Section A - Legal System Flashcards
What does the County Court jurisdict over? (Three minimum)
Contract, Equality Act 2010 Cases, Inheritance up to 30,000, Tort, Partnerships & Trusts, Divorce, family and bankruptcy
What track does the County Court handle?
All three: Small Claim, Fast Track and Multi-track.
What judges sit in the County Court?
CIrcuit or District Judges.
What is the limit as to how much can be claimed in a County Court before it is moved up to the High Court?
£100,000, unless it is personal injury, which it will then be £50,000
What are the three benches of the High Court?
King’s Bench Division
Chancery Division
Family Division
What does the King’s Bench Division jurisdict over? (Three minimum)
Contract & Tort. Hears ALL defamation and Judicial review cases.
What two courts are included in the King’s Bench Division?
Commercial Court & Admiralty Court
What does the Chancery Division jurisdict over? (Three minimum)
Insolvency, Business matters, mortgages, trusts, property disputes, copyright and patents, intellectual property and probate disputes.
What Court is included in the Chancery Division?
Patents Court
What does the Family division Jurisdict over? (Three min)
Children Act 1989 Cases (welfare), adoption, defended divorce.
What did the Crime and Courts Act 2013 do?
Made a new Family Court which replaces much work of the Family Division.
What tracks does the High Court handle?
Multi-Track only.
Which Judges sit in the High Court?
Mainly High Court Judges.
How much money must be at stake for a High Court case?
Over £100,000 unless it is Personal injury then it is over £50,000
What is a Divisional Court?
The amount of judges sitting in the High Court.
What is Small Claims and its procedure?
-Any claim of less than £10,000 or £1,500 for personal Injury & landlord + tenant cases.
-Cases heard by County Court by inquisitorial District Judge, can be heard by Circuit Judge, typically 2-3 hours in length.
-No legal rep typically required, no costs payable.
What is Fast track and its procedure?
Cases between 10k-25k (over 1,500 for personal injury)
Heard in County Court before District Judge, can be heard by Circuit Judge with strict trial time of one day and limited no of witnesses
Case usually hard within 30 weeks of allocation
Legal rep typically used
What is Multi-Track and its procedure?
Cases of 25k+ (or less if it includes complex law)
Heard in County or High Court depending on value or if it becomes complex points of law
Some specialist areas only heard in High Court
Judge will actively manage case & set strict timetable including what must be disclosed and how any witnesses will be use and trial time.
What is the additional track added in October 2023?
Intermediate Track, £25,000-£100,000
What is the pre-trial procedure?
A claimant may be advised to use money claim online. At the start of the claim, the claimant will be required to complete N1 form setting out all particulars of the case.
The judge allocates the case to a track and Court.
Pre-action protocols (a list of things parties must do before a claim can be issued) & letter of claim (Letter before action) must have D responding within a certain time limit.
What are three examples of grounds to appeal?
-Error of law
-Error of fact
-Procedural unfairness
What is the appeal route from the county court in simple words?
Small claim/Fast Track County (District) -> County (Circuit judge) -> Court of Appeal (only if Case stated or there is a point of law) Civil division -> SC
Fast Track County (Circuit Judge) -> High Court (HC Judge) -> CA Civ div -> SC
What is the appeal route from the High Court?
High Court (Multitrack) -> Court of Appeal (Must have case stated/point of law issue) -> SC
High Court -> (Leapfrog appeal) -> SC
What are the Advantages of Civil Courts?
A qualified Judge & experienced lawyers can deal with complex legal matters and evidence
Cases will be allocated to the most effective track or court
Precedent means lawyers can predict outcomes more accurately
Civil courts have clear, structured appeal routes unlike ADR. Not limited to just points of law
What are the disadvantages of Civil Courts?
Long delays & Fast-track cases be rushed
Losers pay own & winners cost (Uncertainty)
Need lawyers so more confrontational, no more goodwill between parties, inequality of bargaining power if one cannot afford a lawyer.
Allowing appeals can delay clsoure and final outcome. Less compromise.
Enforcing judgement if a loser refuses to pay after case involves more cost.
What did the Woolf Report 1996 recommend about ADR?
That its use is increased in Civil matters.
What are the forms of Conflict Resolution?
Negotiation
Mediation
Conciliation (third party actively suggests compromise)
Arbitration (Third party makes binding decision)
Litigation (Civil Court Action)
Describe Negotiation
The parties or their representatives may try to resolve by direct communication eg consumer dispute when returning goods or asking qualified negotiators to act on behalf of the parties. Not binding.
What is the advantages and disadvantages of Negotiation?
Advs-
Parties can control process
Informal + in private.
Fast/immediate.
Cheaper than Court.
Disadvs-
Parties need to co-operate.
No binding means there may not be resolution.
Describe mediation
Mediators = neutral advisors. Usually lawyers of 7 years standing.
Consult with parties who voluntarily refer issue to them & exchange info but will not suggest solution. Act as a go-between. Not binding but can give parties understanding of likely outcome of Court. Parties can withdraw at any time.
This can be things like Neighbourhood or Family mediation.
What do the Commercial Mediation Services do? (Centre for Dispute Resolution - CEDR)
-Parties agree to accept named mediator
-Each draw up brief written summary of their version of dispute
-Meet & mediator tries to clarify issues
-Parties present case to each-other
-Each meets privately with mediator & discusses options
-Compromise solution agreed on
Describe Conciliation
What is ACAS?
3rd Party may offer non-binding solution that could lead to a settlement. Many county courts have conciliation schemes.
ACAS - The Advisory, Conciliation and Arbitration service aims to promote industrial relations. Mediates impartially in disputes. Deals with employee disputes, individual dismissal cases & T.U recognition matters.
Panel of nine include representatives from employer & employee organisations. Funded by DTI but fully independent, has statutory power to resolve before matters reach ET.
What are the Advs and Disadvs of Mediation & Conciliation?
Advs-
Avoids adversarial attitudes
Private
Common sense important
Parties can control it
Disadvs-
Mediation sums usually less than awarded in Civil Courts
Mediator/Conciliator may bully one party
Process may not bring resolution
Both Parties must cooperate
Describe Arbitration
Where parties voluntary allow someone other than a judge to consider their claim.
Written agreements controlled by Arbitration Act 1996.
What does the Arbitration Act 1996 state?
a) The aim is to obtain fair resolution of disputes without delay or expense.
b) Parties must agree how the dispute will be resolved.
c) Arbitration Act rules come into play where parties have not agreed their own rules.
d) If both parties agree arbitration may be abandoned in favour of Court action.
What are the two ways Arbitration may arise?
A) After a dispute arises (Parties may agree to it anytime)
B) By contract before a dispute arises (Many agreements contain a ‘ Scott v Avery clause ‘ which say they must go to arbitration, by entering they both agree to this. )
If parties have agreed to arbitration a court will not allow them to switch except where it includes a consumer contract within small claims limit.
What are three Trade Association arbitration schemes?
ABTA, FMB & ACAS.
How may someone choose na arbitrator?
May be found through trade association or chartered institute of Arbitration.
Parties may agree onpanel of arbitrators or just one but the person chosen must be a neutral 3rd party even if they aren’t an expert.
Parties should ensure:
A) He has no connection to either party
B) He has necessary expertise
C) He has experience of the area in dispute
Describe the Arbitration hearing.
Parties agree to procedure which suits them, whether paper or oral hearing it must be suitable to the circumstances of the case
The date, time & place of hearing are all for parties to decide with the arbitrator.
Arbitrators fees can be high but usually quicker and hearing date usually made at mutually convenient time.
Appeal - Arbitration Act 1996 s69 gives a limited right to appeal to a court only if its on point of law and both parties agree or the court gives leave (This is rare)
What are the advantages of Arbitration?
Cheaper than fast or multi-track, Legal rep usually not needed
Award is given
Less backlog of cases
Not formal - in private, not public hearing
Experts hear specialist areas of law, Arbitrators are experts and qualified
Parties can be involved and they control process - it is flexible and they choose the time place and arbitrator
Award is final - binding can be enforced via courts.
Preserves goodwill for future businesses & avoids aversaral winner/loser attitude.
What are the disadvantages of Arbitration?
Small claims may be cheaper & easier but arbitration can be formal and complicated, enforcement involves going through courts and Arbitrators are very expensive.
No process may not bring resolution, parties may still just go to Court.
Delays are growing.
Mediator/Conciliator may bully one party
Lack of legal expertise if it is a complicated point of law.
Parties need to co-operate.
No appeal unless both parties agree or serious irregularity in point of law involved.
Mediation sums usually less than awarded in civil courts
What is the difference between Courts & ADR?
Courts - Small claims cheap, may be cheaper
-You can appeal
-Judge has legal but not topic specific expertise
-Long delays but– fast track.
ADR - No rule that loser pays winners, generally cheaper.
Rare to appeal & only on points of law and agreed by both parties.
Those who run ADR schemes often specialist knowledge & base decisions on common sense.
Quicker but delays are growing.
Are employment tribunals mandatory alternatives to going to court in Civil matters?
Yes
What is the role of Tribunals?
Connected with Civil rights (Benefits, redundancy payments, disability discrimination, etc)
How do Tribunals work alongside the court system? What are the issues they hear?
There are 70 different types including employment tribunals, immigration services tribunals, lands tribunals, etc.
Issues heard may include:
Right to mobility allowance
Right to redundancy pay
Right not to be discriminated
Right of immigrants to have case of political asylum heard
Describe employment tribunals
Operate independently & governed by own leg. Makes independent decisions around employment law and are responsible for claims from people who think someone eg employer has treated them unlawfully.
What is the Role and Jurisdiction of Employment Tribunals?
Deal with issues like:
-Unfair dismissal
-Discrimination
-Unfair deductions from pay
What is the composition of an Employment Tribunal?
Each employment tribunal made up of three members: Legally qualified chair, Representative of employers & representative of employees.
Judicial bodies consisting of:
A chairman (Lawyer 7yrs+)
Individual nominated by employer association
Another by TUC or TUC-affiliated union
Independent panels & make legally binding rulings.
How were Employment Tribunals originally created?
Via the Industrial Training Act 1964 with aim to improve relations and provide informal route to resolve disputes quickly and cheaply. Became one of most technical & difficult areas of law and no quicker and as equally complex as other courts now.
Who are Employment Tribunals governed by today?
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
What is the role of Conciliation and ACAS in Employment Tribunals?
Parties are encouraged to go there first to see if it can be resolved.
How do employment tribunals work?
1) Dispute arises
2) Try to sort informally/directly with employer
3) Early conciliation (Employee must contact ACAS to try and resolve dispute through conciliation)
4) ET1 sent claim form to tribunal office
If claim accepted Tribunal Office contacts employer
5) Respondent has 28 days to respond using ET3
6) If none received or accepted, judgment issued for claimant.
If employer disputes claim - hearing held.
7) Judgment issued.
What is the role of the Employment Appeal Tribunal?
Consider grounds of appeal and will either arrange a hearing date or order preliminary hearing to decide if it may proceed to full hearing.
Claims not proceed unless legal point which has legal merit to have a full hearing.
Follow and structure incorporating hierarchy and appeal route like other Courts.
What are the advantages of Tribunals?
Hearing date fixed quickly
Often only a day long
Cheaper as you needn’t legal rep unless you want it and public funding is available for a few (eg Mental Health Review Tribunal)
Less formal than courts, flexible procedures
Expert panel in employment law
Frees court time for other issues
What are the disadvantages of Tribunals?
Inequality of bargaining power as no legal aid for employee but employer usually rep.
More formal than ADR since Franks Committee due to attendance of Lawyers
Difficult to control
Delays increasing despite intention to deal with cases quickly
Appeals limited to issues of law.
What is the classification of offences and what is it given by?
Criminal Law Act 1997
Summary - Least serious, typically less than £500 crim dmg, shoplifting less than £200, common assault, etc.
Triable Either Way - Tried either at Mags or Crown Court. Theft, ABH, etc. Can be sent to Crown for sentencing if the crime exceeds what the Magistrates thinks it will need.
Indictable - Most serious eg rape, murder, etc, only the preliminary is heard at the Magistrates court.
Describe the basic facts of the Magistrates Court
A court of first instance only
Cases heard by three Magistrates or one DJ
Court tries & sentences 97% of Crim cases
Legally qualified clerk assists
What are the sentencing powers of the Magistrates Court?
Summary - Max £5000 fine and/or up to 6 months imprisonment
TEW - Two or more offences max 12 months imprisonment
What is the Criminal Jurisdiction of the Magistrates Court?
1) Trial of summary & Some TEW cases
2) Verdict & sentence
3) Mode of trial for TEW cases
4) Bail applications
5) Search and arrest warrants
6) Indictable offences (Magistrates may grant bail at first hearing then send to Crown)
7) Youth Court
Where is the place of trial for Youths (10-17)?
Heard in Youth Court.
3 JPs one fem and one male.
Appropriate adult should be present.
Indictable offences may be tried summarily, but they can move to Crown if they are grave eg murder, manslaughter, rape
What was the case of Thompson and Venable?
Abducted & murdered child, human rights such as right to a fair trial breached so each were compensated Venables 29,000 and Thompson 10,000. The tariff is now set by the Sitting Judge.
What is the most famous Crown Court?
The Old Bailey
What is the Criminal Jurisdiction of the Crown Court?
1) Trial of all indictable offences
2) Trial of some TEW
3) Hears TEW cases referred by mgs for sentence
4) Hears Appeals from Mags Court (one judge + 2 mags)
What is the two part test for prosecution by the CPS?
1) Is there enough evidence?
2) Is there public interest to bring the case to Court?
What is the pre-trial procedure for Summary Offences?
First hearing Mags Court & Trial in Mags Court.
Bail, legal aid and timetable hearings.
Defendant enters plea if pleads guilty. Moves onto sentencing.
If pleads not guilty the trial commences.
What is the pre-trial procedure for Indictable cases?
First hearing mags court but trial at Crown. Bail, legal aid & timetable hearings happen at Mags where they then send the case to Crowns.
What is the pre-trial procedure for TEW cases?
Decision has to be made where it will be tried
Criminal Procedure & Investigation Act 1996
What is the Procedure of a Magistrates Court?
1) D pleads guilty or NG (Plead before venue)
2) If pleading guilty mags sentence although they may refer to Crown for sentencing if it needs a harsher sentence.
3) If not, there is mode of trial election:
Prosecution & Def suggest suitable method
Magistrates decide if case is suitable for them to look at
It depends on the seriousness of the case, their powers of punishment and the prosecution and defence submissions.
If magistrates do not accept jurisdiction they send it to the crown court for trial. If they do accept Defendant can decide where to go depending on whether they want Trial by Jury.
If D agrees to Mags sentence may still be imposed by Crown Court if Mags decide powers are insufficient.
What did the CJ (MOT) Bill 2002 do?
Tried but failed to remove D’s right to choose Jury trial
What are the advantages of Trial by Jury in the Crown Court?
-Higher Acquittal rate with Jury trials. Lawyer advice for D.
-Judge discharges Jury & directs Not Guilty
-Lawyers have certificate of advocacy in Crown Court - more experienced.
-Trial by peers (Magna Carta)
What are the disadvantages of Trial by Jury in the Crown Court?
-Longer wait
-Higher sentence
-More intimidating
-More expensive
-More publicity
What is the Summary Trial Procedure?
1) Charge is read out
2) Defendant enters plea
3) If D pleads guilty what happens next?
4) If D not guilty what happens next?
5) Prosecution opening speech (No closing), Prosecution evidence: Examination-in-chief of pros witnesses. Defence cross-examine. Prosecution may re-examine.
6) D may claim no case to answer if evidence thin.
7) D evidence presented and witnesses called for examination-in-chief. P may cross examine and D may re-examine.
8) Closing speech by D then verdict.
What is the Indictable trial procedure?
Same as summary but…
1) If D pleads not guilty then jury of 12 people empanelled
2) P + D both make opening and closing speech
3) Judge sums up
4) If D acquitted then can be tried again since CJA 2003 removed double jeopardy for serious cases if there is new and compelling evidence
How are appeals from a Mags court handled?
Magistrates Court -> (If Defence appeals, Prosecution has no right to appeal to Crown) -> Crown Court, Appeal available as of right, complete re-hearing by 2 mags and a judge, can confirm vary or reverse decision. If against sentence can confirm increase or decrease with the same limitations as Mags Court (6 months most). Further appeal to QBDC - > Kings Bench Division (administrative court)
Case stated appeals by prosecution & Def, 2 or 3 judges hear case, leave needed, only verdict can be appealed, can confirm vary or reverse decisions or remit case back to mags -> Further appeal eg from QBDC to Supreme Court. Point of law or public importance (C V DPP 1994)
Magistrates -> (If prosecution appeals) -> King’s bench Division -> Further appeal.
What was the case where D was seen holding the handlebars of a motorcycle whilst another boy tried to break the chain, and D was charged with interfering with motorcycle and intention with offence that theft should be committed.
C V DPP 1994, It was held that children needed proof they knew what they were doing.
How are Appeals from the Crown Court handled?
Crown Court -> Appeal to CA (crim Div) by D.
a) Appeal against Conviction (Rules: file within 28 days, leave needed, 3-5 judges, appeal on fact or law, review of paperwork)
CA can allow appeal and quash conviction, vary conviction, dismiss appeal or order retrial.
b) Appeal against sentence.
-> Further appeal - Point of law of public importance
Crown Court -> CA (By P)
1) Appeal against acquittal (Jury nobbling rarely used, CPIA 1996)
2) Appeal against acquittal - in 30 serious offences, removal of double jeopardy where new and ocmpelling evidence, CJA 2003
3) A-G Ref re point of law following acquittal. A-G can refer to CA. Decision cannot be changed but point of law clarified in CJA 1972 s36 + can re sentence lenient sentence in CJA 1988 s36
-> Further Appeal
What was the Criminal Appeal Act 1995?
Only ground for appeal is that it is unsafe (was fair trial in interests of justice ay admit new evidence)
What was the case where D was acquitted for killing a pizza delivery person and was instead found guilty for another crime, when he bragged to a police officer about getting away with murder he was retrialed and life sentenced.
Billy Dunlop 1989
Who are Lay personnel?
Magistrates & Juries
What are the simple original facts of Magistrates?
Appointed to sit in Mags Court
Some DJ(MC) also do job but are paid lawyers/Judges
Try 97% of all crim cases
Usually 3 sit on a bench and are advised by legal adviser. Certain matters can be heard by a single magistrate eg warrants
What Qualifications do you need to be a Magistrate?
A) Commitment, must sit 26 sessions (half days) a year minimum.
B) Area - Appointment is to local justice area, must live or work within local justice area
C) Age - Mags must be 18-74 on appointment, retiring at 75 since 2022
May be removed on grounds of incapacity, Misbehaviour, persistent failure to meet standards, neglecting duties
What restrictions are there to not allow you to be a Magistrate?
Those in work that is incompatible eg police officer, special constabulary, traffic wardens
Close relatives will not be appointed to same bench
Disability means they cannot carry out duties eg deaf people
Undischarged bankrupts
Those who have committed certain serious offences
Armed forces
How is a Magistrate selected?
They will send advertising/application forms
Selected by Local Advisory Committee made up of 12 people (Mags & Non-mags) and must be drawn from cross section of local community.
There is then a two-stage interview panel process.
What is the first stage of the two stage interview panel process?
Looks at candidates general character, personal attributes, and whether they possess six key qualities:
Logical,
Honest/Good character,
Understanding & Communicative
Aware of social issues & uphold law
Mature and of fair temperament,
Reliable and Committed.
What is the second stage of the two stage interview panel process?
Assesses candidates judicial aptitude & qualities by looking at case studies
How are Magistrates appointed?
LAC recommends suitable candidates to Lord Chief Justice who designates roles to senior presiding judge under Crime and Courts Act 2003.
Candidates sworn in as a magistrate at local court appointed by LCJ on behalf of the king.
What is the composition of the bench for Magistrates?
Age - half between 60-70, only 3% under 40 and 40% retired.
Disability - Blind can be mags but not deaf people
Occupation - Majority from managerial positions
Gender- 51-53% are women (other Judicial positions at 22%)
Ethnicity- 11% ethnic minority other legal professions have 5%
