Court and Tribunal in the English Legal System - Essay Example

? Are court and tribunal in the English legal system now indistinguishable in all important respect?     Introduction A definition of law in itself has proven to be elusive and much academic content exists on the issue of coming up with a complete definition. Rather than exploring these very many arguments, we can somehow get around this by introducing a number of features that are associated with law are identified to highlight some of the characteristics of law in a practical sense. These include the features associated with law like a defined area where the law applies which in this case is the United Kingdom and the content of the law. The content of the law here include things like criminal offences and civil wrongs. Here the distinction between a crime and civil wrong cannot be stated as depending upon what is done because what is done may be the same in each case. The true distinction lies therefore not in the nature of the wrongful act but in the legal consequences that follow it. The instances above thus are addressed, heard and determined at very different places which bring us to the court system of the English legal system. This court system is divided or subdivided into either the criminal court system which includes the Supreme Court, the court of appeal, crown court, magistrates, high court and Privy Council. The other division is the civil court system which also includes the Supreme Court, the court of appeal, the county court, the magistrates, the high court and the tribunals (Baker, 2009, p. 29). This brings us to our main subject of the courts and tribunals. From the oxford learners dictionary the meaning of a court is basically a person or body having judicial authority to hear and resolve disputes in civil, criminal, ecclesiastical or military cases. On the other hand a tribunal is a sitting or a group of proceedings how end goal is to establish and deliver a judgment on a specific issue such as a tribunal to resolve an election dispute which in itself is under the guidance and rules of the court system. The Court and the Tribunal In origin, these tribunals are designed as alternatives to what is believed to be the artificial formality of courts of law, and the supposed ignorance of the ordinary judiciary of specialized information regarding particular economic and social relationships. The ordinary man or woman is expected to be able to operate the process without benefit of counsel or solicitors (Blackstone, 2003). It soon begins to appear, however, that the total absence of formality can be a straightforward passport to injustice. Moreover, in rent cases, and cases of unfair dismissal, the landlord or employer could hardly be expected to spend long days in court instead of managing his own business, and therefore might reasonably be expected to employ a professional advocate. The first characteristic led to a widespread extension of the role of the ordinary courts in their supervisory role of subordinate tribunals, the second to an equally widespread demand for the extension (Bailey, et al. 2007, p. 68). The second to an equally widespread demand for the extension of legal aid to tribunals originally instituted with the intention of keeping the lawyers out. One thing, however, has emerged from the development of the tribunal system since the war, and this is the marked preference shown by Parliament and the public for a tribunal consisting of a lawyer in the chair sitting with two seasoned and experienced lay members over trial by judge alone, or trial before a judge and civil jury (Elliott & Quinn, 2011, p. 38). First and foremost, in a court the purpose of the case is usually to get the culprit of the offence i.e. the wrongdoer and the appropriate punishment to be administered like in instances where a robbery has occurred and the person responsible has been arrested by the persons concerned which in this case might be the police or even the public. This is somehow different from a tribunal whose real and intended purpose is to compensate a person who has suffered loss or injury e.g. a tribunal to find the root cause of an air crash and at times it is usually done to avert or prevent unlawful acts like for instance if a certain procurement deal is not that transparent a tribunal may be formed to look into the dealings and if possible prevent an unlawful and flawed process (Baker, 2009, p. 37). In what might also be contrary to the above statement is the fact that in both the in a court, a person might prosecute another like in the case off a criminal case where the state prosecutes a person (the defendant) and in a tribunal which is a representation of a civil court an individual who is the claimant sue an individual (the defendant). Here we can see that in both cases there is one side that is on the driving wheel of the suing or persecution while on the other side there is one who is being put to account on the matter at hand. Another similarity of some king is the ending or conclusion of the two case studies where in a court proceeding, the defendant is either sentenced or acquainted. As is the case in the courts, the claimant either wins the case or does not (Doherty, 2006, p. 35). In the court system if the defendant is convicted it is with no doubt that he/she ends up being sentenced to a term the court sees fit to the offence whereas if the claimant wins in a tribunal he goes on to be awarded a remedy which tend to act like a way of relief to what is considered as the inconvenience the matter concerned has subjected him/her. A contrast also appears at the venue or location of the hearing. A court proceeding can happen in any level of the court system be it the magistrates’ court, the crown court or the Supreme Court which in this case it means location is only determined by the weight of the case. On the other hand, a tribunal is usually first heard in either the county court or in the High court and that we are sure that it can only be initiated in the two (Boylan-Kemp, 2011). With any future referrals to the other level of the court system. As a follow up to the contrast of the two i.e. the court and the tribunal is the issue of cost. In a normal and the day to day court proceedings, legal aid is usually always available to the defendant. It is only when one is convicted that the cost is upon him means that at this point he/ she is subject to pay the costs incurred. On the other side, a tribunal scenario sees to it that the loser pays both sides’ costs. This means that insurance against losing is encouraged and that legal aid is available to the very needy (Blackstone, 2003). A similarity that might be hard and tricky to come out clearly is about the facts presented. Whereas in a court the judgment may be decided upon by either a bench of magistrates, a jury or occasionally by a district judge, in a tribunal is strictly upon the judge to access, determine and deliver a ruling. The law at this point is decided and applied by the judge or the magistrate on the advice of the legally qualified clerk in the case of court while all that responsibility and role is left upon a judge in the case of a tribunal (Bailey, et al. 2007, p. 85). Another important point to note is on the basis of what is known as the burden and standard of proof. In the courts, the prosecution who is always on the driver sit of the case must prove the defendant’s guilt beyond reasonable doubt to a point of bringing out a clear cut revelation even to the doubting people following the proceedings. On the contrary, in the case of a tribunal, the claimant is only supposed to bring out and proof his case on a balance of probabilities and not facts (Baker, 2009, p. 59). It is on the probabilities presented that the account can be seen to be coinciding with the likelihood of the outcome. Finally coming to the end point of our discussion we take a look at the contrast of the instances that can lead to either of the two. First we start on the scenarios that can lead to a court proceeding which include murder, committing unfair trade practices, failure to observe health and safety revisions or even theft. In the case of a tribunal, we can only have it as a result of disputes as to ownership of property, trespass, breaching of contracts or even negligence. Conclusion It is from the above points which are well illustrated that we tend to agree that the court and tribunal in the English legal system are now indistinguishable in all important respect. This is because we can see clearly that even though the court can function independently, the tribunal in itself has its backbone as the court and any attempt to strip it of that would only result in a dysfunction and incapacitated tribunal. The similarities may not come out clearly but the fact remains the tribunal in one way or another borrow almost its whole design and character from the establishment and procedures of the court (Elliott & Quinn, 2011, p. 48). Be it in the way a case is determined, the rules that govern the proceeding or even the dissipation of judgment. The persons having the roles in the two might be different but the roles subject to them is all but the same. Thus we cannot deny the fact that the court and the tribunal are indistinguishable in all important respect in the case of the English legal system. Bibliography Baker, J. (2009) An Introduction to English Legal History Fourth edition New York, State University of New York. Bailey, S., Ching, J., and Taylor, N. Smith, Bailey and Gunn (2007) The Modern English Legal System. Oxford: Oxford University Press Blackstone, W. (2003) Commentaries on the Law of England, Vol. 1. London: Clarendon Press. Boylan-Kemp, J. (2011) English Legal System: the Fundamentals, 2nd edn. London: Sweet & Maxwell. Doherty, M. (2006) Jurisprudence: the Philosophy of the Law, 3rd edn. London: Old Bailey Press. Elliott, C. and Quinn, F. (2011) English Legal System. London: Longman. Ward, R. & Akhtar, A (2011) Walker and Walker’s English Legal System, 11th edn, Oxford University Press (2011) Read More