Paper 1 - The Legal System & Criminal Law: Section A - The Legal System Flashcards
(228 cards)
1
Q
What are the two main criminal courts in England and Wales ?
A
Magistrates Court and Crown Court
2
Q
What do Magistrates Courts deal with?
A
They deal with around 97% of criminal cases. Magistrates, who are often lay people, handle less severe crimes like summary offences. No jury.
3
Q
What do Crown Courts deal with?
A
They handle serious cases like murder, rape, robbery. Cases are decided by a judge and a jury of 12 people.
4
Q
Definition of jurisdiction
A
The right and power to interpret and apply the law
5
Q
Definition and examples of summary offences
A
Minor crimes such as driving offences, minor assaults and minor criminal damage (under £5,000). Tried in Magistrates’ Court.
6
Q
Definition and examples of either-way offences
A
Mid-level crimes like theft and burglary. Can be tried in either courts depending on the seriousness of the crime.
7
Q
Definition and examples of indictable offences
A
Serious crimes such as murder, rape, manslaughter, robbery, and s.18 GBH. Automatically tried in the Crown Court.
8
Q
What does the Court of Appeal do?
A
hear appeals against the convictions
9
Q
What the Supreme Court?
A
Most senior court, most complex or important cases
10
Q
How many Magistrates Court are there in England and Wales?
A
There are 160 Magistrates Court in England and Wales
11
Q
How is it decided which Court either-way offences are tried?
A
The defendant may chose where to be tried or the magistrates may decide to send the case to the Crown Court if they feel their sentencing powers are insufficient e.g. assault casing actual bodily harm (ABH), criminal damage over £5,000
12
Q
Preliminary Hearings for Indictable Offences
A
Indictable offences are first brought to the Magistrates Court for administrative purposes like bail or legal aid but the actual trial is held in the Crown Court.
13
Q
The Magistrates Court has limited sentencing powers. What can they impose?
A
They can impose a maximum of 6 months imprisonment for a single offence and a £5,000 fine for individual offences though this may vary for certain offences.
14
Q
What other powers do the Magistrates Court have?
A
They also handle some civil matters like licensing and family law issues. Magistrates can issue search and arrest warrants and hear applications for bail.
15
Q
The Crown Courts hears appeals from the Magistrates Court. What can this include?
A
This can include appeals against convictions or sentences made in the Magistrates Court.
16
Q
What powers do the Crown Court have?
A
They have unlimited sentencing powers meaning they can impose any sentence available under the law including life imprisonment and unlimited fines.
17
Q
Crown Court trial process
A
Cases are heard by a judge and jury in the Crown Court. The jury determines guilt or innocence, while the judge determines the appropriate sentence based on the law and guidelines.
18
Q
Pre trial procedures - summary offences
A
When the defendant pleads guilty, the magistrates will go ahead with the case and decide sentence when needed. When the defendant pleads not guilty, the magistrates must hear the case; try and discover the issues involved in the case, so it can proceed efficiently.
19
Q
Plea before venue - either-way offences
A
The defendant is asked whether he pleads guilty or not guilty. If he pleads guilty he has no right to go to the Crown Court but the magistrates may send the case there for a sentence.
20
Q
Mode of trial procedure - either-way offences
A
If the defendant pleads not guilty, mode of trial proceedings take place to decide where the case will be tried. The magistrates will consider the seriousness of the case, powers of sentencing, complexity of law and fact. If the magistrates decide to hear the case, then the defendant can chose to have a trial by jury at the Crown Court or in the Magistrates Court. The defendant has a right to trial by jury in all triable either-way offences.
21
Q
Committal proceedings - either-way offences
A
Where the triable either-way offence is to be heard in the Crown Court, then Committal Proceedings take place in the Magistrates Court. All prosecution evidence must be loaded to the court in the written form. The defence can then claim that there is insufficient evidence for the case to be sent to the Crown Court. If this happens then the evidence is read to and defence can make oral statements. The magistrates then decide to send the case to the Crown Court for trial. Where there is no dispute then committal proceedings area formality and cases are sent to the Crown Court for trial.
22
Q
Pre-trial procedure - indictable offences
A
The first hearing is for such offences in the Magistrates Court. All other pre-trial and case management issues are dealt with by a judge in the Crown Court. At the Crown Court, they will exclusively deal with trying indictable or either-way offences. They can also sentence offenders where the magistrates sentencing powers are limited. They also hear appeals from the Magistrates Court regarding conviction or sentence.
23
Q
Indictable offences
A
First Appearance at the Magistrates Court to sort legal aid and bail. Plea before venue and committal proceedings at the Magistrates Court. Guilty plea - results in the case being committed to the Crown Court for sentencing. Not guilty plea - results in the case being committed to the Crown Court for trial by judge and jury. Set date for trial.
24
Q
Magistrates Court advantages
A
Speed - quicker for a case to come to trial, shorter trial
Lower possible penalties - 6 months/ £5,000
Local courts - magistrates are local and know local issues
Cost - it’s cheaper for trials at this court
Workload - magistrates deal with 97% of criminal matters. Without them the legal system couldn’t cope.
25
Magistrates Court disadvantages
Higher conviction rate - 85% are convicted at the Magistrates Court
Transfer to Crown Court - this could mean that the defendant may be given a higher penalty
26
Crown Court advantages
Lower conviction rate - compared to the Magistrates Court - the acquittal rate here is about 60%
Better advocates - likely to represented by barristers
27
Crown Court disadvantages
Higher penalties - unlimited sentences or fines can be given
Waiting time - can take months for the trial
Cost - more expensive for the trial here - cost of barristers too
Publicity - more chance of case highlighted in the press
28
The Criminal Appeals System
The Prosecution and the Defence can appeal, the parties can appeal their sentence and the parties can appeal their conviction. Can only appeal if it's an important point of law and it's been certified.
29
What are lay magistrates?
A long established principle of English law is that a person has a right to be tried by his peers. In the Crown Court this means trial by jury and in the Magistrates Court it means a trial by magistrates also called Justices of the Peace.
The office of Justice of the Peace dates back to the 12th century, now there are over 17, 500 lay magistrates sitting as part-time judges in the 240 Magistrates Court in England and Wales.
30
6 key qualities of a lay magistrate
- good character
- social awareness
- sound judgement
- maturity and sound temperament
- understanding and communication
- commitment and reliability
31
Formal requirements to be a lay magistrate
1. 18-65
2. Local justice area
3. 26 half days
and all magistrates have to take an Oath of Allegiance
32
Ineligibility of being a lay magistrate
- undischarged bankrupts
- serious criminal convicts
- members of the armed forces
- police officers, traffic wardens
- relatives of those working in the criminal justice system
33
How many lay magistrates sit together?
What is it called when a magistrate is sat by themselves?
What do they have to be qualified as before being appointed?
Where are they appointed?
Lay Magistrates usually sit as a bench of three.
When a magistrates is sat on their own it's known as District Magistrates.
They have to be qualified as solicitors or barristers and must have at least 5 years rights of audience before appointment.
There are only appointed to courts in major cities such as London, Manchester, Liverpool and Birmingham.
34
Before becoming a full time judge they have to do what?
What does the District Judge have responsibility for?
Why doesn't the need the help of a court clerk?
Before becoming a full time judge they will normally have sat part time to establish suitability.
The District Judge has full responsibility for both law and fact.
He doesn't need help of the clerk so cases can be dealt with more quickly than with bench of unqualified lay magistrates.
35
Who appoints Magistrates?
Who can delegate these powers?
To appoint who does the judge rely on recommendations from?
On behalf of the queen, the Lord Chief Justice appoints Magistrates.
The Lord Chief Justice can delegate these powers and currently has delegated these powers to the Senior Presiding Judge.
In order to appoint, the judge relies on recommendations by Local Advisory Committees who selects new magistrates.
36
What do Local Advisory Committees consist of?
How has Lord Chancellor has tried to broaden the composition of the bench?
What is the aim of a panel of magistrates?
Local Advisory Committees mainly consist of ex J.P's with a maximum of 12 members, but should include non-magistrates. Any person may not out their name forward form appointment, but people are often nominated by local political parties, trade unions, or chambers of commerce.
The Lord Chancellor has tried to broaden the composition of the bench by encouraging newspaper adverts, sometimes aimed at particular ethnic groups, publicity on local radio etc., so a person can put in their application.
The aim is to get a panel of magistrates representing all aspects of society. This should include a political, occupational, gender and racial balance. Once the application is submitted, before appointment, the advisory committee will interview those nominated.
37
Lay Magistrates Interview Stage
1st interview: 1. the panel find out about the person's attributes
2. look out to see if they have the 6 key qualities
3. find out about their attitudes to certain criminal
justice issues
2nd interview: 1. test out the candidates' judicial aptitude by looking
at 2 judicial case studies
2. the candidate will be expected to suggest an
appropriate sentence based on the facts
38
Why can Lay Magistrates be removed or retire?
- for incapacity and misbehaviour
- persistent failure to meet the standards expected
- declining or neglecting to exercise the functions of a JP
39
What is the Magistracy meant to do as a whole?
What is a major criticism of the Magistracy?
What were most supporters of?
What happened to two fifths of them?
The Magistracy is meant to reflect the wider composition of society as a whole.
A major criticism is that in fact it's 'middle class, middle aged and middle minded'.
Most were supporters of the Conservative Party.
Two fifths were retired due to age.
40
What percentage of judges are women?
What percentage of judges are ethnic minorities?
What percentage of magistrates are under 50?
42% of all judges are women and 26% are sitting in retirement.
11% of all judges are ethnic minorities.
18% of all magistrates are under 50.
41
Describe the training of Lay Magistrates.
1. Initial Introductory Training - covering matters like understanding the organisation of the bench, the role and the responsibilities of there in the Magistrates Court.
2. Core Training - acquiring and developing key skills and knowledge.
3. Activities - observing court sittings and visiting prisons and the probation service.
42
What happens the first two years a new magistrates is sat in court?
What happens after the first two years a new magistrates is sat in court?
What happens if they don't have the acquired the competencies?
During the first two years that the new magistrate is sat in the court, some of their court sessions will be mentored. At the same time, they are expected to have attended extra training sessions.
After 2 years, an appraisal will take place to check if they have acquired the competencies.
If they haven't extra training will be given, and if after that it's felt that still haven't achieved the competencies then the matter will be referred to the LAC who may recommend to the Lord Chancellor that the Magistrates is removed from sitting.
43
Who are Lay Magistrates assisted by in court?
What's the role of the clerk?
Lay Magistrates are assisted in court by a legally qualified clerk who has to be a qualified solicitor or barrister for at least 5 years.
The role of the clerk is to advise and explain to the magistrates the relevant points of law and legal procedure. They also give advice on possible sentencing options.
They also deal with some administrative matters: they prepare the court sessions and make sure that all relevant paperwork and exhibits are ready, reading changes to the court. They now have the power to issue arrest warrants and to extend police bail without magistrates.
44
What isn't the clerk meant to be apart of?
The clerk isn't meant to be apart of the process of deciding guilt or innocence in a case. It's felt that in some cases the clerk gets too heavily involved in areas where the magistrates alone should be reaching decisions.
45
CASE: R v Eccles Justices (1989)
In R v Eccles Justices (1989), the Queen's Division Bench ruled that the magistrates' decision couldn't stand because the legal advisor had acted outside of his powers when he retired with the magistrates and spent 25 of the 30 minutes with them. This suggested that he participated with their decision making process.
46
What courts use juries?
Crown Court, High Court, County Court, Coroner's Court
47
Why does the Court of Appeal not use a jury?
Court of Appeal is an appeal against law so no jury
48
What are the Jury Qualifications?
1. 18-75
2. Residents in the UK or Channel Islands for 5 years after the age of 13
3. Registered elector
49
What are the Jury Disqualifications?
Disqualified for life - if sentenced to life imprisonment, an extended sentence, sentenced for public protection or sentenced to 5 years
Disqualified for 10 years - if in the last 10 years you have served any kind of sentence less than 5 years, any period of community order or received a suspended sentence
If a person is currently on bail
50
What happens if you don't disclose that you are on bail and sit in the jury?
If you don't disclose that you are on bail and sit in the jury, you will be fined £5,000
51
What are the reasons for ineligibility?
1. Mentally disordered
2. Those who lack in capacity - deaf, blind
3. Those who can't understand or speak English
52
Who can be excused from the jury service?
If you're a full time serving member of the forces you're excused from the jury service.
53
What are reasons for deferrals?
- suffering a disability
- pregnant/ mums that have new-borns
- business appointments
- being too ill to attend
- examinations
- a booked holiday
54
What happens if you don't attend jury service?
If you don't attend jury service, you will be fined £1,000
55
Who is responsible for the selection of jurors?
What is the jury summons prepared on and who is it dealt with by?
How long would those selected to be called to sit for?
How long does the average trial last for?
The Crown Court is responsible for the selection of jurors at random from the electoral register.
The jury summons prepared on a random basis by a computer and it's dealt with by the Jury Central Summoning Bureau.
Those selected will be called to sit for two weeks.
The average trial lasts about a day and a half but they may have to sit for several months in long fraud trials.
Jurors may be called to sit on more than one trial which may mean more then one per day.
56
Where do jurors go once they go to court?
Once jurors reach the court, they go to assembly area. This is a room in the courthouse where jurors have to check in and have the identity confirmed. They are shown a DVD explaining their role and what happens in the courtroom.
57
What happens when the court is ready to select a jury?
How many people are usually called forward?
Who will the jury be kept apart from?
When the court is ready to select a jury, there is then another random element in the selection of the individual trial for which that juror may be involved. A court official chooses this group of people.
Usually 15 are called forward to the courtroom, to keep the random selection going.
At all times the jury will be kept apart from lawyers, witnesses and all other people involved in the trial.
58
Jury Vetting
1. a police check on prospective jurors to eliminate more disqualified because of criminal convictions.
2. a wider background in cases of national security or terrorist cases.
59
Jury Challenges
in the array - challenging the whole jury as it's unrepresentative or biased. Used successfully against the 'Romford' jury at the Old Bailey. 9 members were from the same area, with 2 living 20 down from each other.
for cause - challenging an individual juror as they may be disqualified or are prejudiced. Can be used if a juror knows the defendant or any witnesses, or related to the victim.
prosecution right to stand by - can only be used by the prosecution, allowing a juror who has stood by to be put at the end of the list of potential jurors. The AG stated that this should be used sparingly.
60
What does a jury do in a criminal case?
- listen and look at evidence presented in court
- listen to judge's summing up of the facts of the case and the law
- decide guilt and innocence
- only decide based on the facts and apply the law as the judge directed
- decide in secret
- don't give reason for their decisions
61
Majority verdicts
- where there are 12 jurors a 10-2 or 11-1 verdict can acquit or convict
- if the jury has fallen below 12 then 10-1 or 9-1 will suffice
- if the jury has fallen to 9, all 9 must agree - a jury cannot go below 9
62
R v Ponting (1985)
A civil servant was charged under the s2 of the Official Secrets Act 1911. He had leaked information on the sinking of a ship in the Falklands war to a Member of Parliament. At his trial, he pleaded not guilty, claiming that his actions had been in the public interest. The jury refused to convict him even though the judge ruled he had no defence. Showing that the jury may use fairness and justice to ignore the actual laws or the judge's direction.
63
R v Kronlid (1916)
Three protestors were charged with causing criminal damage of £1.5 million to a Hawk jet plane that had been bought by the Indonesian government and was due to be sent there. The defendants admitted that they had done the damage but claimed that they had a lawful excuse for their actions. They claimed that the jet was going to be used against the civilian population in the East Timor region of Indonesia as apart of an alleged genocidal campaign against the people of East Timor. The jury sympathised with he defendant's view and found them not guilty.
64
R v Young (1995)
The defendant was charged with the murder of two people. The jury had to stay in a hotel over night as they hadn't reached a verdict by the end of the day. At the hotel, four jurors used a Ouija board to try and contact the dead victims and ask them who had killed them. The next day the jury returned a guilty verdict. When the use of Ouija board become known, the Court of Appeal quashed the conviction and ordered a retrial.
65
R v Karakaya (2005)
The defendant was accused of rape. A juror carried out an interest search at home and brought into the jury room the printed - out results of the search. The jury convicted Karakaya but this conviction was quashed because of the outside information that the jury had access to during their deliberations. A retrial was ordered and Karakaya was acquitted by the jury in the second trial.
66
R v Taylor and Taylor (1993)
Two sisters were charged with murder. Some newspapers published a still from a video sequence that gave a false impression of what was happening. After the jury convicted the two defendants, an appeal has made on the grounds of the possible influence this picture could've had on the jury's verdict; the Court of Appeal quashed the convictions.
67
R v Mirza
Two doctors were convicted of gross negligence manslaughter. Their post - operative patient became infected with an infection that was left untreated.
68
What are the Advantages of the Jury?
Public Confidence - Lord Devlin said that jurors are the 'lamp that
shows that freedom lives'. People have the
confidence in an impartial and fair trial -> CASE: Kronlid
Jury equity - acquittal rates are 60% at the Crown Court
Open Justice - allows the ordinary person to take part in justice - 'trial
by peers' is achieved. CASE: Ponting, Kronlid and Blythe
Secrecy - it has been suggested that people would be less willing to
serve on a jury if they knew that their discussions would be
made public. CASE: Mirza, but expectations to Young and
Karakaya.
Impartiality - juries are less case- hardened and can decide the case
based on the facts.
69
What are the Disadvantages of the Jury?
Perverse decision - juries can make the wrong decision. CASE:
Ponting, Kronlid and Blythe.
Lack of understanding - 10% of jurors admitted to having difficulty
understanding the case. CASE: In one case at
the Crown Court, the jury after they had
retired to consider their verdict sent a note
to the judge asking what they ad to do. The
judge discharged the jury from that case.
Secrecy - Mizra but expectations for Young and Karakaya (case)
Acquittal rates: there are now government concerns into High
Acquittal rates
Media Influence: Taylor and Taylor (case)
70
What are the 5 Aims of Sentencing?
- The punishment/ retribution of offenders
- The reduction of crime through deterrence/ denunciation
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparations by offenders to person affected by their
offences
71
What is Retribution?
Retribution is based on the idea that the D deserves punishment if they don't seek to reduce crime or alter offender's behaviour
72
What are Retribution sentences based on?
Retribution sentences based on the idea that each offence has a set tariff e.g. 25 years imprisonment to £500 fine.
73
What is Denunciation?
Denunciation is society expressing disapproval of criminal activity. Reinforces moral boundaries of acceptable conduct.
74
What should Denunciation sentences reflect?
Denunciation sentences should reflect on the blameworthiness of the offence.
75
What is Incapacitation?
The offender is made incapable of committing further crimes. Society is protected from crimes.
76
What are Incapacitation sentences?
Long term prison sentences. Others used here are electronic tagging, driving bans, exclusion orders and curfew orders.
77
What is Deterrence?
Deterrence is a sentence will be well above the norm. Prisons sentences, a heavy fine or a long custodial sentence as an example to others.
78
What is an Individual Deterrence?
The offender is deterred through fear of future punishment
79
What is General Deterrence aimed at?
General Deterrence is aimed at preventing other potential offenders from committing crimes. Aimed at reducing future levels of crime.
80
What is Rehabilitation?
To reform the offender and rehabilitate them back into society. It is a forward-looking aim with the hope that the offender's behaviour will improve.
81
What are Rehabilitation sentences?
Individualised sentences or community sentences - aimed at the needs of the offender
82
What is Reparation?
Making amends - aimed at compensating the victim of the crime or to compensate society as a whole.
83
What are Reparation sentences?
Compensation orders and unpaid work in the community
84
What has research showed?
Research shows that long prison sentences have little impact on crime. Time in prison can actually make someone more likely to commit crimes - by further exposing them to all sorts of criminal elements.
85
Aggravating Factors of the offence
- Previous convictions of similar nature or relevant to present offence
- Offending while on bail
- Crime involving violence or use of a weapon
- Hostility towards race or religion
- Hostility towards sexual orientation or disability
- Attacking a vulnerable person(s)
- Premeditation
86
Mitigating Factors of the offence
- Co-operation with the police
- Remorse
- No previous convictions
- Mental illness of D
- Physical illness of D
- Early guilty plea
87
Background of the D: What happens if the D has previous convictions?
If the D has previous convictions for the same or similar type of offence then he is likely to receive a heavier sentence.
88
Background of the D: What type of reports will be prepared and who will prepare them?
Reports will be prepared by the Probation Service on D's background, why he committed the offence and their attitude. A medical report could also be prepared if the D is ill.
89
What do Sentencing Guidelines do?
They give a starting point for an offence, factors they should consider and a sentencing range.
90
What are the different types of sentencing?
* custodial sentencing - taken into custody
* community orders - e.g. community service like litter picking
* fines
* discharges - not given a sentencing (only a warning)
* imprisonment
91
Custodial sentencing: Mandatory life:
- used for murder
- however, the judge can state a minimum term
- 'starting points' range from a full life to 12 years
- aggravating/ mitigating circumstances can be taken into account
92
Custodial sentencing: Discretionary life:
- used for offences such as manslaughter, rape, robbery or GBH s.18, where the maximum sentence is life.
-but judge doesn't have to impose it
- judge has discretion in sentencing and can impose a lesser sentence.
93
Fixed Term Sentences:
- imprisonment for a fixed number of years or months is called a 'fixed term' sentence
- prisoners don't serve the whole sentence passed
- they are automatically released after they serve half the sentence - but will be on licence.
94
Suspended Sentences
- an adult offender can be given a suspended sentence of up to 2 years
- so sentence doesn't take effect, as sentence is suspended, and if offender offends, the sentence will be 'activated'
95
Types of community orders:
- unpaid work: between 40 - 300 hours on a project run by the probation service. Hours are fixed by the court. Work done in 8 hour sessions.
- curfew: offender to remain at fixed address for 2 -16 hours of a 24 hour period. Order to last up to 6 months, reinforced with tagging.
- supervision: supervised for up to 3 years, offender must meet supervising officer for appointments.
96
What is Absolute Discharge?
Absolute discharge is where the court allows the defendant to be free, without any formal sentence, but it acts as a warning and the defendant WILL have a criminal record.
97
What is Conditional Discharge?
Conditional Discharge is where the court allows the defendant to be free on the condition that they don't re-offend during 3 years, the defendant WILL have a criminal record.
98
Prison Population over the years:
* increased over the last 60 years
* 1951 -only 50 per 100,000 people in prison
* 2001 - 136 per 100,000 people in prison
* 2004 - highest rate of prison population in Europe
* Criminal Justice Act 2003 introduced community orders to avoid
custodial sentences
* 2011 -still the highest prison population in Europe
99
Reoffending Statstics:
- 55% of adults reoffend within 2 years
- 44.75% reoffend within 1 year
- 59.7 % reoffend within 1 year when they have served less than 12 months
- 32.4% of adults reoffend within 1 year after they have served community orders
- 70% of young offenders reoffend within 2 years
100
Info about women and sentencing
• approximately 82,000 men v 4,000 women (2016)
• Fawcett Society critical of women being given custodial sentences, stating:
1. Inappropriate
2. Damaging to women
3. Damaging to their families
4. Ineffective
101
What the difference between The Queen's Bench Division and The Chancery Division?
The Queen's Bench Division has a single judge, jury only for fraud, libel, slander, malicious prosecution and false imprisonment whereas The Chancery Division has a single judge and no jury.
102
Why should going to court be the last resort?
- costs
- complex issues
- delays
- try to resolve problem themselves
103
What are the two main civil courts?
- County Court
- High Court
104
What cases does the County Court deal with?
Contract, Tort, Recover of Land, Disputes over equitable matters such as trusts - up to £350,000, Divorce and associated matters, Bankruptcy
105
When does an action take place in a Civil Court?
An action takes place in a Civil Court ( the County Court or the Hugh Court) when a person or business believes that their rights have been infringed and they are due compensation or some other remedy.
106
What is compensations?
Compensation is the amount of money claimed to make good the loss or damage to the claimant.
107
What do judges do in the High Court?
Judges will be assigned to 1 of 3 Divisions. Judges read case papers before hearing and hears evidence + legal arguments in court. At the end of the hearing the judge will decide: liability (which sides wins), compensation payable (if any), any other remedy requested e.g. eviction notice, who should pay the costs of the case
108
What are the 3 Divisions of the Hugh Court?
1. The Queen's Bench Division
2. The Chancery Division
3. Family Division
109
What division is the largest of the three?
The QBD is the largest of the three divisions
110
What does the QBD have to hear the cases?
It has a jurisdiction to hear a wide variety of cases including contract + tort claims over £100,000 and small claims where a complicated issue of law is involved.
111
What do specialist courts hear?
Where are the case stated at appeal in criminal cases decided at?
Several specialists courts like Circuit Commercial Courts and the Administrative Courts which hears applications for judicial review and applications for habeas corpus, case stated appeals in criminal cases decided at the Magistrates Court or Crown Court.
112
What does the jurisdiction in the Chancery Division deal with?
Jurisdiction has to deal with: disputes relating to business, property or land whereover £100,000 is in issue, disputes over trusts, contentious probate claims, disputes about partnership matters.
113
What are the specialist courts in the Chancery Division?
Specialist courts of the Chancery Division include the Insolvency and Companies List.
114
In the Family Division where are the cases usually heard?
Cases are generally heard in private as they are often sensitive matters.
115
What cases do they hear in the Family Division?
The jurisdiction hears cases where a child is to be made a ward of the court and cases relating to the welfare of children, cases with a foreign element such as international child abduction, forced marriage etc, appeals from lower courts such as Family Proceedings Court.
116
What convention are family matters under?
Family matters are under the Hague Convention.
117
How to start a civil case?
- Negotiate an agreed settlement with the person who has caused their injuries or damage to their property.
- Attempted to use another method of resolving their dispute called Alternative Dispute Resolution.
118
What are Pre- Action Protocols?
- A list of things to be done e.g. sending a letter to the D explaining why the claim is made, details of injury, damage and other matters relevant
- attempt to negotiate
- use an ADR method to try and resolve dispute
119
County Court claims
- claim for £100,000 or less
- personal injury claim for £50,000 or less
120
High Court claims
- claim over £100,000
- personal injury claim over £50,000
121
What our the possible outcomes for defending a claim?
1. The defendant may admit liability and pay the full amount
2. The defendant may dispute the claim. If they defend the claim, they must lodge this with the court within 14 days
3. The defendant may do neither and the claimant may ask for an order in default
122
What is the Three Track System and what does it include?
Small Claims Track - disputes under £10,000
- personal injury claims less than £1,000
Fast Claims Track - 30 to 50 weeks
- straight forward disputes of £10,000 to £25,000
Multi Track - cases over £25,000 or for complex cases under this value
123
What were the findings of the Woolf Report?
The Civil Justice System was:
- unequal in terms of who could use the courts
- expensive
- slow
- uncertain
- complex
124
What are the Advantages of using the Civil Court?
* Fair - judges are impartial and the process is fair, treating everyone equally
* Legal Experts - trial is conducted by a legal expert with decisions made by judges who are legally qualified
* Enforcement of Decisions - enforcing the decision is easier as it is made by the court and can be enforced by the courts too
* Appeals Process - specific appeal routes are available if the claimant or defendant isn't happy with the outcome
* Legal Aid - may be possible to get legal aid but budgets for this has been considereably reduced
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What are the Disadvantages of using the Civil Court?
* Cost - cost of the court case can be more than being claimed. High Court cases can be hundreds of thousands of pounds
* Delay - lots of preliminary stages to go through, even after allocation waiting time is long - taking years to complete
* Complicated Process - pre trial stages such as pre- action protocols are complicated, rules governing forms and procedures can be complex for the lay person to understand
* Uncertainty - no guarantee of winning, loser must pay winner' costs and so uncertainty as to now the case will proceed and cost
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What are Employment Tribunals apart of?
Employment Tribunals are part of a wider system of tribunals which work alongside the court system
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Who were Employment Tribunals created by?
They were created by the Industrial Training Act 1964 but are now governed by a mixture of primary legislation (The Employment Tribunals Act 1996) and secondary (The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013)
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What do Employment Tribunals provide an alternative for?
They provide an alternative system of adjudication to more formal civil court proceeding
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Who do Employment Tribunals heard disputes between?
Employment Tribunals hear disputes between employees and employers where the employee thinks they have been treated unlawfully
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Who are members of Employment Tribunals?
1. A Legally Qualified Chair
2. A representative of employers
3. A representative of employees
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Pre- Trial Procedures for Employment Tribunals: What are the three types of claims?
The claim needs to be 1 of the 3 types of claims that can be heard in an Employment Tribunals. They are: Unfair Dismissal, Discrimination and Unfair Deductions from Pay.
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Pre- Trial Procedures for Employment Tribunals: Who must the claimant tell to make a claim to the Tribunal? Who will offer the chance to settle?
The claimant must tell the Advisory, Conciliation and Arbitration Service (ACAs) that they intend to make a claim to Tribunal. ACAs will offer you the chance to settle the dispute using ACAs' free 'Early conciliation' Service.
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Pre- Trial Procedures for Employment Tribunals: What happens if conciliation works and doesn't work?
Conciliation works -> claim is settled without the need to go to a tribunal. Conciliation doesn't work -> ACAs sends C an early conciliation certificate. C has at least one month left to make their claim.
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The Preliminary Hearing for Employment Tribunals: what does the judge have to decide?
C may be asked to go to a Preliminary Hearing with the Judge to decide:
- whether part of all C's claim can go ahead
- the date and time of a hearing
- how long the hearing should take
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Who can ask for documents?
If C or R have to wants to use witnesses to give evidence what do they have to do?
C can ask the respondent for documents e.g. a contract of employment, pay slips etc. The respondent can also ask C for documents. If C or R wishes to use witnesses to give evidence, they must organise their witnesses. If the witnesses don't want to come, they can ask the tribunal to order them to.
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Going to the Tribunal Hearing for Employment Tribunals: what happens?
Cases are normally held at the employment tribunal office closest to where the C worked. Both parties must take the documents they are using to support their case to the hearing. For the claimant, this will include the early conciliation certificate.
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The Hearing for Employment Tribunals
The C (or their representative) and any witnesses the C has will present their case in the form of a written witness statement first (unless the case is about Unfair Dismissal). The Tribunal panel will read this and then the employer or their representative will ask the C (and witness) questions about their statement (known as cross examination)
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The Hearing for Employment Tribunals
Then the Respondent (R) will present their case and evidence against the C. This is done in the same manner and the C or their representative can cross examine the R and any witnesses they may have called forward. During the cross examination against both the claimant and the respondent, the Judge is also able to ask questions.
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The Result, Fees and Penalties
* The decision is posted to the C and R a few days or weeks after the hearing.
* Whoever loses the claim has to pay the other sides fees as well as their own. This could include: cost of solicitors for BOTH sides, any witnesses expenses on BOTH sides.
* If the loser doesn't pay, the winner can ask to have them fined and named online by the government. The winner can also ask the court to fine them to pay.
The loser can appeal to the Employment Appeal Tribunal ((EAT) if they think a legal mistake was made in the case. If the loser of the case wants to appeal they must do so within 42 days after the decision, and reasons for that decisions were lent to them.
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What are the different types of Alternative Dispute Resolution?
- Negotiation, Mediation, Conciliation, Arbitration
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What is 'Negotiation'?
- Anyone who has dispute with another person can revolve it directly with them via negotiation.
- It is completely private, and is the quickest and cheapest method of setting a dispute.
- Some parties may need a solicitor to negotiate on their behalf, this will incur some costs
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What are the Advantages of Negotiation?
- cheaper and quicker than going to court, parties can conduct negotiation themselves
- both parties control the way to resolve the dispute rather than hand it to the courts
- privacy
- avoids bad feeling between parties and therefore able to continue business relationships and can make and agreement about future business deals
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What are the Disadvantages of Negotiation?
- no grantee that negotiation will work then litigation may be necessary
- solicitor will add to costs
- will not work unless both parties are willing to co-operate & could go on for a long time
- agreement isn't binding
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What is 'Mediation'?
- this is where a neutral third person (mediator) helps the parties to reach a compromise solution - the parties clearly need to co-operate.
- the mediator's role to consult with each party and see how much common ground there is between them
- she/ he will explore the position of each party and take each of their needs and carry offers to and fro, while keeping confidentiality
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What is 'Conciliation'?
- a neutral 3rd party helps to resolve dispute (similar to mediation)
- conciliator will usually play amore active role
- she/ he will b expected to suggest grounds for comprise, and the possible basis for a settlement
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What are the Advantages of Mediation/ Conciliation?
- less formal and doesn't have to follow the strict 'letter of the law'
- avoids adversarial process of court & maintains working relationships
- maintains a sense of control and can choose method of mediation
- agreements likely to last as a compromise and in a sense of 'everyone wins'
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What are the Disadvantages of Mediation/ Conciliation?
- no guarantee that dispute will be resolved, and so litigation may be necessary
- settlements are often considerably lower than those awarded by the courts
- unless mediator has necessary qualities - mediation can turn into a bullying exercise
- weaker parties may not stand up for their own rights
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What is 'Arbitration'?
- a voluntary submission of the parties, who agree to submit their claims to private arbitration
- an arbitrator, or a panel of arbitrations makes a judgement on the parties' dispute
- such an agreement is usually done in writing, and the way in which arbitration is carried out is left up to the parties themselves
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What are the Advantages of Arbitration?
- the parties can choose their own arbitrator & appointing a technical expert if appropriate
- if there is a question of quality, an expert can decide saving the need to call for an expert witness
- the hearing time and place can be arranged to suit parties
- the procedure is flexible & parties can choose the most suited situation
- if it's private and there will be no publicity
- dispute resolved more quickly
- cheaper than court
- award is final and can be enforced by the courts
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What are the Disadvantages of Arbitration?
- unexpected legal points may arise which aren't suitable for discussion by a non-lawyer
- a professional arbitrator's fee may be expensive
- the cost of a hearing may be expensive, especially if it is formal
- rights to appeal are limited
- weaker parties may not stand up for their own rights
- delays can occur for commercial and international arbitration just as much as courts
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What are the 3 main problems that an ordinary person seeking legal advice would come across?
For the ordinary person seeking legal assistance there are 3 main problems:
1. Lack of Knowledge – of their nearest solicitor or which specialises in the area of law they need
2. Fear of dealing with lawyers
3. Cost – solicitors can charge from £150 to over £600 and hour for work
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What is it called when someone can't get the help they need?
When a person cannot get the help they need, it is said that they ae being denied access to justice.
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What does 'Access to Justice' mean?
1. Gaining an open system of justice
2. Being able to fund the costs of a case
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What is an example of a scheme to make the law accessible?
The Operations of Citizens' Advice Bureaux.
It started in 1938 and is available in most towns.
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What may prevent a person from seeking justice?
Costs as it could cost hundreds and thousands all together
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What was set up in 2012?
In 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) set up the Legal Aid Agency.
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What are the main services that the LASPO offer?
- legal help under which advice can be given
- legal representation which gives full legal services for the whole case
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What is Civil Legal Advice (CLA)?
CLA is a government funded scheme providing advice in civil cases.
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What can the CLA help lines, help with?
Debt – if your home is at risk
Housing – homeless or risk of being evicted
Domestic abuse
Family issues – if your child is taken into care
Special education needs
Discrimination
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How many people rang the CLA telephone service in 2015 -2016?
From 2015 - 2016, nearly 160,000 people rang the CLA telephone service.
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Who does the Legal Aid Agency have contracts with?
The LAA has contacts with law firms and non profit organisations such as some Citizens Advice offices
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Under the contracts who can give free advice to?
Under these contracts they can give free advice to people on lower incomes. However, the income limits are very low. No one above these limits can use any if these services.
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Anyone held as a suspect at a police station has the right to free legal advice. This is a duty solicitor scheme available 24 hours a day. This is a government funded service.
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In 2016 advice was given to over 650,000 suspects at police stations. The advice may be by telephone or face to face. This is no means test for this service.
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The funding for legal aid comes from the government's budget. This means that a set amount is made available each year.
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The amount set has to be considered against all the other claims on the budget, such as hospitals, health care and education. As a result, the government cannot afford to make legal aid available to everyone.
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LASPO 2012 gave the Lord Chancellor the power to set criteria for making civil legal aid services available. It sets out the factors the LC must consider when setting the criteria.
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What are the factors that LC must consider when setting the criteria?
- The likely cost of providing the services and the benefit which may be obtained by them
- Availability of resources to provide the services
- The importance of the matters to the person
- The availability of other services such as mediation
- The individual’s prospect of success in the dispute
- The public interest
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What do you have to do to qualify for Civil Legal Aid Services?
There is a means test which needs to be passed in order to qualify.
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Under LASPO 2012, the staring point is that legal aid is not available for civil cases unless it is a category specifically mentioned in the Act or other regulations.
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The types of cases for which legal aid is allowed include those involving children's rights and those involving liberty of the individual. This includes cases being heard at Mental Health Tribunals as these are about whether a person should continue to be detained in a mental hospital and cases involving asylum.
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This means that public funding isn't available for breach of contract cases, tort claims such as personal injury, trespass to the person , to land or to property.
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What is Means Testing?
This means that anyone wanting advice or representations must show that he doesn't have enough money to pay for his own lawyer. In order
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How do you qualify for Means Testing?
Their income and capital are considered in order to qualify for means testing.
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Who automatically qualify for means testing?
People on Income Support or Income-based Jobs Seekers' Allowance automatically qualify, assuming that their disposable capital is below the set level.
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How are other people considered for Means Testing?
For all other applicants, their gross income is considered first. If a person's gross income is above set amount per month then he doesn't qualify.
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Why would someone's disposable income have to be calculated?
If the a person's gross income is below the set amount per month, then his disposable income has to be calculated
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How do you calculate someone's gross income?
It's calculated by starting with his gross income and taking away: tax and national insurance, housing costs, childcare costs or maintenance paid and allowance for himself and for each dependant.
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What happens after calculating someone's disposable income?
If the amount left after making all deductions is below a minimum level, the applicant doesn't have to pay any contribution towards his funding. If the amount left is above a maximum level, the person applying for legal help has to pay a monthly contribution. The more in excess of the minimum, the greater the amount of contribution.
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What is a disposable capital?
Disposable capital is the assets of the person, such as money in a bank or savings account, stock and shares or expensive jewellery.
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What is the maximum disposable capital to qualify for for funding?
In order to qualify for funding to take a court case, there is a maximum limit disposable capital of £8000
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What happens if his assets if over £8,000?
If the assets are over this, he must his own money to fund any legal case although once he's spent this he can become eligible for funding. Even where the disposable capital is below £8,000, he can be asked to contribute towards his case.
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What is also taken into account in deciding the disposable capital?
Where a person has his own home, this value of this is taken into account in deciding the disposable capital. This is so even they have a large mortgage. Only the first £100,000 of any mortgage is deducted from the value of the home. This means that any person can be regarded as having too much disposable capital because of the value of house, although in reality he might have no spare money.
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Criminal legal aid
Criminal legal aid services have been under the Legal Aid Agency. The LAA makes contracts with law firms to provide legal services to people charged with criminal offences. Most service providers are solicitors.
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How do you get representation at court for a criminal case?
In order to get representation at court for a criminal case, the D has to qualify under the 'interests of justice' test. There is also a means test.
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A D will only get help if they have one of the five interest of justice factors. What are they?
A D will only get help with legal fudging for representation in court if he can show that he comes within at least one of the five 'interests of justice' factors. These factors are :
1. Whether the person will lose their liberty or livelihood or damage his reputation
2. The case will involve a point of law
3. Person is unable to understand the proceedings in court
4. Case involves tracing, interviewing or expert cross-examination of witnesses
5. It is in the interests of another person that the person is represented (rape case)
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What is the other test they have to nullify for? (not the interests of justice test')
In criminal cases they have to qualify for the 'interests of justice test', there is also a strict means test in the magistrates court.
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What is the Magistrate's Court Means Test often described as?
It is often described as the 'in or out' scheme, where the applicants are either: - eligible for legal aid (because they pass the initial or full means test) or - ineligible (because they fail the initial or full means test) and are therefore expected to pay for legal representation privately.
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Who automatically pass the test?
Those who are on income support, D is under 16 and those under 18 in full time education automatically pass the means test.
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How does the the Magistrate's Court Means Test work?
For everyone else, the test starts with a first-stage simple means test which is calculated on gross annual income. If their income it too high on this test then the D doesn't qualify for legal aid. If the D's income is below a certain level, he qualifies. For those in the middle bracket, they are further means tested to calculate their disposable income and if they above the set limit, they will not get legal aid.
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Around how many adults actually qualify for legal aid in criminal cases in the magistrates courts'.
The levels allowed are very low meaning about three- quarters of adults don't qualify for legal aid in criminal cases in the magistrates courts.
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What is the difference between Magistrates Court Means Testing and Crown Court Mean Testing?
The main difference from the Magistrates' Court is that there is no upper limit on disposal income here. Most D's can receive legal aid.
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How much do people have to pay to get legal aid in the Crown Court?
It is free for those on low incomes. Those on higher incomes (but below £37,500 disposable income) have to pay towards their legal aid. Those whose disposable income is above £37,500 are ineligible for legal aid and will have to pay privately for representation in court.
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If the D has to pay, how much does he have to pay?
The higher his income, the higher the contribution he will have to pay towards the case. The maximum amount he has to pay through contributions from his income is set by the type of case. If a D is found guilty, he may also have to pay extra from his capital. If a D is found not guilty, any contributions paid will normally be refunded.
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For anyone who can afford a solicitor or barrister to deal with their legal matter. There are firms of solicitors in most towns, however if you need a specialise in an area of law than a person may have to travel for further for one. Bigger firms of solicitors work in the major cities, particularly London. Often, they specialise in commercial law and the majority of their clients are businesses.
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It can be expensive to consult a solicitor. The avergae cost for one outside of London is £150 per hour. For big firms, the charges are usually around £600 to £1,000 per hour.
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On issues of civil law, it is possible to consult with a barrister directly without going to a solicitor first. It would be cheaper for the client.
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Another way of funding a case is via insurance. Often added to motor insurance policies in the event of a road accident or even home insurance policies offer it for if a visitor was injured on your premises.
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What are the policies:
- can be 'before the event' when there is no known legal claim
- can be 'after the event' insurance where someone who is taking a case insures against losing and paying the other sides
- this type is often used with a conditional fee agreement
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Conditional Fee Agreement: How much will they cost?
At the start of an action it is very difficult to know how much it will cost. The other side may admit liability in which case there will be very little cost. But it may got to court and then even to an appeal, in which case can very expensive.
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Conditional Fee Agreement: winner and loser costs
If the claimant wins they usually get back most of their costs. Should the case be lost however and then the claimant will be liable for both parties' costs. This possible 'loss' can discourage claims.
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What can be used to over the problems from above.
In order to overcome these problems, a Conditional Fee Agreement can be used
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What cases can Conditional Fee Agreement be used?
It can be used in all civil cases except family cases. It cannot be used in criminal cases.
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The solicitor and client agree the fee, which would normally be charged. The agreement also states what the 'success fee' will be, if the solicitor wins the case for the client. If the client is successful then the client pays the normal fee plus the success fee.
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In most cases there will be a cap so that the success fee cannot be more than 25% of the damages awarded to the successful claimant. This is to protect the client from paying more than their compensation. But it can still leave the client with very little compensation.
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If the case is lost then the claimant doesn't have to pay his solicitor anything. Sometimes this scheme is known as 'no win no fee'. (Sometimes solicitors charge half the normal fee anyway -even if the case is lost)
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A winning claimant cannot claim the success fee back from the losing defendant.
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The loser will normally have to pay the cost of the winner. To protect against this it is possible to insure against losing. This is known as 'after the event' insurance. So if the a client loses, gheir isurers will have to pay the other side's costs.
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Are the Conditional Fee Agreements working?
Since the conditional fee arrangements were brought in, thousands of people have brought cases to court and had the ability to obtain justice. This has allowed ordinary people to bring cases who might not otherwise have been able to do so.
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What are the problems with the Conditional Fee Agreements?
1. Not attractive to lawyers as they need to make a profit for their business to survive
2. Lawyers more likely to take on cases with a high success rate
LASPO 2012 made them less attractive because:
3. Cost of after the event insurance cannot be claimed back
4. Success fee cannot be claimed by a claimant if they win
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What is the Citizens Advice Bureaux and what do they do?
They are a charitable organisation that give general advice across a wide range of issues by face to face contract, telephone consolations and by email and webchat.
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What are the main areas that the Citizens Advice Bureaux can help with?
Advice for debt, consumer issues, claiming welfare benefits, housing problems and employment matters
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What do Law Centres do?
They offer, non-means tested advice to people living in their area and advice + representation in areas where there ae no or few solicitors.
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What are the issues with Law Centres funding?
They are funded by central or local government but its increasingly difficult to gain enough funding.
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What do Trade Unions do?
They offer their members free legal advice on a range of employment related matters and other matters such as personal injury in an accident outside work.
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What is an example of a Trade Union and their service?
In personal injury claims, a union will usually refer a member to a specialist lawyer and the cover the lawyers costs.
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What do Schemes Run by Lawyers do?
They give free legal advice on a range of legal issues to members of the public who can't afford legal fees and who don't qualify for CLA.
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What is the Bar Pro Bono Unit?
Volunteer barristers staff a Bar Pro Bono Unit based in London. The unit may also represent a member of the public in any legal proceeding.
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What is the most useful agency and what cases do they deal with?
The most useful agency is Citizens Advice Bureaux (CABx). It has offices in most towns and deals with a large number of cases. It generally deals with limited areas of law, but those which affect the most vulnerable people.
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What does CABx refer to?
CABx can refer people to solicitors, but only for advice. If it is representation that the person needs then they must find a way of funding the case.
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Who can law centres advise?
Law centres can advise and sometimes provide representation to those who are most vulnerable in society.
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What are the main issues with Law Centres?
- lack of funding
- limited number of law centres
- many areas don't have one
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What can trade unions do?
They can advice and represent.
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What is the drawback of trade unions?
The service is only limited to their members.
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What are solicitor schemes for?
These are only for a short session of free advice. The solicitor can help with the application for legal help and representation.
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What are the main issues with solicitor schemes?
- reduction of legal aid availability, only a few cases under this category
- half-hour advice isn't useful if the matter is complex
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What does the Bar Pro Bono Unit offer?
The Bar Pro Bono Unit offers advice and representation on any areas of law.
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What is the main issue with this Bar Pro Bono Unit?
- scheme is small and only available in London.
