The Legal System - legal personnel

Question 1

Role of a solicitor: Who are they and what are they represented by? (4)

Answer 1

• 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)

Question 2

Role of a solicitor: Who are solicitors regulated by and what does it mean?
(name a case)

Answer 2

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

Question 3

Role of a solicitor: How many solicitors are there and how many are in private practice?
What do their partnerships range from?

Answer 3

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

Question 4

Role of a solicitor: They have limited…

Answer 4

rights of advocacy meaning they can only advocate in lower courts such as mag or county court

Question 5

Role of a solicitor: To present cases in higher courts what do they have to do
(name the act)

Answer 5

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

Question 6

Role of a solicitor: What work do they carry out?

Answer 6

• 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

Question 7

Role of legal executives (5 points)

Answer 7

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

Question 8

Role of barristers: Who are they?

Answer 8

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

Question 9

Role of barristers: How many are self employed and employed by organisations, name these organisations

Answer 9

Self employed - 12,700

3,000 employed by organisations such as CPS, local government and civil service

Question 10

Role of a barrister: In civil cases the public can go…

Answer 10

either directly to a barrister or solicitor but there is no direct access to barristers in criminal cases or family court

Question 11

Role of a barrister: What do barristers owe?

Answer 11

A duty a confidentiality to a client but also a duty to the court

Meaning that they must not mislead court/waste court time

Question 12

Role of a barrister: What rights of audience do they have

Answer 12

Rights of audience in all courts to represent clients, particularly crown court or higher courts

Question 13

Role of a barrister: What is their role in criminal and civil cases?

Answer 13

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

Question 14

Judges: High Court (superior)
What is the type and role of the judge?

Answer 14

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

Question 15

Judges: County Court (inferior)
What is the type and role of the judge?

Answer 15

Type:
- Circuit judge, recorder, district judge (small claims court)

Role:
- Hears civil cases, decide liability and remedies

Question 16

Judges: Crown Court (inferior)
What is the type and role of the judge?

Answer 16

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

Question 17

Judges: Magistrates court
What is the type and role of the judge

Answer 17

Type:
- District judge

Role:
- Hear low- medium level criminal cases
- Decide verdict
- Pass sentences
- Hear civil cases; some family work, licensing appeals

Question 18

What are superior judges?

Answer 18

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

Question 19

Separation of powers: What are the 3 primary function of state that should be separate to safeguard the liberty of the individual?

Answer 19

Legislative - law making arm (parliament)

Executive - government

Judiciary - those who apply the law

Question 20

What does the separation of powers mean?

Answer 20

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

Question 21

Separation of powers: Independence from legislature

Answer 21

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

Question 22

Separation of powers: Independence from executive

Answer 22

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.

Question 23

What is the judicial independence achieved by?

Answer 23

Security of tenure

Immunity from suit

Independence from the other two arms of the state

Independence from the case

Question 24

Explain security of tenure in judicial independence
- include superior and inferior judges, retirement

Answer 24

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

Question 25

Explain immunity from suit in judicial independence
(name a case)

Answer 25

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

Question 26

Explain independence from the two other arms in judicial independence

Answer 26

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

Question 27

Explain independence from case in judicial independence

Answer 27

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

Question 28

What are the 4 disadvantages of the judiciary?

Answer 28

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

Question 29

What are the 4 advantages of the judicary?

Answer 29

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