American Legal Terms in British Legal System...

[Jim B.]

I know they often refer to the American legal system as the "Anglo-American" system. After all, we started out as one of their colonies. And we have apparently retained many of their legal traditions, like trial by jury. But how many specific ideas do we share, and what American terms would be foreign in British law?

Let me be more specific. I know habeas corpus and trial by jury are found both in U.S. and British legal systems. I also read the British Bill of Rights quite some time back. But I clearly recall reading the phrase "cruel and unusual punishment" in it. So if I have to be more specific in what I am looking for, let me throw out several well-established American legal terms: probable cause, due process and freedom of speech. If you brought up any one of these 3 terms in a British court of law, for example, would they have any idea what you were talking about?

I'm sure there are more terms. Feel free to bring them up if you reply to this thread.

And as always, thank you very much to all who reply:)

[Candyman74]

The concepts exist, of course. But the terminology isn't necessarily the same. Certainly "probably cause" and "due process" are disintinctly American terms to my knowledge, spread far and wide by US TV.

I'm not enough of a legalist to know what the British equivalent terms are, though.

[Capt. Ridley's Shooting Party]

"Freedom of speech" originated in British law centuries ago. The Bill of Rights guarantees the right to freedom of speech in Parliament, at least. AFAIA, the British terminological equivalent of "probable cause" is "reasonable grounds", at least when it comes to stop-and-search.

[Northern Piper]

Certainly "probably cause" and "due process" are disintinctly American terms to my knowledge, spread far and wide by US TV.

Actually, "due process" is an English concept which the Americans inherited. The phrase first appears in a statute of King Edward III's time (1354): "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

[Tapioca Dextrin]

Another common concept is Common Law (http://en.wikipedia.org/wiki/Common_law).

[AK84]

**Sigh** Not British Legal system, the law of England and Wales. Most things that you find in the US you will find in England and Wales, hell you will find them in Australia, New Zealand, even Malaysia and Pakistan.

The reason being, they are all common law countries.

[Krokodil]

Do UK cops have to Mirandize suspects? If so, what's their term for it?

[Rayne Man]

Do UK cops have to Mirandize suspects? If so, what's their term for it?

The arrested person is told this:-

You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence

[UDS]

Do UK cops have to Mirandize suspects? If so, what's their term for it?
What Rayne Man said. As for the term, it's colloqially called "cautioning" (as in, "I cautioned the suspect that anything he said could be given in evidence"). The term is ambiguous, though, since "caution" has other meanings in the context of criminal justice.

[Wendell Wagner]

As has been pointed out before, it's sloppy to refer to this legal system as the Anglo-American system. That's picking out two countries arbitrarily. It's properly referred to as the common law system. It holds in England, Wales, Northern Ireland, Ireland, the United States, Canada, Australia, New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Ghana, Cameroon, and Hong Kong. There's a couple of exceptions within those countries and there are a few other countries which also use common law or a mixture of common law and other systems, but that's approximately the extent of it. One of the other major legal systems in the world is the civil law (Roman law) system:

http://en.wikipedia.org/wiki/Civil_law_(legal_system)

[AK84]

"Probable Cause", is known as reasonable suspicion in England and Wales.

[Northern Piper]

Certainly "probably [six cause" and "due process" are disintinctly American terms to my knowledge, spread far and wide by US TV.

Nor is probable cause a distinctly Americian term. The concept that state officials must have probable cause to arrest a person dates back at least as far as Coke, writing in the early 17th century. Blackstone, writing in the mid-18th century, also confirms that probable cause is needed to arrest. For example, in speaking of a justice issuing an arrest warrant, he states (at 4 Blackstone ch. 21 (http://avalon.law.yale.edu/18th_century/blackstone_bk4ch21.asp)):

1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted; and 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant ; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party, against whom the warrant is prayed. This warrant ought to be under the hand and seal of the justice, should set forth the time and place of making, and the cause for which it is made, ...

Similarly, probable cause or suspicion was also needed for arrests without warrant:

The constable, of whose office we formerly spoke, hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, and carry him before a justice of the peace. And, in case of felony actually committed, or a dangerous wounding whereby felony is like to ensue, he may upon probable suspicion arrest the felon...

[Mk VII]

In general, we've moved on, while you still stuck in an 18th c. constitutional settlement that is hard to change. Grand juries, for example, have long since been abandoned here, as have 'felony' and 'misdemeanor' . 'Double jeopardy' is now lawful and the courts have ruled [Brown v.Stott] that the right to silence is not absolute and needed to be balanced against the public interest in preventing drunken driving. 'Attorney' has fallen out of use, except for the Attorney-General, of which there is only one. Many of the practices of English jurisprudence today would probably be ruled unconstitutional.

[AK84]

In general, we've moved on, while you still stuck in an 18th c. constitutional settlement that is hard to change. Grand juries, for example, have long since been abandoned here, as have 'felony' and 'misdemeanor' . 'Double jeopardy' is now lawful and the courts have ruled [Brown v.Stott] that the right to silence is not absolute and needed to be balanced against the public interest in preventing drunken driving. 'Attorney' has fallen out of use, except for the Attorney-General, of which there is only one. Many of the practices of English jurisprudence today would probably be ruled unconstitutional.


Attorney fell out of use when the distinction between Barristers and Solicitors was formalised in 1825 with the founding of the Law Society. As for the Right to Silence it has not been abandoned, only qualified by secs 34-36 of the Criminal Justice and Public Order Act 1994, the defendant is still entitled not to answer. However a question put to him under caution that he or she could be reasonably expected to have answer or a if he or she does not mention a fact under questioning after caution which he or she later relies upon in their defence and does not have a reasonable explanation for why it was not brought up before, the judge may invite the jury to draw inference that seem fit in the circumstances. These could be that the new alibi is an invention for instance.

Double Jeopardy still exists, a new trial will be denied unless premission is seeked from the Court of Appeal and there are overwhelming evidence that the original aquittal was perverse.

Still I find the changes to be abhorrant. And its even worse that they came under a PM (well not for the CJPOA 1994) who is a member of my Inn. He should be called before the Benchers.

[Elendil's Heir]

English judges have the authority to sum up a criminal case for the jury at the close of the trial, and may say things that strongly indicate the judge's personal view as to the guilt or innocence of the defendant, including drawing the jury's attention to the defendant's failure to testify. American judges can't do that.

[Waffle Decider]

The normal advice given to people in the US is that if you have been arrested by the police, you should not say anything (other than basic questions about your identity) until you have talked to your lawyer. However, it sounds like under the English system, what you don't say can also hurt you. So, would it still be a good idea to maintain silence under that system?

[Max Torque]

"Probable Cause", is known as reasonable suspicion in England and Wales.

Both terms exist in America, and they're distinct legal ideas.

"Reasonable suspicion" is the amount of evidence required for a police officer to temporarily detain someone and investigate further. To put it another way, in order to stop you on the street, an officer must suspect that some criminal activity has just occurred or is about to occur, and that suspicion must be reasonable (based on reason, not arbitrary).

"Probable cause" is the amount of evidence required for a police officer to arrest you. At this stage, the officer must reasonably believe, based on the evidence before him, that you committed a crime.

It's splitting hairs, but defense attorneys talk about it all the time, as they explain the levels of proof all the way up to "beyond a reasonable doubt." Others along the way include: by a preponderance of the evidence, clear and convincing evidence.

[Really Not All That Bright]

There really aren't many uniquely American legal terms at all. Even most of the constitutional guarantees use wording which stems from (generally English) documents like Magna Carta, or from Locke and other English writers.

Double jeopardy is an American term, as far as I know, but the idea is simply a restatement of the common law principle of autrefois acquit/convict.

Full faith and credit in a legal rather than financial setting is a distinctly American legalism, although the concept of reciprocity between governments was of course not a new one.
"Probable cause" is the amount of evidence required for a police officer to arrest you. At this stage, the officer must reasonably believe, based on the evidence before him, that you committed a crime.
If probable cause is the belief that you have committed a crime, why is it always cited as the standard for a search of one's person or vehicle? I highly doubt that police officers believe, rather than suspect, that the suspect has committed a crime in more than a fraction of, say, vehicle searches.

[Really Not All That Bright]

The normal advice given to people in the US is that if you have been arrested by the police, you should not say anything (other than basic questions about your identity) until you have talked to your lawyer. However, it sounds like under the English system, what you don't say can also hurt you. So, would it still be a good idea to maintain silence under that system?
AFAIK, what you say at trial would be entirely separate from what you say outside trial. You don't have the right to avoid incriminating yourself under English law, but you cannot be compelled to do so except by the court.

[AK84]

Both terms exist in America, and they're distinct legal ideas.

"Reasonable suspicion" is the amount of evidence required for a police officer to temporarily detain someone and investigate further. To put it another way, in order to stop you on the street, an officer must suspect that some criminal activity has just occurred or is about to occur, and that suspicion must be reasonable (based on reason, not arbitrary).

"Probable cause" is the amount of evidence required for a police officer to arrest you. At this stage, the officer must reasonably believe, based on the evidence before him, that you committed a crime.

It's splitting hairs, but defense attorneys talk about it all the time, as they explain the levels of proof all the way up to "beyond a reasonable doubt." Others along the way include: by a preponderance of the evidence, clear and convincing evidence.

Chiefly because Police have a lot more power to detain people sans a warrant in the US. The police in England and Wales cannot "temporarily detain" you. The only power is to arrest or to stop and search where there is reasonable suspicion that a prohibited or stolen article shall be found on the person.

[AK84]

AFAIK, what you say at trial would be entirely separate from what you say outside trial. You don't have the right to avoid incriminating yourself under English law, but you cannot be compelled to do so except by the court.

You seem to be mixing up two related but distinct ideas. One, self incriumination, in England and Wales, you don't have to answer a question where to do so would expose you to criminal proceedings. That has not been abolished.

The second is answering questions, the so called right of silence. The right of silence has not been abolished, a person does not have to answer questions put to him/her during questioning. But what the CJPOA 1994 has changed is that the court may invite the jury to draw inference from the failure to do so.

Full faith and credit in a legal rather than financial setting is a distinctly American legalism, although the concept of reciprocity between governments was of course not a new one.
Its known as "comity" and has a lot of scope in international law.

[Nametag]

It's misleading to say that "common law system" means the same thing as "Anglo-American system." A common law system is any system in which common law (that is, law created in court), rather than statutory law, operates. For example, every law student learns the common-law definitions of certain crimes, and these definitions are used for discussions in class, exam questions, etc. Most jurisdictions have enacted criminal codes that replace these definitions, but before these codes were enacted, the common law was the only source for definitions of murder, burglary, and such. Furthermore, where statutes do not cover a given area of law, the common law remains in effect.

But it's entirely possible for common law to operate in a legal system that is otherwise completely different from, say, England's. Imagine a system in which common-law definitions are used, but rulings on evidence and procedure carry no precedent; or in which precedent operates the same way, but there is no adversarial aspect -- the judge might conduct all questioning, for instance.

English (and Welsh, I guess) courts have many rules and procedures which differ from those in the United States, and I expect that Commonwealth courts have diverged similarly. Nonetheless, at one time the same common law prevailed in both England and America, and I think that "Anglo-American system" is as useful a shorthand for recognizing this as "America" is for "The United States of America." Both are inaccurate when examined rigorously, but everyone still knows what they mean.

[AK84]

The hallmarks of common law is the doctrine of precedent and the adversarial system. What is described above would never be that. Common Law is a more accurate term than Anglo-American law, although saying American law is also accurate.

[Kimmy_Gibbler]

Chiefly because Police have a lot more power to detain people sans a warrant in the US. The police in England and Wales cannot "temporarily detain" you. The only power is to arrest or to stop and search where there is reasonable suspicion that a prohibited or stolen article shall be found on the person.

That's what we have. Briefly:

Reasonable suspicion --> Terry stop (and frisk, limited to the detection of weapons on the person only). A Connecticut Office of Legislative Research report on this class of search and seizure is available here (http://www.cga.ct.gov/2007/rpt/2007-R-0036.htm).

Probable cause --> Needed to swear out a warrant or avail oneself of the warrant exceptions (plain view, automobile, etc.).

No degree of suspicion required --> Investigative (but not general crime control) roadblocks. See Illinois v. Lidster (http://en.wikipedia.org/wiki/Illinois_v._Lidster).

[Mk VII]

It could do you some harm to remain silent in some circumstances. But in most conceivable cases, the advantage of waiting for your lawyer is still overwhelming.

English courts don't have much sympathy for the 'fruit of the poison tree' argument and will not generally exclude evidence that has been improperly obtained, providing it is relevant and cogent.

The difference between a 'serious arrestable offence' (one which, broadly, attracted a sentence of five years or more) and a 'non-arrestable offence' which required the constable to apply for a warrant, has recently been abolished precisely because the police complained that too many arrests were subsequently ruled unlawful.

Lord Justice Auld's recent (2001) review of the criminal courts recommended that the judge should have the power to require the jury to 'state a case' which would form a basis for an appeal from an aquittal. No action, however, has so far been taken on this. Appeals from an aquittal in the magistrates' court are already possible - I don't know if US jurisprudence permits an equivalent.

[Hello Again]

Most jurisdictions have enacted criminal codes that replace these definitions, but before these codes were enacted, the common law was the only source for definitions of murder, burglary, and such. Furthermore, where statutes do not cover a given area of law, the common law remains in effect.
In the US it is a due process requirement that a crime be specified in advance by statute. That's first day of law school material in the US (everyone say it now "voluntary conduct specified in advance by statute"). Otherwise the punishment is considered ex post facto, which is forbidden by the US Constitution, Article I, Section 9. If the law requires interpretation in any significant way, such that the police on the street could not be sure if a crime is being committed under the law, it is void for unconstitutional vagueness.

So you might say, "the common law definition of Burglary required that it happen at night, but today it can occur at any time in most jurisdictions." the term "common law crime" is just a shorthand for the "traditional definition" of that crime and is usually compared with Model Penal Code definitions or other prevalent modern definitions.

Are there still common law crimes in the UK?

[Candyman74]

Nor is probable cause a distinctly Americian term. The concept that state officials must have probable cause to arrest a person dates back at least as far as Coke, writing in the early 17th century. Blackstone, writing in the mid-18th century, also confirms that probable cause is needed to arrest. For example, in speaking of a justice issuing an arrest warrant, he states (at 4 Blackstone ch. 21 (http://avalon.law.yale.edu/18th_century/blackstone_bk4ch21.asp)):

The fact that someone once said it doesn't make it typical British parlance. "Forsooth" isn't typically used in the UK, either. The phrase isn't used in the UK, but it is used in the US. As someone pointe dout, the phrase used in the UK is "reasonable suspicion".

[AK84]

I.

Are there still common law crimes in the UK?

Very few, the vast majority of crimes are stautory. Even so many of the older crimes, such as murder and theft, statute merely restates the common law in many cases.

[AK84]

It could do you some harm to remain silent in some circumstances. But in most conceivable cases, the advantage of waiting for your lawyer is still overwhelming.

English courts don't have much sympathy for the 'fruit of the poison tree' argument and will not generally exclude evidence that has been improperly obtained, providing it is relevant and cogent.

The difference between a 'serious arrestable offence' (one which, broadly, attracted a sentence of five years or more) and a 'non-arrestable offence' which required the constable to apply for a warrant, has recently been abolished precisely because the police complained that too many arrests were subsequently ruled unlawful.

Lord Justice Auld's recent (2001) review of the criminal courts recommended that the judge should have the power to require the jury to 'state a case' which would form a basis for an appeal from an aquittal. No action, however, has so far been taken on this. Appeals from an aquittal in the magistrates' court are already possible - I don't know if US jurisprudence permits an equivalent.

Asking for a solicitor is a right in England and Wales and can only be denied if an officer above the rank of superintendent is satisfied that allowing a solicitor to come would tip off accomplices and then only for 36 hours. Questioning done in the abcence of a solictor can and is often not allowed. Improperly obtained evidence can at common law (preserved by Section 82 PACE) be excluded if its prejudicial effect outweights its probative value. All evidence can be excluded if it has an adverse affect on the fairness of the trial.

[bordelond]

One of the other major legal systems in the world is the civil law (Roman law) system:

http://en.wikipedia.org/wiki/Civil_law_(legal_system)
Slight hijack:

Is the Napoleonic Code an outgrowth of Civil Law, or was the NC more or less invented out of whole cloth (well, as much as you can "invent" something like this)?

[Really Not All That Bright]

The Napoleonic Code was the codified body of law around which the French version of the civil system operated (and operates today).

Most of it was based on the existing body of French statutory law and Roman law, and the principles were basically the same ones observed by Justinian. Northern Piper can probably explain it much more clearly.

[AK84]

The fact that someone once said it doesn't make it typical British parlance. "Forsooth" isn't typically used in the UK, either. The phrase isn't used in the UK, but it is used in the US. As someone pointe dout, the phrase used in the UK is "reasonable suspicion".
Phrase used in England and Wales!

[Really Not All That Bright]

Scotsmen, of course, being content to settle things over a round of golf. What system does Northern Ireland use?

[Captain Amazing]

Phrase used in England and Wales!

Scotland and Northern Ireland also use the term "reasonable suspicion".

[AK84]

Common law, but its a seperate jurisdiction. Northern Irish Barristers haowever find it easy to transfer; one of my Bar School tutor was from Belfast.

[alphaboi867]

...Appeals from an aquittal in the magistrates' court are already possible - I don't know if US jurisprudence permits an equivalent.

IANAL, but I think the only times the prosecution is allowed to appeal an aquittal are; if the jury votes guilty, but the judge overules them and enters a not guilty verdict (the reverse is impossible) or if they can prove the defendant (or someone on his behalf) engaged in jury tampering (ie bribing or threatening jurors). Other than that it doesn't matter what evidence the authorities uncover (or if the former defendant goes on national TV and confesses) the not guilty verdict stands and no retrial is possible. My understanding is that in England & Wales it's possible for the Court of Appeal (or House of Lords?) to authorize a new trial if very convincing evidence turns up after an aquittal.

[Northern Piper]

Slight hijack:

Is the Napoleonic Code an outgrowth of Civil Law, or was the NC more or less invented out of whole cloth (well, as much as you can "invent" something like this)?

The Napoleonic Code was the codified body of law around which the French version of the civil system operated (and operates today).

Most of it was based on the existing body of French statutory law and Roman law, and the principles were basically the same ones observed by Justinian. Northern Piper can probably explain it much more clearly.

Why, thank you! Here's the thread that I think Really Not All That Bright is referring to: Diff between common and civil law (http://boards.straightdope.com/sdmb/showthread.php?t=453352).

[AK84]

IANAL, but I think the only times the prosecution is allowed to appeal an aquittal are; if the jury votes guilty, but the judge overules them and enters a not guilty verdict (the reverse is impossible) or if they can prove the defendant (or someone on his behalf) engaged in jury tampering (ie bribing or threatening jurors). Other than that it doesn't matter what evidence the authorities uncover (or if the former defendant goes on national TV and confesses) the not guilty verdict stands and no retrial is possible. My understanding is that in England & Wales it's possible for the Court of Appeal (or House of Lords?) to authorize a new trial if very convincing evidence turns up after an aquittal.
Under common law a new trial cannot be authorised while a conviction or aquittal stands. Which is why when a conviction was quashed it was and is possible to order a new trail. Since 2005 if the Director of Public Prosecutions manages to convince the Court of Appeal that there is overwhelming evidence that the aquittal was preverse, the court of appeal may quash the aquittal and order a retrial.

[Wendell Wagner]

There's an episode of Law and Order called "Jeopardy" in which a case is dismissed before the jury is allowed to deliberate because the judge decides that there isn't even enough evidence that the jury should decide on it, so he declares the defendant not guilty. Later it's discovered that the judge was making decisions in favor of the defense all through the trial because he's been bribed. Jack McCoy asks a higher court to order a new trial, claiming that it wouldn't be double jeopardy because the defendant was never in jeopardy in the first trial since it was fixed. The higher court agrees and orders a new trial. Adam Schiff, McCoy's boss, is amazed because McCoy has managed to get around double jeopardy. Is this realistic?

[AK84]

There's an episode of Law and Order called "Jeopardy" in which a case is dismissed before the jury is allowed to deliberate because the judge decides that there isn't even enough evidence that the jury should decide on it, so he declares the defendant not guilty. Later it's discovered that the judge was making decisions in favor of the defense all through the trial because he's been bribed. Jack McCoy asks a higher court to order a new trial, claiming that it wouldn't be double jeopardy because the defendant was never in jeopardy in the first trial since it was fixed. The higher court agrees and orders a new trial. Adam Schiff, McCoy's boss, is amazed because McCoy has managed to get around double jeopardy. Is this realistic?

My training is in English law, but I would imagine in such as case there would be no need to make such an arguement, the appellate court would simply rule that the trial was void and order a new one.

Double Jeopardy means simply that you can't be tried on the same offence while an aquittal or a conviction stands, to do so, the conviction or aquittal has to be quashed first.

Historically courts have not quashed aquittals for the most part.

[shefDave]

Very few, the vast majority of crimes are stautory. Even so many of the older crimes, such as murder and theft, statute merely restates the common law in many cases.
Murder is still a common law crime in England & Wales.

[Elendil's Heir]

There's an episode of Law and Order ...Adam Schiff, McCoy's boss, is amazed because McCoy has managed to get around double jeopardy. Is this realistic?

Yes, it can be. Meet Harry Aleman: http://en.wikipedia.org/wiki/Harry_Aleman

[The Stafford Cripps]

The arrested person is told this:-

You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence


Scotland still uses the old caution, missing out the bit between 'but' and 'court'.

[The Stafford Cripps]

The normal advice given to people in the US is that if you have been arrested by the police, you should not say anything (other than basic questions about your identity) until you have talked to your lawyer.

In Scotland you may not get the chance to speak to your lawyer. You are very unlikely to be allowed to have one sit in on your interview - it's not a protected right. But in Scotland 'arrest' means something different - once you've been arrested the police have to charge you and can't interview you any further. Up til that point you will have been 'detained'.

[The Stafford Cripps]

Very few, the vast majority of crimes are stautory. Even so many of the older crimes, such as murder and theft, statute merely restates the common law in many cases.

AFAIK murder, rape, assault, theft, robbery, Breach of the Peace and various others are all common law in Scotland.

[matt_mcl]

There are many terms that are very different between the US and Canada too, to the confusion of those Canadians whose understanding of the law comes from TV shows.

For example, we do not have a crime called "rape." The crime in Canada is sexual assault, whose definitions in aggregate are broader than the US definition of rape, if I understand correctly. We also do not call it "statutory rape" but sexual interference.

[AK84]

Murder is still a common law crime in England & Wales.
You are right, my bad. Cokes defination is still the one used.