This essay will explain the use of juries. To follow a comparison will be drawn on a common law system against a civil system. The terms apply and distinguish will be defined together with an understanding as to which term was applied by Lord Tomlin in Hillas & Co, Ltd v Arcos, Ltd [1932] All ER Rep 494. Lastly, the key rules of statutory interpretation will be outlined.
The notion of trials by jury has developed substantially, dating back to 1215 with the introduction of the Magna Carta which recognised that a person has the right to be tried by the ‘lawful judgment of his peers’.
A modern jury is used in the Crown Court for hybrid/indictable offences. The jury (arbitrator of fact) determines whether a defendant is guilty/not guilty. A jury’s verdict can not be challenged. As established in ‘Bushel’s 1670 124 E.R. 1006’.
Where a defendant pleads not guilty to a hybrid offence the ‘Magistrates Courts Act 1980’ sets out the procedure in allocating a trial by jury in the Crown Court.
In civil law however, juries are used for a different purpose.
The ‘County Courts Act 1984’ sets out the following offences as to when a jury may be used:
- libel or slander;
- false imprisonment;
- malicious prosecution;
- fraud.
If an aforementioned offence is committed, subject to the seriousness it will be heard either in the County Court by 8 jurors or the High Court by 12 jurors.
A jury in a civil case adopts a dual role; they determine whether the claimant has proved his case and quantify the amount of damages.
Juries are used for hybrid/indictable offences to ensure a defendant is being tried by his own peers, as his/her liberty is at stake, resulting in the importance of a correct verdict being delivered, greater.
Only certain civil cases require a jury. As in cases of slander a perverse verdict can result in an individual’s reputation being damaged. Therefore, it is necessary to have a jury. In contrast other civil cases (commercial disputes) predominantly involve monetary issues which can be dealt by a judge.
‘Sections 44-50 (Part 7) in the Criminal Justice Act (CJA) 2003’ outlines the process of granting a non-jury trial in cases where jury tampering is likely.
The two primary sources of law in The English Legal system are legislation and common law.
Common law is, ‘the body of law set out in judicial decisions. It is created when a case arises in court and a relevant legal principle/statute has not been yet been in established which is applicable to the facts of that case. A subsequent judgment becomes precedent for future judges in inferior courts. This is defined by the term ‘Stare Decisis’, Latin for ‘stand by cases already decided’.
The system of precedent operates in two ways, considering the two parts of a judgment:
- The ‘Ratio Decidendi’, Latin for ‘reasons for deciding’. A binding element which must be followed.
- The ‘Obiter Dicta’, Latin for ‘sayings by the way’. These are comments made by judges which are persuasive for judges in inferior courts to use as guidance.
The purpose of the common law system is to ensure cases with similar facts yield the same outcome with the overriding objective of fairness being applied consistently.
A civil code system operates by adopting comprehensive codes. In contrast, common law deals with problems on a case by case basis.
Civil law does not have a system of binding judicial precedent. Instead, there is a ‘doctrine of jurisprudence constant’ which identifies a sequence of consistent cases and classifies them as persuasive law.
The major difference between a civil/common law system is litigation. A civil system is largely ‘inquisitorial’ with a judge playing the leading role. Opposingly, common law is largely ‘adversarial’ with lawyers driving litigation.
All inferior courts are bound by the decisions made in superior courts. However, superior courts may depart from a decision by way of distinguishing, overruling or reversing.
‘Distinguishing a case is the process of providing reasons for deciding a case under consideration differently from a similar case’.
‘A legal precedent is applied if the principles underpinning the previous decision are used to evaluate the issues of a subsequent case’.
Referencing the case of Hillas & Co, Ltd v Arcos, Ltd [1932] All ER Rep 494. it is clear Lord Tomlin distinguished the facts of this case to the case of House of May and Butcher, Ltd v Regent [1929] All E.R. Rep. 679.
Lord Tomlin states: “That case does not, in my opinion, afford any assistance in determining the present case”.
An adequate comparison between the two cases could not be drawn, therefore, the legal principle was distinguished.
The constitutional role of the judiciary is the application of legislation. The ‘Interpretation Act 1978’ was introduced to provide a set of interpretation rules.
Literal Rule
‘Words must be given their plain, ordinary and literal meaning’. The rationale behind this rule is a word must be applied in accordance with the intention of Parliament.
Sussex Peerage (1844) 1 CI & Fin 85 outlines this.
Golden Rule
‘Words must be given their plain, ordinary and literal meaning to the extent that they do not produce an absurdity (narrow-approach) or an affront to public-policy (wide-approach)’.
If Lord Tomlin was to apply this rule, he could modify the ordinary sense of a word to avoid repugnance.
Grey v Pearson (1857) 6 HL Cas 61 HL outlines this.
Mischief Rule
‘An examination of the former law to deduce the intention of Parliament’.
Lord Tomlin would have to recognise the gap in the law which Parliament intended to rectify and interpret words to suppress the mischief.
Heydon’s (1584) 3 Co Rep 7a outlines this.
A judge may refer to the purposive rule. This determines what Parliament intended to achieve when they created the act. There are also other aids to interpretation, such as; intrinsic aids which are matters within the act which make the intention of the act clearer or extrinsic aids which are matters outside an act which help put Parliaments intention into context.
In conclusion, juries today are used in hybrid/indictable offences for criminal law and cases of serious fraud/defamation in civil law. The common law system (adversarial) deals with cases daily with judgments then becoming precedent. A civil system (inquisitorial) deals with comprehensive codes which are subject to refinement. Lastly, the Interpretation Act 1978 governs how the rules/aids to interpretations may be used.
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