# 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:** 2
**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, 3:31pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/21 "2009-10-15T15:31:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. [QUOTE=Really Not All That Bright] 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. [/QUOTE] Its known as “comity” and has a lot of scope in international law. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [October 15, 2009, 3:35pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/22 "2009-10-15T15:35:36Z")
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. ---
**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, 3:45pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/23 "2009-10-15T15:45:28Z")
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. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [October 15, 2009, 3:46pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/24 "2009-10-15T15:46:48Z")
> [@AK84](#): > > 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)_. ---
**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, 3:49pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/25 "2009-10-15T15:49:54Z")
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. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [October 15, 2009, 4:09pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/26 "2009-10-15T16:09:03Z")
> [@Nametag](#): > > 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? ---
**Author:** ![Candyman74](https://avatars.discourse-cdn.com/v4/letter/c/ad7895/32.png) [@Candyman74](https://boards.straightdope.com/u/Candyman74)\ **Post date:** [October 15, 2009, 4:20pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/27 "2009-10-15T16:20:29Z")
> [@Northern\_Piper](#): > > 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”. ---
**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, 4:31pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/28 "2009-10-15T16:31:57Z")
> [@Hello\_Again](#): > > 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. ---
**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, 4:36pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/29 "2009-10-15T16:36:32Z")
> [@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. 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. ---
**Author:** ![bordelond](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bordelond/32/150_2.png) [@bordelond](https://boards.straightdope.com/u/bordelond)\ **Post date:** [October 15, 2009, 4:39pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/30 "2009-10-15T16:39:47Z")
> [@Wendell\_Wagner](#): > > One of the other major legal systems in the world is the civil law (Roman law) system: > > [Civil law (legal system) - Wikipedia](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)? ---
**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, 4:46pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/31 "2009-10-15T16:46:03Z")
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. ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/32 "2009-10-15T17:35:38Z")
> [@Candyman74](#): > > 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! ---
**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, 5:37pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/33 "2009-10-15T17:37:18Z")
Scotsmen, of course, being content to settle things over a round of golf. What system does Northern Ireland use? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 15, 2009, 5:49pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/34 "2009-10-15T17:49:14Z")
> [@AK84](#): > > Phrase used in England and Wales! Scotland and Northern Ireland also use the term “reasonable suspicion”. ---
**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, 5:50pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/35 "2009-10-15T17:50:19Z")
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. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [October 15, 2009, 6:13pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/36 "2009-10-15T18:13:57Z")
> [@Mk\_VII](#): > > …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. ---
**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, 6:25pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/37 "2009-10-15T18:25:44Z")
[QUOTE=bordelond] 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)? [/QUOTE] > [@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. 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). ---
**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, 7:06pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/38 "2009-10-15T19:06:03Z")
> [@alphaboi867](#): > > 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. ---
**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 16, 2009, 12:38am UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/39 "2009-10-16T00:38:26Z")
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? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [November 15, 2009, 6:41pm UTC](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840/40 "2009-11-15T18:41:14Z")
> [@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? 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. [Previous page](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840.md?page=1) [Next page](https://boards.straightdope.com/t/american-legal-terms-in-british-legal-system/513840.md?page=3)