English Legal System Flashcards
self-funded legal representation
law centre, CABx, Pro Bono, FRU, trade union, insurance, conditional fee arrangements
law centres
offer free legal advice to people in the local area, or free legal representation if there is an advice desert. charitable and normally employ volunteers, predominantly in areas of poverty
citizen advice bureaux
charitable organisations which offer general legal advice on matters such as consumer rights, employment and debt. many work in tandem with solicitors to run clinics or advice sessions.
bar pro bono unit
a charity run unit based in london, it gives free legal advice to those who can’t afford legal representation and don’t qualify for legal aid, can offer to represent in civil proceedings
free representation unit
based in london and nottingham and provides free advice and representation for matters of social security and employment. many workers are volunteer law students or early career lawyers
trade unions
paying membership may mean you are able to utilise their legal departments and claim for representation or advice in relation to the union
legal insurance
through many insurance companies, legal insurance can be included, for example adding legal cover to car insurance
conditional fee arrangements
solicitors can offer services for free, if the case is won, they claim back expenses, however they only normally enter if high chance of success
advantages of self funded legal aid
better understanding leads to fairer trials, free advice if you don’t qualify for legal aid but can’t afford a lawyer, specific issues in relation to insurance or unions means expert advice
disadvantages of self funded legal aid
not everywhere and may be hard to access, may still have to pay as CFE often only enter in high chances of success, early career lawyers and law students so not much experience
civil legal advice service
provides telephone advice for things like debt, housing, domestic abuse and discrimination. if someone is on a low enough income they pass means testing, if it is deemed to be an important issue, they pass the merits test, however this is very difficult
the duty solicitor
a government funded solicitor who can give free advice on the phone or in person, anyone arrested can access this, and then there can be further support given if assessed to be eligible
the legal aid agency
set up by legal aid, sentencing and prosecution of offenders act 2012. this allocates funding and resources to support those charged with a criminal offence. usually this is in the form of paying barristers and solicitors to represent clients. claims must pass the means test which will take into account income, capital and dependants. they must also pass the interests of justice test using the widgery criteria.
widgery criteria
likely loss of liberty, loss of livelihood, damage to reputation, substantial question of law, hard to understand, interests of another person
advantages of legal aid
people can access advice which avoids breaching human rights, those on a low income are offered representation, socially important issue can be funded
disadvantages of legal aid
means and merits testing along with the widgets criteria are hard to pass, legal aid funding has been cut so fewer barristers to take on cases so overworked and underpaid, not widely available for civil cases and funding may be limited
legal executive
are not fully qualified but do have training and can work as legal advisors or as assistants in law firms, and can train to be solicitors
solicitors
qualified through a law degree or the GDL, must complete a legal practice degree and then a period of legal training. may be generalised or specialised - represent and defend clients’ legal interests, and provide advice in many situations
barristers
complete a law degree or GDL, complete Bar training and then be called to the bar by one of the four inns, join a chamber to complete pupillage, can then be self-employed, often in a chamber or work for things such as CPS - representing people or businesses in court or tribunal or another formal setting, making their case for them
how are legal professionals regulated
through the SRA (solicitors regulation authority) set out the high professional standards expected of the solicitors, lawyers and businesses
lord chief justice
president of the courts, president of the sentencing council and head of judiciary
justices of the supreme court
hear around 100 cases, civil and criminal appeals, on technical or new points of law. always on an uneven panel and create precedent
lords justice of appeal
hear appeal cases in both civil and criminal divisions, panel of three or five and sit in the court of appeal
high court judges
hear appeals and first-instance cases. for the first instance they hear evidence and sit alone. civil appeals they sit alone, in criminal appeals will sit in pairs
superior judges
lord chief justice, justices of supreme court, lords justice of appeal, high court judges
inferior judges
circuit judges, recorders, district judges
circuit judges
sit in the country court and hear complex civil cases in the fast track, and can hear criminal cases in the crown court. in civil cases they hear evidence and decide winner, in criminal the jury decides the facts and judge decides the law and and sentence if guilty
recorders
part-time judges for 5 year periods and hear both criminal and civil cases, usually as a form of training to become a circuit judge.
district judges
sit in the county court and hear small claims cases. This is the first role for a judge, and they do not hear criminal cases.
advantages of the independence of the judiciary
judges can protect citizens from an unlawful act by a government, are not influenced by parliament or cabinet which means they have security of tenure and immunity from suit, independence from legislature and case means law is applied fairly and avoids corruption and maintains faith in the judiciary
security of tenure
means they cannot be removed if they go against the wishes of the other two arms, as stated in act of settlement 1700
immunity from suit
means anything judges carry out as a judge cannot be prosecuted, and cannot be sued. This principle was confirmed in sirros v moore. they cannot be sued for defamation, so can be free to judge.
separation from arms of state
parliament, cabinet and judiciary can each keep checks on each other and avoids corruption when separate
independence from the legislature
judges cannot be members of the house of commons, and the creation of the supreme court in 2009 separated the judiciary from the house of lords.
independence from the case
can be no conflict of interest in the case heard
magistrates
trained, unpaid members of local community who deal with summary offences such as minor theft and criminal damage, they have no qualifications so are lay and have no jurisdiction to hear civil cases
selection of magistrates
local advisory committee are 12 people who are both magistrates and non-magistrate persons who appoint new magistrates. they make recommendations of who should be appointed a new magistrate to the senior presiding judge of the area, who makes the official appointment. any applicants must give 2 references, and then go through two interviews: the first interview looks to see if the candidate has the 6 attributes needed, as well as their attitudes towards crime. the second interview is more “hands-on”, with tasks such as analysing two criminal cases and sentencing.
attributes of magistrates
good character, understanding and communication, social awareness, maturity and sound temperament, sound judgement, commitment and reliability
how old are magistrates
between 18-74 at appointment. not many under 27 year olds get appointment = not enough experience.
magistrate statistics
- 40% of magistrates were retired from other work in the year 2000.
- most magistrates were drawn from professional and managerial ranks.
- 51% of magistrates are women compared with 18% of the top ranks of judges.
- 8% of magistrates are from ethnic minorities compared with 4% of the judiciary.
role of magistrates
voluntary but must sit 26 half days or 13 full days per year, sit on panel of 3, can provide arrest warrants, hear summary offences, plea before venue, may sit on crown court appeals
magistrates sentencing powers
limited sentencing powers, so cannot hear serious offences. they can refer either-way offences to the crown court for sentencing if needed. magistrates can hear and sentence summary offences, which require no more than 6 month custodial sentence.
magistrates in the family court
arrange for a child to be taken into care or put up for adoption, help separated parents make arrangements for their children, enforce child maintenance orders, make court orders to prevent domestic abuse. these magistrates can get advice from the child’s guardian or a family court adviser during the case.
advantages of magistrates
51% women means good gender balance which represents society, unpaid so costs are low and cases solved quickly, local so have good local knowledge of the area standards and expectations of people, historic right to trial by peers
disadvantages of magistrates
few magistrates from minority backgrounds (only 8%) which limits usefulness as not a good representation of diverse society, middle-aged and middle class makes them out of touch with majority of defendants, inconsistencies in offending and outcome is not certain,
juries act 1974
as soon as you are 18, you could be called for jury service provided you are registered to vote (this means you are on the electoral roll). this is the case until you are 76 years old. you must live in the UK for 5 years,
disqualification from jury duty
due to serious criminal conviction, such as life imprisonment or being detained to protect the public. if you are detained, have a suspended sentence or any kind of community sentence, you will be disqualified for 10 years.
jury selection process
jury summons to randomly selected people, many jurors attend court, prosecution and defence teams review jurors, challenges made to the array on the basis of a bias panel, jurors are sworn in
ponting
jury refused to convict someone who disclosed national secrets in the public interest
advantages of juries
jury equity - based on will of the people and the principle of fairness, open justice allows ordinary people to understand the legal system and be part of it, historic right to trial by peers, to be judged by those in the community
disadvantages of juries
perverse decisions i.e. ponting’s case, jury misconduct i.e. r v young, pressure i.e. r v sutcliffe, lack of understanding in complex cases such as fraud cases
small claims court
claims which value 10,000 or less, personal injury which values 1,000 or less. usually heard by a district judge in the county court
fast track
claims which value £10,000 - £25,000. usually heard by a district or circuit judge. happens in the county court.
multi track
county court: claims up to £100,000 and personal injury up to £50,000. high court: claims over £100,000 and personal injury over £50,000. heard by a circuit or high court judge
what created the three tracks
the woolf reforms
advantages of the three tracks
more fair and accessible, different judges with different experience levels, small claims and fast track are faster for smaller issues, multi track can go to high court, reduces the need for legal representation
pre trial procedure for civil cases
fill in N1 form and send to court with a fee, defendant receives a copy of the N1 form from the court, defendant has 14 days to respond and choose: a) settle out of court b) ignore and forefeit c) defend claim in court d) counterclaim, if defendant chooses c or d there will be an allocation to court and the trial date is set
what happens at a civil courts trial
stage is run by judge who listens to both parties, witnesses can be called although for small claims and fast track the aim is to be quick, judge will ask questions although parties can have legal representation if they wish to pay. this is discouraged as can make the trial longer and expensive, judge decides outcome and remedies such as damages
is there an opportunity to appeal
under access to justice act 1999, either party has the right to appeal - this involves an appeal to the HC from county or to court of appeal. an appeal can only progress with approval from original court or the appeal court, an appeal will usually only progress in the situation of a legal area of great importance or if the appeal has a strong chance of success
what can courts do if an appeal is requested
refuse the appeal, uphold the decision, set aside the decision, vary the initial order or judgement, refer claims or issues back to a lower court, order a new trial if necessary
what is alternative resolution
the process where parties in a dispute come to a compromise or settle their dispute without going to court, the main reason people are encouraged to use ADR is to save the expense of using courts and to save time in the court system
advantages of using courts to solve disputes
fair process, trial conducted by legal experts and experienced judges, any decision made can be enforced through courts, appeal routes if the claimant is unhappy, possible to get legal aid
negotiation
happens directly with the other party, solicitors can negotiate a settlement. private, quick and cheap method of settling a dispute although it usually requires lawyers. can be used at any point in the dispute but may not be successful and requires cooperation between parties, usually used by large companies when dealing with eachother
mediation
a neutral mediator helps parties to reach a compromise solution, a mediator consults each party and sees how much common ground there is. carry offers to and fro while keeping confidentiality. mediators only facilitate the agreement and do not give their own view - only works when families can cooperate and can be made binding if a mediation agreement is signed
conciliation
similar to mediation however the third part helping to resolve the dispute will play a more proactive role, the conciliator will suggest grounds for compromise and the basis for a settlement, conciliator cannot seek evidence or call witnesses - does not necessarily lead to a resolution and may continue to court
arbitration
informal procedure where the parties submit claims to private arbitration, governed by the arbitration act 1996. parties choose 1-3 arbitrators who are usually specially trained who make decisions about complaint from the papers and evidence presented. some contracts state arbitration must be used in a dispute called the scott v avery clause
advantages of ADR
quicker than court based resolution, more informal, parties have more control of the process, decision makers are experts, limited need for legal representation, effect of an award is usually legally enforceable, cheaper than court, maintains relationships
disadvantages of ADR
lack of state funding and representation, may be an imbalance in parties as lack of legal aid, availability and success of process is dependent on agreement, mediators and arbitrators may be hard to get and costly, limited appeal rights, may not be suitable for complex law, not bound by precedent so can’t predict outcome
advantages of ODR
can be used globally, can be accessed by most, cheap and often free, built in to may websites such as ebay
disadvantages of ODR
impersonal, no witnesses allowed, only simple cases, may end up at court anyways
what is ODR
used by services such as ebay, also the financial ombudsman service to resolve disputes regarding consumer and financial matters. consumers can solve disputes online and works with parties to determine an outcome
what are tribunals
specialist courts whose judges and members hear wide ranges of cases such as tax, employment, and immigration and asylum
how do you make a tribunal claim
use human resources at their workplace by making a formal complaint, if not solved in 30 days, an employee can fill in an ET1 form to make a claim, the employee is then able to respond to this claim
who sits in tribunal channels
judge, employer representative and employee representative
disadvantages of tribunals
many steps such as going to HR and then ACAS before actual tribunal, can be overwhelming especially if employer is powerful, may be off putting, confrontational so may damage the relationship
advantages of tribunals
free and so are accessible to all, conciliation is supported as part of the process which can be more satisfying and allow parties to come to an agreement, sit seperate to the courts so are fast and informal, opportunities for reviews and appeals
summary offences
an offence that has a maximum sentence of 6 months imprisonment or of a 5000 pound fine for any offence, this is the least serious type of criminal offence, dealt with in the magistrates court
indictable offences
an offence which carries out the maximum sentence, the most serious and are dealt with by judge and jury in the crown court - although preliminary hearing is in the magistrates
triable either way offences
can be treated as either summary offence or indictable offence, mid level seriousness or are debatable, can be tried in either court - if not guilty, usually goes to crown court
what are the crown courts sentencing powers
their sentencing powers are unlimited
the bail act 1976
intends that unless there are strong reasons to the contrary an individual will be remanded on bail with appropriate conditions attached
what are some reasons bail would be refused
individual has been accused of committing a serious offence, has previous convictions for similar offences, may disappear before trial, may interfere with witnesses, will commit further offences before trial
pre trial procedure for summary offences
heard in the magistrates court, hearing where a clerk will check details of defendant and plea which in 90% of cases is guilty, if guilty magistrates determine the sentencing, if not guilty the date and details of court will be set
pre trial procedure for indictable offences
first hearing at the magistrates court where details checked and there will be a bail hearing, case then moves to crown court where a plea made and hearings set, an indictment is prepared if additional charges and prosecution and defence share info and evidence and law argued along with alibi
pre trial procedure for triable either way offences
under the magistrates court act 1990 there is a plea before venue at the magistrates court, defendant enters plea - not guilty: decision about mode of trial and bail. trial could be at crown court if requested or if magistrates believe it goes beyond their powers after considering interests of justice and seriousness. if trial is at magistrates may still be sentenced at the crown court. if defendant pleads guilty the sentencing happens at the magistrates court but may be sent to crown court
case stated appeals
can be used by both prosecution or defence as it is about point of law, goes to the administrative court of the KBD - court is asked to set out how decision was made infront of high court judges. these cases result in either: reversed decision, confirmed decision, varied decision, remitted decision
appeals from the magistrates court
the main route of appeal is by the defence, this is when the defence appeals against their conviction or sentence. at the crown court, a judge and two magistrates will rehear the case. the decision may be: reversed, upholded, increased or reduced
what are the different routes of appeal in criminal courts
appeal by both prosecution and defence: case stated appeals, appeals to the crown court, appeals to the court of appeal
case stated appeals to the Supreme Court
following a case stated appeals to the supreme court, this is only for pressing matters of law such as in C v DPP where doli incapax was challenged
prosecution appeals against acquittal
only available on the grounds of jury tampering, or if there is new and compelling evidence under the criminal justice act 2003
aggravating factors
factors which indicate higher culpability, including: previous convictions, hate crimes. factors which indicate more serious degree of harm, including: multiple victims, vulnerable victims
mitigating factors
factors indicating a lower culpability, including: mental illness or disability, age, minor role. offender mitigation, including: remorse, co-operation
types of sentencing
non custodial sentences: community orders, fines, discharge. custodial sentences: life sentences, fixed term
community orders
under the criminal justice act 2003, can choose tailor mode sanction which avoids imprisonment: rehab, community service, curfews, travel ban
fines and discharges
discharges mean no other sentences are sat, could be conditional - so if another offence is committed there are two sentences
life sentencing as a sentence
given for the most serious crimes, judges must give a life sentence for murder but can for other homicides or serious assaults if multiple.
fixed term sentencing
for other crimes, judges choose imprisonment based on the guidelines - these are for a set period and are usually found in a statute of the crime
aims of sentencing
punishment: should be undesirable. deterrence: should be put off committing crime because of punishment. rehabilitation: should be helped to change their behaviour so they don’t reoffend. protection: to stop community feeling unsafe after being harmed. reparation: in order to fix a damaged community, including restorative justice
