Differences between civil and criminal

Introduction

This assignment will consider the differences in Civil and Criminal law. It will explain the roles of solicitors, Barristers, Judges and Magistrates. It will also critically look at the features of the European Court of Human Rights

4Civil law is a private law.it settles matters between two individuals and organisations. It still has the roman standard in many countries because it was originated from the Roman law. The end result is mostly damages in civil law. Example of civil cases includes Donoghue v Stevenson [1993] where Donoghue sued Stevenson for damages of £500 for drinking contaminated ginger beer which had negative effect on his health, Millar v Taylor (17690) is another example of civil case

5Criminal law considers crimes committed against the crown ( R ). [6] “Government identifies and criminalises behaviour that is considered wrong, damaging to individuals through criminal law" Jacqueline Martin and Chris Turner define crime as [7] a conduct forbidden by the state. when a conduct is regarded by the state as being criminal, there is always a punishment attached to it". i.e. murder and theft. Example of criminal case includes R v Wilson (1994) and R v Brown (1991) where R stands for the Crown or the State. Criminal law was made to protect organisations, individuals, the society and their properties. They are also made to punish offenders. The aim of sentencing offenders also include reparation, incapacitation, deterrence and reformation

Differences

Criminal law is drafted by the government. It is made by the crown ( R ) and passed by Parliament before it goes to the monarch for “rubber-stumping" as law. (This process is known as ‘Royal Assent’). Offenders are prosecuted by the Crown when they commit crimes against citizens. It is the duty of the police to enforce the law.

8Civil law applies to the principals of common law but in civil actions unlike criminal proceedings, the Crown takes no sides. The crown supplies the court, the judge and if necessary the enforcement of the judge’s rulings.

Punishment

9Criminal law punishes guilty defendant by either incarceration in a jailed. There are also fine paid to the government in exceptional cases. Community service could be the punishment on offenders depending on the type of crime committed. Contrary to criminal law, defendant in civil law is not imprisoned when found liable but reimburse the claimant for losses by the defendants act.

Burden of proof

In criminal law, one can never be guilty without “proven 99 percent guilty beyond reasonable doubt “as per Lord Denning. When one feels that the crime committed is done due to his or her insanity, then the burden lies on the defendant to prove it. The Crown has the right to punish criminal offenders because all crimes are against the state. For example, if one commits the crime of burglary by breaking into a house and steal, the state will prosecute the offender when even the victim brings private proceedings against the burglar.

In civil law, the burden of proof is initially on the claimant. There are a number of factors which could make the burden shift to the claimant. For example, the defendant in a prima facie case will have to refute the claimants evident. Lord Denning said “there should be51 percent balance of probability in civil cases to be a winner.

Court Hierarchy

The Higher courts decisions bind all lower court in the court hierarchy. [10] The house of lord (now the Supreme Court in the UK) was bound by its own decisions until 1966 when the practice statement was issued by Lord Gardiner in the House of Lords. The UK became subject to the control of the European Union in 1972.

Hierarchy of Civil Court Hierarchy of Criminal Court

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European Court of Justice

Supreme Court

Court of Appeal

(Civil Division)

High Court

County Court

European Court of Justice

Supreme Court

Court of Appeal

(criminal Division)

Queen’s Bench Division

Crown Court

Magistrates’ Court

European court of human rights

12The European court of human rights (ECtHR) is an international judicial body established under the European Convention on human rights of 1950 to monitor respect of human rights by states. It was established in1959 and fully came into practice in the United Kingdom in 1966. [13] It is made up of 47 judges, one for each member state and sits full-time in Strasbourg-France. It decisions binds all lower courts in its member states. [14] There were an increasing number of cases being taken to the European court of human rights in 2008 which caused a backlog of cases, with over 90,000 cases to with, in 2009.

Procedures

The Court accepts applications of instances of human rights violations from individuals as well as states. However, it is rare for a state to submit allegations against another state, unless the violation is severe. In order for an application to be accepted by the Court, all domestic legal remedies available to the applicant must have been exhausted. Example of individual cases to the court the case the case of S and Marper v UK (2008) regarding indefinite retained of DNA on the database of police without being found guilty of an offence. Additionally:

Role of Solicitor

15Solicitors deal with most of the paper works and act as am mediators between clients and Barristers. Accountant and other professionals may contact Barrister (advocates) directly Most of the legal work done outside the court is performed by solicitors. A solicitor may draw contracts, wills and conveyance. A solicitor owes duty of confidentiality to his client. A client has the right to sue his or her solicitor for damages if he feels the solicitor is negligent. [16] If the conduct of a solicitor is contrary to the law, he may be liable for criminal proceedings. A solicitor is not above the law. They can me punish when found guilty or offence or can be suspended for misconduct.

The tribunal members of the Supreme Court have the jurisdiction to suspend him for misconduct. Like a barrister, a solicitor can be liable for contempt of court.

Roles of Barristers

17Barristers (advocates) accept instruction for clients upon referral from solicitors. All Barristers have duty to their clients. [18] They must, by any legitimate means, devote themselves entirely to their clients’ legal needs in a position of trust and confidence. A barrister must not mislead the court or an opponent and must acquaint the court with the true state of the law whether or not it favours the client’s case. Their duties to the law and court require them to maintain a high standard of legal learning with a commitment not to assist or participate in a breach of the law because of their traditional functions as special advocates. [19] Barristers practicing at the Bar are self-employed. They can share administrative expenses by working from set of chambers with other barristers.

Roles of Judges

20Judges interpret the law. They are independent from the police and the government. If someone is unhappy with a judge’s decision, they must appeal to a higher court. It is the job of a judge, that offenders are punished. [21] Judges also apply ‘common law’, which is the law that has grown out of decisions by judges in court cases over decades and even centuries.

Decisions made by judges in higher courts are recorded, and judges on lower courts must follow them.

Juries

Juries are a sworn body of people convened to render impartial verdict. [22] Juries were used in the English Legal System before the Norman Conquest. Originally they acted as witnesses rather than decisions makers. Modern juries tend to be found in courts to decide whether an accused person is guilty or not guilty of a crime in criminal cases. They are used in civil cases in limited circumstances to decided cases of defamation, malicious prosecution and fraud. They are used in the courts below Crown court for criminal trials, High court, Queen’s Bench Division, County court and Coroner’s courts.

Magistrates

There are two types of magistrates. Lay magistrates and stipendiary magistrates. [23] Lay magistrate have long history in the English legal system, dating back to the justice of Peace Act 1361 which probably in response to a crime wave, gave judicial powers to appoint lay people. [24] They are entitled to claim travel and subsistence expenses. They are usually people with no previous experience and [25] they are appointed by the Lord Chancellor on the recommendation of the Lord Lieutenant of a county or the council of a borough. They undergo a course of training on appointment but the main purpose of this is not so much to teach them law as to train them act in judicial manner. Lay magistrates work on a part time bases.

Stipendiary magistrate is a paid full-time qualified lawyer, appointed by the Crown on the recommendation of the Lord Chancellor. Stipendiary magistrates in London are known as Metropolitan Stipendiary magistrates. Both types of magistrates must retire at the age of seventy and both may be removed from office by the Lord Chancellor for incompetence