The Legal System

Question 1

What does article 6 of the European Convention on Human Rights guarantees?

Answer 1

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

Question 2

In cases where an issue of bias is raised, what will the court ask?

Answer 2

If there was an:

“actual” bias- direct pecuniary: financial or proprietary interest) the decision will be held unlawful

or

“apparent” bias - reason of different form of interest, there is a real possibility of bias.

Question 3

What is the Legal test that needs to be applied where bias is raised? And expressed by whom?

Answer 3

“Would a fair minded and informed observer conclude that there was a real possibility of bias?”

By Lord Hope in Porter v Magill, paragraph 103

-also applies to tother decision makers in adjudication roles. If there was a bias in such a case, then decision may be amenable to judicial review of there is no right of appeal.

Question 4

What are the 3 cases where a permission to appeal is granted by the Supreme Court’s Appeal Panel?

Answer 4

1. Raise an arguable point of law
2. of general public importance and
3. Which ought to be considered by the Supreme Court at that time - matter already subject of judicial decision and may have already been reviewed on appeal.

Question 5

Who may grant permission to appeal to the Supreme Court?

Answer 5

Either the Court of Appeal or the Supreme Court. In some cases, the Supreme Court grants permission to hear an appeal from the High Court, so called “leapfrog” appeal.

It is not possible to appeal to the Supreme Court against decisions by Tribunals.

Question 6

What is the Top 3 Hierarchy of Courts?

Answer 6

1. The Supreme Court
2. Court of Appeal
3. High Court

Question 7

What is a Magistrates’ Court?

Answer 7

A lower court which holds trials for summary(petty) offences and preliminary hearings for more serious ones and some civil matters including family proceedings, youth courts, licensing and betting, gaming and alcohol.

Criminal decisions of the Magistrates’ Court may be appealed to the Crown Court.

Civil decisions may be appealed to the County Courts

Question 8

Who hears cases from the Magistrates’ Court?

Answer 8

Either a panel of 3 Magistrates or by a District Judge.

Magistrates- a civil officer who administers the law.
-also called justices of the peace. Ordinary people who hears cases in their own community.

Question 9

What is a Crown Court, who hears the cases and where can judgments be appealed?

Answer 9

The Crown Court covers indictable(more serious offence, if committed by an adult, is triable or indictment) criminal cases that have been transferred from the Magistrates Courts and some appeals.

Cases are heard by a judge and a jury

Cases maybe appealed to the Criminal Division of the Court of Appeal.

Question 10

What does County Courts deal with, who hears the cases snd where can it be appealed?

Answer 10

Claims for repayments of debts, breach of contract involving goods or property, personal injury, housing issues, enforcement of previous County Court judgements.

Cases are heard by a judge, without a jury.

Decisions may be appealed to the appropriate Division of the High Court.

Question 11

What does the family Court deal with and who hears the cases?

Answer 11

Family matters including parental dispute over the upbringing of children, LA intervention to protect a child, divorce, adoption, financial support for children after divorce or relationship breakdown, cases concerning children.

District Judges which are specialist magistrates who underwent specialist training.

Question 12

Most of the Tribunals are in two tiers, a First -tier and an Upper Tribunal split into chambers.

What are the 7 chambers with specialist jurisdiction of the First-tier Tribunal

Answer 12

1. The War Pensions and Armed Forces Compensation Chamber.
2. The Social Entitlement Chamber - jobseeker’s allowance,criminal injuries compensation.
3. The Health, Education and Social Care Chamber- care standards,SEND
4. The General Regulatory Chamber-decisions made by govt regulatory bodies in cases including charities, community right to bid, consultant lobbyist, exam boards, etc
5. The Tax Chamber- appeal against decisions made by HMRC
6. The Immigration and Asylum Chamber
7. The Property Chamber- property or land

Question 13

What are the 4 chambers of the Upper Tribunal?

Answer 13

1. Immigration and Asylum Chamber
2. Lands Chamber
3. Tax and Chancery Chamber
   4.Administrative Appeals Chamber

Question 14

Where one is to appeal for the first time, what is the permission to appeal test or the first appeals test?

Answer 14

The first appeals test is: The permission to appeal may be given only where -

a. The court considers that the appeal would have a real prospect of success; or

b. There is some compelling reason for the appeal to be heard.

Question 15

What is the permission to appeal test or the second appeal?

Answer 15

1. A decision of the County Court, the family court or the High Court which was itself made on appeal, or
2. A decision of the upper tribunal which was made on appeal from a decision of the First-tier Tribunal on a point of law where the Upper Tribunal has refused permission to appeal to the Court of Appeal.
   In such cases, the Court of Appeal will not give permission unless it considers that:
   a. The appeal would: i. Have a real prospect of success and ii. Raise an important point of principle or practice or
   b. There is some other compelling reasons for the Court of Appeal to hear it.

Question 16

What is the appeal system?

Answer 16

1. Permission to appeal - first test appeals
2. Permission to appeal test - second appeals

Question 17

What is a Right of Audience and when do you become one?

Answer 17

A right of audience as defined by the Courts and Legal Services Act 1990 as the right to appear before and address a court, including the right to call and examine witnesses. Under this Act, one must be authorised or exempt in order to exercise a right of audience. It is an offence to do so without authorisation.

When a solicitor qualifies, they have a right of audience to appear in the inferior courts i.e County and Magistrates’ Court.

Question 18

How can a solicitor become a Higher Courts Advocate?

Answer 18

After qualifying, a solicitor may take further qualification which allows them to appear in the “superior courts”.

Question 19

What is a so-called “litigant in person”?

Answer 19

Someone representing themselves in legal proceedings without the assistance of an authorised representative.

Question 20

1.A litigant in person may seek assistant and appoint a “McKenzie Friend”, what can they and cannot do?

2.Who has the discretion to refuse or permit or withdraw permission of a McKenzie Friend?

Answer 20

1. A McKenzie Friend may: provide moral support, take notes, help with case papers, quietly give advice on any aspect of the conduct of the case.

They cannot: address the court, make oral submissions or examine witnesses or otherwise conduct a litigation, they may not receive payments, act as the litigant’s agent in relation to the proceedings and manage litigants’ cases outside the court i.e. signing court documents.

2. The Judge

Question 21

What is a persuasive precedent?

Answer 21

A precedent that a court may, but is not required to, rely on in a deciding case.

Question 22

What is the Doctrine of Precedentand why is it used?

Answer 22

A court should follow previously decided cases or precedents where the material facts are the same. This gives rise to legal certainty, predictability and consistency when someone litigates in the UK legal system.

Doctrine of Precedent is also referred to as “stare decisis” meaning previously decided cases or precedents.

A precedent is earlier cases where judges have made legal rules.

Question 23

What is the meaning of litigate?

Answer 23

Resort to legal action to settle a matter; be involved in a lawsuit.

Question 24

What are the 2 types of precedent and define them.

Answer 24

1. Binding precedent- obliges a court to follow it’s decision.
2. Persuasive precedent- can influence or inform a decision but not compel or restrict it.
   - a judge does not have to follow a precedent but chooses to. i.e. precedents from other countries.

Question 25

What are the 2 types of state that a judge has to provide when providing judgement to their decisions? / What is said in a judgement?

Answer 25

1. Ratio dicidendi - means the reason for the decision.
   - the rule of law that governs the decision.
   -general statement that does not involve particular details in each case.
   -it is set for the precedent to apply in the future case decisions. i.e. a person owes duty of care to those who he can reasonably foresee will be affected by his actions.
2. Obiter Dicta - other comments about the law.
   -comments about the law not required to decide the case.
   -does not state the primary reasoning of the decision, therefore not binding for future decisions. i.e. other non binding aspects but affects the judges thinking on the case.

Question 26

Define common law

Answer 26

-The law declared by judges, derived from custom and precedents.

-Judge made law.

Question 27

What happens if a judge feels the other judge got it wrong in a precedent?

Answer 27

Problematic precedents may be avoided, rather than followed through the use of:
a. Distinguishing - what significant factual differences are there in the law.
b. Overruling - court is asked to review wether precedent created by a lower court is correct law.
c. Reversing - when a higher court changes the decision of the higher court on the same exact facts. i.e. an appeal judge reverses the decision in a previous trial judge.