Monday, 10 October 2011

Should the English legal system be unbound by the ECJ?

At the end of the Conservative's Party conference for 2011, David Cameron (leader of this political party) did  mention his strong desire to detach this country from the EU legislative powers completely. But, why? This post will be looking into a couple of legal systems from European countries, comparing them to our countries legal systems (only breifly, this isn't an essay, just a blogpost.) and aim to decipher why it is that the topic to remove ourselves from Europe should even be discussed.

I am going to start with a seemingly irrelevant case in relation to the title, but don't worry, it'll all hopefully make sense by the end (if not, sue me. Don't really, I don't have the money for that...)Anyway, on the 4th of September,
 Amanda Knox (Accused of murdering Meridith Kercher in 2007) had been acquitted after a successful appeal by the defence after four years of appeals. The outcome was of course a shock to everyone, and I concur with Meredith's brother, when he stated: "We are now left looking at this again and thinking how a decision that was certain two yeas ago has been so empathetically overturned..."

How indeed could the judges acquit miss Knox based on her appeals, even though there was significant evidence to suggest that Amanda Knox did part take in the murder of Meredith? Would this acquittal suggest that the Italian courts were too quick to 'judge' initially, or does this acquittal of a once acclaimed 'She Devil' show confusion, and a certain lack for standing by their previous decisions made? Which brings me unto my next question; are the English legal systems much more secure and predictable than the legal systems in other European countries (like Italy in this example)?

Let's go back in time a little bit. Ever since the Norman Conquest, the English legal system (let's just call it the ELS for short?) has improved century by century, and become more defined and effective, just by the courts applying the simple idea of stare decisis (standing by a previous decision) and submitting to the binding precedents of higher courts in the hierarchy. This has meant that cases in English courts are more predictable, and can therefore act as a deterrent for potential offenders in England. For example, knowing that murdering someone would result in serious and possibly lengthy custodial sentencing, could persuade most people not to murder in the first place.

Yet other European countries do not necessarily follow the same principle of stare decisis in their courts. Let's take Italy for example. Although there is a clear hierarchy of courts in the Italian legal system, it is claimed to be too 'complicated', mainly because there are just too many laws set in place, most of which are dismissed, meaning the Italian public and even Italian lawyers find it difficult to decipher which laws the judges are likely to use, making their cases harder to predict. 

If a cases' outcome is unpredictable, this could mean solicitors advising clients not to begin the lengthy and costly litigation process in the first place, resulting in the possible reduction of work for lawyers, and an in balance in the justice system. I am not suggesting that this is the case in the Italian legal system, but merely stating potential calamities which would occur (in any legal system) without a secure principal of precedent.

Moving on from Italy, let's look at another European Legal system, different to England. France. Unlike England, France follows a system founded on 'Written law', not Case law. Although the hierarchy of the French judiciary coincides and is similar to that in England, judges in France play a more active role in the procedural and investigatory process of trials. There are clear benefits to the French legal system (Following written law also promotes comprehension in the outcome of cases like England, and would therefore have a likewise effect) and the book 'Civil law and the Anglo - American lawyer: A case illustrated introduction to civil law institutions and method' by 
Henry P. De VriesGeorge A. SchneiderRen√© David States that 'French courts (are) bound by the written law....'

Even though the French legal system refer religiously to written law, surely this must mean that cases would take longer to proceed with because of the numerous laws in relation to the case that they must look into? Also, how can judges in France be certain that their interpretation of these laws they apply in cases are the intended interpretation?

For years now, David Cameron (British PM) has made it known that he wants to abolish the Human Rights act and replace it with an Act which would have no ties to Europe. In a bid to end the Act, Theresa May (Home secretary) falsely claimed at last week's Conservative Party Conference that an illegal immigrant was permitted to stay in this country because 'and I am not making this up' - he owned a cat. She was later proved that this was falsely given information, and it can be argued that Britain has far too many benefits and ties with being involved with Europe, and that taking away our courts being bound to the ECJ and one of their legislations, detaching ourselves could mean cutting ourselves off financially too, at a time when we (beggars) cannot be the choosers. 

However, even though there are benefits to our being bound by their legislative statutes, a lot of cases (as Theresa May attempted to state) in Britain, end up with absurd outcomes, because of this restriction of courts having to be bound by the ECJ. There are a couple of examples Mrs May told party members: “We all know the stories about the Human Rights Act: the violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here; the robber who cannot be removed because he has a girlfriend.” 

Bearing such absurd cases in mind, do we think of how 'linking arms' to the rest of Europe can benefit us, or how cutting ourselves off could lead to better outcomes in cases and legal matters, bringing ultimate order to our country as a whole. One final question, when taking into consideration the definite ambiguity and variety in European legal systems, is it wise or helpful, for this country to remain entangled with the European legal system, being bound to the ECJ and the Human Rights Act 1998?

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