726241906-Common-Law-PowerPoint-Presentation-1.pptx

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1. Topics to Be Discussed Introduction to the Procedural Language of the Court Process Legislation and Judicial precedents as sources of law The Use of Judicial Precedents The Role of the Common Law Judge Burden, Standard of Proof & Presumptions Evidence and its Production

2. Introduction to Law The Law of a state : ‘Rules governing natural and legal persons in terms of their conduct, status, rights, obligations, powers, immunities, etc ’ Law is imposed by a sovereign through representative democracy justified by the social contract . Law is enforced among the subjects.

3. Civil law and Common Law Traditions The Civil law and Common law are the major legal traditions that have developed in sufficiently different ways that they are now universally regarded as belonging to different legal families. “ In practical terms, this means that each system is, in important respects, inaccessible to a lawyer trained in the other legal system .”

4. Common Law The expression “common law” can be used to denote several things: First it could mean the body of law derived from judicial decisions rather than from statutes or constitutions. There is thus a definite body of law arising from judicial decisions amounting to precedents which is referred to as “common law”.

5. The Expression “Common Law” ‘ Common law ’ can also be used to refer to the English Legal System or each of the legal systems of the historical colonies of England, as distinct from the legal systems that follow the civil law tradition. In this context the expression ‘common law’ denotes the general Anglo-American system of legal concepts (together with the techniques of applying them) which form the basis of the law in jurisdictions which apply them.

6. The Expression “Common Law” Thirdly, the expression ‘common law’ refers to the section of English Common law (as per the first stated definition) whose inflexibilities, later, had to be remedied by the introduction of a different body of rules collectively called equity .

7. THE PROCEDURAL LANGUAGE OF THE COURT PROCESS Important Concepts in Civil Litigation Cause of Action Locus Standi Jurisdiction Prescription Pleadings Appearance Trial Burden & Standard of Proof Presumptions Prayers

8. Important Concepts in Civil Litigation Cause of Action : The set of facts that constitute the basis of the Claimant’s Claim. Locus Standi : The legal relationship which a party has with the case allowing him/her/it to address the court as a litigant in the matter. Jurisdiction : The Limits within which lawful authority may be exercised. Prescription : The legal time limits within which rights may be enforced by a court action.

9. Important Concepts in Civil Litigation Pleadings : The initiating documents for a civil suit. Summons : A legal document issued by a court for various purposes, e.g., to order the appearance of a party in a proceeding. Appearance : 1. Attending a court hearing in the role of a litigant. 2. Either between appearance in person and appearance through an advocate. Trial : The first instance hearing as opposed to an appeal. Burden of Proof : The legal duty to prove a case. Damages : Monetary compensation.

10. Important Concepts in Civil Litigation Standard of Proof : The degree of proof the party with the burden of proof is required to meet. Presumptions : The legal requirement that courts treat certain facts as established without obliging the party who wishes to rely on those facts in question to prove them. Prayers : The requests that the litigants make before the court, whether they are interlocutory or ultimate requests in their respective cases.

11. Important Concepts in Criminal Proceedings Reasonable and Probable Cause : An honest belief founded on reasonable grounds that the institution of the proceedings would be justified. The Charge : A formal accusation made by a prosecutor asserting that the accused has committed a crime. A Plea (of guilty or not guilty) : The accused person’s statement of choice between admitting to the charge or contesting it. Evidence : The means by which an alleged matter of fact is proved or disproved. A Case to Answer : A case of the prosecution which in terms of the evidence that supports it raises a considerable suspicion against the accused person.

12. Important Concepts in Criminal Proceedings Verdict : The decision resulting from the proceedings in a criminal trial, on whether the accused is guilty or not guilty of the offence(s) with which he has been charged. Mitigation : The stage in the criminal trial after a verdict of guilty has been reached, where the accused gets to plead for leniency from the court in terms of the punishment that will be meted out.

13. The Value & Use of Judicial Precedents Judicial decisions by superior courts in common law systems are considered as part of the law. They are primary sources of law together with written law. In England and Wales, the precedent-setting courts (superior courts) are the Supreme Court, the Court of Appeal and the High Court. Each of these courts is bound by the precedents of the court(s) above it. Subordinate courts are bound by the precedents of the superior courts, in accordance with the hierarchy of the superior courts.

14. The Value & Use of Judicial Precedents Supreme Court decisions are binding on all other courts. The Court of Appeal is bound not only by Supreme Court decisions but also by its own existing precedents. The High Court is bound by Supreme Court decisions and those of the Court of Appeal, as long as none of the latter has been superseded by any of the former.

15. The Value & Use of Judicial Precedents There are at least three instances where the Court of Appeal may ignore its own existing precedents and treat them as non-binding as set out below: Where in the determination of a subsequent case, the Court of Appeal learns of a new Supreme Court decision that replaced the Court of Appeal’s pre-existing precedent. Where a new legislation is passed repealing one that was interpreted by a Court of Appeal precedent. Where in the determination of a subsequent case, the Court of Appeal realises that a former applicable precedent of its own was made per incuriam.

16. The Value & Use of Judicial Precedents Precedents are binding even if the court that is to apply them perceives them as being wrong. But built into the common law system are elements of elasticity that keep the common law dynamic and adaptable to changing circumstances as follows: Distinguishing The reasons that once existed for a particular rule may have changed.

17. The Role of the Common Law Judge in Conducting the Hearing Common law procedures before the courts are often described as adversarial while civil law court proceedings are described as inquisitorial. Adversarial here describes the way the litigants argue their respective cases by confronting each other’s witnesses , sometimes quite aggressively. ‘Inquisitorial’ describes the way the court exercises investigative powers to elicit the facts and evidence from the parties.

18. The Common Law Judge as an Umpire The reserved role of the judge in systems described as ‘adversarial’ creates room for the parties (being the masters of their cases) to lead the presentation of their respective cases within circumscribed limits . “The judicial function of dealing with cases justly in an adversarial system requires a trial judge to hear and determine the issues raised by the parties, not to conduct an investigation on behalf of society at large .”

19. Description of the Role of the Common Law Judge as per Jones v. National Coal Board “…a judge’s part ...is to listen to the evidence, himself asking questions of witnesses only when it is necessary to clear up any point that has been overlooked or left obscure ; to see that the advocates behave themselves appropriately and keep to the rules laid down by law; to exclude irrelevances and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the responsibility of a judge and assumes the role of an advocate ; and the change does not create an appropriate impression for the judge .”

20. Party Prosecution The principle by which cases are presented before common law courts is described as party prosecution . This simply means that it is for the parties to argue or present their respective cases and the court will only intervene in relation to procedural aspects of the law which govern the production of evidence including those which determine the admissibility of evidence, or when seeking clarification on a point that is left obscure by the witnesses and which appears to be necessary for the judge to understand the facts between the parties.

21. The Rationale Behind the Adversarial Approach The rationale behind the adversarial approach is the belief among common law lawyers that if the judge gets involved to the point of directing a party on a specific item of evidence that he or she should produce, then he (the judge) would be seen by the other party as having stopped to act as a judge and started to act as advocate for the party so directed , especially if the other party loses the case at the end.

22. The Rationale Behind the Party-Prosecution Approach The second rationale for this approach is the belief that the parties, motivated by the stake (they think) they have in the case, will have the largest incentive to single-mindedly search for and present the elements needed to establish their respective cases. It is believed that from the clash between two zealous/aggressive sides, the court is likely to learn the truth of the matter.

23. The Adversarial Approach Therefore, in the common law court process, the examination of witnesses, primarily belongs to the parties and the court may thereafter question the witness, where something remained obscure during the party/advocate-led testimony. In civil law systems, the examination of parties and witnesses is generally the responsibility of the court.

24. The Investigative Civil The investigative power of the civil law judge can be seen at two levels: The monopolized role played by the judge in examining the parties and witnesses. The power that vests in the court allowing the judge to conduct independent investigations outside the court process.

25. The Investigative Civil The rationale behind the investigative approach employed by the civil law judge is in the need for the judge to (independently) find the truth, mindful of the fact that the parties, being in dispute with each other, will likely be biased in presenting their respective cases.

26. Evidence and its Production Before Common Law Courts Orality: It is a rule of civil and criminal procedure before common law courts that evidence must be presented orally. This rule is usually expressed in the written laws of procedure in common law countries. You may find a provision which states as follows: “All facts, except for the content of documents , must be proved by oral evidence.”

27. Evidence and its Production Before Common Law Courts In common law courts evidence is presented through the testimony of witnesses. The witness testimony is made in court during the trial and not before the trial. Neither prosecutors nor advocates are allowed to give what is considered to be a testimony , or to inform the court of the substance of a testimony of a witness who him/herself does not appear in court to give the relevant testimony .

28. Evidence and its Production Before Common Law Courts The Rule Against Hearsay: Evidence must be presented before common law courts orally. It is presented by means of witness testimony . No one other than the witness (one who perceived the facts first hand) will be allowed to narrate the facts to the court. This last sentence states the rule against hearsay evidence . Therefore the parties or their lawyers or the prosecutor cannot present to the court what they were informed by a witness out of court.

29. Documentary Evidence Another rule in connection with the oral presentation of evidence in court is that documentary evidence is subject to an oral testimony. This does not mean that documentary evidence is of less value than an oral testimony but it simply describes the protocols of presenting evidence before a common law court. These protocols require that for every item of evidence to be presented, there must be a background testimony given in court by an appropriate witness who makes reference to such item and only then can such an item be presented by the lawyer to the court.

30. Evidence to be Adduced At Trial In most common law systems, evidence is presented and argued during the court trial and not before. In criminal proceedings, this is based on the principle that ‘ the common law judge must not be exposed to any pre-trial indicator of guilt of the accused person ’ . Therefore in common law criminal proceedings the prosecution case file (the dossier) is separate from the court case file and the prosecution may not transfer their case file to the court.

31. Common Law Commencement of the Criminal Case The prosecutor simply files a notice of the case to the court but retains the evidence collected because this is to be presented to court during the trial.

32. Front-loading in Civil Cases In civil cases in common law systems, the procedure prevents the filing of evidence along with pleadings (initiating documents of the case consisting mainly of the statement of claim and the statement of defence). Evidence is to be produced just before and during the trial. However, Some systems like Ghana have evolved to require evidence to be filed with pleadings. This may be referred to as the front-loading of evidence.

33. Front-loading in Civil Cases In systems that require evidence to be filed along with pleadings, the evidence will include written statements of witnesses who are to testify during the trial. These witnesses however, will still be required to attend the court hearing. But the hearing will under these circumstances begin with cross examination because the purpose of examination in chief will be served by their written account in the statements filed with the pleadings.

34. Presumption of Innocence In common law systems, as in other systems, the presumption of innocence is seen as a shield of the accused person. The law further provides that even after the prosecution has fully adduced its evidence, it is not automatic for the accused person to be called upon to answer to the case. Whether the accused will be required to set out his defence will depend on whether the prosecution has reached a certain degree of proof that raises considerable suspicion against the accused .

35. Determination of a Prima Facie Case Normally, after the prosecution is done presenting their evidence against the accused person, the court will adjourn the case and assess the strength of the prosecution’s evidence and prepare a ruling to be delivered on the next date of hearing. If in this ruling the court finds that the evidence of the prosecution raises a considerable suspicion that the accused person committed the crime charged then the court will invite or require the accused person to present his defence case because the accused person will have been found to have a ‘ case to answer ’ .

36. Civil claim and Criminal Proceedings Common law systems do not combine civil claims with criminal proceedings . Civil claims which arise from criminal offences cannot be brought alongside the criminal cas e. Another rule of evidence is that a civil case arising from a criminal offence will not in common law countries be influenced by the outcome of the criminal case . The reasoning behind this is that the judge in the civil case is required to look at the case before him with a fresh eye ( mentality) because it is a case to be assessed on a different degree of proof and every case must be judged on its own factual merits as well as legal standards.

37. Civil claim and Criminal Proceedings In common law systems every person is entitled to a full-blown due process in terms of the judge hearing his/her case having to scrutinize the evidence presented to him afresh and never to rely on another court’s findings of evidence that the other court received even though the other court had considered the same questions of fact. So a party bringing a civil claim will not be caught up in any possible mistakes that may have been made in a criminal case that tried the commission of a crime from which his claim arises.

38. The System of Trial By Jury A jury is a group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them. A trial by jury, also known as a jury trial is a trial in which the factual issues are determined by a jury, not by the judge. Members of the jury are supposed to be men and women of integrity and they must also be laypersons in relation to the field of law and legal procedures.

39. Rationale of the Jury System Therefore, trial by jury provides an opportunity for the layman to participate in the administration of the legal system, to reassure the rest of us that justice is being done in individual cases by acting as a restraining influence on the professional judiciary.

40. Jury System in England In Criminal Prosecutions in the Crown Court in England for example, the jury will listen to the evidence, and to any directions on the law given by the judge. The members of the jury then decide, in the light of their understanding of the law as explained by the judge, whether, in fact, the accused is guilty or not guilty.

41. Jury System in Civil Cases Similarly, in the few civil cases where the jury system is used, the jury will consider the evidence and any directions on the law given by the judge. The members of the jury then apply their understanding of the law to the facts of the case and decide whether to find for the plaintiff or for the defendant. If judgment is given for the plaintiff, the jury also decides, as a question of fact, how much the damages should be.

42. Model Judge’s Direction to the Jury It is my job to tell you what the law is and how to apply it to the issues of fact that you have to decide, and to remind you of the important evidence on these issues. As to the law, you must accept what I tell you. As to the facts, you alone are the judges. It is for you to decide what evidence you accept and what evidence you reject or of which you are unsure. If I appear to have a view of the evidence or of the facts with which you do not agree, reject my view. If I mention or emphasize evidence that you regard as unimportant, disregard the evidence. If I do not mention what you regard as important, follow your own view and take that evidence into account.

43. Consequence of Failure by Judge to Give Proper Directions to Jury Failure as a judge to offer the jury an explanation of their role along the lines of the model direction may amount to a misdirection which could result in the quashing of the accused person’s conviction on appeal.

44. Judicial Pressure on the Jury It is generally accepted that a jury must be allowed to consider their verdict free from all external pressures, such as violence, threats, intimidation or attempted bribery. It is also important that a jury should not be subjected to undue pressure from the trial judge. If they are so subjected, this may lead to the defendant’s conviction being quashed on appeal on the ground of a material irregularity in the course of the trial (first instance hearing).

45. Jury Nullification Jury nullification is the process whereby a jury acquits someone whom they believe to be guilty under the law, either to express their disapproval of the law itself (thereby ‘nullifying’ the law) or the particular circumstances of the way the prosecution was brought (often because it is oppressive or unjust to convict in the case that they are trying). Some describe such an action of the jury as “rejecting the law and perhaps the judge’s instructions on how to apply the law in order to do justice to the accused person’.

46. Jury Nullification Nullifying the law in a particular case and thereby deciding contrary to the law is the strangest constitutional right that vests in the jury. Some judges even don’t inform the jury of this right which they have, when giving instructions to the jury on the role they will play. The jury can exercise this right without any fear of action that would ensue afterwards against them because there cannot be any.