British and American Justice Systems: A Comparative Study

Introduction: Shared Legal Heritage

Britain's legal institutions have long served as the foundation of American law. In framing the American Federal Constitution, the Framers drew heavily on British ideas of the separation of governmental power, including enactments of Parliament. For several years following the Revolution, U.S. courts looked to English common law for their rules of judgment. In the intervening decades, English and American judges have continued to look to one another's legal doctrine as a rich source of comparative study. This legal and intellectual kinship has, over time, been fostered by sustained interchange between England and America (Kaufman, 1980).

A profound commonality therefore exists between the legal systems of Great Britain and the United States. America's legal structure — particularly what is referred to as the "Common Law" — descended directly from the courts of England, largely because the United States was once a British colony. Common law (also called case law) does not arise from governmental authority but stems from judicial decisions on cases. When a court determines the definition or application of a law, that definition becomes a standard used by other courts in deciding similar cases (Kaufman, 1980; Oshundeyi, 2011).

Legal Professionals: Barristers, Solicitors, and U.S. Attorneys

One of the most visible differences between British and American legal structures is the professional distinction among lawyers. In the U.S., lawyers may handle any criminal or civil matter. In Britain, however, most attorneys are classified as either barristers or solicitors (Oshundeyi, 2011; Mazzacuva, 2014). The United Kingdom is among only a handful of nations in the world that divide their legal professionals in this way. Each role carries distinct customs, traditions, and training requirements.

Becoming a barrister requires prolonged, intensive dedication and extensive academic study to attain the specialized knowledge the profession demands. Society often refers to barristers as Court Advocates, since their work primarily involves attending court and representing clients. Most barristers focus on advocacy; however, some specialize in other law-related fields — such as company law or tax law — and seldom appear in court (Oshundeyi, 2011).

Solicitors, by contrast, can handle a wide range of legal issues: they provide counsel, draft documents, and represent clients in minor criminal matters. They are empowered to act directly on behalf of clients. Barristers, on the other hand, are specialists in trial advocacy and act for defendants or litigants in the High Court. They build the case and argue before judges and juries; however, they are not entitled to act on behalf of clients without a solicitor's involvement. In crucial cases, barristers and solicitors often work in collaboration — with the solicitor managing legal documents, preparing evidence, and conducting out-of-court negotiations (Oshundeyi, 2011; Parpworth, 2010).

Initiating Criminal Prosecutions

In the U.S., criminal proceedings are initiated by prosecuting attorneys who operate autonomously, independent of both police and the courts. In contrast to the relative procedural clarity of the American system, some aspects of initiating criminal proceedings in Britain are more complex. The underlying concept behind the British structure is private prosecution: with limited qualifications, any person in Britain may initiate a criminal suit against a suspected offender. In practice, however, this rarely occurs; the average Briton is typically content to report an alleged criminal offense to the police and leave them to handle the matter (Kaufman, 1980; Parpworth, 2010).

In the U.S., the prosecutor bridges the gap between the courts and the police, exercising independent judgment about whether to institute criminal proceedings in a given case. This role is critical to impartial justice administration: a wrongful decision to prosecute can be disastrous for both the accused and the justice system. The prosecutor's independence from government investigation agencies contributes to the fair discharge of these responsibilities.

In England, however, the police make prosecution decisions in nearly every criminal case. Without questioning the dedication of British police officers, their involvement in criminal investigations may compromise their ability to impartially weigh the considerations for and against prosecution. The U.S. prosecutorial system is not necessarily the ideal model for Britain to adopt, but alternatives worth considering include Scotland's Procurator Fiscal system or an expansion of the Director of Public Prosecutions' responsibilities. What the Anglo-American comparison makes clear is that English police should bear a smaller share of the burden of deciding whether to prosecute suspected criminals (Kaufman, 1980; Parpworth, 2010; Oshundeyi, 2011).

References

Kaufman, I. R. (1980). Criminal procedure in England and the United States: Comparisons in initiating prosecutions. Fordham Law Review, 49(1), Article 8.

Mazzacuva, F. (2014). Justifications and purposes of negotiated justice for corporate offenders: Deferred and non-prosecution agreements in the UK and U.S. systems of criminal justice. Journal of Criminal Law, 78(3), 249–262.

Oshundeyi, M. (2011). The English judicial system: Process of becoming legal professionals. Ankara Bar Review, 4(1), 57–70.

Parpworth, N. (2010). Constitutional and administrative law. Oxford University Press.

The American criminal justice system: An overview. (n.d.). Introduction to Criminology (pp. 1–13).