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.pdf1. The main legal documents of Great Britain.
The topic of my presentation is devoted to the most significant legal documents in British history. First of all, I am going to speak on the Magna Carta, which set forth the two basic principles of government in England. Secondly, I‘ll draw your attention to the history of creation of the Habeas Corpus Act. After that I‘ll speak on the development of the Petition of Right and finally I‘ll set out some important facts about the Bill of Rights, which limited the monarch‘s power and than I‘ll make a conclusion. The idea that government was not all-powerful first appeared in the Magna Carta (The Great Charter), which established the principles of limited government and representative government. It was signed by King John under the threat of civil war after baronial unrest. The Magna Carta also stipulated that no citizen could be punished or kept in prison without a fair trial and provided for protection against loss of life, liberty and property. The king also agreed that certain taxes could not be levied(взимать) without popular consent. The Magna Carta has been called the foundation of British Constitution. The law of Habeas Corpus guarantees that nobody can be arrested without sufficient grounds and held in prison without a fair trial. It became a law because of a wild party held in 1621 at the London home of Alice Robinson. After she rudely refused to quiet down constable arrested her and committed to jail. Being pregnant, she had been treated so violently(given 50 lashes, stripped, put on a diet of bread and water) that when she was finally brought to trial her story caused public outcry. As a result she was acquitted, the constable who had arrested her without a warrant was himself sent to prison, and the justice of the peace was severely reprimanded. This case, along with other similar cases, led to the passing of Habeas Corpus Act in Britain in 1679. HC is a part of a Latin phrase (Habeas corpus ad subjiciendum) that means «Let the body be brought before the judge». Every arrested person can address to the Crown for issuing a writ oh
HC. When receiving it a prison chief should bring arrested person to judge, who checks the sufficiency of the grounds of imprisonment). The Petition of Right appeared in 1628 as a result of increasing resistance between Parliament and the Crown. At the time of Stuart succession in 1603 Parliament influenced by gentry began to use its gradually acquired weapon of financial control and to refuse royal requests for money. The Petition of Right further restricted the monarch‘s power and was intended to prevent him from raising taxes without Parliaments consent. This basic document also guaranteed citizens other civil rights. The result of abovementioned struggle between the Stuart kings, the English people and the Parliament was the Bill of Rights passage in 1689. Intended to declare illegal various practices of the king James 2 (the complete suspension(приостановление) of laws, levying of taxes, etc.), it eventually limited the monarch‘s power by eliminating(исключающий) royal interference in parliamentary matters, stating that elections must be free and the members of Parliament must have complete freedom of speech. It also proscribed certain forms of interference in the course of justice. The Bill of Rights also dealt with the proximate succession to the throne, provided the heirs were Protestants. It is one of the basic instruments of the British constitution, which made monarchy clearly conditional on the will of Parliament. Summing up, I should say that in contrast with other countries, the British unwritten Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. At the same time British constitutional papers as it was illustrated above, appeared as the result of long-time struggle between the monarchy and the Parliament + the citizens and declared the basic civil rights and freedoms by providing guarantees against governmental bodies abusing their powers. That is the reason for these cornerstones of British legal history remaining in effect nowadays.
2. The forms of punishment for criminals.
Punishment describes the imposition(наложение) by some authority of a deprivation(лишение) on a person who has violated a law, a rule, or other norm. When the violation is of the criminal law of society, there is a formal process of accusation and proof followed by imposition of a sentence by a designated official, usually a judge. What is the purpose of punishment? One purpose is obviously to reform the offender, to correct the offender‘s moral attitudes and antisocial behaviour and to rehabilitate him or her. The second purpose of punishment can also be seen as a deterrent because it warns other people of what will happen if they were tempted to break the law and prevents them from doing so. The third purpose of punishment lies in society‘s desire for retribution, which basically means revenge. In other words, don‘t we feel that a wrongdoer should suffer for his misdeeds. For the most history punishment has been both painful and public to act as deterrent to others. One of the most bizarre methods of execution was inflicted in ancient Rome on people found guilty of murdering their fathers. Their punishment was to be put in a sack with a rooster, a viper, and a dog, and then drowned along with three animals. In Europe one of the most terrible punishments was hanging and quartering. Capital and corporal punishment, widespread in early 19th century, are seldom invoked by contemporary society. Capital punishment is a legal infliction of the death penalty; in modern law, corporal punishment in its most severe form. The usual alternative to the death penalty is long term or life imprisonment. The earliest historical records contain evidence of capital punishment. The Bible prescribed death as a penalty for more than 30 different crimes, ranging from murder to fornication. Nowadays the death penalty is possible in certain country only for certain types of murders and treason. And the defenders of death penalty insist that because taking an offender‘s life is a more severe punishment that any prison team, it must be better deterrent. But the opponents have replied that the death penalty can be the result of a mistake in practice and that is impossible to administer fairly. Criminal sentences ordinarily embrace four basic modes of punishment. There are incarceration(заключение в тюрьму), community supervision, fine, and restriction. The death penalty is now possible only for certain types of atrocious murders and treason. Various correctional approaches developed in wake of causation theories. The 19th –century British philosopher tried to make punishment fit the crime. He urged definite, inflexible penalties for each class of crime: the pain of penalty would outweigh only slightly the pleasure of success in crime; it would exceed sufficiently to act as deterrent, but not so much as to amount to wanton cruelty. In early 20th century there was a movement known as neoclassical school. This school, rejecting fixed punishments, proposed that sentences vary with the particular circumstances of a crime, such as the age, intellectual level, and emotional state of offender; the motive and other conditions that may have incited to crime; and offender‘s past record and chances of rehabilitation. At about the same time, the so-called Italian school stressed measures for preventing crime rather than punishing it. Members of this school argued that individuals are shaped by forces beyond their control and therefore cannot be held fully responsible for their crimes. The contemporary scientific attitude is that criminals are individual personalities and that their rehabilitation can be brought about only through individual treatment.
3 A jury trial
A jury is a body of a lay man and women randomly selected to determine facts and to provide a decision in a legal proceedings. Such a body traditionally consists of 12 people and is called a petit jury or trial jury. The exact origin of the jury system is not known. The jury is probably of Frankish origin. In medieval Europe, trials were usually decided by ordeals. However in 1215 the Catholic Church decided that trial by ordeal was superstition (религиозпредрассудок). By the 15thcentury trial by jury became the dominant model of resolving a legal issue.
The right to trial by a jury is one of the most important rights and is guaranteed by the law (constitution).Job as a juror is to listen to all the evidence presented at trial and to decide the fact that is to decide what really happened. The judge decides the law that it makes a decision on legal issue that come up during the trial. In order to do job you do not need any special knowledge or ability. It is enough keep an open mind, concentrate, and be fair and honest. Finally juries should not be influenced by sympathy or prejudice.
Juries have to meet certain requirement in order to do their job. To be eligible, you must be over 18 years of age, a resident of the country in which you are to serve as a juror, able to communicate in the proceedings's language. People who meet these requirements may be excused from jury service if they have illness.
Selection of the trial jury. The first step in the selection of the trial jury is the selection of a jury panel. The judge assigned to that case will tell you about the case and will introduce the lawyers and the people involved in the case. You will take an oath, by which you promise to answer all questions truthfully.
The judge and the lawyers will question you and other members of the panel to find out if you have any personal interest in it. This process of questioning is called voir dire(предварительный допрос). During voir dire the lawyers may ask the judge to excuse you or another member of the panel from sitting on the jury. This is called challenging a juror. There are 2 types of challenges. 1) challenge for cause: the lawyer has a specific reason for thinking that the juror would not be able to be impartial. 2) peremptory challenge. It means that the lawyer does not have to state a reason for asking that the juror be excused. Those jurors who have not been challenged become the jury for the case. A juror may sit on a criminal case, a civil case, or both. Events in a trial usually happen in a particular order.
step 1 selection of jury. step 2 opening statements: the lawyers for each side will discuss their views of the case. step 3 presentation of evidence. step 4. closing arguments. the lawyer summarize the case from the point of view. step 5 In order to permit the jury to perform that role, the judge must instruct the jury. Instructions can be given at four different times during the case.
– preliminary instructions given at the beginning of the case; specific instructions given during the case; final instructions and instructions that respond to question submitted by the jury during their deliberations. step 6. jury deliberation. The jury retires to the jury room to conduct the deliberations on the verdict in the case. The jury elects a foreman. All issues are fully and fairly discussed. When a verdict has been reached, the foreman signs it. The jury returns to the court room, where the foreman presents the verdict, which must be unanimous.
4. The hierarchy of courts in Britain.
There are many different types of courts, each with its own particular function and responsibilities. The House of Lords is used to be the highest court in the land. The last hearings in the House of Lords took place on 30 July and the new Supreme Court opened on October 2009. It is the final court of appeal for civil cases. It also hears appeals in criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population. It comprises of 12 judges, known as ''Justices of the Supreme Court'', they include a President and Deputy President, appointed by the Queen on the recommendation of the Judicial Appointments Commission. The Court of Appeal hears most of the important civil and criminal appeals. Very few cases go on appeal from the Court of Appeal to the Supreme Court. The Court of Appeal has two main functions: to hear appeals in civil cases from the High Court and county courts, and to hear appeals in criminal cases from the Crown Court. The Appeal Court judges who deal with civil cases are the Master of the Rolls and 37 Lords Justices of Appeal. Appeals in criminal cases are heard by the Criminal Division of the court. There are three divisions of the High Court of Justice – the Queen‘s Bench Division, Chancery (канцлерск) Division, and Family Division. The judges of The Queen‘s Bench Division try criminal and civil cases. The Chancery Division consists of about 20 High Court Judges and is headed by the Chancellor of the High Court. The Family Division consists of about 20 High Court Judges, headed by the President of the Family Division. The judges of these divisions try cases at first instance. Crown Courts hear all the criminal cases involving trial by judge and jury and deals with more serious criminal cases such as murder, rape or robbery. County courts were introduced to enable civil claims for small amounts to be heard quickly and cheaply. The judges of the county court almost always sit alone – without juries – and they deal with a great variety of civil work. Civil cases arise where an individual or a business believes their rights have been infringed. The vast (подавляющее) majority of all criminal cases (more than 90 per cent) are dealt with in the magistrates’ courts (мировых) by magistrates, who are also known as Justices of the Peace. They sit alone and usually deal with the more complicated cases. They try the huge number of criminal cases which are brought for relatively petty (мелкие) crimes such as motoring offences, petty theft, drunkenness, and minor offences of violence and other breaches of public order. Justices of the Peace also hear certain civil cases, and sit in Family Courts. Tribunals are independent judicial bodies set up by Parliament to hear appeals from decisions made in certain types of cases by civil servants and others. There are more than 60 different types of tribunal. Agricultural land tribunals settle disputes between the landlords and tenants of farms. Employment tribunals deal with matters of employment law involving many aspects of disputes between employers and employees. Mental health review tribunals are responsible for reviewing cases of patients who have suffered from mental illness.
5. The UK legislative branch.
The legislative authority has three separate elements: the Monarch, the House of Lords, and the House of Commons. The Head of the legislative body is the Sovereign, Queen Elizabeth. Royal Assent of the Monarch (королевская санкция принятого парламентом закона) is required for all Bills to become law, and certain Delegated Legislation must be made by the Monarch by Order in Council (правительственный декрет). The Crown also has executive powers which do not depend on Parliament (e.g. ability to dissolve Parliament, make treaties, declare war, etc.). The parliament is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The House of Lords includes two different types of members: the Lords Spiritual (bishops (епископы) of the Church of England) and the Lords Temporal (Peers of the Realm) whose members are not elected by the population at large, but are appointed by the Sovereign on advice of the Prime Minister. Powers of the House of Lords are very much less than those of the House of Commons. All bills excerpt money bills are debated and voted upon in House of Lords, however, House of Commons can force the Bill through without the Lords consent under Parliament Acts. Each member of the House of Commons is chosen by a single constituency (избир округ) according to the First-Past-the-Post electoral system (система простого большинства). The term of members of the House of Commons depends on the term of Parliament, a maximum of five years. All legislation must be passed by the House of Commons to become law and it controls taxation and the supply of money to the government. Government ministers (including the Prime Minister) must regularly answer questions in the House of Commons. Both houses of the British Parliament are presided over by a speaker. Laws, in draft form known as bills, may be introduced by any member of either House, but usually a bill is introduced by a Minister of the Crown (Министр короны). Each Bill goes through several stages in each House. The first stage, called the first reading, is a formality. At the second reading, the general principles of the bill are debated, and the House may vote to reject the bill. Following the second reading, the bill is sent to a committee. A committee considers the bill clause by clause, and reports the bill as amended to the House, where further detailed consideration occurs. Third reading. In the House of Commons, no further amendments may be made. After the passage of the third reading motion, the House of Lords must vote on the motion "That the Bill do now pass." Following its passage in one House, the bill is sent to the other House. If passed in identical form by both Houses, it may be presented for the Sovereign's Assent. The last stage of a bill involves the granting of the Royal Assent. Theoretically, the Sovereign may either grant the Royal Assent (that is, make the bill a law) or withhold it.
6. The UK executive branch.
The Executive is the power which can take action. In the town and country the local authority in each area decides such matters as who should clean the streets, what the traffic speed and parking restrictions might be, and what sort of organisation schools should have. The executive in the Local Authority is formed by the political party which wins the local elections. The national executive is always known as the Government. It is formed from the winning political party at the nationwide General Election. This is the party which has the most members in the House of Commons. These are Members of Parliament. The leader of that winning party becomes Prime Minister. He or she chooses other members of that party to be in charge of different aspects of government—for example, foreign affairs (the Foreign Secretary), money and taxation (the Chancellor of the Exchequer (минфинансов)), law and order (the Home
Secretary (минвнутрдел)). The Home Secretary is in charge of a great Department of State (the
Home Office), and together with his junior Ministers who have special responsibilities in the Department, he must make the major decisions. The Home Office is the Government department in which civil servant employees (all persons employed by the State or 'the Crown' are called civil servants) deal with matters of law and order and the reform of the criminal law. 'Law and order' involves making laws to protect people from any form of crime or disorder, providing a police force to investigate and enforce these laws, and the means of rehabilitating or punishing anyone who breaks them. The most important of the Secretaries of State are the Senior Ministers who form the Cabinet. The Government makes the day-to-day decisions about the public life of the country: foreign policy—even war and peace; the level of taxation; expenditure (расходы) on roads, hospitals, education, and welfare (соцобеспеч). It is the executive which decides how that policy is to be carried out, and the executive is actually responsible for carrying it out.
7. The 2 branches of the legal profession in the UK
A lawyer is a member of the legal profession who has become officially qualified to act in legal matters. In most countries there is only one legal profession: all the lawyers receive roughly the same professional education and qualifications, and do legal work according to their specialisation and choice. A distinctive feature of the legal profession in England and Wales is that it is divided into two branches: barristers and solicitors. They have different legal training and different qualifications, and do different types of work. Barristers are 'courtroom lawyers' concerned with advocacy in court, arguing cases in front of the judge, and solicitors mainly deal with legal work out of court. No one can practise both as a barrister and a solicitor at the same time, but it is possible to be doubly qualified or to transfer from one branch to the other. This division is almost unique to the British Isles: Scotland too has a division into advocates and solicitors, but many Commonwealth countries have not followed Britain in this respect, and some, like Australia, have removed the division.
The two types of lawyer in England differ in several important respects. Barristers have rights of audience (rights to appear) in any court in the land and are known collectively as the Bar. They do not have to work entirely for the defence or for the prosecution.
All professional barristers are self-employed and usually work out of chambers, offices, which they share for convenience, and have their work organised by the same clerk. Generally, a barrister undertakes no work except through a solicitor, however a small number of specialist barristers do not go into court at all, advising professional people, such as accountants, on legal matters and writing opinions at the request of solicitors on difficult and complicated areas of the law. As a general rule, clients do not have direct access to barristers, without seeing a solicitor first, and they do not pay the barrister directly but through a solicitor. A document of instructions prepared by a solicitor for a barrister to follow in court is known as a brief. It usually contains an outline of the case, the evidence and proof available, and statements or interviews of witnesses.
Solicitors' work covers a much broader range: they advise commercial and private clients on business and property matters; they investigate and prepare cases which they then hand to barristers; they also deal with litigation which is settled out of court. Until quite recently, solicitors had the right of audience only in lower courts, where they could represent clients themselves, without the help of a barrister. Now solicitors can qualify for rights of audience in the higher courts; they are then called solicitor-advocates (this route is particularly favoured by City lawyers). Solicitors are employed often by industry or local authorities but usually they work in partnerships with other solicitors. A firm of solicitors would normally consist of partners, those who take part in management and have a share in profits, and associates, who are salaried employees without these rights. There are a great many firms, ranging from small oneman practices to large city practices employing hundreds of partners and associates. Solicitors by far outnumber practicing barristers: at present there are over 100,000 solicitors as against some 11,000 barristers. The reason for this is obvious: only rarely will a citizen be faced with civil or criminal proceedings and require the services of the barrister, but many often have to consult a lawyer to prevent matters going wrong, for example, when setting up a business or making a will, or buying or selling property. When a client goes to see a solicitor and tells him what he requires, this is called giving a solicitor instructions.
8. Aspects of family life subject to the regulation of Family Law
Family law covers all legal matters pertaining to family, including civil unions, marriages, divorces, adoption, prenuptial agreements, child custody, and property settlements. Although family courts in the United States hear cases dealing with people of varied social and economic classes, they are overloaded with cases concerning those who are disadvantaged. The courts, notorious for lacking resources, have been criticized for not being beneficial to those they attempt to help, especially since the most contentious family law issues are often child custody and visitation rights.
Family law is an area of the law that deals with family matters and domestic relations, including:
marriage, civil unions, and domestic partnerships; adoption and surrogacy; child abuse and child abduction; the termination of relationships and ancillary matters, including divorce, annulment, property settlements, alimony, child custody and visitation, child support and alimony awards; juvenile adjudication; paternity testing and paternity fraud.
This list is not exhaustive and varies depending on jurisdiction. In many jurisdictions in the United States, the family courts see the most crowded dockets. Litigants representative of all social and economic classes are parties within the system.
Family law consists of a body of statutes and case precedents that govern the legal responsibilities between individuals who share a domestic connection. These cases usually involve parties who are related by blood or marriage, but family law can affect those in more distant or casual relationships as well. Due to the emotionally-charged nature of most family law cases, litigants are strongly advised to retain legal counsel.
The vast majority of family law proceedings come about as a result of the termination of a marriage or romantic relationship. Family law attorneys help their clients file for separation or divorce, alimony, and child custody, visitation, and support. Spouses married a short time may seek an annulment, and special rights may exist between same-sex couples. The division of property at the end of a marriage is also a common issue in family law cases.
With respect to property division at the time of divorce, every state has a comprehensive set of laws in place to determine the rights of the parties. However, couples who do not agree with the default rules in their state can ―opt-out‖ by hiring a lawyer to draft a prenuptial agreement.
Absent fraud or duress, courts will enforce these premarital agreements upon divorce, and distribute property and financial support accordingly.
Family law also involves the prevention of physical and emotional abuse. The potential for domestic abuse is not limited to relationships between current or former spouses and their children. Judges will not hesitate to assert jurisdiction to protect an elderly family member, someone in a dating relationship, or even a roommate. When allegations of abuse are made, the court will typically issue a restraining order to prevent further contact.
9. Civil procedure.
Civil procedure is legally defined as the procedure under which civil law is carried out. It refers to civil law, which encompasses laws pertaining to business, estates, legal contracts, domestic issues, accidents, and generally anything that is not considered criminal. There are instances in which civil and criminal procedure may overlap.
Civil procedure is carried out under the jurisdiction of the civil court. Domestic relations, while falling under civil law, are often handled in domestic relations court. Civil law is an intricate and complex set of rules and regulations that apply to the filing, pursuance, and trial of civil lawsuits. Civil procedure refers only to the procedure and not to the laws themselves.
Civil laws are set at both federal and state levels. Many times, civil law and criminal law overlap, and the same case may be tried under both civil procedure and criminal procedure. For example, if a driver hits a pedestrian while driving, killing the person, he or she can be tried in criminal court for vehicular manslaughter, and the victim‘s family might be able to file a civil lawsuit for the same case.
Under civil procedure, civil laws are designed to protect a person‘s civil rights or liberties. In cases in which a person‘s civil rights have been violated, civil procedure defines whether or not the person can pursue legal action. It also defines to what extent action can be taken. Civil law is a specialized area of law represented by practicing lawyers. Many specialize in one particular area, whether domestic, business, or real estate, and have particular knowledge of civil procedure in their practicing area.
Depending on your circumstances and the representation you need, you can generally find attorneys by checking with your local bar association or by referring to the yellow pages. Usually specialties are listed, or you can contact an attorney who practices general law, who should be familiar with civil procedures in all areas of civil law. If you need an attorney for a situation that could lapse over into criminal procedure, you should hire a criminal lawyer.
Some systems, including the English and French, allow governmental persons to bring a criminal prosecution against another person, prosecutions are nearly always started by the state, in order to punish the accused. Civil actions, on the other hand, are started by private individuals, companies or organizations, for their own benefit. In addition, governments (or their subdivisions or agencies) may also be parties to civil actions. The cases are usually in different courts, and juries cases. However this is distinguished from civil penal actions.
In jurisdictions based on English common-law systems, the party bringing a criminal charge (in most cases, the state) is called the "prosecution", but the party bringing most forms of civil action is the "plaintiff" or "claimant". In both kinds of action the other party is known as the "defendant".
Most countries make a clear distinction between civil and criminal procedure. For example, a criminal court may force a convicted defendant to pay a fine as punishment for his crime, and the legal costs of both the prosecution and defence. But the victim of the crime generally pursues his claim for compensation in a civil, not a criminal, action. In France and England, however, a victim of a crime may incidentally be awarded compensation by a criminal court judge.
Evidence from a criminal trial is generally admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action, unless the doctrine of collateral estoppel applies, as it does in most American jurisdictions.[2] In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial, because the standard to determine guilt is higher than the standard to determine fault. However, if a driver is found by a civil jury not to have been negligent, a prosecutor may be stopped from charging him criminally.
If the plaintiff has shown that the defendant is liable, the main remedy in a civil court is the amount of money, or "damages", which the defendant should pay to the plaintiff.[2] Alternative civil remedies include restitution or transfer of property, or an injunction to restrain or order certain actions.
The standards of proof are higher in a criminal case than in a civil one, since the state does not wish to risk punishing an innocent person. In English law the prosecution must prove the guilt of a criminal ―beyond reasonable doubt‖; but the plaintiff in a civil action is required to prove his case ―on the balance of probabilities‖.[2] Thus, in a criminal case a crime cannot be proven if the person or persons judging it doubt the guilt of the suspect and have a reason (not just a feeling or intuition) for this doubt. But in a civil case, the court will weigh all the evidence and decide what is most probable.