How to Law
How to Law
Understanding a newsworthy legal case can be a difficult task, especially now with partisan and superficial reporting plaguing public understanding of law. In this article, I take a break from my normal style of writing and try to offer a practical guide as to how you can go about getting to the bottom of what is happening in a case. My objective here is to help people gain the confidence and resources to look at cases, judgments and reports. The rule of law is the bedrock of a rational, functioning, and healthy society; appreciating what is happening is a matter of vital public interest. I write about the law because it’s what I know but more importantly, it’s an intellectual discipline which, in my view, has a great deal to offer the present moment.
What the law can offer
Where the debates of the present moment are blurred with equivocation and euphemism, the law permits only rigour and precision in language. Where modern discourse is often triumphant and in the manner of a campaign, the law is paced, sequential in reasoning, dispassionate on emotive matters and compassionate when looking after the weak (such as children). The law cannot be drawn into the post-modern miasma of subjective truth because the law is a public performance of arriving at justice, it is applied morality with a single objective outcome. These are virtues which not only make the law reading for its own sake, they are, (at least for me) a tonic for the turbulence and intemperance of modern debate.
I’ve divided this article into sections as logically as I’m able, so if you already have some grounding in this area you can skip ahead to the resources you need, otherwise sit back, relax and let me take you on a very quick tour of how law works in the UK and how you can understand judgments in the news.
The Basics
The UK system is known as a common law system which for our purposes means a system where Judges are bound by the decisions of superior courts. In the UK the Supreme Court is the highest court in the land and considers only important cases of public importance. Below that is the Court of Appeal which splits into a criminal division which deals with sentences and convictions and a civil division which deals with everything else. Below this are the circuit courts (the Crown and County Courts) and the High Court. The High Court has three “divisions” that deal with different sorts of cases, family (which speaks for itself), chancery (which is basically extremely technical property law) and then a jack-of-all-trades division for everything else called the Queen’s Bench Division. For completeness, the Magistrates court sits below the Crown and County Courts and deals with “summary” less serious cases.
To see that structure in action, let’s take an important recent case as an example, Kiera Bell v Tavistock (the puberty blockers case which I’ve written about here). In Bell, the case was heard in the High Court “at first instance” which simply means the first hearing of the case was before a panel of Judges in the High Court. We know from the paragraph above that this is the lowest of the three stages and the case is due to be heard by the Court of Appeal (Civil Division) in June 2021. One of the parties will lose that case and will likely wish to appeal, so if the Supreme Court decides the case is one of “public importance” it will have the final say on the matter. Analysed in this way, we can say that the case has completed one of the possible three stages potentially available, it’s completed the High Court stage (stage 1) but will go to the Court of Appeal (stage 2) and then perhaps to the supreme court (stage 3). The judgment in Bell, like most important High Court cases, is available in two places, a free legal search engine called Bailii by entering “Tavistock” in the search bar then ordering the results by date and on the UK judiciary website in the section called “judgments”. Some judgments of the High Court, (but by no means all), feature a short summary separate to the Judgment which can be a helpful way of getting into the case – Bell is such a case. Cases in the Supreme Court will always have a press summary because the court is dealing with matters of public importance, and example of one is here in the famous Brexit case of Miller v The Prime Minister.
How to approach a new judgment
Let’s imagine an important case has caught your eye and you want to understand it, how should you go about that as efficiently as you can without putting in law student hours? In the first place, the vast majority of UK broadsheet reporting is generally reliable so there’s nothing wrong in principle with going that deep into the subject. Be extremely cautious of non-broadsheet analysis, issues which attract campaigning minds in the UK often present judgments from a particular point of view and omit inconvenient facts or principles. Limit the voices on social media you trust to convey accurate information about complex judgments, for every one secret barrister (who is excellent) there are a hundred accounts who do not understand the judgment or are not minded to present it in a partial fashion. As a general rule, important judgments are often 50-100 pages long, so work on the basis that in general the shorter the article, the less complete the piece is.
Let’s imagine you want to go one step further and see what happened in court. As you know from the previous section you can find most judgments online, but you can find more than that too. If we take a criminal case for example, we can also find sentencing remarks at the judiciary website (example in a murder case here). If we wanted to understand the offence of murder the CPS have excellent legal guidance here, and if we saw something in the remarks we didn’t understand, say the legal definition of self-defence, then we can find that in a book called the compendium here (Self defence is at 18-1). If we want to look at an Act of Parliament all legislation is available and searchable here. Finally, for sentences, almost all offences are now subject to guidelines which are available here.
Reading a judgment
Judgments for non-lawyers can appear daunting and even for legal professionals some cases are extremely complex legally or have long procedural histories that can be difficult to follow. That said, these days most Judges do write in a style intended to help public understanding so many judgments are much less complex than they might first seem.
Any judgment will generally contain the following sections:
(1) An introduction setting out who everyone is and why they’re in court
(2) A summary of what’s happened procedurally up to this point such as a record of what happened at a previous hearing
(3) The relevant test in law the court has to apply or question it has to determine
(4) A summary of the law in the area which involves looking at the relevant cases and Acts of Parliament
(5) A record of what each party said about each issue at the hearing
(6) A discussion section where the Judge will come down on one side or the other on each issue
(7) A final judgment section applying the discussion (and rulings) to the facts of the case
Approaching a judgment in this way, you can probably see that a lay person can get a sense of what is going on by reading only the relevant sections of the judgment if they so choose. At a bare minimum, you can get a picture of a case by knowing what test the Judge applied (3 above), what the Judge makes of the test as applied to the arguments (6 above) and then how it affected the partis in the case (7 above). Being legally trained, I would of course advise you read the whole judgment because what people say in court is often highly important, but as I hope is emerging from the above, you don’t have to.
Conclusion
Law can be complex and difficult. The conceptual rigour and precision of language are alien forces in modern debate and some judgments are certainly not for the faint hearted. That said, many judgments are clear, comprehensible and worth reading. I encourage reading one or two as strongly as I possibly can, some judgments are great works of writing in and of themselves, some communicate great compassion and care often lost in modern debates.
We all pay for the law and the law in the UK has an almost religious devotion to sitting and giving judgments in public. If you are reading this from within the UK, these are your courts and your judgments and they are some of the finest on the planet, don’t feel intimidated by them if you can manage it. The reward is reading the most practical morality there is, the doing of justice in public which in my view is always worth a read.
