The Sivadian legal system has a long and honored history, and many of the modern traditions of the courts are inshrined from long ago. The courts themselves are part of the government of the Kingdom of Sivad, and are overseen by the Lord Chancellor of Sivad. Sivad's courts are based on a system of common law, in which legislation passed by the Parliament is supreme, and is then interpreted by judicial rulings. Sivad has no codified constitution, and as such the Parliament may essentially overrule any judicial decision with a new act of legislation.
Civil vs. Criminal CourtsEdit
There are two types of court on Sivad: criminal courts, and civil courts. Criminal matters involve offences committed against the Government of Sivad. If someone steals something from someone else, or if someone hurts somebody else or damages their property, it is generally considered a criminal offence. Criminal offences are described by the Sivadian Criminal Code of Justice. It is important to note that none of these offences are considered, legally, to have been committed against the victim but rather against the whole of society, and the so-called "King's Peace." As such, criminal prosecutions are brought in the name of the Crown, and are titled Rex v. Defendant. The latin Rex, King, is generally abbreviated R. and R. v. Smith would be spoken as "The King against Smith." Cases are prosecuted by barristers briefed by the Crown Prosecution Service.
Civil law courts, on the other hand, deal with cases in which one party alleges that another has unduly infringed upon its rights. This includes contract disputes, negligence, libel and slander, intellectual property violations, and family law. In these courts, the plaintiff seeks damages from the defendant, or a court order telling the defendant to stop the offensive behaviour, or to do something required by law. Cases in common law courts are cited as The Plaintiff v. The Defendant, and are spoken as "Plaintiff and Defendant."
In criminal courts, the burden of proof is on the prosecution: the Crown must prove "beyond all reasonable doubt" that the defendant committed the crime. Thus, a defendant can be guilty or not guilty -- not innocent. In civil cases, the burden of proof is upon the plaintiff, but this burden is a little less onerous: the plaintiff must prove the charges to the "balance of probability," that is, that something is more likely to have happened than to not have happened. The defendant may be found, in civil cases related to torts, liable or not liable.
Council of PeersEdit
The Council of Peers is the highest court of appeal in the Kingdom of Sivad, which may hear appeals from any Sivadian or colonial court. The appeals are in practice heard by the Judicial Committee, which consists of specially appointed peers called the Lords of Appeal in Ordinary (commonly referred to as the "law lords") as well as peers who held "high judicial office" such as justices of the Court of Appeal or Supreme Court. All cases before the Peers are heard only when the law lords grant leave to appeal, and this happens only infrequently. The law lords announce their decision in speeches given before the Council, and their decisions are binding, with no further appeal.
The Supreme Court of Judicature of SivadEdit
The Supreme Court of Judicature is a catch-all term for the courts of Sivad below the level of the Council of Peers, and no including specialised courts. In general, however, when the term "Supreme Court" is used, it is a reference to the High Court of Sivad.
The High Court of SivadEdit
The ordinary court of last resort on Sivad is the High Court, which sits in Enaj and consists of one chief justice, called the Lord Chief Justice of Sivad, and eight puisne justices, called Lord Justices. This court hears only the most controversial of cases, and the vast majority of appeals to the High Court are rejected without a hearing. The High Court of Sivad is powerful in that it can set precedent in important cases. However, since the concept of judicial review is non-existant on Sivad, the High Court is rarely given the opportunity to overturn decisions by the Government. Appeals can be taken from a decision of the High Court to the Council of Peers, but leave to appeal is rarely granted.
The Court of the Third Circle and Court of AppealsEdit
The Court of the Third Circle and the Court of Appeals serve as the intermediate appellate courts in Sivad's criminal and civil court systems, respectively. Parties to a case may appeal decisions of the trial courts to these courts. The court may decide not to hear the appeal, it may ask for written briefs or it may hear oral arguments. Both of these courts consist of three justices of equal standing who rule on the appeals heard before them. Note that in criminal cases, the Government can only under very rare circumstances appeal an order of acquital, this being barred by the general concept of "autrefois acquis," often called double jeopardy.
The Court of the Common LawEdit
The civil trial court of general jurisdiction is the Court of the Common Law. This court consists of one Justice who rules on the case and awards damages. Juries are almost never empanelled in common law cases on Sivad, the sole exception being cases for defamation of character (libel and slander). In these cases, a jury of six is empannelled to consider the matter and determine damages.
The Court of the Second CircleEdit
The Court of the Second Circle is trial court of general criminal jurisdiction on Sivad, which consists of one justice and hears all cases involving indictable offences. The Court also serves as a court of appeal from the courts of limited criminal jurisdiction, in which case it sits in a three judge panel of one Justice and two magistrates. The burden of proof is upon the Crown, who must prove the charges beyond a reasonable doubt. The defendant can be guilty or not guilty.
In very rare cases, a jury of twelve citizens of Sivad may be empanelled to render a verdict, but juries are only used in the most serious of cases, such as those punishable by the death penalty. To convict, a unanimous decision by the jury is preferable, but if it is not possible, then a majority of ten out of twelve jurors is sufficient, though unanimity is required for a death sentence. Before entering into deliberations, the judge of the trial directs the jury, reminding them of some important points of fact and of law, and is free to offer his opinion on the evidence. It is a criminal offence to speak with a member of the jury about their deliberations before, during or after the trial.
The Court of First InstanceEdit
The Court of First Instance is the first step in the justice system for both criminal and common law cases, and is a trial court of limited jurisdiction. It consists of three Magistrates, who are volunteers, generally without legal training, who sit on minor cases or decide if a case needs to be referred to a higher court. In Enaj, and some other major cities, cases are heard by one magistrate, who is legally trained. These magistrates were formerly called "stipendary magistrates" because they recieved pay for their service, but they are now referred to as "district judges."
In criminal cases, the magistrates can sit for the trial and sentencing of any misdemeanour offence. A misdemeanour offence is a minor offence, as opposed to an indictable offence. If the charge laid is an indictable offence, then the defendant is committed for trial in the Court of the Second Circle. The Court of First Instance also handles guilty pleas and bail; if a defendant pleads guilty, then the Court of First Instance can sentence the defendant even on an indictable offence.
The Court of First Instance can hear common law cases in which the plaintiff seeks damages of 999 yojj-sterling or less. If the damages sought are greater, then the case is referred to the Court of the Common Law.
The Sivadian colony worlds have their own systems of courts. Those on Waldheim are fully developed, with the Legislative Council serving as the highest court, and an appeal directly to the Council of Peers. Deserata, Nialesia, and other worlds have very little in the way of a court system, and all indictable offenses are referred back to Sivad for trial.
Sivadian courts have a complex system of evidence rules that are largely based on the common law - they have, over time, been made and adapted by judicial decisions.
An accused person detained by the police must be read his or her rights. Unlike some justice systems, failure to read the accused's rights is usually not grounds for supression of evidence, but it is very likely that the police officers involved will be severely disciplined. A standard statement for reading the accused his or her rights would be: I must inform you that you are being detained on suspicion of [charge]. You have the right not to answer questions the police ask. Anything you do say may be used as evidence against you in court. I must also advise you that you have no grounds for hope from any promises of preferrential treatment, nor do you have anything to fear from threats made to coerce a confession or to force you to answer questions. You have the right to instruct counsel. If you cannot afford counsel, a Legal Assistance lawyer will be provided to you. Do you understand?
In order to prevent coaching or even the appearance of impropriety, lawyers are not permitted to speak with witnesses in any court proceedings outside of the courtroom before or during the proceedings. Doing so can be grounds for disciplinary action from the Law Society or an Inn of Court, sanctions from the bench, or supression of testimony given by the witness. There is an exception to this rule for a lawyer's client; the lawyer may discuss the case with his or her client as much as he or she wishes.
DNA evidence forms the cornerstone of evidence in criminal proceedings. Sivadians are aware of the limitations of DNA evidence, and it is rarely enough to convict without corroboration. However, centuries of research have distilled the process of DNA forensics into a very hard science. Police will often use DNA samples found a crime scene to reconstruct what the accused looks like for the media and for the public to help apprehend criminals.
Telepathic scans of defendants are admissible, but in order to respect the privacy of individuals the criteria for allowing a scan are very specific. If the defendant consents to the scan, then the evidence is easily admissible. Otherwise, the scan must be ordered by a court and then the warrant for the telepathic scan must be approved by a member of the Council of Equals. Additionally, the telepathic scans can only be conducted by telepaths certified by the Lord Chancellor's Office.
As in the English system upon which it is based, Sivadian law recognizes a difference between barristers and solicitors. It is only in the past century that Sivadian lawyers have been permitted to become both barristers and solicitors, and even so the distinctions are still clear.
In general, about half of the Sivadian legal profession is comprised of these barrister/solicitors, with three quarters of the rest being only solicitors and the remainder being only barristers. In practice, however, the vast majority of Sivadian lawyers practice almost exclusively as solicitors despite their professional qualifications, for the Law is made mostly outside the courtroom.
Barristers appear in court (i.e., at the Bar) to argue cases, and are hired (or "briefed") by solicitors. The position of barrister is wrapped with great tradition and great prestige, and as such barristers are generally held in higher reverence. Appointments to the bench from the Bar far outnumber appointments to the bench of solicitors, even though the number of solicitors far outweighs the number of barristers.
Up to a point, the education of barristers mirrors that of solicitors. Barristers seek an undergraduate degree and then proceed to law school. The law school experience is identical for barristers and solicitors, but is limited mostly to theory. When barristers complete law school, they are admitted to one of the seven Inns of Court. On Sivad, the seven Inns are styled the Sivadian Temple, the Enaj Temple, the Middle Temple, the Eastern Temple, the Inner Temple, the Temple of Jameson and the Temple of Smythe.
While at an Inn, the student is the pupil of a practising barrister, learning the practical side of law. They also take some courses at the Inn itself and must, due to a centuries-old tradition, eat a specified number of meals at the Inn. After two years of this, and if the student has met the requirements, the barrister-to-be is called to the Bar and can then practise law.
After being called to the Bar, the barrister is made a member of the Inn from which he or she graduated. These Inns set ethical and professional guidelines for barristers and also represent their interests. However, there is a joint commission of all the Inns of Court that ensures that the ethical codes of each meet a certain level. The Inns are directed by distinguished lawyers and judges known as "benchers," who are elected by the members of the Inn every few years.
Barristers who practise at the Bar for more than ten years are eligible to be named "King's Counsel." This milestone is also known as "taking silk" because King's Counsel wear very dark grey, silk robes in court. The appointment to King's Counsel is made by a list approved by the First Councillor once a year, and nominations are made by the legal profession itself. This arrangement has meant that King's Counsel can be a bit of a political appointment.
Solicitors handle all aspects of the law not involving actual court appearances or litigation. They manage the cases of their clients and prepare legal documents including contracts, briefs and motions. In short, in medical terms, one can think of a solicitor as a general practitioner and of a barrister as a surgeon -- the solicitor examines the client's case and decides if a barrister must be engaged.
Education Solicitors read law at a law school as do barristers. When they finish, they article with another solicitor for a period of one year. During this time, they learn the trade by actually working in it. Students who wish to be both barristers and solicitors can generally pursue both courses of study at the same time. When the year of articling is concluded, the solicitor is "added to the Rolls" and is permitted to practise.
All solicitors on the planet of Sivad are members of the Law Society of Sivad. The society sets out guidelines for professional conduct and ethics. The society also administers the Legal Assistance program to provide counsel to people who would otherwise be able to afford it. This program is funded by the government. Any member of the Law Society with competence in the case may be asked to take on a Legal Assistance case, and there are very few grounds for refusing the case. Lawyers who take on Legal Assistance cases are paid, but usually very little.
The Crown Prosecution Service
The government keeps very few lawyers on its payroll on Sivad. Instead, prosecution in criminal cases is handled exclusively by lawyers in private practice. These lawyers are made agents of the Attorney General of Sivad and are given broad decision-making powers for their cases. The only caveat is that they must seek the public interest. Because of the power that prosecutors are given, it is also extremely easy for a prosecutor to be removed from a case if they fail to meet certain standards. The prosecution of criminal cases in each region is administered by a Director of Prosecutions appointed by the government. The Director is usually, but not always, a lawyer.
Justices and MagistratesEdit
The decisions in the courts of Sivad are made by justices and by magistrates. There are significant differences between these two professions and these differences form the subject of this section.
Magistrates are all unpaid volunteers from the community. They are generally untrained in the law, and most of their education related to their position comes in the form of seminars that are offered by the Chancellor's Office (which is the governmental department on Sivad responsible for the courts and for judges.) Generally, however, the cases they hear do not require them to have vast quantities of legal knowledge, as their major role is in referring cases to other courts. Although the magistrates are unpaid, they are reimbursed for certain expenses such as the robes they must wear in court or travelling costs.
Justices are almost always barristers (although rarely solicitors are appointed to the Bench) and they always have served at the Bar with distinction for a period of at least ten years. After this ten year period, they may apply for appointment by the Chancellor's Office. The appointment process is complex to avoid any possible political influence; that said, political influence is not completely foreign to the Bench Appointments Committee. Sometimes, justices in lower courts only serve part-time and continue to work as barristers (though to work as a solicitor as a justice would be improper.)