LEARNING THE LAW – GLANVILLE WILLIAMS

01. THE DIVISIONS OF THE LAW

Initially, the aim of this chapter “The Divisions of the Law” is explained that a university law course offers a chance to acquire both a necessary legal framework and a deeper understanding of the law. The author Glanville Williams has felt that, law is the cement of society and an essential medium of change. The study in this field would enable the student to explore how and why this is so. The author has given a general introduction to English law as the system of law that was historically developed in the courts of Westminster and throughout the many other parts of the world.

CRIMES AND CIVIL WRONGS AND THE DISSIMILARITY

The law is divided into two large branches Civil and Crime. There is a common mistaken belief exists that the law is largely and exclusively concerned with the criminal law. But the fact is civil is greater. The author has explained the difference between a criminal and civil wrong. He further tells that the same act may be both a crime and a civil wrong by giving two illustrations.

The first illustration is that one trusts an employee/official in the railway luggage office and has left his luggage there. But that employee runs off with it. Here he commits the crime of theft and civil wrong because he breaches the contract of keeping the luggage safe.

Another illustration is also related railway in which a Signaller fails to press the signal button at the right time and causes for an accident which has killed number of people. Here, his carelessness has paved way for the crime of manslaughter and a breach of contract with the employer to take due care whilst at work.

The above examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done (or not done) is the same in each case. The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow it.

THE COURTS

Civil and criminal courts in England and Wales are largely but not entirely distinct. Magistrates are chiefly concerned with criminal cases, but they have important civil jurisdiction over licensing and family matters. The Crown Court has almost exclusively criminal jurisdiction. On the other hand, the jurisdiction of the County Court is only civil, and so is the High Court, apart from appeals. The different courts are explained.

COURTS WITH CIVIL JURISDICTION

COURT OF APPEAL (CIVIL DIVISION)

There is almost always the possibility of an appeal from (i.e. against) the decision of a court of trial, providing permission is given by the trial judge or by the Court of Appeal itself. For the High Court the appropriate appellate court is the Court of Appeal (Civil Division). The Court of Appeal generally sits with three members 16 but sometimes with two (depending on the importance of the case), and there will be several such courts in action at the same time.

COUNTY COURTS

The County courts deal with civil (non-criminal) matters. Depending upon the importance of matter, the County Court judge may directly refer the case to the Court of Appeal.

MAGISTRATES’ COURT

The Magistrates’ courts also have some civil jurisdiction, chiefly in matrimonial matters, guardianship, adoption, and child support cases. Appeals from magistrates’ courts go to a Divisional Court—which in family matters will be composed of judges of the Family Division.

APPEALS TO THE SUPREME COURT

Prior to 2009, the final appeals went to the Appellate Committee of the House of Lords. Later, it has been replaced by a new Supreme Court by a Constitutional reform Act 2005 which came in to operation in 2009.

The Head of the Court is known as President and that office is the senior judicial office in the country. When an appeal is taken to the Court of Appeal (either from the High Court or from a Divisional Court), a further appeal lies (with permission) to the Supreme Court.

COURTS WITH CRIMINAL JURISDICTION

THE CLASSIFICATION OF OFFENCES

Crimes are divided into indictable, summary and offences triable either way. Indictable offences are the most serious sorts of crimes, triable by judge and jury in the Crown Court. Summary offences are tried by magistrates in a magistrates’ court. Many crimes, though capable of being tried on indictment, can be tried in magistrates’ courts if certain conditions are satisfied; these are the intermediate category of offences “triable either way”, so called because they might be tried in either the Crown Court or the Magistrates’ Court.

CROWN COURT

This court was created by the Courts Act 1971. It is a single court like the High Court and the Court of Appeal and having about 70 centres across England and Wales. It deals with serious criminal cases which include:

Ø  Cases sent for trial by Magistrates’ courts because the offences are ‘indictable only’ (i.e. those which can only be heard by the Crown Court).

Ø  ‘Either way’ offences (which can be heard in a Magistrates’ court, but can also be sent to the Crown Court if the defendant chooses a jury trial).

Ø  Defendants convicted in Magistrates’ Courts, but sent to the Crown Court for sentencing due to the seriousness of the offence.

Ø  Appeals against the decisions of Magistrates’ courts.

There are three different types of Crown Court centre based on the type of work they deal with. They are First-tier centres, Second-tier centres and Third-tier centres.

COURT OF APPEAL (CRIMINAL DIVISION)

This court was created in 1966 to succeed the Court of Criminal Appeal. The Court of Appeal (Criminal Division) sits in practice in several separate courts. One is often presided over by the Lord Chief Justice, others by a Lord Justice of Appeal, the remaining members of the court being either two High Court judges or one such judge and a circuit judge. Where the appeal is against sentence only (and not conviction), it is not uncommon for only two judges to sit.

This court and the Divisional Court normally sit in London, but they very occasionally sit in regional centres. So far as the conviction is concerned, the appeal may be on law or fact, but only the defendant can appeal—not the Crown. On sentence, the Attorney-General can appeal against those considered to be unduly lenient. Where an appeal against conviction is successful, the court will quash 30 the conviction either completely, or substituting a conviction of some other offence of which the jury could have convicted.

OTHER COURTS

Apart from the above, some other courts like European Court of Justice, European court of human Rights, Judicial Committee of the Privy Council and tribunals also.  They have different roles and functions.

CLASSIFICATION OF CIVIL WRONGS

The Civil wrongs are classified into three different types. The first one is ‘Breach of Contract’. It is evident that a contract need not be in a formal document or indeed in any document at all. When we buy a newspaper or bus ticket, a contract is made.

Another type of civil wrong is a ‘tort’. The general idea of ‘tort’ will become clear enough if one says that torts include such wrongs as negligence and nuisance, defamation of character, assault, battery, false imprisonment, trespass to land and interference with goods. It is a civil wrong independent of contract: that is to say, it gives rise to an action for damages irrespective of any agreement not to do the act complained of.

The third type of civil wrong is ‘Breach of Trust’. A “trust” is not a mere obligation of honour, but an obligation enforced by the courts. It is an act (or a failure to act) by a trustee that is not authorised either by the trust document or by law. For example, a breach of trust may occur if a trustee:

Ø  distributes trust assets to a beneficiary who is not entitled to them under the terms of the trust document.

Ø  invests the trust fund in a way not permitted by his express or statutory powers of investment.

Ø  breaches a fiduciary duty such as the duty not to profit from the trust, for example, by selling one of his assets to the trust.

Ø  breaches the common law or statutory duty of care, for example, by exercising a power of investment without exercising such skill and care as reasonable in the circumstances.

The only other type of civil obligation (it is not thought of as a wrong) that the beginner need hear about is the restitutionary obligation or the Quasi contractual obligation.

PUBLIC AND PRIVATE LAW

Another distinction that needs to be considered is that between public and private law. The distinction between public and private law is not hard and fast, but the dividing line can sometimes be a crucial one. The public law remedies of judicial review are not available against a purely private body.

COMMON LAW AND EQUITY

The law of England may be said to be composed of three great elements: legislation, common law and equity. The most important kind of legislation is the Act of Parliament (otherwise called a statute), through which the government of the day carries into effect its principal policies. This is known as primary legislation. What is called delegated legislation? It is like the many government orders generally known as statutory instruments, has come to be of great importance as well. Next, the phrase “the common law” seems a little bewildering at first, because it is always used to point a contrast and its precise meaning depends upon the contrast that is being pointed. Final term is ‘equity’. It is an illustration of the proposition that some words have a legal meaning very unlike their ordinary one.

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