The criminal and civil jurisdictions have many differences and some similarities in the way they deal with cases. In this court report I will be discussing the role of the civil and criminal courts by witnessing the law in action and will also compare and contrast the courts.
Hierarchy of the Courts
Below is a simple diagram of the hierarchy of the courts in England and Wales. All criminal cases are heard at the magistrate’s court, but for serious offences such as murder and rape it may be heard at the crown court. All civil cases start at the county court which deals with a range of issues from small claims to complex cases. If the case goes to appeal it will be heard in the courts listed above and it will follow the courts hierarchy. The doctrine of judicial precedent is also based on the courts hierarchy where the higher courts will bind lower courts on earlier decisions made.
Criminal Jurisdiction: Crown Court
To witness the law in action in a criminal jurisdiction the court that I visited was Minshull Street Crown Court in Manchester. The court mainly dealt with ‘indictable offences’ and ‘either way offences’, which could be heard in the Magistrates Court or the Crown Court depending on what the defendant chooses.
During the visit to the court I attended a trial which was a rape case. This was seen as a reconstruction case as witnesses had to be called to reconstruct what had happened in the case. The facts of the case are as follows. The defendant, the defendant’s sister (X), the victim and the victim’s brother (Y) after attending a family barbeque were quite drunk and so they all went to Y’s house. While they were at Y’s house they drank more alcohol. At this point the defendant and the victim were both very drunk. After feeling tired, the victim fully clothed decided to go to sleep on the sofa. The defendant slept in another room and X and Y slept in the same room. After waking up some time later the victim realised that she wasn’t dressed in the same way that she had gone to sleep and physically felt as though she had sexual intercourse. Sat next to her was the defendant. The victim seeing the defendant ran to her X and Y’s bedroom and told them what had happened and remained in their room. Seeing the victim like this Y rushed down and assaulted the defendant and told him to get out of the house.
The indictment was given to the jury after the facts of the case was told by the prosecution. The indictment set out the charges which the defendant was to be tried. It contained two issues: the first was whether the defendant intentionally penetrated with the victim and the second issue of whether the victim consented to have sexual intercourse. The first issue has been admitted by the defendant as he claims that he did have sexual intercourse with the victim, but the question remains of whether the victim consented.
This case was heard in front of a judge and jury. The circuit judge had a very active role during the trial; he had to make sure the case is being conducted accordingly with relevant law and practice. The judge’s main role in the case was to direct the jury and also to give the sentence according to the case if the defendant was found guilty. Before the trial began the judge directed the jury on what they had to do and what they could not do. For example, they had to listen to the facts of the case, evidence and witness statements and decide whether the defendant is guilty or innocent. They were also told not to discuss the case outside court as the decision they give may be influenced and will not be seen to be just. The instructions that were given were clear and understandable and the jury seemed to have understood it.
The jury consisted of twelve members as it was a criminal case. These members were aged 18-70, lived in the UK for five years since the age of thirteen and randomly selected from the electoral register to make it fair and represent the society. By having a trial by a jury it allows ordinary members of the public to get involved and know what is happening in the law. But more importantly, it allows the defendant to be judged by his own peers. Lord Devlin describes the jury as ‘a little parliament’ and believes ‘it is the lamp that shows that freedom lives’. Clearly, this statement suggests that the jury is seen to be an important part of the legal system. The jury not only judges according to the facts of the case but also mitigates the harshness of the law as they decide the case according to what they think is fair and right.
However, sometimes they may not be the right person to give verdicts as they are not legally qualified but more importantly they may get it wrong. For example, in the case of Pottle & Randal  (1991) the defendant was acquitted even though there was evidence against him. This illustrates the point that the judgement of the case should be left to the judge and not the jury as sometimes they do not get it right. This also leads to inconsistency and loosing certainty in the law as the decision will vary from jury to jury. Many criticism have been made against the jury system, Darbyshire claims that ‘juries are not random, not representative, but anti-democratic, irrational and haphazard legislators, whose erratic and secret decisions run counter to the rule of law  ‘.
During the trial the judge did not use the doctrine of judicial precedent when he summed up the case at the end and there was very limited use of statutory interpretation when the legal issue was addressed to the jury. This is because the jury had to decide the case and his role was to direct them. When the judge summed up the case, after the prosecution and defence presented and questioned their witnesses, he addressed the main points in the case and the legal issues in relation to those facts to the jury. This helped the jury to understand fully what they had to do.
The main legal issue that was addressed was the definition of rape. However, the second part of the definition was explained to the jury as the case was concerning this issue and not the intention of the defendant. The second part concerned whether the victim had consented and whether the defendant reasonably believed that she had consented to the sexual intercourse and had ‘freedom and capacity to make that choice  ‘. The jury had to take this into consideration and whether the victim was able to consent while she was drunk. It was seen that the interpretation of the act given by the judge was given using the literal approach. The plain and ordinary meaning of the word was given to give effect to parliament’s intention.
The decision of the jury was based on the evidence, witness statements and the reconstruction of the case. At the end of the trial the jury were given time to decide the verdict. In the specific case the verdict was ‘not guilty’ and the defendant was acquitted. The decision was made in secret. At this point it could be argued that this is seen as a weakness of the jury as we are not able to know how they reached such a decision as there is no explanation given.
Civil Jurisdiction: County Court
Majority of civil cases are heard at the County Court, many of which are private. Due to the matters being private many will try and resolve their dispute outside of court, with very few cases going to trial. However, if the parties wish they may still go to court with t heir claim.
Some civil courts that I attended heard many private disputes which were not available for the public to sit in at. However, at Manchester County Court I was able to attend a trial, this was a property case. The summary of the case was stated by the prosecution at the beginning of the trial. The facts of the case are as follows. The defendant and the claimant lived together for sixteen years. In 1989 they purchased a house which was under the claimant’s name. In 1996 the house was remortgaged and the claimant sold the house to the defendant for £85,000 at a profit of £20,000. The money obtained was used to pay off the mortgage payment by the claimant which was £44,000 and the rest (£31,000) was put into the claimants gold deposit account. When the property was first purchased it was seen as a joint venture by the parties even though the property was under the claimant’s name. However, after the property was sold to the defendant it was claimed that the there was no trust arising between them and it was no more or no less than just a remortgaging exercise. But the claimant claims that even after the remortgage they were still living together and the property was seen as a joint venture and they both still had a close relationship before the break up in 2006. The issue arising in this case is whether there was a relationship between the claimant and defendant in order for the claimant to obtain her share of the property.
This case was heard by a district judge alone. The role of the judge was to establish the facts and to apply relevant law to the case followed by a reasoned judgement at the end of the trial. The defendant and the claimant were both cross examined by the prosecution and the defendant and were also questioned by the judge on certain issues that was considered to be important. This allowed both parties to provide their point of view and evidence to support their argument in the case.
During the trial the doctrine of judicial precedent was used by the prosecution to support the argument he was presenting. To establish that there was trust between the two parties Lord Hoffman’s statement in a House of Lord case was used where it sated that trust can be established between the parties. The doctrine of judicial precedent plays an important role in the English legal system. It is based on stare decisis where the previous decision of a higher court stands. This is seen to be binding on all lower courts. So it will be seen that the judge must consider the case when the judgement is given. However, the judge may not have to follow the previous case and can distinguish it on the basis that the facts of the case are different, but if the facts of the case are the same the case can be used.
Many parties can go to court to solve their dispute. However, there are alternative methods available for civil cases rather than going to court.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is another method of resolving a dispute rather than going to court. ‘ADR is part of a continuing contest over the dominance of courts in the apparatus of state law  ‘. ADR may be more relevant to civil matters than criminal matter as it mainly focuses on disputes involving parties, however, it could also be used in criminal matters depending on the nature of the case. Both litigation and ADR have their strengths and weaknesses when the methods are used. ADR is cheap, less formal, flexible and quicker compared to litigation. But most important of all it protects the relationship of the two parties as there is no winner and no looser. However, if parties do not compromise it may take long for the dispute to be solved also the decision made in many types of ADR is not legally binding such as negotiation, mediation and conciliation.
On the other hand, with litigation it is expensive, formal and a more complicated process compared to alternative ADR. Furthermore, it can be time consuming and not flexible enough to suit the parties. However, a decision is always given at the end, which is legally binding and enforced through the courts. As to which method is used depends on the parties and the nature of the case and how complicated it is to solve. ADR is a more convenient way to resolve a dispute than using litigation as there are many more advantages in using this method than going to court.
Comparison of the Criminal and the Civil Court
There are many differences in the criminal and the civil jurisdiction in terms of the purpose of action, concern, parties involved, standard of proof, the decision and the court in which the case is heard (illustrated in the diagram above). Criminal law is concerned with offences against the state. In order for the defendant to be found guilty the burden of proof is on the prosecution to prove that the defendant is guilty beyond reasonable doubt. The courts of criminal jurisdiction are concerned with punishing the wrongdoer. On the other hand, the civil jurisdiction is concerned to resolve the legal dispute between the two private parties. The standard of proof is also different as it is on the balance of probabilities. These differences are reflected in the cases which were heard at court. For example, in the criminal court the case was to establish that the defendant was guilty of rape beyond reasonable doubt where as in the civil court there was no need for the prosecution to do this.
Overall, the courts are distinct in the cases that are heard. The role of the judge in each court was different but was seen to be very important. The courts are seen to be very important for parties that bring their cause of action to court as a person with legal knowledge is able to help them and decision given is binding and legally enforced to do right to the party that has been wronged.
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