
- Suits: Magistrates who hear most criminal cases, which tend to be contested speeding tickets and the like, do not get to dress up and instead wear suits. Barristers call them 'Sir' or 'Madam' whilst solicitors often call them 'Your Worship'. All lawyers in magistrate courts wear suits as well. Horse hair is noticeably absent. Magistrates sit in threes and are lay people like juries, only they are sad enough to volunteer for the (unpaid) job; in olden times a local businessman might do this.
- District Judges (or stipendiary (stipe) judges) are solicitors or barristers who sit full time in suits hearing the slightly more serious cases in the Mags courts. They are 'Sir' or 'Madame' to you.
- The Supreme Court of the United Kingdom—the country's highest appellate court (except for Scottish criminal cases, because Scotland is weird like that)—also sits in suits. This practice is derived from the tradition of its main institutional predecessor, the Appellate Committee of the House of Lords, which adopted the rules of dress of that chamber a long time ago. In theory, appeals to the House of Lords were heard by the Appellate Committee in the same way other Lords committees had hearings on ordinary legislation: you'd have the hearing, the committee would write a report, which would be delivered to the whole House and voted on; this led in certain eras to some strange things ending up reported (for instance, the opinion in the famous tort case of Rylands v Fletcher, like other Lords cases at the time, was delivered as a speech to the House). In practice, the whole House never rejected an Appellate Committee decision, but the theory of it led to the Law Lords (the members of the Committee) wearing suits during their proceedings like the other Lords (except during ceremonial occasions, where Law Lords wore and Supreme Court Justices wear fancy robes—again like many of the other Lords do). When the Supreme Court was established, the newly-minted Supreme Court Justices—who had been the Law Lords up until then—saw no reason to change their habits.
Judges used to have long (full bottomed) wigs, but these are now used only for ceremonial occasions. Any Judge sitting at the Old Bailey
is referred to as 'My Lord/Lady' regardless of their seniority - unless the TV show or film in question is inaccurate. Most are. A black cap was worn over the wig when pronouncing a sentence of death, both to show mourning, and to shield the judge from the wrath of God (who is the only person with the power of life and death). Despite the final abolition of the death penalty in 1998 (though it had been de facto
abolished since 1965), these are still part of a judge's official regalia, and are worn at state events.
The whole court dress thing can be dispensed with in very hot weather or if minors are being tried, since it could be intimidating.
Gavels are not used, contrary to popular portrayal. British courts are notably more orderly than their American counterparts. The sight of men in horsehair can intimidate the most hardened criminal and the most irascible plaintiff. In addition, while barristers can object to a line of questioning, they do not yell "Objection!"
The layout of a court is different to that of American ones. In US courts, the defendant sits with his or her defence team at the front, but in Britain, they sit nearer the back in a separate 'dock' - with the dodgy acoustics of some courts, you may need a hearing loop. This dock will often these days be surrounded with security glass and contain one or two security guards should the defendant need to be removed. In some cases (such as the Old Bailey), the remand cells are below the courts and accessed by a set of stairs from the dock; hence the expression "getting sent down".
In Britain the court will rise when the Judge enters the room, and then he will nod his head in the direction of the lawyers, who will respond. Bowing one's head to the judge when you enter or leave the court is also customary. This is more about bowing to the Queen's Justice than to individuals. Only legal folk generally do the bowing bit. If you don't stand you will get shouted at though.
The accents thing? Judges for quite a long time were mostly from highly upper-class backgrounds, mostly white and mostly old. This has led to a number of notable cases of judges (apparently) showing a large-scale ignorance of popular culture:
- One asked who "Gazza" (Paul Gascoigne) was. He is a famous English footballer with 57 England caps to his name, meaning that he played in the English national team 57 times.
- When the judge was told that Gazza was a footballer, he asked, "Association or Rugby?" He later said, "Isn't there an opera, La Gazza Ladra?"
- Another, in a libel case involving British athlete Linford Christie, had to have the expression "Linford's lunchbox" (the bulge in his Lycra shorts, being his you-know-whats) explained to him.
- Perhaps most famously - although possibly apocryphally - a judge in the 1960s had to have it explained to him that the Beatles were "a popular beat combo".
However, these sorts of "silly" questions are not always the result of the judge simply being out of touch. Sometimes a judge may ask a question to which he already knows the answer, for reasons such as:
- The court cannot assume the jury is familiar with the subject matter, no matter how popular it may be.
- Court records are historical documents. What might be bloody obvious right now may well be a minor footnote of popular culture twenty years later (or have vanished entirely, few kids in the playground these days would be familiar with the term Linford's Lunchbox for example), thus it needs to be explained for the sake of future readers (since the UK is a precedent-based judicial system this is rather important), and also noted in case of an appeal at a later date. note
See Gaol Time
Britain used to employ the "double jeopardy" rule, but has now removed it—a case may be re-tried if significant new evidence comes to light. This has only happened twice so far, so the rule remains effectively in force.
There are some terms that non-Brits will not be familiar with. The courts themselves decided that Brits themselves found many of them strange and changed some of them in 1994.
- Barristers (advocates in Scotland) - argue a client's case in court and provide solicitors with legal advice. To become a barrister you have to be "called to the Bar" (the Bar being the professional body for barristers) and be a member of one of the Inns of Court. There are now just four active in London- Lincoln's Inn, Gray's Inn, Inner Temple and Middle Temple. These are rather akin to Oxbridge colleges and can all be found near Temple Tube station.
- There is also one in Stroke Country and another in Ireland itself.
- Inns of Court exist in the US, but they are far less prominent and you can be in a Bar Association instead.
- Inner Temple has been used as a filming location in a number of fictional dramas- such as The Brief, The Da Vinci Code and The Bill. The website has a bunch of rules on the matter.
- If you're a good enough barrister, you can be appointed King's or Queen's Counsel, called "taking silk". This is now done by a nine-member panel, rather than the Government. A famous QC is Cherie Booth, better known by many as Cherie Blair, the wife of the former Prime Minister Tony Blair.
- In fact, "the bar" was originally a barrier between the tables where the students ate, and those of the barristers. A student was required to "eat your terms". That is, dine at the Inn some number of times, for three years; these meals also included lectures and discussions on the law. If and when the senior lawyers decided he was acceptable he was invited to join them beyond said barrier.
- Certain restrictions apply to barristers, the most notable of which is that they cannot form law firms. They may practice as independent practitioners (which is what most barristers do) or as salaried employees of a company or public institution.
- Although independent barristers are forbidden from forming firms, they do engage in professional associations called chambers. Chambers charge a certain amount for the right to set up shop, and in exchange the funds are used to pay for the clerical work (e.g. finding briefs and billing). In that sense, they do resemble law firms; however, different members of a chambers are not liable for the others' losses (as they are not partners), and may (and often do) appear against each other at trial or in other oral argument.
- Of the public institution kind, the most famous "employed" barristers are probably those of the Crown Prosecution Service, who are responsible for all criminal prosecutions in England and Wales.
- Somewhat interestingly, although barristers cannot form law firms, they may be retained on salary by a firm of solicitors. So they can work for a law firm but not be part of one. Yes.note
- Finally, traditionally, clients were not allowed to approach barristers directly—they could only consult with a barrister after hiring a solicitor, who would refer the client to the barrister. New rules have loosened this a bit, but not by much.
- Solicitors - Provide legal advice. They also handle the day-to-day, non-controversial work of the law: drawing up documents (contracts, wills, business documents, etc.), settling or mediating disputes without litigation, negotiating business deals, doing tax and estate planning, and so on and so forth. They are generally responsible for collecting the evidence in the case; in civil cases, this generally means that solicitors are in charge of the process of disclosure (the British term for what is called discovery across the Pond), which can be rather important (if you find the right evidence, you might force a favourable settlement, or help the barrister win without a trial). If the case continues to trial, the solicitor writes the brief to the barrister and the court and mediates between the client and the barrister, providing instructions to the barrister and advice to the client. Separate from a barrister in the UK system, unlike in the US.note
- Solicitors can appear in court too, albeit at the very lowest levels for minor cases. With enough training and experience they can also qualify to appear in higher courts (these are called "rights of audience"), in which case they're called Solicitor Advocates. So, what is the difference between a Solicitor Advocate and a Barrister, you might ask? Not much.
- Before the courts were all mashed together (partly in 1857, completely in 1873) there were six different flavours of lawyer. Barristers, the equity court (Chancery), serjeants in common-law (King's Bench, Common Pleas, and the Exchequer), and advocates in admiralty and church courts (5 different courts). The barristers worked with attorneys, the serjeants with solicitors, and the advocates with proctors. Some of these show up in 19th century novels.
Americans familiar with the legal profession should recognize the difference as being essentially the same as that between a litigator (=barrister) and a transactional lawyer (=solicitor), although there are numerous differences (for instance, the breakdown of work isn't as clear-cut in American criminal work, plus solicitors do some non-argument litigation work like research and writing). A better way to think of the difference between solicitors and barristers for people less familiar with the law is the difference between a primary-care physician and a specialist medical doctor (surgeon or physician). A primary-care physician is a generalist whose job is keeping you out of hospital, by giving you check-ups, telling you how to live more healthily in general terms, and providing simple interventions for minor problems; a solicitor is a generalist whose job is to keep you out of court if at all possible, by making sure that your legal affairs don't push the boundaries of the law in general terms, telling you how you ought to act if you don't want to get sued, helping you settle if you do get sued, and gathering evidence for trial if settlement doesn't work out. A specialist doctor is, well, a specialist, who usually handles only one particular kind of medicine, specifically handling just the cases severe enough to require either hospitalisation or extensive treatment, and generally cannot be approached directly by a patient—they must get a referral from a primary-care physician. A barrister is a specialist, who usually only handles a fairly narrow type of case, specifically handling just the cases severe enough to be litigated in court, and generally cannot be approached directly by a client—they only work on referrals from a solicitor.
Court Room Terms
There are some specificially British terms used inside the courtoom.
Differences in Scotland
- "My Learned (prounounced Learn-ed) friend" is how barristers will refer to each other. They will always use the third person, anything else is considered rude. Sometimes 'learned' is omitted in lower courts.
- Seeing as how solicitors are only allowed in the lower courts, they only ever use "my friend" to refer to each other.
- The title "learned" is actually quite precious to barristers, as when barristers are elected to the House of Commons (and they often are), they are entitled to be called "my learned friend" (by their party—and now coalition—colleagues) or "the learned member for..." (by their opponents) rather than "my honourable friend" or "the honourable member for...". This even extends to current and former members of the Cabinet, the Privy Council, and others (including increasingly junior parliamentarians thought worthy enough of note, such as Frank Field under Tony Blair's leadership) entitled to the much loftier style "right honourable", who (if barristers) are referred to as "my right honourable and learned friend" or "the right honourable and learned member for...".
- "If your Lordship pleases" is the equivelent of the American "If the Court pleases". Any reference to the Court is usually replaced with the Judge's title in the UK, likewise references to The State or The People will be replaced with reference to the Queen or the Crown.
- "Would this be a convenient moment?" spoken to a lawyer is a judicial euphemism for "Please shut up now it's lunch time"
A lot. For starters, there are three types of basic criminal courts:
- Justice Of The Peace Court: Only deals with very minor offences, and may have a lay judge.
- In Glasgow, some Justice Of The Peace courts are presided over by "stipendiary magistrates", who are legally qualified solicitors or advocates and sit alone within the Justice of the Peace Court in Glasgow. They deal with similar summary cases as sheriffs eg. drink driving, dangerous driving and assaults and have the same powers as sheriffs in the cases they deal with. They can impose periods of imprisonment up to 1 year and fines of up to £10 000. Like sheriffs, stipendiary magistrates wear wig and gown in court. The reason for their introduction was the very high crime rate in Glasgow.
- Sherriff Court: More or less equivalent to the Magistrates Court in England, although for less serious crimes, the Sherriff (judge) may sit without a jury.
- The High Court of Justiciary: Generally called the High Court. Tries the most serious offences. There are permanent sittings in Edinburgh and Glasgow, and it is also a circuit court, visiting other Scottish cities and large towns. Always has a jury. Judges here are referred to as My Lord.
There are also three possible verdicts in a Scottish criminal case:
There is no substantive difference between Not Guilty and Not Proven - both mean you are legally innocent. Originally the two verdicts were 'Guilty' and 'Not guilty. However—according to traditional account—in the early 17th century, James VI of Scotland
(also James I of England) faced a popular wave of rebellion by a Protestant sect called the "Covenanters", so he removed the right of juries to pronounce innocence and reduced them to finders of fact, giving them the verdicts 'Proven' and 'Not Proven'. However, in 1728, in the case of Carnegie of Findhaven
, the accused had accidentally killed the Earl of Strathmore, and the jury was persuaded by Carnegie's defence lawyer, Robert Dundas, to assert its "ancient right" to pronounce Carnegie "not guilty", as, while he patently performed the act accused of, they felt he had no moral guilt. After a while the original 'Proven' verdict was replaced by 'Guilty'. However, the 'Not Proven' verdict never went away and nowadays it has taken on a new meaning. Juries now use it to say that they think the defendant may well be guilty, but they can't be sure, whereas they often reserve the not guilty verdict for those they are more convinced is innocent. Regardless, the only way you become a criminal is if you are found 'Guilty'.
Also, it is not allowed for a person accused of rape to personally cross-examine the alleged victim, even if the defendant is conducting his own defence.
Differences in Northern Ireland
Although Northern Ireland largely follows the basics of the English court system, there are a few differences. Not counting the Supreme Court of the United Kingdom (which is independent of the three court systems and hears cases from across the UK), there are three levels of court:
- Court of Judicature note . The highest level court. Subdivided into three others.
- Court of Appeal - the highest level appeal court in Northern Ireland. If you want to go higher, you'll need to go appeal to the Supreme Court. Hears appeals from any level of the NI court system.
- High Court - Similar to the English court of the same name. Deals with serious and high profile cases, which are heard before a single judge.
- Crown Court - Deals with criminal cases too serious for the Magistrates' Court. Also deals with indictable offences such as rape and murder.
- County Courts - Deal with civil cases.
- Magistrates' Court - Deal with criminal cases of lower severity than the Crown Court. Also conducts preliminary hearings for serious cases that will then go to trial in higher courts.
However, Northern Ireland being the wonderful peaceful land of fun that it is
, takes a slightly different spin on things. Until 2007, certain criminal cases would not be tried with a jury. Judgements were made by the judge (a "bench trial" rather than "jury trial", and that was that. These were known as Diplock Courts
, after Lord Diplock, who recommended their introduction in the 1970s. This all sounds bad on paper, but with the sectarial turmoil sweeping Northern Ireland at the time, they weren't necessarily a bad idea, and were mostly employed for use with paramilitaries and terrorism-related offences to prevent jury members being intimidated by the prospect of the accused's "friends" turning up at their houses in the middle of the night with balaclavas and baseball bats if they voted the wrong way. Additionally, it prevented sectarian bias from influencing a juror's decisionnote
Generally those who ended up in one (or whose colleagues ended up in one) tended to argue against their use. Coincidentally enough, many high ranking paramiliary members from both sides were tried in these courts. One is left to draw their own conclusions as to whether bench or jury trial would have worked better.
Nowadays, juries are employed across the board, except for the (thankfully decreasing) cases of paramilitary or terrorism-related offences, which are still tried without juries, though this has to be applied for on a case-by-case basis now, rather than just being the norm.
... it's a fun place, really