Chapter 63: Introduction to the law

In this chapter we introduce the section of The News Manual which deal with the law as it affects working journalists. We look at where law comes from, who is involved in the legal system, and at the difference between the two main types of law - criminal and civil.

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What are laws?

In any society, everybody is subject to the law. Everybody must do as the law says, or face the punishments which can be handed out to law-breakers. Journalists are no different. They, too, must obey the laws of their society. However, there are certain laws which will affect journalists especially, and that is what we shall deal with in the next few chapters.

Societies have laws in order to protect people from the actions of other people. It is clearly impossible for everybody in any society to have absolute freedom: as one person exercised that freedom, it would trample upon somebody else's freedom. For example, if my neighbour plants pineapples in my garden, then I am not free to use that piece of land myself. It is for this reason that societies have property laws.

The law puts limits on each person's freedom in order to protect other people's freedom. We are free to drive a car on the road, but only if we possess a valid driving licence; and, even then, we must keep to one side of the road, and obey speed limits and road signs. In this way, although our freedom to drive is restricted, we are protected from other people's careless or unskilled driving, which would make it impossible for us to drive safely at all.

In order to make people obey the laws of the society, there have to be punishments. If you decide to drive a car even though you have no licence (and if you are caught), you may be fined. If you cannot or will not pay the fine, you can be sent to jail. The main reason that many people obey the law is that they know they may be punished if they break the law.

There are many different legal systems in the world - traditional and modern, Christian and Islamic - and they regulate society in different ways. However, the reason the laws are there at all is the same - to limit people's rights in certain ways in order to protect other people's rights; and to punish those who ignore the laws.

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Sources of law

There are many different sources of law in any society. Some laws will be written in the country's Constitution; others will be passed by the legislature (usually a parliament or congress); others will come from long social tradition.

Let us consider each main source of law in turn.

Constitution

In any country with a written Constitution, the Constitution will take precedence over any other source of law. For example, if the Constitution says there is freedom of speech for all citizens, but the social tradition is for women not to speak in public, a court will protect the right of any woman to speak in public if she chooses to do so; the Constitution takes priority over tradition.

Customary law

In developing countries which have been decolonised since the 1940s or 1950s, the law is generally a mixture of law introduced by the former colonial power and customary law which was there before colonisation. That customary law often still takes priority in certain areas of life.

Typically, customary law applies in those areas of life least affected by colonisation. These may include land ownership, customary titles and family relationships.

There may be special courts to deal with these matters, conducted according to tradition and presided over by a customary chief or group of elders. Alternatively, these matters may be dealt with by an ordinary court, but customary law may take precedence over other kinds of law in these cases.

Common law

English common law is the customary law of England, yet it has become influential in the laws of many other countries. The United States and most countries in the Commonwealth have legal systems based on English common law.

If there is nothing in the Constitution to cover a situation, and if no specific law has been passed by parliament to cover a situation, a court in a Commonwealth country may decide the case depending upon English common law. Indeed, some Commonwealth countries have the British House of Lords as their final court of appeal.

This is not true in all countries, of course. There are many different legal systems, and they do things in different ways. It would be impossible, within the limits of a book like this, to deal with them all. We are therefore limiting ourselves in this volume to talking about those legal systems which are based on English common law.

If you want to know more about common law and the differences between it and other legal systems, click here.

Legislation

Any law passed by a lawful government which is different from English common law will take precedence over common law.

For example, under the English common law principle of habeas corpus, the police are not able to hold a person for longer than a certain period (typically 24 hours) without bringing them before a public court. Habeas corpus can be loosely translated from Latin to mean "show us the person" and it is meant to prevent authorities holding people in secret without due legal process.

However, in times of emergency such as war many countries pass legislation suspending these provisions. In the so-called "war on terror", many countries have introduced anti-terrorism laws which override habeas corpus to allow authorities to hold people, often in secret, for much longer periods. Some prisoners held by US authorities in Guantanamo Bay prison off the American coast have been held for many years without trial or even appearing before an American judge.

[For more on this subject go to Chapter 72: Security and anti-terrorism laws.]

Case law

Legislatures pass laws, but courts work out what they mean in practice. Laws are interpreted and tested by a succession of trials, over a period of time, under a variety of circumstances.

For example, the law says in some countries that cars should drive on the left-hand side of the road; but it also says that boats should pass port-to-port (that is, as if they were on the right-hand side of an imaginary road). What should happen in the event of a flood, where a truck driving along a flooded road meets a boat coming the other way?

Is the road still a road? If so, they must keep left and pass right-side to right-side. Or is it now a waterway? If so, they must keep right and pass left-side to left-side. The legislation will state clearly what the rules are in each case; but it is unlikely to say clearly how deep the water has to be before a road turns into a waterway.

Courts often have to decide such things. An important part of legal training is to learn what judgments have been made in the past, in order to know exactly what each law means. This is called case law, and lawyers will quote previous cases in court, in order to show how the law should be applied in this case.

Any case law that is from a court of equal or higher rank to the one where a case is now being heard, will normally take precedence over common law, should they differ.

Also, a decision by a higher court (for example a court of appeal or supreme court) is binding upon a lower court. The lower court must follow what the higher court has said, in another case where the circumstances are similar.

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Who's who

The law is a huge game, and there are lots of players in it. This can be confusing. Basically, however, the players can be grouped together in three teams.

Legislature

A legislature is a body which has the power to make laws. It may be a Parliament, or a Congress, or an Assembly, or a town council, or a council of chiefs. It may have the power to pass laws which apply to the whole country, or just to part of it.

Judiciary

The judiciary applies the laws which have been passed by the legislature. Typically, this takes the form of court cases, in which one person (the prosecutor) argues that the defendant is guilty, another person (the defence lawyer, or the defendant himself if he wishes) argues that the defendant is innocent and a third person (the judge or magistrate) or group of people (a jury) decides who is right, by deciding that the defendant is either guilty or not guilty.

Usually, there are different levels of court. The most serious crimes will usually be heard by a High Court or National Court or Supreme Court. This will usually be presided over by a judge or judges sitting together. The prosecution and defence will be presented by trained and experienced lawyers.

In some countries, there is a jury - typically 12 people, without any special training, whose job is to listen to all the evidence and decide on the facts: what actually happened? In other countries, especially where family and clan loyalties would be so strong as to take priority over any desire for impartial justice, there is no jury and the judge makes the decision on the facts. In either case, after a defendant has been found guilty, it is the judge's job to pass sentence - to decide what the appropriate punishment will be for the crime.

There are also lower courts - often called Local Courts or Magistrates Courts - typically presided over by a magistrate. The prosecution will often be handled by a police prosecutor rather than a lawyer. There is no jury. These lower courts generally deal with less serious crimes, although they may also have to hear the evidence about very serious crimes, sometimes, to decide whether or not the case should be heard by a higher court. These are called committal proceedings, and are dealt with in Chapter 65: Practical court reporting.

Police

The job of the police is to enforce the law as passed by the legislature and interpreted by the judiciary. Typically, they do this both by acting to prevent crimes being committed, and by investigating crimes which have been committed. They gather evidence, arrest people who seem likely to have committed the crime, and charge them with the offence.

This does not yet mean that the person is guilty. It is up to the courts to consider the evidence which the police have gathered, weigh that against the evidence which the defence will present, and decide on the truth.

Journalists should always take care when reporting an arrest: you must not say that the person arrested committed the crime. The police may believe so, and may even say so to you; but this does not make it a fact. It may be a fact that the person has been arrested; if so, you may say so. It may be a fact that the person has been charged; if so, you may say so. But until a court says that the person committed the crime, it is not a fact, and you may not say so. In many common law legal systems, there is an automatic presumption of innocence, which means that everyone must assume that an accused person is innocent until a court finds them guilty.

If you do state that a person who has just been arrested actually committed the crime, and if the person is later found not guilty, he or she may be able to sue you for defamation. We will deal with this in detail in Chapter 69.

There may be other law-enforcement agencies in your society, too, such as Customs officers, harbours police, game wardens and others.

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Criminal and civil law

Not all court cases involve crimes. Many of them do, of course; but many others involve what is called civil law, rather than criminal law.

Criminal law deals with offences by people against society as a whole. Prosecutions are usually brought in the name of the Head of State, or of the State itself.

Civil law deals with offences by people against other individuals. This may include disputes over fences and other land matters, defamation cases, damaged property, broken promises or a host of other disputes between people.

In a criminal court, the two sides are called the prosecution and the defence. In a civil court the two sides are called the plaintiff (that is the person who is bringing the complaint) and the defendant or in some cases, the respondent.

In a criminal court, the judgment at the end of the hearing will be that the defendant is either guilty or not guilty. In a civil case there is no question of guilt, because nobody has been charged with any crime; the judgment will simply be either for the plaintiff or for the defence.

In a criminal court, a defendant who has been convicted (that is, found guilty) will be sentenced - usually by either a fine or imprisonment. In a civil case, there is no sentence. However, if judgment is for the plaintiff (that is, the person bringing the complaint wins), the court may award damages against the defence. This means the court agrees that the plaintiff has been wronged by the defendant, and orders the defendant to pay a sum of money (called damages) by way of compensation. The court may also, under certain circumstances, order the losing side to pay all the legal costs of the winning side. This would happen usually if the judge considers that the loser has acted unreasonably in fighting the case at all, and should have settled out of court without forcing the other person into expensive legal proceedings.

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Legal language

Many journalists have a problem with legal language because it seems so technical and hard to understand.

In any area of life, the journalist’s job is to simplify things for the readers or listeners, while still being accurate. This is as true of the law as it is of other areas.

Very often, when a person is charged with an offence, the charges may be in language which is complicated. For example the charge may be that a person “did drive a motor vehicle while under the influence of alcohol”.

Ask the police, or a lawyer, what the charge actually means. Then try to rephrase it in simpler language and ask the police or lawyer if that is accurate. For our example, you may ask them if “drove a car while he was drunk” is accurate. They will tell you that is not the same – the charge is not that he was drunk, which normally means foolish and incapable; but that he had too much to drink to drive safely.

Try again. Ask them whether “drove a car after drinking too much alcohol” is accurate. If they agree that it is, you can use that in your story. Make a note of it too and remember to use it in future whenever you report this charge.

One of the most misunderstood words is “alleged”. To allege something is to claim that it happened. When police charge a person, they allege that the person committed the crime. It is not a fact at this time. If a court convicts the person (finds them guilty) it will become a fact; until then it is an allegation.

You cannot refer to a person as “the thief” when he has been charged but not convicted. He is “the alleged thief”. But you can refer to “the theft” because it is a fact that the theft took place, not an allegation. It would be silly to refer to “the alleged theft”, unless it was not certain that the theft occurred at all.

When things are facts, they are not alleged.

You must take special care when someone had been unlawfully killed. If a person is charged with murder, they are “the alleged murderer” but the killing itself should not be called “the murder”, unless you are quoting someone speaking during the actual court proceedings themselves. There are many kinds of killing, and the court may eventually decide it was manslaughter (a much less serious offence) rather than murder. It is best to play safe. The undisputed fact is that there has been a killing. Use that word rather than “murder” or even “alleged murder”.

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Consult a lawyer

From all that has been said already in this chapter, you will realise that it is impossible for all the details in the following chapters to apply to every country. Even if your country has a legal system based on English common law, your customary law, legislation and case law will probably differ.

Use the following chapters only as guidelines for the general principles of the law as it affects working journalists. Do not depend upon it being accurate in detail for your country. Above all, do not attempt to defend yourself if you are sued for defamation by producing this book in court!

It would be wise to ask a lawyer in your country to read this section of the book - Chapters 63 to 71 - and to point out to you the ways in which your country's laws differ from the general model presented here.

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TO SUMMARISE:

There are many different sources of law:

  • The Constitution
  • Customary law
  • Common law
  • Legislation
  • Case law

This book will deal with the law as based upon English common law

There are different participants in the law:

  • Those who pass laws (legislature)
  • Those who apply laws (judiciary)
  • Those who enforce laws (police and others)

There are two main kinds of law:

  • Criminal law
  • Civil law

The law in your country may be different from things we say in this book; consult a lawyer

Read Chapter 63a: Legal systems for more information on common law, civil code legal systems, religious law systems and totalitaiarian systems.

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>>go to next Chapter 64: The rules of court reporting

 

 
Index to Chapter 63
  1. What are laws?
  2. Sources of law
  3. Who's who
  4. Criminal and civil law
  5. Legal language
  6. Consult a lawyer
  7. To summarise
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