PAPER 1: Section A - Legal Profession [1/2 COMPLETE]

Question 1

1) Describe barristers.

Answer 1

• They are self employed

- Work in a set of chambers with around 15-20 other barristers.

Question 2

2) What does a barristers’ work involve? Involve three examples

Answer 2

CHOOSE FROM -

• Honesty and integrity
• Conference skills
• Rights of audience
• Drafting court documents
• Work on pleadings
• Negotation
• Give counsels opinion / expert advice
• Litigation
• Advocacy

Question 3

3) Define litigation (an example of a barrister’s work)

Answer 3

Taking a case to court

Question 4

4) Define advocacy (an example of a barrister’s work)

Answer 4

Arguing a case in court

Question 5

5) Who governs barristers and what do they do?

Answer 5

General Council of the Bar - Represents barristers in England and Wales and their interests.

Bar Standards Board - Regulates the profession of barristers.

Question 6

6) Outline and describe what the General Council of the Bar do.
(8 marks)

Answer 6

• Represent the barristers of England and Wales and their interests (1 mark)
• Promotes the Bar’s advocacy and advisory services (1 mark)
• Promote fair access to justice (1 mark)
• Promote the highest standards of ethics, equality and diversity across barristers (1 mark)
• Promote the development of business opportunities for barristers at home or abroad (1 mark)
• They USED to be responsible for disciplining barristers (1 mark) but this conflicted their role, so the Bar Standards Board was created to discipline barristers instead. (1 mark)

Question 7

7) Why couldn’t the General Council of the Bar discipline barristers and how was this issue resolved? (2 marks)

Answer 7

Disciplining barristers conflicted with the Bar’s roles (1 mark) so the Bar Standards Board was created to deal with discipline (1 mark)

Question 8

8) Outline and describe what the Bar Standards Board do. (8 marks)

Answer 8

• They regulate barristers and set training and entry standards. (2 marks)
• They set a Code of Conduct which barristers should comply with. (1 mark)
• If it’s a serious matter, it’ll be referred to a Disciplinary Tribunal. (1 mark)

Question 9

9) List three sanctions a Disciplinary Tribunal can give out.

Answer 9

OUT OF THESE:

• Reprimand the barrister
• Making the barrister complete further professional training
• A fine of up to £50,000
• 2 month suspension
• Disbar the barrister (extreme)

Question 10

10) What are the 5 rules of practice for barristers?

Answer 10

1. Can’t form partnerships - Barristers can be employed by local government or the CPS (Crown Prosecution Service)
2. Work in chambers - Shares the office cost with other services.
3. May advertise their services - Barristers need to attract their own business and clients.
4. QC - After 10 yers, barristers can apply for ‘silk’. This is a grant which allows barristers to take on more complicated high profile cases and charge more money.
5. Cat rank principle - The obligation of a barrister is to accept any work in a field which they profess themselves at their usual rates.

Question 11

What was held from Arthur Hall vs Simons?

Answer 11

It was held that lawyers could also be liable for negligence in the conduct of advocacy in court.

Question 12

Describe solicitors?

Answer 12

• There are over 149,000 solicitors practising in England and Wales, and they are controlled by their own professional body, the Law Society. About 75 per cent work in private practice and the remainder are in employed work, such as for local government, the Civil Service, the CPS or private businesses. The majority of those qualifying as a solicitor will work in private practice in a solicitors’ firm.
  there are other careers available including working in the CPS, for a local authority or government departments or as legal advisers in commercial businesses or in industry.
  A solicitor in private practice will generally work in a partnership, ranging from a ‘high street’ practice to a big city firm.
• If someone has a legal problem, they’ll have to go to a solictior, who will then enter a contract with a client to provide legal services for a fee.
• Majority of solicitiors work privately, but some can work for CPS or local councils.
  -They can represent clients in court.

Although some solicitors may handle a variety of work, it is more usual for a solicitor to specialise in one particular field. The firm itself may handle only certain types of cases (perhaps only civil actions) and not take any criminal cases, or a firm may specialise in family matters. In large city firms there will be an even greater degree of specialisation, with departments dealing with just one area of law or a limited number of clients
. Advocacy Alt solicitors have rights of audience in the lower courts - the Magistrates’ and County Courts. Solicitors who wish to exercise rights of audience in the higher courts must satisfactorily complete the appropriate higher courts’ advocacy qualification. Solicitors with an advocacy qualification are eligible to be appointed as Queen’s Counsel and also to be appointed as judges

Question 13

What does a solicitor’s GENERAL work include? Choose 3 out of the 5 listed.

Answer 13

The type of work done by a solicitor will largely depend on the firm. A high street firm will probably be a general practice advising individual clients on a whole range of topics including:

• Litigation - when some solicitors act for clients in civil or criminal cases
• Conveyancing - process of buying and selling houses
• General legal advice
• Negotiating
• Interviewing
• Drafting contracts / leases
• The making of wills, and probate (dealing with the affairs of deceased persons)
• Consumer problems (business matters, personal injury claims, family matters)
• Writing letters and emails,
• Drafting contracts, leases or other formal documents.

Question 14

What does The Courts & Legal Service Act 1990 grant solictors?

Answer 14

Solicitors can now apply for a Certificate of Advocacy so they can appear in higher courts. This is only given if the solicitor has experience of presenting in lower court and pass a training course.

Question 15

What two special jobs do solicitors have??

Answer 15

Briefing barristers - Solicitors can brief a barrister to represent their client in difficult cases and get their experience in complex cases.

Specialising - Solicitors deal with a wide variety of work, but can choose to specialise in one particular area of work. Small firms can choose to specialise in certain types of work, whilst large firms have different department specialising in different work.

Question 16

Two cases about solicitors

Answer 16

Gritthes v Dawson - Solicitors failed to make a correct application in divorce proceedings as a result the client lost financially. The solicitors were ordered to pay her £21,000.

White v Jones - Father wanted to make a will leaving £9,000 to each daughter solicitor did not do this and daughters lost out on the money. They successfully sued the solicitor for the £9,000 each.

Question 17

everything on lega executives

Answer 17

There are over 20,000 legal executives currently practising. 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. Most legal executives work for a firm of solicitors in private practice. Their work is charged at an hourly rate in the same way as solicitors’ work is charged but it is likely to be charged at a lower rate. In this way a legal executive makes a direct contribution to the income of a firm.

Legal executives can also work for local authorities, the CPS and in company legal departments. A qualified Legal Executive will 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’ supervised legal experience.

For example, they can:
• handle parts of a property transfer • assist in the formation of a company • draft wills • advise people with matrimonial problems • advise clients accused of a crime, advise a client detained in a police station and interview witnesses.

Question 18

regulation of barristers

Answer 18

Regulation of barristers Bar Standards Board This body sets training and entry standards but also regulates the barrister’s profession. It sets out a Code of Conduct that barristers have to comply with. The Board investigates any alleged breach of the Code of Conduct. It can discipline any barrister who is in breach of the Code. If the matter is serious, it will be referred to a Disciplinary Tribunal arranged by an independent Bar Tribunals and Adjudication service. A tribunal has several sanctions it can impose, including: • reprimanding the barrister (formally warning them about their behaviour) • making the barrister complete further professional development training • ordering the barrister to pay a fine • suspending the barrister for up to three years • in extreme cases, disbarring barrister (striking off) the barrister. If a complainant is unhappy with the decision of the Bar Standards Board, a complaint can be made to the Legal Ombudsman. Liability A barrister enters a contract with a client on the Direct Access scheme and such client can sue for breach of contract. A barrister can be liable in negligence for a poor quality of advocacy (but this must be more than just losing a civil claim or being convicted in a criminal case

Question 19

regulation of solicitors

Answer 19

Solicitors Regulation Authority Although every solicitor must belong to the Law Society, it is the SRA who deals with complaints about professional misconduct of solicitors. • It will initially investigate the complaint. If there is evidence of serious professional misconduct, it can bring the case to the Solicitors’ Disciplinary Tribunal. • If the Tribunal upholds the complaint, it can fine or reprimand the solicitor or, in more serious cases, it can suspend a solicitor from the Roll, so that they cannot practise for a certain time. • In very serious cases, the Tribunal can strike off a solicitor from the Roll so that they are prevented from practising again as a solicitor. Liability in contract and negligence As a solicitor deals directly with a client, a contract is entered into. This means that: • If the client does not pay, 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. • The client can also sue the solicitor in negligence if they suffer loss due to poor quality of work. It was decided in Hall v Simons (2000) that loss suffered as a result of negligent advocacy can also be claimed. • Solicitors can be liable in negligence to persons who are not their clients but who are affected by their negligent work. This is shown in White v Jones (1995).
Hall v Simons (2000) Three firms of solicitors were sued by their clients for negligent advocacy. The lower courts were bound by the decision of Ronde/ v Worsley (1969) which decided that lawyers could not be liable for negligent advocacy. Using the Practice Direction 1966, the House of Lords reversed Ronde/ v Worsley and ruled that the protection given to advocates was no longer appropriate, because of changes in the law of negligence, the working of the legal professions, the administration of justice and public perceptions. As a result, barristers and solicitors carrying out negligent advocacy could be sued by a client. White v Jones (1995) A father wanted to make a will leaving each of his daughters £9000. He wrote to his solicitors instructing them to draw up a will to include this. The solicitors received this letter on 17 July 1986 but had done nothing about it by the time the father died on 14 September 1986. As a result, the daughters did not inherit any money. They successfully sued the solicitor for the £9000 they had each lost.

Question 20

regulation of legal executives

Answer 20

Regulation of Legal Executives Chartered Institute of Legal Executives All legal executives are members of the Chartered Institute of Legal Executives (CILEx). This organisation provides education, training and development of skills for legal executives. It also protects the status and interests of legal executives. Another aim is to: ‘’ promote and secure professional standards of conduct amongst members and those who are , , registered with the Institute. CILEx publishes a code of conduct and guides to good practice but regulation of members is done by the CILEx Regulation Board, which investigates complaints about 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 it may reprimand or warn a member. It will refer serious matters to the Disciplinary Tribunal. The Disciplinary Tribunal has the power to: • exclude a person from membership of the Institute • reprimand or warn the member • order the legal executive to pay a fine and costs.

Question 21

justies of the supreme court

Answer 21

stices of the Supreme Court are appointed from those who hold high judicial office; for example, as a judge in the Court of Appeal, or from those who have been qualified to appear in the senior courts for at least 15 years.
As the Supreme Court is the final appellate court for Scotland and Northern Ireland as well, judges can also be appointed from those who have qualified to appear in courts in Scotland or Northern Ireland for at least 15 years. The Constitutional Reform Act 2005 provides that there should be a maximum of 12 Justices and they are the most senior judges in the country. They sit in the Supreme Court to hear final appeals from all courts in the UK.

Question 22

lords justice of appeal

Answer 22

Lords Justices of Appeal must have been qualified as a barrister or solicitor and have gained experience in law for at least seven years or be an existing High Court Judge. Lords Justices of Appeal are officially appointed by the Queen. A Lord Justice of Appeal will sit in either: • th_e Civil Division of the Court of Appeal where they will hear appeals from cases in the County Court or High Court, or • the Criminal Division of the Court of Appeal where they will hear appeals from trials in the Crown Court.

Question 23

high court jugdes

Answer 23

In order to be eligible to be appointed as a High Court Judge, it is necessary either to have been qualified as a barrister or solicitor, and have gained experience in law for at least seven years, or to have been a Circuit Judge for at least two years. The vast majority of High Court Judges are appointed to serve full time from barristers who have been in practice for twenty or thirty years. Deputy High Court Judges, who sit part-time, are also appointed and this is a way of testing the suitability of a person to become a High Court Judge. Candidates are usually expected to have previous judicial experience at a lower level. High Court Judges are officially appointed by the Queen. High Court Judges are assigned to one of the Divisions of the High Court and will hear the cases assigned to that Division: 1 Judges of the Queen’s Bench Division will hear high value civil claims of contract and tort. In addition, judges of this Division will hear serious criminal cases such as murder in the Crown Court. 2 Judges of the Chancery Division will hear high value commercial claims and cases of liquidation of companies and partnership disputes. 3 Judges of the Family Division will hear claims relating disputes of property and financial matters of married and unmarried partners and relating to children of relationships. In addition, judges of the High Court can sit as judges of the Court of Appeal alongside Lords Justices to hear appeals relating to work of the respective Divisions

Question 24

circui juges

Answer 24

In order to become a Circuit Judge, it is necessary to be a solicitor or barrister who has held a ‘right of audience’ for at least ten years. They should generally also have served either part-time as a Recorder in criminal cases or full-time as District Judges in civil cases before they can be appointed. They will hear both civil and criminal cases: 1 In the County Court they will hear a wide range of tort and contract claims, claims relating to possession of land and property disputes and some family work. 2 In the Crown Court they will take charge of criminal trials, hearing more serious cases as they gain seniority, and sentence offenders who have pleaded guilty. This is a part-time post for qualified barristers or solicitors who have gained at least seven years’ experience. An applicant is appointed as a Recorder in training first and then appointed as a Recorder. They will hear less serious civil cases in the County Court and less serious criminal cases in the Crown

Question 25

disstrict judges

Answer 25

A District Judge is a full-time post and an applicant must have been qualified as a barrister or solicitor and have gained experience in law for at least five years or have been a Deputy District Judge. The vast majority of District Judges in the County Court are former s~lici_tors. It is usual to have sat part-time as a Deputy District Judge before being considered for the position of District Judge. Under the Tribunals, Courts and Enforcement Act 2007, CILEx Fellows are now eligible to be appointed as a Deputy District Judge. District Judges will hear civil and criminal cases: • In the County Court and particularly the Small Claims Court, they will hear low value civil claims of tort and contract. • In the Magistrates’ Court, they will sit alone to hear summary and either-way criminal trials and impose sentences on offenders of those crimes.

Question 26

civil courts in the role of courts

Answer 26

The general role of a judge is to resolve disputes in a fair, unbiased way, applying the law to each case before them. In civil courts of first instance - the County Court and High Court - a judge will sit on their own to deal with all aspects of the case. The judge will be responsible for pre-trial matters such as case management and setting timetables to make sure
• that the parties in the case are ready for trial at a set date. At trial, the judge will: • hear evidence from all the witnesses • listen to legal arguments • look at any relevant case papers • decide the facts, how the law applies to those facts, and make the decision as to who has won the case (also known as who is liable) • in a contract and tort case, decide the amount of damages payable, or other remedy requested such as specific performance of a contract • decide who should bear the legal costs of the case.

Question 27

court of appeal and supreme courts

Answer 27

Appeal court judges in the Court of Appeal (Civil Division) and Supreme Court have a different role. They do not hear evidence from witnesses. Instead, they hear arguments on legal points in the case and decide if the decision made at the trial should stand or whether the appeal should be allowed. • In the Court of Appeal (Civil Division), an appeal may be heard against the finding of liability or about the remedy awarded; for example, the amount of money awarded as damages. The court can either allow or dismiss the appeal or vary the amount of damages. • A case can only be appealed to the Supreme Court if there is an important point of law involved or an issue of general public importance. Five Justices will normally sit to hear the appeal. Often appeals involve complicated and technical areas of law and how legislation should be interpreted. Any decision the Supreme Court makes on a point of law will become a precedent for all lower courts to follow.

Question 28

the role of judges in mag court

Answer 28

The general role of a judge in a criminal case is to oversee the case and ensure that correct procedures are followed, to rule on points of law that arise, to direct the jury on the law and evidence and, if the defendant is found guilty, to impose a sentence. In the Magistrates’ Court, a District Judge (Magistrates’ Courts) can sit on their own to decide: • whether the defendant is guilty or not guilty • the sentence when a defendant pleads guilty or is found guilty. They generally have the same sentencing powers as lay magistrate

Question 29

Role of the judges in the Crown Court

Answer 29

In the Crown Court, a judge will:

• sit with a jury when a defendant pleads not guilty to an either-way offence or an indictable offence
• decide any legal issues in the case and direct the jury on the relevant law
• decide on the sentence where a defendant pleads guilty, or is found guilty by a jury
• take into account any legal submissions on behalf of the defendant and consider any reports. A convicted defendant can appeal to the Court of Appeal (Criminal Division) against sentence and/ or conviction.

Three judges will hear legal arguments from the defence and prosecution and can either confirm the original decision and/or sentence, vary the sentence or find the defendant not guilty. If this is their decision, they can order a retrial. A further appeal against the decision of the Court of Appeal can be taken to the Supreme Court but only if leave is granted because there is an issue of general public importance to be decided. Five Justices will hear legal arguments from the defence and prosecution -no evidence will be heard. The Court can agree or overrule the decision of the Court of Appeal. They will not make a decision on the sentence

Question 30

Discuss the independence of the judges. State how dismissal works for superior level judges and inferior level judges. State the act that allows judidical indepndence. What is immunity of suit? State the relevant CASE.

Answer 30

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. However, Inferior level judges do not have the same level of security of tenure. The Lord Chancellor, with the consent of the Lord Chief Justice, has the power to dismiss inferior level judges for incapacity or misbehaviour.

Judicial independence is guaranteed under s 3 of the Constitutional Reform Act 2005. This states: • The Lord Chancellor or other ministers must uphold the continued independence of the Judiciary. The Lord Chancellor and government ministers must not seek to influence particular judicial decisions.

‘Immunity from suit’ allows a judge to perform judicial duties without fear of repercussions. They also have immunity from being sued in any civil case while they are performing their judicial duties. This includes a defamation claim for anything said about the parties or witnesses in a case they are hearing.

Sirros v Moore (1975) - In a case heard in the Crown Court, the judge wrongly ordered a person’s detention. The person then launched a claim for false imprisonment against the judge. The Court of Appeal decided that, although the order of detention was unlawful. no action lay against the judge as he had acted in good faith, believing he had the power to imprison.

Question 31

independene of juries from other arms of the state

Answer 31

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.
The rule is not as strict for part-time judges so that Recorders and Assistant Recorders can be Members of Parliament

The main reason for the creation of the Supreme Court in 2009 was to separate the Judiciary from the Legislature. Judges of the Supreme Court are not allowed to be members of the House of Lords. Judges are given a certain degree of financial independence. Their salaries are paid out of the Consolidated Fund, which doesn’t need Parliament’s authorisation. However, they are not completely protected from parliamentary interference in the terms on which they hold office: Parliament can change judicial retirement ages and qualifying periods of service for pensions.

Question 32

independenceof juries fronmthe executive

Answer 32

Independence of judges from the Executive Superior level judges cannot be dismissed by the government. They can make decisions that may displease the government, without the threat of dismissal. The extent to which judges are prepared to challenge or support the government is considered below. Judicial independence is guaranteed under s 3 of the Constitutional Reform Act 2005. This states: • The Lord Chancellor, other ministers in the government and anyone with responsibility for matters relating to the Judiciary or the administration of justice must uphold the continued independence of the Judiciary. • The Lord Chancellor and government ministers must not seek to influence particular judicial decisions. Independence from 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 Pinochet case. Case study Re Pinochet (1999) A claim was made to extradite the former dictator, Augusto Pinochet, back to Chile to face charges of carrying out torture and murder. The House of Lords initially ordered that he could be extradited. It was then found that one of the judges, Lord Hoffman, was an unpaid director of Amnesty International, 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 before a different panel. The 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 retried by the Lords with a different panel

Question 33

judicial review n judges

Answer 33

Judicial review One way that judges can show their independence from the Executive is the process of Judicial Review. An initial hearing will take place in the Divisional Court of the Queen’s Bench Division when decisions of government ministers or public authorities can be challenged by a person who has ‘standing’ -in other words is affected by the decision. Judges are prepared to find against ministers if they have acted unlawfully, as shown in the cases below. Case studies 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. R (on the application of Q) v Secretary of State for the Home Department (2003) Collins J in the High Court declared that the Home Secretary’s power to refuse to provide assistance to asylum seekers who had not immediately, on their entry to this country, declared their intention to claim asylum was unlawful. The Court of Appeal upheld this decision, although they did suggest how the relevant Act could be made compatible with human rights .

Question 34

Judges and human rights

Answer 34

• Judges are also able to hear cases involving human rights, and again are prepared to find against the government.

The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) 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. Some examples of these decisions are shown below. Case study A and another v Secretary of State for the Home Department (2004) The House of Lords declared that the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the ECHR. The Act allowed foreign nationals to be detained indefinitely without trial where there was suspicion that they were involved in terrorist activity. The Lords held that this breached both Article 5 (the right to liberty) and Article 14 (no discrimination on basis of nationality). This decision forced the government to change the la

Question 35

Outline a solictor’s role IN CRIMINAL CASES ONLY

Answer 35

• A solicitor might initially meet a client who has been arrested, in the police station, though it is more likely now that a solicitor will have a telephone consultation rather than a face-to-face meeting.
• In indictable or serious triable-either-way cases. they may sit in on police interviews. If the police press charges, the solicitor will obtain details of the prosecution case (known as disclosure) and advise the client on the strength of the evidence. The solicitor can brief a barrister and support them in the crown Court.
• In summary or less serious triable-either-way cases a client may have been issued with a summons by post and the initial meeting will take place in the solicitor’s office or at the first court appearance. They can carry out the advocacy in Magistrates Court.

Question 36

Outline a solicitors’ role IN CIVIL CASES ONLY

Answer 36

Generally, a solicitor will be the first source of legal advice. The solicitor’s role is to: • collect evidence, both documentary and oral • prepare and issue court papers if the case is straightforward • carry out advocacy, usually in the County Court • instruct a barrister to advise on the case if it is more complex, to draft the court papers and to carry out the advocacy • support the barrister throughout the case, including obtaining any further evidence.

Question 37

What are the three advocacy certificates a legal executive can obtain?

Answer 37

There are three different advocacy certificates a legal executive can obtain:
1. A Civil Proceedings Certificate: this allows appearances in the County Court.
2 A Criminal Proceedings Certificate: this allows legal executives to make applications for bail or deal with cases in the Youth Court.
3 A Family Proceedings Certificate: this allows appearances in the Family Court of the Magistrates’ Court.

Question 38

How can a solicitor become a Queen’s Counsel?

Answer 38

Solicitors with an advocacy qualification, and who litigate in the higher courts, are able to apply to become a Queen’s Counsel (QC) in the same way as barristers.