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No gavels please we’re British: Six legal Americanisms that are meaningless in England & Wales
Californian Graduate Diploma in Law student Elijah Granet discusses unwanted and misunderstood legal American terms.
Trespassers Will Be Prosecuted
Almost all British sign sellers hock some version of a Trespassers Will Be Prosecuted sign. While in America trespassers can be prosecuted and in some states shot on sight, English and Welsh law generally treats trespass as a civil tort, making the signs a worthless decoration.
Historically trespass was universally a civil tort, so that in 1982, an intruder who had managed to enter Buckingham Palace and slip into the Queen's bedroom technically hadn't committed a crime. This was subsequently rectified in the Serious Organised Crime and Police Act 2005, which allowed the Home Secretary to designate certain sites where trespass is an offence. The short list is limited to civil nuclear installations and places where royals or senior politicians live.
There is also an offence of aggravated trespass under the Criminal Justice and Public Order Act 1994. This deals with people who trespass and intend to deliberately disrupt a lawful activity. Under the same act trespassers can also be prosecuted if they disregard police requests to leave. A sign saying No Trespass does not count as a police request. In fact, such signs don't count for anything.
In 2019, after the MP Mark Field was filmed grabbing a Greenpeace protestor by the neck, The Guardian reported that the protestor "has no plans to press criminal charges". That is in a very literal sense true, since no one in England & Wales can press charges, unless one counts private prosecutions.
Charging decisions are, except in the case of minor offences, determined on the advice of the Crown Prosecution Service (CPS) after reviewing submissions made by the police. While victims can appeal for review a decision not to charge, they do not have veto power over whether or not someone is charged. CPS certainly takes into account a victim's wishes, but that is entirely different from a victim having the ability to press charges.
Jail, gaol and prisons
The BBC reported in February 2019 that the Justice Secretary was calling for an end to short jail terms. While there is nothing wrong with the colloquial use of jail as a synonym for prison, there is no custodial facility in England & Wales actually called a jail or gaol.
In much of the United States, jail refers to a local facility used for remand prisoners and short sentences, while prisons house those convicted of substantial offences. In England & Wales virtually all prisoners, both convicted and on remand, are held in, well, prisons. There are non-prison custodial institutions including police station custody suites, removal centres for immigration detention, and high secure hospitals. None of these, however, are called jail.
Gaols did historically refer to certain local prisons but this distinction was entirely abolished by the Prison Act, 1865. Yet 154 years later the term persists, in what I unscientifically suspect is a combination of American linguistic influence and its usefulness to headline writers, who value the four-letter word's economy of space.
Common law marriage
This astonishingly persistent term ceased to have any meaning in England & Wales with the Marriage Act 1753 which set out strict criteria for legally valid marriages. In spite of a welcome ruling from the Supreme Court, un-married and non-civil partnered couples, even those who have been together for decades, have virtually no legal protections.
The widespread belief in common law marriage (a survey in 2017 found that two-thirds of British cohabiting couples believed some version of it existed) is incredibly dangerous. It leads many couples into disastrous complacency, resulting in financial and emotional hardship during illness or bereavement.
As a legal term, common law marriage is only a partial Americanism, as a dwindling number of US states actually recognise long term cohabiting couples as married. However, as a term in popular culture, it is wholly an Americanism, as this corrosive myth has been propagated by Hollywood films (ironically made in California, which lacks common law marriage). Unfortunately for English and Welsh cohabitants, getting legal advice from Legally Blonde will only leave them legally blind.
The fact that unlike in America, gavels are not and have never been used in English and Welsh courts is actually quite widely known, to the point that there is a popular Twitter account @igavels debunking it. Yet, as @igavels painstakingly documents, the British media continues to use stock photos involving gavels to illustrate their legal stories. My unprovable hunch is that this is due to a combination of sub-editors' delight at annoying pedantic legal professionals and the American bias of Anglophone stock photo catalogues.
Taking the stand
In June 2019, a headline in The Telegraph claimed that the former Autonomy boss Mike Lynch would shortly "take the stand in tech's trial of the century". Though Mr Lynch did testify, he did not take the stand, because English and Welsh courtrooms, unlike their American counterparts, lack a witness stand. Instead they feature a witness box, analogous to the jury box and the dock (essentially, the defendant's box). This is a really pedantic distinction, since, except for those who are physically unable to, one stands in the witness box. Yet for decades, legal professionals have been exceptionally annoyed by anyone who dares to use the Americanism.
In 1968, the linguist Brian Foster reported, probably apocryphally, a tale of a 1950s British judge who had angrily confronted an American defendant who had the temerity to use the term witness stand, which was simply unacceptable in his courtroom. With this in mind, feel free to refer to the testimonial area however you like unless you're on trial and need to keep the judge on side!
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
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