Author’s Note: The content of this article is intended for informational and entertainment purposes only. It is not intended, nor should be construed as, legal advice and no attorney-client relationship is formed between the reader, author, and anyone else associated with Anglotopia. If you are in need of legal advice, please consult an attorney.
Whether you’re planning a trip to the United Kingdom, just happened to watch British crime dramas, or you nicked an arseload of McClelland’s mini-bottles from your hotel in London, you may find yourself a bit intrigued with the British legal system. What follows is an overview of some of the differences between the two systems, focusing mostly on the criminal side and a bit on the civil side in England and Wales.
Basics of UK Legal System
British and American legal systems have a lot in common and this is no mistake. Having been an English colony, our own legal system is directly descended from English courts, especially what we know as the “Common Law.” Also known as case law, common law doesn’t come from the government, but from case decisions. If a court decides what a law means, then the court’s definition becomes the standard other courts use to decide cases.
After the United States gained its independence, it formed its own common law based upon the Constitution. While Common Law remains the primary legal system in England, Wales, and Northern Ireland, Scotland has a hybrid system of common law and civil law, from which the majority of laws come solely from statutes and legislation. Common law defers heavily to past cases, while civil law is not bound by such precedent.
One noticeable difference if you’ve seen shows such as “Law & Order UK” or the Stephen Fry series “Kingdom” is that lawyers aren’t necessarily called such in Britain. While in the U.S. a lawyer can do just about any civil or criminal matter, in the U.K. most attorneys are either “Solicitors” or “Barristers”.
Solicitors can deal with most legal matters, drafting documents, providing advice, and even representing clients in minor criminal matters. They have the power to act directly for their clients.
A Barrister, on the other hand, specializes in trial advocacy and acts for the litigant or defendant in High Court, building the case and arguing before the judge and jury, he cannot act for the client without the solicitor’s consent. Often they will work together during important cases where the solicitor manages legal documents, prepares evidence, and even conducts negotiations outside the courtroom while the trial continues.
UK Court System
In Britain, as in America, a criminal case begins with an arrest. In America, the next step is a grand jury hearing, in which a jury decides whether there is enough evidence for the court to issue an indictment (a formal accusation of a crime) which allows the criminal case to proceed to a full trial. Except in certain cases, the right to a grand jury is guaranteed by the Fifth Amendment to the U.S. Constitution. In Britain, following an arrest, the Crown Prosecution Service (the British equivalent of the District Attorney’s office) brings its evidence before the Magistrates’ Court, where a panel of three judges or district judge issues the indictment.
In England and Wales, the right to an attorney for a criminal defendant came from the Prisoners’ Counsel Act of 1836 and guarantees the right to counsel for felony cases, over 100 years before the Gideon v. Wainwright decision guaranteed the right for Americans . Before this, an attorney was only permitted when a defendant was accused of treason. Legal aid is available for free courtesy of the Legal Services Commission, with the Community Legal Service providing legal aid for civil matters and Criminal Defence Service doing so in criminal cases. Most of these attorneys come from private firms of solicitors and barristers assigned to represent the defendant.
Once the judge or magistrates hand down the indictment, the case goes to the Crown Court for a trial by jury, though in some cases, the Magistrates Court may retain jurisdiction over a summary offense. Trial by jury in Britain goes all the way back to the Magna Carta, and the jury in the Crown Court can range from 9-12 people. Eligible jurors are individuals who are registered voters age 18-70, resided in the U.K. for 5 years from the age of 13, mentally competent, and not disqualified for any other reason.
Unlike the U.S. where the Prosecution and Defense attorneys agree on the jury members and strike (or dismiss) jurors they find unfavorable (called voir dire), in England and Wales, the Clerk of Court will select twelve names at random or draw cards with the jurors’ names on them until the jury box is full. The trial then proceeds similar to trials in the United States, and the jury renders one of several verdict options: Guilty, Not Guilty, Guilty of a Lesser Offense, or a Special Verdict. In case of a special verdict, the jury determines the facts of the case, but leaves it to the judge to convict or acquit based on the law.
The High Court handles most civil cases, including Family Law cases in the Family Division (divorce, child custody, alimony, etc.) and money matters in the Chancery Division (contested wills, corporate wrapping up, trusts, bankruptcy, etc.). The jury for a civil case has the same amount of jurors as a criminal case, and the right to a jury trial for civil cases exists for actions in: Fraud, Libel, Slander, False Imprisonment, Malicious Prosecution, Breach of Promise to Marriage, and Seduction (being induced to have sex under false pretenses—only available to women).
In conclusion, this is really just the tip of the iceberg. While the legal systems in England and Wales are very similar, Scotland and Northern Ireland have some differences that I won’t get into because this article is long enough already. If you find yourself in trouble in the U.K., do ask about your right to counsel and in a criminal or civil case, please consult with a solicitor and/or barrister. As for me, I plead ignorance.