Law in Action Compared with Law in Books

Assessed Coursework – Court Report

The aim of this report is to assess how “law in action” can be compared to “law in books” which may be done by observing the criminal and civil procedures of the Criminal and the Civil Courts. In this report, I will discuss some issues in the Criminal and Civil courts such as the reality of the roles of judges and magistrates, the juries, the lawyers and the parties and how they compare with the material studied in relation to them on this course. Furthermore, I will discuss how important “legal” skills such as advocacy, fact-finding, referring to or use of legal precedence and statutes are in practice. Moreover, I will compare the proceedings and processes of the criminal and civil jurisdictions and finally, I will evaluate my findings to suggest whether “law in action” does in fact mirror “law in books” and whether or not it should.

Before discussing the relevant issues in the Criminal and Civil courts, it is necessary to discuss the differences between the two jurisdictions which will enable us to discover why the procedures and processes differ between them. In a court of civil jurisdiction, the courts deal with areas of law such as contract, employment or tort which govern the relationship between legal persons such as individuals and corporations. In a court of criminal jurisdiction, the court deals with areas of law which govern the relationship between the state and individuals, usually dealing with criminal offences such as offences against the person, or property. Lord Irvine of Lairg summarised the difference through the following quotation: “The Criminal justice system exists to help protect us from crime, and to ensure that criminals are punished. The Civil justice system is there to help people resolve their disputes fairly and peacefully”. In practice, it seems, that this description of the two jurisdictions do fit based on the cases I observed in the County Court in Manchester, a court of civil jurisdiction, and in the Crown Courts and Magistrate Courts of Manchester and Preston, courts of criminal jurisdiction.

The cases observed at the Criminal Courts gave me a snapshot of how these courts do exist to ensure that “criminals are punished”. Both trials observed at the Manchester Crown Court, allowed me to witness the sentencing stage of a case where the defendant, pleading guilty, was punished for the offence. One of the sentencing cases related to a sexual offence, which together with guilty pleas for another two offences caused the judge to sentence the defendant to four years imprisonment. The other sentencing case also involved a defendant giving a guilty plea for the offence of theft and the judge sentenced him to a suspended sentence, a 200 hour community service sentence and a curfew order. However, sentencing does not appear to be an easy job for judges in the criminal courts therefore to simply state that the system helps protect the public from crime and makes sure that criminals are punished may considered a role that is too vague.

Instead, the role of sentencing is only one aspect of a long procedure in the criminal courts to ensure justice. However, in this essay, I will discuss my observation of the relationship between judges and lawyers and the sentencing procedure and how different issues affect these roles and the procedures. The judge in a criminal case is the one who passes the sentence and in most cases he has discretion in the sentence he passes. However, there are some cases where the judge may have no choice in passing a particular sentence; for instance, statute requires the court to impose a minimum sentence of at least three years on an offender convicted a third time of domestic burglaryunless the courts would feel it unjust to do so. Furthermore, binding precedence from superior courts on sentencing would also effect the discretion judges have in deciding how to sentence a defendant. In the Crown Court, the judge made reference to binding precedence from the Court of Appeal in one of the cases which stated that if the defendant was over 21 years old, then he would have had to pass a three year custodial sentence on the defendant. In the case regarding the defendant sentenced for a sexual offence, the judge made reference to new legislation that would deport foreign nationals due to the severity of the sentence passed.

In these cases, it is evident there is much reference to legal precedence and statutes in the criminal courts which appears to be the main role of the judiciary i.e. to apply the law to the facts of the case. However, it is necessary to see how independent the judiciary is when making these decisions and applying the law to the facts. In the sexual offence case, the judge before giving the sentence referred to how he regularly drove passed the place where the offence happened and described it as dark and isolated (which gave the impression that the opinion of the judge affected the sentence). This questions the issue of judicial independence as to whether or not judges reach decisions in an independent way, only taking into account the facts and the law rather than their own opinions or the opinions of government, political parties, businesses, organizations and the media. Even though the appearance of bias in the above case may be seen as a de minimis principle meaning that minor interests could be ignored, as held in the case of Locabail, it may still be considered to be a threat to this key feature of the English Legal System. This is due to the fact the importance of judicial independence has only been indirectly referred to by legislation and its maintenance can only be relied on by convention or tradition. Nevertheless, the Constitutional Reform Act seeks to protect judges from the attempts of politicians to interfere with decisions however, the degree of independence possessed by an individual judge when making a decision cannot be clearly interpreted and justified.

As well as judges being said to encompass independence in order to maintain public confidence in the legal system and to uphold the ‘rule of law’ which in practice has given the impression that this is not necessarily the case, the judiciary in practice can also be seen to be biased it its composition, though this has been addressed in many textbooks and studies as still being the case. Hazel Genn’s research into public attitudes regarding the image of the judiciary showed a stereotypical view of judges as being “white middle class men”, “old”, “pompous”, “wrinkly upper class fellows” and “out of touch with ordinary people’s lives”. There has been concern relating to the lack of diversity amongst the judiciary as voiced by Lord Taylor, the then Lord Chief Justice in 1992 who stated the “The present imbalance between male and female, white and black in the judiciary is obvious… I have no doubt that the balance will be redressed in the next few years…” However, it seems that Lord Taylor’s view that there will be change in the judiciary seems to have been too optimistic. I found in my visits to both the criminal and civil courts to come across judges that embody the stereotypical view of judges as “white middle class men” and surveys found that only 2.5% of judges come from ethnic minority backgrounds and all sit on the Circuit Bench and women represent only 14.5% of the judiciary. A visit to the Magistrate courts however presented the view that women are in fact represented in the justice system as two of the three magistrates present were female. This view is supported by Lord Judge who stated that “Today just about half of our lay magistrates, who try the vast majority of criminal cases in this country, are women” which shows that women are becoming more and more involved in the justice system especially as more female students than males enter university to study law and women are now being appointed as judges in the superior courts, for instance, Lady Hale was appointed in 2005 as a Law Lord in the House of Lords and is now a judge in the highest court in the UK, The Supreme Court.

Diversity in the justice system does not only relate to the judiciary, another important part of the justice system, especially in criminal cases, that regards diversity important in its composition, is the jury system. In a case, observed at Preston Crown Court concerning defendants of an ethnic minority background, the composition of the jury did not reflect ethnic minorities in the community. In the case of R v Fraser, a jury such as this was challenged on the basis that the defendant was of an ethnic minority background whereas the jury consisted of all white jurors, however, in R v Ford a challenge regarding the composition of the jury as not being multiracial was not allowed on the basis that jury was chosen in a random manner which is the case regarding juries today. Whether a multiracial jury is important in trials especially cases with ethnic minority defendants is questionable as the secrecy of the jury room does not enable us to see whether juries make decisions on the basis of racial discrimination or on the facts of the case.

The Jury Diversity Project was established based on concerns about the underrepresentation of ethnic minorities on juries and whether ethnicity effects jury decision making. The study established that ethnic minorities and also women and young people were not underrepresented by the jury system but were in direct proportion to their representation in the population.In this case, the fact that there were no members of the public on the jury who reflected the ethnic minority community may be explained by the fact that the catchment area has a low percentage of ethnic minorities. The study established that racially mixed juries are only likely to exist in courts where ethnic minorities make up at least 10 per cent of the entire juror catchment area. This does not reflect any failure in summoning; it is simply the consequence of population levels in these catchment areas. This shows that it is not always possible to achieve diversity in juries even when using random procedures to select them due to problems such as population. Lord Justice Auld suggests that there should be a different criteria and process for selection of juries to enable them to be more representative. In regards to whether ethnicity effects jury decision making, a study conducted found that racially mixed juries did not discriminate against the defendant’s race though it was found that race did affect some decisions of individual jurors who showed “same race leniency” in some cases.

Of course, when visiting the County Court in Manchester, the issues raised there were quite different to issues raised in the Criminal Courts especially in relation to the type of cases put forward, nevertheless, there were some similarities in some aspects of the proceeding especially concerning the role of the lawyers who represented the parties in the case. In both the civil and criminal courts the lawyers used advocacy to represent their clients presenting in both courts mitigating and aggravating factors to try and defend or prosecute. In the criminal courts, it seemed as though the advocates gave a more effective presentation, thinking quickly on their feet and trying to persuade the audience, whether that be the judges, magistrates or the juries to make certain decisions which they believe to be best for their client. In the Civil courts, there appeared to be less skill in the art of advocacy possibly due to the fact that many representatives of the parties were not actual barristers who are trained in the art of advocacy, but other representatives such as solicitors or the actual individual party themselves. In one case, in the civil court, one of the parties represented himself, with the help of a McKenzie friend against the defendants who had barristers representing them. It appeared that the unrepresented party did not understand much of the proceedings, especially in relation to the use of his McKenzie friend where the judge reminded the claimant that the friend could not represent him, only advise him. This seemed to suggest there exists a lack of access to justice due to reforms to legal aid in the Access to Justice Act (1999) which appears to reduce the amount of legal aid available. This criticism is supported by the opinions of House of Lords peers such as Lord Hunt of Wirral who stated “I recall hearing a very convincing speech last week by the noble and learned Lord the Lord Chief Justice, Lord Woolf, in the Second Reading in this Chamber of the Courts Bill, in which he stressed that there was a serious lack of resources to enable access to justice to work.”

Because many of the cases observed in the civil courts were pre trail cases, there was much reference to evidence and witnesses that the representatives wanted to persuade the judge were necessary or not necessary in the case. For instance, in one case, the claimants wanted the persuade the judge that a psychological report would be a necessary piece of evidence in the trial, and in another case, the defendant tried to persuade the judge to reschedule the date of the trial in order to enable, who he believed to be an important witness in the case, to give her evidence as she had booked a holiday during the date of the original trial. In comparison to the criminal cases, there appeared to be more of a concern in relation to the facts of the case rather than the law though there was some reference to the law in one case relating to the tort of negligence and causation in a case where the defendant admitted negligence. In cases where, negligence or other areas relating to civil law have not been proven, the case appears to be more complex as it is more difficult to prove for example negligence therefore it is reasonable to suggest that fact finding appears to be very important in cases such as these in order to prove such things and as Lord Irvine suggests “to try and resolve their disputes”. In cases where there is no need to prove anything, the law appears to become more important especially in relation to damages that can be claimed by the claimants usually based on rough guides from precedent and statutes.

In conclusion, “law in practice” can be seen to have many differences and many similarities to “law in books” according to the snapshot I received from my visits to the Civil and Criminal Courts. The legal processes of the courts in practice do appear to mirror the legal processes discussed in theory, however, the main difference between the two were rather the attitudes and values in regards the roles and procedures and their importance in the legal system. It can be suggested that the English legal System, as a Common Law jurisdiction, embraces its role as developing the law through practicing it in a way that differs from the rules set out in legal textbooks and statutes through interpretation and judicial precedence. This may reflect why English Law differs in theory and practice because rather than working from general principles like Civil law jurisdictions, it develops and changes the law and the legal methods set out in books through different cases that arise, and in my opinion this is a good thing as departure from strict rigid rules regarding the legal process enables us to promote justice, proportionality and equality in our legal system.