Chapter 3 Flashcards
What is advocacy?
An activity done by a barrister with the aim of influencing decisions
What is rights of audience?
The right to present a case in court, as an advocate
Barristers have full rights of audience meaning they can present a case in any court in England and Wales.
The majority of barristers in private practice will concentrate on advocacy which is the presentation of cases in court.
What is the role of barristers?
-There are nearly 16,500 barristers practicing in England and Wales, including about 3000 barristers employed by organisations such as the CPS, local government and the civil service.
-Their role is to research and advocate for clients
-Barristers are collectively known as the ‘Bar’
-Most barristers concentrate on advocacy -practicing in all courts, although, there are some who specialise in areas such as tax and company law who rarely appear in court.
What are the four inns of Court?
All practicing Barristers must be a member of one of the four inns of court, which include…
1.Lincolns Inn
2.Inner Temple
3.Middle Temple
4. Gray’s Inn
-These are all situated close to the Royal Courts of Justice in London
What is direct access?
Professionals such as surveyors, accountants can brief a barrister directly without using a solicitor. Members of the public can also use this service through the Bar Council Direct Access Portal. To carry out direct access work, a barrister must have completed additional training.
What is Kings Counsel?
-After at least 10 years of practicing as a barrister, it is possible to apply to become a Kings Counsel (KC).
-10% of barristers practicing at the Bar are Kings Counsel
-Becoming a KC is known as ‘taking silk’
-A KC will usually take on more complicated and high profile cases than junior barristers
-They can command higher fees for their recognised expertise and they often have a junior barrister to assist them with the case.
What is the application process to become a KC?
- An application fee has to be paid and if successful, an appointment fee
- An applicant must provide references from other lawyers, including judges whom they have appeared and be interviewed by an independent selection panel which recommends those who should be appointed to the Lord chancellor
What is the Cab Rank Rule?
Barristers work under the Cab rank rule. This means that a barrister can not turn down a case if they are free to take the case and if it is in their area of law to which they are a specialist in. Which is similar to a row of taxis at a the Taxi rank. When a client arrives, whichever barrister is at the ‘front of the queue’ must take that client, regardless of whether they want to take the case or not.
What are Chambers?
Barristers practicing at the bar are self- employed and work from a set of chambers where they can share administrative expenses with other barristers. Chambers can vary in size from small with 10-20 barristers to larger sets with 50 or more.
Each chamber employs a clerk who will negotiate fees with clients, book in cases and plan work schedules for all the barristers in the chambers
What is confidentiality?
A barrister owes a duty of confidentiality to their client, however they also a duty of confidentiality to the Court which means they must not..
- mislead a court or a judge or waste a court’s time
- They must ensure the court has all the relevant information, even if it weakens their case
It does not require them to breach their duty of confidentiality to their client. This means that is a client confesses their guilt to the barrister, they can not continue to represent the client in a not- guilty defence.
Advocacy in Criminal cases- prosecution
When prosecuting, the barrister will be instructed by the CPS. They will work with the CPS on how likely success of the charges that have been brought. They will also work with the CPS and the police to ensure that there is sufficient evidence available to prove those charges.
Advocacy in Criminal cases- Defence
When acting for a defendant, a barrister will be instructed by a solicitor who has seen the defendant from the outset . They will advise on the strength of prosecution evidence and any weaknesses in the defence. Ultimately, it is for the defendant to decide whether to plead guilty or not guilty.
After a conviction and sentence, the barrister can advise on the possibility of an appeal against the conviction and/or sentence. The barrister can then present an appeal to an appeal court.
Advocacy in Civil cases
-Barristers tend to specialise in certain fields such as personal injury or commercial work.
-Barrister can be contacted by a solicitor or members of the public in all matters except legally aided criminal and family cases.
-Evidence in Civil cases will be presented prior to the trial and a barrister will draft this .A barrister may also attend meetings to negotiate a settlements.
-In the Court hearing, the advocacy will concentrate on important pieces of evidence and legal issues. Once the trial starts, they will advocate and argue for damages. This means they will argue for an award, usually the amount of damages and for the award of costs.
-After the hearing, the barrister on either party will advise on the possibility for an appeal against liability and/or the amount of damages and if necessary, they will draft the appeal papers.
What is the role of solicitors?
-There are over 149000 solicitors practicing in England and Wales and they are controlled by their own professional body, the Law Society.
-around 75% work in private practice and the remainder are in employed work, such as the local government, the civil service, the CPS or for private businesses
- a solicitor will work in private practice in a partnership ranging from a ‘high street ‘ practice to a big city firm. There are no limits to how many partners a firm can have
-the majority of those qualifying as a solicitor will work in private practice in a solicitors firm. However as with barristers there are other career options available including working in the CPS, for local authority or government departments.
- although some solicitors may handle a variety of work, it is usual for a solicitor to specialise in one particular field. The firm
itself may handle only certain types of cases for example only civil actions. In large city firms there will be an even greater degree of specialisation.
What are the types of work a solicitor can work in ?
A high street firm will probably be a general practice advising individual clients on a range of topics including…
1.Conveyancing
2.Wills and probate
3.consumer problems
4.business matters
5.personal injury claims
6.family matters
This work will often involve interviewing clients, negotiating on their behalf, writing letters and emails, drafting contracts, leases or other formal documents
What advocacy do solicitors perform?
All solicitors have rights of audience in the lower courts- county court and magistrates
Some solicitors act for clients in criminal or civil cases. This is known as litigation.
If solicitors wish to exercise the rights of audience in a higher court then they must complete a further advocacy qualification
Solicitors with an advocacy qualification and who litigate in the higher courts, can apply to become a KC in the same way that barristers can
What are solicitors role in Civil cases?
Generally,a solicitor will be the first source of legal advice. The solicitors role will be to..
- Collect evidence
2.prepare and issue court papers if the case is straightforward
3.Carry out advocacy, usually in the county court
- Instruct a barrister to advise on the case if it is more complex, to drafts the court papers and Carry out the advocacy
- Support the barrister throughout the case, including obtaining any further evidence
What do solicitors do in criminal case?
-a solicitor might initially meet a client who has been arrested, in the police station, although it is more likely that a solicitor will have a telephone consultation rather then a face to face meeting
- when a suspect is arrested, a duty solicitor will offer initial advice to a client, usually this takes place over the phone however in serious cases solicitors may sit in on police interviews
-in less serious cases, a client may have been issued with Summons by post and the initial meeting will take place in the solicitors office at the first court appearance
What happens if charges are pressed in criminal cases for solicitors?
If charges are pressed, the solicitor will obtain details of the prosecution case and advise their client on the strength of the evidence
If the case is a summary or triable either way, the solicitor will be able to carry out the advocacy work
If a case is indictable then the barrister will carry out the advocacy work. However the solicitor will support the barrister throughout the trial
What is the role of legal executives?
Most legal executives work for a firm of solicitors in private practice
Their work is charged at an hourly rate in the same way that a solicitors work is charged, but it is likely to be at a lower rate. In this way a legal executive makes a direct contribution to the income of a firm
Who do legal executives work for?
Legal executives can also work for local authorities, the CPS and in company legal departments.
A qualified legal executive will be need to be a fellow of the chartered institute of legal executives . (CILEX) to have obtained the CILEX professional qualification and to have completed three years of supervised legal experience
What work do legal executives do ?
There are over 20000 legal executives currently practicing.
Legal executives are likely to specialise in a particular area of law and their work is similar to that of a solicitor although they tend to deal with more straightforward matters
- They can handle parts of a property transfer
2.assist in the formation of a company
3.draft wills
- Advise people with matrimonial problems
5.advise clients accused of a crime, advise a client detained in a police station and interview witnesses
What advocacy certificates can a legal executive obtain?
- Civil proceedings certificate: this allows appearances in the county court
- Criminal proceedings certificate: this allows legal executives to make bail applications or deal with cases in the youth court
- A family proceedings certificate: this allows appearances in the family court of the magistrates court
What body regulates barristers?
Barristers are regulated by the Bar Standards Board. Not only do they set entry and training requirements, but they also regulate the profession.
-they set out a code of conduct that barristers have to comply with. The board investigates any alleged breach of the code of conduct and can discipline barristers who is in breach of the code.
-If the matter is serious then it can be referred to a Disciplinary Tribunal arranged by an independent Bar Tribunals and Adjudication service.
What sanctions can a Disciplinary Tribunal impose?
- reprimanding the barrister (formally warning them about their behaviour)
-further professional development training
-ordering a fine
-suspending the barrister for up to 3 years - disbarring a barrister in extreme cases
How can barristers be liable?
If a barrister enters a contract with a client on the direct access scheme then a client can sue them for breach of contract. A barrister can also be liable in negligence for poor quality of advocacy.
What body regulates solicitors?
Although every solicitor must belong to the law society, it is the solicitors regulation authority who deals with complaints about professional misconduct of solicitors.
what is the process of complaints for the SRA?
- it will initially investigate the complaint. If there is any evidence of serious professional misconduct then the case will be brought forward to the Solicitors Disciplinary Tribunal
2.if the tribunal upholds the complaint, it can fine or reprimand the solicitor. In more serious cases they can suspend a solicitor from the roll , so that they can not practice for a certain amount of time.
- in very serious cases the Tribunal can strike off a solicitor from the Roll so that they are prevented from practicing as a solicitor.
How can solicitors be found liable in contract?
As a solicitor deals directly with a client, a contract is entered into. This means that if the client does not pay the fee then the solicitor has the right to sue for outstanding fees. The client can sue the solicitor for breach of contract if the solicitor fails to do the agreed work.
How can solicitors be liable in negligence?
-The client can sue the solicitor for negligence if they suffer loss due to poor quality of work(halls v Simons (2000)
-Solicitors can be liable in negligence to persons who are not clients but who are effected by their negligent work (White v Jones 1995)
What happened in R v Simons (2000)?
It was decided that you can sue a solicitor as a result of negligent advocacy.
What happened in White V Jones (1995)?
The solicitor was instructed to write up a will but did nothing. The father died and his daughters received nothing, they successfully sued for the £9000 they had each lost.
What is the Chartered Institute of Legal Executives?
All legal executives are members of the CILEx. This organisation provides education, training and development of skills for legal executives. It also protects the status and interests of legal executives.
It aims to “ promote and secure professional standards of conduct amongst members and those who are registered within the institute”
CILEx publishes a code of conduct but regulation of members is done by the CILEx regulation board, which investigates complaints about legal executives.
How does the CILEx regulation board regulate legal executives?
When an investigation is complete, a summary of the issues is prepared and the matter is put to the Professional conduct panel for consideration. The panel will decide if there has been misconduct, if there has been misconduct then the panel will reprimand or warn a member. They will refer serious matters to the Disciplinary tribunal. This tribunal has the power to ..
1.exclude a person from membership of the institute
2.reprimand or warn the member
3.order the legal executive to pay a fine and costs
What is the judiciary?
Collectively judges are known as the judiciary. There are different levels of judges:
Superior judges are high court judges and above
Inferior judges are circuit judges and below
What is the role of a recorder ?
Experience needed: experienced barristers or solicitors
Role in criminal cases: preside over crown court trials, often dealing with more serious criminal cases. Determine verdicts and sentences. Advise the jury on legal matters. Conduct pre-trial hearings and case management
No role in civil cases
What is the role of a District judge?
Experience : qualified barrister or solicitor for at least 5 years or worked as a deputy district judge
Role in criminal cases: preside over complex summary cases in the magistrate’s court. Deal with preliminary hearings for indictable offences. issue warrants, bail decisions and other orders. May sit alone or with a bench of lay magistrates. They decide guilt and the sentence
Role in civil cases: district judge in the county court handle small claims, fast track and multi track civil cases. Manage case progress and facilitate settlements. Issue judgements and orders and conduct trials and hearings. This includes hearing evidence, listening to arguments, deciding on the facts and deciding the amount of compensation to be paid
What is the role of a circuit judge?
Experience: qualified solicitor or barrister for 10 years and served as a recorder for a district judge
Role in criminal cases: oversee trials for serious criminal offences. Determine sentencing for convicted defendants. Ensure fair and proper conduct for proceedings. Provide legal directions to the jury - may sit alone or with a jury.
Role in civil cases: preside over complex civil cases in county courts and in some high court cases .Decide on the evidence , legal arguments and remedies. Conduct trials and manage pre trial matters. This includes hearing evidence, listening to arguments, deciding on the facts and deciding the amount of compensation to be paid
What is the role of a high court judge?
Experience: qualified solicitor or barrister for 7 years or 2 years as a circuit judge.
Role in criminal cases: handle complex and serious criminal cases, including murder and terrorism. May preside over appeals from the crown court . Can issue high court orders such as search warrants and injunctions.
Role in civil cases: handle complex and high- value cases, including those involving constitutional or human rights issues. Issue high court order and injunctions, they can also preside over appeals from lower courts. This included hearing evidence, listening to arguments, deciding on the facts and deciding on the amount of compensation to be paid.
What is the role of a lord Justice of appeal?
Experience: experienced barrister or solicitor for 7 years or work as a High court judge
Role in criminal cases: review decisions of the lower courts, including the high court. Determine points of law and resolve disputes at an appellate level. Uphold or overturn lower court decisions. They will hear legal arguments from both the prosecution and defence for this.
Role in civil cases: Review decisions of lower courts including the High court. Determine points of law and resolve legal disputes at an appellate level. Uphold or overturn lower court decisions The appeal can be about the remedy of the decision.
What is the role of a justice of the supreme court?
Experience: Distinguished legal practitioners or judges. Typically need 15 years as a judge in the senior courts.
Role in criminal cases: Sit in the highest court in the UK, dealing with cases of exceptional public or legal importance. Make landmark decisions on constitutional, human rights and other significant legal issues. 5 justices will hear the appeal.
Role in Civil cases: sit in the highest court in the UK, dealing with cases of exceptional public or legal importance. Make landmark decisions on constitutional, human rights, and other significant legal issues. 5 justices will also hear the appeal.
What is separation of powers?
The theory was put forward by Montesquieu where he said that to keep to safeguard the liberty of citizens, the 3 functions of the state had to be separate. As the power of each function is independent, it can act as a check on the others to stop one group becoming too powerful.
What are the 3 arms of the state in the UK?
- The legislature- This is the law making arm of the state and parliament which includes the House of commons, the house of lords. And the crown.
2.The Executive- this is the body administrating the law, in the British Political system, this is the government of the day. The government, the PM and the crown.
- The Judiciary- the judges who apply the law
Does the UK have clear 3 organs?
To work, the theory requires individuals not to be members of more than one arm of the state. In the UK there is no written constitution, however the three organs are separated.
Independence of the Judiciary- security of tenure
Superior level judges cannot be dismissed by the government. They can only be dismissed by the monarch following a petition presented by both Houses of Parliament. Inferior judges do not have the same level of security of tenure. The Lord Chancellor has the power to dismiss inferior level judges for incapacity or misbehaviour.
What is the constitutional Reform Act 2005?
-Judicial independence is guaranteed under section 3 of the Constitutional reform Act 2005 which states that the Lord Chancellor and anyone with responsibility for matters relating to the judiciary must uphold the continued independence of the judiciary.
-The lord chancellor and government ministers must not seek to influence particular judicial decisions.
Independence of the Judiciary- Immunity from suit
This allows a judge to perform judicial duties without fear of repercussions. Judges of all levels are given immunity from criminal prosecution for any acts they carry out in performance of their judicial duties. They have immunity from being sued in any civil case while they are performing their judicial duties.
How does the role of the Lord Chancellor disprove judicial independence?
Due to the Constitutional Reform Act 2005, the role of the Lord Chancellor was changed. Rather than being the head of the judiciary, the role is now changing to managing the Judiciary system and the courts. The Lord chancellor is an MP, so a member of the legislature and a member of the cabinet, so part of the executive.
Independence of judges from the Legislature
-Judges are generally not involved in the law- making functions of Parliament. Full -time judges are not allowed to be members of the House of Commons. This rule is not as strict for part-time judges so that recorders can be members of parliament.
-Judges of the Supreme court are not allowed to be members of the House of Lords. One of the main reasons for the creation of the supreme court in 2009 was to separate the judiciary from the legislature.
-Judges are given a certain degree of financial independence. Their salaries as parliament are paid out of the Consolidated Fund, which doesn’t need Parliaments authorisation. HOWEVER, they are not completely protected from parliamentary interference as parliament can change judicial retirement ages etc.
How are judges independent of the executive?
Superior level judges cannot be dismissed by the government. They can make decisions that may displease the government, without the fear of dismissal. The extent to which judges are prepared to challenge or support the government is considered below:
- judicial independence is guaranteed under s3 of the constitutional reform act 2005. This states that the lord chancellor and other ministers in the government and anyone with responsibility for matters relating to the judiciary must uphold the continued independence of the judiciary
- the lord chancellor and government ministers must not seek to to influence particular judicial decisions
HOWEVER: due to this act, the role of the lord chancellor has changed. Rather than being the head of the judiciary, the role is now managing the judiciary system and the courts. The lord chancellor is not an MP, so a member of the legislature and a member of the cabinet so part of the executive
How is independence achieved through independence of the case?
Judges must not hear or try any case in which they have an interest in the issues involved. This was confirmed by the Re Pinochet case1999:
- claim was made to extradite the former dictator. August Pinochet back to Chile to face the charges of carrying out murder and torture
-HOL initially ordered that he could be extradited
-it was then found that one of the judges was an unpaid director of one of the parties to the case
-Pinochet’s lawyers asked for the original decision to be set aside and for a new hearing to take place with a different panel.
-the new law lords decided that their original decision could not stand as all the panel had to be seen as completely unbiased and unconnected to the case.
- the case was retired but the lords with a different panel
How is judicial independence achieved through judicial review ?
One way judges can show their independence of the executive is through judicial review. In this, judges can find that ministers have acted unlawfully. An initial hearing will take place in the divisional court of the kings bench division when decisions of government ministers can be challenged by a person who has ‘standing’
Showed in the following cases:
-R v Home secretary, ex parte Fire Brigades Union 1995: it was held that the changes to the criminal injuries compensation scheme made by the home secretary were unlawful
-R v Secretary of State for Foreign Affairs, ex parte World Development Movement 1995: It was decided that the foreign secretary , Douglas Hurd, had acted unlawfully over the development of the Pergau Dam
How is judicial independence achieved in Human right issues?
Judges are also able to hear cases involving human rights, and are prepared to find against the government. The human rights act of 1998 incorporates the European Convention on Human Rights into UK law and judges have the power to declare that an act is incompatible with the convention. This happened for the first time in H v Mental health review tribunal 2001.
Decisions of this nature put pressure on the government to change the law to comply with the ECHR. Examples include..
-A and another v secretary of state for the Home Department 2004- the HOL declared that the Ant-terrorism crime and security act 2001 was incompatible with the ECHR. HOL held that this act breached both article 5 and 14. This decision forced the government to change the law.
