Principal Powers available to the courts in England & Wales - Essay Example

? Principal Powers available to the courts in England & Wales Principal Powers Available to the Courts in England & Wales Whena magistrate or a judge is seen sitting in a court today, it shows the actual results of one thousand years of legal revolution. When one is, asked to design a system of justice he/she may decide to copy the Welsh and English model. This is because it is rather confusing and contradicting in places. The judiciary still undergoes evolution and changes to meet the needs of the society. It is widely considered most independent and the best in the world, despite its oddities. The judicial system for Anglo-Saxons was a combination of royal and local government even after had invaded in 1066. The local courts were manned over by one of the lord’s stewards or the lord himself. The Curia Regis, which is the King’s court, was presided by the king himself. It is not a comfortable experience to go on trial in a Welsh and English courts. This is better than the ordeal trial, which was used until the end of 12th century in determining innocence or guilt in criminal cases. Under the system of ordeal, the accused were forced to pick up a red-hot iron, to remove a stone from a cauldron of boiling water, and any other punishment, which is equally painful and dangerous. After this punishment, if the hand begins to heal in three days he is considered having God in his/her side and thereby proving that he/she is innocent. The number of recorded verdicts in this system is not known to anyone. Another popular and extreme sense of ordeal system is water where one ties an individual and throws into the water body. If he/she sinks, it shows that he/she is innocent. In 1406, the judicial view expressed that the King has transferred all his powers to the courts. The English civil war of 1642-51 was fought between the rights of the King and the rights of the parliament. The parliament won the battle, and it became the supreme legal authority in the country. This supremacy of the parliament is a cornerstone of the constitution. This meant that legally, parliament could pass any law it wishes though there are some limitations to this power. The high court of justice is an amalgamation between the court of chancery and existing courts of common law. Because United Kingdom is a constitutional monarchy, justice is administered in the name of the crown (Riches & Allen, 2011, p.152). There is a judicial system where the high court ensures that governments, lower courts and public bodies are operating within the law. Judicial review is only interested with the legality of decision-making and not concerned with the merits of the decision. Some courts have appellate jurisdiction. This means that they decide their appeals from courts, which are below them in their hierarchy of courts. This is the Supreme Court in the United Kingdom, which replaced appellate committee in the House of Lords. The high court and the court of appeal are among those, which are below in the hierarchy. The court of appeal has criminal and civil division. The crown court is mandated to hear certain appeals, which are from the magistrate’s courts (Probert 2011). There is a distanced system of criminal courts. These are the magistrates’ courts and the crown courts of Wales and England. The crown courts are dated back from courts act of 1971, which replaced and abolished various courts including Quarter and Assizes sessions and many other local courts like the court of Chancery. Tribunals deal with many specialist matters though there might be some appeals to the high court or a higher tribunal. Tribunal courts and enforcement Act of 2007 has changed tribunal structure through radical reforms. Non-lawyers are used significantly in the system; they include Magistrates, tribunal members, and Jurors. The speech of Abdroikof 2007 emphasized the importance of the jury. In certain situations, there is a provision of the Criminal Justice of 2003 Act for non-jury trials (Grubin 1996). In most tribunals and courts, the procedure is adversarial, which contrasts with the system of inquisitorial favoured and used by some European legal systems. Inquisitorial system is used in Coroners courts, and the hearings in these courts are referred to as inquests. The crucial areas in the law are Judge made. All codes cannot be set outside the basics of the law. The following disciplines are largely and mostly created by the judges are; law of trusts, law of tort, and law of contract. The Act of parliament is empowered to modify many areas of these laws. Today, few crimes are judge made though the crimes of manslaughter and murder are common law offences, which are still the judge made. There is binding precedent in which decisions relating to laws of higher courts brings together or binds lower courts in the hierarchy. For example, the decisions made by Supreme Court of United Kingdom will bound all other courts as it was done by the decisions of the former House of Lords. It is not easy to change the law without consulting the Act of parliament though; the precedent supporters say it promotes certainty. Independent judiciary is one that cannot be influenced by executive or any arm of government on the results and outcomes of particular cases before the courts. Legal professions are divided into various sections. The lawyers are divided into solicitors and barristers. The law society manages and governs the solicitors’ branch, while barristers govern the Inns of Courts. The members of either branch may attain the rank of queens’ counsel (Dugdale & Burnett 2007). There is also another group of legal executives who will be regarded as the third branch of the legal profession. The institute of Legal Executives represents the legal executives. There are some specialist’s branches of law, which were developed historically. They include Ecclesiastical law and Admiralty law. Martial system is the court of armed forces of the crown. It was formed under the Armed forces act of 2006, where the system of military discipline has been reformed to single disciplinary regime applicable to three services. In previous each service of Army, Air force, and Navy operated in their own disciplines. The magistrate’s courts were developed as with local jurisdiction, for example, a court developed for a specific area like a city. They are now administered by Her Majesty court service since the courts Act of 2003. Therefore, there is a single commission of peace for Wales and England. How the Doctrine of Judicial Precedent Engages With Statutory Interpretation Statutory interpretation is the interpretation of the statute that has been passed by parliament. Though it is very important, it is not easy to understand the meaning the statute. The first and easier way of using statutory interpretation is through literal rule. This is the most popular and easiest because the courts take the word of the Act of parliament the way they are and no change (Riches & Allen, 2011, p.502). This is the best method owing to its inability to cause problems. However, if a judge decides to take the words too literally it can lead to absurd verdict, which has been the main argument against the frequent use of literal rule. For example, someone found impersonating a dead person, who is in the register and was entitled to vote, she/he is taken to court for judgement. This could be viewed as an absurd verdict because the death person is not literally entitled to vote, and the defendant is not guilty. The rule can be sometimes too harsh because it is clearly set out that no any other factor should be considered. For example, in Berriman v North Eastern & London Co where the railway worker was killed when doing some maintenance on the railway. The widow wanted to claim for compensation, but the company had not complied with Fatal Accidents Act. The court decided that it did not include maintaining in its literal meaning, and the widow should not be given any compensation. Another method is the golden rule, which is the same as literal rule, but it is different on the absurd meanings (Heller & Dubber, 2010). The golden rule can be applied in wider application or narrow application. The narrow application means though the word or phrase does not take the first meaning it should be taken from one of the possible meanings. For example, in the case of Allen v R 1872 under offences against other peoples Act of 1861. The act sates that it is illegal to marry while your spouse is still alive and you had not legally separated. To marry can mean either just a ceremony or legal binding. The court decided it is an absurd situation because the first marriage was considered a legal binding, and it was illegal to practice bigamy. The wider application is where meaning of the word is clear, but it can lead to repugnant situations. This words need to be at least modified to suit the situation. An example for this is Re Sigworth 2003, where a boy killed her mother, and because he was the only son, he had to inherit the properties of the mother although he killed her. The court saw this as repugnant situation and wrote in another extra act concerning the situation of the case. Another method is mischief rule where the judge is given much power to decide as the court will be looking at the actual issues like; gap and even trying to bridge the gap instead of looking at the interpretation of the Act only (Oakland 2010). This rule was used in the case of Hughes v Smith of 1960 where as per the act street offences 1959. It is illegal for a prostitute to solicit in public or street places for the purposes of prostitution. Some women appealed against this act as they were in a balcony, closed windows or even behind open part when they were attracting men attention. The court found them guilty as the act was aimed at preventing soliciting of prostitution to people in the street or public places and the men whom the women prostitutes were appealing to in the street. The purposive approach is one-step higher than the mischief rule. Mischief rule was only considering the meaning of the act while the purposive approach was deciding on what the parliament was trying to achieve in the act (Riches & Allen, 2011, p.432). This rule gives much power to the judges as they can decide and interpret an act as they wish. Many researchers argued that the judges were granted too many powers as they should be only applying the law and not to create it. Many European countries are favouring this rule since the Britain joined the European Union in 1973 the purposive approach has been popular in England and Wales. The judges use this rule in interpreting European law and this makes the judges to be used to this rule and apply it within English law (Braat & Simmer 2005). The Europeans use the purposive approach as they have many different languages in the member states and making exact translation is impossible to achieve. Conclusion The precedent is indeed seen as the basis of developing the common law, through it is a slow process as disputes might occur in some circumstances. The secrecy of judicial deliberations acts as a strategy of employed the judiciary in concealing the extent to which such deliberations resembles those of ordinary people. The doctrine of statutory interpretation and judicial precedent benefits the English legal system by starving in applying the law fairly and correctly. They are flexible in that they have options to choose to depend on the suitability and the personal preferences of the judges and they are still rigid to encourage certainty and consistency in the law. Therefore, this makes me feel that the statutory interpretation and judicial precedent are much effective. References Braat, B. & Simmer, I. 2005, European Family Law in Action: Volume III : Parental Responsibilities, Intersentia nv, United Kingdom. Dugdale, T. & Burnett, W. 2007, England & Wales delineated, by T. Dugdale, assisted by W. Burnett. (Curiosities of Great Britain), Oxford University, United States. Grubin, D. 1996, Fitness to Plead in England and Wales, Psychology Press, United Kingdom. Heller, K. & Dubber, M. 2010, The Handbook of Comparative Criminal Law, Stanford University Press, New York. Oakland, J. 2010, British Civilization: An Introduction, Taylor & Francis, United States. Probert, R. 2011, Family Law in England and Wales, Kluwer Law International, United Kingdom. Riches, S. & Allen, V 2011, Keenan and Riches' Business Law. 10th edn, Longman Publishers. 9 Read More