Clinical Negligence Made Clear

Chapter 2: The Common Law
The laws of England and Wales can be roughly divided into two categories:
criminal law and civil law. Criminal law is concerned with conduct
deserving of punishment. The state creates and enforces the criminal law.
The police investigate, the Crown Prosecution Service prosecutes, judges
and juries decide on guilt or innocence, and judges pass sentence. The prison
authorities and others enforce the sentences of the courts. The victims
of crimes do not decide who should be prosecuted, tried and convicted.
Except in very rare cases, they cannot bring criminal proceedings against
another individual. They do not determine what punishments should be
passed on the guilty.
Someone who breaks the criminal law commits an offence. They are innocent
until proven guilty but they can be questioned, searched, arrested, and
even detained in custody before their guilt or innocence is established. They
are charged with having committed alleged offences and they can plead
guilty or not guilty. When criminal charges are disputed there will be a trial,
either in the Magistrates Court before a team of lay magistrates or a professional
judge, or in the Crown Court before a jury at a trial presided over
by a professional judge. Those found guilty will then face punishment – a
sentence is passed by the court.
Civil Law
Civil laws are not punitive. They are largely designed to regulate our private
transactions and disputes and to put right the wrongs we do to each other.
They also serve to hold public bodies to account and to ensure that their decision-making
is lawful. Both Parliament and the judiciary create the rules
that form the body of civil law. The state facilitates access to the civil law
and the courts enforce it. Individuals can bring civil claims against other
individuals. The state therefore provides a structure of civil justice within
which individuals can act to enforce their legal rights and seek redress.
An individual (being a person, a partnership or a company) will typically
make a claim against another seeking compensation for a past wrong and/
or an order that the other party shall do, or stop doing, some harmful or
unlawful act. The individual bringing the claim is called a claimant (previously
“plaintiff ”) and the person against whom the claim is made is the
defendant. The claim is issued in court and the proceedings up to and including
a trial will be governed by judges in the civil courts. Except in very
rare circumstances, trials are heard by a single judge, not by a jury. If the
claimant succeeds then the court orders the defendant to pay compensation
to the claimant, or to act, or desist from acting, in a certain way.
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