Evaluations

Question 1

What are some advantages and disadvantages of tribunals

Answer 1

ADV
1. COST - its cheaper to pursue a claim in tribunals because parties are often encouraged to represent themselves, this has been made much easier because of the reforms which has enables the tribunal system to reflect a more inclusive society

2. INFORMALTY - Tribunals are a formal type of ADR but are still an alternative way of resolving disputes. Tribunals take an informal approach which differs from that of traditional courts
3. INDEPENDENCE - Because of the involvement with the JAC the independence of appointing tribunal judges allows the system to operate fairly and reflect a more transparent system which has been encouraged in the sir Leggett rapport 1957 and the franks committee.

DISV
1. lack of funding Legal funding is not available in many cases. This can be detrimental to a person who is taking on a big company that has the benefit of expensive representation.

2. -Lack of precedent Tribunals do not operate a strict system of precedent, so there is sometimes an element of unpredictability to the outcomes of cases.
3. Intimidated parties There is still the problem of parties feeling intimidated and daunted at the prospect of taking a case to court, particularly without the comfort of having a legal representation.

Question 2

What are the disadvantages of tribunals

Answer 2

DISV
1. lack of funding Legal funding is not available in many cases. This can be detrimental to a person who is taking on a big company that has the benefit of expensive representation.

2. -Lack of precedent Tribunals do not operate a strict system of precedent, so there is sometimes an element of unpredictability to the outcomes of cases.
3. Intimidated parties There is still the problem of parties feeling intimidated and daunted at the prospect of taking a case to court, particularly without the comfort of having a legal representation.

Question 3

What are the adv and disv of magistrates

Answer 3

ADV
. Representative of society - Magistrates provide a cross section of society. Gender is evenly represented, 53% of magistrates are female and 47% being male. Recent figures do show that the Magistracy is increasingly reflecting an increase in ethnic diversity. This shows that magistrates are a useful part of the English legal system

2. Few appeals- There are few appeals against the magistrates’ decisions and many of these are made against the sentence and not the conviction. The Judicial Studies Annual Report 2009 showed that only half of 13,000 appeals from the Magistrates Court are allowed. In 2009 there were only 68 appeals from the Magistrates’ Courts on the by way of case stated to the Queen’s Bench Divisional Court of the High Court and of these only 44 were allowed.
3. Improved Training - The training of magistrates has improved with the new training system and the strengthened role of the Judicial Studies Board in their training. The training involves practical “on the job” training. It is competence based and the mentor guides and advises new magistrates. This aids in increasing the quality of judging. A national syllabus is followed and magistrates are appraised to ensure they have attained the relevant competencies

DISV 
1.Lay magistrates are unrepresentative of society , this is because of there traditional nature for example most magistrates are white , middle aged , middle class men who aren't representative of society. ged 45 – 65. Magistrates under 40 are still rare, only 4% are under 40 and half of all magistrates are in their 60’s (Judicial Statistics 2011).

2) No legal training/ experience- - Some critics have suggested that as magistrates have no legal training, they should not be given the role of deciding questions of guilt and sentencing. They have been accused of administering amateur justice. The Magistracy cannot be expected to comprehend the finer complexities of the criminal law and sentencing issues. Therefore, it could be argued that it would be better suited in the hands of professionals.
3) inconsistent sentencing- illustrates in different areas often pass different sentences for what appear to be similar offences. The Government’s White Paper “Justice for All” 2001 gave some examples, e.g. 20% of offenders convicted of burglary in Teeside were given a custodial sentence compared with 41% of offenders in Birmingham. 38%

Question 4

What are the advantages of magistrates

Answer 4

. Representative of society - Magistrates provide a cross section of society. Gender is evenly represented, 53% of magistrates are female and 47% being male. Recent figures do show that the Magistracy is increasingly reflecting an increase in ethnic diversity. This shows that magistrates are a useful part of the English legal system

2. Few appeals- There are few appeals against the magistrates’ decisions and many of these are made against the sentence and not the conviction. The Judicial Studies Annual Report 2009 showed that only half of 13,000 appeals from the Magistrates Court are allowed. In 2009 there were only 68 appeals from the Magistrates’ Courts on the by way of case stated to the Queen’s Bench Divisional Court of the High Court and of these only 44 were allowed.
3. Improved Training - The training of magistrates has improved with the new training system and the strengthened role of the Judicial Studies Board in their training. The training involves practical “on the job” training. It is competence based and the mentor guides and advises new magistrates. This aids in increasing the quality of judging. A national syllabus is followed and magistrates are appraised to ensure they have attained the relevant competencies

Question 5

What are the disadvantages of magistrates

Answer 5

1. UNREPRESENTTAIVE- .Lay magistrates are unrepresentative of society , this is because of there traditional nature for example most magistrates are white , middle aged , middle class men who aren’t representative of society. ged 45 – 65. Magistrates under 40 are still rare, only 4% are under 40 and half of all magistrates are in their 60’s (Judicial Statistics 2011).
   2) No legal training/ experience- - Some critics have suggested that as magistrates have no legal training, they should not be given the role of deciding questions of guilt and sentencing. They have been accused of administering amateur justice. The Magistracy cannot be expected to comprehend the finer complexities of the criminal law and sentencing issues. Therefore, it could be argued that it would be better suited in the hands of professionals.
   3) inconsistent sentencing- illustrates in different areas often pass different sentences for what appear to be similar offences. The Government’s White Paper “Justice for All” 2001 gave some examples, e.g. 20% of offenders convicted of burglary in Teeside were given a custodial sentence compared with 41% of offenders in Birmingham. 38%

Question 6

What are the adv and disv of the literal rule

Answer 6

ADV
1. Encourages parliamentry supremacy- if follows the principle of parliamentary sovereignty as parliament is the rightful law making body and judges should apply the law just as they have written it

2. Makes law more certain- so people are more aware of the consequences and judges are aware of how to apply it
3. Forces parliament to write acts clearly to prevent absurdity from happening

DISV
1. - there is an assumption that every act will be precise and realistic with its wording when in reality this is not the case because it may no tbe possible for the act to cover all situations

2. it can result in absurd , unjust and unfair outcomes for example LENR V berrimen
3. some may say this principle is lazy such as professioor zandelr

Question 7

What are the advantages and disadvantages of using statutory interpretation

Answer 7

1- it alows judges to choose the most reasonable mening where there is more than one meaning ( narrow approach)

2- it avoids absurd results

3_ it avoids injustices for example in RE sigworth

DISADV
1- IT is limited in its use where it can only be use dif word has more than one meaning

2- undermines parliamentary soverignty as judges are interpreting law- this is evident using the golden approach

3

Question 8

what are some advantages and disadvantages of using the mischief rule

Answer 8

ADV
- it allows judges more flexability

• it promotes the purpose of the law
• it allows judges to look back at what the law intended

DISADV
1- using the mischief rule can lead to uncertainty and lawyers cant accurately advise their clients

2- it is not democratic

3- risk that judges are filling the law with their own views on how it should be shaped

Question 9

What are the adv and disadv of the purposive approach

Answer 9

• The purposive approach used extrinsic aids which is beneficial especially to unclear words - it leads to justices
• it concerns parliaments intentions

disadv
- its is undemocratic as unelected unaccountable judges are making the law

• it makes the law less certain as it is impossible to predict outcomes
• it relies to heavily on extrinsic aids

Question 10

adv and disadv of hansard

Answer 10

adva-
- it can find out hat ministers proposing legislation where trying to achieve ,

• lord denning argues its usefulness

disadv

• there is a ack of clarity, it may not be reliable ,because of he cut and thrust nature of parliamentary debates
• parliamnetry debets are not always easy to identify

Question 11

ADV and disv of juries

Answer 11

ADV
Impartiality - because juries are not connected to anyone in the case , lack legal knowledge and are randomly selected it results in a cross section of socitey that should cancel out any bias

• Public confidence/ Democratic - this reinforces democracy in the English legal system and is fundamental in society, suggested by lord delvin who stated that juries are the lamp that shows freedom lives
• Jury equity/ reinforces fairness - this is because jurrors are not legal experts of bounded by precedent which means that juries can decided on cases on their idea of fairness and equity seen in the case of ponting and r v biezanej

Disv
Bias - Juries may be racially prejudiced as the selection process can produce an all white jury. In Sander v UK (2000), the European Court of Human Rights held there was a breach of Article 6 of the European Convention of Human Rights. One juror wrote to the judge raising concern that others were making racist remarks and jokes

-Jury nobbling and intimidation - A juror may be threatened or bribed to give verdicts favourable to the defendant, which may be problematic in organised crime trials. Jurors may need police protection but this ends when the trial ends usually

Question 12

What are the advantages of juries

Answer 12

ADV
Impartiality - because juries are not connected to anyone in the case , lack legal knowledge and are randomly selected it results in a cross section of socitey that should cancel out any bias

• Public confidence/ Democratic - this reinforces democracy in the English legal system and is fundamental in society, suggested by lord delvin who stated that juries are the lamp that shows freedom lives
• Jury equity/ reinforces fairness - this is because jurrors are not legal experts of bounded by precedent which means that juries can decided on cases on their idea of fairness and equity seen in the case of ponting and r v biezanej

Question 13

Name the disadvantages of juries

Answer 13

• Bias - Juries may be racially prejudiced as the selection process can produce an all white jury. In Sander v UK (2000), the European Court of Human Rights held there was a breach of Article 6 of the European Convention of Human Rights. One juror wrote to the judge raising concern that others were making racist remarks and jokes
• Jury nobbling and intimidation - A juror may be threatened or bribed to give verdicts favourable to the defendant, which may be problematic in organised crime trials. Jurors may need police protection but this ends when the trial ends usually

Question 14

ADV and diasdv of delagted legislation

Answer 14

postives
- TIME - parliament has a lac of time to debate every small complex detail of regulations which is why delegated legislation is useful because it prevents the over working ,/ colapse of parliament

• KNOWLEDGE - parliament doesn’t have the local knowledge to enact pieces of legislation so when local authorities or the privy council have these powers legislation is more accurate for that area
• FLEXABILITY - delegated legislation can be altered ability whichout going through a lengthy process , it ca also be enacted quickly and revoked if problmantic

DISAV
1. It allows non-elected people to make law. The main criticism is that it takes law making away from the democratically elected House of Commons and allows non-elected people to make law. This would be reasonable if there were adequate controls.

2. Inadequate control -As already seen, the controls of delegated legislation are inadequate. Publication has only limited benefits, given that the general public are unaware of the existence of delegated legislation.
   The ultra vires procedure is inadequate as it is dependent on individuals bringing the case before the courts. This is dependent on personal finances as very few people have the money to do so. This happens rarely and when it does, it happens years after the provision has been enacted.

3.Lack of awareness The fact that the law is made in private, means that the general public is often unaware of the legislation.

Question 15

ADV of delegated legislation

Answer 15

TIME - parliament has a lac of time to debate every small complex detail of regulations which is why deelagted legislation is usefull because it prevents the over working ,/ colapse of paraliment

• KNOWLEDGE - paraliment doesnt have the local knwoldge to enact pieces of legislation so when local authorties or the privvy council have these powers legislation is more accerate for that area
• FLEXABILITY - delegated legislation can be alteraed eaaility without going through a lenthy process , it ca also be encated quilickly and revoked if p

Question 16

DISV of delegated legislation

Answer 16

. It allows non-elected people to make law. The main criticism is that it takes law making away from the democratically elected House of Commons and allows non-elected people to make law. This would be reasonable if there were adequate controls.

2. Inadequate control -As already seen, the controls of delegated legislation are inadequate. Publication has only limited benefits, given that the general public are unaware of the existence of delegated legislation.
   The ultra vires procedure is inadequate as it is dependent on individuals bringing the case before the courts. This is dependent on personal finances as very few people have the money to do so. This happens rarely and when it does, it happens years after the provision has been enacted.

3.Lack of awareness The fact that the law is made in private, means that the general public is often unaware of the legislation.

Question 17

ADV and DISV of negotiation

Answer 17

adv of negotiation

• completely free
• less time consuming
• informal which can be less stressful than other proceedings

disv
does not always work
- parties may not feel up to negotiate if there is unequal barging power
- difficult to enforce as things are legal binding

Question 18

ADV of mediation and disadv

Answer 18

adv of mediation

• it is easier for companies to do business with each other in the future , no bad blood
• it avoids confrontational nature of the court room
• it is cheaper for both parties as ecah party pays its own costs

DISV
no guarantee the matter will be resolved there is a possibility the parties will still end up in court
- gen felt like the mediations were controlled by the mediators who force parties into settlements they don’t want to be in

Question 19

ADV AND DIADV of arbitration

Answer 19

ADV 
- enforceable 
- 
DISV 
- Too formal 
- Takes time

Question 20

ADV AND DISADV of conciliation

Answer 20

same as for mediation

Question 21

ADV and diasdv of law commission

Question 22

ADV and DISADV of civil court system

Answer 22

ADV
Costs have been driven down. The Access to Justice Act 1999 restricts this in several ways. Firstly strict timetable can be imposed. For example with the fast track system the case has to be heard within 20 – 30 weeks. The trial is also heard in one day and expert witnesses are limited to only one. All of this helps to speed up the system and keep costs down.

• The multi-track system enables flexibility in terms of allocation. This means that now cases can be allocated according to complexity.
  This speeds up the system making it more efficient will enable it to be cheaper for the parties involved. Woolf cited one claim for £2,000 which came to £69,295 in fees.
• Greater control of ruthless lawyers due to case management. With more complicated cases, judges have been made case managers in order maximise efficiency and to

DISADV. Complex system- The new system is complicated - ld terminology has simply been replaced with new terminology The system is as complicated as ever. Peter Thompson QC states that under the old rules there were 391 pages of procedure and now there are 2,301 pages with 49 updates.

• Long delays- Professor Zander argues that the delay remains the same despite the introduction of fixed date trials. He argues that there is much inefficiency in the court administration process which is something that Woolf did not account for. The reforms may have helped to reduce the problems caused by lawyers but it has not addressed the administrative problems that prevent court efficiency.
• Costs- the costs of proceedings far outweigh the amount being payed. this is unfair and can encourage society to not seek justice if there damages are going outweigh the cost. This is evident in the high court specifically

Question 23

ADV & DISV OF PRECCEDANT

Answer 23

ADV
1. Certainty-Because of this people know how the law is likely to be applied to their case. It allows lawyers to advise clients correctly and provides for businesses so that they can be assured their contracts, employees etc are recognised by an aspect of the law. The practice statement in 1966 supports this.

2. consistency and fairness -It is seen as just and fair that cases on the same facts should come to the same conclusion. The law must stay consistent to maintain credibility.
3. Flexibility Since the practice statement the H of L are able to correct mistakes, overrule and distinguish to avoid previous decisions where necessary to develop the law

DISV
1. Rigidity If a bad decision is made all lower courts including the court of appeal must follow it. This sometimes leads to a too rigid approach. This also means that any case that does not make it to the H of L

2. . Complexity There are nearly half a million reported cases therefore it is not easy to find the correct and relevant case law. Often difficult to find the ratio and obiter as the judgements are long and complex. In Dodds
3. Undemocratic Another argument is that the judges should not take it upon themselves to reform law as they are not elected or accountable to the public. Almost all judges agree that in areas of major law reform it is a task better left to parliament.

Question 24

What are the adv of judicial precedent

Answer 24

. Certainty-Because of this people know how the law is likely to be applied to their case. It allows lawyers to advise clients correctly and provides for businesses so that they can be assured their contracts, employees etc are recognised by an aspect of the law. The practice statement in 1966 supports this.

2. consistency and fairness -It is seen as just and fair that cases on the same facts should come to the same conclusion. The law must stay consistent to maintain credibility.
3. Flexibility Since the practice statement the H of L are able to correct mistakes, overrule and distinguish to avoid previous decisions where necessary to develop the law.

Question 25

What are the disv of precedent

Answer 25

. Rigidity If a bad decision is made all lower courts including the court of appeal must follow it. This sometimes leads to a too rigid approach. This also means that any case that does not make it to the H of L

2. . Complexity There are nearly half a million reported cases therefore it is not easy to find the correct and relevant case law. Often difficult to find the ratio and obiter as the judgements are long and complex. In Dodds
3. Undemocratic Another argument is that the judges should not take it upon themselves to reform law as they are not elected or accountable to the public. Almost all judges agree that in areas of major law reform it is a task better left to parliament.