US/UK law... a comparison

Discussion in 'The Study' started by thardey, Jun 24, 2009.

  1. thardey

    thardey Master Black Belt

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    This has come up before, and I think it's the biggest fundamental difference in what we are talking about. It was a source of big debate when the constitution was ratified.

    Do we have to write down the limits of the government to define our "rights" or in writing them down, are we causing more problems?

    Thus the "Bill of Rights" was argued over a lot. Ultimately it was decided that we couldn't trust our government not to limit itself, so limits must be placed on it.
    - One side effect of that decision was that the government was essentially given permission to work right up to the boundaries defined by our rights, which really resulted in an "us vs. them" feeling. (The seeds of which already existed). This means that our laws need to be written down, because the people of the US don't trust our Judges, or our police to "be creative" and fair. Especially when there are so many minorities who are willing (and often need to) cry "foul" when they aren't treated like rich white people. (Which of course the US has never done -- :angel:).

    We need to have our laws written down ad nauseum both to protect the minorities, the poor, and the "lower class," as well as to protect the Judicial branch from accusations of discrimination and predjuce.

    I know 200 years doesn't seem like a lot of time, as far as national history goes, but we've have 200 solid years of culture of distrust of the Government, and 200 years of having our laws spelled out ad nauseum -- not only Federally, but, like the UK, having different laws in different states, different counties, and different cities. (Insert your equivalent terms here.)

    It simply goes against the very grain of US culture to look at a broadly-written law, and understand that it is open to interpretation and individual application by the police, let alone the judges. While respected and often admired here, they simply aren't trusted with that much power.

    Here where I live, my family has a good name, and is known by the police force, and I could do very well, probably even have more freedom than I do now, if the police were able to be subjective about their laws. But my friend, who is Hawaiian, often gets mistaken for a Mexican, and the specific, written laws have protected him a lot from harassment.

    With that in mind, I would like to know (with all respect) how do you protect the police in England from being accused of discrimination or harrasment against someone from, say Ireland? I know there are still deep ethnic divisions there, how do you keep people from rioting or such if they feel they have been mistreated by the Judiciary from another (country?) within the UK?

    In short, how do you avoid your own version of the Rodney King riots?
     
  2. Tez3

    Tez3 Sr. Grandmaster

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    In this country the head of state, the Queen is the limiter on governmental power and they are the limiter of her power, they balance each other. All who are entitled to a British passport and are UK citizens are her subjects, we aren't subjects of the government. The police, armed forces, judiciary and civil service all swear oaths of allegiance to the Queen not the government, who are basically our servants though the often forget that! The government whichever party it is, is 'Her Majesty's Government', the party that's out is 'Her Majesty's Opposition'.
    Your ambassador here isn't the Ambassador to Great Britain, he/she's American Ambassador to the Court of St James ie ambassador to the Queen not the country.
    We have always had separate laws here for Scotland and Ireland, if someone feels they have been hard done by there's the Courts of Appeal in London, then they can appeal to the House of Lords and after that the European courts, especially the Court of Human rights in Hague, which we have the right to appeal directly to.


    The job description here of a police officer is to 'stop crime and protect innocent law abiding citizens'. Police powers which are quite widespread are governed by PACE...the Police and Criminal Evidence Act 1984.
    http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/

    Police officers aren't so much subjective about laws, they are allowed more leeway to use common sense. They have the options to give 'street warnings' and police cautions instead of having people charged with minor offences, the people don't have to take these they can always go to court if they wish. It's up to a police officer to decide whether to make an arrest or not in a lot of cases, eg not wearing a seat is against the law here, a police officer stopping you can however just warn you and let you on your way, this will often happen with drunks who are causing a public order problem, they can be sent on their way with an order not to return for 24 hours, if they make a pest of themselves they will be arrested. People who are stopped and searched and have a small amount of lower classed drugs on them will have the drugs confiscated, be given a street warning and be sent on their way. I've simplified that a bit, the whole is on here
    http://www.homeoffice.gov.uk/police/powers/cautioning/?view=Standard

    We have specific laws here against harrassment and the treatment of minorities, unless a criminal act has been committed these laws are civil ones. However the police aren't allowed to discriminate either, though being human as in every other walk of life you will get some who try to. Stop and Search is often cited as being a rascist abuse of the law but if you look here at the City of London police figures for their Stop and search you'll see that it's not really true.
    http://www.cityoflondon.police.uk/N...E7465FAE11C/0/StopSearchfigures0101to3103.pdf


    In criminal cases the CPS decides who's charge in Scotland is the Procurator Fiscal, it's not the police.

    The police here are not above the law and will be found guilty if they have used excessive force.
    http://www.kent.police.uk/Your Area/Medway/Medway_news/Officers_sentenced.html

    If you look on the same site you will see the national policing pledge.
    http://www.kent.police.uk/Policing pledge/Policing pledge.html


    I'm not a lawyer but basically our law is common law, the laws are basically made by the judges in courts. Judgements made in the highest Appeal Court, the House of Lords, are binding for example. We have no laws here against murder, it's a common law offence, it's made illegal because previous judges ruled it was. parliament can legislate what sentences can be passed for murder.

    If you have a look at the police websites here you might get a better picture of what British police do and what they can and can't do. I hope so!
     
  3. thardey

    thardey Master Black Belt

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    I think that's the most telling difference right there, though the whole post really underscores the difference in the basic animal of our governments.

    "Common Law" here is a thing of the past, they have either been dropped, or codified into written code. Judges cannot "make" laws based on their rulings, they can only set precedence for laws that are already passed.

    I guess the biggest difference is that if you violate the written code, then it is illegal, and the police or judge has leeway to suspend punishment. But it's still illegal, and you are at their mercy.

    What is sounds like there (if I read you right) is that the police have leeway to determine whether something is illegal or not, based on their judgement. That's just a hard concept to wrap my brain around.

    That's also why when we see new "Laws" enacted in England as reported by the press, we tend to freak out (even though I know this one isn't about a law) -- getting new laws through here is not easy to do, and when they are made, they're black and white.

    Also, most of the weapons laws that we have to deal with do not involve basic ownership -- they involve the circumstances involving carrying them in public. And those are the ones that are most often fought over.
     
  4. Tez3

    Tez3 Sr. Grandmaster

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    it's not so much seeing whther something is illegal or not based on judegment but more by circumstances I think. the law here is more geared towards what motives are. For example a man is stopped because he's walking down a road at silly o'clock in the morning, there's no obvious reason for him to be there and there's been burglaries in the house on that estate. When searched he's found to be carrying a knife. Is that illegal? perhaps. the man says he's a fisherman off down to the river nearby to catch eels and the knife is a gutting knife. He's dressed in warm clothes, wearing wellies and has a bag of bait with him, he says he's meeting his mate who has the fishing rods. It all seems fine so yes it's legal, he goes on his way. It's a judgement call based on experience and circumstances. if he'd been youngish, dressed in dark clothes, won't give a proper reason why he's there and is carrying a knife he will be arrested and questioned. it may turn out he actually hasn't done anything so he'll be de arrested and sent off.
    Interestingly because we arrest straight off the suspect has been given his rights immediately before being questioned not afterwards, he can get a solicitor any time he wants.
    On the whole the system works, if you have nothing to hide, are not acting suspiciously, driving well, your car is in good condition etc there's nothing to worry about however if you are dodgy there's a good chance the coppers nose will find you out.
     
  5. Deaf Smith

    Deaf Smith Master of Arts

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    Are you saying judges MAKE the laws? And what happens if the judges decide to make, uh, laws against free speech? Or laws prohibiting certian classes of people for having rights?

    Now here in the U.S. the judges INTERPET laws to some extent but do not make the laws. And all laws are subject to the Bill of Rights. Does the UK have any check to keep judge from making laws that most would not want?

    Deaf
     
  6. Sukerkin

    Sukerkin Have the courage to speak softly

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    That's where the tiered system of appeals comes in, DS. What Tez meant by Judges "making the law" is that the concensus of their rulings on cases becomes the law, even tho' the legislative body that writes the original laws lies elsewhere.

    It's by no means as clear cut as "Loony Judge rules that all must wear pink haberdashery".

    Have a read of this and see if it helps:

    http://www.historylearningsite.co.uk/how_laws_are_made_in_great_brita.htm
     
  7. Tez3

    Tez3 Sr. Grandmaster

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    Exactly, I didn't say they make the law but their rulings become binding, a different thing, and as Sukerkin says there is a system of appeals.

    Deaf our system works well for us, we don't want your system which I'm sure works well for you so I don't know why the constant stream of posts trying to ridicule our way of life here is coming from you. Is there some vendetta you have against Britain and our way of life, has the country upset you somehow? is there a reason there's all this anti british and we're better than you stuff is posted?
    I'm not being funny just trying to understand why you don't like us and our ways.
     
  8. thardey

    thardey Master Black Belt

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    Judges here can set legal precedent by how they interpret the law, and you have the option to appeal, all the way to the Supreme Court, if your case is semi-reasonable. But we have the "three-headed monster" (as the old critics called it) Where each branch is separate from, and more or less pitted against each other, in a system of checks and balances. The Legislative branch writes the laws, the Judicial branch (including the police) enforce and interpret the laws as written (sadly often without common sense), and the Executive branch is a power check to keep the other two in line. There's only a little overlap allowed, if any.

    Many of us here in the US forget that we are still in the "Great Experiment" and that other, civilized countries aren't looking to us as an example yet, but as a curiosity. We still have a lot to prove.
     
  9. thardey

    thardey Master Black Belt

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    P.S. --

    So when we have a law that states "fixed knives over 4" are not allowed to be carried in public" that's the end of it. If we are brought before a judge, and we had an illegal knife in public, the judge can't adjust for circumstances. If the law says you're guilty, the Judge has to interpret that you're guilty, but he can suspend the punishment.

    That's why we freak out when we see laws like the Katana ban -- the judge can't find you innocent if you had a Katana, no matter what the "common sense" circumstances.
     
  10. Tez3

    Tez3 Sr. Grandmaster

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    The role of the House of Lords acting as the courts of Appeal. This is where the Appeal courts decisions become binding o the lower courts.
    http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf

    http://www.statutelaw.gov.uk/
    This is the database for statute law which is the laws enacted by the government.

    European law is obviously enacted by the European parliament.

    Common law...I found this description which explains it better than I can.
    Common Law

    England also has a body of law known as the Common Law which has developed over centuries from judgements given in courts. The Common Law has been hugely important in the development of the English legal system. For example, until 1861 there was no Statute Law criminalising murder. Murder had, however, always been considered a crime since courts had from the earliest times considered it to be grossly wrong and therefore obviously criminal.
    Common Law works through the system of Precedent. If a judge makes a decision in a case then other judges will usually follow the example that has been set and give a similar verdict in cases involving similar facts. If the decision of the first judge should happen to be overruled by a higher court, then subsequent judges would follow the decision of the higher court instead. The judge who makes the first decision effectively makes a law since his or her ruling will be followed in the future.
    Even in the case of Statute Laws the judges have a vital role to play since it is their task to interpret the laws made by Parliament. Since a judge can only look at what the law actually says, not what Parliament meant it to say, Parliament has to be incredibly careful when drafting new laws.
    References:
    McLean, I. and McMillan, A. (2003) The Concise Oxford Dictionary of Politics (2nd Rev Ed.) (Oxford University Press)
    Jones, B. et al (2006) Politics UK (
     
  11. Big Don

    Big Don Sr. Grandmaster

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    There is a real difference between SUBJECTS and CITIZENS.
     
  12. Tez3

    Tez3 Sr. Grandmaster

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    Is that written with a sneer?
     
  13. Deaf Smith

    Deaf Smith Master of Arts

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    Tez3,

    Then what the judges do is somewhat different from here in America (but only somewhat.) We do have judges that try to make their own laws by interpeting laws in weird ways. And if they get away with it, yes it becomes what is called a 'precedent', and thus at least in their court of appeals it carrys weight. If another court of appeals decides in a totaly different way the same set of circumstances, then the question can end up in front of the Supreme Court (SCOTUS.)

    But most laws, being pretty strait foward, cannot be interpeted but in a narrow way here. And even then, all laws are subject to the Bill of Rights for each individual. If the law violates any of these rights, then it is considered unconstitutioal and is struck down (as was done in Washington D.C over banning guns just recently.)

    The catch is, you have to get SCOTUS to agree to hear the case. That's the hard part.

    But yes, Tez3, there is a difference between SUBJECTS and CITIZENS. And that's the Bill of Rights here.

    Deaf
     
  14. Big Don

    Big Don Sr. Grandmaster

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    Not at all.
     
  15. Tez3

    Tez3 Sr. Grandmaster

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    Ok. if the difference is understood and accepted as being how things are here and how we want them then I have no problem, I'm just getting tired of certain posts always putting us down.
     
  16. Big Don

    Big Don Sr. Grandmaster

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    No, just that that single fact is pretty much what I know about differences between US and British law.
     
  17. Tez3

    Tez3 Sr. Grandmaster

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    Fair one :). I know very little about US law which makes it hard to compare really. I don't know much about other areas of British law either such as commercial, tort, family and that sort of stuff, am not bad on criminal law though lol.
     
  18. mook jong man

    mook jong man Senior Master

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    I learnt all my British law from watching The Bill , specially this bit.
    " Right mate , your nicked "!
     
  19. Tez3

    Tez3 Sr. Grandmaster

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    It's not the same without Reg!
    I'm afraid that expression is used in real life...alot lol!

    This is a seriously good clip! complete with Reg and some cracking stunt work! Enjoy!

    http://www.youtube.com/watch?v=52duugx7mn4&feature=channel~T
     
  20. mook jong man

    mook jong man Senior Master

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    Hmm , says I can't watch it from my country due to copy right restrictions.
    Doesn't matter I've probably seen it anyway , The Bill's been on tv here for years.
    Its a good show , and some of those police ladies on there are real hotties .
    They can arrest me anytime , eh Guvnor.123
     

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