Dispute Solving - Solicitors, Barristers, and Legal executives
Module 2 - Dispute Solving
Solicitors, Barristers, and Legal executives
The English legal system is unusual in having 2 legal professions; solicitors and barristers. Most legal professions have lawyers who although specialise they qualify in the same way. Historically solicitors represented by the LAW SOCIETY and barristers represented by the BAR COUNCIL reached an agreement to divide the legal work between themselves basically this gave solicitors sole right of access to clients and barristers sole rights of access to the courts. In recent years this division has been broken down, solicitors have increasing access to the courts while barristers have some access to clients.
Training of Solicitors
Law society
Law degree Non-Law degree
1 year common profession exam
Legal Practice Course - 1 year (have to pay own fees)
Training Contract - 2 years
+ 3 years before you can set up your own practice
Bar Council
Law Degree Non-Law degree
1 year common profession exam
Inns of Court
Grays
Lincons
Middle Temple
Inner Temple
All based in London
Bar Vocational Exam
year
8 Dinners
Get 2 barristers to take you on
Pupilage
year
6 months with each barrister. First 6 months was unpaid, but not set at national minimum rate. 2nd 6 months is paid at national minimum rate
Can stay for longer than 1 year but will still only receive same rate of pay
Called to 'Bar' to receive certificate
2 types of barrister; Junior and QC
Chambers
Must get into chambers within 3 years of leaving Pupilage or you are time barred and will never be able to become a practicing barrister
QC = Queens Council (silks) - Have to be a junior for at least 10 years and are chosen by the bar council (can't ask to be one)
Bar council opened 9 regional centres and 12 dinners need only to be taken
Typical work of a solicitor
. Criminal work - Not popular because money is not attractive
Legal services commission board pays fees
Minority area of work
2. Contract - Commercial
3. Conveyance - Transfer of documentation (deeds to property)
4. Divorce/family Custody/Adoption
5. Wills/Probate
6. Land Laws - Trespass/Purchase orders
7. Nuisance
8. Defamation
9. Negligence/Trusts
The solicitor is the first point of contact with the general public. The larger the practice, the greater the level of specialisation of each solicitor. There are no requirements for a solicitor to offer a full range of legal services and criminal work in particular is becoming less and less popular. This initial role of a solicitor is to advice the client on his legal position and in the past this often involved applications for legal aid. For personal injury claims clients must now relay on conditional fees (No win, No fee) after the initial advice the solicitor will start the legal process. This may be anything from writing a letter to a defence in the crown court or making a claim in the high court.
As a general legal practitioner the traditional view is that the solicitor will now instruct a barrister who prepares the actual case to go to court. The solicitor takes the client to the barrister who will prepare a brief (a legal opinion) and will ultimately represent the client in court.
The traditional view therefore is that in both criminal and civil court barristers carry out the majority of advocacy. In practice 95% of criminal cases are heard in the magistrate's court all cases under £50,000 can be heard in the county court as a result solicitors in reality carry out the vast majority of court work in the English legal system.
A typical week of a barrister and a solicitor.
Barrister - 3 days in court per week = 30,000 days overall
Solicitor - 1 day in court per week = 80,000 days overall
Barristers
Non-Practicing:
. Teaching
2. Large companies
3. CPS
Practicing:
. Self employed
2. Self employed out of chambers
3. Cab-Rank principle
Once they are on the case, they must stick with it. When the client goes to court he must be represented by a barrister if requested. However, if the barrister is unable to attend another barrister will be supplied.
A single legal profession
Increasingly the division between barristers and solicitors is breaking down this has occurred in 2 main ways: -
. Solicitors have successfully used the legal process to challenge their rights of access to the courts
2. large advances have been made by changes in the law brought about by central government
The main changes in central government are: -
. 1979 Royal Commision
Benson Committee
8/7 said to keep the system as it is
2. 1985 Abse v Smith - A solicitor tried to read a statement in the high court and was rejected. Went to court and was determined that a solicitor can read statements in any court
3. 1988 Marre Committee
. Solicitors - Crown Court
2. Barrister - Instructed directly
4. 1990 Courts and Legal Services Act
Barristers were able to take instructions from professional clients and form multi-partnerships with solicitors.
Solicitors were given rights of audience to all courts providing they held suitable qualifications to do so. Got access to the Judiciary (be a judge) but lost the monopoly on conveyance
5. 1992 Lord Chancellors Advisory Committee
6. 1996 CAB was created
7. 1997 Extended to solicitors in industry
8. 1999 Access to Justice Act
All barristers called to the bar and all solicitors called to the role would have full rights of access once they became suitably qualified.
Barristers were allowed to work full time for the CPS and keep their status as a practicing barrister
The changes listed above have continuously brought the 2 professions closer together. However, without further statutory chance solicitors and barristers will remain 2 separate and clearly different professions.
Arguments in favour of a single legal profession
. Cost of legal services would decrease
The client instructs a solicitor who technically is involved with the case throughout its duration. The barrister is brought in at various stages and predominately at the end when the case goes to trial. If a single lawyer dealt with all aspects of the case it would apparently cost less although the actual reduction over a two to three year period may not be significant against the total cost of the case.
The bar council said that barristers have very low overheads and the 'new lawyers' would work in offices/practices and the overheads would be high, therefore a lawyer would be more expensive than a barrister.
Any change in the cost as far as the public is concerned will be mainly felt in the civil courts where legal aid is now very limited.
Changes in costs in the criminal court will mainly benefit the government as most cases are legally aided. The government estimates that it would save £1,000,000 per year by allowing lawyers to represent clients making a guilty plea. Savings to the government may be the motivation for future professions.
2. A Single Profession would be more effective
Duplication of case notes adds to cost
Time is wasted
3. Much greater continuity
Your choice of solicitor. No choice of barrister
The person I instruct (the lawyer) will follow the case throughout
Guilty pleas in Sheffield Crown Court - 96% of cases had a 'new' barrister show up. Non-guilty pleas 79% chance of a 'new' barrister showing up
If we have a single lawyer who stays with the case right to the end it will be an advantage but the current system can not operate in this way. He will need to be time tabled. This will cost more money as the court will be empty on occasions.
4. Impact on law students
Training to become a solicitor or barrister may start early in the law students university career. The options taken will determine entry into the bar council or law society. Research has shown that many students are not fully aware of the differences by the time they are expected to make these decisions.
A common training of lawyers would allow the students to specialise once they have sampled all the branches of law.
5. The contractual relationship between client an lawyer
Under the current system the contract is between 'client and solicitor' and 'solicitor and barrister'. In the past this had created problems when clients claimed that the barrister had been negligent in representing them in court. In the case of Rondell v Worsley the HOL ruled that barristers could not be sued for negligence in court. In Arthur J.S. Hall v Simmons 2000 the HOL changed its opinion allowing barristers to be sued. In the event of the single profession the situation will be further simplified as there could be no doubt of the contractual relationship between the client and his lawyer.
Disadvantages of a single legal profession
. Training
The training will take longer and cost more money therefore it will discourage more people from entering and make the profession even more exclusive
Bar council and law society have different training schemes. Each system believes it's the best and therefore parts of each need to be included. This will result in a messy system.
How long will it take to genuinely produce lawyers? About 5 years (in theory), but realistically 30 years. Ex-barristers and ex-solicitors will need to have retired before a genuine lawyer is produced.
2. Two heads are better than one
A solicitor can't represent in the Crown but can be very valuable to the barrister.
A solicitor should be able to take on any client because any solicitor has access to a barrister
3. Quality of Advocacy
This will be decreased due to the fact that the 'new' lawyers will have no experience in courts, unlike a barrister who will have had at least 10 years court practice.
Magistrates
In addition to lay magistrates we have full timers known as STIPENDIARY magistrates.
Since the access to justice act 1999 their correct title is now DISTRICT JUDGES (magistrate's court).
They are full time, and work for the Lord Chancellor. They where created in 1792 to try to stamp out corruption in lay magistrates. Qualification is an advocacy certificate (rights of access to all courts) and this must have been held for at least 7 years.
Salary is £80,000 and there are only about 100 of them. 60 are based in London and the rest are roaming. A lay magistrate must live within 15 miles of his court. A stipendiary can sit on his own because of his qualification. Lay magistrates sit in 3's and cannot sentence on their own. 1 stipendiary can do the work of 36 lay magistrates.
Lay magistrates have to work 26 half days per year (13 days) and there are about 30,000 of them.
Lay magistrates where created in 1361 and can only sentence 6 months imprison and/or £5,000 fine (they can sentence two 6 month custodial sentences for multiple offences tried together)
95% of all criminal cases are dealt with by magistrates.
Lay magistrates require no qualifications
The Lord Chancellor said they should be, "Of good character, understanding, communicational skills, social awareness, maturity, sound temperament, sound judgement, reliable, and committed"
* Age 21-60 (really 27-60)
* Sponsored by the local political party
* History of magistrates work in family, nut cant sit on same bench as family member
* Names are now public
* Cant be one if you are in the judiciary
* Police cant be one
* Prison conviction disqualifies you
* Trained beforehand - 1st year is very busy
6 hours on punishment
12 hours on sentencing
- 12 hours of training within next 3 years
Lord Chancellor does dismiss magistrates for inconsistent, criminal records and for using court to further own aims.
Kathleen Cripps was an activist on CND and a magistrate; she used her power to get publicity
R v Bingham 1974 - B was on a motoring charge before the magistrates and said he was not guilty (probably speeding). Magistrates said "My principle on such cases has always been to believe the evidence of the police and therefore we find the case proven."
Background to magistrates
"Middle classed, Middle aged and middle minded"
Magistrates certainly have little in common with the people who come before them. A typical offender is working class, male and less then 21 years of age. Ethnic minorities are over represented by comparison magistrates are much older and from higher social classes.
Middle Class
Statistics from each bench vary but generally working class magistrates are a small percentage of the total. Employees are required by law to give magistrates time off for their duties, but they are not required to pay the magistrates. Magistrates receive compensation for loss of earnings but this is generally far lower then the actual wages.
A survey of Rockdale magistrates found that of a sample of 43, 29 were wither freemason or members of the local rotary and non where Catholics.
Political Background
The current Lord Chancellor (Lord Ervine) who is in charge of all magistrates has been highly critical of the conservative bias (he is labour) in a survey of 1995 of 218 new magistrates 91 where conservative and only 56 where labour. If we compare votes of the general election a similar pattern emerges. In the last election over 50% of the population in Oldham voted labour and 25% of Oldham's magistrate's did the same.
The middle class background of magistrates has been criticised for its impact on the legal aid budget. 40% of criminal aid is granted in only 1% of cases. Of that 1% of cases fraud is the most common crime.
The largest single payment of legal aid in a criminal case was to the Maxwell Brothers who receives £14 million in their fraud trial defence.
Statistics on race
Ethnic minorities are about 5% nation wide and in magistrates it is 2%.
978 woman to men was 38%/62%
2002 woman to men was 48%/52%
District judges men to woman was 80%/20%
Magistrates in the magistrate's court
The role and the jurisdiction of the magistrates court is constantly increasing probably due to its cost. On paper the magistrate's court makes a profit the income from fines should exceed its operating costs.
Technically the magistrate's court is at least 3 courts, it is primarily a criminal court, it is also a youth court, and it acts in limited areas of the civil court.
Criminal jurisdiction
The magistrate's court deals with all committal procedures. The committals deal with the early stages of the case, such as 'is there a case to answer?', where it will be dealt with, legal aid, and bail.
The role in indictable cases
Since the crime and disorder act 1998 formal committal proceedings no longer take place although all cases still make an initial hearing at a magistrate's court therefore for indictable cases the main role is bail and legal aid. For bail there is a presumption that bail should be granted so magistrates hear appeals where the police have denied bail. Criminal legal aid needs to be granted quickly and this is achieved by giving magistrates the power to make decisions.
Summary Trials
Magistrate's court case
* 6 months in prison (two 6 months for multiple offences tried together)
* And/or £5,000 fine
* Sentences can be consecutive or concurrent
At criminal proceeding a single magistrate and clerk of court are present but the magistrate can only grant bail
There are 5 levels of case: Level 1 has a maximum £250 fine
Level 5 has a maximum £5,000 fine
Magistrates are matched for each case. E.g. best magistrate on level 5
Clerk of court sets date for summary trail
Summary Trial
Summary Trial › Prosecution goes first
CPS makes a statement
Produces witness
Defence cross examines witness
Defence starts etc...
Prosecution then sums up
Defence then sums up
Sent for sentence
Magistrates can ask questions
Defendant can make a submission that there is no case to answer.
Criminal justice and public order act 1994 now allow magistrates and juries to reach conclusions if the defendant remains silent.
Trial either way
This process known as 'Mode of trial hearing' decides which court it should go to. It works in 2 ways: -
Committal - Old Style 6(1) verbal
- New Style 6(2) Document
Defendant is required to plea before venue. Not guilty › have they got jurisdiction
Ask defendant to elect
No
Yes
Usually want to stay
AG can intervene and
Force Crown sentencing
Send it to Crown
Can still send to Crown
(lots are sent)
R v Magistrates 1999 - Accused of stealing a 19p can of lemonade. Charged under TA 1968 s1 › trial either way with maximum of 7 years
Went to committal and pleaded 'not guilty' had jurisdiction and asked defendant. He wanted to go to the crown
D.P.P dropped the case because costs would be very high.
The future of 'trial either way' cases
When the magistrate's court does have jurisdiction and allows the defendant to elect. The majority choose the magistrates court. This is ...
This is a preview of the whole essay
Can still send to Crown
(lots are sent)
R v Magistrates 1999 - Accused of stealing a 19p can of lemonade. Charged under TA 1968 s1 › trial either way with maximum of 7 years
Went to committal and pleaded 'not guilty' had jurisdiction and asked defendant. He wanted to go to the crown
D.P.P dropped the case because costs would be very high.
The future of 'trial either way' cases
When the magistrate's court does have jurisdiction and allows the defendant to elect. The majority choose the magistrates court. This is in effect a gamble. In the crown court the acquittal rate is much higher, around 60% compared to around 20% in the magistrates. On the other hand, if your found guilty in the Crown court even a first offender, the likely punishment is much greater then the magistrates court. In a limited number of cases particularly professional criminals (burglary) use the election process of trial either way to their own advantage. They use the delaying tactics in the Crown court to spend as long as possible on remand often resulting in a guilty plea when the case finally comes to court.
How to tackle this problem
One way of keeping people out of the crown court is to make less cases trail either way. E.g. the 1971 Criminal Damage Act made most criminal damage trail either way.
In 1997 rules of criminal damage <£100 became a summary offence
Now the rules on criminal damage <£5000 became a summary offence.
The 2nd way is to change the defendant's rights. In 1993 the Runciman committee suggested rather than change the punishment, the correct way would be to change the right to elect.
In 1999 the Criminal Justice mode of trial bill would have achieved this but was stopped by the HOL twice. It is predicted that it will become law in the year 2003.
Other criminal jurisdiction of the magistrate's court
In addition to the 'day to day' committals and trails of the magistrates court other criminal business includes: -
. The issue of warrants for arrest and search
Warrants can be issued under the Magistrates Court Act 1980 and more commonly under PACE 1984. However, arrest by warrant isn't that common. The 2 main reasons are: -
* Failing to appear at the court
* Failing to comply to bail conditions
2. Bail - Bail Act 1976 "Is a presumption you have the right for bail"
Magistrates deal with bail that has been refused by the police or want to vary the conditions set by the police. The magistrates are regarded as more lenient than the police at granting bail.
Reasons why bail is refused: -
* Poor bail record
* Seriousness of offence
* No address
* Refusal to bail conditions
* Own safety
* Protection of others
* Destruction of evidence
3. Granting Criminal Legal Aid
4. Acting as a youth court (Age 10-14 Doli incapax, 14-18 common age)
Closed court (not open to the public) the magistrates have to have special training. 1 must be a female. Defendant must be accompanied
Sentencing powers (fairly weak)
5. Civil Jurisdiction
* Licensing (bars, betting etc...)
* Family matters (Family procedures court)
* Must have 1 female in family matters
* Child support agency does lots of work for the magistrates
* Fines (non payment of council tax etc...)
Legal Advice and Assistance
Legal advice is 'free' from wherever you can get it. Legal assistance is financial support.
Richard White 1973 - unmet need for legal services
. Some people didn't realise that they had a legal problem.
2. Individuals realises the problem but doesn't know what legal services can help him.
3. realise the problem, know what legal services are available but cant decide who to use (costs)
4. Know the problem, want to get assistance but cant get took on.
Access to legal advice
* Citizens Advice Bureau (CAB) - Have access to solicitors
- Free advice
- Can instruct a barrister
- Service is excellent
Ask duty solicitor or CAB for a good legal solicitor
* Neighbourhood Law Centre - State funded
- Free
- Run by law society
- Staff is solicitors - Don't tend to deal with individual problems. More of a community service
- Group cases together and tackle them as 1
- Very good but hard to find
* Trade Union - Provide legal advice for members
- Branch level staff is the union reps
- Regional level has lots of knowledge
- They have full time solicitors
- Have access to any barrister
* Interest Groups - Legal / Political groups
- Housing problem - housing association
- No home - SHELTER, HELP THE AGED
- Mentally ill - MIND
- Child - NSPCC, Child line
- Trading standards
* Small Claims Court - Take your own case to court (no rep)
- Represent yourself
- Pay fees (court)
* Go to a solicitor - Ask for a free consultation
- Will I qualify for legal aid?
- For civil (NO) criminal (maybe)
Legal Aid Pre 1999
Legal aid is given by the Lord Chancellor (Lord Irvine)
. Green Form (form 10) Legal Advice and Assistance
2. ABWOR (Advice By Way Of Representation)
3. Criminal Legal Aid
4. Civil Legal Aid
5. Duty Solicitor at Police Station
6. Court
. Emergency legal aid administered at first contact with solicitor. Lasted 2 hours (matrimonial cases 3 hours) most of the time was spent filling in legal aid forms. Couldn't represent you on the green form
2. Use legal aid to represent you in court - Family issues in magistrates
- Non payment of fines
- Bail / Parole board
- Mental health tribunals
- Tuition on representation
This lasted 2-3 hours
3. Based on Means Test (financial) more than £75pw non was given
Merit Test (legal) used WIDGERY introduced by 1988 Legal aid act
Should get legal aid automatically if: -
* Murder charge / HOL appeal
* People held in remand and applying for bail
Should get legal aid based on individual cases if: -
* D likely to loose liberty
* Substantial evidence to law
* Inability of D to follow proceedings
* Assist in locating witnesses
* Protect someone else's interests (rape)
4. slower process - main task was merit test £2563 per year
- Earn up to £7595 and get partial paid
Then sent to Merit test - Do you think we will win? Yes then
Took on, on 50% success rate
5. And 6. Not automatic right but would be difficult to refuse. Stall for time.
Problems with legal aid prier to 1999
. Cost was very high £1.6 - 1.8 billion per year
Rise from 1971 6x raised lots since 1991
2. 1985-1990 average earnings rose by 38% and legal aid spending went up 60%
3. Number of people dropped. Only 50% allowed legal aid. In the 1940's 90% of applicants were allowed it
Criminal legal aid
* Cost - number of crimes have increased therefore more people break the law. Better policing
Civil legal aid
* Courts and Legal Services Act encouraged people to sue
State of legal aid
. Future of criminal legal aid - solicitors pulling out of this area. Solicitors using legal aid when it wasn't needed (fraud)
2. 1997 £50-60 million costs
00 firms per year prosecuted for legal aid fraud
3. hadn't developed to a plan therefore very patchy
E.g. Employee made redundant - did not qualify for legal aid
Small firm made people redundant - firm qualifies for legal aid
4. Statutory charge - legal aid boards paid all your costs, but not the other sides costs.
You can be held liable for the other side's costs if you loose
Legal aid board decided that if you can pay a contribution to the legal aid board then you can pay the same contribution to the other side.
Other side can still give you all the costs up to 7 years later
* Statutory charge for divorcing woman was that the divorcee was allowed to keep a sum of £3,000 and any more can be claimed by the legal aid board for expenses.
In 1993 Royal Commission of Criminal Justice was set up
They looked at the way it was being given. They concluded that the legal aid board was not getting value for money.
. Being billed by solicitor (work done by trainee/unqualified staff)
2. Police did the work - Solicitors instructed clients to plea guilty
3. Duty solicitor scheme in police station - when you ask for your solicitor he would ring instead of attending. If someone did come out it would be a member of staff and not your solicitor.
If your solicitor came they did nothing (45%). Duty solicitor did not want to attend as most crimes happen at night.
4. Means test - Had to work quickly and therefore had to take your word on your income so you got legal aid. When you got found out it was too late and therefore it was cheaper to carry on rather than cancelling.
5. Merit test - Too much emphasis on crime. Criminal convictions impact on your life and not if you could afford it.
The Access to Justice Act 1999
Due to the various problems of legal aid but above all, the enormous increase of costs the government re-organised legal aid in 1999.
The Criminal Defence Services (criminal legal aid)
The new system accepts that the criminal defence service is demand lead as more people are charged with crime; more expenditure will have to take place. The new system therefore has tried to save money by simplifying and speeding up the process. The main changes are: -
. The means test is largely abolished, however, the judge in a crown court case can decide at the end of the case whether or not money should be paid by the defendant
2. Stricter controls on duty solicitors at the police station and at the court
3. Much stricter control on firms on solicitors able to offer criminal defence. Firms wishing to offer the services must meet government criteria for cost, quality of services, range of services etc... the aim is to provide a single firm from arrest to trial.
Under the new system only about 1,000 firms now provide criminal defence.
4. A dual system of public and private defendants will operate. Public defence barristers can now be employed by the Lord Chancellors office. The aim is to introduce compensation between the public defences and barristers in chambers. Also public defenders will enable the Lord Chancellor to assess the true cost of the legal system.
* At the moment the defendant 'has the choice' between a pubic and private barrister. You will be appointed one and will have to request a private one. In the future the choice may become lesser and lesser and a private barrister will have to be paid for by the defender.
The Community Legal Service (Civil Legal Aid)
This has undergone a dramatic change. It is no longer demand led, it is now supply led.
The CLS fund is now divided into 2; FAMILY and ALL OTHER. In 1994 legal aid franchises were introduced. 1999 they changed the name to contract holders. The contract holding solicitor bids for legal aid budget based on costs and quality of service. Successful firms are awarded the contract which gives a fixed amount of money to provide civil legal services. This guarantees fixed expenditure for the Lord Chancellor. In addition to a fixed budget the actual service has been cut back.
The following no longer qualify: -
. Personal injuries but not clinical negligence
2. Cases of malicious falsehood (Allegations that put people in prison)
3. Disputes in the course of business
4. Relationship issues
All 4 used to take up 60% of civil legal aid
Qualifying persons can now receive legal aid at 3 levels: -
. Full assistance
2. Legal assistance but not covering lawyer in court
3. Basic legal advice
Has the access to justice bill improved the access to justice?
. He has allowed conditional fees - that has plugged the gap created by legal aid
2. Spending more money on basic legal advice - put more money into neighbourhood law centres "prevention is better than cure"
3. Tried to spread legal services more throughout the country. With the contract holders he has ensured some are in the countryside
4. Better controls of costs - make money go further. Find out the real cost of criminal defenders
5. He can prioritise expenditure where it is needed the most - increased expenditure in youth courts recently
6. First time in legal aid there is quality assurance - now firms are efficient and quality is high - this will improve the quality of criminal defence dramatically
Disadvantages of the access to justice bill
. Enormous cuts in civil legal aid - personal injury claims
2. Criminal legal aid will 'dry up' civil legal aid - criminal legal aid will be paid for by civil legal aid
3. Role of public defenders will become civil servants and paid by Lord Chancellor.
Civil servants will be forced to advice on guilty pleas to save money
4. A dramatic reduction in firms that offer legal aid. Before 1999 10,000 firms could offer legal aid. Now only 1,000 can offer it.
Conditional fees
These were first introduced in the Courts and Legal Services Act 1990. They involved: -
* No fee if you loose your case
* Your solicitor could charge up to double his normal fees if you won (up to 25% uplift of damages)
* If you loose you can be required to pay the other sides costs. You could take out insurance which would pay the costs
This was extended in to the criminal justice act by: -
* In 1998 he extended it to all matters except family matters
* In 1999 made significant changes: -
* Charge costs to other side
* Charge the uplift to the other side
* Charge insurance premiums to other side
Advantages of conditional fees
. No cost to the government
2. Since 1999 if you won you don't pay ANYTHING
3. Make lawyers perform better
4. Has a much wider coverage than the old legal aid system. Conditional fees can be used for defamation, industrial tribunals
5. Lord Chancellor claimed it was very popular - 30,000 cases per year
6. Fair on both sides. If one side was legally aided and one wasn't. The one that wasn't was put under pressure to settle out of court because of costs. (your own costs could be greater than the damages)
Disadvantages of conditional fees
. Success rate for medical negligence cases is about 20%. Each firm can pick and choose as they wish (>85%) the old legal aid board would take you on if your chance of winning was over 50%
2. Cost of insurance. Since 1999 the cost has raised a lot. Some people can't afford it even if solicitors will take them on
The bar council and law society agreed that an insurance fund should be set up. Contingency legal aid fund would be its name. More people would be able to afford it. They would 'loan' then premium and would pay a bit more if you won and nothing if you lost.
3. The cost of lawyer varied under the scheme. Average charge is 45% of the 25% (about 11%) E.g. if you won £4,000 they can charge £1,000 but the average would be £450
4. The ability of lawyers to withstand loosing cases
Alternatives to the present system
. The National Legal Services
This would mean there would be no private sector and would be government run.
An alternative to legal aid was the suggestion in 1949 for a National Legal Services. Recently as an alternative to legal aid this has been suggested again. All legal employees would be directly employed by the state. People with legal problems would be allocated state lawyers at no direct cost to themselves. This system would be similar to the NHS.
2. The National Justice Services
This is similar but technically lawyers would be self employed. People with a legal problem would approach the Justice Service. The service would then allocate a lawyer to that person. There would be no direct contract between the lawyers and the public. The justice service would pay the lawyers directly and then in turn charge the client depending on their income.
Juries
Historical background
The starting point is about 1215. The church abandoned 'trail by ordeal' and therefore the scene was set for trail by jury.
The signing of the Magna Carta removed lots of power from the Crown to the barrens and nobles. Their role was based on witnesses.
967 Bushells case
Trial on a group of Quakers because they had held an unlawful meeting, but they were just praying.
The judge wouldn't accept it and said it will be retried and no food or water would be given until the 'right' decision was made. He then gave a fine and imprisoned the jurors.
The jurors appealed to the Court of Common pleas which laid down 2 rules: -
. A jury can not be punished under any circumstances for their verdict
2. There was never any need for a jury to explain its verdict
From then on juries are similar to today.
R v McKenna 1960 - the jury was sent out on deliberations and the judge got restless and said they have 10 minutes left before they had to go to a hotel. They got worried and reached a decision.
The defendant appealed on the threat of the judge and the COA overturned it saying that the judge can't interfere at all.
The extent of juries
There are 3 main juries: -
. Criminal in Crown Court - Jury of 12
- Minimum of 9
- Decide the outcome of case
2. Civil in High Court - Jury of 10
3. County Court - Jury of 8
- Jury is at the Judges discretion
Biggest area for juries is defamation cases but it must have a claim for at least £10,000. If it goes to county
Cases of malicious prosecution against the CPS
Cases of false imprisonment on an individual or the police
Cases of fraud. These are the longest cases
Civil Jury
* Decide on liability
* If the defendant is liable they have an input on damages to be awarded
Coroners Court
* Only establishes death
* Does not prove liability
* Coroner decides to use a jury or not
* Jury of 7-11
They are used in cases of suspicious death, prison death, police custody death, industrial accidents, and Health and Safety issues.
The frequency of juries in the English Legal System
* Crown Court
Although this is the most common jury trial at about 30,000 per year in terms of all criminal offences they are extremely rare. This is because 95% are heard in the magistrate's court. Out of the 5% that goes here 2-3% plead guilty and the other 2% or so left, the judge dismisses the case on lack of evidence therefore only about 1% of cases are seen before a jury.
* In Civil Cases
Prior to 1854 all common law cases were heard before hurries. In 1981 civil juries were restricted even more due to the Supreme Court Act and in 1984 the County Court Act restricted it further.
Ward v James 1966 put more restrictions on juries. It was said that for personal injury claims it is better not to have a jury. If technical information was involved then a single judge is better. A jury could be applied for, for exceptional circumstances
Singh v London underground 1990 - Old wooden escalator went on fire. Matter of public interest to have a jury but was refused.
H v MOD 1991 - H claimed the MOD had been negligent when they removed part of his penis. He said it was exceptional but a jury was refused.
Qualifications for jury service
Age: 18-70
On the electoral role
British national (lived in UK for 5 years beyond the age of 14)
Don't qualify if: -
Disqualified
* Criminal Record (prison, suspended sentence, community service, or probation) £5,000 fine if you sit on a jury and are disqualified
Ineligible
* Anyone in the Judiciary
* Anyone involved in the admin of justice (police, traffic wardens?)
* Mentally ill
* People on bail
* Clergy
Excused by right
* 65-70 year olds
* People who served jury duty in the last 2 years
* MP's
* Armed forces
* Medical professions (doctors, dentists etc...)
* Certain Religions (Their very forgiving nature)
Discretionary excusal
* Mothers with young children
* Ill health
* Exams (students)
* Holidays (Already booked)
* Business commitments
Discharged
* Language difficulties
* Deaf people
* Blind people
Constructing a jury
* Called at random from the electoral register
* Organised into groups of 15 each (randomly)
* 12 are randomly selected from the 15
Jury vetting
Technically all persons selected for jury duty could be subject to vetting buy the security services. Anyone who has been subject to vetting must be made known to the prosecution and defence.
This procedure follows the so called 'ABC' trial in 1978. In this case 2 journalists and a solicitor were being tried under the official secrets act. MI5 had vetted the jury looking for people who would regard official secrets a serious matter.
When this vetting came to light, the convictions were over turned because the defence had not been informed.
In 1985 the AG admitted the extent of jury vetting and laid down guidelines that it should only apply in cases of National security and terrorism.
However, it also came to light that the police carry out their own, less formal vetting.
R v Sheffield CC Ex parte Brownlow 1950 - B was a police officer on trail. The defence said they wanted jury vetting to make sure that none had criminal records.
Admitted it was common practice, however, was rejected therefore appealed. COA upheld jurisdiction but held great concern over the existence of vetting in police.
R v Mason - M was a burglar, without notification all jury was vetted. Once challenged was saying that it was for their own protection
R v OBeltam & Others 1996 - one of the jurors asked a written question of the judge and judge became suspicious that the person knew too much of the law. Felt he had been threw the process himself. Judge ordered him to be vetted. Prosecution was told but defence was not. Conviction was overturned.
3 cases were applicable: -
. Official Secrets
2. Terrorism
3. Previous Convictions
Challenges to the jury
Other than jury vetting nothing else can be done to the jury prior to be sworn in. if the jury has been vetted it could be argued that there should be no need to challenge the jury once sworn in.
A challenge to the array
This was established in the Jury's Act 1974 s5. Under this a jury or a single juror can be challenged for not being representative. However, recent case law suggests this right is extremely limited.
R v Bansal 1985 - Anti-national front demonstrator - Defence argued the freedom. white jury was not representative and agreed.
Judge said randomly selected from the Asian community
R v Fraser 1987 - All white jury. Judge said it was OK. Sworn in completely new jury, but from same community.
R v Ford 1959 - All white jury. He however, was refused as it was random
Gregory v UK 1997 - G was black and on a robbery charge. During trail juror informed judge he believed a fellow juror was racist. Judge held speech to jury. So convicted with original jury and found guilty.
He appealed to European Court of Human Rights and rejected argument
A challenge for cause
This can be a prosecution or a defence challenge. If it is not challenged then it can give grounds for an appeal.
R v Wilson & Sprason 1995 - 1 of the jurors selected was the wife of a prison officer who had, had one of these defendants in his prison at the time of duty. She admitted there maybe a conflict of interest. Defence challenged this and judge said no there wasn't. Appealed and conviction was overturned.
To Standby
* To right of prosecution only
* The prosecution is not required to state why they wish them to standby
* Defence cannot ask why, therefore wont like this
Problems with jury selection
. How accurate is the electoral register?
* Younger generations are far more likely to move residence than those who have mortgages
* Some exclude themselves from it because the link between electoral and taxation
* Ethnic minorities do not register for the results of doing so.
2. Random selection may produce racial bias
3. Random Selection may produce gender bias
4. Although the system is vetted, a large number are still becoming jurors - 1 in 25 is a disqualified juror
* These who get through also tend to become foremen who influence the jury's decision
* Snarebrook Crown Court
5 previous convictions and knew he was disqualified sat on 3 trails, on 2 he was foreman, once caught he said unless a paedophile they are innocent
5. Excusals
* The majority are woman whom get excusals - childcare
The role of the jury
The judge is there for matters of law whereas the jury is there for matters of fact. On matters of law the judge can acquit. However, the judge cannot tell the jury to reach any verdict. He can say "if guilty it must be beyond all reasonable doubt" judge always asks for an anonymous verdict
From 1967 (made law 1974) the majority verdict came to force. After 2 hours (minimum) the judge must redirect by saying he will accept a majority verdict of 10-2 or 9-1.
Once a majority decision has come to force the foreman must say in court to the judge the actual numbers of the majority verdict
Pigg 1983 - the foreman came back and said they had reached a majority verdict of 10 and the judge accepted it. On appeal the conviction stood.
The process of reaching this decision is completely covered by the contempt of court act 1987. If they cannot reach a decision the judge will ultimately dismiss the jury at his discretion. The CPS can then retrial the case meaning the new jury will be introduced. Therefore the majority of the time the case will not be retried.
Arguments in favour of the jury system
. By definition, juries have no knowledge of the law and so base their decisions on fact and conscience rather than the legal process. This results in what are often described as perverse judgements.
R v Ponting 1985 - P was a civil servant during the Falklands conflict. British government ordered the sinking of an Argentinean ship. This was because it was "heading towards" the British fleets.
Argentinean lives were lost
P found out that the ship was not attacking, but fleeing the British. He made this public. He went to trial under the Official Secrets Act but the jury acquitted
R v Randal & Pottle 1991 - Had smuggled a 'Russian spy' out of the country. Many years later they confessed and were arrested and prosecuted. (They where guilty) the jury acquitted
R v Owen 1992 - He was the father of a child who was killed by a drunk driver. The man was sentenced to 18 months in prison but served only 12. He started driving again. Owen reported it to the police but nothing happened so he killed him.
The jury acquitted
R v Kronlid & Others 1996 - Woman broke into British aerospace and did £11/2 million damage to Hawk training jets being sold as training aircraft but then converted to attack aircraft to bomb civilians. (They admitted to the damage) pleaded the defence criminal law act 1967 s3 allow you to commit a criminal offence to prevent a more serious offence.
Jury acquitted
R v Tisdall 1986 - he did similar things as ponting. The jury found him guilty. This shows that the juries are not consistant
2. Juries enjoy public confidence
Trail by jury is your right. Surveys of the general public suggest that juries are trusted more than magistrates. People who plead not guilty are more likely to elect jury trail. Ethnic minorities are more likely to elect jury trail
3. Juries keep legal process simple
Without a jury there is a danger that the legal proceedings between judges and barristers would become too complicated for the defendant to understand. With a jury trail the legal process must be kept 'simple' enough for ordinary people to understand
4. Juries are anonymous
No one is allowed to interfere with the jury process. Particularly with the majority decisions no individual juror can be held responsible for the verdict. Even when they reach the verdict they can not be held responsible for the sentence as this is the matter for the judge.
5. The duration of jury duty
The average length of jury duty is about 2 weeks. In this time the jurors should be able to keep an open mind and not become 'case hardened' like the magistrates and judges.
Disadvantages of Juries
Their secrecy
Contempt Of Court Act 1981 stops people from selling their jury experiences.
R v Young 1991 - Jury sent on deliberations. They contacted the victim through the ouigy board that night. One of the jurors told the judge how they reached the decision
Runciman Committee
They concluded that secrets do no good. They gave several reasons why the jury's decisions should be open to the public: -
. If juries had to explain their decisions it would stop perverse decisions
2. Cases go to appeal. You appeal against the decision, but don't know how the decision was made
3. We don't know if there are any problems with the jury system. If we knew, we could help them.
4. The majority verdict system doesn't allow the minority to express their views. In the HOL in a 3-2 decision the 2 (overruled) dissenting judges are allowed to express their opinions
Very high acquittal rate
If you plead 'not guilty' in the Crown Court the acquittal rate is about 60%. This is 2x the rate compared to the magistrates
McCabe & Purues concluded that in the 70's 15-20% of acquittals made no sense at all and the defendant 'was' guilty
Baldwin & McConville 1979 sat through 500 cases and concluded that 25% of cases made no sense or little sense. Also 5% of convictions made no sense
Zander 1988 said that 60% of acquittals is not a realistic figure. He found that 67% of people who went to the Crown Court plead guilty. This meant that 33% was pleading not guilty
67% Plead Guilty
33% Plead Not Guilty
It is 60% of the 33% who go to trial and are acquitted. The real number of acquittals is about 21%
* Of the small proportion of cases that go before the jury the acquittal rate appears to be 60%. In 1990 Runciman studied the acquittal rate. 40% of acquittals were ordered by the judge at the beginning of the case. 16% of acquittals were ordered by the judge during the trail. 44% (of the 33%) of acquittals are by juries 10-15% are acquitted by the jury.
998
26,296 - Trials (not guilty pleas in Crown Court in England and Wales)
6,734 - Acquitted by 'juries'
¯¯¯¯¯¯
8,404 - Ordered by judge on day 1
2,515 - Ordered by judge during trial
5,815 - Not guilty verdicts (by jury)
9,562 - Guilty verdicts (by jury)
Acquittal rate therefore is about 20%
Jury Nobling
* For financial reasons (bribes)
* For threats of violence
* Threats of exposure
Authorities suggest that this is not happening
Public Order Act 1994 - increased the powers of authorities to prevent jury nobling. Make it an offence to do so.
Criminal Procedures Act 1996 - allows an acquittal to be overturned it if was a product of jury nobling
Impact on Jurors
In 'bad' cases such as the Yorkshire ripper or Fred & Rosemary West cases, the jurors receive counselling
Cost
Jury trails are very expensive. In the Crown Court a jury trial costs about £15,000 (about £8,000) per day. Magistrate's court worst case is about £5,000. Guilty pleas in the Crown Court can cost £2,500-£5,000
The Manipulation of the jury system
Criminals with a long record (burglars) are known to abuse the jury trail system. When they finally appear at the Crown Court they plead guilty. This creates several problems: -
. It encourages the prosecution to plea bargain
2. The jury system enabled the defendant to spin out the case and spend more time on remand. Time when he pleas guilty can be used against his sentence.
3. The longer the case takes to get to court, the less ale the witnesses can recall the facts
R v Hollington & Emmens 1986 - caught lots of times and had been in prison before. Used all the tricks to get trial delayed. On the day of trial they pleaded guilty. The judge refused to give them the 1/3 off their sentence. They said it was their legal right. The COA agreed with judge that they were not entitled to the full 1/3.
In 1987 53% of trial either way cases was going to the Crown Court where most pleaded guilty. By 1997 28% of cases were going to the Crown Court
Problems of civil juries
* In defamation cases juries not only decide on liability but also set damages. In the Jefery Archer case 1987 Archer was awarded $500,000 in damages, he had created evidence and is now in prison for 4 years for perjury.
990 Sonja Sucliff (Yorkshire rippers wife) was awarded £600,000 for 'selling her story to the paper'. The private eye magazine appealed and it was reduced to £60,000. Evidence showed later on that she did sell her story
* Fraud cases are too long for juries. Highly technical and difficult to understand
The future of the jury system
. Civil Juries
The civil system used to be similar to the criminal system with the majority of cases heard before civil juries. This was dramatically decreased with legislation 1984 and has further decreased in 2 more ways: -
* Cases which traditionally require the jury, in particular defamation can now, since 1984 can be heard in the county court with the judge alone providing both parties agree
* By increasing the jurisdiction of the county court to £50,000, more cases are heard in the county court where civil juries are far less likely. Although it was always legally possible it was never the case. In recent history for judges to overturn decisions of civil juries. However, in January 2001 the COA judges ruled the judge's decision in the Grobbelar case was quite simply incredible. All 3 judges had no hesitation in overturning the decision. This case raised the very obvious questions that if the jury's decision is not final, why bother with juries in the first place?
2. Criminal Juries
The ongoing process of increasing the jurisdiction of the magistrates courts by designating case as summary, rather then indictable (E.g. lower the levels of criminal damage) must mean more cases for the magistrates court and therefore less for criminal jurors
The government is committed in changing the law regarding trail either way cases. Although the legislation was initially rejected by the HOL it is almost inevitable it will become law and all decisions on mode of trial will be used by the magistrates. With the defendants right to elect to trial by jury removes the magistrates, inevitably will see more trail either way cases to the magistrates court, thereby further reducing the jury role
The power to overrule juries decisions currently the COA and HOL have the power to overturn a jury's conviction. In the case of the jury acquittal the AG can question the legal principles of the acquittal but the appeal courts can not reverse the decision. However, the law commission following the Stephen Laurence trial has now recommended that the ancient principle of double jeopardy should be overturned. It has already happened with civil juries in the Grobbelar case. If juries acquittals were to be overturned this raises the question of is there a point of criminal juries
Alternatives to the jury system
. A single judge
This is almost exclusively operated in the civil courts already. It has been used in N. Ireland cases for many years and is common in other legal systems
2. Panels of judges
This already operated in criminal courts except the Crown and Magistrates court, normally have 3 lay magistrates, the appeal court 3 judges and the HOL 5 judges
3. Smaller juries
2 give us a problem as it is an even number. Using a lot of juries is not seen to be used elsewhere. Have les jurors in other counties it is not uncommon to find. 6 jurors is another suggestion to follow coroners court 7-11
4. A combination jury
A judge and professional jurors who would be experts in the field, they would be supported by the judge who is an expert in law.
5. Composite decision
The judge would retire with the jury and join in on their deliberations
The judiciary
The courts are split up into 2 types: -
. Superior (HOL, COA, High Court)
2. Inferior (County, Magistrates)
The judges are matched to the courts and are split into superior and inferior judges.
* Specialist Posts
. Lord chancellor - Head of Judiciary
- Member of Government HOL
- Member of cabinet
- £171,000 per year
2. Lord Chief Justice - COA (criminal division)
- £171,000
3. Master Of Roles - COA (civil division)
- High Court (family division)
- £171,000
4. Lord Of Appeal in Ordinary - Law Lord
- 12 of them sit in panels of 5
- Deal with about 50 civil cases
- £157,000
5. Lord Justice Of Appeal - COA judge
- 32 and come from High Court
- Are barristers
- Split between civil & criminal
- 2/3 Civil, 1/3 Criminal
- Sit in panels of 3
- £149,000
6. Puisne Judges - High Court Judge
- 100 of them
- Split between 3 divisions
- £132,000
Deputy High Court Judge - Part time
7. Circuit Judge - Crown/County Court
- 605 of them (56 woman)
- County split into area circuits
- Quiet areas are bigger than busy
- Judges sent to any court on circuit
- £99,000-£107,000
The judges are split into either Crown or County Court. The judge has usually been a recorder
8. Recorder - 1310 of them (158 woman)
- Crown / County court
- held a practicing certificate for at least 10 years
Assistant Recorder - Part time recorder
- Part time as judge & part time in his own legal profession
9. District Judge - 419 of them (76 woman)
- Civil rather than criminal
- £79,000
Deputy District Judge - Part Time
- 777 of them (156 woman)
0. District Judge (Stipendiary) - 95 of them (16 woman)
- Sit in Magistrates
- held practicing certificate for at least 7 years
- Can be part time (40 sittings)
- £79,000
Ethnic minorities in each group
Court
Number in each
Lord Of Appeal in Ordinary
0
Lord Justice Of Appeal
0
Puisne Judge
0
Circuit Judge
6
Recorder
39
District Judge
3
Who are Judges?
. Age - 52-53 at first appointment
2. Gender - Male (Max 20% female in low courts
3. Ethnic Minorities - None until Circuit judge
- Varies from 1%-3.2% at stipendiary
4. Education - Went to public school 75-80%
- Oxford/Cambridge graduate 80%
5. Chambers - Secret whispers (some chambers give better chance)
Appointments from 1986-1996 of 104 Judicial appointments
- 67% came from a chamber where a member of the selection panel came from
- 28.8% came from 1.8% of chambers
Training Judges
No training board until 1979 Judicial Studies Board
If you are an assistant recorder you must have training
- 1 week at Judicial Studies board
- 1 week Shadowing a judge
No other judge requires any training
Training is for new legislation and tells judges to look over any new legislation passed. No training is needed as by the time they become a judge they have had at least 10 years practicing in court. However, seeing is different to doing the job.
Some posts do criminal and civil, some barristers have only ever done one.
In 1993 the human awareness training was introduced. It pointed out that people are black, woman, and have different disadvantages. Judges now get legal research time. A COA judge gets 4 days per month off to do his legal research/reading.
The independent judiciary
An effective judiciary technically should be as independent as possible. This independence is achieved by the 'separation of powers' which was first discussed by the French philosopher Montesquieu.
He suggested that a true democracy should have its power separated into 3 branches. These are: -
. The Legislative
This is the government in its broadest sense. In particular the House of Commons and House of Lords
2. The Executive
This is the party in power (Labour) and particularly the Labour Cabinet (top minister posts)
3. The Judiciary
The judges in England and Wales
By separating power into 3 separate groups Montesquieu argued that democracy would be maintained as abuse of power by 1 of the groups could be overcome by the collective power of the other 2. England has achieved this separation of powers but unfortunately there is 1 main contradiction; the post of the Lord Chancellor as he is a member of the legislative (member of the HOL) although not an elected MP he is also an executive member (sits on the Cabinet) and he is a member of the judiciary (he is in charge of it)
Examples of judicial independence
. Judges Pay
This is partly independent as the pay of judges does not require a vote by the Hoc or HOL. Compared with their salaries with barristers, the rates of pay for judges ranges from £83,000-£173,000 which is relatively poor. However, one of the attractions of the job was the very high pensions. A barrister becoming a judge at 55 could technically collect a pension in 15 years. However, in 1993 the government imposed a minimum of 20 years to qualify for the same pension therefore although their salary is independent the bar council has argued that changes in pension rights amount to a 71/2 rate cut
2. Judges enjoy the complete independence from being sued for anything they do in court
Sirros v Moore 1975 - S was a Turkish immigrant. He was ordered to be deported by local magistrates, but was released on bail. He appealed to the Crown on his deportation. Judge (Moore) agreed that he should be deported. The judge detained him. S sued for false imprisonment. Court said you can not sue a judge
3. Removal and dismissal of judges
* The act of settlement of 1700 lays down the rules for dismissing judges. A senior judge can only be dismissed after a partition has been passed thorough both houses. The last judge dismissed was in 1830. He stole money from the high court - Barrington
* Judges in lower courts come under the 1971 courts act. They can be dismissed for inability or misbehaviour. The last one dismissed was in 1983 - Campbell
Although judges are very difficult to dismiss they might be encouraged to resign or retire. If all else fails they can be removed through infirmity
Justice Harman 1998 made a famous speech (made silly statements) he then resigned
Justice Wood 1993 retired after working for employment tribunal. The employment law changed in 1992 to favour employees. Wood made it clear he did not like the law. A statement by Lord Chancellor said that he might like to consider his position as he is not using the law to its full advantage
Judges can work up to 70 and after that the Lord Chancellor can extend their contract indefinitely.
4. The ability of judges to use the courts to challenge legislation
Under English law parliament is supreme which means that statute always has authority over common law. No judge can question the validity of an act of parliament. However, in addition to parliament, legislation is passed by delegated authorities. As this is not parliamentary law the judges can challenge it.
Delegated legislation › Privy Council - The emergency powers act 1920 "orders in council"
› Govn.t ministers - Statutory instrument
› Local Authority - By laws
Providing a judge challenge one of these 3 sources of delegated legislation they have the power to declare the legislation ULTRA VIRES. A judge can over rule delegated legislation.
Examples of ULTRA VIRES
D.P.P v Hutchinson 1990 - H was a member of the "Greenham Common" and was testing the law. (All woman) H was a protester and the D.P.P looked into local by law that she had been prosecuted. The by law was made by the ministry of defence. They made it illegal to trespass on Greenham common. The D.P.P questioned the validity. D.P.P ruled that common land can not be private
R v Home Sec. Ex parte Fire Brigade Union 1995 - H had gone ultra vires when making the decision to exclude the fire brigade from the CICB
R v Sec Stae Ex parte Equal Opps Commission 1995 - British government decided that part time workers didn't have the same rights as full time workers.
Full time workers dismissed after 2 years for unfit. Part time workers were average part time and therefore full rights of employment only started after 4/5 years.
(Treaty of Rome article 141) makes it unlawful to discriminate woman in work (who is usually part time) now part time and full time workers have the same rights
Pinochet case 1998 - came for surgery in UK and whilst here he was served with crimes against humanity. Should he be tried here or let back to Chilli? Amnesty international challenged his right to return to Chilli
Goes to HOL and HOL said he should stay and face trial. His lawyers discovered that Lord Hoffman was a member of Amnesty international and HOL overturned the decision to retain him
Arguments against an independent judiciary
Some of the top posts in the judiciary go against the principle of independence as the posts are political rather than primarily legal. The main posts are: -
. Lord Chancellor - Member of the Legislative
- Member of the Executive
- Member of the Judiciary
2. Attorney General - MP
- Governments chief legal advisor
- Prosecute high profile cases
- Can act as main defence for govn.t
3. Director of public prosecutions (D.P.P) - is appointed by the AG directly. And is in charge of Crown Prosecution service. Deals with all prosecutions and can refer cases top AG. AG then tells D.P.P how to deal with it in the future
Cases with political implications
Some cases are highlighted because the judge admits that the defendant did little wrong but the court still finds in favour of the government or government agencies
McIlkenny v Chief Constable West Midlands 1985 - M was a member of Birmingham 6 and had been 'ruffed' up by the police to give a confession.
Lord Denning ruled that he could not find in favour of the appellant because it would look bad for the police
R v Ponting 1985 - gave info under the official secrets act (sinking of a ship) Lord Justice said that the "interest of the state meant nothing more then government policies of the day" jury ignored direction of judge and found P not guilty
London Borough Bromley v GLC 1982 - Local authorities were compelled by law to provide 'economic' pubic transport. GLC heavily subsidised local transport. LBB council didn't want to pay to subsidise transport. High Court rules in favour of GLC, but LBB appealed saying that economic meant 'business' and run at a profit. COA and HOL ruled for LBB
GCHQ 1984 - spy station run by civil servant who wanted to join a union. They were told they couldn't as it involves national security.
Workers took the case to court and went to the HOL that found it was unlawful for then to join a union
Thomas v NUM 1985 - minors strike and secondary picketing. Conservatives passed a law making it illegal. Judge ruled that T hadn't done anything wrong, but in his judgement said that he couldn't secondary picket
The role of judges and woman
The maximum number of woman in any branch of the judiciary is 20%. In the HOL it is 0%. In the criminal courts woman are most likely to be dealt with by male judges. Statistics in the criminal courts show woman defenders are out numbered by men 7-1. Although women are less likely to appear in court, once there they have a higher conviction rate than men and receive higher sentences for the same type of offence.
Quotes from judges to woman
* Justice Wilde 1982 - "woman who say no don't always mean no"
* Justice Cassell 1990 - "understandable because the defendants wife had gone off sex as she was pregnant"
Free Masons
They help fellow masons. They are secret and hold jobs in the police and judiciary. Masons may not administer justice correctly to other free masons. March 1997 a HOL select committee was set up to look at this problem. They said there were a large number of them but there is no need for concern
Reforms of the Judiciary
* The proposed ministry of justice
Under the English system the home office is responsible for the police and law and order, while the Lord Chancellor is responsible for the administration of justice. Occasionally the 2 departments come into conflict. E.g. a change in the law might have justice implications. (Speed cameras is a law & order issue, but identifying the driver has implications under the HR Act 1999)
To avoid such conflicts it has been suggested that the creation of administer of justice could be established which would deal with all law and order and justice issues. Within the department the independence of judges could be maintained by the commission if the judicial appointments committee.
Civil Procedures
Reform of the civil process
Heilbron Committee 1993 - looked into civil procedures and justice. They concluded that the system want working very well, it was too expensive so no one was using it, too inflexible, and too technical.
They said to appoint new judges to it
Lord Chancellor 1994 set up his own enquiry called the Woolf report 1996 (Access to Justice) this confirmed the above. He made 303 recommendations on how it could be improved. New civil proceedings were enacted in the 1999 new civil procedures rules (it was not an act of parliament) he said: -
. Put both parties in a civil action on a more equal footing
2. The cost had to be reduced
3. The backlog and waiting time had to be reduced
4. Time would be allocated in proportion to the importance of the case
The role of judges
Prior to Woolf deciding which court to start a civil action was largely a matter for the plaintiff. If the case got to court and was considered to be in the wrong court, the process of moving it was slow and complicated; partly because the courts used different administration procedures. Under the Woolf recommendations judges were given a greater role in running the courts thereby speeding up the process and reducing costs. Prior to Woolf the average time for a civil claim was 83 weeks. Under Woolf's case management system the target figure was 30 weeks. The claimant submits the application to the court he believes is the most appropriate. Before the case is allocated a District Judge in the County Court checks the application and allocated it to the most appropriate track/route.
Pre action protocol
In order to facilitate movement between the courts a civil claim for the small, county, or high court needs to follow the same process.
. Write to other party setting out the nature of your claim
2. Give them up to 3 months to reply
Defendant pays, Defendant rejects the claim, Defendant agrees on a figure, Defendant may counter claim, or Defendant ignores your letter
Rejected
. Go to nearest court and get from N1
2. On the form set out basis for claim & specify a court
3. Take it back to the court and pay standard fee (based on claim)
£200 › £20 fee
£50,000 › £400 fee
4. Send a copy to the defendant (from the court) and give 14 days to reply
Responds
. Ask for up to 28 days more
2. Claimant asks for a judgement and usually gets one
If responded
. Judge allocates case to correct court
2. Put on a track:
Small claims track £5,000 (personal injury £1,000)
Fast track £5,000-£15,000
Multi track £15,000-£25,000 County Court
£25,000-£50,000 County/High Court
£50,000+ High Court
The small claims court
By increasing the limit to £5,000 a high proportion of cases can go through the small claims
The procedure: -
. To help the judge allocate the case, the defendant is sent from N150 the allocation questionnaire. This leaflet helps the judge ensure this is the correct court
2. The parties must apply to the judge to use expert witnesses
3. Before the hearing the judge will ask for a final direction. E.g. he may want to see copies of all documentation to be used
4. In exceptional circumstances the judge may call for a preliminary hearing. E.g. the judge feels that one party has no chance of winning
5. The parties can represent themselves, they can take a lay representative or a qualified legal representative
6. The hearing takes place in public in the judges room or the court
7. The hearing takes place informally with normal civil proceedings not operated. The judge acts as an arbitrator, his aim is to establish the facts the best he can
8. At the end of the hearing which lasts at most a few hours the judge will deliver his judgement
9. The rights of appeal are very limited in the vast majority of cases both parties must consider the judges decision as final
The advantages of a small claims procedure
Set up in 1973
. Set up to establish a system where the cost of making a claim was likely to be less than the value of the claim. By 1999 the cost of claims had crept up as a result a new lower scale of charges was introduced.
2. In addition to the low admin cost the small claims court assumes that you do not need legal representation. You can if you wish take a lay representative if you want to. If you represent yourself the cost of the claim should be no greater then the initial charge.
3. Informality. The court is made informal by being in the judge's room and not dressed up. He will use 'normal' language.
4. The strict rules of evidence are not followed. The role of the judge is inquisitorial. The judge is specially trained in asking questions of lay people and extracting as much information as possible. The normal procedure of the claimant presenting their case followed by the defendant's case cross examination etc... Wouldn't normally take place.
5. The decision of the judge should be regarded as final. Compared with other courts, appeals from the small claims are very rare. There are only 14 days from the judgement to lodge an appeal which must be the result of a serious irregularity or a mistake of law.
The disadvantages of the small claims procedure
. Cost
Although they have reduced them in 1999, inflation may increase them dramatically in a few years
2. Legal representation
The small claims procedure suggests that you don't need legal representation; it encourages people to represent themselves. However, large companies have full time legal staff who can represent the company at no additional cost, therefore in practice individuals usually represent themselves while companies have professional representation. The judge is meant to balance this in reaching his decision. There is a case to argue that representation should not be allowed giving all equal opportunity
3. The informality of the court
According to Woolf, small claims procedures range from highly informal to a lesser version of a normal county court procedure. The appearance of the court was very much down to the opinions of the judge. Although Woolf accepted the informal nature of a small claim, it was suggested that the procedure between courts should become more standardised. Partly to encourage this, courts were opened to the general public.
4. Legal aid
It has never been available for small claims and wouldn't be covered under conditional fees.
5. The judgement is final
However, it is only a judgement. The court is not responsible for the enforcement of the judgement. Companies who are frequently sued in the small claims court know how difficult it is for the court judgement to be enforced. As a result they may ignore the judgement hopping that the claimant hasn't got enough time or resources to go back to court to get the judgement enforced usually through the use of bailiffs.
Fast track
This was the biggest change under Woolf as previously all county court procedures where the same. Now this fast track in the county court is a different procedure to the multi track in the county court.
The fast track puts the judge, the claimant, and the defendant on a strict 30 week time table. It then settles the matter in a maximum of 5 hours. Compared with the previous system this is aimed at cutting waiting time by 50-60 weeks.
Multi track
This was created by the Woolf report and refers to the system rather than the court. Through case management a judge allocates the case to one of the 3 tracks.
. £15,000 - £20,000 Multi track County court
2. £25,000 - £50,000 Multi track County / High Court
3. £50,000 + Multi track High Court
Unlike the fast track multi track has no specific time table for the case to get to court and no time table of long the case is in court.
Problems with the Woolf reforms
. The use if IT
Woolf pointed out that cost and time savings could be made with the use of IT in courts. By the time the reforms came into operation the IT was not completely available.
2. The problem of judgements
Woolf accepted the criticisms with the small claims court that claimants felt let down when they won a judgement but the court didn't help them enforce the judgement. Woolf recommended that the courts should give successful claimants greater assistance in recovering their damages.
3. The assumptions of Woolf may be incorrect
In his report Woolf concluded that the adversarial system of the courts was the main problem for the civil system taking so long. However, a report by the Lord Chancellors department in 1994 concluded that locating expert witnesses, medical reports, and evidence in general was the main cause for delay.
4. The number of cases being thrown out of court
During 1990-1998 (prior to Woolf) 20,000 cases were struck off the county court due to time tabling problems. This was based on an average time table of 80-90 weeks. Under the 30 week time table of the fast track the number of cases thrown out will increases dramatically with an anticipated increase in the number of clients suing their solicitors for the cases failure
5. The lack of training of judges
Traditional criticisms of judges and their lack of training can be counted by the argument that their experiences as barristers qualify them as judges. However, the case management introduced by Woolf is new to solicitors, barristers, and judges alike. None of whom have to be trained for the role.
6. Case management saves time but can cost more money
In order to bring cases to court more quickly, the legal professions need to do more work outside the court. In the USA case management has operated for some years typically to reduce the case by 1 month increases lawyers time by 10 hours. Woolf aims to bring waiting times down by 50-60 weeks. This will involve a dramatic increase in their clients out of court costs.
Alternative Dispute Resolution (ADR)
It is a legal process but not in the courts. It was set up to remove work from the court. Its main work is in tribunals.
A tribunal is a body of 3 (chairman and 2 others)
E.g. Employment tribunal - unfair dismissal
* A chairman
* Trade Union representative
* Employers representative
Types of resolution
Various organisations offer people alternative ways of settling disputes outside the court system. Each system is slightly more formal than the previous one. The main types of help include NEGOTIATION, MEDIATION, CONCILIATION, and ARBITRATION.
Arbitration is the most formal and the last one used before using the court system.
Negotiation
Talk with each other to discuss the problem and try to resolve it. Can be carried out by parties or by an appointed representative (solicitor)
Mediation
Negotiation has probably failed and now a mediator (3rd party - unbiased) will sit between the parties and (doesn't express an opinion) tries to help them to communicate to reach a decision.
Centre for dispute resolution set up in 1991 in London. If you need a mediator they will allocate you one. Company mediator £1,500-£2,000, but can settle 80% of disputes
Conciliation
The conciliator gets involved in the discussion. The conciliator expresses an opinion on how the problem can be sorted.
ACAS (Advisory Conciliation and Arbitration Services) this is government funded and mainly involved in employment disputes
Arbitration
This is the most formal. It can take 2 forms: -
. Arbitration within the courts
This is a process where the parties agree to arbitration rather than the normal court proceedings. E.g. the Commercial Court of the Queens Bench Division of the High Court
2. Private Arbitration
This is governed by the Arbitration Act 1996. This act suggests arbitration has 2 main principles: -
. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without delay or expense
2. The parties should be free to agree how their arbitration should be resolved providing it falls within the rules of the statute
The 1996 Act primarily involves written agreements, for all other agreements the parties are free to arbitrate how they like.
The main elements of arbitration are: -
. Both parties must voluntarily enter into the process
2. The arbitration is carried out by independent persons. E.g. ACAS. 1 person can be appointed by 3 is most common.
3. the institute of arbitrators can provide trained arbitrators for virtually all aspects of the law
4. The arbitration hearing can be a paper exercise or oral to swear on oath, but generally proceedings are not that formal.
5. The decision of the arbitrator is called the AWARD. Arbitration is binding on both parties. If either party fails to abide by the decision this decision can be enforced by the courts.
Tribunals
These are the same where between the approaches discussed earlier and the court system. Arbitration for example can take place anywhere providing both parties agree. A tribunal is a more formal structure which follows a legal process which would have some resemblance to a civil court procedure.
There are 2 types of tribunal: -
. Domestic Tribunal
These have been set up by the various bodies to deal with complaints, disputes, discipline etc... Often they have been set up as a means of avoiding statutory regulation by parliament.
Such as the General Medical Council deals with all aspects of doctors in the UK.
Law Society dealing with all aspects of solicitors.
Bar council dealing with all aspects of barristers.
2. Administrative Tribunal
* Employment tribunals
* Rent Tribunals
* Social Security Tribunals
Typically a tribunal is controlled by the chairman who is legally qualified and 2 lay people typically representing both sides. E.g. the industrial injuries tribunal would have 1 medically qualified person representing the employer and 1 representing the employee. The procedure of tribunals is informal and varies for each type of tribunal. Employment tribunals are normally the most formal. Generally legal aid is not available although the mental health tribunal is an exception to this. In 1958 the council on tribunals was set up to oversee all tribunals but has little power and can only make reports. In 1967 the parliamentary ombudsman was established who can also investigate tribunals. The decision of a tribunal must be regarded as final. The courts can become involved in 2 ways: -
. Certain appeals from tribunals can be heard by High Court judges. E.g. the employment appeals tribunal. Some tribunals (E.g. immigration) can appeal to the COA on points of law.
2. the Queens Bench Division of the High Court has the power to hear judicial reviews against tribunal decisions
Advantages of tribunals
. Their extensive use
The social security tribunal for example hears 10,000+ cases per year, cases which otherwise would have to be heard in a court of law.
2. The cost of tribunals
Tribunal's costs are much lower than court costs. There is no need for representation; however, statistics suggest that people who use a lawyer in a tribunal have around a 50% chance of winning while people without representatives have about a 30% chance.
3. The speed
Generally tribunal cases are much quicker to be heard than cases in the courts. However, under the new fast track arrangements where by cases should go to court within 30 weeks tribunals now enjoy less of an advantage.
4. Simple procedures
This is particularly useful for individuals bringing their own cases who can not afford legal representation. However, as mentioned above the success rate for these people is low.
5. Tribunals become experts
As they deal with a very limited area of law. E.g. Employment, the chairman and the 2 lay members become very expert in this field.
Disadvantages of tribunals
. Lack of legal aid
Individuals who can pay for representatives enjoy a distinct advantage
2. Limited rights of appeal
Some tribunals do not need to publish the reasons for their decision which makes appeals virtually impossible. Some tribunals don't have rights of appeal at all. Whilst the ones that do (E.g. Immigration, Social security, and mental health) have far fewer rights than cases heard in court.
3. Unlike the courts tribunals do not operate a system of strict judicial precedent
This means that compared to a court case, the outcome of a tribunal is far more difficult to predict. This means that legal advice is difficult to obtain and so less cases are settled outside the tribunal.
4. Tribunals are less respected than the courts
This means that parties are less likely to accept the decisions of a tribunal and it is far more difficult to take action to get the decision enforced.
End of Module 2
Started on 08th January 2002
Finished on 19th March 2002
Robert Cook
Module 2
P. 1
