You are here:
  1. Home
  2. News
  3. Blog
  4. No gavels please we’re British: Six legal Americanisms that are meaningless in England & Wales

No gavels please we’re British: Six legal Americanisms that are meaningless in England & Wales

09 December 2019

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.

Pressing charges

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 gavel!

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.

Members can call our free confidential helplines staffed by solicitors for anti-money laundering, conveyancing, private client, litigation, solicitors' costs, and professional indemnity insurance support and advice. Staffed Mon-Fri 9 -17:00

Keep up to date by signing up for emails you are interested in

Create a My Law Society account and choose your news, advice and policy updates and to access our practice notes

Explore our campaign work on improving access to justice including early advice, criminal justice, criminal duty solicitors, and legal aid deserts

 

Tags: communication

About the author

Elijah Granet is a Graduate Diploma in Law student at City Law School

Visit Elijah's blog

  • Share this page:
Authors

Abigail Bright | Adam Johnson | Adele Edwin-Lamerton | Ahmed Aydeed | Alan East | Alex Barr | Alex Heshmaty | Alexa Lemzy | Alexandra Cardenas | Amanda Adeola | Amanda Carpenter | Amanda Jardine Viner | Amy Bell | Amy Heading | an anonymous sole practitioner | Andrew Kidd | Andrew McWhir | Andy Harris | Anna Drozd | Annaliese Fiehn | Anne Morris | Anne Waldron | anonymous female solicitor | Asif Afridi and Roseanne Russell | Bansi Desai | Barbara Whitehorne | Barry Wilkinson | Becky Baker | Ben Hollom | Bhavisha Mistry | Bob Nightingale | Bridget Garrood | Caroline Marlow | Caroline Roddis | Caroline Sorbier | Carolyn Pepper | Catherine Dixon | Chris Claxton-Shirley | Christina Blacklaws | Ciaran Fenton | Coral Hill | CV Library | Daniel Matchett | Daphne Perry | David Gilroy | David Yeoward | Douglas McPherson | Duncan Wood | Elijah Granet | Elizabeth Rimmer | Eloise Skinner | Emily Miller | Emily Powell | Emma Maule | Floyd Porter | Gary Richards | Gary Rycroft | Graham Murphy | Greg Treverton-Jones | Gustavo Bussmann | Hayley Stewart | Hilda-Georgina Kwafo-Akoto | Ignasi Guardans | James Castro Edwards | Jane Cassell | Jayne Willetts | Jeremy Miles | Jerry Garvey | Jessie Barwick | Joe Egan | Jonathan Andrews | Jonathan Fisher | Jonathan Smithers | Jonathon Bray | Julian Hall | Julie Ashdown | Julie Nicholds | June Venters | Justin Rourke | Karen Jackson | Kate Adam | Katherine Cousins | Kaweh Beheshtizadeh | Kayleigh Leonie | Keiley Ann Broadhead | Kerrie Fuller | Kevin Hood | Kevin Poulter | Larry Cattle | Laura Bee | Laura Devine | Laura Uberoi | Law Gazette Jobs | Leah Glover and Julie Ashdown | Leanne Yendell | Lee Moore | LHS Solicitors | Linden Thomas | Lucy Parker | Maria Shahid | Marjorie Creek | Mark Carver | Mark Leiser | Markus Coleman | Martin Barnes | Mary Doyle | Matt O'Brien | Matt Oliver | Matthew Still | Max Rossiter | Melinda Giles | Melissa Hardee | Michael Henson-Webb | Neil Ford | Nick Denys | Nick O'Neill | Nick Podd | Nigel West | Nikki Alderson | Oz Alashe | Paris Theodorou | Patrick Wolfe | Paul Bennett | Paul Rogerson | Paul Wilson | Pearl Moses | Penny Owston | Peter Wright | Philippa Southwell | Preetha Gopalan | Prof Sylvie Delacroix | Rachel Brushfield | Rafie Faruq | Ranjit Uppal | Ravi Naik | Rebecca Atkinson | Remy Mohamed | Richard Collier | Richard Coulthard | Richard Heinrich | Richard Mabey | Richard Messingham | Richard Miller | Richard Roberts | Rita Gupta | Rob Cope | Robert Bourns | Robert Forman | Robin Charrot | Rosa Coleman | Rosy Rourke | Sachin Nair | Saida Bello | Sally Azarmi | Sally Woolston | Sam De Silva | Sara Chandler | Sarah Austin | Sarah Crowe | Sarah Henchoz | Sarah Smith | Shereen Semnani | Shirin Marker | Siddique Patel | Simon Day | Sofia Olhede | Sonia Aman | Sophia Adams Bhatti | Sophie O'Neill-Hanson | Steve Deutsch | Steve Thompson | Stuart Poole-Robb | Sue James | Susa | Susan Acland-Hood | Susan Kench | Suzanne Gallagher | The Law Society Digital and Brand team | Tom Chapman | Tom Ellen | Tony Roe | Tracey Calvert | Umar Kankiya | Vanessa Friend | Vicki Butler | Vidisha Joshi | William Li | William McSweeney | Zoë Paton-Crockett