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The Court Structure of England
and Wales
MAKE SURE YOU KNOW
This chapter provides an overview of the court hierarchy of England
and Wales and examines the role and jurisdiction of the various courts
that make up the English legal system. For the SQE 1 assessments you
will need to understand the function and jurisdiction of each court
within the court structure and the designated avenues of appeal
available in different types of cases. You will also need to understand
the judicial hierarchy, and the rules governing the exercise of rights
of audience. Your understanding of these subjects will enable you
to identify and apply the appropriate legal rules and principles to
problem-based scenarios in the SQE.
The court structure of England and Wales
The function and jurisdiction of each court
The judiciary and the judicial hierarchy
Rights of audience
The appeals system
The Court Structure of England and Wales 3
SQE ASSESSMENT ADVICE
For the SQE, you are required to understand the legal system of England and Wales from a practical perspective. It is likely that you will be required to determine which court(s) or judge(s) have the power to hear particular types of cases. You may also be required to determine whether either party to a case has a legal basis to appeal a court’s decision and to identify which court would consider such an appeal.
As you work through this chapter, remember to pay particular attention in your revision to:
- the judicial hierarchy
- the function and jurisdiction of each court
- the designated routes of appeal available in different types of cases
- the basis upon which an appeal can be made
- the rules surrounding the acquisition and exercise of rights of audience.
WHAT DO YOU KNOW ALREADY?
Have a go at these questions before reading this chapter. If you find some difficult or cannot remember the answers, make a note to look more closely at that subtopic during your revision.
What does the term ‘jurisdiction’ mean in the context of the English legal system? [Subtopic: jurisdiction: overview; p. 6]
True or false: appeals from the County Court are always considered by the High Court. [Subtopic: the appeals system; p. 20]
Which of the following statements is most accurate? a) The magistrates’ court deal with all summary offences and triable either way offences. b) The magistrates’ court deals with summary offences and some triable either way offences. c) The magistrates’ court deals with summary offences, triable either way offences and less serious indictable offences. [Subtopic: jurisdiction and role of each court in the court structure of England and Wales; p. 11]
What is meant by the term ‘judicial hierarchy’ and how does this differ from ‘court hierarchy’? [Subtopic: the judicial hierarchy; p. 4]
True or false: solicitors are automatically granted higher rights of audience and can use these powers once they are admitted or registered to the roll of solicitors. [Subtopic: rights of audience; p. 27]
The judicial hierarchy 5
Typical court
Court ofAppeal Supreme Courtand Privy Council
Court ofAppeal Supreme Courtand Privy Council
HighCourt Court ofAppeal
High Court, Crown Court,
Family Court County Court and Crown Court, Family CourtCounty Court, High Court,
Family Court magistrates’ court,
Family CourtCounty Court,
Crown Court, Family Court
Judicial office
Lord Chief
Justice President of theSupreme Court
Master ofthe Rolls Justice of theSupreme Court
President of the Queen’sBench Division/ChanceryDivision/Family Division
Lord Justices
of AppealHigh Court
JudgeCircuitJudgeDistrictJudge District Judge (magistrates’ court)
Recorder
Typical address in court
My Lord/My LadyMy Lord/My LadyMy Lord/My LadyMy Lord/My LadyMy Lord/My LadyMy Lord/My LadyMy Lord/My Lady
Your Honour
Sir/ Madam
Sir/ Madam
Sir/ Madam
Status in judicial hierarchy
Senior judicial office
Senior judicial office
Senior judicial office
Senior judicial office Judicial powers notrestricted by statuteJudicial powers notrestricted by statuteJudicial powers notrestricted by statute
Judicial powers restricted by statute
Judicial powers restricted by statute
Judicial powers restricted by statute
Judicial powers restricted by statute
Table 1.1: The judicial hierarchy
6 The Court Structure of England and Wales
JURISDICTION: OVERVIEW
Jurisdiction refers to the power that a court or a judge has to consider different types of cases.
Key Term: Jurisdiction
Jurisdiction refers to the power that a court or judge has to hear a case.
Jurisdiction may refer to the type of law that the court typically deals with. For example, it is common to refer to courts as being either criminal courts or civil courts. The key differences between civil and criminal cases are outlined below.
What is the difference between civil and criminal cases?
Criminal cases are cases where a prosecution has been brought against an individual (referred to as a defendant ) who is believed to have committed a criminal offence. Prosecutions are typically brought against individuals by the Crown Prosecution Service (CPS) on behalf of the state (referred to as the prosecution ). The core function of criminal courts is to determine the guilt or innocence of a defendant. If a defendant is found guilty of an offence, the court must also determine an appropriate sentence for the defendant.
Civil cases, on the other hand, primarily involve the resolution of private disputes between individuals. Typically, the person bringing the claim (referred to as the claimant ) is seeking some sort of legal remedy. The other party to a civil case is usually referred to as the defendant. For example, Amy and Barry entered into a contractual agreement for the sale of a car. Amy believes that Barry has breached a term of their contract. Amy may bring a civil action against Barry. The purpose of the case would be to determine whether Barry has breached the term of the contract, and if he has, to determine an appropriate legal remedy for Amy.
The degree to which a party needs to prove their case varies depending on whether the case is a civil case or a criminal case. This is known as the standard of proof.
- In criminal cases the standard of proof is beyond a reasonable doubt. This is a high threshold to meet.
- In civil cases, the standard of proof is on the balance of probabilities. The standard of proof in a civil case is lower than in criminal cases.
8 The Court Structure of England and Wales
Practice Example 1.1 gives you an example of how this topic might be assessed in the SQE.
Practice Example 1.
A case concerning a very complex commercial contract dispute has commenced in the High Court. The claimant and defendant disagree about whether a term has been incorporated into a contract. The claimant alleges that the parties verbally agreed to incorporate the term into their contract. The defendant alleges that no such verbal agreement was reached and, as such, the claimant cannot rely on the term in question.
What is the relevant standard of proof in this case, and with whom does the burden of proof rest?
This case concerns a contract law dispute and is therefore a civil case. The standard of proof is the balance of probabilities. The burden of proof rests with the claimant.
You should now understand the key features of both civil and criminal cases. Remember that some courts deal predominately with either civil or criminal cases and are therefore described as having civil or criminal jurisdiction (this is explored further on p. 11). Cases can also be categorised as cases of first instance or appeal cases:
- Courts that hear cases at first instance are said to have trial jurisdiction.
- Courts that hear appeals are described as having appellate jurisdiction.
Criminal Civil Worked example
The CPS believe they have sufficient evidence to prove, beyond all reasonable doubt, that Cyril committed theft. Theft is a criminal offence contrary to the Theft Act 1968. The CPS may bring a prosecution against Cyril.
Duncan trips over an uneven paving slab on a public road. He falls and suffers various injuries and has to take time off work. Duncan may bring an action against the person/ body responsible for the maintenance and upkeep of the pavement. Duncan may seek damages to compensate him for the pain and suffering he has endured and for lost earnings.
Table 1.2: Continued
Jurisdiction: overview 9
What is the difference between trial and appellate
jurisdiction?
The key differences between trial and appellate cases are summarised as follows:
- When a case is considered for the first time, it is heard in a court of first instance.
- All cases will always commence in a court of first instance.
- If a court usually hears cases in the first instance, it is referred to as a ‘court of first instance’ or a ‘trial court’. The key function of these courts is to determine the facts of the case and to reach a decision on how the relevant law ought to apply to those facts.
- If any party to a case disagrees with how the law has been interpreted or applied, they may be able to appeal the decision of the court of first instance.
- Appeals are considered by appellate courts. If a court has jurisdiction to hear appeal cases, it is referred to as having ‘appellate jurisdiction’. The appellate courts consider questions of law, rather than questions of fact.
Finally, you should also be aware that some courts are described as ‘senior’ courts (Senior Courts Act (SCA) 1981, s 1(1) and CRA 2005, s 40(1)). Unless a court is a senior court, it has limited powers and is subject to review by senior courts. The following courts are senior courts:
- Crown Court
- High Court
- Court of Appeal
- Supreme Court.
A good understanding of jurisdiction is essential because it underpins your understanding of the court structure, the appeals process and precedent. In the SQE, you may also be required to:
- identify whether a case is a civil or criminal case, and
- identify the relevant standard and burden of proof, or
- identify statements that accurately describe the nature of such cases, or
- identify the court(s) that have jurisdiction to hear specific types of civil or criminal matters.
- identify whether a case is a trial case or an appeal case, and
- identify statements that accurately describe the nature of such cases, or
- identify the court(s) that have the relevant jurisdiction to hear different types of trial or appeal cases.
- accurately identify which courts are classified as senior courts.
Jurisdiction and role of each court 11
JURISDICTION AND ROLE OF EACH COURT IN THE
COURT STRUCTURE OF ENGLAND AND WALES
In the SQE, it is probable that you will be given case facts and asked to determine which court(s) (or judge) has the authority to hear the case. You should use this section of the guide to revise the key features of each court in the English legal system.
Supreme Court
Apart from cases concerning European law or the European Convention on Human Rights, the Supreme Court is the highest appeal court on civil and criminal matters in the UK:
- The Court of Justice of the European Union deals with cases concerning the interpretation of/compliance with European law.
- The European Court of Human Rights has jurisdiction for cases involving the interpretation or application of the European Convention on Human Rights.
The Supreme Court only hears appeal cases that involve a point of law which is of public importance. It has appellate jurisdiction only. No cases, no matter how important, can start in the Supreme Court! The type of appeals that can be heard by the Supreme Court are discussed later in this chapter (see p. 26).
Court of Appeal
The Court of Appeal is split into two divisions: the Civil Division and the Criminal Division. The Civil Division hears appeals on civil matters and the Criminal Division hears appeals on criminal matters. Like the Supreme Court, the Court of Appeal only hears appeal cases. It will only hear cases that involve a question of law. The type of appeals that can be heard by the Court of Appeal are discussed later in this chapter (see p. 21).
High Court
The High Court is comprised of three distinct divisions as follows:
- Queen’s Bench Division
- Chancery Division
- Family Division.
Collectively the three divisions of the High Court hear a wide range of civil cases. It is important to understand that in many cases, the High Court and the County Court have concurrent (parallel) jurisdiction to
12 The Court Structure of England and Wales
hear civil cases. This means that both courts have jurisdiction to hear the same types of cases:
- Civil cases with a value of less than £100,000 (or less than £50, for personal injury cases) should be commenced in the County Court (Civil Procedure Rules (CPR) 1998, Practice Direction 7A, 2.1).
- Where cases have a value of more than £100,000 (more than £50, for personal injury cases) the claimant can choose to commence proceedings in the Queen’s Bench Division, the Chancery Division or the County Court.
- A case should be commenced in the High Court where the case has complex facts, or the outcome of the case has an element of public interest, and the claimant believes the High Court is the suitable court. In all other cases, the case should be commenced in the County Court rather than the High Court (Practice Direction 7A, 2.4).
Revision Tip
Remember that in many civil cases, the High Court and the County Court have concurrent jurisdiction. This means that the claimant can choose whether to commence their case in the High Court or the County Court. Generally speaking, cases should be heard in the County Court unless they are of high value or are complex. For example, a case may be considered to be complex because it is highly technical and is likely to involve multiple experts.
Queen’s Bench Division
The Queen’s Bench Division has the most varied jurisdiction of the three divisions. Generally, the Queen’s Bench Division hears contract and tort disputes that are complex and/or involve substantial sums of money. It also contains several specialist courts, including the following:
- Administrative Court
- Admiralty Court
- Commercial Court
- Circuit Commercial Courts
- Technology and Construction Court.
When the court sits as a Divisional Court of the Queen’s Bench Division, it can hear criminal appeals from the magistrates’ court and the Crown Court, and judicial review hearings. These types of appeals are discussed later in this chapter (see p. 22).
14 The Court Structure of England and Wales
Revision Tip
When revising this topic, remember that family law matters will usually be considered by the Family Court in the first instance. Unless the Family Division of the High Court have special jurisdiction in respect of the case (eg it involves international family law or inherent jurisdiction) it is likely the case will be considered by the Family Court.
County Court
The County Court hears a wide range of civil cases. It is a court of first instance but can also hear appeals in some circumstances (see p. 25). As noted above, claimants in civil cases can choose to commence proceedings in the County Court. The County Court tends to hear cases that are less complex and of lower monetary value than those considered by the High Court. As a general rule of thumb, cases with a value of less than £100,000 should be commenced in the County Court. Personal injury cases with a value of less than £50,000 should also be commenced in the County Court.
Procedural Link: Commencing Civil Claims
There is a body of rules that govern the administration and management of civil cases. These are known as the Civil Procedure Rules 1998. In the SQE, your knowledge and understanding of these rules is assessed in the civil procedure and dispute resolution sections of the examinations.
Tribunals
Some civil cases are considered by tribunals. Tribunals are specialist judicial bodies that adjudicate disputes in specialist areas of law. Technically speaking, tribunals fall outside the formal court structure, but they play an important role in the administration of civil justice. The Tribunals, Courts and Enforcement Act 2007 introduced a two-tiered tribunal system. Generally, the first-tier tribunal acts as a court of first instance and the upper tribunal deals with appeals from the first-tier tribunals. There is also a separate employment tribunal system. Tribunals hear a wide range of cases ranging from employment law matters (Employment Tribunal) to appeals relating to immigration, asylum, tax, social entitlement and property matters.
Jurisdiction and role of each court 15
Exam Warning
You should always read the question carefully and make sure you understand what it requires you to do. In the SQE you may be asked to:
- advise on the most suitable venue for a case, or
- be required to identify which statement accurately identifies the court(s) that have jurisdiction to hear a specific type of case.
You may be thinking, what is the difference between these two questions? The former requires you to exercise your judgement. The latter requires you to accurately identify which of the statements most accurately identifies the court(s) that have the legal authority to hear that type of case.
If you need to advise on the most appropriate venue , ensure that you carefully analyse the facts to identify:
- the type of case (eg contract, tort, commercial, family, etc)
- the likely value of the case (if relevant)
- whether there are any factors that suggest the case will be complex.
You will then be able to identify the most suitable venue for the case.
Now put your knowledge to the test and attempt Practice Example 1.2.
Practice Example 1.
Your client, Edwin, was involved in a road traffic accident last year. He suffered injuries to his neck and left arm that prevented him from being able to work for five months. The other driver has rejected liability for the accident. Edwin is a self-employed builder. As a result of his injuries, he lost around £12,500 of income over the five months he could not work. He wants to make a claim to recover his lost earnings and to claim compensation for the injuries he suffered. The estimated value of the compensation for his injuries is £8,000.
Which court do you think would consider Edwin’s case?
Edwin’s claim relates to personal injury. Typically, personal injury claims worth less than £50,000 are considered by the County Court. Edwin’s claim is estimated to be worth around £20,500. There are no factors to suggest that the case would be particularly complex; the court would simply be required to review the evidence and determine the facts and whether, on the balance of probabilities, the other driver is liable for the accident. The case would likely be considered by the County Court.
Jurisdiction and role of each court 17
A good example of a triable either way offence is theft. In some cases, theft will be considered a serious criminal offence because of the value of the property that was taken and/or because of the circumstances in which it was taken (eg the defendant abused a position of trust). These cases would be considered by the Crown Court. If a defendant appropriated a low-value item from a supermarket it is likely to be considered by the magistrates’ court. The allocation of triable either way offences is discussed below. Because it hears serious criminal cases, trials in the Crown Court have juries.
Magistrates’ court
The magistrates’ court is a court of first instance. It deals primarily with criminal cases, but it has some limited jurisdiction in respect of some civil matters. The magistrates’ court also deals with the first appearance of any defendant charged with a criminal offence. They deal with procedural issues and hear initial bail applications.
Criminal jurisdiction of the magistrates’ court
- The magistrates’ court deals with all cases involving summary offences. Summary offences tend to be less complex and less serious than other types of criminal offences so do not require trial by jury. For example, most motoring offences are summary offences.
- The magistrates’ court also has jurisdiction to hear cases involving offences triable either way (eg theft, burglary). In these cases, defendants do not have the right to insist on being tried in a magistrates’ court, but the magistrates’ court can accept jurisdiction for the case if they feel it is appropriate.
- For triable either way offences, a defendant can insist on a trial by jury in the Crown Court.
- Where a triable either way case is too serious or too complex to be tried by magistrates, it must be sent to the Crown Court for trial.
- The magistrates’ court has limited sentencing powers. In particular, the magistrates’ court can only order a custodial sentence of up to 6 months (or up to 12 months in total if the defendant has committed multiple triable either way offences).
- When determining whether the magistrates’ court has jurisdiction to hear a triable either way offence, the magistrates will consider:
- the seriousness of the offence
- any relevant prior convictions
- whether the sentencing powers they have are likely to be sufficient to deal with the case.
18 The Court Structure of England and Wales
- If the magistrates’ court believe their sentencing powers are insufficient to deal with the case, they will reject jurisdiction for the case and the case will be sent to the Crown Court. This is known as the ‘allocation’ procedure.
Revision Tip
In the SQE assessment, you might be asked to determine which court would have jurisdiction to hear a criminal case. Remember all criminal cases are tried in either the magistrates’ court or the Crown Court (save some very rare exceptions that you do not need to familiarise yourself with). Figure 1.3 illustrates which of the two criminal trial courts have jurisdiction to hear different types of criminal cases. If you are asked to determine which court of first instance is appropriate in a criminal case, you should work through this flow chart.
Defendant prosecuted for summary offence
Magistrates' court has jurisdiction
Defendant prosecuted for triable either way offence
Magistrates' court accepts jurisdiction
Defendant accepts offer
Case is tried by the magistrates' court
Defendant rejects offer
Case is sent to Crown Court
Magistrates' court rejects jurisdiction
Case is sent to Crown Court Defendant prosecuted for indictable offence
Crown Court has jurisdiction
Allocation hearing to determine whether magistrates' court has appropriate powers to deal with the case
Figure 1.3: Determining the court of first instance in criminal cases
Procedural Link: Criminal Procedure
Criminal procedure is an area of functioning legal knowledge assessed by the SQE. Criminal procedure examines the various procedural rules governing the administration of criminal justice.
Civil jurisdiction of the magistrates’ court
As already noted, the magistrates’ court also has a limited civil jurisdiction. Magistrates’ courts typically deal with licensing applications and appeals regarding the issuing of pub and restaurant licences.
20 The Court Structure of England and Wales
Remember that the parties to a case can, in some circumstances, appeal a court’s decision. There are designated routes of appeals in different types of cases. These routes of appeal are outlined in the following section.
THE APPEALS SYSTEM
There are two key functions of the appeals system:
- allow for the review of decisions that could be unjust or incorrect
- allow the higher courts to clarify or reiterate the correct interpretation of the law in a specific area.
The SQE assessment is likely to require you to identify whether an appeal is possible in particular circumstances/cases. It is important that you understand the basis upon which an appeal can be made, and which court(s) have the jurisdiction to hear different types of appeals. For ease, this section will examine appeals against first-instance decisions in criminal and civil cases separately. We will then move on to examine the avenues available for challenging decisions made on appeal.
Routes of appeal: criminal cases
As you now know, all criminal cases begin in either the magistrates’ court or the Crown Court. In criminal cases, appeals against first instance decisions are typically brought for three reasons:
- The appeal is against conviction and/or sentence.
- The appeal is brought on the basis that the trial court acted in excess of their powers and/or misapplied the law.
- The appeal is brought on the basis that there is a real possibility that a miscarriage of justice has occurred; there is a real possibility that a conviction, verdict, finding or sentence would not be upheld on appeal.
Appeal against conviction and/or sentence
If a case begins in the magistrates’ court, the defendant may appeal against conviction and/or sentence. It is important to revise the following points:
- These appeals are considered by the Crown Court and involve an entire re-hearing of the case.
- If the defendant entered a plea of guilty, they may only appeal against sentence.
- The Crown Court either confirms the verdict and/or sentence of the magistrates’ court, or it can substitute its own decision for that of the lower court.
- The Crown Court will review all the decisions of the magistrates’ court and not just the points on which the appeal rests.
- It can increase the sentence of the offender, even if the sentence is not appealed. The prosecution cannot appeal to the Crown Court.
The appeals system 21
If a case is tried by the Crown Court, then the defendant may appeal against conviction and/or sentence. It is essential to remember the following points:
- The defendant must apply for leave to appeal.
- Such appeals will be considered by the Court of Appeal.
- If the appeal is dismissed, the original verdict and sentence will remain the same.
- If the appellant is successful, the verdict could be confirmed or overturned, or their sentence may be reduced.
It is important to remember that appeals against conviction are concerned with whether a conviction is ‘safe’ or ‘unsafe’ rather than whether the defendant was guilty or innocent (Criminal Appeal Act 1968, s 2(1)). A conviction could be considered ‘unsafe’ where there has been an error in the summing up, where there has been a procedural irregularity, where there have been errors made by the defence’s legal representative or where fresh evidence is discovered after the trial.
The routes of appeal for the prosecution are much more limited. In your revision, remember the following:
- The prosecution has no right of appeal in respect of a defendant who has been acquitted by a jury following a Crown Court trial.
- The prosecutor does, however, have a right of appeal in respect of rulings made by a trial judge either before or during the trial if the ruling effectively terminated the trial (terminatory rulings) or significantly weakened the prosecution case (evidential rulings). For example, the prosecution could appeal if the judge refused an adjournment or ruled there was no case to answer.
- These appeals are considered by the Court of Appeal.
- Permission to appeal must be granted by the trial judge or the Court of Appeal.
- Appeals by the prosecution following conviction in the Crown Court are typically appeals against an unduly lenient sentence. These appeals are only available for serious offences and formal consent must be given by the government’s chief legal officer, the Attorney General. These cases are brought in the name of the government and are termed ‘Attorney General’s Reference’ cases.
Trial court acted in excess of their powers and/or misapplied
the law
There are two types of appeal to consider under this heading: appeals by way of case stated and judicial review proceedings.
