Section A Flashcards
(115 cards)
1
Q
Civil law
A
Purpose: regulates private disputes between individuals.
Parties: claimant v defendant
Decision maker: judge
Burden of proof: claimant must prove case
Standard of proof: on the balance of probabilities
Courts: county or high
Remedies: damages( compensation) or injunction
2
Q
Criminal law
A
Purpose: state regulated individuals behaviour
Parties: prosecution v defence
Decision maker: magistrate, judge or jury
Burden of proof: prosecution must prove case
Standard of proof: beyond all reasonable doubt
Courts: magistrates or crown
Remedies: prison, fines or community service
3
Q
Separation of powers
A
Judiciary: apply laws- Judges
Legislature: pass laws- Par
Executive: propose laws- Gov
“Should remain separate in order to prevent any person or group of persons becoming too powerful” Montesquieu
CONSTITUTIONAL REFORM ACT 2005- House of Lords moving to Supreme court to ensure separation
4
Q
Parliamentary supremacy/ sovereignty
A
Theory that parliament is the supreme law-making body.
A.V. Dicey:
Parliamentary can legislate on any subject matter
No parliament can be bound by any previous nor pass any Act that would bind a latter parliament
No other body has the right to override or set aside an Act of Parliament.
5
Q
Rule of law
A
Theory that everyone should know the law and obey it. The law is the most important aspect of society as it prevents anarchy or arbitrary government.
Key aspects:
Can’t be punished unless broken law
Equal before law
Law should be ascertainable (can be found and identified)
Law should be certain
Law must guarantee civil liberties (for the good of citizens)
Hearing must be impartial (right to fair trial)
6
Q
Point of law
A
Particular question relating to the law, especially one that might need to be explained to people who are not experts
7
Q
Leave to Appeal
A
Permission to appeal the decision of a court
8
Q
Appeal
A
Apply to a higher court for a reversal of the decision of a lower court
9
Q
Case stated appeal
A
Appeal to a superior court on the basis of a set of facts (case) specified by the inferior courts (stated) for the superior court to make a decision on the application of the law to those facts
10
Q
What are lay magistrates?
A
These are unpaid, part-time judges who have no professional legal qualifications.
Justices of peace
17,000 in England and Wales approx
Sit to heat cases as a bench of 2/3 magistrates
11
Q
Magistrates qualifications-formal
A
18-75 on appointment
British, Irish or commonwealth citizen
In good health
Live close to/in area of court
Have satisfactory hearing
Able to sit for 26 half days in a year
12
Q
Six key qualities by Lord Chancellor mag
A
Good character
Understanding and communication
Social awareness
Maturity and temperament
Sound judgement
Commitment and reliability
13
Q
Prospective magistrates must also agree to
A
Take an oath of allegiance and disclose all criminal convictions+ civil orders (divorce, etc)
Certain people do not qualify if: their job leads to a conflict of interest (Police officer)
14
Q
Selection of magistrates
A
Appointed by current Lord Chief Justice- delegated to senior presiding judge who relies on recommendations made by local advisory committee.
Vacancies are advertised on radio or local newspapers- application form
Process:
First interview with Local Advisory Committee. Consists of local people and some magistrates
If successful: second interview involves case studies and background chevks
15
Q
Appointment of mag
A
LAC complies a shortlist
Passes to Lord Chief Justice-( Lord Burnett of Maldron)
Delegates to presiding judge for England and Wales (Lady Justice Macur)
Officially appoints lay magistrate on behalf of Queen/King
Appointed to particular court in order to reflect the local community so representation of area in terms of gender(57% fem), age and ethnicity(minorities-13%). No recorded disability
16
Q
Role of mag
A
Magistrates Court Act 1980.
Maximum sentence of 12 months- Sentencing Act 2020.
Can be asked to issue police warrants for search or arrest, approve further detention at police station (max 96 hours) Police and Criminal Evidence Act 1984
97% of criminal cases
Specifically trained mag work in Youth Court ( 10-17)
See evidence and hear.
Mode of trial heaings- determines whether have jurisdiction to decide outcome and sentence.
Decide on guilt and sentence.
Deal with first hearings
Grant/refuse bail BAIL ACT 1976
Transfer cases to crown court
Assisted by magistrate clerk- qualified as barrister or solicitor for at least 5 years.
All summary and some triable
17
Q
Juries
A
Independence of jury firmly established in BUSHELLS CASE 1670- held jurors could not be punished for their verdict.
Everyone including judges, lawyers, police can now serve CRIMINAL JUSTICE ACT 2003.
Contempt of Court Act 1981- anything discussed amongst the jurors cannot be disclosed. Not allowed mobile phones or computers to ensure secrecy and must not research the case online or base their decision on anything other then the evidence
EXCEPTION: under s44 CJA 2003 not used due to jury tampering R v Twomey heard by judge alone
18
Q
Jury qualification
A
Rules about who can and cannot be a jury cane from THE JURIES ACT1974 & CRIMINAL JUSTICE ACT 2003.
18-75 years old
Registered on the electoral register
Resident in the UK for 5 years or more since age 13
19
Q
Jury appointment
A
No formal appointment. Once selected they must swear an oath to make their decision fairly and this enables a person to serve
20
Q
Jury selection
A
Selected at random by the Jury Central Summoning Bureau. Jurors can be better by police check it in exceptional cases by a wider background check. A summons (letter) will be received by post informing a person they must attend for jury service on a given date. At court 15 people are randomly selected from the assembly room and 12 are then chosen from this group. Once selected, sworn in
21
Q
Disqualification-> permanent . Fined if turned up to either
A
If sentenced to:
5 years in prison
An extended sentence
Life imprisonment
Suspended sentence @
On bail
Community order @
22
Q
10 year disqualification I’d in the last 10 years:
A
Served a sentence
Suspended sentence @
Community order @
Any time in prison UP to 5 years
23
Q
Deferral/ discretionary excusal
A
Anyone with problems that make it difficult for them to do their jury service jay ask to be excused- period of service date changed
Sufficiently good reason + put back to later date- up to 12 months.
Exams, operation, pre-booked holiday
Fined up to £1,000.
24
Q
Excusal
A
Means a person does not need to do their jury duty service if they could not manage the trial e.g insufficient understanding of English, disability.
If a person is not excused and fails to turn up, he may be fined up to £1,000 for non-attendance
25
Selection and challenge (3)
Challenge for cause- an individual jurors is challenged for a cause / reason e.g known to a witness or D or connected to the case as in WILSON AND SPRASON.
Challenge to the array- the whole jury is unrepresentative e.g. The Romford Jury 9/12 lived on the same street.
Prosecution right to stand by- Allows jurors who has been stood by to be put at the end of the list of potential jurors so they would not be used unless there are not enough jurors
26
Role of jury is criminal cases CRIMINAL
Only used if pleads NOT guilty in Crown Court. 50,000 people are summoned approx.
Professionals can serve CRIMINAL JUSTICE ACT 2003 (R v Green)
Jury secracy- don't have to explain choice CRIMINAL JUSTICE AND COURTS ACT 2015.
Unanimous vote not always 12/12 just majority 10:2, 11:1.
Listen to judges summing up before discussing.
Listen to evidence
Directed acquittal - not enough evidence -> not guilty
A foreman is selected to announce- judges can't change
27
Role of jury CIVIL
Rare occasions, 8 members may be asked to sit, defamation(liable or not and how much compensation awarded) , fraud, false imprisonment, malicious prosecution.
Rules for using juries in civil cases are contained in:
SENIOR COURTS ACT 1981- HIGH COURT CASES
COUNTY COURTS ACT 1984- COUNTY COURT
CORONERS AND JUSTICE ACT 2009: CORONERS INQUIRIES
28
Jury evaluation
Advantages:
No legal knowledge/ experts so not bound by precedents of past cases as they are randomly selected from electoral role. Leads to honest verdicts based off evidence from case.
Influence protected from outside influence due to secracy of jury room. Jury's are free from pressure or open discussion and rely solely on own opinion. Verdicts don't have bias.
12 member jury is diverse because each come from different backgrounds and can give a balanced arguement that takes into account several factors. This means that bias is cancelled out.
Open system of Justice- whole process is public. Also keeps law clearer as points are explained to the public
Disadvantage:
Cases may last up to weeks and months- previous evidence may be forgotten
No legal knowledge, information cannot be fully informed as randomly selected may lead to verdicts that may go against usual convictions or what the law would usually see as guilty.
Media influence Herd v Depp
Bias-> true crime podcasts
29
Solicitors
Members of the Law Society.
Approx 160,676 in England & Wales.
Rights of audience ACCESS TO JUSTICE ACT 1999- automatic in county+ mag . Additional "certificate of advocacy".
Consult barristers for complex cases and brief them if need to go to court.
Negotiate for clients
Controlled by own professional body- work for local government, civil service, crown prosecution service or private businesses
Draw up contracts
Usually clients first point of contact with legal profession.
Draft wills
Take witness statements
Legal advice
Solicitor advocate for 10 years -> Kings cousel
SQE and work experience in firm
30
Solicitors regulation authority
1.Complaints procedure of the firm and firm must respond in 28 days. If matter not resolved then 2.through SRA: Legal service Act 2007
investigate complaints about professional misconduct.
3.In very severe cases the Tribunal can suspend or strike off a solicitor from profession.
If complainant not happy with SRA they will take case to Legal 4. Ombudsman- can appeal SRA decision
31
2 grounds solicitor can be sued on
A solicitor deals closely with clients and so can enter into a contract with them. If client does not pay a solicitor, the solicitor has the right to sue for his fees. A client can sue their solicitor on two grounds:
Breach of contract - if the solicitor fails to do the work properly the client can sue them for this.
Negligence:
If the solicitor fails to complete his or her work properly, a client can sue them for this.
GRIFFITHS V DAWSON 1993.
Solicitors for claimant failed to make the correct application in divorce proceedings against her husband. Lost financially and solicitor ordered to pay £21,000 compensation.
Other people affected by can sue:
White v Jones 1995
Father wanted to make a will leaving £9,000 to each daughter. Solicitor didn't do anything so did not inherit
32
Barristers
Members of Bar Council
Question witnesses in court
Specialist advocates who represent client in court
Direct access: barrister can be instructed by clients directly and through solicitors
Make opening statements for clients
Cab rank rule: cannot turn down cade if it is within their expertise/ free to take the case
Self employed and work from chambers where they share adminstration duties with other barristers (usually 15-20)
Can be employed and work fro the CPS, government and work within an alternative business structure
Argue over sentencing
Advise solicitors
Make closing statements for clients
After 10 years can join kings counsel- high profit, complex cases, taking silk, junior b can assist with cases
Basic qualification: bar practice course + pupilage as practical training
33
Barrister complaints
Chamber:28 days
Bar standard board LEGAL SERVICES ACT 2007: punish b, warn, fine up to £1,000.
Bar Tribunal& adjudication service- fines up to £500,000 and strike off
Legal Ombudsman - appeals
Failing duty- Hall v Simon's
Civil court for negligence Saif Ali v Sydney Mitchell 1980
34
Legal Executives
Members of Chartered Institute of Legal Executives
Consult barristers if complex
Provide legal advice
Take witness statements
Assist solicitors in court
Draft wills and contracts
Limited advocacy rights- advocacy certificates:
Civil proceedings certificate- county
Criminal proceedings certificate: bail/ cases in Youth Court
Family proceedings certificate: family/ magistrates court
35
Legal executive complaints
Complain to firm: 28 days
CILEX REGULATION BOARD- can reject complaint if no misconduct, code of conduct, investigate and decide punishment
CRB: stage 1: panel of 3 investigate and decide punishment if more severe.
Stage 2: different panel of 3- fine or exclude from CILEX
legal ombudsman - appeal
ALL: apologize, out things right if more work can correct the wrong, refund/ reduce legal fees, pay compensation up to £30,000
36
Judiciary
Made up of judges, magistrates, tribunal members and coroners.
Head of the Judiciary is The Lord Chief Justice
Interpret and apply laws
Divided into superior (high court and above( and inferior judges
37
Superior judges
Justices of the supreme court(15 years qualified in senior courts, panel of 3)
Lord justices of appeal- have to be qualified as s, b or experience in law for at least 7 years or be existing High Court Judge and officially appointed by Monarch: criminal-> appeals from trials in the crown court. Civil Division of COA appeals in county and high. Panel of 3 or 5
High court judges (puisne judges)
38
Inferior judges
Circuit judges
Recorders (part time)
District judges
District judges (mag)
39
Judges in appeal courts
Review case law, decide we it me is wrong/ unsafe, revise sentence/ award, clarify/ amend law where appropriate, reviewed Ng situations in relation to Human Rights Act 1998, decision made in 3 or more judges sitting together, change decisions n or order retrial, decide issues of law, judicial review-KBD of HC
40
Role of judges CIVIL AND CRIMINAL
District CIVIL:
County court.Hear *first instance* cases.Make a decision and state a remedy
District CRIMINAL: Mag. Sit on own and pass sentence
Recorder CIVIL & CRIMINAL: county, crown. Part time 1 month, 11 months as b or s.
Circuit CIVIL:
county, track, own and decide + r
Criminal circuit: crown, jury who decide facts, sentence
High (both in High court) CIVIL:
*First instance* and appeals. D+ r hear from witnesses
CRIMINAL: sit in crown for serious and appeals from mag
Lord/ lady of justices of appeal both in courts of appeal.
CIVIL: appeals from high court, decision on point of law become precedent, appeals against liability
CRIMINAL: appeals against sentence/ conviction
Justices of Supreme court: appeals from court of appeals and high court, appeals on point of law of public importance
41
Independence of judiciary
Concept that judiciary needs to be kept away from other branches of government
Protecting liberty, not subject to improper influence of other branches, impartial and independent from external pressures so public can have confidence that their cases will be decided fairly and in accordance with law.
42
Security of Tenure (permanently appointed to post)
Superior judges CANNOT be removed by Lord Chancellor of government while inferior CAN for incapacity or misbehaviour e.g. criminal conviction under CONSTITUTIONAL REFORM ACT 2005 the Lord Chancellor must have the consent of the Lord Chief Justice before he can remove judge. Superior judges can ONLY be removed by monarch following a petition presented to her by both houses of parliament-> allows judges to be independent in their judgements.
43
Immunity from suit (prosecution)
Given for any acts they carry out in their role as a judge e.g decisions made in the course of their judicial duties. Immunity from prosecution allows judge to perform duties without fear of consequences (Sirrors v Moore)
44
Independence from other two arms of the state ( separation of powers)
Independence from executive (gov) guaranteed under CONSTITUTIONAL REFORM ACT 2005
Judges cannot be dismissed by gov meaning they are fr e to make decisions even if it displeases the gov R (Miller) V Secretary of State fro Exiting the EU (2016) couldn't start processes without consulting parliament
Judges are recommended by appointment by an independent body: Judicial Appointments commission-> keeps independent
45
From legislature
Judges are not involved in law making functions of Parliament as full time judges are not allowed to be members of the House of Commons
The creation of the supreme court in 2009 helped clearly differentiate judiciary from legislature
46
Independence from case
Judges must be impartial when making decisions
Judges must not try any case where they have any interest in the issue involved Pinochet case (1998)- judge affiliated with amnesty international
47
Evaluation of juridical independence
Advantages:
Removes bias as they have no connection -> impartial. Honest verdict
Separation of powers
Law- making power -> common law
Superior judges
Disadvantages
Hard to prove connection
Commom law
90% of superior judges Oxbridge
Inferior
48
Evaluation of judiciary
Advantage:
Majority come from Oxbridge
Representative -> 2017 23 judges women in High Court
Split courts-> severity
Common law
Expertise+ decisions legally binding
Disadvantages:
Elderly, white, upper-class male-> not representative
Too much power-> ideologies
Conflicts with separation of powers as made up of common law
Biased
49
Criminal court hierarchy
Supreme court
Court of appeal
Crown
Mag
50
Summary offence
Least serious type of offence dealt in the mag court e.g assault and battery
51
Triable either way
Middle range offence e.g. S47ABH, theft, S20 GBH
MAG OR CROWN
52
Indictable
Mózg serious type of offence e.g murder, mansalighter, S18 GBH
53
Work of Crown Court
Jury decides the verdict & judge passes the sentence:
Hear all indictable cases
Hear appeals from the mag court against conviction or sentence- done by a judge and 2 lay Mag
Sentences in cases where accused are found guilty by the mag but they consider they do not have the power to pass the appropriate sentence
54
Pretrial procedure Summary Offences
Dealt with in Mag- often at first appearance
Case may be adjourned if more evidence is needed (paused) to allow D to get legal advice, or for pre-sentence reports. D can request bail BAIL ACT 1976.
SENTENCING ACT 2020
If D pleads guilty, the Mag will pass sentence.
If D pleads not guilty, trial is heard and decided by mag. Both sides give evidence. P must prove D'$ guilt.
55
Pre-trial procedure: triable either way offence
Begin in mag court. D pleads guilty or not guilty at the Plea Before Venue hearing. Bail and legal funding can he discussed at any time.
If D pleads GUILTY - the Mag hear case facts and decide if have sentencing power. If so they sentence D. If not, they commit D to Crown court for sentence.
If D pleads NOT guilty, there is a Mode of Trial Hearing. Mag hear case facts and decide if can accept the trial.
If Mag accept trial, D can choose trial in the Mag or Crown Court.
If Mag do NOT accept trial, it takes place in Crown Court- D cannot choose
56
Pre- trial procedure Indictable Offence
Begin in Mag Court for Early Adminstrative Hearing on issues such as bail (BAIL ACT 1976)
Sent to Crown Court for Plea and Directions Hearing
If D pleads guilty, case is adjourned for pre- sentence reports
If D pleads NOT guilty, case adjourned before Trial Legal Funding and bail discussed.
Most severe- decided before judge and jury
57
Appeals from magistrates- side, c or s,y,
-> Crown Court: defence only, automatic right, no need to get leave, conviction/sentence, case reheard by judge and 2 magistrates, confirm, revers or vary conviction
High Court Kings Division: prosecution AND defence, conviction only, case-stated appeal (mag made mistake), confirm, reverse or vary conviction
58
Appeals from crown court
Court of appeal- Defence: conviction/sentence, leave to Appeal NEEDED, condition must be unsafe (law not followed), 28 days to file application, can quash conviction or order re-trial.
Prosecution: against unduly lenient sentence, done by Attorney general on behalf of prosecution, can increase sentence.
High court:Kings bench division: prosecution appeal because of nobbling, jury or witness has been bribed or threatened, can order re-trial. Leap frog appeal (C V DPP) to supreme.
Supreme Court- prosecution AND defence, need leave to Appeal, point of general public importance
59
Aims of Sentencing
S57(2) Sentencing Act 2020.
Aims of sentencing affect what sentence the magistrate/judge choose
60
Deterrence
To put off the offender (individual deterrence- make punishment so unpleasant they won't reoffend) or to put off other people (general- discourage). Prison sentence or heavy fine or suspended sentence
61
Punishment of the offender
Revenge ot punishment. States the punishment should reflect the severity. Longer custodial sentences
62
Public protection
To prevent the offender from harming the public, applies particularly to crimes of vulnerability lent or sexual nature. Incapacitation. Long custodial sentences
63
Reparation
To give something back to the victim through compensation or community (unpaid work). Returning stolen property, apologising
64
Reform & rehabilitation
To reform the offender and try to 'cure' his criminal behaviour. Facility, court order to get therapy
65
Sentencing factors
General factors: seriousness, previous convictions, medical reports, character statements, defendant's financial circumstances
66
Aggravating factors
Make a crime more serious and may increase sentence.
Vulnerable victim, breach of a position of trust, use of a weapon, racially/religiously motivated, offence premeditated, previous convictions, committed by group/gang, serious injury caused, committed whilst on bail
67
Mitigating factors
May reduce the sentence.
Young defendant, no previous convictions, shows remorse, early guilt plea, D suffers from mental illness/disability, injury suffered is minor, D provoked/acted in self defense
68
Custodial sentences
Mandatory life sentence- murder 18+. Minimum term to be served before release on likence ranges from whole life down to 12 years
Discretionary life sentence- given for other serious offences (manslaughter) but the judge has discretion in imposing a lesser sentence if appropriate.
Fixed term sentence- set number of months or years but automatically released on likence after half sentence served 21+
Suspended sentence - up to 2 years can be given- only served if offender commits further offences
69
Community sentences
Unpaid work requirement- requires the offender to work for between 40-300 hours over a 12 month period on a suitable project.
Exclusion requirement- offenders are ordered not to go to certain places for up to 2 years.
Curfew requirement- ordered to remain at a fixed address for 2-16 hours a day over 12 months- electronic monitoring device (tag)
Programme requirement- participant which addresses the offending behaviour
Drug/alcohol rehabilitation requirement- designed to reduce dependency. Can be resident or non-resident
70
Fines
Unlimited -common in mag and crown club yet only a very small percentage of offenders receive a fine
71
Discharge
Conditional - Free to go on condition that joncurther offences are committed during a set period of up to 3 years. If reoffends-> can't yet can IM ide another sentence in place of conditional discharge. Often used by mag on first-time minor offenders
Absolute - no penalty imposed. Used where an offender is technically guilty but morally blameless
72
Other types of sentences
Compensation order
Disqualification from driving
Forefeiture order-house back to bank for not paying mortgage payments
73
Civil courts hierarchy
Supreme
Court of appeal
High court
County
Civil case arises when an individual or business believes their rights have been infringed:(Donoghue v Stevenson). "Neighbourhood principle" established by Lord Atkin
74
Pre- action protocol
List of things the parties have taken fo before the case begins
C send D a letter to explain why D at fault; details of injury, etc
D has 14 days to investigate and explain if he accepts or denies liability
Parties should agree on expert witness if required. Failure to comply may result in liability for certain costs
The V must start by fiking on n an N1 form which sets out details of their case
An allocation questionnaire will also need to be completed
Depending on teh amount being claimed ajd the complexity of the case, a "track" will be allocated
Track will decide where the case will be heard
75
County court jurisdictions
Around 200 in UK , main civil court. Jurisdiction: contract and tort, cases for recovery of land, inheritance up to £300,000. Can be heard in all 3 tracks. Small claims and fast travk- district judge and multi travk- circuit judge
76
High court jurisdictions
Heard multi track cases +£25,000+) based in London but has judges in 26 towns and cities in UK. Split into 3 divisions
77
Kings bench division jurisdiction
Biggest division. Deals with contract, and tort. Claims may involve issues of personal injury, negligence, breach of contract and defamation. Tried by single judge but in libel and slander juries. There is Adminstrative Court- supervised lawfulness of the conduct on national and local governments through judicial review
78
Chancery division
Disputes relating to business, property or tax
Disputes over land
Intellectual property issues
Disputes over the validity of a will (inheritance disputes)
79
Family division jurisdiction
Heard matrimonial matters and deals with cases under the CHILDREN ACT 1984. Heard cases about forced marriage, and female genital mutilation. The crimes and courts act 2013 created a new separate family court. Most family matters are dealt with by the Family Court unless they involve complex issues of law
80
Small claim tracks
Under £10,000. County court hears all. Supposed to be quick and efficient system of dealing with claims for low amounts of money. People are encouraged to take their own case without lawyers if use them then they must pay it themselves even if they win. Legal aid not available. Not using lawyers ryen district judge should help parties
81
Fast track
Involve claims between £10,000 and £25,000. Cases heard by country court. Cases must stick the strict timetable. Aim to have hearing within 30 weeks and hearing itself limited to one day. Judge must ensure case is e heard quickly and efficiently
82
Multi track
Claims for £25,000 or more-circuit judge. Cases heard in either county or high court. Claims for over £50,00 are likely to be in High court. Must make sure heard quickly and efficiently - judges set strict timetable:disclosed, how many witnesses will be used and trial time
83
Civil appeals
Appeal route depends on the level of judge hearing the case. It case heard by district judge in county court then appeal heard by circuit in the same court. It heard by circuit then appeal is to a high court judge.
Small/fast- Possibility of a second ot further appeal-> always to Court of Appeal (Civil Division). However only allowed in exceptional cases under S55 ACCESS TO JUSTICE ACT 1999.
Multitrack- Appeal decision of high Court or county-> Court of Appeal. Rare cases may be a leapfrog appeal directly to supreme Court from high court-> must involve a point of law of general public importance + SC must give leave to Appeal.
From decision of COurt of appeal there is further appeal to supreme court but leave must be granted from COA or SC
84
Evaluation of civil courts
A- public/media don't have access to court room-> rule of law everyone has right to fair trial. Fast track has a speed up process-> case facts not forgotten. Court is the last option-> ADR-> courts aren't overwhelmed by ingenuine claims. legal aid (except small track)
D: cost higher than claim, long wait to hear cases and delays. Inequality of bargaining power if legal aid not available, judges upper class -> lack of empathy/ over involvement
85
Tribunals
Deal with issues such as unfair dismissal, redundancy, pay, discrimination in work place.
Panel of 3 people: 1 legally qualified +2 experienced in area.
Tribunals, court and enforcement act 2007
86
Tribunals preliminary
Claim must be brought within 3 months from event. ACAS must be contacted withing this time for early conciliation to see if resolution. If fails-> claim issued to Employment Tribunal: claimant fill in an ET1 form and sdnd them and reoosndent has to fill in ET3 form to respond to claimant
87
Tribunals procedures
Both sides opportunity to put case forward, sometimes formal process (employment + asylum) with witnesses giving evidence on oath and being cross examined. Funding available in n a few- applicants present their eon case, by a lawyer or a trade union official. Decision of tribunal is legally binding
88
Tribunal hearing
Full hearing- oathm usually open to public but rarely publicised. Hearings short - decide on day or later in writing. Collective decision issued in writing: employee in favour: encourage settlement (favourable reference, compensation). Settlement cannot be reached- compensation awarded. If claim lost- employee does not pay employers costs but responsible for cost of lawyers used
89
Tribunal decision
Either side dissatisfied -> can appeal within 14 days
90
ADR
Another way of solving civil disputes without the use of a legal court. Following Woolf reform-> encouraged by courts
91
Mediation- NOT LB
Involves an independent third party meeting with the parties in dispute to try to get them to reach a settlement - will NOT make suggestions but instead facilitate them to make their own
Most popular- businesses + local councils to help solve neighbour disputes, informal-less intimidating, if does not succeed goes to court,can take other forms- mini -trial, used in family disputes+ often trained in counselling skills. FAMILY LAW ACT 1996- encouraged for divorcing couples.
92
Arbitration- S1 Arbitration Act 1996
Parties free to choose who will be the arbitrator in their case-> lawyer/expert in area of dispute. May be panel or single. The institute of arbitrators provide skilled if parties cannot choose. Most formal type of ADR. Legally binding and decision can be enforced by court. S69- award challenged in Kings Bench Divisional court on point of law, requires leave to Appeal.
Hearing- set for time and date, formal or in, paper a submit dispute in writing to a who will decide awards to who
SCOTT V AVERY CLAUSE- businesses may used in contracts -> sign agree if dispute arbitration used. S9 court may ask to enforce if party tries to start court proceedings
93
Negotiation
Not legally binding unless formal contract. Less formal way to solve dispute. Most parties in dispute will initially try to negotiate settlement before further action taken- easiest way without court. Often continue while waiting for trial and may solve. Also take place between solicitors of parties in run up to trial. A part 36 offer may be made and tger are costs consequences for other side should they fail beat this at trial - encourages settlement
94
Conciliation
Less formal that A. Similar to M except c will play more active role in trying to solve dispute. They are a neutral third party who will actively try to get parties to come to agreement. Will often meet separately, has no authority to see evidence or call witnesses. NOT binding unless agreed by parties it is. Can still go to court. C offers non binding opinion, ACAS (advisory conciliatory Arbitration service) offers service for dispute between employees and employers. Usually used by companies who may use it to assess the strength of their case before Court
95
M + c evaluation
A- cheaper, quicker than court. More in control of decision, keeps parties on good terms.
D- not legally binding -> court. Only effective if skilled, imbalance of power, settlement less than damages from court
96
A evaluation
A-Quicker than court, choice over a, a has more expertise, legally binding
D- expensive if last long time, end up in court anyway if can't settle, limited appeal as final and binding, power imbalance
97
N evaluation
A- quicker than court, cheap, can be used for any dispute,maintain relationships, personal growth-> communication skills +transferrable
D- not legally binding, don't have expertise-> imbalance of power, time consuming-> waste of time, no third party to ensure fairness
98
Access to justice
Involves both an open system of justice and being able to fund cost of case
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Legal funding
When faced with legal problem people will often need expert help -initual advice, court proceedings and representation. Don't have access to justice; lack of knowledge of who to seek advice from, being intimidated and in fear of dealing with lawyers and cost.
Public funding- legal aid (gov)
Private funding
Pro-bono services
Conditional fee agreement (no win no fee)
Insurance
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Private fundings
Solicitors van charge £150 ph- £1,000
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Conditional fee agreement
Only available in civil (except family) agreed percentage. Success fee:100%. 25% cap in personal injury cases
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Insurance
Before and after event, cover costs in case of loss, motor home insurance
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Legal aid
Under control of the Ministry of Justice following the LEGAL AID, SENTENCING AND Punishment OF OFFENDERS ACT (LASPO) 2012
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Legal aid available only
The case is serious
The person cannot afford legal fees and the case is eligible
Not available in CIVIL unless in category mentioned in the act it regulations emg children's right, debt, education
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Means tested (legal aid)
An assessment of income and property
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Problems with legal aid
Reduced funding-> less available in certain areas-> LEGAL SERVICES COMMISSION have acknowledged
Resulted in 'advice deserts ' where no publicly funded legal advice is available for citizens
Restricted -> denial to access of justice-> select committee on constitutional affairs noted this in 2004
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Legal aid CRIMINAL
The head of criminal casework supervises criminal legal aid and oversees all applications for it
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In custody legal aid CRIMINAL
S13 LASPO 2013
Available to individual in custody:
Initial advice + assistance, head of criminal casework decide if qualify + must have regard for the interests of justice. Duty solicitor from law firm that the legal aid agency has made control to provide such assistance
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Legal proceedings legal aid CRIMINAL
S15 LASPO 2013
Consider:
If individual likely to lose liberty or reputation
I able to understand or present case on own
Proceedings concern and important question of law
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Interests of justice test legal aid CRIMINAL
If D eligable:
Likely lose liberty or livelihood or suffer serious damage to reputation if case decided against them
Case involve consideration of point of law
Unable to understand proceedings ot unable to state own case
Case involve tracing, interviewing or expert cross-examination of witness
Interests of another person that D be represented e.g rape case
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Financial eligibility CRIM legal aid MAG
LEgal aid agency will consider gross annual income-> more than £22,325, consider Vs outgoings -> rent, childcare, assistance, means testing -> under 16 or 18+ in full time education AUTOMATICALLY
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Financial eligibility CRIM legal aid CROWN
Eligible if below £12,475, earns more but less than £37,500 of disposable income annually will receive but contribute towards costs. D guilty -> asked to pay additional contributions
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Civil cases finical eligibility legal aid
Applications governed by Head of civil legal aid in Legal aid agency
Director will consider:
Cost of devices and benefit who may be obtained
Availability of service
Importance to individual
Nature and seriousness of case
Chance of success
Public interest
People seeking certain benefits are automatically eligible-> income support or job seekers allowance.
Gross monthly income over £2,657 or disposable income over £733 NOT ELIGIBLE
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Evaluation CIVIL
A: private funding allows for legal advice/ representation-> better choice/experience, access to legal aid: state funded, various options, don't always need to rely on lawyers
Cheap + free advice
D: cost of legal fees and paying winners costs, civil legal aid funding budget cut while civil claims increased, conditional fee agreement ->compensation lowered due to fees and lawyer has to be convinced of winning, cuts to funding and expense of lawyer-> more pressure on advice agencies
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Evaluation criminal cases
A: rights to fair trial-> rule of law, availability of legal aid essential to provide justice when person cannot pay as serious criminal charges can effect future, TBC, TBC
D:legal aid funding cuts, diss in number of inexperienced lawyers from legal aid representation, fewer firms provide if don't get paid, TBC
