cloe i lectutes 4 and 5

7/29/2019 Cloe i Lectutes 4 and 5

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CLOE I2012-2013Course instructor: Roxana-Cristina Petcu, PhD

LECTURE IV - THE PROCEDURE IN ENGLAND AND THE UNITED STATESENGLISH PROCEDURE

English law is primarily based on case law and attaches great importance to procedural rules. Initially, commo

law was made up of a number of procedures (or forms of action) which had to be carried out to their completiobefore judgment could be rendered. But the substantive principle upon which the decision was grounded woften uncertain. What the plaintiff was supposed to do was to select the right form of action (writ)by which thcourt could be seized and to convince the court that it had jurisdiction in the matter.

Thus, the procedure began by a writ, which in medieval times was a summons sent to the defendant ordering himto appear before a judge. It was not easy to obtain a writ, as it was a privilege, not a right. In order to obtain a wrfrom the Lord Chancellor against the payment of fees, the plaintiff first had to prove that the facts of the cascorresponded to a typical case (breve) listed on a list of typical cases (brevia de cursu) for which it wpossible to obtain a writ. If the case did not coincide with one of the established cases, the plaintiff was leremediless. After obtaining the writ, the plaintiff had to follow a very rigid and formalistic procedure: the slighteerror in the procedure, the slightest mistake, resulted in the action being dismissed.

Today, English procedure is more flexible and less complicated. The issue of a writ has become a mere formalitand nowadays anybody can obtain a writ (an initial form of action) for any case. The modern writ is onlystandard form. Nevertheless, procedure still plays an important role in English law.

THE MAIN FUNCTION OF THE COURT

The main and proper function of a court is adjudication that is why the judges, as a collective body, are called thjudiciary. Yet, there are two aspects of government, besides the judicial, which are important, namely thlegislative (the making of the law) and the executive (the administrative aspect, the way the laws are put intpractice). This is the principle of separation of powers formulated by the French jurist Montesquieu in hfamous bookLEsprit des Lois (1784). He is the first who formulated the idea that it is desirable that thespowers be held and exercised by separate persons or bodies. Why it is so important is absolutely obvious th

separation of powers is a shield against despotism. This doctrine was very popular in the 18 th and the 19centuries, but time and experience have shown that a strict separation would hamper effective governmentherefore, a whole system of responsible government has been developed in defiance of the doctrine. This systemof responsible government controls the relationship between the Legislature and the Executive. Secondly, it is noalways practical to assign any particular activity to any one of the three categories of powers, so the Legislaturthe Executive and the Judiciary often perform in practice acts which ought to in strict theory be performed by onor the other of their neighbours. Thus, sometimes, officials of the executive often have to make decisions tha

border on the judicial and the courts have some administrative duties to perform. (for instance, the administratioof the estates of the deceased, the supervision of the guardianship of minors). In fact, in almost all cases that comto be tried, there are some matters which have to be settled and which fall under the category administrativ(in divorce cases, the division of the matrimonial property between the spouses and the welfare of the children).

The cases which courts have to try may be roughly divided into two main types civil cases and criminal cases. Ia civil action one party (the plaintiff) makes a claim against or seeks a determination of his rights in respect another party (the defendant). The duty of the court is to determine and declare the rights of the parties an

where necessary to grant remedies for securing them.

The aim of the criminal process is two fold: on the one hand, to determine whether an offence has been committeand on the other hand, to make such orders as may be necessary for the punishment or reformation of thoffender. So, the aim of the criminal process is not to give relief to an injured party, although, in the case of theffor instance, finding relief may give rise to an independent civil suit.

THE LEGAL PROCESS


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There are two ways of solving the dispute between two parties:

1. the judge (the court) takes the initiative and examines the parties and their evidence. This methois called inquisitorial

2. the judge (the court) calls upon the parties to take the initiative and present their cases in front othe court. This is the adversarialmethod. The parties, through their champions (their counselfight a battle based on the presentation of evidence. The role of the judge or of the jury is to decidupon the evidence which party has the better cause. This method of proceedings is adopted both icivil and criminal cases (where the prosecutor does not appear as an inquisitor, but as an adversar

of the defence).

RULES OF PROCEDURE

These are the rules which determine the course of the action. Procedural rules are treated as the servant and nthe master of substance, despite their importance in the past, and they are much more flexible. They govermatters such as:

how the case is to be presented it what court the case shall lie when the case is to be tried

ENGLISH CIVIL PROCEDURE

It is quite difficult to outline all the different varieties of procedure, because, for inatnce, in the Chancery Divisioor the Family Division or the proceedings in bankruptcy have special rules. What can, up to a point, be regarded standard, is the course of proceedings in an action in the Queens Bench Division. (deliver a cominica,notifica)

PRETRIAL PROCEDURE (procedura preliminara)

The writ of summons - the plaintiff (usually through his representative) starts an action by obtainingwrit of summons. Th writ is a printed document containing blank spaces for the inclusion of appropria

details, such as the date, the parties names and the defendants address, which are filled in by thpalintiffs solicitor. This document simply summons the defendant in the name of the Crown to come ananswer allegations made by the palintiff. The writ of summons marks the substance of the case so as t

warn the defendant of what the palintiff claims aginst him. Indorsements on the writ The writ is endorsed by a brief statement made by the palintiff, sufficient

give the defendant notice. The statement includes the presentation of the claim the plaintiff makes or relihe requires. The plaintiff also fills in his address and the name or firm and place of business of his solicito

Yet, it is in no way a an irrevocable formulation like the writ in the past. Issue of the writ It is the plaintiffs solicitor who takes two copies of the writ to the Action Departmen

of the central Office of the Supreme Court in London or to an appropriate District Regsitry. The solicitsigns one copy, pays the fee, the Court Officer stamps and files the signed copy, the seals the other copand marks it with the year, the initial letter of the plaintiffs name and a number. The sealed annumbered copy are known as the original writ.

Service of the writ ( The plaintiffs solicitor serves the writ personally on the defendants solicitoPersonal service means showing him the original writ and leaving him a copy.

Appearance - Within 14 days of receipt of the writ the defendant must file an acknowledgment of servictogether with a notice of intention to defend (it he intends to do so). If the defendant intends to defend, hmay enter an appearance in person or by his solicitor. He can do that by either (a) handing in thappropriate forms , duly completed, at the Central Office, Royal Courts of Justice in London or (b) sendinthem to that office by post. By entering an appearance, the defendant recognizes the jurisdiction ot thcourt. If the defendant does not enter an apprearance within 14 days after service of writ, the plaintiff maenter judgment against the defendant in default of appearence (poate obtin eo hotarare impotrivparatului pentru neprezentare).

Pleadings / statements of case the next stage in the proceedings is the echange of pleadingPleadings are documents usually drafted by counsel and contain a statement in summary form of th


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material facts, statement which is as brief as the nature of the case admits. These documents which stathe facts and not the law and are viewed by both parties. Here are the types of pleadings:

1. the statement of claim delivered to the defendant or his representative on behalf of the plaintiand it is the summary of the material facts upon which the plaintiff proposes to base his case. It alsstates the damage the plaintiff has suffered and the relief he claims.The statement of claim must bserved either with the writ of summons or within 14 days after.

2. defenc delivered by th defendant within a limited time, generally 14 days. In his defence, thdefendant must deal with every material fact alleged. He is deemed to admit every fact which hdoes not traverse). Together with the defence, the defendant may also deliver anycounterclaim

he might have (a claim against the palintiff).3. other pleadings the replydelivered by the plaintiff in which he answers any new facts raised b

the defendant, the rejoinder delivered by the defendant or the surrejoinder delivered by thplaintiff. Subsequrnt pleadings may follow, if necessary, to clarify the formulation of the issue. Ipractice, it happens very rarely. However, if one of the parties does not make his meaning clear, thother party, subject to some limitations, is entitled to demand further and better particularin other words written explanations or amplifications of any statement made.

4. the interlocutory stage - these are proceedings between the pleadings and the trial. Applications the court in interlocutory matters must be made to some officials of the court known as master( for the Supreme Court in London) and as District Registrars (in the provinces). These officahave many powers, such as (a) order a party at the request of the other party to answer upon oat

written questions called interrogatories. These answers may help shorten the evidence require

at the trial, (b) order discovery of documents - at the request of one party order the other parto set out in an affidavit (sworn and written statement) a list of relevant documents which he has his possession. Unless the party opposes, the opponent may inspect and take copies of thedocuments. It is a way for each party to determine on which basis the other party will argue hcase. Yet, some of the documents may be protected by a privilege, meaning that there may bprivate confidential documents that the other part may not see. At the same time there bdocuments covered by public interest immunity. (c) may sanction amendments of thpleadings or (d) order the dismissal (respingerea actiunii) of the case forwant of prosecutio(undue delay by the palintiff in prosecuting the claim renuntarea la actiune).

Summons for directions Within a month after the close of the pleadings, the palintiff takes outsummons for directions before the master. Now, the court decides if further plaedings are necessarIf no applications have been made during the interlocutory stage, the master makes various orders of th

kinds already mentioned and gives directions for the trial. The directions will include the determination the place and mode of trial, whether in London or elsewhere or whether in fron of a judge alone or in froof a judge and a jury.

Interim remedies sometimes along time may elapse between a claim is first filed and when the judgfinally hears the case. So, interim remedies may be ordered. They include:

1. interim payment this ia a payment made before the trial to a person claiming money. In thway, it is possible to prevent hardship on a claimant, as the length of time between starting a civaction and the final judgment can be considerable.

2. freezing injunction this stops a party removing or disposing of assets before trial. It is meanto prevent the situation arising that event if the court finds for the claimant, the defendant nlonger has any assets available to pay the claimants award.

3. interim injunction a temporary court order requiring a person to do someting or prohibiting

person from doing something until the end of the trial4. serach order this authorizes someone to search and seize items and documents relevant to th

claim or the defence, if there is a real danger that the other party would otherwise conceal odestroy evidence.

Setting down - after the summons for directions, the palintiff sets down the case for trial and notifithe defendant. The case is set down in a succession of lists until finally it goes into the daily cause list (listdosarelor zilnice). Judgement can then take place.

Summary judgment in England either a claimant or a defendant can apply for a summarjudgment. It is a relatively quick procedure which enables a judge to strike out either tje whole claim defence or part of it. If the whole claim or defence is dismissed, the case ends here and judgment is giveimmediately either in favour of the claimant or the defendant. It allows the judge to dismiss weak case


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without wasting time when it is clear that either the claimant or the defendant has no real chance success at trial.

THE TRIAL

In a high Court action the parties usually appear by cousel, though they may appear in person. The trial develoas follows:

1.The palintiffs cousel opens with a speech in which he outlines the case and lays the issues before th

court.2.he then calls his witnesses and examines them in chief3.each witness may be cross-examined by the defence to test the accuracy of the evidence given chief by the witness and also to put to the plaintiffs witness any points that his evidence is likely contradict4.then the witness is re-examined by the plaintiffs counsel to re-establish belief in that evidenc

which was seriously challenged in cross-examination5. if the plaintiffs evidence discloses there is no cause of action, the defendant will be able t

successfully submit for no-case6. if the plaintiffs evidence discloses there is cause of action, the defendants case will proceed.7. if there is oral evidence on the defendants side, his counsel may outline the case and call h

witnesses whose evidence is taken in the same way as the plaintiffs8.

then the defence cousel makes a closing address followed by the closing address of the palintiffcounsel.9. if the defence calls no oral evidence, the plaintiffs counsel makes his closing address before th

defence counsel, so the defence has the advantege of the last word.10. finally, the judge gives his judgement (extemporary judgement) or he may reserve it fo

consideration (reserved judgement). If there is a jury (which is very rare in civil cases) the judgsums up the evidence to the jurors and directs them upon the relevant law, as the actudetermination of the issue upon the facts is theirs.

THE APPEAL

In England, if the judge has found against you, you need the courts permission to bring an appeal in a civil casAn appeal is heard by the next court up in the hierarchy. A court that can hear appeals is called an appellacourt. The party bringing the appeal is called an appellant and the other party is the respondent.

A difference should be made between appeal and cassation. There are countries where both appeal courand cassation courts exist (Romania, the Netherlands).An appeal court acts as if the case had not been hea

before. It hears disputes about the facts of the case or points of law or both. It may substitute it decision for that the court of first instance. A cassation court deals with a point of law only. It does not review facts. If it thinks tha lower court misinterpreted the law, it must send the case back to the same or a different lower court, so that thcase can be heard again, bearing in mind the decision on the point of law made by the court of cassation. Thtraditional model for this type of system was developed in France and it has influenced a number of civil lasystems.

COSTS

It is a simple fact of life that litigation is expensive. Costs are awarded at the discretion of the court. In Englandthe so-called cost-shifting rule applies whoever lost the case has to pay not only his own costs, but also the cosof the other side.

In the USA this rule does not apply. There is a practice known as the American rule, by virtue of which thparties pay their own costs, whether they win or lose.

LEGAL FEES


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If your client is poor, he may qualify for legal aid. English lawyers may also enter into conditional feagreements with their clients. This is similar to the no win, no fee approach to litigation so common in the USAIn the US, conditional fees are known as contingency fees.

ENFORCEMENT OF JUDGMENTS

The winning party, who has been awarded a money judgment by the court, is called a judgment creditor. Thparty against which this judgment is enforceable is called the judgment debtor who has to pay the legal costs o

both parties. The winning party may get his money back as follows:

- seizure of goods if necessary, the court makes use of a writ of execution that authorizes the authoritieto seize the goods of the debtor and sell them. The judgment creditor is paid his court award out of thproceeds of the sale. The debtor is allowed to keep certain personal items and other items necessary for h

work.- Third party debt order enables the judgment creditor to divert money that would normally have bee

paid by a third party to the judgment debtor.

The Americans use garnishment andwage garnishment for these orders.

ENGLISH CRIMINAL PROCEDURE

Criminal proceedings generally arise with the arrest of the offender without a warrant or with the laying of ainformation.An information is a statement made usually by the police to a justice of the peace accusing somperson of a crime. After the information has been laid the justice must, if he decides to act upon it, determine hothe presence of the defendant is to be secured for the trial. He may decide to issue either a summons or a warran

Asummons is issued in cases where the offence is not serious and the offender is likely to appear if required. warrant is a written command, usually addressed to the police, ordering the person to whom it is addressed secure the offender.

Once a charge has been made prosecution is the responsibility of the Crown Prosecution Service under thdirection of the Director of Public Prosecution. This service is staffed by professional crown prosecuto(barristers or solicitors).

The trial may take 3 possible forms depending on the nature of the offence. There are three main categories ooffences:

- minor / summary offences, which are triable summarily- serious offences which are triable upon indictment by a jury- either way offences , which, in point of seriousness, fall between the 2 prior categories, so are triab

either summarily or by indictment

SUMMARY OFFENCES

Such offences are tried summarily before magistrates. The procedure is as follows:

1. the clerk to the justice reads out the charge and calls the defendant (the accused) to plead to it2. if the accused pleads guilty he may be convicted and sentences without any delay3. if he pleads not guiltyor if he refuses to answer, the trial will proceed.4. like in a civil case, the prosecution may open the case, outlining it to the court5. the prosecution calls the witnesses to substantiate the facts6. the onus of proof is on the prosecution7. if the prosecution has a case, the defence will call his witness.8. if the accused has given evidence himself, and another witness has been called, the defence counsel m

address the court9. if the defence addresses the court the prosecution has the right to address the court too, before the defenc10. the court considers the decision11. if the accused is found guilty, punishment has to be considered


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12. the prosecution may assist by calling evidence as to the good character of the accused and by makingspeech in mitigation

13. if the offence is triable either way and has been tried summarily and the information received as to thcharacter of the accused is such that greater punishment should be inflicted that the court has the power tdo, the defendant may be removed in custody so that the case may be considered by the crown Court

14. formerly, even in the case of a summary trial, the defendant had to appear in person15. now, in case of a summary offence carrying a maximum penalty of 3 months or less, he may avoi

appearance by sending the court a written notification that he wishes to plead guilty.

INDICTABLE / ARRESTABLE OFFENCES

When an individual is charged with a more serious crime, process may begin by laying the information beforemagistrate who will then issue either a summons or a warrant for arrest. If the person concerned has beearrested, he must be brought before a magistrate within 24 hours so that he may be granted bail or remaded icustody. He may only be remanded in custody for 8 clear days. Indictable/arrestable offences carry a sentence at least 5 years imprisonment. They include:

-murder, burglary, theft, criminal damage, rape, unlawful possession of drugs, taking a motor vehicle, goinequipped for theft, indecent assault on a female, corruption smuggling

- attempting, conspiring, inciting, abetting, counseling or procuring any of the above

SERIOUS ARRESTABLE OFFENCES

- treason, murder, manslaughter, rape, kidnapping, incest with a girl under the age of 13, buggery with a boy undthe age of 16 or with a person who has not consented, gross indecency, explosive and firearms offences, somsexual offences, death by reckless driving, hostage taking, hijacking- an attempt or conspiracy or treat to commit an arrestable offence that may lead to the following consequences:

1. serious harm to the security of the state or the public order2. serious interference with the administration of justice or with the investigation of offences or of a particula

offence3. the death of a person4. serious injury to any person

5. serious financial loss to any person

A first step of the proceedings upon indictment is to determine whether the evidence is strong enough to commthe defendant (committal proceedings proceduri privind arestarea) for jury trial. It is the task of the examinin

justices.

PRELIMINARY EXAMINATION

1. the prosecutor outlines the prosecution case2. the prosecutor calls the witnesses who gave their evidence and might be cross-examined as usual3. their evidence is written down, signed by the witnesses and countersigned by one of the justices4. the records of the evidence obtained in this way are known as depositions

5. then the court decides if the prosecution has been able to establish a prima facie case or not6. if yes, the charge is read out to the defendant7. the defendant receives a written statement of charge an indictment8. the defendant is asked if he wants to make a statement (he is not obliged to do so).9. if he makes a statement, it is taken down in writing and might be given in evidence in trial10. if the defendant has legal representation, his counsel may address the court11. finally, the defendant will be sent to the Crown Court for trial

The indictment is a document which contains a concise statement of the nature of the offence or offencecharged; it is usually drawn by counsel who is assisted in this task as he has access to the depositions of thprosecution witnesses.


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PROCEDURE IN FRONT OF THE CROWN COURT

1. the accused is arraigned, namely the clerk of the court reads out the indictment and asks the defendawhether he pleads guilty or not.

2. if he pleads guilty, the proceedings are similar to the summary proceedings3. if he pleads not guilty, a jury must be called and sworn (generally 12 jurors)4. thereafter, the procedure is again similar to summary procedure. Nevertheless, there are two difference

(a) the prosecutors right of reply is exercised at the close of the evidence for the defence and before th

closing speech by or on behalf of the defendant and (b) the judge must sum up the evidence for the jurand direct them upon the law5. the jury considers their verdict. Generally, the verdict must be unanimous, but sometimes a majori

verdict is acceptable. It is a majority of 10 that is acceptable.6. after the verdict is give, the proceedings are similar to summary proceedings

EITHER WAY OFFENCES

Such offences may, at the magistrates discretion, be tried either way, that is summarily or upon indictment. Yet, the offender is below 18 years of age, a summary trial is the rule. If the offender is more than 18 years of age, th

magistrate decides upon the course of action based on the degree of seriousness of the case, likely severity of thpunishment, etc. If the magistrate decides for a summary trial, then he must inform the defendant that he has thright to opt for a jury trial and must obtain his consent before proceeding to try him summarily. If the defendanagrees, the summary trial proceeds as described above. If he does not consent to be tried summarily, the court winquire into the information with a view to committal. If the magistrate decides that the case is more suitable fo

jury trial, then the defendant has no choice but to accept it.

EVIDENCE

Evidence is the means by which facts are proved. The rules of legal evidence are rules of law concerned with thproof of facts in a court of law. These rules are designated to determine four main problems:

1. who is to assume the burden of proving the facts2. what facts must be proved3. what facts must be excluded from the cognizance of the court4. how proof is to be effected

THE BURDEN OF PROOF

The principle is he who asserts must prove, in other words, in a civil case it is the plaintiff and in a criminal casthe prosecutor. They are the ones who must present the court with facts which substantiate their claims. The facmust be such that in a civil case the court can regard then as proved upon the balance of probabilities and incriminal casebeyond reasonable doubt. In a criminal case the presumption is that a defendant is innocenuntil proven guilty, that is until prosecution has established his guilt.

Nevertheless, during the course of the trial, if the defendant has any special excuse or means of rebuttal he muprove it, that is he must produce evidence to support it, so the burden of proof lies with him. Yet, even if th

burden of proof lies with the defendant, all he has to do is establish his point upon the balance of probabilitiewhile the prosecutions burden is beyond any reasonable doubt throughout the process. Secondly, it is thbusiness of the court to decide upon all the evidence, both the evidence presented by the prosecution and thevidence presented by the defence. Thirdly, the prosecution must establish every item of the charge in order obtain a verdict. But, as already stated, during the course of the trial, the onus shifts between the two parties. the end, the prosecution must provide the final/legal evidence.


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FACTS TO BE PROVEDGenerally speaking, a proponent must furnish evidence of all the material facts upon which he relies to establishis case, but there are exceptions to this rule:

1. there are certain classes of facts which need not be proved because the court is entitled to take judicinotice of them, in other words the facts are too notorious to require proof (egg. Events which happen ithe course of nature, Acts of Parliament, public matters affecting the government of the country) (If

alleges that B is the father of her child and it is proved that B was in some remote part of the world at thtime of the conception, the court will not require proof of the fact that B could not have been the father, athe period of conception is a notorious fact)

2. certain facts are established that may give rise to a presumption that other facts follow. Presumptions mabe: (a) irrebuttable by law (irrefutable) (egg. A child below the age of 10 is incapable of committingcrime) (b) rebuttable presumptions of law (egg. A child between 10 and 14 is incapable of a criminintent, but this may be rebutted by proof); (c) presumptions of fact (reasonable inferences arising, asmatter of fact, from given facts or circumstances (egg. Circumstantial evidence probe circumstantia

which can be rebutted by evidence which is sufficient to refute them).3. In civil cases, in order to obviate the necessity of proving facts which are not in dispute, form

admissions may be made by the parties prior to or during the trial. These admissions may be made in thpleadings or orally in court.

FACTS TO BE EXCLUDED

English law only permits proof of facts which are in issue and of facts which are relevant (pertinent) to thissue. The facts in issue are the facts which are in dispute upon the pleadings in a civil action or the facts in thindictment in a criminal case.Relevancyrefers to any fact which is logically probative of or which serves to explain a fact in issue. Neverthelesthere are classes of facts which are not admissible:

1. in civil actions, the parties are not permitted to give evidence of their good character that is thegeneral reputation for good character as it may give rise to prejudice.

2.

sometimes, it may appear relevant to prove that on certain occasions, a person alleged to have conductehimself in a certain way had indeed conducted himself in that way upon other occasions. (egg. He has usedeception before to obtain an advantage). The problem is that in law evidence of conduct on otheoccasions is not admissible, because the object of a trial is to ascertain the truth or falsity of thallegations made and not that the defendant is likely to have committed the fact.

CATEGORIES OF EVIDENCE

The law recognizes three kinds of proof: (a) proof by oral evidence; (b) proof by documentary evidence; (c) proby real evidence.

ORAL EVIDENCE

- evidence given bywitnesses, usually upon oath or affirmation. The witness informs the court of the facts ahe perceived them.

- Expert witnesses they are experts, men of science who play an important role in an adversary system(egg. doctors called to state the cause of a disease)

- Hearsay evidence it is abolished in civil proceedings.

DOCUMENTARY EVIDENCE

-evidence contained in documents.


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1. there are two classes of documents private and public. Public documents consist of publications made fopublic reference (public statutes, public registers, maps). Private documents are documents made for private use2. all private documents must be proved before their contents may be given as evidence, that is they must bshown genuine. (not forgeries). (By the author of the document or a witness, or by testifying to the authenticity othe makers handwriting)3. in civil actions no documents which are required by law to be stamped should be allowed to be produced unlesand until they are properly stamped4. private documents must be produced in the original. Nevertheless, authenticated copies of public documenare admissible. Sound recordings are admissible, on condition that the voices are properly identified.

REAL EVIDENCE

- the inspection of the court of physical objects (the site of an accident, a knife, injuries that the plaintialleges he has suffered, photos, and tape recordings).

EVIDENCE IN CRIMINAL TRIALS

- confessions of guilt (unless obtained by oppression, such as torture, inhuman or degrading treatment, the uof treat or violence)

AMERICAN PROCEDURE

CIVIL PROCEDURE

IN American civil procedure, there is a marked distinction between pre-trial procedure and the trial itself. In the pre-trial proceedings the issues of facts are defined and the adversaries are given notice o

them. Rulings before a trial are made by a judge without a jury At the trial these issue are heard by the court and determined. The trial, where the judge sits with

without a jury, consists of one continuous hearing in open court. The parties to litigation are almoalways represented by lawyers

PRETRIAL PROCEEDINGS

1. the action begins with the pleadings.2. the first step is the complaint which states the nature of the plaintiffs claim and his demand for relief3. a summons is sent to the defendant, informing him that an action n is entered against him and callin

upon him to answer the complaint4. if the defendant does not want to be judged by default, he must enter an appearance by sending a

answer or response to the complaint5. the plaintiff can send a reply to the answer6. the aim of the pleadings is that the parties should develop a single precise issue of fact and of law.7. if the parties fail to do so, the judge may call a pretrial conference, attended by both parties, to try and lim

the issues and obtain admissions that will avoid unnecessary proof. Many conferences may result in thsettlement of the case without trial

8. if the case is not settled before trial, the plaintiff requests the clerk of the court to put the case on the li(calendar/docket) to await trial.

THE TRIAL

1. the trial is held before a single judge, with or without a jury. In a civil case the standard of proof preponderance of evidence that is the claimant (plaintiff) must be able to prove all the elemenrequired for his claim. If he cannot, the court must find for the defendant.


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2. if the plaintiff seeks money damages, there is a right to jury trial, but usually both parties prefer a trial byjudge

3. the first step in the trail is the statement by both parties of their side of the case4. the plaintiff presents his evidence (oral and written)5. the defendants lawyer is permitted to cross-examine the witnesses of the plaintiff6. the defendant presents his evidence in the same manner7. cross-examination by the lawyer of the plaintiff8. both parties make their closing arguments before the court9. the judgment takes place (by judge or by both jury and judge). The judgment assesses the amount

damages to be paid by the losing party and generally requires the losing party to pay the costs of justice10. either party may appeal from the judgment to the Court of Appeal11. there is no new trial, no jury, no witnesses in the appellate court12. the appellate judges examine the minutes of the case in the first instance court and the briefs written by th

appellant and the respondent in support of their cases13. the appellate court usually examines only problems of law and does not question the issues of fact

established by the jury or judge of the lower court14. if the appellate judge finds there was no error by the first instance judge, theyaffirm the judgment.15. if they find an error, they can reverse the judgment in favour of the appellant or they can order a new tri

by the lower court

CRIMINAL PROCEDURE

The law of criminal procedure is largely statutory in form and varies considerably from one state to another. Thprocedure varies not only with thejurisdiction but also with the seriousness of the case.

1. petty offences are tried summarily2. serious crimes involve formal proceedings

Like in English law, American criminal procedure is essentially accusatory, as the prosecutor takes the leadinrole. The prosecutor is an elected official or a political appointee, so he has extraordinary powers and almost entidiscretion. Yet, the accused is protected against abuse by the prosecutor or the police by constitution

safeguards. The accused is entitled to demand the reversal of a conviction for the slightest departure frothe requirements of a due process.

The American criminal procedure follows the same steps as the English procedure and also involves trial byjudge sitting with a jury. The jury renders the verdict of guilty or not guilty, while the judge imposes thsentence. The sentence may vary from a simple fine to imprisonment or even death. In Britain the death penalhas been abolished, while in most American state death can be imposed for the more serious crimes.

CIVIL LIBERTIES IN BRITAIN

Civil liberties in Britain are not protected by any official declaration of the rights of the individual or by anspecific statute. They are protected by tradition and case-law. England was the first country in Europe to establisprotections for individual rights against the arbitrariness of the Monarchy (Magna Charta 1215). But theguarantees concerned only freemen (noblemen and burgesses) at a time when 8/9 of the population were serfNo other text was passed afterwards to repeat and enlarge its provisions. There is no equivalent to the te

Amendments of the American Constitution.

The main liberties of the individual in Britain are:1. personal freedom (which includes freedom from arbitrary arrest and arbitrary imprisonment)2. freedom of expression3. freedom of assembly or association4. freedom of thought (including religious freedom)5. equality


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1. PERSONAL FREEDOM

Everyone is entitled to personal freedom. This implies two things first, that no one can be lawfully arresteexcept upon specified grounds (without an arrest warrant), and secondly, if anyone is arrested or detaineotherwise than on specified grounds, the writ of habeas corpus may be invoked to set him free. The HabeaCorpus Act (1679) provided the procedure of the writ of habeas corpus as a means to protect the individuaUnder this Act, anybody (the prisoner, a relative, a friend) may request a writ of Habeas Corpus in favour of thprisoner if he thinks he has been arbitrarily imprisoned. The request goes to a High Court judge and h

precedence over any other judicial case. It there are reasonable grounds, suggesting that the prisoner has beearrested abusively, the judge must grant the writ of Habeas Corpus without any delay. Once the writ is issued thgaolers must come to court and produce the prisoner and explain why they have detained him. If the explanationappear unsatisfactory, the prisoner must be released immediately.

a) ARREST AND DETENTION

The principal grounds of arrest and detention recognized by law are the following:

- arrest and detention in pursuance of criminal law- detention of mentally disordered people- detention by order of the court or of either House of Parliament, upon the ground of contempt

UNDER THE CRIMINAL LAW

- lawfully effected by anyone authorized to make it by a warrant lawfully issued and signed by a judgnaming the person to be arrested

- arrest without a warrant (summary arrest) in the case ofarrestable offences and also where theare general grounds for arrest

Arrestable offences

- offences for which the sentence is fixed by law (murder), offences for which a person (not previousconvicted) may be sentences for a term of 5 years and certain other specified offences

- it is provided that any person may arrest without a warrant anyone in the act of committing aarrestable offence or anyone whom he has reasonable grounds of suspecting to be committing aarrestable offence.

- Aconstable can do the same, also if he has grounds to suspect that an offence has been committed orthe person is about to commit an offence

General grounds for arrest

- the name of the person concerned is unknown to the constable- the constable has reasonable grounds for doubting whether the name furnished by that person is his re

name- the fact that the person has failed to furnish an address for service- the constable has reasonable grounds for believing that arrest is necessary to prevent the person fro

causing physical harm, damage to property, an affront to public decency or an obstruction of the highway- the constable has reasonable grounds for believing that arrest is necessary to protect a child or oth

vulnerable person- arrest for fingerprinting if all the following conditions apply:

1. the person has been convicted of a recordable offence, and2. the person has never been in police detention for the offence, and3. fingerprints were not taken, and4. within one month of conviction the person was asked to a police station to be fingerprinted an

had not done so within seven days


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Bail

When a person has been arrested arbitrarily (without a warrant), the prisoner may apply for bail. It the polirefuse to grant bail, they must take him to a magistrates court, where he can apply for bail, within 24 hours of tharrest. If the magistrates court refuses to grant bail, the magistrates must inform the prisoner of his right tappeal and apply for bail in the High Court. Bail in refused in major criminal cases if there is a risk that thcriminal shall perpetrate other crimes or that he may try to evade justice and flee from the country.

COMMITTAL FOR CONTEMPT

There may be contempt of court or contempt of Parliament.

Contempt of court

It is intended to safeguard the proper administration of justice by prohibiting or punishing conduct whicprejudices or abuses it.

There are two types of contempt:1. civil contempt failure to confirm with an order of a superior court (egg. refusal to obey an injunction

commitment to prison or fine or sequestration of assets. The Crown may not grant a pardon in respect civil contempt

2. criminal contempt interference with the due administration of justice. It gives rise to criminproceedings. It takes several forms: (a) contempt in the face of the court (the behaviour of people in cou violent, unruly, insulting behaviour); (b) publications prejudicial to a fair criminal trial; (c) publicationprejudicial to a fair civil proceedings; (d) scandalizing the court- challenge the integrity or impartiality of

judge. Nevertheless, the legal, social or social merits of a decision is not contempt.

Contempt of Parliament

Both the Commons and the Lords have the powers to commit for contempt anyone, whether a member or nowho, in their opinion, obstructs them in the conduct of their proceedings.

2. FREEDOM OF EXPRESSION

British citizens are free to express any opinions, provided that these are not defamation or libel, prejudicial tanother person and provided their opinions do not contravene the law relative to sedition, racial hatred anobscenity.

3. FREEDOM OF ASSEMBLY AND OF ASSOCIATION

Provided that British citizens do not contravene the law, they may assemble and form associations. The on

limitation to freedom of assembly is that assemblies must be peaceful and must not result in trespassinobstruction of public ways or breach of the peace. The organizers of public meetings may be prosecuted for 5 macrimes:

1. rioting2. violent disorder3. affray 4. threatening behaviour5. disorderly conduct


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Citizens may associate freely, provided the aims of the association are not illegal, provided that the association nor paramilitary and does not involve wearing uniforms and provided it does not imply membership of IRA ogiving support to IRA.

4. FREEDOM OF THOUGHT AND RELIGION

Freedom of thought and religion for Catholics and Jews are granted by law (the Catholic Emancipation Act 1829the Jewish Emancipation Act 1860 restored and respectively extended full citizenship to these categories ocitizens). Non-Christians can be sworn in as MPs (the Parliamentary Oaths Act 1866).

5. EQUALITY

Equality has become a headstone of the constitution, just like liberty. The global movement if support of equalitalso gave rise to legislation in Britain in the fields of:

- equal pay for men and women who are engaged upon like work,- sex discrimination prohibits imposing requirements or conditions upon people based on sex or le

favourable treatment on the grounds of sex, or discrimination by marital status in the area employment(married / unmarried)

- race relations racial discrimination (colour, race, nationality or ethnic or national origins).

CIVIL LIBERTIES IN AMERICA

The Constitution of the USA, signed in 1787, contained no guarantees of basic human rights. So, in 1789 Congreproposed the first 10Amendments to the Constitution (the Bill of Rights) because most of them are concerne

with the rights of the individual against the federal government. The amendments were ratified in 1791.

After the Civil War several other Amendments were passed (egg. Amendment 14 abolishes slavery and ensures thfreedom of Blacks). Amendment 14 provides that no state shall deprive any person of life, liberty or propert

without due process of law. Due process of law implies not only a fair procedure, but also that the legislatioenacted by the states relative to the powers of the police should be reasonable.

Amendment 14 also protects:- freedom of speech

- freedom of assembly- freedom of expression- religious freedom- the rights of minority groups

Amendment 14 prohibits- the establishment of state religions- the police to detain a suspect after his arrest. The suspect must be brought without unnecessary dela

before a magistrate, who will conduct the preliminary investigation, to determine whether there asufficient grounds to detain the suspect. If there is a prima facie case against him, most of the time, thsuspect will be released on bail pending trial

- forbids racial segregation by the states in public school and other public facilities


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LEGAL ENGLISH WORKSHOP IV (Applied Modern Languages MA Programme)Fall semester, 2012-2013Course instructor: Roxana-Cristina Petcu, PhD

I. Fill in the blanks in the text below using the terms in the list:

enforce the judgment; form of defense;allocated to a regime or track; claims; case management conferences; thparticulars; witness statements;judgment; settle their differences; initiated; stay in proceedings; claim formreview the process; writ of summons; multi track regime; specified or unspecified monetary sums; inspectionacknowledgement of service; plaintiff; fast track;admit a claim; procedural judge; issued; monetary value; givein favour of the claimant; served on; disclosure; make an order; small claims; defendant; get a time extensioform of admission; filing a reply; counterclaim.

Most ___are ____by the use of a ____called a____. The claim form can be used for different types of claimfor example _____, or for the ____ to ask the court to _____. Once a claim has been ____, a copy is ____that is delivered to, the ____ with a response pack inviting them to either _____, using a _____, or to defend using a____. The response pack also contains an _____ form to confirm receipt of the claim, and a _____ formfor the defendant to use if they wish to claim against the claimant. A defendant must respond within 14 days oservice of _____of the claim. If the defendant does not respond, ____ may be _____. The defendant may bable to _____ for _____ on defense by using the part of the acknowledgement of service form which states aintention to defend the claim. Cases are _____by a _____ according to their _____. Claims of 5,000 or leare allocated to a _____track while claims up to 15,000 are allocated to a ____. More complex claims withgreater value are allocated to a _____. Fast track directions include _____, where the claimant tells the defenof any relevant documents in their possession. This is followed by _____, initiated by a written request by thclaimant to lok at relevant documents held by the defense, and exchange of_____. The multi track regime intended to be flexible and does not have a standard procedure. In all regimes, parties are encouraged to ____and for this purpose a _____, that is a temporary halt, may be agreed. ______are conducted by telephone angive parties the opportunity to ____ and make decisions. If a defendant is ordered to pay by a judge and fails tdo so, the claimant can ______in the Magistrates Court.

II. Match the words in list A and the words in list B and make word combinations; translate them

into Romanian.

A. admit; agree to; allocate to; enforce; file; issue; review; serve; set; settleB. a timetable; a stay; a claim; the process; the judgment; a claim; a claim on; a regime; differences; a reply

III. The following are the stages of the civil procedure in England. Arrange them in the correcorder.

Cross-examination by the plaintiffs lawyer; order for costs; reexamination of the plaintiffs witnesses; closinspeech for the defense; reexamination of the defendants witness; judgment; examination-in-chief by thdefendants lawyer; opening speech of the lawyers; examination of the witnesses called to support the plaintifcross-examination by the defendants lawyer; closing speech for the plaintiff; examination of the witnesses calle

to support the defendant; examination-in-chief by the defendants lawyer.

IV. Look at the sentences below and choose the alternative which best fills the blank spaces:

1.The small claims track is designed for cases with a financial value of up to 5000. The aim is to deal witsmaller disputes in a relatively informal and therefore less time-consuming manner. Various procedural rulesuch as the rules ______ , do not apply to the small claims track, and the parties are encouraged to appea

without legal representation.

A.disclosure; B.admission; C.exposure; D. divulgence


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2. The right to appeal is limited to situations in which there was s serious irregularity in the proceedings, or thcourt made a _______ of law.

A. fault ; B. mistake; C. slip: D. error

3. . The plaintiff fills in a claim _____, in which he must give details of the court in which he wants to brinaction, and of the parties involved.

A. document; B. protocol; C. form: D. procedure

4. The plaintiff must also provide the defendant with the ______ of the claim,.

A. details; B. points; C. particularities; D. particulars

5. If the defendant admits the palintiffs claim is justified, he can file an _______ .

A.acknowledgment; B. affirmation; C. admission; D. allowance

V. Look at the list of legal terms below. Match each of these terms with its definition.

1. adversarial proceedings; 2. affidavit; 3. cassation; 4. burden of proof; 5. class action; 6. deposition; 7. fast track8. freezing injunction; 9. litigation; 10. judgment debtor; 11. perjury; 12. privilege; 13. settlement; 14. statements case; 15. witness summons

A. witness can be compelled to attend a trail; B. proceedings involving a real dispute between two opposing partiwho are responsible for finding and presenting evidence: C. the collective term for all the documents exchangebetween parties before the trial; D. a sworn written statement made by a witness; E. parties avoid going to trial breaching an agreement on the claim; F. a court only competent to make decisions upon a point of law. In thEnglish system there are no such courts; G. the right of a party to refuse to produce documents or answquestions on the ground of some special interest recognized by law: H. the claimant must prove all the elemenrequired for his claim against the defendant; I. telling lies in court while under oath; J. American term whicrefers to bringing a lawsuit on behalf of a whole group of individuals who have been affected; K.the one agains

whom a money judgment has been ordered; L.evidence given by a witness before an examiner prior to the triaM.where a dispute is taken in court. N. track used for claims for a value above that of small claims; O. order of aEnglish court to stop a party removing or disposing of assets before trial.

VI. Find the terms that best cover the meaning described in the definitions below:

1. the English version of the American contingency fee, which is based on a no win, no fee approach to litigation2. English rule stipulating that whoever loses the case has to pay not only his costs, but also the costs of the otheside; 3. a claim brought by a defendant in response to the plaintiffs claim in the same proceedings; 4. evidencgiven by a witness who is a specialist in a certain subject; 5. term still used in th USA where a writ allows

judgment creditor to seize the property of the judgment debtor which is possession of a third party; 6. paymemade before the trial to a party claiming a money judgment; 7. where the defendant has failed to serve a defense ithe required time; 8. an English legal term which indicates that one must be allowed by the court to appeal a civcare; 9. authorization allowing the representatives of the plaintiff to enter the defendants premises to search foand seize evidence; 10. to delete a claim/cancel an action

VII. Look at the terms below. They all use the word criminal. Match each term to its definition:

1.Court of Criminal Appeal; 2. criminal contempt; 3. criminal negligence; 4. criminal court; 5. criminal forfeitur6, criminal law; 7. criminal lawyer; 8. criminal procedure; 9. criminal record; 10. habitual criminal; 11. criminliability; 12. war criminal

A. a barrister or solicitor who specializes in felonies and misdemeanours; B. a person charged with or convicted crimes against humanity; C. previous crimes of which an individual has been convicted; D. rules governing thinvestigation of crimes; the arrest, charging, and trial of accused criminals; and the sentencing of those convicteE. one of the highest courts of law which hears cases sent up of review; F.disorderly behaviour, disrespect, odisobedience of a judges orders, particularly during a trial; G. a person who repeatedly commits offences; H

where an individual fails to exercise a duty of care and the resulting action leads; I. the branch of law which dea


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with felonies and misdemeanours; J. study of mental processes and behaviour of persons who commit crimes; a court with jurisdiction to hear felonies and misdemeanours; L. responsibility for committing a crime (excludepersons include minors and the insane)

VIII. Match the terms denoting crimes to their definitions then divide them into 2 categories, aviolent and non-violent crimes:

1.assault; 2. drug dealing; 3. money laudering; 4. battery; 5. homicide; 6. manslaughter; 7. fraud; 8. murder; armed robbery; 10. sexual assault; 11. burglary; 12. theft; 13. parking; 14. speeding

A. a generic term for the killing of another person; B. any instance in which one party deceives or takes unfaadvantage of another; C. attempt to use illegal force on another person; D. attempt to use illegal force on anothperson in the absence of consent to sexual relations; E. attempt to transform illegally acquired money intapparently legitimate money; F. driving a vehicle in excess of the permitted limit; G. leaving ones vehicle in aarea or for a duration in contravention of the law; H. possession of and/or trading in illegal substances; I. takinthe property of another without right or permission; J.the actual use of illegal force on another person; K.thcrime of breaking into a private home with the intention of committing a felony; L. the unlawful killing of a perso

with intent; M. the unlawful killing of a person without malicious intent and therefore without premeditation; Nthe unlawful taking of anothers property using a dangerous weapon;

IX. The following are stages in the criminal procedure. Put them in the right order:

Judgement of judge; crime reported; appearance in court; investigation by the police; acquittal of the accusecharge of the suspect; conviction of accused; investigation of suspect; decision of jury; interrogation of accusedsentence by judge; apprehension of suspect; appeal against judgement; remand in custody; interrogation

witnesses; release on bail.

1. Crime reported; 2. investigation by the police; 3.investigation of suspect; 4.apprehension of suspect; 5.charge the suspect; 6.remand in custody; 7.release on bail; 8.interrogation of accused; 9.interrogation of witnesse10.appearance in court; 11.decision of jury; 12.Judgement of judge; 13.conviction of accused; 14.acquittal of thaccused;5. sentence by judge; 16.appeal against judgement;

X. Match the steps identified above to their correct definitions:

A. the police free the person alleged to have committed a crime on condition that the accused appears in court atfuture date; B. the jury panel make a decision whether they believe (beyond reasonable doubt) that the accusecommitted the crime of which he is accused; C. the judge decides punishment; D. the police carry out a systematexamination of the person who may have committed a crime; E. the police reveive information that a crime mahave been committed; F. the police make a claim of wrongdoing against a person alleged to have committedcrime; G. the police carry out further questioning of a person alleged to have committed a crime; H. the defendanis found not guilty of the charge; I. the accused comes to court to face charges; J. the police carry out a detaileenquiry into the alleged crime; K. after being found guilty, the accused cringes an action to clear his name or treduce the sentence; L. the police arrest the person who is alleged to have committed a crime: M. the police detaithe person who is alleged to have committed a crime; N. the judge makes a judicial decision; O. the polixce colleevidence against the accused from those who can give evidence; P. the defendant is found guilty.

XI. The terms below denote a range of sentences that may be imposed. Match each sentence to itdefinition:

1.bond; 2.capital punishment; 3.jail; 4.parole; 5. imprisonment; 6.probation; 7.concurrent sentence; 8. bindinorder; 9.suspended sentence; 10. peace bond; 11. community service; 12. determinate sentence; 13.prison; 14.goo

behaviour

A. when 2 or more terms of imprisonment are served together; B. a place for long-term incarceration; C. a place confinement for time periods longer than those usual for a police station lock-up and shorter than those usual fa prison; D. unpaid work undertaken pursuant to a court upon conviction for an offence in lieu of a sentence oimprisonment; E. a release from prison, before a sentence is finished, that depends on the person keeping clea


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and doing what he or she is supposed to do while out. If the person fails to meet the conditions, the rest of thsentence must be served; F.conduct required for criminals to get out of jail early or other privileges while iprison; G. a sentence that the judge allows the convicted person to avoid sentencing; H.a document that promiseto pay money if a particular future event happens, or a sum of money that is put up and will be lost if that evenhappens; I. an act by which the court requires a bond or bail money; J. the sentencing of a criminal to a period time during which they will be deprived of their freedom; K. a bond, required by the judge of a person likely tbreach the peace, to guarantee the persons good beheviour for a period of a time; L. an exact prison term that set by law, rather than one that be shortened for good behaviour; M.a kind of punishment given out as part ofsentence, which means that instead of jailing a person convicted of a crime, a judge will order that person repor

to an office regularly and according to a set schedule; N. the most severe of all sentences: that of terminatinsomebodys life.

XII. Identify the agencies, organizations and individuals involved in the administration ocriminal law:

1. interrogate suspects and witnesses; 2. sometimes conducts the investigation in cases of serious criminoffences; 3. carry out arrests, searches and seizures; 4. conducts the case in court on behalf of the police; 5. has thright to remain silent; 6. is innocent until proven guilty; 7. assists the suspect in gathering exonerating evidence; protects the suspect from violations of his rights at the hands of law-enforcement personnel; 9. presides over thcourt; 10. decides on the sentence to be imposed; 11. decides whether the accused is guilty or not.

1. the police; 2. the police; 3. the magistrate; 4. the prosecutor; 5. the suspect; 6. the suspect; 7. the defencounsel; 8. the defense counsel; 9.the judge; 10. the judge; 11. the jury

XIII. All the terms below are derived from the term appeal. Match each term to its definition:

1.appeal; 2. appellate; 3. appealable; 4. leave to appeal; 5. appellant; 6. court of appeal; 7. appellee; 8. appeal bon

A. permission of the court to institute appeal proceedings from a single judge or lower court to a full court ohigher court respectively; B. the person against whom an appeal is taken; C. to ask a more senior court or persoto review a decision of a subordinate court or person; D. a court to which appeals are made on points of laresulting from the judgment of a lower court; E. describes a judgment which can be appealed against; F. monput up by someone appealing a courts decision. The money is to pay the other sides costs in case the persoappealing fails to go forward with an honest appeal; G. a party who appeals against a judicial decision which is n

in that partys favour; H. refers to a higher court that can hear appeals from a lower court

XIV. Now complete the following text about appellate procedure using the terms above:

________ procedure consists of the rules and practices by which a _______ reviews trial court judgments. Thprocedure focuses on several main themes: a) what judgments are ________ , b) how an _________ is to b

brought before the court; c) what will be required for the reversal of the lower court; d) what procedures thparties must follow. Often an _______ will be put to pay the other sides costs in case the appeal fails. Normall

________ will be requested by the ________ , who is seeking a review of the decision of a subordinate court operson. The other party, the _______ , is usually, but not always, the winner in the lower court.

XV.Translate into Romanian:

A. The death penalty. Reasonable doubt. Troubling questions surround a capital case in Georgia

IN 1989 Troy Davis and two friends were hanging out in Savannah, Georgia. They saw a homeless man leavingshop and started to bully him. An off-duty policeman heard the commotion and intervened; he was shot ankilled. Though no gun was found, the state produced nine witnesses who said that Mr Davis was the culprit. H

was convicted of the murder and sentenced to death in 1991. It seemed a straightforward case. Americanparticularly revile cop-killers and here was a parade of people saying that Mr Davis had shot a policeman. But aftthe trial, no fewer than seven of the nine recanted. Several of them said they had felt subjected to pressure by thpolice. Others thought someone else was the killer. The homeless man said he could not remember, and anyway h


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had been drinking. This was hardly the clear-cut result a state wants to have when it is handing down a deatsentence, and legal wrangling has been going on ever since 1991 in state and circuit courts. Much of the debate over procedure: judges who have ruled against Mr Daviss various appeals argue that you need lots of neevidence to revisit a case, not a gaggle of shifty witnesses. The result is a hideous mess. An execution date was sfor July 2007. The day before the sentence was to be carried out, the state issued a stay. In March 2008 GeorgiaSupreme Court ruled that Mr Davis should not get a new trial and another execution date was set. On Septembe23rd Mr Davis was again awaiting death. The prison prepared a last meal of macaroni, cornbread and salad, but hturned it down. The reprieve came with less than two hours to go: the United States Supreme Court had grantedstay. Three weeks later, the court decided not to hear Mr Daviss case. A third execution date was set for Octobe

Three days before it arrived, yet another stay was granted. On December 9th the circuit court will considewhether Mr Davis can continue with his appeal or whether he has to die. Even people who support the deapenalty are crying foul. William Sessions, a former head of the FBI, says that because there was no physicevidence in the case, Mr Davis deserves another day in court. He may have killed a policeman, but Georgia needto do more to prove it.

B. Death penalty. A pointless extinctionThe Supreme Court's ruling upholding lethal injections has resolved nothing

ACROSS America, those states that still impose the death penalty have been rushing to resume executiofollowing the Supreme Court's ruling on April 16th upholding the use of lethal injections. More than 40 executionhad been put on hold until the court decided. But the end of the seven-month de facto nationwide moratorium unlikely to produce a bloodbath. Rather, as Justice Clarence Thomas grumbled, the seven-to-two ruling is sure tengender more litigation...[because] we have left the states with nothing resembling a bright-line rule.This

because the court's decision was based on lethal injections as administered in just one state, Kentucky. Of the 3states that retain the death penalty, 35together with the federal governmenthave adopted lethal injections ithe belief that this is the most humane method of execution. (Nebraska used to use the electric chair until iSupreme Court ruled in February that this was unconstitutional.)Although at least 30 states use the same thredrug procedure as Kentucky, the standards, protocols and therefore the risk of a botched execution differ. Thleaves the door open to further objections that lethal injections in other states violate the eighth amendment's baon cruel and unusual punishment. So rather than a mad rush to the death chambers, there is likely to be gradual resumption in executions, accompanied by many more legal challenges. This week the Supreme Courejected lethal-injection appeals from Alabama, Mississippi and Texas, clearing the way for them to set neexecution dates for inmates who had earlier been granted last-minute reprieves by the court. Last year 4executions were carried out in America, down from 53 the previous year and a peak (since the Supreme Cou

allowed executions to be resumed, in 1976) of 98 in 1999. Last year's total was kept artificially low by the courtdecision in September to hear the Kentucky case, bringing all executions to a screeching halt. But the downwartrend in capital punishment is clear. Death sentences have been falling steadily, down from a peak of 326 in 199to an estimated 110 last year.Announcing the Supreme Court's judgment, John Roberts, the chief justice, said thto constitute a cruel and unusual punishment, the execution method had to present a substantial or objectiveintolerable risk of serious harm; avoidance of all pain was not required. Justices Thomas and Antonin Scalia sthe bar higher, arguing that the method would have to be deliberately designed to inflict pain to bunconstitutional. Justice Stephen Breyer felt it was sufficient to show a significant risk of unnecessary sufferingBut whatever their interpretation of the eighth amendment, seven justices agreed that Kentucky's method walawful.While concurring, Justice John Paul Stevens declared that he no longer believed the death penalty itself

be constitutional. Having voted in 1976 to uphold capital punishment, he now agreed with the late Justice ByroWhite (in Furman v Georgia, 1972) that its imposition represents the pointless and needless extinction of li

with only marginal contributions to any discernible social or public purposes. Justices Stephen Breyer, DavSouter and Ruth Bader Ginsburg are believed to think the same.Thirty years ago, only 16 countries had abolishethe death penalty; now more than 90 have. In the developed world, only America and, occasionally, Japan still usit. (Taiwan and South Korea have it on their books, but no longer impose it.) In December, the UN passedresolution, backed by 104 states, calling for the first time for a worldwide moratorium on capital punishmenEven China, the world's most avid executioner, is seeking to limit the death penalty and make it more humanebusing more lethal injections.

C. Choosing judges. Wanted: better judgment, fewer crowd-pleasers and lickspittlesShould judges be elected or appointed? In the case of international courts, this age-oldconundrum has a new twist


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BARACK OBAMA wasnt the only person selected by American voters this month. They also cast ballots fothousands of state-court judges, after expensive, rancorous campaigns. No other nation in the world choos

judges by this stirringly democratic method, as Sandra Day OConnorthe first woman to sit on the SupremCourthas noted. In her view, that is because most countries know youre not going to get fair and imparti

judges that way.Barring a few Swiss cantons, the elevation of judges by popular vote is indeed rare. But international tribunals, from the International Court of Justice (better known as the World Court) to the EuropeaCourt of Human Rights, judges are typically electedalbeit by national representatives, not popular franchis

And as with the American system, there is no guarantee that such ballots will produce individuals who aqualified or honest. As a result, decisions affecting millions of lives can be taken by questionable peopl

government hacks and lickspittles, with little or no judicial experience, who have demonstrated their loyalty their governments by defending the unconscionable, as one human-rights lawyer puts it. Among the five judgelected earlier this month by the UN General Assembly and Security Council to the 15-judge World Court wasnominee from Somalia, a country listed by Freedom House, an American think-tank, as among the worst of th

worst in respect of civil and political liberties. Of course, bad countries can produce fine individuals; but somfind it troubling that the court, which rules on disputes between states, now includes three judges from countrirated by Freedom House as not free (China, Russia and Somalia) and another three from countries deemepartly free (Jordan, Morocco and Sierra Leone).Critics of the court have tried to draw a link between its dubioumembership and its more controversial decisions. Soon after the courts advisory opinion of 2004 on the waerected by Israel in the West Bank, calling the barrier a breach of humanitarian law, Eric Posner, a law professoat the University of Chicago, made a withering attack. Blasting the court as irrelevant and increasingly ignorehe blamed partial judges for its decline. He claimed that 90% of the time they vote for their home stateor elsline up with nations of a similar stripe: the rich with the rich, the authoritarian with the authoritarian. Of coursehis points do not prove that the court was wrong about the wallbut they do challenge its role as a morarbiter.Getting a seat on a UN-backed international tribunal, with a salary of around $170,000 a year, istempting prospect in poor countries where judges earn barely a tenth of that. Small wonder that somgovernments promote candidates as a reward for services rendered. (One member of a war-crimes tribunal turneout to have few qualifications other than being the cousin of his countrys president.) But stereotypes can misleadmany judges from poor places are outstanding, while those from rich lands can be dreadful.The 47 judges of thEuropean Court of Human Rights, one for each member of the Council of Europe (not to be confused with thEuropean Union), are elected by the councils parliamentary assembly. The only requirement is that candidates bof high moral character and either have the qualifications required for high judicial office in their own countror are lawyers or academics of recognised competence. This is not a high hurdle for candidates from excommunist countries whose legal systems are still tainted. Many nominations reflect cronyism, not legal expertiand the European Courts rulings are binding on all member states.Similarly vague qualifications are asked

the 18 judges of the International Criminal Court, along with a need to reflect the worlds main legal systems and desire to achieve an equitable distribution by geography and sex. Appointed usually for nine years, ICC judgemust be elected by a two-thirds majority of the courts 108 member states. All but two of the present bench afrom lands deemed free (including some poor ones); none is from a not free country.As the ICC has yet to starits first trial, it is too early to judge its judges. But in America, where some 60% of state appellate judges and morthan 80% of state trial judges face contested elections, noisy political contests certainly contribute to an endemlack of confidence in the judiciary, at least at state level. (Federal judges are not elected.) Most states allocandidates to raise funds, often running to millions of dollars. According to one poll, 70% of Americans thincampaign contributions sway judges decisions. At least international courts are not plagued by angry elector

battles. Indeed, given the hurdles faced by such tribunals, it is amazing how well most of their judges do their joBut they might work even better were they to adopt the merit-based model now being set up by the UNin thfirst overhaul of its own internal justice system (which deals with discipline and grievances) in more than 6

years. Some 50,000 UN staff around the world will be affected.Following a report by a panel of experts who callethe present peer-review system outmoded, dysfunctional and ineffective, Ban Ki-moon, the UNs secretargeneral, has named a five-member Internal Justice Council, including three distinguished external jurists. Its jois to advise on suitable candidates for a new, two-tiered, independent system, staffed by professional judges witat least ten years experience. Although the council was asked to pay due regard to geography, this is no longerdeciding factor.In response to press advertisements (another novelty) as well as through the UNs ownwebsit237 applications were received from 55 countries. The 41 top candidates went to The Hague for an interview antwo-hour written exam, before a final list of 25 names was drawn up, roughly two for each available post. Twothirds of the finalists come from countries with sophisticated judicial systems. That should cut the risk olamentable choices when the General Assembly elects the new judges next month.

XVI.Translate into English:
http://www.un.org/http://www.un.org/


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A. Judecatoarea din dosarul Csibi Istvan si-a catalogat colegii drept o haita

Judecatoarea Tribunalului Bucuresti Simona Iordanescu a formulat cerere de abtinere in dosarul 11431/3/200in care omul de afaceri harghitean Csibi Istvan este cercetat pentru infractiuni economice. In cursul zilei de ieri a

judecat doi magistrati, unul pentru judecarea cauzei de fond, iar un altul pentru solutionarea exceptiilor ridicade avocatul lui Tanko Robert, cercetat in acelasi dosar, Mariana Stefan. Judecatoarea din dosarul omului dafaceri Csibi Istvan, Simona Iordanescu, a sustinut, ieri, in sala de judecata ca ceilalti magistrati sunt o haita ca ii este telefonul ascultat 24 de ore din 2Judecatoarea Simona Iordanescu, nemultumita ca i s-a respins cererea de abtinere in dosarul in care Csibi Istva

este judecat pentru instigare la delapidare, la spalare de bani si la fals in inscrisuri sub semnatura privata, intr-ucaz in care sunt implicate alte 16 persoane si 17 societati, a transformat sala de sedinta intr-un circ. Magistratulspus ca numai un handicapat mental putea sa dea o asemenea decizie. Sa intre sa judece cine in dosar, pisica?a intrebat retoric judecatoarea. Apoi a sustinut ca a fost lucrata din interior, sugernd avocatilor apararii ca si sunt lucrati din exterior in legatura cu implicarea lor in dosarul lui Istvan. In momentul in care acest dosar mi-fost repartizat, o colega mi-a spus ca ai fost potcovita cu Csibi Istvan. Asta inseamna ca mie trebuie sa mi se facceva. Trebuie sa intelegeti cu ce ma lupt eu. Fiind sagetator, care e jumatate om, jumatate cal, deci centaur, nu m

jignit, a spus magistratul. Apoi judecatoarea a spus ca a descoperit ca i s-a respins cererea de abtinere, adibomba, abia joi, cnd s-a intors din concediu medical ca sa judece dosarul, pentru ca nu e genul puturosSimona Iordanescu a mai spus ca a revenit la serviciu pentru a le arata lor ct este de puternica si ca nu se sperica dosarul va cadea pe umerii ei. Am zis ca si moarta vin la serviciu si le-am aratat ca pot.() Ce porcarii se faici!, a spus magistratul. In ton cu atmosfera din sala de judecata, Csibi Istvan a zis ca i se insceneaza lucruri penitenciar ca sa cada, sa spuna ceva. Istvan a vorbit despre teroarea securista a DNA, lucru cu camagistratul a fost de acord, aratnd ca stie despre ce este vorba si spunnd ca ii este ascultat telefonul 24 de ordin 24. Judecatoarea a mai spus ca singurul ei defect este ca la locul de munca vine sa munceasca, si nu sa simprieteneasca cu colegii si sa mearga cu ei in concediu, pentru ca este satula de ei. In momentul in care nu esin haita, devii incomod, a afirmat magistratul. Mai mult, atunci cnd avocatul s-a referit la starea de arest a lCsibi Istvan si a sugerat ca, in final, Curtea de Apel decide, judecatoarea a replicat ca la aceasta instanta su

judecatori care au fost promovati stie ea cum, in urma cu doua saptamni, de la Tribunalul Bucuresti. In acemoment, Csibi Istvan, avocatii si alti participanti la sedinta de judecata au izbucnit in aplauze si ovatii. Instanturmeaza sa pronunte asupra cererii lui Csibi Istvan de a fi judecat in libertate, dezbaterile urmnd sa fie reluate i15 ianuarie. Este inadmisibil ca o cerere de abtinere a unui judecator sa fie admisa partial atta vreme ct Codde procedura penala prevede fie admiterea cererii in totalitate, fie respingerea ei. Se intmpla acum pentru primdata cnd o cerere de abtinere a unui judecator se admite partial, a declarat Mariana Stefan (foto) pentrGardianul. Avocata a mai adaugat ca judecatorul a sugerat, la termenele anterioare, ca a primit amenintari de

persoane necunoscute pentru a nu dispune punerea in libertate a omului de afaceri Csibi Istvan. A existat adevarata dezbatere in sala de judecata intre mine si judecatorul Simona Iordanescu in ceea ce priveste situatia ccare se confrunta ca judecator in acest dosar. Arat ca magistratul Simona Iordanescu este un judecator integru, co vechime de peste 30 de ani, si este posibil sa fie amenintata, tinnd cont de interesele economice si politice al

judetul Harghita, astfel inct sa se doreasca ca omul de afaceri sa ramna in continuare arestat, a mai adaugavocata Mariana Stefan. Dosarul de la Tribunalul Bucuresti este un dosar disjuns din dosarul fostului PNA, in caravocatul Mariana Stefan a obtinut punerea lui Csibi Istvan in libertate, in anul 2006. Este arestat pentru aceleafapte, pentru care Tribunalul Suceava si Curtea de Apel Suceava l-au achitat pe Csibi Istvan si Tanko Robernumai ca li s-au dat o alta incadrare juridica, pentru ca infractiunile cercetate sa fie de competenta DIICOT, nnumai a DNA, a conchis Mariana Stefa

B.1.Violul este o infractiunecare se pedepsete cu cel puin 5 ani de nchisoare.2. Incendierea n scopuri criminale este considerat o infraciune la fel de grav ca i furtul.3. Poliia bnuiete c face trafic de droguri.4. Poliia l va interoga pe suspect mine diminea.5. n Anglia, amprentele digitale se iau la secia de poliie.6. Autoritile din Romnia sunt din ce n ce mai ngrijorate de creterea numrului de infraciuni comise dminori.7. Actul introductiv pentru instan l citeaz pe prt s compar n instan.8. Orice dosar penal comprut n faa unui tribunal al Coronei presupune participarea unui juriu fornat din 1pn la 12 jurai.9. Trdarea este cea mai grav crim comis mpotriva statului.


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10. Citaia este un ordin emis de o instan de a se prezenta n faa instanei respective n calitate de martor.

CLOE I2012-2013Course instructor: Roxana-Cristina Petcu, PhD

LECTURE V - THE LAW OF TORTS, THE LAW OF CONTRACTS

Now we shall move into the field ofprivate lawwhich is administered by the civil courts and is concerned witrights and duties of individuals between each other, rather than rights and duties vis--vis the State.

THE LAW OF TORTS IN ENGLAND

The word tort derives from the Latin tortus, meaning crooked or twisted, and the Norman French tort meaninwrong. In English law, the word tort is used to denote certain civil wrongs as distinct from criminal wrongs.

THE NATURE OF TORTS

To understand what a tort is, torts must be distinguished from crimes, breaches of contract and breaches of trust

CRIMES

A crime is a wrong which, by means of punishment or otherwise, is inhibited by the State. In case a crime committed, the object of the criminal proceedings is primarily to punish the offender. Although a private persomay prosecute another for a criminal offence, the police are most of the time the prosecutors. If the accused found guilty, the court will award a proper punishment.

BREACHES OF CINTRACT (

A breach of contract is a civil wrong, but it is different from a tort. In a contractual relationship, contractuduties are imposed on the parties by the parties themselves.

BREACHES OF TRUST

In order to speak of trusts, we must refer to the meaning of the term use, which is said to derive from the Latopus (help, need). Ause arose in medieval time when a person conveyed property of any sort to another upon thunderstanding that the other was to hold that piece of property on behalf of the donor or on behalf of a third partClearly the person who held the use was in a position of confidence that he might abuse, so the rights of the thirparty required protection. The common law courts refused to recognize uses and failed to offer any protection, bthe Court of Chancery acted as a court of conscience and intervened to force holders of uses to administer thproperty for the benefit of the third party according to the terms of the grant. In time, this interest came to bcovered by the Chancellors equitable jurisdiction, so trusts are dealt with in equity. The holder of the use came t

be known as a trustee and the person on whose behalf the use is held came to be known as the beneficiary. Sa trust is an equitable obligation bonding the trustee to deal with property over which he has control (which

called trust property) for the benefit of the beneficiaries. In such a case, a breach of trust may give rise focompensation for damage suffered.

TORT

A tort is a civil wrong which entitles a person who is injured by the act committed to claim damages for his loswhether purely as reparation or as a way of making the defendant understand the anti-social nature of his act. Thobject of proceedings in tort is not punishment, but compensation or reparation to the plaintiff for the loss oinjury caused by the defendant, i.e. damages. In tort, the duty to refrain from committing torts is imposed by thgeneral law of the land, independently of the wishes of the plaintiff or of the defendant. In very many cases,crime or a breach of contract may include a tort element. In case of tort, liability arises from the breach of a duprimarily fixed by law. It is a duty towards persons generally.


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As a general rule, when a person suffers unlawful harm at the hands of another, an action in tort for that damaor injury arises. For instance, if A, by his negligence, collides with Bs car parked on a road and causes damage tit, B may take action in court.

The law of tort does not regard the motives of an act, it is merely concerned with the effects of the injuriouconduct, which means that a good motive will not be a lawful excuse to commit tort. Conversely, a bad omalicious motive will not make a lawful act unlawful. In some cases, harm may be done by one person to anothe

but the law provides no remedy this is damnum sine injuria (damage without legal wrong). On the contrar

there may be a wrong without loss or damage (injuria sine damno). Such cases are exceptions to the rule ththere must be damage or injury in order to bring an action. Therefore, it is important to mention that tort does nosimply consist in the infliction of an injury, but in the infliction of a legally recognized injury.

Torts are divided into two main classes: trespasses and actions on the case. A trespass is a direct and forcibinjury. It is the most dramatic and obvious of all wrongs and it was the earliest tort which the law recognized anremedied. Actions on the case are actions for damage caused otherwise than directly and forcibly. They wecalled actions on the case because they were originally granted in circumstances in which there had been nremedy but the plaintiff could show that, upon the facts of the case, he had suffered a damage as the result of somacts or omission of the defendant.

Examples of trespasses A walks over Bs land; A hits B; A kicks the paint off Bs car, etc

Examples of actions on the case A accidentally leaves a mat on a slippery floor where B is likely to walk andslips on the mat and is injured; A negligently permits a fire that has arisen on his land to spread and to damage Bcrops.

GENERAL DEFENCES TO ACTIONS IN TORT

In case a person is sued for tort, mistake, either of law or fact, is no defence. For a mistake of law, the principlignorantia legis non excusat(ignorance of the law is no excuse). For a mistake of facts, there are execeptions the rule, as some reasonable mistakes of facts may be accepted as an excuse. Nevertheless, in the case of trespasthe trespasser may be sued even though he sincerely believed that the land he entered belonged to him or that hhad a right of entry.

The person who is sued for tort may resort to various types of defence:- he may deny the facts alleged by the plaintiff- he may argue that the victim was consenting and cannot sue on the tort. This argument is called volen

non fit injuria (no injury can be done to a willing person). It is the principle of the assumption orisks. It is a principle of general application. It applies not only in cases where people agree to run the risof injury, but also in cases where the law presumes that they have consented to do so.

- in some cases, damage done intentionally may be excused if it was done out of necessity (eg. when a persocauses damage to another persons property to prevent fire from spreading)

- an inevitable accident, namely an accident that could not be avoided by taking all the ordinaprecautions

- if damage or injury was done by a person trying to defend himself or another person against unlawfforce, the defendant shall not be liable provided he used force in proportion to the harm threatened.

There are three points to be mentioned in connection with assumption of risk:

1. no one will be allowed to consent to run the risk ofillegal harm. (eg. the rule does not apply in the case a boxing match conducted with bare fists).

2. mere knowledge of a risk need not necessarily amount to consent to run it. (eg. a worker drilling rocwhile a crane is carrying loads of stones over his head. There is a danger that a stone might drop on hidue to the negligent way in which the crane is ope

cloe i lectutes 4 and 5

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