The Legal System - legal personnel Flashcards
Role of a solicitor: Who are they and what are they represented by? (4)
- Provides legal advice on different areas of law and is responsible for representing and sometimes defending a client’s legal interests
- Represented by the law society which ‘protects and promotes solicitors’
- Often the first port of call for individuals or companies regarding legal services
- In civil and criminal cases they can instruct barristers, offer them support (HCA - higher court advocates)
Role of a solicitor: Who are solicitors regulated by and what does it mean?
(name a case)
Solicitors regulation authority (SRA) - independent body which seeks to ensure high standards are maintained
Sets out standards for qualifying as a solicitor, monitors the quality of training, refers complaints to Solicitors Disciplinary Tribunal
Hall V Miller - sued a solicitor for bad work
Role of a solicitor: How many solicitors are there and how many are in private practice?
What do their partnerships range from?
136,000 total
90,000 in private practice
(most work in private practice or for the government)
Partnerships ranging from high street companies to big city international firms
Role of a solicitor: They have limited…
rights of advocacy meaning they can only advocate in lower courts such as mag or county court
Role of a solicitor: To present cases in higher courts what do they have to do
(name the act)
To present cases in higher courts they have to do an extra qualificaton
Court and Legal service act 1990, granting them higher rights of audience
Role of a solicitor: What work do they carry out?
- Much of the time is spent outside court, interviewing/drafting documents such as contracts and wills (part of probate law) - non contentious work
- Contentious work (advocacy) but normally do non contentious work
- Specialise in contract and family law
Role of legal executives (5 points)
Generally work alongside solicitors and provide a similar role (less qualified)
Acting as a first contact with clients needing legal advice in straightforward cases
Limited rights of audience acting as advocates for clients, lower courts such as county court
Giving legal advice to clients on a range of specialist areas i.e personal injury
Drafting contracts/legal documents e.g wills
Role of barristers: Who are they?
Barristers - a person called to the bar and entitled to practise as an advocate, particularly in the higher courts
Work in chambers - group of barristers that share the same cost but do not work together
Role of barristers: How many are self employed and employed by organisations, name these organisations
Self employed - 12,700
3,000 employed by organisations such as CPS, local government and civil service
Role of a barrister: In civil cases the public can go…
either directly to a barrister or solicitor but there is no direct access to barristers in criminal cases or family court
Role of a barrister: What do barristers owe?
A duty a confidentiality to a client but also a duty to the court
Meaning that they must not mislead court/waste court time
Role of a barrister: What rights of audience do they have
Rights of audience in all courts to represent clients, particularly crown court or higher courts
Role of a barrister: What is their role in criminal and civil cases?
Criminal - work with CPS/police on evidence to be obtained and charges to be made, presents case in crown court to judges and jury
Civil and sometimes criminal - instructed by solicitor or directly by a client, much of the evidence + legal arguments are presented in writing before any court hearing
Judges: High Court (superior)
What is the type and role of the judge?
Type:
- High court judge, head of chancery, family and KB divsion
Role:
- Judges sit in one of three High Court divisions
- Hear large value, first instance civil cases to decide liability and/or amount awarded
Judges: County Court (inferior)
What is the type and role of the judge?
Type:
- Circuit judge, recorder, district judge (small claims court)
Role:
- Hears civil cases, decide liability and remedies
Judges: Crown Court (inferior)
What is the type and role of the judge?
Type:
- High court judge (serious cases), circuit judge, recorder
Role:
- Hear complex and serious criminal cases
- Hear appeals from mag court
- Try criminal cases with a jury
- Decide law
- Assist jury on points of law
- Pass sentences
Judges: Magistrates court
What is the type and role of the judge
Type:
- District judge
Role:
- Hear low- medium level criminal cases
- Decide verdict
- Pass sentences
- Hear civil cases; some family work, licensing appeals
What are superior judges?
Judges in the Supreme Court, Court of Appeal and the High Court
The Justices of the Supreme Court sit in the Supreme Court
The Lords Justices of Appeal sit in the Court of appeal
Separation of powers: What are the 3 primary function of state that should be separate to safeguard the liberty of the individual?
Legislative - law making arm (parliament)
Executive - government
Judiciary - those who apply the law
What does the separation of powers mean?
Legislative, executive and judicary - these power must not be held by one specific person or body
To ensure that no single person/body of persons can hold all the power in society
Having separate bodies, each can work independently and be challenged in their operation
Separation of powers: Independence from legislature
Judges are not involved in law making in parliament
Full time J’s are not allowed to be MPs
Supreme court J’s no longer in the House of Lords
Recorders and assistant recorders may be MPs
The main reason to create the Supreme Court was to separate the J’s from the Legislature…formerly House of Lord J’s sat in the parliamentary House of Lords as of right
Separation of powers: Independence from executive
Superior J’s cannot be dismissed by government so are truly independent
Section 3 of the Constitutional Reform Act 2005 states that the LC and all ministers must uphold judicial independence
Section 3 also states the LC and ministers should not seek to influence judicial decisions.
What is the judicial independence achieved by?
Security of tenure
Immunity from suit
Independence from the other two arms of the state
Independence from the case
Explain security of tenure in judicial independence
- include superior and inferior judges, retirement
Judges are reasonably secure from political interreference
They cannot be forced to resign due to the fact that the government disagrees with their decisions
Superior judges have security of tenure - only be removed by the Monarch following petition to both houses of parliament
Inferior judges:
- Not as secure as superior
- Lord Chancellor with consent of Lord Chief Justice can dismiss for incapacity or misbehaviour
- Lord Chief justice can suspend a judge for being subject to criminal proceedings
Retirement - all judges retire at 70, superior judges can go to 75 with authorisation
Explain immunity from suit in judicial independence
(name a case)
On grounds of public policy, judges are given immunity from suit (Sirros v Moore)
- meaning that they are free from any legal action while serving correctly in their capacity as a judge
Does not prevent complaint being raised against them because of behaviour/language/conduct - possible from judge to be removed from office in certain circumstances
Explain independence from the two other arms in judicial independence
Independence from executive and legislature is set out by doctrine of separation of powers
Ignore pressure from the executive to
- manoeuvre a judge into making certain pro-government decisions
- force them to rule against those who oppose the executive’s policies/plans
Other influences to ignore:
- parliament
- other judges (senior), unless bound by law i.e precedent
- pressure groups
- own self interest, opinions/beliefs
- media
Explain independence from case in judicial independence
Judges impartiality is as important as their independence from external influences such as government pressure
Judges must not try any case where they have a personal interest in the issues involved (Pinochet case 1998 reinforced this rule)
Vital that defendants and claimants who appear before them, especially wider public, have confidence in that they will decide the case fairly and in harmony with the law
What are the 4 disadvantages of the judiciary?
There are problems in the higher courts with gender and ethnic balance as it will take years to filter through
Sentencing is the sole responsibility of a judge. The judiciary is often criticised for variations in sentences for the same crimes, especially regional variation
Lack of transparency (government’s obligation to share information with citizens that is needed to make informed decisions and hold officials accountable for the conduct of the people’s business) remains in appointment and disciplinary issues
Judges are expensive
Issues of inconsistency (not staying the same throughout) particularly in sentencing in lower courts
What are the 4 advantages of the judicary?
The judiciary is independent of the state and politicians, and so not under pressure to impress an electorate
Judges are legal professionals and so are quicker and more efficient than lay people
Judges have powers through a process known as judicial review to challenge a central or local government’s decision on behalf of UK’s citizens
Members of the public can make formal complaints against judges to be disciplined - the complaint will be investigated by a senior member of the judiciary; for example high court judges will be investigated by the head of their division
