The English Legal System Flashcards
(121 cards)
1
Q
What are the 2 different courts?
A
Magistrates’ and Crown Court
2
Q
What are the 3 different classifications of offences?
A
- Summary Offences
- Triable Either Way
- Indictable Offences
3
Q
What are Summary Offences?
A
The least serious crimes that are only tried in the Magistrates’ Court
4
Q
What are some examples of summary offences?
A
Driving offences and minor assaults
5
Q
What are triable either way offences?
A
Middle range crimes that can be tried in either the Magistrates’ or the Crown Court depending in the defendant’s decision
6
Q
What are some examples of triable either way offences?
A
Theft, ABH, Bigamy and Obtaining property by deception
7
Q
What are Indictable offences?
A
The most serious crimes that can only be tried at the Crown Court by a judge
8
Q
What are some examples of indictable offences?
A
Murder, Manslaughter, Rape, Robbery
9
Q
What are the functions of the Magistrates’ Court?
A
- To try summary and triable either way offences
- Initial hearings of triable either way offences
- Preliminary hearings for indictable offences
- Issue warrants
- Youth court hearings aged 10-17 inclusive
- Civil jurisdiction
- Consider bail and legal aid applications
10
Q
What are District Judges?
A
Legally qualified magistrates who sit alone but have the same powers as a bench of lay magistrates
11
Q
What are lay magistrates?
A
Unqualified citizens of the local areas who are unpaid except for expenses. They are required to sit as a bench of 3 magistrates at least 26 half days (13 days) a year
12
Q
What is the criteria to be a magistrate?
A
- Don’t need any legal qualifications
- Must be within 18-75 years old
- Must live or work within the local justice area
13
Q
What are the 6 key qualities a magistrate should have?
A
- Good character
- Understanding and Communication
- Social awareness
- Maturity and Sound Temperament
- Sound judgement
6.Commitment and Reliability
14
Q
Who is excluded from magistrate appointment?
A
- Someone whose work is incompatible
- Some disabilities (Deaf)
- People with criminal convictions
- Un-discharged bankrupts
- Relatives of those working in the local criminal justice system
15
Q
Under what act and by who are magistrates appointed by?
A
By the Lord Chief Justice on the advice of Local Advisory Committees under the Justices of the Peace Act 1997
16
Q
What is the 2 stage interview process for magistrates?
A
- Panel finds out about personal attributes and discusses various criminal justice issues
- Two case studies involving sentencing and trial exercises to test judicial aptitude
17
Q
What do many feel magistrates are?
A
Middle class, middle-aged and middle-minded
18
Q
What are the percentages of women, ethnic minorities and handicapped people that are magistrates?
A
53% Women
11% Ethnic Minorities
4% Handicapped
19
Q
What does a clerk do in the magistrates’ court?
A
- Advise on POL’s, practice and procedure
- Doesn’t assist in the decision making
- Advise on potential sentencing options
- Admin roles
20
Q
Do clerks have to be legally qualified?
A
Yes, they are normally qualified solicitors or barristers
21
Q
What are the advantages of magistrates?
A
- Involves members of the community providing a wide cross section
- Cheap
- Local knowledge
- Improved training and a clerk means it’s not as amateur as it used to be
- Cases dealt with quickly
- Few successful appeals
- Public confidence
22
Q
What are the disadvantages of magistrates?
A
- Unrepresentative of society
- Inadequate compensation for loss of earnings which deters applicants
- Inadequate training
- Prosecution minded - harsher than judges
- Rely too heavily on the clerk
- Inconsistency in sentencing and bail grants
- Too wide and heavy workload for amateurs
23
Q
How many people make up a jury?
A
12 people
24
Q
Where do jurors sit?
A
The crown court
25
Do jurors receive money for jury service?
Yes, but only expenses
26
What 2 acts govern jury selection?
The Juries Act 1974 S.1
The Criminal Justice Act 2003
27
What are the 3 criteria for jurors?
1. Aged 18-75
2. On the electoral register
3. Resident in the UK for at least 5 years after 13th birthday
28
What organisation is in charge of jury selection?
The Jury Central Summoning Bureau
29
What are the 3 situations where someone is permanently disqualified from jury service?
1. If they have served a custodial sentence of 5 years or more
2. Imprisoned for public protection
3. Imprisoned for life
30
What are the 3 situations where someone is disqualified from jury service for 10 years?
1. Served a prison sentence or suspended sentence
2. Had a community order
3. Offenders on bail
31
Why might someone be ineligible for jury service?
1. Someone with a mental disorder
2. A disability that serious hampers their ability to perform the service (Blind, Deaf etc.)
32
Under what circumstances can someone defer jury service and how long can they defer it for?
Hospital operation booked, Holiday booked, Examinations imminent
33
Under what circumstances can someone be excused from jury service?
1. Completed jury service in the last 2 years
2. If they have been on a particularly distressing trial previously
3. Lack of capacity (doesn't understand english)
4. Over 65yrs old
5. MP's and MEP's
6. Discretionary excusals with good reason - a mother with a small child to look after
7. Soldiers if their commanding officer says their absence would prejudice the service
34
What are the 2 types of jury vetting?
1. A check to ensure a juror isn't disqualified and to check for any previous criminal records
2. In exceptional cases, more in depth checks are conducted where police, special branch and security service records are checked to ensure no extremists are part of the jury - written permission of the Attorney General is required
35
What are the 3 types of jury challenges?
1. Challenge for cause
2. Stand by for the crown
3. Challenge the Array
36
What is Challenge for cause?
Both prosecution and defence can challenge for cause and may be on the basis that a juror is disqualified or biased
37
What is Stand by for the crown
Where the prosecution can ask a juror to stand by for the crown and remove them from the case - a reason doesn't need to be given
38
What is Challenge the Array?
The whole jury can be challenged if they have not been selected randomly
39
What is the case example for challenge the array?
R vs Ford
40
What is the POL from R vs Ford?
If a jury has been chosen in a random manner then it cannot be challenged just because it isn't multi-racial
41
What are the advantages of juries?
1. Public confidence as it has been happening since 1186
2. Almost anyone can be a juror
3. Jury equity/fairness over verdicts
4. Justice is often served
5. Involves members of the public
6. Secrecy of the jury room allows decisions to be made away from public
7. Impartiality - the jury eliminates bias and jurors aren't case hardened
8. Fundamental part of democratic society
42
What are the disadvantages of juries?
1. High acquittal rates - 60%
2. Jury service is unpopular
3. Perverse verdicts
4. Media influence
5. Lack of understanding/fraudulent trials
6. Secrecy means the reasons for the juries' decision are unknown and case understanding cannot be checked
7. Biased
8. Friday afternoon syndrome
9. Jury nobbling
43
What is the act for sentencing?
The Sentencing Act 2020
44
What is included in the Sentencing Act 2020?
Sentencing procedure, aggravating and mitigating factors
45
What are the 6 aims of sentencing?
1. Retribution
2. Denunciation
3. Reform and Rehabilitation
4. Deterrence
5. Protection of society
6. Reparation
46
What is Retribution?
The punishment of offenders, basically if someone breaks a rule they get punished which is very popular within society and the media
47
What are tarrifs?
The minimum punishment for a crime, could be a fine or a community order but it can go up to a prison sentence
48
What is Denunciation?
Where a particular offence gets given a harsh sentence, causing that conduct and the people involved in it are denounced by society
49
What is Reform and Rehabilitation?
The idea isn't to punish or deter but to treat or cure the criminal mind of the offender and therefore stop them from committing further crimes
50
What is Deterrence?
Harsh sentencing in order to deter individuals and society in general from committing crime
51
What is a problem with Deterrence?
It presumes people will think about the possible sentence before committing a crime which is an unfair assumption especially if drugs and/or alcohol is involved
52
What is protection of society?
When a criminal is in prison they cannot offend again
53
What is a problem with the basic aim of protecting society?
The offender may not have changed in prison and may have learnt off of other criminals how to conduct criminal activity better
54
What is reparation?
The defendant paying compensation to the victim like returning stolen property
55
What is a problem with reparation?
A defendant cannot pay back for emotional loss or loss of life
56
How can a defendant get a reduction in their sentence and by how much?
By pleading guilty at the start of the trial, this can reduce their sentence by up to 1/3
57
What is the case for a reduction in sentence?
R vs Webster
58
What is the POL from R vs Webster?
The judge was right to impose the 1/3 reduction of sentence due to a guilty plea even though the evidence was overwhelming
59
What is an aggravating factor?
A factor of the defendant or the conduct that may increase their sentence
60
What is a mitigating factor?
A factor of the defendant or the conduct that may reduce their sentence
61
What are some examples of aggravating factors?
Racial or Religious motive
Previous convictions
Nature of the offence - Vulnerable victim
Defendant was on bail at the time of offence
No remorse
Use of a weapon
Planned offence
62
What are some examples of mitigating factors?
Youth/Old age
Previous good character
Provocation
Domestic or Financial problems
Drink/drug dependency
Guilty plea
63
What are the 3 classifications of sentences?
1. Custodial
2. Community
3. Other
64
What are the different custodial sentences?
Mandatory life
Discretionary life
Fixed term sentence
Minimum sentence
Suspended sentence
Extended sentence
65
What are the different community sentences?
Unpaid work
Community order
Supervision requirement
Drug or Alcohol rehabilitation requirement
Curfew
Supervised activity requirement
Prohibited activity requirement
66
What are the other sentence options?
Fines
Discharge
Disqualification
67
What are the details of a mandatory life sentence?
Will get one for an 18+ murder conviction
The tariff is from 12 years to whole life
Second serious violent or sexual offence (LASPO)
68
What are the details of a discretionary life sentence?
Handed out for serious offences such as robbery, rape and manslaughter
Judge has discretion in sentencing
69
What do you have to know for a fixed term sentence?
Judge will set a custodial sentence taking into account the A and M factors in line with the seriousness of the crime
1/2 served in prison, 1/2 served in the community
70
What offences get a minimum sentence?
Class A drugs or 3rd burglary
71
What is a suspended sentence?
Judge sets prison sentence of between 28 and 51 weeks which can be suspended for 6 months to 2 years
The Criminal Justice Act 2003 says that a suspended sentence can be combined with a community order
72
What is an extended sentence and what offences receive them?
Custodial sentence to maximum followed by extension on license
73
What is a release on license?
A judge will set a tariff and if they are up for parole the judge will assess if they are fit to release on license into the community
They look at the behaviour during the tariff and if they are still a danger then they will have conditions upon release and if they are broken then they will be sent back to prison
74
What act created one community order?
Criminal Justice Act 2003
75
What is an unpaid work requirement?
Offender has to work between 40-300hrs on a project organised by the probation service
76
What is a curfew requirement?
Offender can be ordered to remain at a fixed address for between 2-12 hours per 24hrs - can be up to 6 months long and the offender will be tagged
77
What is a supervision requirement?
Offender will be placed under supervision of a probation officer for up to 3 years
78
What are the details for fines as a sentence?
Fines are paid to the crown
Unit lines introduced in 1991 but hued as being unfair
Magistrates can give a maximum of £5000 as a fine
70% of sentences in the Magistrate's Court are fines
79
What is an absolute or conditional discharge?
Offender is either released, or released with the condition that if they come before the court again, both offences will be taken into consideration
80
What is an Anti-Social Behaviour Order (ASBO)?
Made for anyone over 10yrs who has acted in an anti-social manner
81
What act introduced an Anti-Social Behavioural Order (ASBO)
The Crime and Disorder Act 1998
82
What is the pre-trial procedure for summary offences in the magistrates court?
First appearance - Doesn't need legal representation, Guilty plea, not guilty plea and no witnesses needed, Sentence immediately
Case Adjourned - CPS need more time to prep case, Witnesses need to be called for a not guilty plea, pre-sentence reports needed, trial date set
Trial - Witnesses heard, verdict, sentence
83
What is the pre-trial procedure for indictable offences?
Magistrates court - Legal aid, Bail/remand
Crown court plea + case management hearing - Not guilty plea, witnesses/length of trial etc, date set for trial, guilty plea = pre-sentence report requested etc., date set for sentence
Trial - witnesses heard, verdict, sentence
84
What is the pre-trial procedure for triable-either-way offences?
Plea before venue - guilty/not guilty plea
If guilty - Magistrate's will hear case and decide if sentencing powers are sufficient, if not it will go to the crown court
Not guilty - Magistrates decide whether to accept or deny jurisdiction
Accept jurisdiction - Defendant elects place of trial
Deny jurisdiction - Sent to crown for trial
85
What is the main act for legal aid?
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
86
What does the Legal Aid, Sentencing and Punishment of Offender Act 2012 set out?
Set up the Legal Aid Agency which brings control of legal aid under Ministry of Justice
Legal help - advice
Legal Representation
87
What are the difference services of government funded advice for civil cases?
Help lines
Help in civil cases
88
What is an example of a help line and what do they do?
Civil Legal Advice (CLA) - provides advice in civil cases involving: Debt, Housing, Domestic Abuse, Family issues, Special education needs, discrimination
89
What is an example of help in civil cases and what do they do?
Legal Aid Agency has contracts with law firms and some Citizens Advice Offices
Advice is given to those with lower income
Income limits set very low - excluding lots of people
90
What are the details for government funded advice in criminal cases?
S.13 LASPO 2012
Duty Solicitor scheme available in all police stations
Advice may be by phone or face-to-face
Attendance at the police station will only be available if D is vulnerable or attendance is needed to materially progress the case
No financial restrictions but attendance is restricted
Person attending police station may not be a solicitor but an accredited representative from the firm
91
What are the 3 parts to civil funding under legal aid?
Criteria for civil legal aid services
Availability of aid
Means testing
92
What comes under the criteria for civil legal aid services?
LASPO 2012 allows Lord Chancellor to set criteria, but these must be considered:
Cost/benefit of providing the service
Availability of resources
Importance for the individual
Availability of other services - mediation
Likely prospect of success of the claim
Public interest
93
What comes under the availability of legal aid?
Many more restrictions now
Contract and Tort claims no longer covered
Trespass to person, land or property not covered
Types of cases now covered are children's rights and cases involving liberty of the individual, including mental health tribunals
94
What comes under the means testing for civil legal aid?
Income and capital of individual is considered
People receiving Income support or Income-based Jobseeker's Allowance automatically qualify
To satisfy the financial test you must usually have:
Less than £2657 gross income (unless you have 4+ children then it's higher)
Less than £733 disposable income
Less than £8000 capital
95
What are the main points for legal aid of criminal cases?
Run by the Legal Aid Agency under the Ministry of Justice
They have contracts with law firms who provide legal services to defendants in criminal cases
Mostly dealt with by solicitors but not always
D must qualify under the interests of justice test and means
96
What is the interests of justice test?
D will only get legal funding for representation in court if the case falls within one of the following 5 factors:
1. D could lose his liberty or livelihood or suffer serious damage to reputation (first time offenders may not fall into this group)
2. Case involves consideration of a point of law
3. D is unable to understand the proceedings in court or to state his own case
4. Case may involve tracing, interviewing or the expert cross-examination of witnesses
5. It is in the interests of another person that the individual be represented - a rape case
97
What is the means test from the Magistrate's court?
Called 'in or out' scheme
Either eligible or ineligible based on means test
Following D's are automatically eligible:
1. U16's
2. U18's in full time education
3. Those on income support
4. Others subject to means test based on gross annual income
Levels are set very low - 1/4 of adults qualify for legal aid
98
What is the means test from the crown court?
No upper limit on disposable income - everyone can be assessed for legal aid
Most D's can receive legal aid
Free for those on low incomes
Some may have to make a contribution
Above £37,500 disposable income = ineligible, pay privately
If paying legal fees takes them below £37.5K DI, then they can have assistance
If D is found guilty, they may have to pay extra from his capital
If found not guilty any contributions paid will normally be refunded
99
What are the details on advice deserts?
Not enough legal providers due to poor pay
Some areas worse than others
Position getting worse
In 2000 there were 5000 firms
In 2016 there were 1500 firms
100
What are the details on non-availability?
Funding is not available for many civil areas including personal injury
Creates difficulties for those with serious injuries
Those bringing cases against large companies may be at a disadvantage
101
What are the details on eligibility levels?
Levels of income set very low
Number of people having to represent themselves in court rising which causes increase in costs involving the administration of justice
102
What are the details on the criteria set by the Lord Chancellor?
Criteria is too strict
Guidance had to be changed as deemed unlawful by the CoA
103
What are the details on the lack of funds?
Funding is limited and may be refused because the money has run out
Penalises those in employment who have to contribute
Less attractive to qualified solicitors as fee rates set very low
104
How do people provide the private funding of cases?
Own resources
Insurance
105
What are the details on the private funding of cases via someone's own resources?
Anyone who can afford it can pay privately
Very expensive - locally £150 per hour, in London £600-£1000 per hour
106
What are the details on the private funding of cases via insurance?
Included in most motor insurance policies and available for home insurance
Before and after the event policies available
Most common is the after-event policies which are needed with CFA's - This will pay the other sides costs if the case is lost
107
What are Conditional Fee Agreements (CFA's)
Can be used for civil cases but not criminal
No win = No fee agreement
Agree on a fee that would normally be charged, and a success fee will be added
Some may charge a lower fee if case is lost
Success fee can be up to 100% of the normal fee
Most have a cap on the success fee, preventing it at 25% of the damages
Success fee cannot be claimed back from the losing defendant
After the event insurance must be taken out which will pay for costs if the case is lost as would then owe damages, but not have to pay legal fees
108
What are the advantages of CFA's?
Alternative to private funding
Remove anxiety of having to pay huge costs
Deductions from costs normally at 25%
Insurance available for losses
Widely available
No payment upfront needed
109
What are the disadvantages of CFA's?
Solicitors charge a higher fee to cover risk of losing
Court costs may still need to be paid which are not covered in arrangement
Encourages 'Cherry picking' by solicitors
Tactics may be used to win a case at all costs
Poorer clients may not be able to afford the insurance costs
110
What are other bodies that offer legal aid?
Citizens Advice Bureaux
Law Centres
Trade Unions
Insurance Companies
Schemes run by lawyers
Charities
Pro Bono / Advocate
111
What are the details of the Citizens Advice Bureaux?
Free legal advice
Available in most towns - 2500 locations
48% face-to-face advice
45% phone advice
7% email or webchat advice
Give general advice on: Entitlement to benefits, Consumer issues, Housing issues, Employment
112
What are the details of Law Centres?
Free legal advice and sometimes representation
Normally in areas where there are few solicitors
Many clients are disadvantaged
44 in the country
Problems with funding cuts caused some to close
113
What are the details of Trade Unions?
Advice for all work-related problems
Some offer advice for other issues like Personal injury
Often pay subscription to the union
Can cover costs of lawyers if needed
114
What are the details of insurance companies?
Can cover legal fees - vehicle claims from road incidents
House insurance policies, if someone is injured on the property
Special 'before the event' policies and 'after the event' policies (For CFAs)
115
What are the details of schemes run by lawyers?
Some solicitors offer free 30-minute interviews
116
What are the details of charities?
Help with advice
Gingerbread - offer advice that impacts single or shared parents
Shelter - Housing issues advice, face-to-face or telephone
117
What are the details of Pro Bono / Advocate?
Run by Bar Council
Situated in London
Free advice and representation offered
Charities also have helplines for legal aid
118
What are the advantages of civil legal aid?
Can gain advice from a number of sources
Some specific cases can gain legal aid
Not rely solely on lawyers
Private lawyers mean the most suited for the case can be employed
CFAs allows those to bring a claim and can pay for fees if win with compensation
119
What are the disadvantages of civil legal aid?
Paying for lawyers is expensive and often needed in civil cases and cannot always give an estimate of the fees
CFAs still may be unaffordable for some
Civil legal aid funding reduced to £739m in 2018-2019
Stretched budgets for agencies as more people need free advice
120
What are the advantages of criminal legal aid?
Free advice in prison is vital as no way to show a person's economic situation when belongings removed
Charges can result in affecting a person's future - need correct advice to deliver justice
121
What are the disadvantages of criminal legal aid?
Budget cut by £314m in 2015-16
No drop in crime but a drop in firms
Higher number of unrepresented Ds wastes court time
Solicitors less likely to study criminal law as less money + more hours
Tests for who can get legal aid are so strict as cannot fund all who need it
'Interests of justice' - chance of imprisonment to satisfy this, more likely to receive legal aid
Less limits for financial restrictions in the Crown Court but costs are higher
