English Legal System Flashcards

Question

Role of juries

Answer 1

Role of juries (8) I 1 Around 2% of criminal trials use juries. Sit as a panel of 12 in Crown Court. 3. They hear indictable or serious T-E-W offences where the 'd' has pleaded not guilty. 4. They hear all the evidence and decide the facts of a case whilst the judge directs them on points of law. 5. They are independent and free of pressure from the judge. Bushell's case 6. A jury can be directed to acquit a defendant at the end of the prosecution case if the judge decides that there is no case to answer. (Directed acquittal). 7. At the end of the case, the jury retire to a private room where they decide guilt or innocence of the 'D' in secret. Reach a unanimous or majority verdict of 11-1 or 10-2 after at least 2 hours of deliberations. 8. The foreman of the jury reads out the verdict in the court

Answer 2

Evaluation of juries (12) + Public confidence — the right to be tried by one's peers is a basic of a democratic society. Lord Devlin - "juries are the lamp that show freedom lives.' They are not likely to be prosecution biased as legal professionals may be, it is fairer + Jury equity - make decisions based on fairness rather than on precedent. Can make the system fairer - Pontings case + Open system of justice - not closed to legal profession. Keeps it fair and less biased / less open to abuse. + Impartial - random section means more impartial and no one connected to the case. Fair trial. - Perverse decisions - to make a decision against the evidence in order to reach a 'fair outcome. Justice is not being done. Randle & Pottle - jury acquitted a spy, despite evidence against him, perhaps because 25 yrs gap since offence. Internet searching - may look up case on internet if high profile, which creates bias. S71 CICA 2015 make it an offence for juror to search internet, 572 CICA 2015 makes it an offence to disclose searched into (2yrs max prison sentence). - Secrecy of the jury room - no way to know if decision made for the right reasons, or if jury racist/ bias, Mirza. - Media coverage - may influence jurors, articles and crime scene pictures can create false bias, Taylor & Taylor.

Answer 3

C9LI01 Role of solicitors (8) 1. Solicitors can work as a sole practitioner or in a partnership. 2. The majority of solicitors will work in a private solicitor's firm but some may work for CPS. 3. Their main role is to advise clients on a wide range of topics such as criminal, business, family and housing issues 4. A large amount of time will be spent on interviewing clients. 5. They will negotiate on a client's behalf 6. There is a large amount of paperwork involved in the job: writing letters, draiting contracts, drawing up wills. 7. It is possible for firms to specialise in one area of law. Large city firms will often specialise in business and commercial law. 8. They will advocate in lower courts such as Magistrates or County- 9. Organise a barrister for their client if their case goes to Crown or a higher court. 10. Some solicitors have higher rights of audience. The Courts and Legal Services Act 1990 gave the right to apply for a certificate of advocacy. These solicitors can apply for King's council

Answer 4

Complaints against Solicitors (8) 1. Governed by the Law Society 2. Regulated by the Solicitor's Regulatory Authority 3. SRA sets the standards for qualifying, monitors performance, handles complaints, sets rules for professional conduct and operates a compensation fund for those who lost money due to a dishonest solicitor. 4. They are contracted by a client so can be sued for breach of contract (and they can sue client). 5. Can be sued for negligence, White a iones 6. Complaints should firstly be made to the solicitors firm. 7. If not resolved, complain to SRA. 8. SRA will investigate misconduct and may put case before the Solicitors' Disciplinary Tribunal. 9. SRA can suspend or strike off a solicitor from the Roll 10.If the complainant is unhappy with the SRA = Legal Ombudsman. They can make legal professional apologise to client, give back documents, refund fees or pay compensation to client up to £30,000

Answer 5

1. Those working at the Bar are self-employed and practice out of chambers 2. Concentrate on advocacy – presenting cases in court 3. Full rights of audience – can present cases in all courts 4. Some barristers specialise in areas such as tax and company law 5. Write opinions on cases 6. Give legal advice on merits of a case – ‘Counsel’s opinion’ 7. Draft documents for court 8. Direct access for civil cases if had additional training 9. May be employed by government organisations or the CPS 10. After ten years, can apply for Kings Counsel and take on complex cases

Answer 6

1. Governed by the Bar Council 2. Regulated by the Bar Standards Board 3. BSB set code of conduct, training requirements, monitor service provided and handles complaints against barristers. 4. Barristers don’t enter into contracts with clients so they can’t be sued for breach of contract (and they can’t sue clients for unpaid fees!) 5. They can be sued for negligence in the conduct of advocacy Hall v Simons 6. Complaints are firstly made to the chambers 7. If matter not resolved, complain to BSB 8. BSB can fine barristers up to £50,000 9. BSB can suspend the barrister up to 12 months or even dispar them (strike off) 10. If claimant unhappy with BSB response, can refer to Legal Ombudsman. They can make legal professional apologise to client, give back documents, refund fees or pay compensation to client up to £30,000.

Answer 7

1. They specialise in a particular area of law. Roles include: 2. Handle property transfers 3. Assist in formation of companies 4. Draft wills 5. Advise people with marriage problems 6. Advise clients accused of crimes. 7. Some rights of audience in County or Magistrates’ court. 8. Make applications for bail or deal with cases in Youth court. 9. They earn a fee that is charged at an hourly rate. This contributes to the business of the solicitor’s firm. 10.The partners of the legal firm are responsible for the work of legal executives.

Answer 8

1. Governed by the Chartered Institute of Legal Executives 2. Regulated by the CILEx Regulation Board. 3. CILEx oversees education, qualification and practice standards. Takes action against those who do not meet the standards. 4. Legal Executives have a contractual obligation to their clients and can be sued for breach of contract (and can sue the client for unpaid fees) 5. Can be sued for negligence. 6. CILEx put any issues with a legal executive to a Professional Conduct Panel. 7. If a complaint is deemed to be misconduct, CILEx will reprimand or warn a member. 8. In serious cases, a Disciplinary Tribunal will exclude a person from membership 9. A member can be ordered to pay up to £3000 fine 10. If client still unhappy, take the complaint to the Legal Ombudsman.

Answer 9

S142 of the Criminal Justice Act 2003 sets out the five main aims for sentencing those aged 18 and over: 1. Retribution – this is the idea that the offender is punished for their crime, and in proportion to their crime. It is based upon the Biblical text ‘an eye for an eye, tooth for a tooth, life for a life’. In the past it was used to justify the death penalty for murderers. Today, the sentencing council use it to impose a certain tariff for sentencing each offence. 2. Deterrence – This is aimed at putting off the offender from reoffending in the future. There are two types: Individual deterrence =This looks at what sentences may stop that particular individual from committing crime again. It may be a custodial sentence or non-custodial. However, statistics show that 55% of adults and 70% of young offenders reoffend within 2 years of release from prison. General deterrence = This is where the court gives an offender a harsher sentence in order to act as a deterrent to others. This was used against offenders in the 2011 riots. This aim contradicts the principle of retribution as it sentences an individual to a longer term than is deserved. 3. Reform/ Rehabilitation - This aims to reform the offender into changing their ways and to rehabilitate them back into society. The court will be given information about the offender’s background, usually through a pre-sentence report prepared by the probation service. Where relevant, the court will consider other factors such as medical reports and job prospects. When the aim is to reform, offenders are often given a community order with various requirements aimed at rehabilitating them. 4. Protection of the public - There are life / long imprisonment sentences for the most serious offenders in society such as those who are violent, murderers and those who commit sexual offences. The Criminal Justice Act 2003 stated that ‘the court must protect the public by imposing a custodial sentence if the offender poses a significant risk of serious harm to the general public’. In cases of less serious harm, the public can be protected in other ways such as a football hooligan being banned from football matches, a drink driver being given a driving ban, a burglar being given a curfew and electronic tag. 5. Reparation - This is aimed at compensating the victim of the crime, usually by ordering the offender to pay a sum of money to the victim or to make restitution (e.g. returning stolen items). The courts consider ordering compensation to the victim in addition to any other appropriate sentence. Direct reparation is where the offender meets with the victim face-to-face and apologises. Community service also aims at compensating society as a whole by making the offender serve the community. (Denunciation – society expressing disapproval of criminal activity.)

Answer 10

(Intro to all – this aim is found in s142 CJA 2003…) …1. Retribution Prison (types)could be argued as the best punishment that fits the crime in many cases; to lose freedom seems a punishment that fits a serious crime. Quote s152 CJA 2003. Explain the different non-custodial sentences and what types of offences they may be used for, so that the punishment fits the crime.. …2. Deterrence Some may argue that prison is the best deterrence as liberty is lost, but with 55% of adults and 70% of youths reoffending within 2 yrs of release, perhaps not! Discuss 4 of the non-custodial sentences under CJA 2003 such as unpaid work, prohibited activity, curfews and fines. For each one - do you think they deter? …3. Reform/ rehab Many would agree that non-custodial sentences are the best way to reform and magistrates use them often. Discuss the effect of choosing community orders under CJA 2003 such as unpaid work, drug rehab order, discharges and compensation orders. For each - do they aid reform? …4. Protection of public Prison is the main way to protect the public from serious offenders. Quote CJA 2003. However, non-custodial sentences can protect public through prohibited activity requirement, curfews, driving bans. For each, discuss how. …5. Reparation Discuss CJA 2003 unpaid work to repair offences such as criminal damage, fines to give back to state for offences such as benefit fraud, compensation order to give money back to the victim that was stolen, forfeiture order to recover stolen property, direct rep. to apologise.

Answer 11

Aggravating factors = Factors which make the offence and sentence more severe (harsh). They include … 1. the seriousness of the offence, 2. racial motive (can add up to 2 years onto sentence),3. Previous convictions, 4. use of a weapon, 5. D on bail when offence was committed, 6. vulnerable victim attacked. Aggravating factors specific to assault = 7. The offender being part of a group attacking the victim, 8. a particularly vulnerable victim, 9. a victim serving the public. Eg. Nurse, 10. the assault was premeditated. Mitigating factors = Factors which make the offence and sentence less severe. They include… 1. First offence, 2. cooperation with the police, 3. offender shows remorse, 4 an early guilty plea, 5. background or circumstances of the offence. Reduction for early guilty plea = First reasonable opportunity = 1/3, After trial has been set = 1/4 At the door of/ in the court = up to 1/10 NB. In exceptional circumstances where the defendant’s guilt is overwhelmingly clear = 20%

Answer 12

1. S152 of the Criminal Justice Act 2003 says no custodial sentence shall be given unless the offence “was so serious that neither a fine alone nor a community sentence can be justified”. 2. Only available for offenders aged 21 or older. (Offenders aged 18 to 20 are sent to a Young Offenders Inst.) 3. Magistrates’ Court = Max. 6 months prison for 1 offence, max 12 months prison for 2 or more offences Crown Court = Can imprison an offender for up to the maximum for their offence, e.g. theft max. = 7 years 4. Murder = life imprisonment. Mandatory life sentences = used for murder. The judge can state the minimum number of years imprisonment. The minimum term is governed by the Criminal Justice Act 2003. Range: whole life term – 12 years minimum 5. Whole life term = Reasons for a full life term: Murder of a child if it involves abduction or a sexual motive. Murder done for the purpose of advancing a political, religious, racial or ideological cause. Aggravating factors = Premeditation, Vulnerable victim, Mental or physical abuse prior to killing. Mitigating factors = Intention to cause GBH not death, Lack of premeditation, If the murder was viewed as an ‘act of mercy’ by the offender (euthanasia) 6. Discretionary life sentences = The judge has discretion in sentencing and can give any lesser sentence where appropriate. Eg. For other serious offences such as S18 GBH the maximum sentence is life imprisonment, but the judge does not have to impose it. However, a life sentence should be given for a second offence. 7. Fixed term sentences = A ‘fixed term’ sentence is imprisonment for a set number of months / years. The length of sentence will depend on several factors: the maximum sentence for the crime, the seriousness of the crime, the defendant’s previous record. E.g. Theft can be given a fixed term up to 7 yrs dependent upon factors involved. 8. Suspended sentences = Given if there are exceptional circumstances in the case that justifies it (E.g.first time offences that are out of D’s character). Usually fixed for up to 2 years (6 months Magistrates’) No further offences = D will not serve.

Answer 13

1. The Criminal Justice Act 2003 created one community order under which the court can combine any requirements it thinks are necessary. For example: 2. Unpaid work requirement – 40 - 300 hrs on a community project organised by the probation service. Often worked in 8 hr sessions and on weekends. 3. Prohibited activity requirement – A variety of activities are prohibited to prevent the offender from reoffending. 4. Curfew requirement – An offender can be ordered to remain at a fixed address for between 2 -16 hours out of 24. Order is up to 6 months via electronic tag. 5. Supervision requirement – The offender is placed under the supervision of a probation officer for up to 3 yrs. Other types of non-custodial sentences include: 6. Fines – most commonly used by Magistrates’ Court to punish offenders. 7. Discharges – Conditional = The court discharges the offender on condition no further offence is committed during a set period up to 3 years. Further offence = impose another sentence in addition to the penalty for the new offence. Widely used by Magistrates’ for first time offenders. Absolute = No penalty is imposed. Likely to be used when an offender is technically guilty but morally blameless. 8. other examples…. Driving ban – used for drink/ dangerous driving. Compensation order – offender pays money to the victim. Forfeiture order – certain property in possession of the offender is taken.

Answer 14

Employment tribunals WHAT Employment tribunals make decisions about employment disputes. > They deal with Issues such as unfair dismissal, redundancy and discrimination. WHERE? Dead Employment tribunals are normally in office bulldings and the hearings are held in individual tribunal rooms. WHOL - There are three members of the tribunal who will decide on your case. Together they are called the tribunal panel. A PERSON 1= an employment judge. They will run the proceedings. PERSON 2 = a person representing the employer. PERSON 2= a person representing the employee. - The panel usually sit at a slightly raised desk. The atrosphere is like a court but slightly less formal. For example, nobody wears wigs or gowns, but evidence is taken on oath and there are rules about what happens and who speaks when. Most hearings are open to the public COSTE • Unlike the courts, you don't automatically have to pay your employer's legal costs if you lose the case. - You may still have to pay your representative, depending on what you agreed beforehand.