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By Dr Zahra Fatima, Associate Dean, FSB Leicester and Zainab Zerroug, Law Graduate and Student Support Officer, FSB Leicester.

For aspiring criminologists, a comprehensive understanding of the legal framework is an indispensable prerequisite for navigating the dynamics surrounding the English Legal system and criminal justice. This article will examine the structure of the courts and the sources of both common and criminal law. Further, this article will explore key theoretical and practical elements of criminal law and what elements are necessary to amount to a crime. Subsequently, a discussion on the role of legal professionals will highlight potential career paths, concluding with an overview of the legal rights and protections afforded to those accused of a criminal act.

How is the English Legal System structured?

The English legal system is structured hierarchically into three main branches: the judiciary, the parliament, and the executive. At the pinnacle of the judiciary is the Supreme Court, which serves as the highest court of appeal for both civil and criminal cases[1]. Below it is the Court of Appeal, divided into Civil and Criminal Divisions, which hears appeals from lower courts. The High Court, comprising divisions such as the King’s Bench, Chancery, and Family Division, deals with higher-level cases. Subordinate to these is the Crown Court, handling serious criminal cases; County Courts, dealing with civil matters; and Magistrates’ Courts, addressing minor criminal offences and preliminary hearings. Parliament, representing the legislative branch, creates laws through statutes, while the executive branch is responsible for enforcing these laws, completing the tripartite structure of governance[2].

[1] Courts and Tribunals Judiciary, ‘Structure of the Courts & Tribunals System’ (Courts and Tribunals Judiciary2023) <https://www.judiciary.uk/about-the-judiciary/our-justice-system/court-structure/#:~:text=All%20criminal%20cases%20will%20start>.

[2] Martin Partington, Introduction to the English Legal System (14th edn., Oxford University Press 2019) 2 2–74.

Diagram of the structure of the English Legal Courts. The Supreme Court is housed in Middlesex Guildhall on Parliament Square in London.

What are the sources of Law?

English law is created through four primary sources: legislation, case (common) law, human rights law, and EU law. A fifth informal source is custom, though it is less significant as case law and legislation have largely incorporated it[5].

Legislation

Parliament is the supreme law-making authority[6]. Legislation, starting as a Bill, goes through several stages in Parliament before becoming an Act with Royal Assent.

Historically, the authority of Parliament to create laws evolved from the Magna Carta in 1297[7], which limited the monarch’s power and established the principle of parliamentary consent for taxation. Over centuries, Parliament’s legislative authority has expanded, culminating in its role as the supreme law-making body today.

[3] ‘The Judiciary Lecture’ (www.lawteacher.net) <https://www.lawteacher.net/lectures/public-law/the-judiciary/>.

[4] University of Oxford, ‘Law Reports’ (Oxford Law FacultySeptember 2015) <https://www.law.ox.ac.uk/legal-research-and-mooting-skills-programme/law-reports>.

[5] Ernst Freund and Heinrich Brunner, The Sources of English Law (Creative Media Partners, LLC 2023).

[6] UK Parliament, ‘What Is the Role of Parliament?’ (UK Parliament2019) <https://www.parliament.uk/about/how/role/>.

[7] Doris Mary Stenton, ‘Magna Carta | History, Summary, & Importance’, Encyclopædia Britannica (2018) <https://www.britannica.com/topic/Magna-Carta>, Magna Carta 1297.

Statutes cover diverse areas of law, from criminal offences to civil rights, reflecting societal changes and addressing contemporary issues. The legislative process involves rigorous scrutiny and debate, ensuring laws are responsive to public needs and values.

Common law

Common law, also known as case law, is created through judicial decisions.

The previous judicial approach, as highlighted by Fisher v Bell [8] (1961), was to apply the literal rule of statutory interpretation, which often led to rigid and unintended outcomes. In contrast, the modern approach, as utilised in R v Secretary of State for the Home Department, ex parte Daly [9](2001), allows for a more flexible and purposive interpretation of the law based on the merits of each case. This approach allows the Courts to consider the broader context and legislative intent in their decisions to promote alignment with fundamental rights and principles[10].

Human Rights and EU law

Lastly, Human Rights law, through the European Communities Act 1972 and the Human Rights Act 1998, integrates EU and European Convention on Human Rights[11] principles into domestic UK law. In doing so, Courts can declare statutes incompatible with human rights, prompting legislative changes[12].

Despite Brexit, EU law still influences UK law[13]. While the UK is no longer bound by new EU laws, many existing EU laws were retained in UK law for continuity. The European Union (Withdrawal) Act 2018[14] ensures that EU regulations, as they stood on the day of Brexit, remain applicable unless expressly changed by UK legislation.

What is Criminal Law?

[8] Fisher v Bell [1961] QB 394.

[9] R v Home Secretary, ex parte Daly [2001] 3 All ER 433.

[10] Robin Cooke, ‘The Road Ahead for the Common Law’ (2004) 53 International and Comparative Law Quarterly 273.

[11] Council of Europe, ‘European Convention on Human Rights’ (The European Convention on Human Rights2014) <https://www.coe.int/en/web/human-rights-convention>.

[12] Courts and Tribunals Judiciary, ‘Structure of the Courts & Tribunals System’ (Courts and Tribunals Judiciary2023) <https://www.judiciary.uk/about-the-judiciary/our-justice-system/court-structure/#:~:text=All%20criminal%20cases%20will%20start>.

[13] ‘European Union (Withdrawal) Act 2018’ (Legislation.gov.uk2018) <https://www.legislation.gov.uk/ukpga/2018/16/contents>

[14] ‘European Union (Withdrawal) Act 2018’ (Legislation.gov.uk2018) <https://www.legislation.gov.uk/ukpga/2018/16/contents>

Criminal law is a complex system that governs how societies address unlawful behaviour. It comprises three key components. [15]

First, substantive law outlines fundamental principles of criminal responsibility, such as the requirement for both a guilty mind and a guilty act. (As defined later in this article.)  Additionally, specific crimes are defined in the statute such as murder[16] and theft[17], along with legal defences to such crimes such as loss of control[18] and self-defence.[19]

Second, criminal procedure dictates the process from arrest and evidence gathering to trial, appeal, and sentencing, ensuring justice is administered fairly and transparently. Finally, criminal evidence establishes guilt or innocence through credible and relevant proof, forming the basis of criminal responsibility.

Defining Criminal Law – Theories

To understand the scope of criminal law and its interaction with crime, we first need to define what constitutes a crime. One influential definition by Williams[20], despite some criticism for being circular, highlights the procedural aspect of criminal law. According to Williams, a crime is an act that can lead to criminal proceedings and a criminal outcome, essentially framing criminal law as the branch that deals with such conduct through prosecution in criminal courts.

In contrast, Blackstone’s 18th-century[21] definition focuses on the public harm caused by criminal acts. He describes a crime or misdemeanour as an act that violates a public law, either by commission or omission, thus breaching the public rights and duties owed to the entire community.

Which definition do you agree with?

Defining Criminal Law – Legal Practice

Usually, a crime is composed of two key elements:

• Actus reus[22], which is the external, behavioural component, and
• Mens rea an internal mental component[23].

[15] William Blackstone, The Oxford Edition of Blackstone’s: Commentaries on the Laws of England (Oxford University Press 2016).

[16] Homicide Act 1957

[17] Theft Act 1968.

[18] Coroners and Justice Act 2009, R v Duffy [1949] 1 All ER 932.

[19] James Edwards and Andrew Simester, ‘Crime, Blameworthiness, and Outcomes’ (2018) 39 Oxford Journal of Legal Studies 50, Palmer v R [1971] AC 814.

[20] Glanville Williams, ‘7 the Definition of Crime’ (1955) 8 Current Legal Problems 107.

[21] William Blackstone, The Oxford Edition of Blackstone’s: Commentaries on the Laws of England (Oxford University Press 2016).

[22] R v Miller [1983] 2 AC 161.

[23] R v Cunningham [1982] AC 566.

Landmark cases such as R v Cunningham[24], which clarified recklessness, and R v G and Another,[25] which revisited negligence, are pivotal in understanding these principles and are cases of note to all criminology students[26].

What is the role of Legal Professionals?

Solicitors and barristers are key players in the legal system. Solicitors provide legal advice, handle paperwork, and communicate with clients, while barristers specialise in presenting cases in court. Legal executives and paralegals support solicitors with research, drafting documents, and client interactions.

Qualifications and training for these roles vary. Solicitors traditionally completed a law degree, the Legal Practice Course (LPC), and a training contract, but now they can qualify through the new Solicitors Qualifying Examination (SQE)[27] route, which involves passing two exams and gaining two years of work experience. Barristers complete the Bar Professional Training Course (BPTC) and a pupillage. Legal executives qualify through the Chartered Institute of Legal Executives (CILEx).[28]

For criminology students, understanding these roles and their qualifications is crucial. It provides insight into the criminal justice system and the professional pathways within it, highlighting the importance of each role in delivering justice.

What are legal rights and protections?

Legal rights and protections are essential safeguards afforded to individuals within the English legal system, particularly for those accused of crimes. These rights reflect the HRA 1998 to ensure fair treatment and uphold principles of justice. The Act upholds rights such as the right to life[29], liberty[30], and privacy[31].

[24] R v Cunningham [1982] AC 566

[25] R v G and another [2003] UKHL 50, [2004] 1 AC 1034

[26] Leslie A Atkins and RL Akers, ‘Criminological Theories: Introduction and Evaluation’ (1995) 23 Teaching Sociology 422.

[27] ‘Becoming a Solicitor’ (www.sra.org.uk14 December 2017) <https://www.sra.org.uk/become-solicitor/>.

[28] BSB, ‘Becoming a Barrister: An Overview’ (www.barstandardsboard.org.uk) <https://www.barstandardsboard.org.uk/training-qualification/becoming-a-barrister.html>.

[29]Human Rights Act 1998 art 2

[30] Human Rights Act 1998 art 5

[31] Human Rights Act 1998 art 8

Additionally fundamental rights include the right to a fair trial[32], where individuals are presumed innocent until proven guilty `beyond a reasonable doubt’[33]. Moreover, under article 6[34], individuals have the right to legal representation[35].

This article has provided students and aspiring criminologists with a comprehensive understanding of the English legal system, focusing on its structure, sources of law, and essential components of common law and criminal justice through landmark cases. By exploring these foundational elements and introducing basic theoretical and practical principles, students gain crucial insights into how laws are crafted and interpreted in the UK.

[32] Human Rights Act 1998 art 6

[33] Woolmington v DPP [1935] AC 462.

[34] Human Rights Act 1998 art 6

[35] R v Saunders [2012] EWCA 1380.

Bibliography

Articles and Websites:

Atkins LA and Akers RL, ‘Criminological Theories: Introduction and Evaluation’ (1995) 23 Teaching Sociology 422

‘Becoming a Solicitor’ (www.sra.org.uk14 December 2017) <https://www.sra.org.uk/become-solicitor/>

Blackstone W, The Oxford Edition of Blackstone’s: Commentaries on the Laws of England (Oxford University Press 2016)

BSB, ‘Becoming a Barrister: An Overview’ (www.barstandardsboard.org.uk) <https://www.barstandardsboard.org.uk/training-qualification/becoming-a-barrister.html>

Cooke R, ‘The Road Ahead for the Common Law’ (2004) 53 International and Comparative Law Quarterly 273

Courts and Tribunals Judiciary, ‘Structure of the Courts & Tribunals System’ (Courts and Tribunals Judiciary2023) <https://www.judiciary.uk/about-the-judiciary/our-justice-system/court-structure/#:~:text=All%20criminal%20cases%20will%20start>

Edwards J and Simester A, ‘Crime, Blameworthiness, and Outcomes’ (2018) 39 Oxford Journal of Legal Studies 50

‘European Union (Withdrawal) Act 2018’ (Legislation.gov.uk2018) <https://www.legislation.gov.uk/ukpga/2018/16/contents>

Freund E and Brunner H, The Sources of English Law (Creative Media Partners, LLC 2023)

Partington M, Introduction to the English Legal System (14th edn., Oxford University Press 2019) 2

Stenton DM, ‘Magna Carta | History, Summary, & Importance’, Encyclopædia Britannica (2018) <https://www.britannica.com/topic/Magna-Carta>

‘The Judiciary Lecture’ (www.lawteacher.net) <https://www.lawteacher.net/lectures/public-law/the-judiciary/>

The Supreme Court, ‘R (on the Application of Miller) (Appellant) v the Prime Minister (Respondent) – the Supreme Court’ (Supremecourt.uk2019) <https://www.supremecourt.uk/cases/uksc-2019-0192.html>

UK Parliament, ‘What Is the Role of Parliament?’ (UK Parliament2019) <https://www.parliament.uk/about/how/role/>

Williams G, ‘7 the Definition of Crime’ (1955) 8 Current Legal Problems 107

Cases:

R v Duffy [1949] 1 All ER 932

Fisher v Bell [1961] QB 394

Palmer v R [1971] AC 814

R v Cunningham [1957] 2 QB 396

R v Cunningham [1982] AC 566

R v G and another [2003] UKHL 50, [2004] 1 AC 1034

R v Home Secretary, ex parte Daly [2001] 3 All ER 433

R v Miller [1983] 2 AC 161

R v Saunders [2012] EWCA 1380

R v Tolson [1889] 23 QBD 168

Regina v Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of Prof-Life Alliance) (Appellant) [2003] UKHL 13

Woolmington v DPP [1935] AC 462

Legislation:

Coroners and Justice Act 2009

European Communities Act 1972

European Convention on Human Rights

Homicide Act 1957

Human Rights Act 1998

Magna Carta 1297

The European Union (Withdrawal) Act 2018

Theft Act 1968