Partie 2 du Cours de droit anglais

Publié le 25 novembre 2006 par oli

Partie 2: Cours d'anglais juridique High Court, County Court

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).