The Structure of English Courts

Or: how I came to appreciate federalism (again)

As I explained in my last post, English barristers generally practice out of chambers. Because I was unfamiliar with this terminology, when the Inner Temple's Pegasus Scholarship coordinator, Clare Heaton, e-mailed me to request that I specify what sort of chambers I would like to be placed with, I erroneously thought that she was referring to judicial chambers. I next concluded that I should inform myself a bit about the structure of the various courts of law in England (and Wales).*

My first attempt to understand the structure of English courts was a miserable failure that ended in frustration and a jumble of words that sounded familiar, but lacked meaning.** Based on the reports of previous scholars, I determined that civil and criminal cases are considered by different courts (but the word "generally" fell in there somewhere), and that there are different routes of appeal, circuits outside of London, High Courts, magistrates, the House of Lords, and something called the Privy Council.***

Instead of completing sufficient additional research to straighten myself out, I sought the advice of a former Pegasus scholar from Britain to the United States, with whom I had been in e-mail contact. This former scholar, Heather McMahon, had been the guest of my local Inn of Court in Richmond, Virginia, the John Marshall Inn of Court, in 2004.

Heather reminded me that the United States and Britain are "two countries divided by a common language," and informed me that "chambers" describes "a set of barristers working out of one building and sharing administrative staff and expenses." Nearly the same day, Ms. Heaton clarified that I needn't specify which individual chambers I would like to be placed with (this would be the equivalent of asking, "Ah yes, please set me up to observe the litigation team at Skadden, Arps in New York City, post haste"), but rather what areas of law I have experience in and would like to see in the English context. She added that I should try not to be too obscure -- as an example, she mentioned that "equine law" would be too narrow -- and suggested that a general commercial/chancery set might be appropriate.****

Ms. Heaton's suggestion not only forced me to rule out my narrow practice interests,***** but also pushed me in a welcome direction, as I have approximately no experience with the practice of law. (This is not to diminish my experience as a law clerk for law firms large and small, or for a federal Court of Appeals, but rather recognizes that my understanding of the law is largely intellectual.) At any rate, I requested to be placed with a set specializing in commercial law and one focused on garden variety criminal law.

The question of chambers put to rest, I revisited my interest in the structure of the English legal system, and discovered the following.

The English system is a bear

It is not merely that civil and criminal courts follow separate paths, and that the distinction between law and equity persists, but it is also that, unlike our system of federalism, which sets one elegant structure alongside fifty complex structures, the English system is one structure (and one that happens to give you a headache). Since it would require unnecessary effort to summarize the courts' structure myself, I will use quotations from internet sources instead.

From the British Department of Constitutional Affairs, I learned:

Most minor criminal cases, called summary offences, are heard in local magistrates' courts either by a panel of lay magistrates assisted by a legally-trained clerk, or by a legally-trained district judge sitting alone. Magistrates' courts also house family proceedings courts and the youth courts. The most serious offences, called indictable-only offences, are passed on by the magistrates' courts to the Crown Court to be heard, usually by a judge and jury. Some cases fall in between, called either-way cases, and may be heard in either court. Only Crown Court judges have the power to pass sentences above a certain level of severity, and so some cases may be transferred from magistrates' courts for sentencing once a verdict has been reached. There are 78 Crown Court centres throughout England and Wales.

The majority of civil actions are heard in the 218 county courts, which also handle some family and bankruptcy hearings. The manner in which each case is dealt with depends on the value of the claim, so that the time and cost spent on the case is appropriate to its value.

The High Court sits at the Royal Courts of Justice in London, as well as at some major court centres around the country. The work is handled by three divisions, depending on its subject:

Chancery Division: equity, trusts, tax, bankruptcy
Queen's Bench Division: contract, tort, commercial matters
Family Division: divorce, children, probate.

The Divisional Court of the High Court sits in the Family and Chancery Divisions, and hears appeals from the magistrates' courts and county courts. The Administrative Court in the Queen's Bench Division deals with a variety of judicial review matters.

The Court of Appeal also sits at the Royal Courts of Justice. The Criminal Division hears appeals from Crown Court cases, while the Civil Division receives appeals from the High Court, tribunals and, in certain cases, county courts.

For most legal cases in England and Wales, the House of Lords is the final point of appeal, although a small number of cases each year may be referred to the European Court of Justice, which has jurisdiction on matters of European Community law. All appeals to the House of Lords are about the meaning of the law, rather than the evidence in a case. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland; in addition, they sit as the Judicial Committee of the Privy Council to hear appeals from those Commonwealth countries whose legal systems are still linked to the UK.

I found helpful the following chart of the English courts:

As if all this weren't enough, the English system recently enacted the Constitutional Reform Act, which shifted things a bit, and established a Supreme Court for the United Kingdom. This court is still in the making, and will begin operation in October 2009.

* Scotland and Northern Ireland have their own legal systems.
** My social science friends will forgive me for writing that I had language, but no verstehen. Everybody else will pick on me for shoehorning German into my blog.

*** The Privy Council sounded particularly odd, because among my imaginings of British people is this idea that they have several, and to American ears, unusual words to refer to the bathroom, including the word "privy." But of course then it is being used as a noun, not an adjective, and that makes all the difference.
**** Had I not moved to Virginia, and stayed in New York State (which has its own eccentric rules of civil procedure), I might not have recognized the word "chancery," and rather might have mistaken it for a word to describe the dynamic an attractive single woman experiences when she finds herself seated in a busy bar on her own. However, as a result of my education in Virginia Civil Procedure, which retains the distinction between remedies at law and in equity, I understand chancery to be related to equity jurisdiction (the court's power to grant relief other than money).

*****My comically narrow legal interests are in peat mining and mishaps arising out of extreme ironing feats.