An Analysis of The Differences Between The British and American Criminal Justice Systems

The criminal justice system is unique in every country, but the United States and England are both based on common law so it would seem that they would have more in common than countries based on completely different systems. Still, they are both quite different when it comes to the way that crimes are prosecuted in each country. Much of the legal system in the United States is based around the Constitution and, particularly, the Bill of Rights. England does not have a constitution, so it is instead focused on precedent and acts of Parliament that have become law since 1215, when the Magna Carta was signed by King John (The Robbins Collection).

The processing of bring cases before the court is also vastly different in each country. The United Kingdom does not use a grand jury. Instead, the Crown Prosecution Service (C.P.S.) functions as England’s version of the District Attorney’s office. The C.P.S. takes their case to the Magistrate’s Court which is made up of three judges who determine if there is enough evidence for the case to move through the courts (McAlpine). There is also a big difference between the United States and England regarding who can bring criminal cases to court. In England, there is a common law principle which allows private citizens to bring criminal actions. This has become unheard of in the United States as the state takes on the responsibility of prosecuting the offender through the District Attorney’s Office. However, the English system still allows for a private individual to initiate a criminal charge against an alleged offender and take it to trial because “the English view a private citizen's right to bring a criminal proceeding as an important constitutional backstop against abuse of prosecutorial discretion by public officials” (Kaufman). This is an example of the ways that the British and American legal systems came from the principles but have split off over the years due to several specific choices.

They each also have distinctly different ways of prosecuting a case. In the United States, they have district attorneys and public defenders who represent the prosecution and the defense respectively. The British police force handled most of criminal proceedings by themselves, even going so far as to conduct the trials of offenders charged with the most serious crimes by themselves, but this was changed in 1879 when the office of the Director of Public Prosecutions was established. When they assumed control of a case, private barristers who make up the Treasury Counsel of the Inner London Crown Court, or the Old Bailey, take it on and are paid out of public funds. They are tied to the Director as he has first call on their services, but they are also allowed to take on extra work. This Counsel is the closest British equivalent to the district attorneys of the United States (Kaufman). They generally only take on very serious offenses, however, so the English police tend to work with the Crown Prosecution Service to decide whether or not to prosecute. This decision is based on two factors: whether there is enough evidence to prove the case, and whether it is in the public interest to bring the case to court (Police.uk)

England also does not rely on the same public defender program of the U.S; they have a small number of public defender offices but rely heavily on legal aid to help low-income families find legal assistance. However, this is not a comparable system. Relatively few firms still offer legal aid and the cut-off yearly income is £31,884, which excludes many middle-class families who also need the service (MacErlean). The Public Defender Service is still relatively new; it was established in 2001 and has remained very small. The solicitor branch of the system is only available in four cities. Likewise, the advocacy branch was only added in 2014 and because of this, only twenty-five barristers work in partnership with the Service (Public Defender Service). However, it may expand in upcoming years to resemble something closer to the system in the United States so more people can have access to cheaper – or free – legal assistance in the United Kingdom as well.

England is also very different when it comes to the attorneys themselves. They have a vastly different way of training lawyers and the English legal system has two different disciplines of criminal justice attorneys while the United States only has one. In England and Wales, to begin the process, all college undergraduates need to either be pursuing a qualifying law degree or be prepared to take a conversion course. The qualifying law degree is an LLB, which is a three year undergraduate law degree that must include modules in the seven core subjects: Constitutional and Administrative Law, the Law of Torts (a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another), Criminal Law, Equity and Trusts, EU Law, Land Law (Property Law), and the Law of Contract (University of Leicester). This is similar to the juris doctor (JD) of the United States which is also a three year with one notable exception: it is an undergraduate course rather than a graduate one. Those who get an undergraduate degree in another field can take conversion courses such as the Graduate Diploma in Law (GDL), and Common Professional Examination (CPE) in order to transfer their non-law undergraduate degree to an equivalent of the LLB, which is necessary to qualify for further legal training (Wikipedia).

This division between the two types of legal work that can be seen with the solicitors and barristers is the largest difference between the British legal system and the American one. In essence, “barristers represent clients in courts and tribunals… Solicitors, in contrast, may go to court if they work in a dispute team or a specialist criminal firm but will be sat behind the barrister and won’t speak directly to the judge or jury” (Love). Solicitors cover a much broader range of legal duties as opposed to barristers, who tend to specialize only in advocacy and therefore perform the vast majority of their work in court. The process for becoming a certified attorney differs a little based on whether the student wishes to become a solicitor or a barrister, and so they split off once they have achieved their qualifying law degree. Those who want to be a solicitor have to register as a student member of the Law Society of England and Wales and take the one year Legal Practice Course (LPC), followed by a two year training contract at a law firm. Most barristers are self-employed and tend to work off referrals, sometimes in partnership with solicitor firms, while solicitors tend to work in companies and refer their trial cases to a barrister. Students who are interested in becoming barristers have to apply to join one of the four Inns of Court, and then complete the one-year Bar Professional Training Course (BPTC), followed by a year of pupillage, or training in a set of barristers' chambers (Wikipedia). It isn’t perfectly clean cut, however. Solicitor-advocates are solicitors who have the “rights to audience” in certain courts, and can therefore represent their client themselves (Love). Although there is a lot in common with the English and the American legal systems because they are both based off of the principles of common law, the two systems also have some very distinct differences.