The Legal System Flashcards
What are Lay Magistrates and what cases are they involved in
W9P3 and page 56 and 57
These are unpaid part time judges who have no professional legal qualifications.
Magistrates court, summary cases such as common assault, triable either way cases such as theft, come to a verdict of 2 out of 3 to agree, also pass sentence, max six months for one offence. A single magistrate has limited power but can issue search warrants and warrants for arrest and conduct early administrative hearings.
They have to sit for 26 half days each year.
How are magistrates selected W9P3 and P56 and 57
Candidates must have two interviews (first one to see if they have the qualities and the second to test their amplitude, they will be given a case study) to see if they are suitable - good character, understanding and communication, social awareness, maturity and sound temperament, sound judgement, commitment and reliability - take account of the reasoning of others and work as a team.
Voluntary post: appointed between 18-65 and can sit at the Magistrates until 70, up until 2003 had to live within 15 miles.
Country is split into local justice areas - where there offence is alleged to have been committed or where the defendant lives.
Can’t have a serious criminal record, bankrupt, incompatible work such as police officers. Close relatives will also not be appointed to the same bench.
What other roles do Magistrates have W9P3 and P58
Give out police warrants to search a house, extend detention times beyond 36 hours, enforce council tax, child custody issues and bail and mode of trial.
Deal with all the preliminary work for summary and triable either way cases such as early administrative hearings, remand hearings and bail applications.
Also deal with the first hearing of indictable offences before they are passed to the Crown Court.
If they are selected and specially trained they can hear cases at a Youth Court which must comprise of a male and female. Also sit in the Crown Court to hear appeals 2 mags and one judge, decide whether guilty and pass sentence
Who selects and appoints Magistrates P57
Since 2013 appointments are made by the Lord Chief Justice who has delegated these powers to the Senior Presiding Judge. In order to decide who they appoint they rely on recommendations made by the local advisory committee, who tend to be ex-Justices of Peace, about half have to retire every three years in rotation. The committee should have a maximum of 12 members who are a mixture of magistrates and non-Magistrates. They make it so the members reflect a balance of occupations and they advertise to try and get a wide spectrum of Magistrates.
How important are Magistrates W9P3
They handle 95% of all criminal work, cheap - only get expenses and deal with a huge amount of work and important role of checking police powers.
Advantages and disadvantages of Magistrates W9P3, P56, 59 and 60
Bad
Limited training compared to a judge, not all public represented - tend to be old and middle class, in 2016 only 3% were under 40, inconsistencies in sentencing, reliance on clerk and prosecution bias.
Good
Must be clever enough to get through interviews
Have more experience and training than juries, cross section of society, local knowledge (Paul V DDP 1989), cheap, have a legal advisor and have few appeals.
How to evaluate magistrates P59 and 60
Fairness - cross section of society than what would be possible with professional judges. 53% are women and some are as young as 18 or 19. Although they can be perceived as Middle Aged and middle class as they are often from a professional background and the average age is over 50.
They are cheap it is thought they save the gov £100 million a year and save the problem of having to recruit enough lawyers.
However, Magistrates in different areas often pass pass very different sentences in Derbyshire 4x more likely to have custodial sentence than in Warwickshire.
Although, they have local knowledge such as DPP V Smith, they knew about the problem of curb crawling.
Prosecution bias but few appeal.
Paul V DDP (1989) W9P1
The court had to decide whether a kerb crawler was ‘likely to cause a nuisance to other persons in the neighbourhood.’ The defendant was convicted on the basis that the magistrates knew that kerb crawling was a problem in that residential area.
The appeal judges noted that this was a case where magistrates’ local knowledge had been useful.
Who is the Magistrates clerk P59
Each bench is advised by a clerk who is a legal advisor. The senior clerk at each court has to be a qualified lawyer for 5 years. Job is to guide the magistrates on questions of law, practice and procedure. Not meant to assist in the decision. Deal with routine administrative matters such as issue warrants for arrest.
What cases are juries involved in and what is their role W9P1, P62, 66 and 67
Crown court, indictable cases (murder), triable either way (theft), come to a verdict in the case - 10 out of 12 have to agree.
Their most important role now is they decide whether the defendant is guilty or not guilty, this is only 2% of cases.
The independence of the jury became firmly established following Bushell’s Case (1670).
The judge decides the point of law and the jury the facts.
Directed acquittal - where the judge decides there is insufficient prosecution evidence to allow the case to continue, the jury is directed to find the defendant not guilty. If this is not the case the judge will sum up the case and direct the jury to the law involved.
Must try and come to a unanimous decision, after two hours for defendant if there is no defendant the judge can accept a majority. Look in the book why they allowed for there to be a majority.
The jury can not be asked how they reached their decision only when it’s in the interest of justice.
What are jury qualifications W9P1, P62, 63 and 64
Done through a random selection from the electoral register.
Jury qualifications were set out in the Juries Act 1974.
Age between 18 and 75, lived in the UK for 5 years since the age of 13.
This is compulsory unless you are disqualified: imprisonment, detention or custody for life, a term of imprisonment or detention for 5 years or more. Banned for 10 years if served a sentence of imprisonment, had a suspended sentence, had a community order or sentence passed on them, if on bail and mental disorders and lack of capacity. Look in the book.
There is a right to be excused from jury service for example if you are too ill to attend court or have examinations.
Now all people can be a juror including judges.
Selecting a jury P64, 65 and 66
At each crown court there is an official who is responsible for summoning enough jurors to try cases that will be heard in that two week period. Names will be selected at random from the electoral register for the area which the court covers. This is done through computer selection at a central office. The jury must notify the court if they cannot attend for any reason. All others are expected for two weeks but if the case goes on for longer they must stay and if it’s thought that it will go on then they will ask potential jurors if this is alright.
Once potential jurors are known the prosecution and defence have the right to see the list. This can be vetted through police checks and wider background checks.
Selected in groups of 15 and the clerk will select 12 at random. Before they are sworn the parties can challenge the jurors. These are to the array, for cause and prosecution right to stand
Other role for juries W9P1
Hear defamation cases in the High Court - something is said or written about someone which is untrue.
How important are juries W9P1
Only around 5% of cases are heard by a jury, but these will include the most important cases such as murder and rape.
Evaluation question for juries
Little certainty - There is jury equity which can lead to greater fairness. They are not bound by precedent so they are able to decide the outcome of a case depending on what they consider fair. In Ponting’s case 1984. The defendant broke the Official Secrets Act and he said he was acting in the public interest. Although, the judge said there was no defence they found them not guilty.
Although, this can lead to perverse outcomes. The jury can ignore the evidence and come to the wrong outcome. R V Randle - look in book.
Secrecy - the jury discussion takes place in secret and it is against the Criminal Justice and Courts Act 2015 to ask or disclose anything that happens in the jury room. This protects jurors from pressure.
This is also a disadvantage because there is no reason for the verdict there is no way of knowing if they understood the case and came to the decision for the right reason in R V Mirza 2004. The juror was shouted down when she objected but the HOL that they could not make injuries into jury room.
Confidence in jury trial but talk about the use of social media and the internet for example.
How good are juries W9P1, P67, 68, 69, 70 and 71
Bad
No training so may be lack of understand, no ability test (no interview), perverse decisions, secrecy (look at the exceptions), jurors and the internet, racial bias, media influence, fraud trials, jury tempering and high acquittal rates.
Good
Public conference, jury equity, open justice system, secret decisions so they can say what they really think and impartiality.
Why do we use lay people W9P1
Cheap - they work for free - with the exception of expenses - it’s estimated that Magistrates save the UK 100 mill a year.
Good local knowledge - juries are drawn from the local area and Magistrates are generally allocated to a bench in their area - helpful in cases like - Paul V DPP, accuracy and public involvement.
Problems with lay people W9P1
Social media - it’s an offence to research but people do, news story, they are uneducated in law - may struggle to understand complex legal cases, Magistrates are proven to have prosecution bias. They tend to middle aged, middle class and middle minded. Male to female is 50:50 but most Mag are over 50 and have a professional background
Access to justice in criminal cases
Filler
Who currently oversees the funding scheme for legal aid W9P2 and page 95
This act bought legal aid under the control of the Ministry of Justice. This act set up the Legal Aid Agency. This is where the state help to pay for a solicitor - it’s overseen by the Legal Aid Agency - it was formed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The state currently pays £1.6 billion a year for legal aid services.
What services are available under the act P95
There are various services, but the main services are legal help which advice can be given and legal representation which gives full legal services for the whole case.
There is also advice for specific types of cases such as Family Mediation which allows both advice and representation in mediation cases.
What government funded advice is there P96
Important that people can get help and advice. The Civil Legal Advice is a scheme where it’s possible to get telephone help on things such as debt. Between July 15 and 16 160K rang.
The Legal Aid Agency has contracts with law firms and not-for-profit organisations such as Citizen Advice offices for those on low income, however the limit is very low.
What legal advice do you get at a police station W9P2 and P96
Free independent legal advice is available for any suspect at the police station and is available 24 hours a day. This is called the Duty Solicitor Scheme - this isn’t means tested so everyone gets it - the advice may be given by phone. Duty solicitors advice the about their rights at the police station and whether to answer police questions - important because not answering questions may cause the court not to believe your argument.
What is the Magistrate and Crown court means test W9P3 and P98
You satisfy this if: you get passporting benefits such as job seekers allowance, you are under 16 or under 18 and in full time education, in the Mag court if your income is below £22,325, if income is below a certain level you qualify and if you are in the middle bracket they calculate disposable income and you have to be below a set amount.
About 3/4 do not qualify.
In the Crown Court there is no upper limit on disposable income, it’s free for those on lower income. Those on higher incomes but less than 37,500 in disposable income have to pay towards their legal aid. If disposable income is above 37,500 then you are not eligible, higher the income the higher the contribution. Max paid in contributions is set by the case, if found guilty then they may have to pay from capital. If found not guilty normally refunded.
