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The Legal System Flashcards

1
Q

What jurisdiction does the County Court have?

A

-Cases up to £100,000 (usually over £50,000 go to High Court)
Typical Cases: - Negligence claims and other tort based claims (nuisance/trespassing)
- Debt claims & consumer disputes (generally involve breach of contract)
- Housing claims
- Bankruptcy

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2
Q

What is the small claims track?

A

Claims up to £10,000 (£1000 if personal injury)
Informal (lawyers discouraged)
Maximum 3hrs in court
District Judge
No legal costs awarded
County Court

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3
Q

What is the King’s Bench Division?

A

Hears contract and tort claims over £100,000 and smaller claims with an issue of law

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4
Q

What is the Chancery Division?

A

Business, property or land disputes over £100,000
Disputes over trusts

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5
Q

What is the Family Divison?

A

Cases where children are involved.
Generally held in private

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6
Q

What are the pre-trial procedures for civil cases?

A

Pre-action protocol letter - Written by solicitor on behalf of claimant and sent to defendant setting out the case details
N1 Claim Form - Starts case - Includes names and details, claim value and information
- Can be filed at County Court, High Court (If high value) or online (if debt)
- Fee charged for filing a claim
The court will serve the claim on the defendant who can:
-Admit the claim and pay the full amount
-Admit the claim and pay in instalments if accepted by claimant
-Dispute the claim and file a defence
-File an Acknowledgement of Service confirming receipt of the claim but asking for more
time to prepare a defence - (14 days without - 28 days with)
-If the defendant doesn’t respond the claimant can apply for judgement in default with the claimant winning and attempts can be made to force the defendant to pay

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7
Q

What is the Fast Track

A

Claims between £10,000-£25,000
Strict timetable
Maximum 1 day in court
Lawyers used
Limited witnesses
Circuit judge
County Court
Legal costs can be awarded

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8
Q

What is the Multi Track

A

Claims over £25,000
County or High Court
Strictly managed
Fewer limits on witnesses.

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9
Q

What is the appeal procedure from a County Court?

A

If original decision made by a district judge then the appeal will go to a circuit judge in the same court.
If original decision made by a circuit judge then the appeal will go to a high court judge in the relevant division.
An appeal can be made directly to the court of appeal if the cases raises an important principle or practice and the Court of Appeal agrees to hear it.

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10
Q

What is the appeal procedure from a High Court?

A

Generally will go to the Court of Appeal and the decision from here can be appealed again to the Supreme Court.
A ‘leapfrog’ appeal may be made directly from the High Court to the Supreme Court if there is a level of national importance.

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11
Q

What are the preliminary matters of an employment tribunal?

A

-Claim has to be brought within 3 months from the event.
-Usually, the Advisory, Conciliation and Arbitration Service (ACAS) must be contacted
within the 3 months.
-Only if the matter can’t be resolved can a claim be made.
-Most claimants get advice from lawyers or trade unions.
-No fee included in making a claim.

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12
Q

What happens during an employment tribunal?

A

-There is a tribunal panel made up of a judge specialising in employment law, a
representative of the employer’s organisation and a representative of the
employee’s organisation
-If a preliminary hearing is needed it is before a judge without the panel members
-Most are open to the public
-Usually short as most issues will already have been identified and the panel will have read the papers
-A collective decision from the panel will be issued in writing:
-If in favor of employee may encourage a settlement
-If a settlement can’t be reached the tribunal can award compensation
-An appeal can be made within 42 days

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13
Q

What is an employment tribunal appeal?

A

-Only can be made on an issue of law
-First appeal court is the Employment Appeal Tribunal, then Court of Appeal, then
Supreme Court

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14
Q

What is mediation?

A

A neutral person helps the parties to reach a compromise. The parties have complete freedom and can withdraw whenever they like.
The mediator doesn’t offer opinions unless asked to.
Often used in family disputes over children and money.

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15
Q

What is conciliation?

A

Similar to mediation but the conciliator plays a more active role - suggesting compromises or settlements.

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16
Q

What is arbitration?

A

When both parties agree to let their dispute be settled by a panel of neutral arbitrators.

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17
Q

Why might someone need legal aid?

A

Barristers and solicitors are expensive and advocacy is necessary for a fair trial, especially in a criminal case as a person’s liberty is at stake.

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18
Q

What is legal aid governed by?

A

LASPO 2012

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19
Q

How is it decided if someone needs legal aid in a criminal case?

A

Means & Merits Test
-Means - Capital & income considered.
If on benefits automatically eligible
-More serious consequences means more likely to be eligible

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20
Q

How is it decided if someone needs legal aid in a civil case?

A

Means & Merit Test
-Capital and income considered
-Reason for case and its chance of success
-Only certain types can be funded
e.g. immigration

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21
Q

What happens if you don’t qualify for legal aid?

A

-Private funding (Pay yourself)
-Legal charities - Pro bono lawyers (free)
-Conditional fee arrangement - Pay if win lawyers only likely to do it if they think it will win - only for civil cases
-Trade unions - if employment
-Citizens advice bureau - gives advice
-Insurance - Many policies include funding for legal costs

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22
Q

What is the legal aid agency?

A

Responsible for administration of legal aid in England and Wales
Decides whether people qualify through means testing

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23
Q

What the civil legal advice service?

A

Provides legal advice to those who qualify.
Provides funding for claimants in certain civil disputes when mediation or court is necessary

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24
Q

What is the jurisdiction of Magistrates’ Courts?

A

All summary cases & any either way offences that can be dealt with
The first hearing of indictable offences.
All preliminary matters for criminal cases
Cases in the Youth Court

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25
Q

What is the jurisdiction of Crown Courts?

A

All indictable and triable either way that are sent from the Magistrates’ Court

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26
Q

What are summary offences?

A

Least serious crimes
Tried in Magistrates’ Court
Subdivided into 5 levels
e.g. driving whilst disqualified

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27
Q

What are triable either way offences?

A

Tried in Magistrates’ or Crown Court
Can be sent from Magistrates’ to Crown for sentencing
e.g. ABH

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28
Q

What are indictable offences?

A

Most serious
Tried in Crown Court
If plead not guilty - Jury decides verdict and Judge decides sentence
If plead guilty - Judge decides sentence
e.g. Murder

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29
Q

What are the pre-trial procedures for a summary offence?

A

Clerk of the Court will take the plea
If pleads not guilty then a trial date is set
If pleads guilty then the Magistrates consider a sentence

30
Q

What are the pre-trial procedures for a triable either way offence?

A

Procedure set out in Magistrates’ Courts Act 1980
Plea before venue - If pleads guilty the matter is heard by the Magistrates’ Court and a sentencing hearing will take place
If pleads not guilty - the magistrates decide whjere the case will be tried and a Mode of Trial procedure will take place
Mode of Trial Procedure - decides the most appropriate court.

31
Q

What can be appealed in an appeal from the Magistrates’ Court to the Crown Court?

A

Only available for the defence
If defendant pleaded guilty then the sentence can be appealed.
The Crown Court can confirm, increase or decrease the sentence up to the magistrates’ maximum power.
If the defendant pleaded not guilty then a guilty verdict can be appealed
This will include a complete rehearing including any evidence not available the first time. They can confirm or find the defendant guilty of a lesser crime (not a worse crime)

32
Q

What is a case-stated appeal?

A

Appeals on the point of law going from Magistrates’ or Crown Court to the King’s Bench Division.
Available for defence and prosecution.
The original magistrates’ or Crown Court are asked to state the case by setting out their findings and their decision;
The appeal is about the law related to the facts.
Usually heard by 2/3 judges
The outcome may confirm, vary or reverse the original decision.
Can be further appealed to the Supreme Court (C V DPP (1994))

33
Q

What are appeals from the Crown Court to the Court of Appeal?

A

Can be made by the defendant about the verdict - Must have leave to appeal which means the defendant must have permission to appeal given by a single judge form the Court of Appeal (Criminal Appeal Act 1995)
The defendant can apply to introduce new evidence if it is capable of changing the decision and wouldn’t have been admissible at trial
Court of Appeal can reverse, confirm or reduce sentence. or order a retrial.
Can be made by the prosecution against an acquittal if the jury was ‘nobbled’ (bribed, threatened etc.) - New compelling evidence - Referring to a point of law - can apply for leave to refer an unduly lenient sentence.
Both can then appeal to the Supreme Court

34
Q

What are the 5 aims of sentencing?

A

Punishment, Reduction of crime, reform & rehabilitation, protection of the public, reparation

35
Q

What is the aim of punishment?

A

Offender deserves a punishment for doing a crime.
Punishment only concerned with the offence and that the punishment fits the crime
Punishment contains an element of revenge (religious ‘eye for an eye’ - used to justify death penalties)

36
Q

What is a tariff sentence?

A

The Sentencing Council produces guidelines on sentencing of the most common crimes and factors that make them less or more serious.
They also identifies whether they will be increasing prison sentencing or use of the prohibition service so the government can forecast requirements of the services.
Leads to consistent sentencing but leaves little discretion with the judges.

37
Q

What is the aim of reduction of crime?

A

Individual deterrence - the offender is unlikely to reoffend for fear of punishment
-Assumes the offender will consider the consequences when most crimes are spur of the moment often under the influence of drugs or alcohol
-Fear of being caught is more of a deterrent (CCTV etc.)
General deterrence - making an example of an offender to dissuade people from committing crimes
-Rewards of crime are often seen as attractive
-Many potential offenders aren’t going to be stopped by deterrence.

38
Q

What is the aim of reform and rehabilition?

A

Reforming the offender so they don’t commit anymore crimes
The Sentencing Council guidance asks courts to consider previous attempts at rehabilitation.
Can lead to individualised sentences which leads to inconsistent sentencing and discrimination

39
Q

What is the aim of protection of the public?

A

LASPO introduced new sentences to protect the public
Custodial sentences are the main way as they can’t commit crimes
Extended Determinate Sentence protects the public from sexual/violent offenders with a minimum sentence of 12 months
Mandatory life sentence for a 2nd offence of violent or sexual crime
Community sentences can protect the public such as an electronic tag and a curfew
Driving offenders are banned from driving

40
Q

What is the aim of reparation?

A

Compensating the victim of the crime, usually with money from the offender
Restorative justice - offenders and victims brought together so the offender can see the effect of their crime.
The offender mat make reparations to society by doing unpaid work

41
Q

What is have to be looked at before sentencing?

A

Pre-sentence Reports - gives background on the offender and indicate a likely community-based penalty.
Medical Reports - medical or psychiatric problems, the Courts have special powers if the offender is mentally ill
Sentencing Guidelines - Made by the Sentencing Council and must be followed to make sentencing more consistent

42
Q

What are aggravating factors?

A

Make offence more serious
-Previous convictions
-If the offender was on bail
-Discriminatory motive
-Pleading not guilty
-How much stolen, how badly assaulted etc.
-Whether the offender was in a position of trust with the victim
-Gang involvement

43
Q

What are mitigating factors?

A

Make offence less serious
-No previous convictions
-Showing genuine remorse
-Minor involvement
-Mental illness or disability
-Pleading guilty

44
Q

What is the sentence reduction for a guilty plea?

A

At first reasonable opportunity - 1/3 less
After trial date set - 1/4 less
During trial - 1/10 less

45
Q

What are custodial sentences?

A

Period in custody
4 types of custodial sentence:
Mandatory life sentence
Discretionary life sentence
Fixed-term sentence
Suspended sentence

46
Q

What are mandatory/discretionary life sentences?

A

Must serve a minimum time (tariff) in prison (decided by judge) of 12 years to whole life order. The Parole Board will decide whether the offender can be released on licence which will have conditions (electronic tag, people they can see, where they live etc)
Aggravating factors increase the time in prison.
Sentence for murder, s122 LASPO states a second serious crime has a life sentence.

Discretionary life sentences are for the first serious offence and the judge can impose a life sentence but isn’t required to.

47
Q

What are fixed-term sentences?

A

For less serious crimes the maximum sentence is decided by stature (theft in theft Act 1968)
Anyone sent to prison is released after half their sentence

48
Q

What are suspended prison sentences?

A

The offender will only serve the custodial period if there is a breach of one of the terms of the suspension.
Prison sentence can only be a fortnight to 2 years and the suspension can be 6 months to 2 years
Idea is that the threat of prison will stop them from reoffending.
Can only be given if the offence warrants a custodial sentence but there are exceptional circumstances that justify it being suspended.

49
Q

What are non-custodial sentences?

A

Community orders
Fines
Discharge

50
Q

What are community orders?

A

Imposed when custodial is too extreme.
Under Criminal Justice Act 2003 the court can combine requirements they deem necessary allowing them to fit restrictions and rehabilitations to an offender’s needs
e.g. Unpaid work, prohibiting activity (e.g. wearing certain clothes), Exclusion requirement (not allowed to go to certain places)

51
Q

What are discharges?

A

May be conditional or absolute
Conditional - discharges under the condition that they won’t commit another crime in a time period (up to 3 years)
Absolute - no penalty imposed

52
Q

What are fines?

A

Most common sentence in Magistrates’ Court (70%)
When deciding the amount income and assets of the offender are taken into account.

53
Q

How do you qualify to be a Lay Magistrate?

A

Don’t need an legal qualifications and be between 18-65 on appointment and must retire at 70. Expected to live and work near the local justice area. Must commit to sitting at least 26 half days a year with some extra training sessions.
They must have suitable character:
-Good character
-Understanding and communication
-Social awareness
-Maturity and sound temperament
-Sound judgement
-Commitment and reliability
Cannot be if:
-Have a serious criminal conviction
-Have undischarged bankrupts
-Members of the forces
-Police officers/traffic wardens
-Work in the criminal justice sytem
-Have close relatives on the same bench/

54
Q

How are magistrates selected?

A

Local Advisory Committees of 12 members which include magistrates and non-magistrates
2 stage interview process
1st - finding out about personal attributes and attitudes on criminal justice issues
2nd - testing potential judicial aptitude with at least 2 case studies of common cases
The committees will then submit names of those they think are suitable to the Senior Presiding Judge who will then appoint them.

55
Q

What are the roles of Lay Magistrates?

A

Summary Offences - start to finish
Triable either way - plea before venue
Indictable - early administrative hearing
Youth Court - Specially nominated and trained magistrates
Appeals - Sit in Crown Court to hear appeals form the Magistrates’ Court

56
Q

What qualifications are needed to be a juror?

A

18-76 y/o, registered voter, resident of UK,
Disqualified if:
-Imprisoned
-On bail
Disqualified for 10 years if:
-Served a sentence of imprisonment
Judge looks at the capacity of a person and can discharge them if they would be unable to cope with the trial (e.g. knowledge of English, deaf, blind. etc)

57
Q

What are discretionary excusals?

A

Anyone who has a problem that means a certain time period doesn’t work the period can be moved to a more convenient date.

58
Q

What are the roles of barristers?

A

Self-employed and work in chambers which they share with other barrisers.
Barristers have a duty to the court- must not mislead or waste court time, give the court all relevant information even if it weakens their case
Have a duty of confidentiality to their client.
Advocate in crinimal cases as prosecution or defence.
Advocate in civil cases.
Are usually instructed by a solicitor and must take work if it is in their area of law and they aren’t busy (cab rank rule)
Direct access - Some people can brief a barrister directly without going through a solicitor.
Provide opinions on what should happen in cases and give advice.

59
Q

Who regulates barristers?

A

Bar Standards Board
investigates breach of conduct
Discipline - reprimand, training, fine, suspension, disbar

60
Q

What are the roles of solicitors?

A

Most work in law firms and in a specific area of law
Work includes: Interviewing clients, writing letters, drafting contracts, advocacy
If they have a certificate in advocacy they can advocate in all courts (only mag & county without)

61
Q

Who regulates solicitors?

A

Solicitors Regulation Authority
Deals with misconduct
Discipline - fine, reprimand, suspend, struck of the roll
Negligence can be sued (Hall v Simons 2000)

62
Q

What are the roles of legal executives?

A

Usually work as assistants to solicitors.
Advise and draft contracts.
Usually don’t have law degree but have to pass the Institute of Legal Executives’ Professional Qualification.
Can get a certificate in advocacy

63
Q

Who regulates legal executives?

A

CILEx
Can exclude, fine or reprimand for misconduct.

64
Q

What are Justices of the Supreme Court?

A

Appointed from judges with high judicial office or 15 years experience
Includes judges from Scotland and N. Ireland
Max. of 12 (CRA 2005)
Hears final appeals in the Supreme Court

65
Q

What are Lord Justices of Appeal?

A

Must have 7 years experience
Either are in the civil or criminal part of the Court of Appeal

66
Q

What are High Court Judges?

A

Must have 7 years experience (expected to be in lower judging)
Assigned to a division of the High Court

67
Q

What are circuit Judges?

A

Must have 10 years experience of right of audience
Hears cases in the County and Crown Court

68
Q

What are recorders?

A

Part-time judges
Usually barristers or solicitors
Hear less serious cases in the Crown and County Courts

69
Q

What are district judges?

A

Mus have 5 years experience.
Hear lower value civil cases and sit alone in the Magistrates’ Court.

70
Q

How are the Judiciary kept independant?

A

Security of Tenure - Superior Judges cannot be dismissed
Immunity from suit - Can’t be sued for decisions made in court
Full time judges can’t be MPs
Can’t hear cases where they have interest (Pinochet 1999)

71
Q

Is the judiciary diverse?

A

76% of all judges over 50, 40% over 60
32% of all judges women
8% from BAME background

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