1 - The Legal System

Question 1

Explain the role of solicitors.

Answer 1

Usually work in law firms in specific areas of law (e.g. family) - or ‘in house’ - working privately for companies, government etc.
First point of contact.
They advise people on legal matters, deal with legal paperwork, and pre-trial hearings.
They act as advocates in the Magistrates’ and Crown Court and can advocate in higher courts if they have a certificate in advocacy.
They collect evidence for their cases.
They instruct barristers if they need someone with higher rights of audience.
Settle cases outside of court.

Question 2

Explain the role of barristers.

Answer 2

Often work in chambers with other self-employed barristers.
Main job is advocacy in higher courts.
Specialise in certain fields.
They write opinions on whether cases are viable and draft complex documents.
They have full rights of audience and often advocate in higher courts and in appeals.
Usually instructed by solicitors if a case goes to a higher court but there can be direct access in certain cases.

Question 3

Explain the role of legal executives.

Answer 3

Work as assistants, usually in law firms alongside solicitors.
Have to pass the Institute of Legal Executives’ Professional Quallification.
They specialise in areas.
Often advise clients and draft contracts.
Can gain rights of audience with the right certificates.

Question 4

How are solicitors regulated?

Answer 4

Regulated by The Solicitors Regulation Authority.
Regulates their education, conduct, and can refer complaints to the Solicitors Disciplinary Tribunal.
Can be punished with fines, being reprimanded, or striking them off.
They can only be sued in contract law and in the tort of negligence (White V Jones).

Question 5

How are barristers regulated?

Answer 5

Regulated by The Bar Standards Board.
Regulates training, conduct, and handles complaints.
Can be punished with fines, warnings, and can be disbarred.
Can be sued for negligence (Hall V Simons) and contract in the case of direct access.

Question 6

How are legal executives regulated?

Answer 6

Regulated by CILEx.
Regulates training, conduct, and handles complaints.
They can be fined, given working conditions, or stuck off.
Can be sued in contract law and the tort of negligence.

Question 7

Describe the role of a Lord Justice of the UK Supreme Court.

Answer 7

Superior Judges.
Only 12 serving at a time.
Sit in the Supreme Court.
Hear appeals in panels of 3, 6, 9, or 11.
Must have had rights of audience for 15 years.

Question 8

Describe the role of a Lord Justice of Appeal.

Answer 8

Superior judges.
Sit in either the civil or criminal division of the Court of Appeal.
Hear Appeals in panels of 3 or 5.
Must have been a qualified solicitor or barrister and have had 7 years experience working in law.

Question 9

Describe the role of a High Court Judge.

Answer 9

Superior judges.
Work in either the KBD, Chancery, or Family division in the High Court.
Hears complex civil cases and case stated appeals.
Can sit in the Crown Court to hear complex cases.
Must have 7 years experience in law.

Question 10

Describe the role of a Circuit Judge.

Answer 10

Inferior judge.
Work in the Crown or County Court.
Sit alongside a jury.
Must have 10 years with right of audience.

Question 11

Describe the role of a Recorder.

Answer 11

Part-time inferior judge.
Sit in the County and Crown courts in low stake cases.
Sit alone.
Must have 7 years experience in law.

Question 12

Describe the role of District Judges.

Answer 12

Hear cases on the small claims track.
They deal with pre-trial procedures.
They can sit with a panel of Magistrates in the Magistrates’ Court.

Question 13

How is the judiciary kept independent?

Answer 13

Judges are paid high wages from the consolidation fund - Can’t be bribed and the government cannot change their funding/salary.
Immunity from suit.
Have security of tenure.
Lord chancellor still has a limited role despite the CFA 2005 removing most of their power, also separated the HoL and the Supreme Court.
Can’t hear cases where they have an interest (Pinochet 1999)

Question 14

What is the seperation of powers?

Answer 14

Originally the idea of a French theorist, Montesquieu.
There are 3 primary functions of the state that should be independent and separate.
This is the Legislature (Parliament)m the Executive (government), and the Judiciary (judges).
There is an overlap of Legislature and Executive as government ministers are MPs. The judiciary is partly controlled by the Lord Chancellor, and Recorders can be MPs.

Question 15

How well does the judiciary represent society?

Answer 15

76% of all judges were over 50, and 40% over 60
32% of all judges women, 26% of superior judges.
8% of all judges from BAME background.
Pale Stale Male.

Question 16

Describe the jurisdiction of the County Court.

Answer 16

They handle the majority of civil claims.
They can hear all cases on the Small Claims Track, Fast Track cases up to £25,000, and some multi-track cases depending on their severity and complexity.
Usually heard by a single judge (district or circuit) who will decide the outcome and the remedy.
Appeals from the small claims track can be heard by a more senior judge in the same court.

Question 17

Describe the jurisdiction of the High Court.

Answer 17

The court is separated into three divisions. KBD - hears contract and tort claims.
Family - some family matters including international law and cases referred to from the Family court
Chancery - Hears cases involving business, commercial and tax matters
Hear appeals from the County Court and case stated appeals from criminal courts.

Question 18

Describe the jurisdiction of the Court of Appeal (Civil division).

Answer 18

Hears appeals from the High Court if leave to appeal has been granted and if the case involves a point of law which is of public importance. Some cases can skip the Court of Appeal and ‘leap-frog’ to the Supreme Court if it involves an issue of national importance. (R (Miller) V Prime Minister)

Question 19

Describe the small claims track.

Answer 19

Claims up to £10,000 (or £1,000 in personal injury)
The hearing is informal:
Lawyers discouraged.
Limited Witnesses .
Maximum 3hrs in court.
Legal costs are not awarded.

Question 20

Describe the fast track.

Answer 20

Claims from £10,000 - £25,000.
More strict:
Has a timetable, maximum 1 day in court.
Limited witnesses.
Lawyers encouraged.
Usually heard by a circuit judge.

Question 21

Describe the Multi-track.

Answer 21

Claims from £25,000 - £50,000
Can be in either the County or High Court, depending on complexity and severity.
Strict timetable.
Fewer limits on things like witnesses.

Question 22

Describe the pre-trial procedures for a civil claim.

Answer 22

All forms of ADR have been unsuccessful.
A solicitor drafts a pre-action protocol letter. which is sent to the defendant setting out the case.
An N1 claim form is submitted at either the County or High Court, whichever is most appropriate, which officially starts the case it includes information about the claim as well as the value.
The defendant can admit the claim and pay, chose to defend the claim. If the defendant fails to respond, the claimant wins by default.
The defendant has 14 days to send their defence to court, if an N9 claim form is submitted they have an extra 14 days.
In the County Court a circuit judge will select which track the claim will go on and at the High Court it is the Master.

Question 23

Why might someone chose ADR?

Answer 23

Going to court:
Damages your reputation.
Takes a long time.
Doesn’t have a guaranteed outcome.
Is expensive.

Question 24

Describe Mediation as a form of alternate dispute resolution.

Answer 24

A neutral person helps the parties come to an agreement, the parties will usually be in separate rooms and the mediator will go between the parties relaying messages.
To be successful both parties have to be receptive to the mediation and be willing to compromise.
There is a more formal type of mediation which is like a mini-trial.
It has to be shown that mediation has been attempted before a court claim can be made.

Question 25

Describe conciliation as a form of alternate dispute resolution.

Answer 25

Similar to mediation but the conciliator plays a more active role, suggesting compromises settlements to the parties.

Question 26

Describe arbitration as a form of alternate dispute resolution.

Answer 26

When both parties agree to let their matter be heard by a lone arbitrator panel of arbitrators, the arbitrator usually has experience in the relevant field and will.
Can be done on paper, where both parties send letters of the dispute to the arbitrator who then makes a decision.
The hearing’s formality, time and date is decided by the parties.
The agreement will be legally binding, if needed it can be enforced by the courts.
s68 Arbitration Act 1996 - decisions can be appealed to the KBD on a point of law or if there is a serious irregularity.
Good as it is private which allows businesses to not have their disputes publicised, also cheaper and quicker than court. No legal aid available and if it has a legal issue it can’t be heard.

Question 27

Describe negotiation as a form of alternate dispute resolution.

Answer 27

Least formal ADR.
Parties try to negotiate a settlement, doesn’t involve a neutral party.

Question 28

Describe the pre-liminary matters and procedure of an employment tribunal.

Answer 28

A claim on an employment issue has to be brough within three months, less a day, from the event.
In most cases ACAS must have been contact for early conciliation.
There are no court fees.
Hearings are held in front of a panel of a judge, a representee of the employers organisation, and a representee of the employee’s organisation.
If a preliminary hearing is required it is held before a judge without the panel members.
Parties can self-represent, be represented by a lawyer, or someone from a trade union.
Hearings are quite short as the evidence will have been presented in a report which the panel will have read.
If the tribunal is in favour of the employee they may encourage a settlement, if one can’t be reached they can award compensation.
Legal costs not awarded.
Within 14 days the panel can be asked to review their decision, appeals can be made to the Employment Appeal Tribunal, then the Court of Appeal and the Supreme Court, if there is an issue of law.

Question 29

Describe the jurisdiction and of the Magistrates’ Court.

Answer 29

Summary offences (less serious) (e.g. driving without a license).
Some Either way offences (more serious but not the most) (e.g. theft).
Deals with all criminal preliminary procedures. (arrest warrants etc.)
Tries cases in the Youth Court.
First hearing of indictable offences.
Cases are heard by a District Judge or lay magistrates.

Question 30

Describe the jurisdiction of the Crown Court.

Answer 30

All indictable offences and some complex Either way offences that can’t be dealt with in the Magistrates’ Court.
Judge sits alone to hear pre-trial matters and if D pleads guilty.
A jury is used to decide the verdict, and the judge will sentence, rule on issues of law, direct the jury on law and evidence, and control the court.

Question 31

Describe the classifications of criminal offences.

Answer 31

Summary - Least serious crimes which give a fine as the sentence, the max. fine depends on which of the 5 levels the crime is subdivided into. Tried in the MAG
Triable Either Way - Heard in the MAG or Crown Court, if found guilty in MAG or pleads guilty they can be sent to the Crown Court for sentencing. If it is tried in the Crown Court it will follow the same procedure as an indictable offence.
Indictable - Most serious crimes, heard in the Crown Court, the first preliminary hearing is in the MAG.

Question 32

Describe the pre-trial procedure for a summary offence.

Answer 32

At the first hearing the court clerk will take the plea. (over 90% plead guilty).
If pleaded guilty a sentencing hearing takes place.
In some driving offences the plea can be taken via post, so no attendance at court required.
If pleads not guilty then a trial date is set.

Question 33

Describe the pre-trial procedure for a triable either way offence.

Answer 33

D has to plea, if it is guilty it goes to the MAG and a sentencing hearing will take place.
If not guilty then the Magistrates decide where it should be tried and a Mode of Trial hearing takes place. If it is decided it can be heard at the MAG then D can request it to be heard at the Crown Court instead. The rest of the pre-trial procedures or done in the court of the trial.

Question 34

Describe the pre-trial procedures for an indictable offence.

Answer 34

First hearing in the MAG - establishes whether bail or custody should be ordered, and whether legal aid should be awarded.
Plea and Trial Preparation Hearing - Takes the plea, sets the trial date, set out the issues for trial, provide a timetable, make provision for a Further Case Management Hearing if required.
The indictment is then prepared setting out the specific charges.
Both the prosecution and defence must outline their arguments they plan to use in court so that an adequate defence can be made.

Question 35

Describe the process of appeals from the Magistrates’ Court to the Crown Court.

Answer 35

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)

Question 36

Describe a case-stated appeal.

Answer 36

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))

Question 37

Describe the appeal process from the Crown Court to the Court of Appeal.

Answer 37

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

Question 38

Describe sentencing.

Answer 38

What happens after D is given a guilty verdict.
Judges sentence using the General Aims of Sentencing Guidelines.
There are 5 aims of sentencing from the s148 Criminal Justice Act 2003 - Punishment, reduction of crime, reform, public protection, reparation.
The Sentencing Council provides guidelines for sentencing which judges usually have to follow, the makes them more consistent, predictable and apply the same to all. Judges can go against them if it would be more just.
Pre-sentencing reports are produced which help the judge decide the sentence.

Question 39

Describe punishment as an aim of sentencing.

Answer 39

The idea that the offender deserves a punishment. It does not try to reduce crime or alter D’s behaviour. Only concerned with giving a punishment befitting of the crime.
This is a religious idea ‘an eye for an eye’.

Question 40

Describe reduction of crime as an aim of sentencing.

Answer 40

There are two main kinds, individual deterrence and general deterrence.
Individual - Aims to precent people from reoffending, but about 45% reoffend. Prison doesn’t work as an individual deterrent. Fear of being caught is more of a deterrent.
General - Stopping the public from wanting to offend as they know there’s a punishment. This doesn’t really work either as potential offenders are rarely deterred by the potential punishment. Often sees people being sentenced for longer than they deserve as a public policy message. This goes against the rule of law.

Question 41

Describe reform and rehabilitation as an aim of sentencing.

Answer 41

Aims to reduce crime by helping offenders so they don’t crime anymore. Often in the form of community orders, education, anger management etc.
This means that people get individualised sentences which goes against rule of law as it does not necessarily apply the same to everyone.

Question 42

Describe protection of the public as an aim of sentencing.

Answer 42

LASPO 2012 introduced new sentences where the aim is to protect the public from violent offenders.
These are custodial sentences.
LASPO introduced new mandatory life sentences for a second serious sexual assault or violent crime.
Difficult to know when someone is no longer a threat to the public.
This can also be electronic tag, curfew, sex offender’s register.

Question 43

Describe aggravating and mitigating factors in sentencing.

Answer 43

Aggravating factors make punishments harsher. Can be previous offences, on bail, discriminatory motive, gang involvement.
Mitigating factors make punishments less harsh. Can be very young/old, vulnerable, first offence, guilty plea (usually reduces it by 1/3)
This goes against rule of law as crimes won’t always have the same sentence and therefore it does not apply to everyone the same.

Question 44

Describe the qualifications needed to be a juror,

Answer 44

From Juries Act 1974
must be between 18-75 (people over 65 can decline), have lived in the UK for 5 years since the age of 13 and be registered to vote.
They must not have been sentenced to a term of 5 years or more. You are disqualified for 10 years if it is under 5 years,
People who are incapable of coping in a trail; due to a mental disorder.
Armed forces can be excused, people with unavoidable commitments can ask for discretionary excusal and will move them to a later date.
Judges, lawyers and police can be on a jury since Criminal Justice Act 2003.
Court can discharge someone who doesn’t have the require physical or mental health to do it (Jurors can be deaf as of 2022)
It is compulsory and there’s a £1000 fine for failing to attend.

Question 45

Describe the process of the selection of jurors.

Answer 45

Jurors are selected randomly by computer from the electoral roll. The court summons the juror and the clerk randomly selects 20 names for a trail, and 15 of them will be selected to go into court. and then down to 12.
Court can carry out routine criminal records checks on any juror (Mason), wider background checks can only be made in cases involving national security and if the Attorney General gives permission.
The prosecution or defence can challenge a juror taking part if the police check reveals a juror is disqualified or know someone relevant.
The array can be challenged by the prosecution or defence if they think it is unrepresentative or biased (Romford (Essex)). The jury can’t be challenged for not being ethnically diverse (Ford)

Question 46

Describe the role of jurors.

Answer 46

A jury of 12 sits in the Crown Court and decides the verdict of all indictable offences and some TEW offences.
Reach their verdict in secret and the judge will accept a 10 or 11 majority if a unanimous verdict isn’t reached within 2 hours.
The jury’s verdic is indpendent from the judge (Penn & Mead).
Jurors don’t have to explain their decision and can’t be influenced in their decision

Question 47

Evaluate juries.

Answer 47

Advantages - They are fair, they have a lot of public support (used since 1066) and there is no viable proposal to replace them. They are effective as there are often few appeals from jury decisions. Random selection means the jury (should) represent society.
Disadvantages - They aren’t legally qualified so don’t know what they are doing -> wrong decisions are it taking a long time.
They don’t have to say how they came to their conclusion and it could be ridiculous (Young - spoke to the victim on a Ouija board.
Jury service can be traumatic and they weren’t given counselling until Rose West.
Compulsory nature is a problem for people who do not want to be there as they are making serious decisions and might not care.
Jurors shouldn’t research the case outside of court but often use social media (Karayaka)
Juries can be nobbled (Twomey)
Many jurors may struggle to do it (0 hour contracts, childcare, transport to court, etc.)

Question 48

Describe how Magistrates are selected.

Answer 48

They must be between 18-65 at the time of selection, they can work until 70. They must live in the local justice area, no further than 15miles.
They must be committed to 26 half-days a year.
Police officer, traffic enforcement officer or their close relatives can’t be a magistrate.
Must not have a criminal conviction that would affect their ability to judge.
Positions are advertised, applicants fill in an application form and provide references. There is then an interview in the Local Advisory Committee. There is a 2 stage interview process
The first interview assess the applicants character looking for (Maturity and sound temperament, commitment and reliability, good character, understand and communication, sound judgement and social awareness)
Second interview tests a persons judgment with practical exercises.
The LAC then passes suitable candidates to the Lord Chief Justice and then they are sworn in by a senior judge.

Question 49

Describe the role of magistrates.

Answer 49

Try 97% of criminal cases.
Issue arrest and search warrants.
Pre-trial matters for all cases.
Try all summary cases and some triable-either way offences.
With extra training can sit in youth courts.
2 magistrates sit with a judge in the Crown Court to hear appeals from the MAG.

Question 50

Describe access to justice for civil & criminal cases.

Answer 50

Civil Legal Advice Service - provides legal advice to those who qualify.
Provides funding for claimants in certain civil disputes when mediation or court is necessary
Legal Aid Agency - provides aid for criminal cases
Legal aid through LASPO 2012 - decided by means (capital and income) and merits test (interest of justice), and its chance of success, only certain types can be funded (e.g. immigration)
If this is unavailable they can fund privately, go through a charity (pro bono), CFA, Trade Union, Citizens Advice Bureau, or through an insurance policy

Question 51

Evaluate civil access to justice.

Answer 51

Many ways of getting advice freely.
CFAs are a main source of funding.
Difficult for lawyers to estimate their fees so they may not be able to afford it.
CFAs are only done by lawyers who aren’t busy and they think the case will definately win, it also lowers the compensation to the client, isn’t available if there is an injunction
Legal aid cut from £1billion in 2010 to £600million in 2015 and then 739million in 2018 - however the amounts of cases requiring aid has also increased dramatically.
Too much pressure is then on charities.