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UK Perspective: July 28, 2000

Alisdair A. Gillespie, Barrister
JURIST UK Correspondent

Welcome to this week's UK Perspective. It's been a busy week in UK law, especially with the ongoing controversy over the News of the World's decision to "name and shame" child abusers (click for last week's Perspective on that issue). In this week's column, however, I will move onto other matters.

One such is the emergent controversy over "Section 28". Section 28 is a section of UK legislation that prevents local authorities from promoting homosexual activities (for an overview click here). It was brought in by the Thatcher government in 1988 and the present government is committed to repealing it. However, after a prolonged campaign which saw the House of Lords consistently throw out the repealing legislation, the government has had to admit that it cannot repeal it in the current Parliamentary session (click here for the story). The Prime Minister has referred to Section 28 as a piece of "prejudiced legislation" and has vowed to overturn it in the next Parliament. Whether he can or not has still to be seen, as a large section of the British population appear to want it kept.

Another piece of recent legal news concerns the parents of Louise Woodward. Readers will no doubt remember that Louise Woodward was tried in America for the murder of Matthew Eapen, a young child she minded whilst working there. After a somewhat controversial trial, Louise Woodward was convicted of manslaughter and released on a "time-served" basis. Allegations surfaced later that the parents of Louise had defrauded a trust fund set up to enable Louise to fight the charges. The principal allegation came from a member of Louise's defence team, when she claimed that the Woodwards had stayed at her house for free but claimed that she charged them rent.

At the Crown Court this week, the judge presiding over the UK trial ordered the jury to acquit the Woodwards on a technicality (click here for the story). He said there was evidence that the invoice was false, and there was evidence to suggest that the Woodwards had forged the invoice, but that it was not possible to prove that they had stolen money belonging to others. The reason for this is that some cheques were addressed to Mr and Mrs Woodward, whereas others were made out to the defence fund, but both were paid into the fund. Under English property law, the former would be the Woodwards personal money, and the latter would be trust money. English criminal law requires the theft to be of property belonging to another. Given that some of the money belonged to the Woodwards, but there was no way of accounting as to how much, the judge ruled they cannot have stolen property belonging to another and so ordered their acquittal. The Woodwards claim this as a vindication of their methods, but the judge's comments would appear to cast doubt over this. It would seem that their daughter is not the only one who has come through doubtful proceedings.

Two major consultation documents were released this past week. The first concerned the rights of the prosecution to appeal. The prosecution in England and Wales has very limited rights of appeal. Criminal cases in England and Wales are heard in one of two courts; the Magistrates' Court (the lower court) and the Crown Court (the higher court). In relation to trials in the Magistrates' Court, the defence has the right to appeal on either the facts or the law. The prosecution has the right to appeal an acquittal if they believe the Magistrates' made an error of law. In relation to a Crown Court trial, however, the prosecution does not really have any right of appeal against an acquittal. The Law Commission was asked to review this and their consultation paper poses some interesting questions.

The Law Commission has decided that only trials in the Crown Court need to be examined, and that there should be no change in relation to a jury's verdict. This means that if the jury decides to acquit a defendant the prosecution will have no right of appeal. However the Law Commission does suggest that in some limited circumstances, the prosecution should have the right to appeal against the decision of a judge to stop a case. This, in essence, means that the prosecution will be given the right to appeal against a matter of law raised by the judge but only if this occurs before the jury reaches a verdict.

Whilst this will be relatively controversial, it may not provoke as much argument as some may think. It appears sensible to give the prosecution a limited right of appeal, as society should have the right to see an offender punished adequately and an incorrect matter of law should not prevent this. The Law Commission is undoubtedly correct, however, not to permit such an appeal in relation to a jury's verdict. It is a fundamental principle of English criminal law that no-one, including the judge, has the power to order a jury to convict. The idea behind this is that if society - through the jury - wishes to acquit someone then they should have that right. To give the prosecution the right to appeal a jury's verdict would go against that principle.

The second consultation paper out this week concerned the UK sex offences review (to obtain an official summary of this report, click here or to see the BBC's synopsis of the review click here). Many of the sex offences currently defined in English law are over 100 years old, and so at the very least these proposals would update them. The consultation paper is less controversial than some believed it might have been - at one point there were rumours about the Home Office recommending reversal of the burden of proof in relation to rape. This has not happened, although the test of "consent" has been tightened somewhat. The report also abolishes some homosexual offences which many commentators believe are now out of date. Another important change will be to the agenda of child sex offences, where more modern offences are to be introduced and punishments will be increased significantly.

Watch for an upcoming special JURIST report on the sex offences review. Next week, however, I am away on holiday - I will return with another column in a fortnight's time.

Missed last week's UK Perspective? Read it here!

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Correspondents' Reports

JURIST's own correspondent in the United Kingdom reports on recent developments in UK law:

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Government and Legislation

The United Kingdom does not have a written constitution. The equivalent body of law is based on statute, common law, and "traditional rights." Changes may come about formally through new acts of parliament, informally through the acceptance of new practices and usage, or by judicial precedents. Although parliament has the theoretical power to make or repeal any law, in actual practice the weight of 700 years of tradition restrains arbitrary actions.

Executive government rests nominally with the monarch but actually is exercised by a committee of ministers (cabinet) traditionally selected from among the members of the House of Commons and, to a lesser extent, the House of Lords. The prime minister is the leader of the majority party in the Commons, and the government is dependent on its support.

Parliament represents the entire country and can legislate for the whole or for any constituent part or combination of parts. The maximum parliamentary term is 5 years, but the prime minister may ask the monarch to dissolve parliament and call a general election at any time. The focus of legislative power is the 650-member House of Commons, which has sole jurisdiction over finance. The House of Lords, although shorn of most of its powers, can still review, amend, or delay temporarily any bills except those relating to the budget. Only a few of the 1,200 members of the House of Lords attend its sessions regularly. The House of Lords has more time than the House of Commons to pursue one of its more important functions--debating public issues.

The judiciary is independent of the legislative and executive branches but cannot review the constitutionality of legislation.

Source: U.S. Department of State

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Courts and Judgments

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Legal Press

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Law Schools

Most UK universities offer law courses. In the United Kingdom, law is a three-year undergraduate degree - entry is decided by reference to "A-Level" points. "A-Levels" are examinations students take in the two years prior to entering university and each grade is worth a different level of points. The hierarchy of the UK law schools is roughly equal to those who wish or demand students who score the highest. The older universities (Oxford, Cambridge, Durham, London etc.) are still considered to be some of the most prestigious universities in which to "read law", but many newcomers have entered the field and, infused with energetic faculty members and diverse student bodies, are beginning to give the traditional institutions a run for their money.

There is no set format for UK law teaching; each university is allowed to decide how the subject will be taught. Some universities offer a large number of lectures and a small number of tutorials (e.g. "Oxbridge" and Durham), whereas other universities prefer more tutorials where near one-to-one tuition can be offered (e.g. Northumbria University) The only common thread uniting law degrees is that for them to qualify as law degrees for professional purposes, students must study Constitutional law, E.U. law, Contract Law, Law of Torts, Criminal Law, Land Law and Equity and Trusts.

At the end of three years students are awarded a bachelor's degree in law and they must then decide what to do next. A large proportion - possibly around one-third - will decide not to enter a career as a lawyer. The others must choose between becoming a barrister (essentially, a courtroom litigator) or a solicitor. Students who do not have a qualifying law degree (either because they have not studied one of the subjects listed above, or because they have read for another degree) but who nonetheless wish to enter the professions must do a one-year course called the Common Professional Examination and then they too have to choose which profession to enter. A would-be barrister has to take the Bar Vocational Course, which lasts one year. Prior to 1998 this course was taken in London at the Inns of Court School of Law, but nowadays there are several universities which also offer the training. Would-be solicitors study the Legal Practice Course, which is also one-year long and is offered by numerous universities, as well as by the College of Law (the formal "solicitor's university"). After completing their respective professional courses, law students then undergo professional training. A barrister undertakes a year of "pupillage" in barristers' "chambers", which is actually two six-month placements. A solicitor takes a training contract ("articles") which lasts for two years.

Legal education in England and Wales is changing quite rapidly, and in the opinion of some academic and professional observers a number of the older UK universities are not changing fast enough. Many UK law schools now offer skills-based learning like moots and advocacy, and many universities are also offering part-time or distance-learning degrees. The Open University (which was set up by the government in the 1960s primarily to teach adults by distance learning, which then meant correspondence and television) is leading the way in this field in general; in law, the University of London now offers an external LL.B. degree that can be taken by distance learning, and Strathclyde University in Scotland is offering an LL.M. through the internet. Bringing modern teaching methods to bear on legal education will help to ensure that law remains one of the more popular and respected degrees in the United Kingdom.

Alisdair A. Gillespie
JURIST UK Correspondent


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JURIST Correspondent
Alisdair A. Gillespie
Barrister (Middle Temple), Senior Lecturer and Deputy Director, Centre for Police Research and Education, University of Teesside, Middlesbrough