# American Legal Terms in British Legal System... **URL:** \ **Category:** Factual Questions\ **Created:** [October 14, 2009, 9:50pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840 "2009-10-14T21:50:52Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [October 14, 2009, 9:50pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/1 "2009-10-14T21:50:52Z")
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:) ---
**Author:** ![Candyman74](https://avatars.discourse-cdn.com/v4/letter/c/ad7895/32.png) [@Candyman74](https://boards.straightdope.com/u/Candyman74)\ **Post date:** [October 14, 2009, 10:06pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/2 "2009-10-14T22:06:34Z")
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. ---
**Author:** ![Capt.Ridley\_s\_Shooting\_Party](https://avatars.discourse-cdn.com/v4/letter/c/cc9497/32.png) [@Capt.Ridley\_s\_Shooting\_Party](https://boards.straightdope.com/u/Capt.Ridley_s_Shooting_Party)\ **Post date:** [October 14, 2009, 10:46pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/3 "2009-10-14T22:46:17Z")
“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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 15, 2009, 1:08am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/4 "2009-10-15T01:08:47Z")
> [@Candyman74](#): > > 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): [QUOTE=28 Edw. III, c. 3] “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.” [/QUOTE] ---
**Author:** ![Tapioca\_Dextrin](https://avatars.discourse-cdn.com/v4/letter/t/3d9bf3/32.png) [@Tapioca\_Dextrin](https://boards.straightdope.com/u/Tapioca_Dextrin)\ **Post date:** [October 15, 2009, 1:23am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/5 "2009-10-15T01:23:25Z")
Another common concept is [Common Law](http://en.wikipedia.org/wiki/Common_law). ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 15, 2009, 5:34am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/6 "2009-10-15T05:34:13Z")
**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. ---
**Author:** ![Horatio\_Hellpop](https://avatars.discourse-cdn.com/v4/letter/h/e5b9ba/32.png) [@Horatio\_Hellpop](https://boards.straightdope.com/u/Horatio_Hellpop)\ **Post date:** [October 15, 2009, 6:04am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/7 "2009-10-15T06:04:58Z")
Do UK cops have to Mirandize suspects? If so, what’s their term for it? ---
**Author:** ![Rayne\_Man](https://avatars.discourse-cdn.com/v4/letter/r/df705f/32.png) [@Rayne\_Man](https://boards.straightdope.com/u/Rayne_Man)\ **Post date:** [October 15, 2009, 6:23am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/8 "2009-10-15T06:23:08Z")
> [@Krokodil](#): > > 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 \* ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [October 15, 2009, 8:03am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/9 "2009-10-15T08:03:40Z")
> [@Krokodil](#): > > 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. ---
**Author:** ![Wendell\_Wagner](https://avatars.discourse-cdn.com/v4/letter/w/8491ac/32.png) [@Wendell\_Wagner](https://boards.straightdope.com/u/Wendell_Wagner)\ **Post date:** [October 15, 2009, 8:28am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/10 "2009-10-15T08:28:09Z")
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: > **[Civil law (legal system)](https://en.wikipedia.org/wiki/Civil_law_(legal_system))** > > Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the law in common law systems historically came from uncodified case l... ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 15, 2009, 9:46am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/11 "2009-10-15T09:46:57Z")
“Probable Cause”, is known as reasonable suspicion in England and Wales. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 15, 2009, 10:01am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/12 "2009-10-15T10:01:39Z")
[QUOTE=Candyman74] Certainly “probably _[six_ cause” and “due process” are disintinctly American terms to my knowledge, spread far and wide by US TV. [/QUOTE] 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… ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [October 15, 2009, 12:07pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/13 "2009-10-15T12:07:32Z")
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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 15, 2009, 1:22pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/14 "2009-10-15T13:22:11Z")
> [@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. 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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 15, 2009, 2:02pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/15 "2009-10-15T14:02:53Z")
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. ---
**Author:** ![Waffle\_Decider](https://avatars.discourse-cdn.com/v4/letter/w/77aa72/32.png) [@Waffle\_Decider](https://boards.straightdope.com/u/Waffle_Decider)\ **Post date:** [October 15, 2009, 2:05pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/16 "2009-10-15T14:05:54Z")
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? ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [October 15, 2009, 3:00pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/17 "2009-10-15T15:00:27Z")
> [@AK84](#): > > “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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 15, 2009, 3:16pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/18 "2009-10-15T15:16:41Z")
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. > [@Max\_Torque](#): > > “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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 15, 2009, 3:20pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/19 "2009-10-15T15:20:29Z")
> [@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? 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 15, 2009, 3:22pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/20 "2009-10-15T15:22:23Z")
> [@Max\_Torque](#): > > 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. [Next page](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840.md?page=2)