English Legal System Coursework

Prosecuting Counsel, usually a lawyer from the Crown Prosecuting Service would present the prosecution case.  Defence Counsel would normally consist of a Barrister and an instructing Solicitor, but Solicitors with Higher Rights of Audience may, on their own, act as Defence Counsel.  Should Dan be financially unable to retain Defence Counsel, he may be appointed one from the Public Defender Service.  However, if Dan so chooses, he can also act on his own behalf.

During the case, witnesses would appear on behalf of the Prosecution and/or Defence, and would face cross-examination by opposing counsel.  Counsel would end with closing statements, at which time the presiding Judge would sum up the case for the Jury and direct them on any point of law applicable.  For this case, Prosecuting Counsel must prove beyond reasonable doubt that Dan had indeed wounded with intent.

The Jury would be asked to consider the evidence obtained throughout the trial, in addition to directions by the Judge and return with a unanimous verdict of either “guilty” or “not guilty”.  Where a unanimous verdict cannot be reached, the Judge may ask the Jury to retire once more and endeavour to reach such a verdict.  It may be the case where a majority verdict is accepted providing at least ten of the twelve jurors agree on a verdict.

If the jury returns a verdict of “not-guilty”, Dan would be acquitted and all criminal proceedings would end.  If on the other hand, a verdict of “guilty” were returned, as stated above, the Judge would then sentence Dan according to the guidelines set for such offences, stating his/her reasoning behind the judgement.

Dan may appeal his conviction on a point of law or fact, or an unduly harsh sentence by applying to the Court of Appeal (Criminal Division).  The prosecution may also appeal to the Criminal Division of the Appeal Court if an unduly lenient sentence were passed.  The Court of Appeal would be presided by at least three Lord Justices of Appeal.  In some cases, High Court Judges may assist in hearing appeals brought before the Court of Appeal.

The Court of Appeal may set aside the judgement of the Crown Court because it was unsafe, or based on a wrong decision in law, or for some material irregularity.  This in effect would acquit Dan.  The Court of Appeal could also vary the conviction, if the jury had found Dan guilty of another offence other than the one he was charged with.

Should a point of law of general public importance arise during Dan’s case, both Prosecutor and Defence may appeal to the House of Lords, the final appellate court in England and Wales.  The House of Lords would be presided by no less than three Lords of Appeal (Law Lords), each of whom would offer individual judgements.  The final decision is based on a majority.

Since the Human Rights Act 1988 came into effect, claims of violation of the European Convention of Human Rights would be heard in the UK courts, and not the European Court of Human Rights (ECHR), based on the judgement in CILFIT v. Ministry of Health (Case 283/81).  Dan’s case would most likely not have requisite conditions for hearing at the ECHR.

Civil case

Vince has suffered what appears to be significant loss of earnings as a male model, as a direct result of the cuts received when Dan struck him in the face with a glass.  It is assumed that no mutual agreement to settle is entertained by Vince, therefore he shall be asking the courts to award damages from Dan.

Should Vince be satisfied with monetary compensation not exceeding £50,000 the civil trial would begin in the County Court, regulated inter alia the Civil Procedure Rules (CPR) 1998.  The County Court is presided by a Circuit Judge, but more senior Judges can also hear cases at the County Court.  The trial could take one of three tracks (small claims, fast, multi-track), depending again on Vince settling for a lesser monetary award or preference to length of trial.  Vince (the claimant) and Dan (the defendant) may act on their own behalf, or may employ the services of a Solicitor.

Where it is the case that Vince is seeking damages not less than £15,000, a High Court Judge would hear the civil trial in the Queen’s Bench Division of the High Court.  For both County and High Courts, the civil trial would be heard without a jury.

A further appeal could be made to Court of Appeal (Civil Division), presided by at least one Judge.  However, permission to hear the matter must be granted by the Court of Appeal itself and this is done only where “the appeal would raise an important point of principle or practice; or there is some other compelling reason for the Court of Appeal to hear it”.

As in the criminal case, the final appellate court in the civil case would be the House of Lords, for points of law of general public importance.

Question 2

In recent years there have emerged various alternatives to the traditional courts in the resolution of legal disputes.  Briefly describe these alternatives and consider whether their existence is desirable.

Answer 2 (647 words)

“Alternative Dispute Resolution, usually referred to as ADR, is the collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing”.  One advantage of ADR is that it frees the valuable court time, and another being the informal nature of proceedings.  The following is not an exhaustive list, but briefly describes commonly used ADR methods.

Tribunals:  These provide an alternative to litigation, but are more formal, and regulated as the courts.  They include Employment, Finance, Immigration, Lands, and Pensions Tribunals.

Ombudsman schemes:  These deal with complaints from members of the public about certain public bodies or private sector services.  These include the Health Service, Police and Prisons, Housing Associations, Legal Services, Financial Services, Communication Services and Estate Agents.  The majority of recognised Ombudsman schemes are set up by statute. Others are voluntary schemes set up on the initiative of the service sectors concerned.  Ombudsmen can award financial compensation within limits, and recommend other remedies.  They are independent of the bodies they investigate, and are free to complainants.  One disadvantage of Ombudsmen is that their decisions are not binding.

Regulators:  Regulators are bodies established by statute and possess one or more of the powers of inspection, referral, advice to a third party, licensing, accreditation, or enforcement.

Arbitration:  Arbitration can be considered an alternative form of civil court.  In England and Wales, the Arbitration Act 1996 provides procedural rules that govern issues such as disclosure of documents and evidence, similar to what obtains in the court.  Unlike court hearings, Arbitrations are private matters between the individuals concerned.  This is a distinct advantage where commercial interests are at stake.  Arbitrations are also more informal than court proceedings.  One disadvantage of Arbitration is that decisions are final and binding, with very limited scope for appeal.  Another disadvantage is the cost associated, and especially for lengthy proceedings.

Mediation:  This is form of ADR is used in a variety of disputes, such as family, commercial, neighbourly, medical negligence, personal injury and consumer matters. Mediation gives parties in dispute the opportunity to reach a settlement without a court hearing.  It is voluntary and private, and disputing parties decide on how to resolve the dispute.  This is done with the aid of an independent third party (the mediator). Mediations can be facillitative, evaluative or rights-based.  They take place in a neutral venue.  Mediation outcomes are not binding and could be costly.  They are however confidential and issues raised in mediation cannot be used in any other proceeding.

Neutral Evaluation:  In this method of ADR, an independent third party assesses the claims of disputing parties and provides a non-binding assessment of the merits of the case.  It can be used as a basis for settlement, and can guide disputing parties how to proceed.

Conciliation:  This is where an impartial third party hears both sides of a dispute and offers guidance on how it should be settled.   This is a voluntary process that is also private and confidential.  One disadvantage is that parties may agree or disagree on the resolution, increasing the time taken to resolve the dispute.  Conciliation is however, free.

Expert Determination:  This is where an independent expert in the subject of dispute (for example, technical/engineering matters), assesses the claims of the disputing parties and issues a binding decision.  This form of ADR is useful where complex and technical matters are in dispute.

Neutral Fact Finding:  Just as with Expert Determination, but a non-binding decision is made.

Mediation and Arbitration:  Also called Med-Arb, it is where parties agree to mediate but refer the dispute to arbitration if the mediation is unsuccessful.

ADR is certainly desirable where it comes to freeing the courts to hear other matters.  It is now part of “civil procedure” in that matters are more and more guided to seek alternative forms of resolution.