Cours de droit anglais
Boundary between High Court and County Court:
How to start an action in the High court and pursue it in the County court:
Ÿ Parties must consent to the transfer
Ÿ The High Court is satisfied that the subject matter in dispute in likely to be within relevant county court jurisdictional limit
Ÿ The
High court must consider that the proceedings are not likely to raise
any important question of law or a fact and suitable for determination
by a county court
From County court to the High court:
Ÿ Order of the High Court if it think it’s desirable
Ÿ By order of the county court on its own motion
Ÿ On the application of a party
Ÿ The County court considers that important question of law or of fact are likely to rise
Ÿ Court considers that one of the parties is likely to be entitled to an amount exceeding the one coverable in the County Court
The jurisdiction of the High court is comparable to the Superior Courts in the
federated states. It is a court of first instance and an appellate
jurisdiction. The name of the appellate court changes a bit from the
first instance names (e.g. The family division becomes the family
divisional court) In most common law countries, the same court can be a
court of first instance and an appellate court. The High Court was
created by the 1873 Supreme Court of Judicature Acts (Reorganisation of
Superior courts) In 1875, UK was a superpower but with a arcane system
of courts.
Ÿ The
Chancery Division deals mainly with property, trusts, administration of
estate, bankruptcy, partnership, companies, revenue disputes, probate
business and it may sits as a patent court (patent pending = brevets en attente de dépôt)
Ÿ The
Queen’s Bench Division: deals mainly with claims in contract and tort,
exercises appellate and supervisory jurisdiction (judicial review) over
inferior courts, arbitration, public bodies, and public officials. (Writ
of habeas corpus, if it is issued by the QBD, the detainor must explain
the detention and the causes, if he doesn’t, the detainee is brought
before the court to testify) (cf; Hamdan case). It can sit as an
admiralty court (maritime law, deals with ships and aircraft, claims
arising out of collision, damage to cargo, goods supplied and repairs.
It can also sit as a prize court at a time of war, as a commercial court
and as an administrative court
Ÿ The
Family division: jurisdiction in matrimonial matters , guardianship,
wardship, custody, maintenance, adoption of children non contentious
probate matters
The
judicial control exercised by the High court is based on 2 doctrines:
The error of law and ultra vires (excess of power). Ultra vires is the
mission of the High Court to make sure that inferior jurisdictions,
administrative bodies, tribunals (belong to the executive), ministers,
local authorities don’t exceed any of the limits expressly set by
Parliament.
The QBD and QBDC may grant one of the three prerogative writs:
Ÿ Writ
of certiorari: quashes a decision found to be invalid because it is
outside the power granted to the tribunals or it is contrary to a pple
of natural justice, or there was an error or law.
Ÿ Writ of prohibition: prevents future or continued unlawful actions by tribunals on the same grounds as certiorari
Ÿ Writ of mandamus: royal order to secure the proper performances of a tribunal
The
distinction between appeal and a judicial review is that appeal is
concerned with the merits of the case whereas judicial review is
concerned with the legality of the process, the respect of the « due
process of law » In the case where there’s no appeal after the tribunal
sentence, the judicial review is always a possibility.
In
the accusatory system, (accusatorial, adversarial…) the person
responsible for the collection, selection and presentation of the
evidence is the parties. The difference between the accusatorial and
inquisitorial system is the question of the person responsible of the
administration of the evidence: Who bares the onus (burden) of the
proof? Accusatorial: parties, inquisitorial an official, so that holds
judicial office.
The
trial at common is a process in the sense of the trial of strength,
between the claimant and the defence. In the civil system, everything’s
been done upstream; the judge distraction must build up a file.
The criminal trial at common law: In the , especially in and , the pples are the same throughout the common law world though the terminology changes.
There is a classification of offences. The Crown Prosecution Service (CPS) in , and , decides on the appropriate charge, the determination of the charge determines the court:
Three offences:
Ÿ Minor cases, summary offences or petty offences, (US: misdemeanor)
Ÿ Indictable
offences, offences triable upon indictment can only be tried by a judge
and jury, it prevents any summary type of trial
Ÿ Offences triable either way
So
common law must deal with a pb, there are 3 kinds of offences for only 2
jurisdictions, there’s bound to be a concurrent jurisdiction.
Magistrates’
court and the Crown court have original criminal jurisdiction
(competence de première instance). The work is divided according to the
seriousness of the case. In the M’sC, trial is summary whereas the Crown
Court is a jury trial
Offences
triable upon indictment: Originally, at common law, all offences are
triable upon indictment. The hybrid offences are creatures of statutes:
Ÿ Old
offences are the most serious: murder, manslaughter, rape, robbery,
blackmail, causing grievous bodily harm with intent. Today, the statutes
create indictable offences. The definition of offences by the court is
today, contrary to the pple of the separation of powers.
Ÿ Summary
offences only: exclusive jurisdiction of the M’s C. A summary trial
must be created by a statute. A designation of an offence as summary
prevents any jury trial.
Ÿ Offences
indictable either way: the court may impose a trial upon indictment but
it may not insist on a summary trial if the defendant objects
Procedure before the M’s C in the event of a offences triable either way:
The
charge is written down in the M’s C and read to the accused. The M’s C
listens to the prosecutor and the accused about the most suitable mode
of trial. The court proceeds to decide on the mode of trial. It will
take into account the nature of the case, the seriousness of the
offence, the limited power of punishment of the M’s C. It weighs the
pros and cons. It will either try the defendant immediately, or commit
him to a Crown Court. If the Magistrates court considers that summary
trial in more appropriate, it must explain why to the accused. The
accused needn’t consent to an immediate summary trial, he can opt for a
trial by jury, however, if the M’s C court decides on a trial upon
indictment, the accused cannot refused to be tried by the Crown court.
After trial, the M’s C court has the power to send the accused to the
Crown court to be convicted. (although, in some exceptional cases, an
accused bight be tried but not sentenced). If the accused opts for a
trial upon indictment, the M’s Courts shall proceed with committal
proceedings. For the choice of jurisdiction, M’s should give proper
consideration to all the factors and not be convinced by the accused or
prosecutor to allow summary trial when the case should be tried by jury
trial. It is possible for the Magistrates court to change: it may start
as an examining court and transform into a trial court, or the other way
around.
The criminal trial upon indictment:
The prosecution in entitled to an opening speech; he will lead evidence through prosecution witnesses who will be subject to:
Ÿ Examination in chief
Ÿ Cross examination
Ÿ Re-examination
The
trial upon indictment starts with the preferment of the bill of
indictment, it is the presentation of the bill of indictment i.e. formal
statement of the charge against the accused. Once the indictment has
been signed by the prosecuting counsel, the accused may be brought
before the court and is asked to plead to the indictment. This is called
the arraignment. The indictment is a description of the offence, it
must be precise, it states the common law name, the statutory name. It
must also contain particulars as may be necessary for giving reasonable
information as to the nature of the charge so the accused knows the
detail of the charge.
Order of proceedings:
1. The
arraignment and the plea: The accused is brought to the bar of the
court; the indictment is read out to him. He is asked to enter a plea in
respect of each count. After the plea of guilty there is no empanelling
and no trial whatsoever, there’s just sentencing. However, after a guilty plea, there’s a trial.
2. Empanelling
and swearing of the jury. After a guilty plea, a panel of 12 British
citizens is brought to the court and after an opportunity of
challenging, it is sworn in. (US: voir dire: questions asked to the
potential jurors to verify their « worth ») The indictment is read over
to the jury who is told of his obligations to listen to the evidence and
to determine guilt.
3. Opening
of the prosecution: Counsel for the prosecution will address the jury.
Witnesses of the prosecution will give their evidence in turn:
Examination in chief of prosecution witnesses by the Prosecuting Counsel
Cross examination of prosecution witnesses by Defence Counsel
Re-examination of prosecution witnesses by Prosecuting Counsel
Any evidence brought to a court of law must be tested is this court of law (pple on which the accusatorial system is based)
4. Defence
submission: the barrister for the defence will ask the trial judge to
direct the jury to acquit because there is no case to answer, the
prosecution wasn’t convincing. (US: defence motion for an acquittal). If
the judge is convinced, he must ask the jury to acquit, the jury is
bound to do so. If he isn’t, there’s the defence opening
5. Defence opening speech: Defence counsel can make an opening statement. He will call his witnesses one by one.
6. Witnesses will be called by the Defence:
Examination in chief of the Defence witnesses by the Defence Counsel
Cross examination of Defence witnesses by Prosecuting Counsel
Re examination of defence witnesses by defence counsel.
There
is a right against self-discrimination in the entire common law world.
Though it is a constitutional right in Canada (Charter of Human rights
of 1982) and the US (Vth amendment), it has been restricted in the
United Kingdom, as it only a pple of Common law: since 1990n though the
accused has a right not to be a witness at his own trial, the judge can
infer from his silence. This pple means that the defendant cannot be
forced to take the stand. This pple takes place at the police station as
well as in court.
7. Closing
speeches, both counsels may address the jury at the end of the
evidences. It is first the prosecution that’s speaks and then the
Defence Counsel who has the final word.
8. At the end of the final speeches, there is a summing up (US and : sommation)
9. Verdict: the jury will retire to reach a verdict. It is announced by the ??? In open court.
10. Plea
in mitigation: The defendant can address on matters relevant to the
sentence. (plea in extenuating circumstances). Then, there is the
opening of police and criminal record.
11. The judge, finally, passes sentence on the accused.
Every
accused in the Common law system has a right to have the prosecution
case tested in a court of law and his own case put. The defendant isn’t
forced to give evidence against him; he has a right to remain silent (cf
supra). The judge sits as an umpire, a referee. He has control over the
process of trial (or progress of trial). And as a matter of law, he has
a decisive role of the admission of the evidence (based on his lifelong
experience).