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(Note de Curs pt. anul I DREPT I.D.)
Unit 1. The Legal Profession
1.1 The division of the legal profession
Unlike in most other countries the legal profession in England and Wales is divided into two branches and the expression ‘lawyer’ may be used to refer to either a solicitor or a barrister. This duality of function between barristers and solicitors is peculiar to the English common law system and, indeed, is even not followed in the Diff United States. Read the following extract which outline the differences between barristers and solicitors.
In the popular mind, the distinction between barristers and solicitors is that the former are concerned with advocacy in court while the latter are concerned with legal work out of court. This is not ‘quite’ the case. Barristers are primarily concerned with advocacy and they have an exclusive right of audience, in the High Court, the Court of Appeal and the House of Lords; but they are not confined to advocacy and may devote a deal of their time to giving expert opinions on legal matters. Nor are solicitors exclusively concerned with out-of-court work for they have a right of audience in magistrates' courts, county courts and, in some instances, in the Crown Court. This division of the legal profession is a curious one and is unknown even in many Commonwealth countries which might have been expected to adopt the English professional model along with their adoption of the common law. Hogan, Seago and Bennett, A Level Law (Sweet and Maxwell 1988), pp. 32-3.
1.2 Legal education and training
The education of both barristers and solicitors has common features. Both will complete the academic stage of their legal education The first or academic stage is normally satisfied by a law degree. As an alternative, non-law graduates and mature students (over 25) can take a common professional examination at degree level. The second or professional stage consists of a full-time vocational course and final examination, based to a greater extent on the problems likely to be encountered in practice. The solicitor takes the Final Examination under the aegis of the Law Society while the barrister takes the Bar Examination under the aegis' of the Inns of Court School of Law This is followed by what is, in effect, an apprenticeship called articles for solicitors and pupillage for barristers, during which the trainee does practical work under the close supervision of an experienced member of his profession. As to their training, the difference is more marked. After completion of the prescribed period of articles of clerkship, the entrant will be admitted as a solicitor. For Barristers it is first necessary to be admitted to one of the four Inns of Court - Gray's Inn, Lincoln's Inn, Inner Temple, and Middle Temple. These are very old institutions dating from the fourteenth century. Each Inn is a combination of club, college, and professional organization and is governed by its senior members or Benchers, who are often judges. A student intending to practise must attend a full-time one year course in London in preparation for Bar Finals. After passing the examinations, the student will be called to the Bar by his Inn. Before practising on his own account, it is compulsory for him to undergo a period of pupillage by reading in chambers. (For 12 months he will be the pupil of a senior barrister).
The 'attorney' disappeared. where litigation is involved. the Magistrates' Court Service. He may also be concerned with drawing up wills. Since 1804 it has been a criminal offence for any person other than a solicitor to undertake this work for gain. 3 . After admission. The solicitor may be described as the person who deals directly with the client and. a nationalised undertaking or in the legal department of a business concern. the solicitor may take a salaried position in private practice or may seek an appointment with a local authority. Much of his time may be devoted to dealings with property. By the close of the Middle Ages the two sub-professions became merged. the formation of partnerships and companies. the execution of mortgages matrimonial disputes. the civil service. The origins of this side of the profession go back to the mediaeval 'attornatus' (attorney) who was . he may be asked to advise on business and family matters. The attorney's business was originally to help the client in the preparatory stages of cases. in particular the conveyancing of land and houses.1. Conveyancing has become an important part of a solicitor's work providing over half the income of the average solicitor's practice. In the course of time a similar class of people practising in the Court of Chancery came to be called 'solicitors'. In 1845 the Law Society as the representative organisation of the solicitor's profession came into being. The work of a solicitor is too diverse to classify. Solicitors may form partnerships but not limited companies.3 Legal practice The practising solicitor.an officer of the court. instructs the barrister. but the barrister is not . (Conveyancing is the legal process of buying and selling property). the administration of estates and trusts. The solicitor is the person to whom an individual first turns for advice and.as the solicitor still is. in addition to dealing with a variety of legal problems.
In civil disputes. he will be responsible for matters preparatory to the trial such as the preparation of documents and the collection of evidence. The practising barrister. Some solicitors may specialise in one or more of these matters or there may be specialisation by the different partners in a firm. In the manner of the mediaeval guilds the Bar was.taxation problems. for instance. but only through a solicitor. by the fourteenth century. In many cases he will try to negotiate a settlement with the other side. Today there are only four of the Inns left (the Inner and Middle Temples. Even to this day no one can practise at the Bar unless he has been 'called to the Bar' and become a member of an Inn. Where the solicitor does not appear as advocate himself. The newly called barrister will take a room or a seat in existing chambers and wait for work to be given to him by a solicitor. in particular he must take written 'proofs' of evidence from his witnesses. he may be primarily concerned with getting redress for his client without recourse to the courts. The best way of explaining the functions of a barrister is to call him a 'trial' lawyer. Lincoln’s Inn and Gray's Inn. with the insurance company in accident claims. 4 . There are some 60 000 practising solicitors in England and Wales. Most matters appertaining to the profession are subject to statutory powers administered by The Law Society. organized as an association of members of the Inns of Court. He may not advertise and may not normally deal with clients directly. and representation of clients involved in criminal prosecutions and civil actions. Barristers are not allowed to form partnerships but a number will normally combine to share rooms or Chambers.
The Master of the Rolls (MR) presides over the civil division of the Court of Appeal. 5 . As head of the judicial system of the country he presides he is responsible for court administration. Judges are not subject to ministerial direction or control. Judges Contrary to the practice in some continental countries. Another feature of the judiciary in this country is that there is no established system of promotion. there is no separate judicial profession in England and all judgeships are filled by the appointment of practising barristers. may be filled by practising barristers with no previous experience as judges. The Attorney. except Magistrates' Courts. He has certain supervisory duties relating to solicitors.4.1. including the offices of Lord Chancellor and Lord Chief Justice. Judgeships at any level. He presides over the Queen's Bench Division of the High Court and the criminal division of the Court of Appeal.5 Judicial offices The Lord Chancellor (abbreviated as LC) holds an office which is partly political and partly judicial. 1. He is the Head of the Bar and the Chief Law Officer of the Crown. As a Minister of State and member of the Cabinet. They are normally appointed from practising barristers (advocates in Scotland) or solicitors. Lay magistrates are trained to give them sufficient knowledge of the law. The Lord Chief Justice (LCJ) holds the senior judicial office in the country. and for appointment of most judges and magistrates.General is a barrister. he holds office only for the duration of the Government.
While it would be true today to say that the major role is played by the Lord Chancellor. The two are known as the Law Officers. but this has not been accepted by any Government. amongst other things. Perhaps some inefficiency is the price to pay to avoid the danger of vesting so much power in the hands of a single department.General who. Suggestions have been made from time to time that these functions should be concentrated in a Ministry of Justice. 1. many functions rest with the Home Secretary. and law reform. judicial appointments. and The Law Society. He is. 6 . is also a barrister. the legal profession. the Attorney-General.His deputy is the Solicitor. contrary to his title. responsible for the carrying on of important criminal proceedings and giving advice in relation to prosecutions. the Director of Public Prosecutions. The Director of Public Prosecutions (DPP) is a lawyer (barrister or solicitor) appointed by the Home Secretary.6 Administration of the law There is no single person or body in this country responsible for the administration of the law in general or for particular matters such as the maintenance of the courts. the Lord Chief Justice. He is also a political officer. who acts under the supervision of the Attorney-General. the Bar Council.
2. Some of these rules. There was a court in each shire. but we cannot alter it. rules affecting the lives and activities of people. we regulate our conduct by it. At the same time. As the society develops and becomes more complex. We must accept. The Norman Conquest made little immediate impact upon English law. for example. which meant the customary law.3 THE COMMON LAW Origins of English law Until and for some time after the Norman Conquest. enable us to predict what will happen in a given situation. the 7 . then that rule will acquire the status of a 'law' in the generally accepted meaning of the word.1 The Nature of Law Many books have been written and continue to be written about the nature of law. it could scarcely be said that there was such a thing as English law. rules of a more definite nature emerge and a body of law comes into existence. The word 'law' suggests the idea of rules. man-made rules will develop to control the relationships between members. At the same time some machinery for its enforcement must be established . In any community or group of people. these courts were under the control of a local baron or other powerful person. William I promised that the English should keep their rights and their law. the law of gravity. INTRODUCTION to ENGLISH LAW 2. such as the laws of science.UNIT 2. but we have no control over them. When a person or persons having power in the community enforces the rule.
at first by anonymous lawyers in the Year 8 . The judges accordingly looked to previous decisions for guidance in order to maintain consistency. In particular. In other words the doctrine of precedent began to emerge. or Assizes. and we see the beginning of law reporting. therefore. the judges tended to select and apply certain customary rules in all cases rather than rely in every case upon enquiring into local customs. brought with them a most important change in the law itself. This process was assisted by the King who sometimes created new legal rules which were to apply nationally. If previous decisions were to be followed. dealt with both civil and criminal cases. The different local customs were. As they went around the country on circuit. This process was substantially completed by the end of the thirteenth century.Normans developed a strong central government and over the following 200 years greatly increased central control over the administration of the law. of the itinerant justices. and by the permanent courts which had nation-wide jurisdiction. particularly the travelling judges. The Assizes (regional hearings). the unification of the varying local customs. Judicial powers were given to be exercised at the sittings. The emergence of common law The new institutions. The next step was to send out travelling commissioners with judicial powers. William I had used travelling commissioners to compile his national inventory known as the Domesday Book and this system had also been used to enquire into matters of local administration. replaced gradually by a body of rules applying throughout the country and known eventually as the common law. Henry II created important new remedies in relation to land law. it was essential that the judges' decisions be recorded.
was well established but which had already acquired a degree of rigidity. As conditions changed and new forms of property and interests in property developed. the term ‘common law’ describing the historical development of law in England and Wales. he could make such order as appeared to him to be fair. there came to be many types of wrong for which the courts could grant no remedy. Subjects unable to obtain a remedy from the common law courts would petition the King asking for justice. began with the unification of local customs to form the common law and has been developed down to the present day by the judges.The most modern use of the term represents a particular set of rules based on judicial decisions in contrast to statute law and in contrast to the rules of equity. they became increasingly reluctant or unable to grant remedies for new and unfamiliar types of wrong. There are three basic meanings of the term ‘common law’: . and these petitions were usually passed to the Chancellor. The main stream of English law. as precedent has been built upon precedent. by the end of the thirteenth century. -It means law based on precedents. the general system of law which is common to the whole country. As the common law courts became separated from the King's Council. after hearing the petition. 2. -It means national law. just or 'equitable'.Books. The latter was empowered to order the parties to appear before him under penalty for refusal and. therefore. These sittings of the Chancellor became more regular and by the end of the fourteenth century had developed into a 9 .4 Equity Common law which.
for instance.. equity should prevail. called a common injunction. administering its own form of justice known as equity. ."' Williams.This was by means of what was called a common injunction. The Chancellor. Equity was never a comprehensive system of law as was common law. while not expressly overruling common law decisions.Marsh and J. B's proper course was to apply to the Court of Chancer for an order. but was for the most part a collection of individual rules or principles. and in the view of the Court of Chancery the action was inequitable. Equity thus worked 'behind the scenes' of the common law action. Learning the Law (Stevens 1982). the common law again began to develop new rules. refuse to allow a legal owner of property to enforce his legal rights.B. directed to A and ordering him not to continue his action. In the reign of James I. “If common law was the book. pp.new Court of Chancery.Soulsby “Outlines of English Law” p. the principle was established that.. Suppose that A brought an action against B in one of the common law courts. the common law principles were theoretically left intact.' The result justified the sarcasm of the critic who said that in England one'. in the event of a conflict between common law and equity.. 6). Nevertheless. If A defied the injunction the Court of Chancery would put him in prison for contempt of court. equity played an important part in developing certain aspects of law. would sometimes. court was set up to do injustice and another to stop it. but by means of this intricate mechanism they were superseded by equitable rules in all cases of 'conflict or variance. equity was a page of errata”(S. 26-7. After the period of rigidity which had led to the birth of equity. 10 .
including erecting a fifteen foot high fence. They brought an action against the cricket club for private nuisance seeking damages (the common law remedy) and an injunction (an equitable remedy) to prevent cricket being played on the ground. Equity recognises legal rights and does not take the place of the common law. Cricket had been The facts: The plaintiffs 1 owned a house adjoining a cricket ground. One of the most important features of equity which distinguishes it from common law is the maxim that equitable remedies are discretionary. Per 4 Lord Denning MR: 5 'The court when deciding whether to exercise its equitable jurisdiction and grant an injunction must have in mind that it is 11 . Case study: Miller v. Cricket had been played on the ground for a long time before the house had been built. Jackson  QB 966 The facts: The plaintiffs 1 owned a house adjoining a cricket ground. The cricket club argued that it had done everything that was possible to stop the balls coming into the plaintiff's garden. Held: The cricket club were liable 2 to the plaintiffs for private nuisance. c He who comes to equity must come with clean hands. The plaintiffs complained of damage caused by cricket balls and loss of enjoyment of their property. An award of damages 3 was made against them but a majority of the Court of Appeal refused to grant an injunction preventing the playing of cricket. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.As the purpose of equity was to achieve justice and fairness. The courts will decide whether to grant a remedy after considering the individual circumstances of each case. the courts have developed a set of rules to govern the application of equity. We will examine this by way of a case study. d Equitable remedies are discretionary. These are called the 'maxims' of equity. Litigants do not have a right to an equitable remedy. There are many equitable maxims of which the following are just brief examples: a Equity will not suffer a wrong to be without a remedy. b Equity follows the law. They are different from the rules which apply in the common law and these maxims are the reason why we distinguish between common law and equity. Equity will only intervene when there is no adequate common law remedy.
the special circumstances are such that the public interest must prevail over the hardship of the individual householders who were deprived of the ability to enjoy.under a duty to consider the public interest. the criticism that 'justice is as long as the Chancellor's foot' 6 can no longer be justified. because equitable remedies are discretionary. Where the effect of granting an injunction would be to prevent cricket being played on a ground where it had been played for seventy years or so.5 The Classification of Law Public law consists of those fields of law which are primarily concerned with the State itself. the court could refuse to grant an injunction because it considered it would not be just and fair to do so. which regulates the functioning of the organs of the central government. Having proved this the court had no power to withhold the common law remedy (although the judges will determine the amount to be paid by the defendants). in peace and quiet. Accordingly equity has developed over the years into a consistent body of rules which eliminates as far as possible a subjective and arbitrary8 application of its principles.what may appear just to one person would not be to another. In contrast. Judicial decisions. and 12 . Similar cases must be treated similarly if justice is to be achieved. Before concluding this introduction to equity you should be aware that although it was originally a flexible body of rules. Justice is a 7 subjective concept . based on the individual judge's idea of justice creates uncertainty and in itself leads to injustice. Thus constitutional law. their house and garden while cricket was being played. and therefore the law. 2.' Can you see the difference in the court's approach to the common law remedy and the equitable remedy? In order to be awarded damages the plaintiffs only had to prove that the defendants were liable in nuisance.
theft is forbidden and thieves are punished to deter them.the relationship of the individual to them. If a dispute arises between two individuals. Criminal law is concerned with conduct of which the state disapproves so strongly that it will punish the wrongdoer. a quarrel may ensue and violence or other criminal conduct may result. Criminal law is also 'public' law because crimes are wrongs which the State is concerned to prevent. is a branch of public law.5. Civil law has a complementary function. Thus the branches of the law which govern private obligations . except perhaps incidentally. The party in the wrong was 13 . Private law is that part of the law which is primarily concerned with the rights and duties of individuals. from repeating this conduct. and others of a like mind.such as the law of contract and of torts . to some extent. Out of the many ways in which the law can be classified.are all aspects of private law. rules of civil law were developed in order to determine which of the two parties was in the right. To prevent this. although closely connected are different. 2. It is felt that society cannot work if people are allowed to take the property of others at will. So too. therefore. we shall limit our discussion the difference between criminal and civil law and substantive and adjective (procedural) law. arbitrary.1 Civil and criminal law The objectives of criminal law and civil law. Both the main division and the sub-divisions are. These are only examples of sub-divisions of public and private law. There are other aims of punishment but it is not the objective of criminal law to compensate the victim. each believing himself to be in the right. is the law of property.
There are many other instances. not in the nature of the wrongful act but in the legal consequences 5 that may follow it. it is both a crime and a civil wrong. In criminal proceedings the terminology is as follows. It is important to note that the same series of events may sometimes give rise both to criminal and civil proceedings. The true distinction resides 1 . If it is capable of being followed by civil proceedings. although in this type of situation the loss will normally be met by A's insurance company. such as the failure to guard dangerous factory machinery and the sale of mis-described goods. if found guilty of the offence. Criminal and civil proceedings are (in the normal case) easily distinguishable: the procedure is different. If it is capable of being followed by both. therefore. two types of issue arise.then obliged to make redress by compensating the other for any loss he may have caused. Careless driving is conduct which has been made a criminal offence and A may be prosecuted by the Crown in a criminal court and. that means that it is regarded as a civil wrong. or else may be released on probation or discharged without punishment or dealt with in 10 14 . that means that it is regarded as a crime (otherwise called an offence). tort (literally meaning wrong') and property. The object of the civil law therefore is to resolve disputes and give a remedy to the persons wronged. For instance. You have a prosecutor prosecuting a defendant. because what is done (or not done) may be the same in each case. and the result of the prosecution is 15 successful is a conviction. and the defendant may be punished by one of a variety of punishments ranging from life imprisonment to a fine. If the wrongful act (or omission) is capable of being followed by what are called criminal proceedings. Examples of civil law include the law of contract. where the same incident may give rise to both criminal and civil actions. Let us examine this more fully by reading the following extract. The issue of whether A has caused loss to B through negligence and should therefore pay B compensation will be determined in a separate civil action brought by B in a civil court. the outcome is different. not to punish wrongdoers. These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done. punished. and the terminology is different. if A is alleged to have driven carelessly and injured B.
so is "civil offence" (the proper expression is "civil wrong"). In a civil case. It is hardly necessary to point out that the terminology of the one type of proceedings should never be transferred to the other. who has the right to determine how 15 . is a misnomer. On the other hand. such as trespass on a railway line. whilst the one act constituted both a criminal offence and a civil wrong.. In our hypothetical situation. Williams. The common announcement "Trespassers will be prosecuted" has been called a "wooden 2 lie. a criminal prosecution is usually begun in the name of the Crown (i. (There are some statutory offences of trespass. but they have important civil jurisdiction over licensing and family matters. or to perform a contract (specific performance). The Crown Court has almost exclusively criminal jurisdiction. or to do or not to do something (injunction).e. the law is set in motion by a private individual. The corresponding word in civil cases is "liable". In England. and the decision as to whether or not to press the prosecution is not the concern of the victim. and a "squatter“ 3 or other trespasser in a house that is occupied or required for occupation generally commits an offence if he fails to leave upon request. the state) through the machinery of the police and the Crown Prosecution Service. Turning to civil proceedings. You should be aware from studying this passage that. -Criminal action. Magistrates are chiefly concerned with criminal cases. or to transfer property to him. find it convenient to set up separate systems of criminal courts and civil courts. the word "guilty" is used primarily of criminals. the parties and the terminology differ. pp. the legal consequences under the criminal and civil law will be different Most countries. One does not speak of a plaintiff prosecuting or of the criminal accused being sued. Civil and criminal courts are partly but not entirely distinct. brings an action against) a defendant. and so is the High Court apart from appeals. the county court is only civil. not (generally) a crime." for trespass has traditionally been a civil wrong. including England. Learning the Law (Stevens 1982). 3-4. and the judgement may order the defendant to pay the plaintiff money. but this word is also used in criminal contexts. Text notes: 1 is 2 this refers to the notice board which is often made of wood 3 person occupying building without permission. or a firm. The proceedings if successful result in judgement for the plaintiff. the terminology generally is that a plaintiff sues (e.for example. Again.2o 25 3o 35 various other ways.g.
The two actions will be totally separate. the Crown (R. As judicial decisions form an important part of the law it is necessary that they should be available to lawyers and the public. signifying Regina or the Queen) prosecutes the accused. In the civil case of Jones v. a confession will be carefully examined to see if any pressure was brought to bear upon the accused. This reference contains the year in which the case was published. The judgements in the higher courts are published in a series of law reports the most common of which are: All England Law Reports Weekly Law Reports Queen's Bench Appeal Cases Chancery Criminal Law Reports There is a standard form of reference which tells the reader where the report of an individual case may be found. The rules of evidence are much stricter in criminal cases. for example. v. A plaintiff in a civil action will succeed on the balance of probabilities that is if he can convince the court that he has only a marginally stronger case than the defendant. but an admission in a civil case will be fully accepted. for the accused must be proved guilty beyond all reasonable doubt. the plaintiff sues the defendant. the name of the publication in abbreviated form and the page number at which the case can be 16 . Smith.far the action shall continue. who may also be referred to as the prisoner or defendant. You would be prosecuted by the state in the criminal courts for dangerous driving and sued by the elderly lady in the civil courts for negligence. Thus in the criminal case of R. The standard of proof required in criminal cases is greater. Differences also exist in the rules of evidence and procedure. Smith. reflecting the fact that a criminal conviction is likely to be far more damaging to a person's character than failure in a civil action.
In addition. His employer has now discovered this.000 in damages. round brackets are used. a case reported at  3 All ER 365 will be found in the third volume of the All. If the case is cited with the year only and not the reference. England Law Reports for the year 1979 at page 365. for example Donaghue v. the difference between criminal law and civil law. It is important that you get into the habit of doing this from the start of your legal studies. takes money regularly from the till over a period of several months and spends this on an extravagant way of life. with examples. The plaintiff is successful in the action and Bob is found liable. this signifies that knowing the year is essential to finding the case report. Legal exercises What is wrong in the following situation and why? Bob has been charged with murder and is sued in the county court. A final point you should remember at this stage is that case names are always highlighted in some way. Stevenson (1932). for example. when the case reports for a single year are contained in more than one volume of a publication the number of the volume will appear before the name of the publication. In most books this will be by italics but if you are writing by hand you should underline the case names. Why is it necessary to draw this distinction? Jones. What legal consequences may now arise? 17 . He is punished by being ordered to pay the plaintiff £10. So. You will notice the use of square brackets.found. a shop assistant. Explain.
Procedural or adjectival law is also a set of rules.5. There are peculiar conventions in pronouncing the names of cases. pp. or "Rex" (or. When 5 there is a king on the throne. Thus Smith v. "The Queen") "against Sikes. v." (2) In civil cases the "v. a policeman) appears instead of the nominal prosecutor. 15 Civil cases will usually be cited by the names oftheparties. This last is a convenient usage for the student of criminal law. and v. Rex and Regina both conveniently abbreviate to R. can be referred to informally as "R. here the name of the actual prosecutor (e. justice of the peace). "Regina") "v.A further difference between civil and criminal law is the way that cases are cited. Sikes may both be written R. less serious crimes 3 judges without legal qualifications 2. In court. v. being short for versus. such as R. Rex is used instead of Reg. however. This happens when the case is tried summarily2 before magistrates3 (i. Sikes. being short for Regina (pronounced "Regyna").2 Substantive and procedural law Williams in Learning the Law defines substantive law in the following way: ’Substantive law lays down people's rights. Sikes" (pronounced as written). The King (which was a civil proceeding against the Crown) is pronounced with an "and" Lawyers thus write one thing and say another." but will contain the name of a private person." both in court and out 25 of it. Fletcher. 10 In some types of criminal case the title of the case will not contain Rex or Reg.g. If the Queen (as representing the Government) is a party she is.Reg. Hughes is always pronounced (but never written) "Smith and Hughes.v. Sikes" (again pronounced as written). v.thus:Rylands v." and similarly with the King. Williams.e. more serious crime 2 i.. It is helpful to know certain rules for the naming of cases. but R. in civil cases.e. Text notes: 1 i. (1) A 20 criminal case. duties. whomever it is .'' and similarly British Coal Corporation v. the Queen..e. Trials on indictment 1 are in the name of the Queen (as representing the State). 18 .' By this is meant the actual content or substance of the law." coupling the names of the parties is pronounced "and. the proper method is to call it "The King" (or. usually called "The Queen. 17-18. may also be used. Learning the Law (Stevens 1982). thus a criminal case is generally called Reg. liberties and powers. Some textbooks on criminal law even print simply Sikes. Thus Rex v. Sikes or Reg.the King. before the "v. thus: British Coal Corporation v. Sikes. which saves having to remember which is which. These are the rules on which the courts base their decisions. v.
and the rules of procedure are now more flexible than once they were. though it is of great importance to the practitioner.the rules of criminal procedure have not been codified. Most proceedings in the Supreme Court (that is. The R. are amended from time to time. Introduction to English Law (Butterworths 1985). James. and in early law formal requirements. by a committee known as the "Rule Committee. however.C. is today treated as the servant and not the master of substance. as it is sometimes called. Similar rules are laid down for the County Courts: these appear in the County Court Practice. that in the earlier stages of legal development these rules assume paramount importance: form is better understood than substance. are set out in the Annual Practice (The "White Book"). With some exceptions such as the magistrates' courts rules .’) . or where it is to be tried. 19 .S. Procedural rules are. . they are to be found in works such as Archbold's Criminal Pleading. much remarked upon by historians. procedure.C.which is headed by the Lord Chancellor.As you read the next passage think about these questions: a Why was procedure so important in the past? b Is procedure still important today? Rules of procedure or "adjective" law. are the rules which determine the course of an action. . These rules. usually determined legal rights. It is a striking fact. most of the more important civil proceedings) are now governed by a code of rules known as the Rules of the Supreme Court(‘R. the rules which govern the machinery as opposed to the subject-matter of litigation. Because the development of the common law has been continuous this early dominance of procedure has had a lasting influence upon many of the doctrines of the modern substantive law. 62. in other words. they govern such matters as how the case is to be presented. in what court it shall lie.which treats of the work of the magistrates' courts. They derive from various sources. Generally speaking. under powers first conferred by those Acts. rather than abstract principles. p. Evidence and Practice and Stone's Justices' Manual.S. which were originally authorized by the Judicature Acts 1873-1875.
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