New Wine and Mad Englishmen: Changes Afoot in the British Legal System
By Judge Brian R. Van Camp

“Well, of course,” I thought, as I perused the brochure from the California Judges’ Association advertising its triennial “Oxford Programme” for two weeks in September. How could I pass up a chance to study in the cloistered halls of Oxford the origins of the Common Law and gain some understanding of the British Constitution, including the reasons why, even after 800 years, no one had bothered to write it down? Beefeaters, wigged judges and lawyers, and hunting for the oldest and most quaint pub all seemed like added attractions.

Judges from around California gather in the inner cloister of Magdalen College.

So I joined about thirty other judges from around our state as we studied, hunted and returned. I can report that the wigs, ivy and ale are still pretty much where they’ve been for hundreds of years, but much of the rest of the English legal landscape is decidedly up for grabs. The House of Lords is being reconstituted, producing a new Supreme Court; the venerable office of the Lord Chancellor is being abolished; the right to a jury trial (“the birthright of every Englishman!”) is getting more restricted; and the last word on legal rights is increasingly found not in the Royal Courts of Justice in The Strand, but across the Channel in Luxembourg!

ORIGINS
English courts have been in business at least since the Middle Ages. Indeed, the Normans who arrived with William the Conqueror in 1066 reported finding a “regular noodle soup” of courts, including the Bishop’s Courts, the Landowners’ Courts, Town Courts, Market Courts, and many others. After tending to things military, in about the Twelfth Century, the Norman kings started involving themselves in the local citizens’ disputes. Glanville wrote the Justinian Code in 1189, and Bracton did his in the Thirteenth Century, both relying heavily on Roman Law. With neither an empire nor an emperor to enforce its fairly rigid rules, however, Bracton’s judges had to fashion a less formal, more “lay” legal system. Thus commenced a system of “writs,” spelling out a legal remedy for a variety of actions, as long as such could be fit into certain narrow, pre-ordained categories.

The Magna Carta of 1215 gave rise to the King’s Bench Court of Common Pleas, over which the King himself presided. Initially, the King turned to his Chancellor, a cleric trained in Canon Law, to advise him. But by 1370, the Chancellor began issuing decrees in his own name, largely directed by his conscience and bottomed on church law. By 1672, the Chancellor told King James II that the Chancellor’s Court should prevail over the King’s views. Cromwell, the Roundheads and the Civil War had reduced the King’s powers and imposed constitutional restraints on James II upon his restoration in 1660. So he agreed to defer to the Chancellor, thus establishing some independence of the judiciary. Blackstone’s Commentaries in the Eighteenth Century brought organization to a wide array of judicial opinions (can you say, “ contracts, property and torts?”), thus establishing a foundation for the common law’s development.

An American judge tries an English wig on for size.

MODERN COURTS
Today, English courts consist of various trial and appellate courts. The Magistrate Courts hear minor criminal, family and youth matters, while the Crown Courts try major crimes. The County Courts try the bulk of civil litigation. Appeals are made either to the High Court or the Court of Appeal. On rare occasions, an appeal is taken to the House of Lords, which assigns it to five to seven Lords, all with legal backgrounds.

King Edward appointed the first magistrates, or “justices of the peace,” to administer “local justice for local people by local people” in 1361. They conducted court and supervised building roads and poor houses. These highly coveted offices were awarded to wealthy landowners, who were required to have no legal training. This led to the saying that “the law of the land is administered by men who know nothing of the former, and own most of the latter!” In the Fifteenth Century, magistrates waived all fees or payment.

Today, England’s 30,000 magistrates still serve for no pay and have no legal training, although each court has a law clerk to advise. All criminal cases are filed in Magistrate Courts, and 97 percent of them stay there for trial, all to two or three magistrates, as opposed to a jury.

Sacramento Superior Court Judge Brian Van Camp, Contra Costa County Judge Richard Flier, Riverside County Superior Court Judge Dallas Holmes, and Ventura County Superior Court Judge Fred Bysshe pose next to a statute in the courtyard of Magdalen College.

CRIMINAL COURTS
Criminal cases are either “Summary Only,” triable only in Magistrate Courts, “Indictable Offenses,” triable only in the Crown Courts, or (I kid you not) “Either Way” cases, triable in either court. A defendant accused of an Either Way offense may choose to be tried in a Magistrate Court, without a jury, where the sentence is limited to six months and £5,000 (about $8,000), or a Crown Court, where he’ll get a jury trial, but the sentences are unlimited. Eighty percent of the “Either Way” defendants choose the magistrates.

All judges and magistrates are appointed by the Lord Chancellor, who seeks to maintain political and gender balance in all courts. Half of the magistrates are women; many fewer so going up the judicial ranks. Judges’ pay is roughly comparable to the pay of American judges.

Prosecutions are handled by independent barristers hired by the Crown Prosecution Services (“CPS”) on a case-by-case basis. The state-funded Legal Aid Office also hires barristers to represent the defendants. Since a “means” test for defendants has been abolished, 96 percent of the defendants have a Legal Aid barrister. Virtually all of the barristers in the criminal courts “work both sides of the street,” at various times either prosecuting or defending. Some say this results in more balanced evaluations of cases.

Judge Van Camp, Los Angeles Superior Court Judge Richard Fruin, Los Angeles County Commissioner Burt Barnett, and Orange County Commissioner Barry Michaelson show their school spirit as members of the class of 1965 from UC Berkeley’s Boalt Hall School of Law.

Cases are appealed to the High Court, historically, based on new discovery of evidence. Since 1988, however, they may also be based on “the interests of justice,” such as incompetent advice of counsel, wrongly admitted confessions and prosecutorial misconduct.

Several practices distinguish the British from the American criminal proceedings:

1. An accused has a right to consult a state-paid lawyer at the police station before being questioned.

2. The accused’s statement at the station is tape-recorded. Initially fought by the police, this has led to more confessions and more convictions.

3. In 1988, peremptory challenges were abolished. “Cause” challenges are permitted, but the barristers get no opportunity to ask questions to elicit information regarding such. Jury selection typically takes five to ten minutes.

4. Electronic recorders, rather than court reporters, preserve the record of Court proceedings.

5. “Side bar” conferences between judge and counsel are not done.

6. Judges give only oral, not written, jury instructions.

7. After instructing the jury that a defendant has the right to remain silent, the judge may then add that, “you the Jury may take such silence as evidence of his guilt.” (Emph. mine!)

8. The judge is permitted to review the facts and testimony for the jury, “lacing the story with his comments,” as one speaker said, adding that, “since English judges lack neither courage, nor foolishness, they do so fully!”

9. A vote of only ten of the twelve jurors is sufficient to convict. (A simple majority suffices in Scotland, which uses 15-person juries.) The conviction rate generally runs around 50 percent; of the acquittals, most are directed verdicts by the judge–only 15 percent by the jury.

10. Of England’s 55 million people, some 75,000 are incarcerated; in California, approximately 161,000 of its 36 million people are incarcerated. Thus, our per capita incarceration rate is over three times the English rate.

11. The death penalty for capital offenses was abolished in the 1960’s.

The Criminal Justice Bill now pending in Parliament would make several changes:

A. Increase sentencing in Magistrate Courts to £10,000 (roughly $16,000) and 12 months in jail, thus expanding the classes of crimes in which no jury trial is available. (Denominated “ the Gold Standard” and “the Englishman’s Birthright,” the right to a jury trial is nonetheless waning, a cause of real concern to civil libertarians.)

B. Allow a re-trial in serious offenses (no double jeopardy bar).

C. Allow disclosure of a defendant’s prior offenses to the jury.

D. Allow the prosecution to appeal a verdict of acquittal.

CIVIL COURTS
Small claims civil cases are brought in the County Courts for jurisdictional amounts up to £5,000 ($8,000) and are handled by a magistrate or commissioner. “Fast Track” cases (up to £15,000, or $24,000) will be given a one-day trial, set 30 weeks from filing. No oral expert testimony is allowed. “Multi-Track” cases (over £15,000) are heard in the High Court, preceded by two pre- trial hearings. No pre-trial depositions are allowed, although each side must give Standard Disclosure documents and witness statements to the other.

The right to a jury trial in civil cases was eliminated in 1966, being allowed now only in defamation cases. Medical damages are not awardable to a personal injury victim who has national health coverage (almost everyone does), and general damages (pain and suffering) are set by a Judicial Studies Board in binding Tariffs. These state the amount that may be recovered in virtually all “p.i.” cases. The highest, say for brain damage or a “quad,” is £205,000 ($330K); the average injury to an arm or leg is roughly £10,000 ($16,000). Punitive damages are only allowed in police misconduct, fraud or intentional, aggravated conduct; they are not a big part of the British system.

Historically, contingent fees were frowned on, as they might encourage the barrister to “try too hard for a greatly increased result.” They are partly used now, providing for no fee in the event the case is lost, and an “uplift” on the standard fee of up to 100 percent for a win. Under the English rule, the loser must pay the winner’s legal fees, so a plaintiff in a contingent fee case who loses pays his lawyer nothing, but pays the winner’s attorney’s fees. As a result, all parties buy “After the Event” insurance to cover such expense, the premium for which also becomes an assessable cost recoverable by the winner. That’s the theory at least; in practice, it becomes an imbroglio involving the insurance companies. Legal Aid provides extensive legal assistance to indigents, except for personal injury claims, through private lawyers on a Judicare model. Additionally, the Community Legal Service provides mediation and legal services by volunteers, who may or may not be lawyers. Finally, lay persons offer low cost legal services through TESCO supermarket stores and others.

Participants in the California Judge Association’s Oxford Programme enjoy lunch at Lincoln’s Inn of Court.

DISTINCTIVE TOUCHES
Other arresting sights or factoids noted during our visits to both the “Old Bailey” criminal Crown Court in London and the Crown Court of Oxfordshire included: The Judge, Clerk and all lawyers wear wigs and black robes...At least half of the young barristers were women...The courtroom has a jury box (for 20) down one side and press and audience galleries on the other. Facing the judge’s bench in the center are rows of tables and chairs, the first of which is reserved for Queen’s Counselors (the “Silks”); lesser lawyers and witnesses sit at the tables behind. At the back of the room is “the Dock,” a railed off area where the defendant sits, quite far removed from his lawyer. If the defendant wishes a word with his lawyer, he tries to catch the eye of the judge, who, if he notices, then advises the lawyer, whereupon they take a break ... The witness box has no chair, so all witnesses stand during their testimony When taking the oath, the witness places his hand on a Bible held by the Clerk and is asked if he “swears under Almighty God.” ... I especially liked the board on the wall in the Oxfordshire Courthouse listing all of the persons who have held the office of Sheriff (or “Shire Reeve”), dating to the year 985 AD! It gives you some sense that they’ve been at this for awhile.

WINDS OF CHANGE
Last summer, Prime Minister Tony Blair announced that he was abolishing the 1400-year-old office of the Lord Chancellor, one of the oldest and most storied state offices in the world. Thomas a’ Becket, Cardinal Wolsey and Sir Thomas More were among the most prominent holders of the office. The Lord Chancellor historically served as the Speaker of the House of Lords, sat as the legal affairs minister in the Cabinet, appointed all judges and was the “Keeper of the Queen’s Conscience.” This office will be replaced by the Department of Constitutional Affairs, which will look much like the U.S. Justice Department, but also will appoint all judges. “Playing Poohsticks with British history!” is how one critic derided Blair’s elimination of the office.

The legal profession is also in transition. Traditionally, the lawyer-in-training takes either a three-year law course, or a fouryear degree from a college or university (called an “honest” degree), followed by a one-year course in Legal Practice. Afterwards, those choosing to become a solicitor will take a twoyear course specializing in a certain field and then go to work in a solicitors’ firm or house counsel position. Those choosing to become a barrister will be “called to the Bar,” do a one year “pupilage” for a barrister through one of the four Inns of Court and then seek a Tenancy at a “chambers set.” Only about half of the inn pupils will find such a Tenancy. Note the absence of either a law degree or a license to practice for either barristers or solicitors.

Barristers still are independent, even if associated with a chambers set. The solicitor brings the case to the barrister and “ instructs” him on the problem. The barrister will give an independent analysis, provide trial expertise and some “c.y.a.” to the solicitor. Then he or she will try the case and handle any appeals. His or her fee is based on the number of pages in his/her brief. With solicitors now being granted the “right of audience,” however, they are increasingly trying cases, especially in the lower courts. For more on this subject, see the fine article of my colleague, Judge Loren McMaster, in last July’s issue.

DIRECTION FROM ACROSS THE CHANNEL
The states of Europe have been moving toward a supranational organization for fifty years, culminating in the 1992 Treaty of Maastricht, which set up the European Union. A Constitutional Convention, chaired by former French prime minister Valerie Giscard d’staing, is attempting to draw up a constitution to unify the soon-to-be 25 states into something resembling a United States of Europe, with paramount powers over all of its member states. While the EU Parliament failed to pass it last December, work on it continues.

Already, the European Communities Act of 1972 makes the Strasbourg Declaration of Human Rights enforceable upon the member states by the European Court at Luxembourg. Article I of the Declaration states that “all human beings are born free and equal.” From this flow many rights, including pay parity and freedom from economic discrimination for women and racial and religious minorities; such rights are being extended to age, disability and sexual orientation in several states.

Great Britain passed its European Communities Act in 1998, elevating the European Human Rights laws above its own. English citizens and judges now must look to Luxembourg for final resolution of issues in these areas. Cases may be referred to Luxembourg whenever a Human Rights issue is involved, and its decisions are citeable and binding in and by English courts.

References to the European Human Rights Convention principles permeated each of our courses; every legal area seems affected: Magistrates Courts now must give written reasons for their decisions; sentencing must be “proportional;” jail and prison conditions must be humane; a 62 year old female worker cannot be forced to retire at 62, since men needn’t retire until 65, for just a few examples of how ubiquitously the principle is cited.

The subordination of British law to pronouncements from the Continent was not universally welcomed. Most of the taxi cab drivers I spoke with were offended by the concept. And Mr. Gilbert Gray, Q.C., our closing night’s dinner speaker and a most distinguished barrister of the old school, bellowed, “Who the Hell is Europe to tell us about Human Rights? We’ve been preaching Equality, by God, since 1215 AD!”

A great note to end on. From the looks of things, the next thousand years, to say nothing of the next ten, will be as adventuresome and instructive as the last thousand. It’s quite a system, to which our own owes much. It was a treat to study it, especially since it included getting to know some fine people from both sides of “the pond,” some great Shakespeare, a little pageantry and finding two or three unforgettable pubs! Judge Van Camp serves on the Superior Court in and for the County of Sacramento.