The nature of liability

In this essay I will discuss the differences in public and private matters of the law and why the law is divided. I will also look in to the differences of the legal processes of public and private matters. A) In this case, Peter is very unhappy with his boss' treatment towards him. Michael, Peter's boss constantly nitpicks at Peter's flaws within his job and appearance. It comes to the point where Peter has had enough of Michael's criticisms. Peter confronts Michael in order to rectify the matter. Michael is hostile towards Peter, and after obscenities have been directed towards Peter.

Michael's provocation leads Peter to severely assaulting Michael. Michael suffers broken ribs, internal bleeding, a broken jaw and is blinded in one eye. Peter is eventually restrained by onlookers and the Police are called. This matter is a public wrong; it will be dealt with in either the Magistrate's court or the Crown court depending on whether Michael lives through his injuries. This crime is, under English law, grievous bodily harm under s18. In R v Wilson1 The defendant motorist had been involved in an argument with a pedestrian, which culminated in the defendant punching the pedestrian in the face.

Lord Roskill stated: "In our opinion, grievous bodily harm may be inflicted … either where the accused has directly and violently "inflicted" it by assaulting the victim, or where the accused has "inflicted" it by doing something, intentionally, which, although it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. " We can see in this incident, the police had arrived to the crime scene.

Had they not done so it would have been lawful for the onlookers to make a citizens arrest under the 1967 Criminal Law Act. Where a citizen can arrest make an arrest for an arrestable offence that carries with it a sentence of five years of more. 2 When Peter is arrested by the Police he must be informed of why his arrest has occurred. Once cautioned he will be taken to a Police station where he must also surrender all property. He will have the right to make a telephone call, and if he so wishes, will be granted legal representation by a solicitor if he has one.

In instances where the accused has not got a solicitor, a duty solicitor will be called. The duty solicitor scheme has been in operation since 19903. Peter will be taken to an interviewing room, where an audio and visual recording will take place of all that is said during the interview proceeding by all parties involved in the interview, police officers, solicitor and the accused. In Peter's case once the interview is at an end he will be formally charged with s. 18, wounding with intent. A second caution will be given by the police and Peter will be confined to a cell and locked in police custody.

Custody can last for up to three days, but if is a weekday the accused has been detained, there is a strong likelihood the committal will take place the following day. At the committal, in the Magistrates court there will be a check to find the police have arrested the correct person. Certain matters have to be decided; will the accused get bail or will they be remanded in custody. The place of trial will also be set, reporting instructions will be given to the media. The decision of whether legal aid will be provided will be decided.

This normally is very brief, lasting, in most instances, several minutes. The first court appearance is known as the preliminary enquiry. Magistrate courts deal with 93% of all crimes, 7% are serious indictable offences, for example murder or rape. The magistrates have to decide whether or not the accused should be allowed to remain at liberty (bailed) until their trial is held or whether they should be held in custody. In 1976 the Bail Act was introduced, pre '76 it was a sum of money which was held by the courts as a deposit until the trial began.

The reason for this was because many people absconded prior to their trials so the sum of money served to act as an incentive for them returning to face trial. With the advent of the new criminal offence of 'jumping bail', it has improved things in relation to fewer people absconding. Now every person has the right to bail. More people are granted bail now, and the police force finds it troublesome to oppose bail. The magistrates are advised by the act what to take into consideration when deciding bail, absconding, intimidation of witnesses, seriousness of the crime.

This might become murder in Peter's case. If the matter has been under investigation for some time and has received a substantial amount of publicity locally, particularly murder, child victims or anything controversial the magistrates may decide to move the place of trial. In Peter's case it is possible for him to plead provocation. The court will decide if it was genuine provocation and also if it would have brought about a similar reaction in any normal person this is known as the 'dual test'.

Peter cannot plead provocation as a complete defence but only as a mitigating plea. His lawyer will endeavour to bring it down from s. 18 to s. 20. In public cases it is the C. P. S who initiates the trial, in private cases it is the wronged individual. Another distinct difference in courts is in relation to tribunal courts. In tribunal courts there are differences that are immediately visible, e. g. there is no formal dress, strict rules do not apply, precedents no not apply; each case on its own merit.

Traditional formalities are also not adhered to; formal legal English is not used, rather everyday English and the plaintiff4 begins proceedings. In England today, exists the adversarial system of law in the courts. The inquisitorial system exists in tribunal courts and the coroner's court. The inquisitorial system is used mainly in European countries like France for example. There are a number of differences in relation to these systems. The adversarial system is passive and the judge hasn't a role in establishing issues of fact.

The judge does not ask questions and cannot intervene in a case in order to make just decision. The judge in the adversarial system is somewhat comparable to a referee; guaranteeing fair play between both parties involved. Each of the representatives i. e. barristers, are not interested in justice being done only in securing a conviction or an acquittal. The representatives owe no responsibility in justice and truth, because of this there are frequent miscarriages of justice. 5 With regard to the inquisitorial system the court, in the person of the judge, is active.

The judge can ask question pertaining to issues of fact. He does not owe a responsibility to either of the parties, but only to establish truth and justice. The judge is not concerned whether any party is innocent or guilty, as long as justice prevails. 6 Direct and circumstantial evidence is also used. The defence council has the right to ask leading questions, ("you were at 'x' at 'x' time weren't you") but the prosecution cannot ("where were you at 'x' at 'x' time? ). It is fair to state here that justice is much more likely to occur in the inquisitorial courts.