Section 1. The legal system Flashcards
(153 cards)
1
Q
What are civil courts?
A
Courts that exist to resolve disputes between individuals or businesses, if the dispute cannot be settled in any other way
2
Q
What are the negatives of using the courts?
A
- It can be costly for the parties in terms of money and time
- It can be traumatic for the individuals involved
- May not lead to the most satisfactory outcome
3
Q
What is an ‘Alternative Dispute Resolution’ (ADR)?
A
- Instead of going to court and avoiding the costs, there are alternatives methods to settling disputes
- They are negotiation, mediation, conciliation, and arbitration
4
Q
What does county court deal with?
A
- Contract and tort cases
- Recovery of land cases (evictions)
- Disputes over partnerships, trusts, and inheritance up to a value of £350,000
5
Q
What is a claim?
A
An action taken in a civil court when a person or business believes that their rights have been infringed and they are due compensation or some other remedy
6
Q
What is compensation?
A
The amount of money claimed to make good the loss or damage to the claimant. This will also be known in tort and contract claims as damages
7
Q
What are the three types of claims?
A
- Small claim
- Fast track claim
- Multi-track claim
8
Q
What are the three divisions of the High Court?
A
- King’s Bench Division
- Chancery Division
- Family Division
9
Q
Factors of the King’s Bench division?
A
- Over 70 judges
- Deals with contract and tort cases with claims over £100,000
- A single judge presides and occasionally there can be a jury of 12 in cases of fraud, libel, slander, malicious prosecution or false imprisonment
10
Q
Factors of the Chancery Division?
A
- 18 judges
- Deals with insolvency cases, enforcement of mortgages copyright and patent cases, intellectual property rights
- There is a special companies court that deals with winding up companies
- A single judge presides
11
Q
Factors of the Family Division?
A
- 19 judges
- Deal with family cases where there might be disputes about which country’s laws apply or family matters under the Hague Convention
- It also deals with applications for habeas corpus where a child’s liberty is involved
12
Q
What does ‘Habeas Corpus’ mean?
A
You cannot be detained without charge
13
Q
What are the pre-trial procedures for starting a court case?
A
- In the first instance a pre-action protocol must be followed
- Letter sent to the defendant outlining the claim which the defendant then has 3 months to respond to
- In an ideal situation, if the evidence is needed, one; legal expert should be agreed upon by both parties to look at the evidence. In these circumstances, an agreement can sometimes be reached, but if the expert is unsure as to who is at fault, the case will then proceed to court
14
Q
What court do you use if the amount is less than £10,000 (or £1000 in a personal injury claim)?
A
Can be started in the Small Claims Court
15
Q
What court do you use if the amount is less than £100,000 (or £50,000 in a personal injury claim)?
A
It must be started in the County Court
16
Q
What court do you use if the amount is more than £100,000 (or more than £50,000 in a personal injury claim)?
A
It can be started in either the County Court or, more likely, in the High Court
17
Q
What can the defendant do after receiving the claim?
A
He can either:
- Admit the claim and settle
- Send an acknowledgment of service form (Form N9) within 14 days and his defence within an extra 14 days
- Ignore. This is called default and in this case, the claimant can ask the court to order the defendant to pay the claim and costs immediately
- Once the claim is defended, the court will then allocate the case to the most appropriate ‘track’
18
Q
What is a claimant?
A
The person injured or suffering loss who intends to claim money from the defendant
19
Q
What is a defendant?
A
The person or business causing the loss or damage or owing money to the claimant
20
Q
How do you issue a claim?
A
- A claim from N1 has to be completed with the names and addresses of the parties, brief details of the reason for the claim, and the amount of money being claimed.
- The form can be filed at:
-A County Court office
-The High Court if it is a high-value claim
-Online, for a debt claim - A fee will be charged for issuing the claim, and the amount of the fee depends on the amount being claimed
21
Q
The decision on which track is allocated to a case is made by who?
A
District Judge(CC)
22
Q
Factors of a small track claim?
A
- In County Court, disputes under £10,000, expect for personal injury and housing cases where the limit is £1000
- The use of a lawyer is discouraged as you cant claim back their fees if you win
- You can use a ‘lay representative’ to help you
- Cases are heard either in private or public
23
Q
What’re the advantages of small track claims?
A
- Low cost
- If u lose, you don’t have to pay the other persons lawyer costs
- You can take the case yourself
- Procedure is quick
- The District Judge help parties explain their cases
24
Q
What’re the disadvantages of small track claims?
A
- There is no legal aid, although you can avail of ‘no win, no fee’ adverts
- If the other side is a business, they’re more likely to use a lawyer
- Only about 60% of claimants actually receive all the money awarded by the courts
25
Factors of a fast-track claim?
- Once a case has been defended, the District Judge will send out the allocation questionnaire and then decide whether the case can be fast-tracked
- Fast track cases deal with disputes between £10,000 and £25,000, or personal injury or housing cases between £1000 and £25000
- Aim is to have the case heard within 30 weeks
- The trial itself is a formal procedure, with the hearing limited to just one day
- Only one expected witness is usually allowed
26
Factors of a multi-track claim?
- If the claim is for over £25000 it is usually allocated to the multi-track. This means that the Circuit Judge can send it to the High Court, especially for claims over £100,000
- The judge will continue to manage the case and may set the timetable once it has been allocated to multi-track
- Multi-track cases can take longer than one day
27
What are the factors of an appeal case?
- An appeal hearing usually consists of legal arguments as to why the original decision should be altered
- An appeal is usually made to the next highest court in the hierarchy, and heard by a panel of three judges
- It is rare for new evidence to be heard. There must be legal grounds for an appeal
- An appeal usually has to be made within 21 days of the original hearing
- If an appeal is made, costs will increase as lawyers will probably be required to argue the reasons for appeal
- The appeal court can agree with the original decision or reverse it. It can agree the original amount of compensation awarded or alter the amount
28
What are different examples of how appeals are heard by a different court/judge than the original decision?
1. E.g. District Judge in the Small Claims Court = appeal will be heard by a single Circuit Judge of the same court
2. Circuit Judge = an appeal can be made to a High Court Judge of the Division that is relevant to the case
3. An appeal can be made directly to the Court of Appeal if the case raises an important point of principle or practice, and the Court of Appeal agrees to hear it
29
What happens with appeals from the High Court?
- Will generally be heard by the Court of Appeal (Civil Division)
- If one of the parties wishes to appeal further, it can be taken to the Supreme Court, but only if permission is granted by the Court of Appeal
30
What are tribunals?
Forums used instead of a court for deciding certain types of disputes e.g. discrimination, unfair dismissal etc.
31
What are the factors of Tribunals?
- Reside alongside the court
- Less formal than courts
- Decisions are binding and can be enforced by the courts if not followed
32
What is the 2 tier system of tribunals?
- First-tier tribunals
- Upper tribunals
33
What is the structure of the first-tier tribunal?
- Handles about 600,00 cases a year. Nearly 200 judges, 3,600 lay members
- Different dviisions, known as 'chambers':
-Social entitlement chamber
-Taxation chamber
-Asylum and IMMigration chamber
-and more
34
What is the structure of the upper tribunal?
- Hears appeals from the first-tier tribunal
- 4 chambers including:
-Administrative Appeals
-Tax and Chancery
-Lands
-Asylum and Immigration
35
What is the procedure at tribunals?
- Presided by a judge and may be assisted by some non-lawyers who are experts in their fields depending on the type of tribunal
- Formality depends on the tribunal
- Applicants will usually represent themselves as funding is only available in some tribunals
36
What are the advantages of tribunals?
- Cheaper
- Quick hearings
- Informal
- Expertise
37
What are the disadvantages of tribunals?
- Lack of funding
- More formal than ADR
- Delay
38
What do employment tribunals deal with, including examples?
- Disputes in the workplace
- E.g. a claim of unfair dismissal, discrimination in the workplace, or redundancy
39
What happens during the preliminary matters of Employment Tribunals?
- A claim on an employment issue has to be brought within three months of event e.g. a dismissal
- ACAS (the Advisory, Conciliation and Arbitration Service) must be contracted for early conciliation to see if there can be a resolution
- Only if the matter cannot be resolved can a claim be issued
- Most claimants obtain advice on the strength of the case before issuing a claim, though it is possible for a claimant to take their own case
- Advice can be obtained from a specialist lawyer or a trade union
- The claim must set out detailed reasons for the action and must be filed with the tribunal within the time limit
- There is no fee involved
- The claim will be passed to the employer who will have the opportunity to make comment on it
40
What happens during the hearing stage of Employment Tribunals?
- They are held in individual tribunal rooms and there will be a tribunal panel
- Evidence is taken on oath and there are rules about the procedure and the evidence that can be accepted
- Either side can represent themselves or be represented by a lawyer
- At the end of the hearing, the panel might decide on the day or give it later in writing
41
What happens when the panel makes a collective decision in the hearing stage of an employment tribunal?
- If the tribunal finds in favour of the employee, they may encourage a settlement
- If a settlement cannot be reached, the tribunal can award compensation
- If the claim is lost, the employee will not have to pay the employer's costs
- If either side is dissatisfied with the panel's decision they can ask, within 14 days, for the tribunal to review its decision
42
What happens with appeals in Employment Tribunals?
- Either side may then appeal within 42 days of the tribunal decision to an Employment Appeal Tribunal, but only on a point of law
- Further appeals can be made to the Court of Appeal (Civil Division) and the Supreme Court only on a point of law and with permission from the Employment Appeal Tribunal
43
How does negotiations work in employment tribunals?
- Anyone in dispute with another person or business can negotiate to settle the dispute in the easiest and least confrontational way possible
- It is an attempt to come to an agreement or settlement
- They can be conducted by the parties themselves, their representatives, their lawyers or any combination of these
44
What are the ways negotiations be carried out?
- Face-to-face talking
- Writing
- Phone or e-mail
- Any other suitable method
45
How does Mediation work in employment tribunals?
- Where a neutral person helps the parties to reach a compromise.
- The parties will be in separate rooms or locations as the mediator shuttles between the parties to put forward points and opinions
- The parties have control over the process, so they can stay as long as they wish and can withdraw at any time
- The mediator will not offer an opinion to either pay unless asked to do so
- Eventually it is hoped that the parties themselves will reach a compromise and agreement acceptable to both
46
What is a 'Mediator'?
A trained person who acts as a go-between in an attempt to help people in a dispute come to an agreement
47
What is a more formal method of mediation and the process of it?
- A 'mini-trial'
- Presents case to a panel of a neutral party plus a decision-making executive from each party in the dispute
- Executives and neutral advisor will evaluate 2 sides and make an agreement
- If the executives cannot agree, the neutral adviser will act as a mediator
48
How does Conciliation work in employment tribunals?
- The conciliator discusses the issues with both parties and suggests grounds for compromise or settlement
- The parties may withdraw at anytime
- Both parties must agree to a final compromise (could lead to failure)
49
What is the 'Scott v Avery' clause?
A clause where the parties in their original contract agree that in the event of a dispute arising between them, they will have that dispute settled by arbitration
50
What is the process of Arbitration in employment tribunals?
- Both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator or a panel of arbitrators
- 'Scott v Avery' clause in contracts
- The parties will agree the procedure for dealing with the dispute which can range from a 'paper' arbitration (points set out in writing) to a formal court-like hearing
- A formal hearing which will be held in private
- The arbitrator's decision is called an 'award', and is final and binding on the parties
51
How does the agreement to arbitrate work?
- The agreement can be made by the parties at any time
- Commercial contracts include a ‘Scott v Avery Clause’
- When there’s an arbitration agreement in contract, the Arbitration Act 1996 states that the court will normally refuse to deal with any dispute and it must go to arbitration as agreed by the parties
- For consumers it’s different where they can choose whether to abide by the government to go to private arbitration, or to insist that the case be heard in the small claims track if the amount of the dispute can be dealt with in this track
52
What are the advantages of the employment tribunal?
- Heared by specialist panel
- ACAS, try reach settlement before hearing
- Confidentiality, no public
- Informal & short
- Can be represented by trade union, cheaper
- Each party pay own costs unless stated otherwise
53
What are the disadvantages of the employment tribunal?
- Has to be issued quickly after the event
- Funding isn't available, could be unaffordable for some
- Appeals limited to point of law
- More formal than ADR
- Can be delays in hearing dates
54
What are the advantages of using civil courts?
- The case will be presided over by a qualified judge
- Reasoned judgements can be studied for accuracy of the law used by the judge to reach a decision
- A legally binding and enforceable decision will be made by the judge
- The court system provides open justice as the public and press are able to sit in and report most cases
- Lawyers can give informed advice to their clients, at any early stage, of the likely outcome of the case by considering precedent
- A form of funding may be available for the payment of lawyers' fees
55
What are the disadvantages of using civil courts?
- The loser pays the winner's costs as well as their own
- There can be considerable delay in completing the preliminary stages of a claim
- Except in small claims, it is very difficult for a claimant to take a case without the assistance of a lawyer
- There will be uncertainty of the outcome, despite the system of precedent
- Using lawyers tend to lead to greater confrontation between the parties
56
What are the advantages of using ADR?
- Less formal than using the courts
- Lawyers are not encouraged meaning lower costs, less confrontation, no winner/loser situation, and the parties can continue a relationship
- It is quicker and easier to arrange a resolution
- More private
- Some aren't legally binding
57
What are the disadvantages of using ADR?
- The parties can't be forced to engage in the process (Likely to receive lower compensation than if they went to court instead)
- No funding is available for claimants
- The formality of proceedings and hearings in employment tribunals may be intimidating for unrepresented claimants
- Limited rights of appeal for most forms of ADR
- Appeals are likely to require a lawyer and involve more costs for a claimant
58
What are summary offences?
- The least serious offences
- Have to be tried in magistrates' Court
- E.g. driving offences, common assault, minor criminal damage
59
What are Triable-either-way-offences?
- Middle-range serious offences
- Can be tried in either the Magistrates' Court or Crown Court
- E.g. theft, ABH
60
What are indictable offences?
- The most serious offences
- Have to be tried in the crown Court
- E.g. murder, manslaughter, rape etc.
61
Who conducts criminal prosecutions?
The Crown Prosecution Service (CPS) heading it is the Director of Public Prosecutions (DPP)
62
What are the pre-trial procedures of summary offences?
- The aim being to complete the case at the earliest opportunity
- The majority of defendants (over 90%) enter a guilty plea
- It is then up to magistrates to decide an appropriate sentence.
- If a not guilty plea is entered, then the case will proceed to trial where prosecution and defence teams will provide evidence
63
What are the pre-trial procedures of triable-either-way offences?
- Pre-trial hearing in the magistrates
- Defendants enter a plea, guilty or not guilty
- If the plead is guilty, then the defendant has no right to ask for a Crown Court trial
- If the plead is not guilty, then the Magistrate has to decide whether they have the powers to hear the case by considering specific factors and if not will decide on the most appropriate court
- The defendant also has the right to choose a Crown Court trial by jury if they wish , since the right to trial by jury is considered a protection of individual rights
64
What are the pre-trial procedures of Indictable offences?
- Will always have a first hearing in the Magistrate's, before being sent to the Crown Court.
- The defendant enters a guilty or not guilty plea in the pre-trial. If 'guilty', then it is heard by the judge alone, if 'not guilty' then a jury is used
- The indictment is formally set out
- Prosecution and defence disclose any evidence they propose to use at the trial, with a specific focus on any potential evidence that might undermine the prosecution
- Defence give a written statement to the prosecution. Any alibi must also be disclosed so that police checks can be run
- Plea and Trial Preparation Hearing (PTPH) identifies the issues and sets out the timetable and decides whether a Further Case Management Hearing (FCMH) will occur (only happens if the case is complex or needs another hearing)
65
How do appeals from the Magistrates' Court work?
- If the defendant pleaded guilty then they can only appeal the sentence length which the Crown Court can confirm or increase or decrease it
- If the defendant pleaded not guilty there's an automatic right to appeal to the Crown Court against either/ or conviction or sentence
- Case is reheard by a judge and 2 magistrates
- Previous decision may either be upheld or reversed
66
What are case stated appeals?
- Special appeals where the defence believes the original trial magistrate or judge made a mistake about the law
- They are referred to the Administrative Court and heard by 2 High Court judges
- Only about 100 case stated appeals each year
67
How do appeals to the Supreme Court work?
- Appeals can be allowed If the Divisional Court feels that a point of law of public importance is involved, or permission is granted
- In rare cases, a 'leapfrog' appeal may be made directly from the High Court to the Supreme Court if there is an issue of national importance involved, or the case raises issues of sufficient importance to justify the leapfrog
68
What is a case that shows an appeal?
C v DPP (1994)
69
How do appeals to the Court of Appeal (criminal division) work?
- In order to launch an appeal, the defendant must first get 'leave to appeal' from the Court of Appeal
- Grounds for appeals will be granted under the Criminal Appeal Act 1995: (a) there was a possibility that the conviction was unsafe and (b) dismiss such an appeal in any other case
- Any new evidence that comes to light must be credible and believable to be considered
- The court can then either: 1. allow the appeal and quash the conviction, 2. reduce the sentence, 3. order a retrial
70
What are the different factors that the prosecution can appeal against?
- The prosecution can appeal against: a judge's ruling, an acquittal, referring a point of law, or against sentence
- Against a judge's ruling - sometimes the trial judge can stop a case if ruling on a point of law
- Against acquittal - evidence of interference with the jury, 'jury nobbling' or new and compelling evidence has been used (only available for 30 days)
- Referring a point of law - any decision by the Court of Appeal does not affect the acquittal but might set a precedent in future cases
- Against sentence - if the Attorney General thinks the sentence is unduly lenient, they can refer this to the Court of Appeal
71
What is The Criminal Cases Review Commission (CCRC)?
- Responsible for investigating alleged miscarriages of justice in Engalnd, Wales, and Northern Island
- Established by Section 8 of the Criminal Appeal Act of 1995
- The Commission is the only body in its area of jurisdiction with the power to send a case back to an appeals court if it concludes that there is a real possibility that the court will overturn a conviction or reduce a sentence
72
What are the aims of sentencing set out in s142 Criminal Justice Act 2003?
- Punish the offender
- Reduce and deter crime
- Reform and rehabilitate the offender
- Protect the public
- Make reparation to the victim
73
What are the factors that the Criminal Justice Act 2003 set out in determining a sentence?
1. What were the factors surrounding the offence?
2. Was D apart of a group attacking the victim?
3. If the court is satisfied that some of the above criteria are met, they may impose a heavier sentence
- Court might impose a lighter sentence if certain factors apply e.g. did the offender cooperate with police or do they have a mental illness etc
74
What are some factors involved in sentencing?
- A guilty plea
- Previous convictions
- Reports
75
What are custodial sentences?
Most serious punishment the court can impose and only issued in only the most extreme circumstances
76
What is a mandatory life sentence?
- The only sentence a judge can impose for murder, although they can vary the minimum amount of time to be served before eligibility for release on licence
- Case examples e.g. the murder or abduction of a child that had a sexual motive, a murder done for political, religious, racial, or ideological reasons
77
What is a Discretionary life sentence?
For an offence of causing GBH with intent, s 18 of the OAPA 1861 states a maximum sentence (isn't mandatory) so the judge can give a lesser sentence depending on the circumstances
78
What are fixed-term sentences?
- Depends on the nature of the crime. Only offenders over 21 are affected.
- Prisoners are automatically released after they've served half their sentence
79
What are suspended sentences?
- Can be issued on the understanding that if the offender does not commit another offence over a certain period of time, they will not have to serve a prison sentence
- However, if they re-offend their prison sentence is automatically activated and they will be sent straight to prison where they will serve the time set by the judge along with any sentence for the new offence
80
What other sentences are there?
- Community orders. E.g. unpaid work, a programme, rehabilitation, etc.
- Other penalties. E.g. fines, disqualification from driving, compensation, etc.
81
What are lay magistrates?
- Non-legally qualified and are also known as Justices of the Peace
- They sit as part of a bench of two or three and if there's only one their power is limited
- You must be aged between 18-65 but can serve till 70 and must live and work within the allocated local justice area
- You must commit to sitting at least 26 half days a year
82
How does the selection and appointment process of being a lay magistrate work?
- Appointments are made by the Lord Chief Justice who delegates to a Senior Presiding Judge
- Recommendations are then made by a local advisory committee. Maximum 12 members which is a mix of mags and non-mags
- 2-stage interview process: first interview is about the candidate's personal attributes and the second is judicial aptitude looking at individual studies
- People that are successful have their names submitted by the panel to the Lord Chief Justice who then makes the appointments
- The aim is to recruit a slate of candidates that reflects as broad a composition of society as possible
83
What are magistrates' roles in criminal cases?
- Magistrates decide if the defendant should be kept in custody or let out on strict conditions
- They deal with crimes like minor assaults, motoring offences, theft and handling stolen goods
- They can give punishments such as fines, unpaid work in the community, disqualify them from driving, issue discharges and prison for up to 6 months for one offence, 12 for two
- Deal with most of the preliminary work: Early Administrative Hearings, remand hearings and bail applications
- Hold trials where the defendant has pleaded not guilty and sentence when they have pleaded guilty
- Hears some youth court cases
84
What qualifications does a Jury need to have?
- Randomly selected from the electoral register
- Anyone listed on the electoral register may require serving as a juror provided that all the requirements are complied with
- You have to be between the ages of 18 and 75, registered to vote in parliamentary or local government elections, and a registered British or Irish citizen in the UK, the Channel Islands or the Isle of Man for a t least 5 years since their 13th birthday
85
What disqualifies you from being a Jury?
- If your serving a life sentence
- Imprisonment for public protection
- An extended sentence
- A term of imprisonment for 5 or more years
- You can be disqualified for 10 years if you've: served a sentence of imprisonment, had a suspended sentence, or a community order
- Mentally disordered persons: hospitalised mental illnesses, a person under guardianship, someone determined incapable by a judge
86
What is the selection process of becoming a jury?
- Vetting and routine police checks on a jury are not standard procedure, but can be requested by either the defence or the prosecution
- Selection at court. 12 are chosen at random out of 15
- Both prosecution and defence have certain rights to challenge one or more of the jurors before they are sworn in
87
What happened as a result of R v Crown at Sheffield and ex parte Brownlow (1980)?
The Court of Appeal held that police checks were an invasion of privacy
88
What happened as a result of R v Mason (1980)?
They permitted police checks stating that since it was a criminal offence to serve on a jury with a criminal conviction, the police were only doing their duty in preventing crime
89
What are Juries roles in criminal cases?
- Split function
- Majority Verdicts
- Secrecy
90
How is 'Split function' a role for juries in criminal cases?
- Judge decides points of law and the jury, the facts. The judge can direct the jury, but their decision on guilt or innocence is final, and they do not have to give reasons why
- The jury's decision is made in private
- If the judge believes there is insufficient prosecution evidence in law to allow the case to continue, he can direct the jury to find the defendant not guilty
91
How are 'majority verdicts' a role for juries in criminal cases?
- If at least 2 hours have passed, the judge can call the jury back in and accept a majority verdict (unanimous verdicts are usually preferred)
- They state that a 10:2 or an 11:1 majority is allowed on a full jury of 12, anything less and only one can dissent
- S 17(3) of the Juries Act 1974 states that the foreman of the jury must announce the numbers on a majority verdict
92
How is 'secrecy' a role for juries in criminal cases?
- Jury discussions take place in secret
- There can be no inquiry into how the jury reached its verdict
- The Criminal Justice and Courts Act 2015 makes it a criminal offence to intentionally disclose what was discussed
- The same act gives the judge the power to ask the jurors to hand in their mobile phones and devices
- If this order is disobeyed, a juror may find themselves in contempt with the court
93
What are the advantages of using juries?
- Public confidence - Considered to be one of the fundamentals of a democratic society. The right to be tried by one's peers is a bastion of liberty against the state and has been supported by eminent judges
- Jury equity - They are not bound to follow the precedent of past cases or even Acts of Parliament, and do not have to give reasons for their verdict, they can decide cases on their own ideas of 'fairness'
- Open system of justice - Making the legal system more open and keeps the law clearer
- Secrecy of the jury room - protects jurors from pressure and gives freedom to ignore the strict interpretation of the law
- Impartiality - They are not connected to anyone in the case and the process of random selection should result in a cross-section of society and will cancel out each other's bias
94
What are the disadvantages of using juries?
Selection of juries - It doesn't always give a representative sample of the population
Perverse decisions - Decisions can be seen as wrong and there can be a loss of public confidence in the fairness of the jury system
Secrecy of decision-making - No reasons have to be given for a verdict so they may not know if the jurors understand the case or not and there's no investigation of any possible malpractice within the jury room
Events outside the jury room
Extraneous material - The appeal court will also inquire into events where the material has been introduced into the jury room
Bias - One or more jurors on a panel may have a prejudice that can affect the deliberations and therefore the verdict
Media influence - Media coverage of the case they are sitting on may influence jurors
- Use of the internet to research aspects about the case
Fraud trials - May be complex for jurors
Jury tampering - People may bribe the jury and threaten them
High acquittal rates - They acquit too many defendants
95
What are the roles of a solicitor?
- Specialising - they can be general practitioners or specialise in one field. E.g. matrimonial cases
- Conveyancing - The legal side of transferring houses, buildings, and land. They no longer have the sole monopoly in this area however
- Advocacy - Representing in court.
- Legal Disciplinary Partnerships - Solicitors are allowed to partner up with other professionals such as accountants in order to provide a smoother service to the client
96
What are the roles of a barrister?
- They work independently and usually work from a set of chambers, where they share offices with maybe 10-15 others
- They owe a duty of confidentiality to a client and a duty to the court
- Have full rights of audience (the right to present a case in court, as an advocate)
- Most advocate in court, although some are company or tax specialists that rarely appear in court
- Barristers can either be directly approached by a client, contracted by a solicitor on behalf of a client, or assigned to a client in a criminal prosecution case if the defendant has no representative
- A barrister cannot turn down a case if they are free and if it is in the area of law that they deal with - 'the cab rank rule', however, they can turn it down if approached directly by a client and if the case requires further investigation
97
What are the roles of legal executives?
- They deal with various day-to-day work and can specialise in a particular area of law e.g. draft wills, handle parts of a property transfer, etc.
- They can work for local authorities, the CPS, and in company legal departments
- There's three different advocacy certificates they can obtain
98
What are the regulations for Barristers?
- The Bar Standards Board sets out a Code of Conduct that barristers have to comply with
- The Board investigates any alleged breach of the Code of Conduct
- If the matters are serious, they will be referred to a Disciplinary Tribunal arranged by an independent Bar Tribunals and Adjudication service
- The tribunals have several sanctions they could impose e.g. fines, disbarring, suspension for up to 3 years, etc.
- If a complainant is unhappy with the decision of the Bar Standards Board, a complaint can be made to the Legal Ombudsman
- Barrister enters a contract with a client on the Direct Access scheme and the client can sue for breach of contract. they can be liable for negligence for the poor quality of advocacy
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What are the regulations for solicitors?
- The SRA (Solicitors Regulation Authority) deals with complaints about professional misconduct of solicitors
- They will investigate the matter and if there's evidence of serious professional misconduct, it can put the case before the Solicitors Disciplinary Tribunal
- If the tribunal upholds the complaint, it can fine or reprimand the solicitor or, in more serious cases, it can suspend a solicitor from the Roll so that he cannot practise for a certain time
- In very serious cases the tribunal can strike off a solicitor from the Roll so that he is prevented from practising as a solicitor
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What are the regulations for Legal Executives?
- The Chartered Institute of Legal Executive (CILEx) Regulation Board regulates its members and investigates complaints about legal executives
- When an investigation Is complete a summary of the issues is prepared the matter is put to the Professional Conduct Panel for consideration
- The panel will decide if there has been misconduct. If there has not it will reject the complaint
- If there has been misconduct it may reprimand or warn a member. It will refer serious matters to the Disciplinary Tribunal
- The Tribunal has the power to exclude a person from membership and reprimand or warm the member
- The tribunal can order the legal executive to pay a fine up to £3000 and costs
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What is the role of the Judiciary?
To make decisions in a fair, unbiased way, applying the law and the legal rules of England and Wales
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What are the two types of judges?
Inferior judges, Superior judges
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Who are Inferior judges?
All judges below those that serve in the High Court
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What are District Judges?
- The vast majority of them are solicitors (with at least five years experience)
- Sits in the County Court, dealing with civil cases
- More District Judges being appointed due to Woolf reforms
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What are Assistant Recorders and Recorders?
- Part-time judges who sit in the Crown Court for 20 days in the year
- Must have been qualified as a barrister, solicitor, or legal executive for at least seven years
- Appointment is for five years
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What are Circuit Judges?
- They sit in County Courts or Crown Court
- You must have 7 years rights of audience experience or have been a Recorder
- Legal executives cannot serve as judges at this level
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What are High Court Judges?
- To qualify you must advocate at least 7 years experience within the High Court or been a Circuit Judge for at least 2 years
- They are then knighted on appointment
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What are Lord Justices of Appeal?
- They sit in the Court of Appeal and Divisional Court
- Usually appointed from among High Court Judges, but can be appointed from among practitioners with seven years High Court experience
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What are Supreme Court Justices?
- They are usually appointed from among Lord Justices of Appeal but can qualify either as practitioners with fifteen years experience or having held high judicial office for 2 years
- They sit in the Supreme Court and Judicial Committee of the Privy Council (which advises the King)
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What is the role of the Judge in a criminal trial?
- Primary duty - To ensure a fair trial. This is done by following the rules of evidence and procedure which ensures that each party has its case heard and is not allowed to act unfairly
- In Criminal trials - Cases are adversarial with proof beyond reasonable doubt. Must ensure that any jury understands the evidence. The judge only deals with points of law and will determine any sentence if the defendant is found guilty
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What is the role of a Judge in a Civil Case?
- Less adversarial since the Woolf Reforms
- Judges now have to be active in managing cases - agree timetable, etc.
- Judges must encourage alternative dispute resolution (ADR)
- Judges hear the case and then decides whose evidence is most compelling applying the law to the facts
- A jury can occasionally be used if requested in some civil trials however
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What is the Judges role in any Appeal Case?
- Judges do not usually have to concern themselves with issues of fact (in these types of cases)
- They interpret the law and decide whether the original trial judge got the law right and applied it correctly to the facts
- They may also have to decide if the sentence or award was appropriate
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How are the institutions of power separated?
They are separated into three parts:
- The Executive (or government) = propose the law
- The Legislature (or parliament) = approve the law
- The judiciary (or judges) = interpret the law
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How is judicial independence achieved?
- Security of tenure - superior level judges can only be removed from office following a petition passed by Parliament to the Monarch Inferior-level judges can be removed by the Lord Chancellor with agreement of the Lord Chief Justice
- Independence from Legislature, the Executive (judicial review), and the case
- Immunity from suit (allows judges to perform judicial duties without fear of repercussions), and that they have no interest in the cases they hear
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What are the advantages of Judicial independence?
- Those involved in a case see that the judge is not subject to any influence - their decisions are made only on the facts and law
- Ordinary citizens are protected against unlawful acts of government who must act lawfully at all times
- The public have confidence in the judicial system
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What is The Legal Aid Agency and their role?
- The agency is responsible for the administration of civil and criminal legal aid in England
- Their role is to:
-Make sure that legal aid services provided by solicitors, barristers, and the not-for-profit sector are available to the general public
-Fund the Civil Legal Advice service
-Run the Public Defender Service to give a range of services within the criminal defence market
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How does government funding work for civil cases?
- Civil legal aid provides funding in a limited number of civil cases when legal advice, mediation or representation in court are required
- Claimants have to pass both a means test and a merits test to qualify
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How does government funding work for criminal cases?
- The Agency enters into contracts with legal firms to provide legal services to people charged with criminal offences
- Under s 13 Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid for advice and assistance is provided for a suspected detained in police custody and who has requested legal advice
- The scheme isn't means tested and the advice is provided by duty solicitors
- The duty solicitor decides whether a suspect qualifies for the scheme and for either telephone or face-to-face advice
- Solicitors can only claim for attending at the police station if they can show that attendance was expected to 'materially progress the case'
- A defendant needs to pass a means and merits test in order to receive legal aid for advice and assistance from a solicitor or barrister
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How does Private funding work for legal advice?
- Anyone who can afford it can pay for legal advice from a solicitor and/or a barrister
- Solicitors specialise in certain areas so you'll need to find one that suits your needs
- Solicitors charge an hourly fee, and it can be expensive to obtain legal advice. (Can't be a fixed fee as many things will be taken into consideration when they charge)
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How do conditional fees work for legal advice?
- Solicitors and clients agree on a fee at the start
- A 'success fee', capped at 25% of any damages awarded is included
- If the claimant loses the case, they pay nothing
- Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the winning claim is now responsible for paying the success fee themselves. They cannot force the losing party to do so
- The losing side CAN however still be ordered to pay the remaining legal costs
- To protect against this, an insurance premium can be paid upfront that cannot be claimed by the winning side. These premiums can be expensive however and many people can't afford them
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How do the 'advice agencies' Trade Unions help claimants?
They can sometimes offer free legal advice in personal injury cases
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How do the 'advice agencies' Law centres help claimants?
- Free, non-means-tested legal service to local people
- Aim to provide free legal advice in areas with few solicitors
- There are only 43 centres operating, they struggle for funding, but they provide vital assistance mainly to those in the community who don't qualify for legal aid and would struggle to pay for legal assistance
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How do the 'advice agencies' Bar Pro Bono Unit help claimants?
- Free service
- Up to 3600 barristers offer their services for free here
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How does the 'advice agencies' Free Representation Unit (FRU) help claimants?
- Staffed by volunteer lawyers and law students
- They help people in employment tribunals, social security appeals, and claims for criminal injury compensation
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How do the 'advice agencies' Citizens' advice help claimants?
- Charitable organisation and bureaux in many places.
- They are staffed by both full-time employees and trained volunteers who give general advice across a wide range of issues by face-to-face contact, telephone consultations, and by email and webchat
- The main areas of advice are for debt, consumer issues, claiming welfare benefits, housing problems and employment matters
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How do the 'advice agencies' Insurance companies help claimants?
- Insurance policies include cover for help with legal fees for advice and, if necessary, taking a case to court
- E.g. vehicle insurance for road accidents or a house insurance policy covering advice and assistance if a visitor is injured on the premises
- 'Before the event' policies are taken out where there is no known claim at the time of purchase
- 'After the event' policies are required when a conditional fee agreement is entered into. This policy covers the lawyer's fees and the winner's legal costs if the claim is lost
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How do the 'advice agencies' Charities help claimants?
- They offer some form of free specialist advice in their area of work.
- They will employ either trained advisers or volunteers to provide initial device and assistance to those who contact them
- Some charities have telephone helplines offering legal advice. E.g. 'Gingerbread', 'Shelter', and more
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What are the positives when evaluating access to justice for civil cases?
- There are many ways in which a claimant in a civil case can obtain legal advice and assistance from a variety of sources
- Claimants don't have to rely solely on lawyers for such advice and assistance
- Many sources of free or cheap advice and assistance are specialists in their fields
- Have much greater knowledge and skills than high street lawyers in certain matters e.g. employment law, etc.
- Its possible to obtain legal advice and representation in a number of fields
- If unable to pay privately in specific cases there's state-funded legal aid
- CFAs with lawyers are the main source of funding for those claiming compensation for personal injuries suffered in an accident. They allow a claim to be made if the claimant is unable to afford to fund a case privately
- Using private funding for legal advice and representation allows the choice of the best or most experienced lawyer for the case
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What are the problems when evaluating obtaining access to justice for civil cases?
- Legal fees: Lawyers can't give an estimated fee, and might have to pay two fees if you lose the case, private funding is expensive and out of reach for many
- Problems with the system of CFAs. E.g. lawyer being convinced they'll be a high chance of the claim succeeding before an agreement can be entered into etc.
- Civil legal aid funding has been cut
- Due to lack of funding in civil cases, there's been a rise in the number of litigants in person which has led to more delays in court
- Cuts to funding and the expense of using lawyers have put more pressure on other advice agencies meaning greater delays as their budgets are stretched already
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What are the positives when evaluating access to justice for criminal cases?
- Suspect in police detention is able to obtain legal advice and assistance, as it will prevent the police from breaking the rules in the Police and Criminal Evidence Act 1984
- When a suspect is detained, all their possessions are taken from them and they cannot access any of their documents or salary details, so the availability of free advice without being means tested is vital
- A person facing criminal charges that could seriously affect their future should be able to tell a lawyer to investigate those charges, obtain evidence and, put forward a defence on their behalf (if appropriate). In this way, justice can be seen to be done
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What are the problems when evaluating access to justice for criminal cases?
- The government has cut the budget for criminal legal aid which has the following consequences:
- There's been no corresponding drop in the number of crimes committed, or coming to court, so the amount of money available to fund the scheme has been steadily reducing
- Fewer firms are providing criminal legal aid services as it doesn't pay them to do so. E.g. in 2010, there were 1861 in 2021-23 1147
- Rise in the number of defendants in courts that are not represented by lawyers meaning cases taking longer due to complexity and a greater chance of being guilty
- Longer-term future for solicitors' firms practicing in this area isn't promising
- Only alternative is for the government to set up a public defender service but is likely to cost far more than how much being spent now
- Due to strict means tests adults don't qualify for legal aid and for the crown court its more serious and expensive there's less money available for each case and a greater risk of injustice
- The 'interest of justice' test is strictly applied and it has to be shown there is a real prospect of imprisonment to satisfy this test
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What is litigation?
Parties go to court and the judge decides the case
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What are the advantages of arbitration?
- Parties may choose their own arbitrator under s.15 of the Arbitration Act
- Procedure is flexible and the parties can choose that which is most suited to the situation
- Matter is dealt with in private
- Dispute will be resolved more quickly
- Usually much cheaper
- Award is normally final and can be enforced by the courts
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What are the disadvantages of arbitration?
- An unexpected legal point may rise which cannot be dealt with by a non-lawyer arbitrator
- A professional arbitrator may be expensive
- It will also be expensive if the parties opt for a formal hearing, with witness giving evidence on both sides and lawyers representing
- Rights of appeal are limited
- Delays for commercial and international arbitration are almost as long as court hearing delays
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What are the advantages of using negotiation?
- Can be conducted by the parties themselves. There is no need to use lawyers or other people in the process
- Can be used at any point in the dispute from the beginning right up to the start of a court hearing
- It is the cheapest method of resolving a dispute, particularly where the parties do the negotiation themselves
- Can include agreement about future business deals.
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What are the disadvantages of using negotiation?
- It may not be successful, so that other ADR or court proceedings have to be used
- It is not suitable where the parties are very antagonistic towards each other as they will not be prepared to ‘co-operate’ in finding a resolution
- If there are repeated unsuccessful attempts at negotiation, it may prolong the whole issue
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What are the advantages of using mediation and conciliation?
- The parties are in control and can withdraw from the process at any point. Also a compromise cannot be reached without the agreement of both parties
- The decision need not be a strict legal one sticking to the letter of the law: more based on commercial common sense and compromise
- Makes it easier for companies to continue to do business with each other in the future
- They avoid the adversarial conflict of the court room and the winner/loser result of court proceedings. It has been said that with mediation, everyone wins
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What are the disadvantages of using mediation and conciliation?
- No guarantee the matter will be resolved, and it will then be necessary to go to court after the failed attempt at mediation. In such situations there is additional cost and delay to resolution
- A successful outcome requires a skilled mediator or conciliator. If skilled qualities aren’t present, mediation can become a bullying exercise in which the weaker party may be forced into a settlement. This is even more likely to happen in conciliation where the conciliator plays an active role in suggesting grounds for compromise or settlement
- Amounts paid in mediated settlements are often lower than the amounts agreed in other settlements, and considerably lower than amounts awarded by the courts
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What is Negotiation (ADR)?
The process of trying to come to an agreement directly with the other party
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What is Mediation(ADR)?
Using a neutral third party in a dispute to help the parties come to a compromise solution
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What is Conciliation (ADR)?
A neutral third party involved but more active than mediation who actively suggests solutions
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What is Arbitration (ADR)?
Where an independent arbitrator decides the case/ makes a binding decision
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What is the most important point to establish when looking at aggravating factors making a offence/in sentencing?
- How serious was it, of its type?
- This is set out in s 143(1) of the Criminal Justice Act 2003
- States "In considering the seriousness of the offence, the court must consider the offender's culpability in committing the offence caused, or was intended to cause or might reasonably foreseeably have caused"
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What are the factors that The Criminal Justice Act 2003 give which are considered as aggravating factors making an offence more serious?
- Previous convictions for offences of a similar nature or relevant to the present offence
- The fact that the defendant was on ball when he committed the offence
- Racial or religious hostility being involved in the offence
- Hostility to disability or sexual orientation being involved in the offence
- (Also other factors not in the act regarded as aggravating features for specific offences)
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What happens in court when there is an aggravating factor?
- The court will pass a more severe sentence than it would normally have given
- Magistrates and judges all have a copy of the guidelines issued by the Sentencing Council
- These give a starting point for an offence, depending on certain factors, in particular whether the magistrates should be thinking of a custodial sentence or a community order
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What is a mitigating factor?
One which allows the court to give a lighter sentence than would normally be given
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What are mitigating factors that can be taken into account when deciding sentencing?
- If the offender co-operates with the police e.g. helping identify others involved in the crime
- Mental illness of the defendant
- Physical illness of the defendant
- The fact that a defendant has no previous convictions
- Evidence of genuine remorse
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How does a guilty plea help a sentence length?
- There will be a reduction in sentence particularly where the defendant made that plea early in the proceedings
- The only exception is where the evidence is overwhelming and the defendants guilt is clear and in these circumstances even if the defendants pleads guilty at the earliest possible opportunity, the judge need only give a 20% discount for that plea of guilty compared to 1/3 or 1/10 in other situations
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What is the training for new lay magistrates?
- Training is supervised by the Magisterial Committee of the Judicial College
- Carried out in local areas
- There's a syllabus divided into 3 parts: initial introductory training (understanding), core training (learn etc), and activities (observations)
- After 2 years of more sessions and sitting in court whenever its felt that they're ready, an appraisal will take place to check if he has acquired the competencies
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What're the advantages of lay magistrates?
- They are a cross-section of society
- They have local knowledge as they live in the area and should know the problems/what's going on
- They're much cheaper than using professional judges
- They are well trained and also have a clerk as legal adviser
- They do their job well as there're relatively few appeals from their decisions
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What're the disadvantages of lay magistrates?
- They're middle-aged and middle class
- There's inconsistency in sentencing - pass very different sentences for what looks like similar offences
- They may rely too heavily on the clerk - if they all lack legal knowledge (won't prevent inconsistencies in sentencing as clerk can't help them decide on a sentence)
- There may be prosecution bias e.g. believing the police too readily
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How enforced is the independence of the jury?
- Independence of the jury has become even more firmly established following Bushell's case (1670) - established that the jury was the sole arbiter of fact and the judge could not challenge its decision
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How do discretionary excusals relating to jury duty work?
- Anyone who has problems which make it very difficult for them to do their jury service may ask to be excused or for their period of service to be put back to a later date
- The court has discretion to grant such an excusal but will only do so if there is a sufficiently good reason e.g. being too ill, suffering from a disability making it impossible for the person to sit as juror, being a mum with a small baby, business appointments, pre-booked holidays and more
- In these situations the court is most likely yo defer jury service to a more convenient date, rather than excuse the person completely (stated in the guidance for summoning officers)
- If a person isn't excused from jury service they must attend on the date set or her may be fined up to £1000 for not attending
