Introduction to Law and Practice

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Introduction to the Law in England and Wales

Law- there is no one definition but one close is that law is "a body of rules fixed and regulated by the state".

It's aim is to regulate areas and activities of daily life and protect society as a whole.

Civil Law

This regulates relationships between individuals and defines people's rights and duties. Parties are the Claimant/Plaintiff v Defendant.

The burden f proof is on the claimant to prove their case on a balance of probability.

The case is generally issued to County Court unless:

- The case value is over £100,000,

- Personal injury damages value is over £50,000

- An Act of Parliament states otherwise e.g. defamation or slander.

Family cases are heard in Family Court and follow their own precedent.

Remedies:

- Specific Performance- usually relates to contract law and is where a Court orders a party to perform their part of the contract.

- Rectification- allows a written document to be changed if it doesn't represent the original agreement made.

- Recession- allows parties to be put back to their original position if the contract was entered by misrepresentation.

- Injunction- n order to stop a particular act.

Criminal Law

This aims to punish wrongdoers and protect society. Proceedings are brought by the state against the individual. Parties are known as the Defendant v Prosecution.

Prosecutions can be brought by:

- The Crown Prosecution Service

- The Health and Safety Executive

- The police

- The RSPCA

- The Environment Agency.

The burden of proof is on the Defendant to prove their innocence beyond all reasonable doubt.

All cases start out in Magistrates Court before being allocated depending on the type of offence:

- Summary offences are heard in Magistrates Court.

- Triable either way offences are heard in either Magistrates or Crown Court.

- Indictable offences are heard in Crown Court.

Key Sources of English Law

- Act of Parliament Statues- these are primary sources of legislation are created by Parliament. They set out requirements that should be followed.

- Delegated Legislation- these are secondary sources of legislation.

- Case Law/ Common Law- these are primary sources of judicial precedent.

- EU law can also be influencial

Common Law

Created by judges who heard cases and delivered their written judgement on them judicial precedent). This ensures consistency.

Pros:

+ Lawyers can research on the point of law

+ It shows the current legal position

+ Related cases can be easily researched

+ Lower Court decisions may have been overturned by a Higher Court, this can be easily seen so the correct precedent is applied.

Cons:

- Too rigid as no two cases are the same

- Judicial precedent is not always appropriate

- Judges can be intimidated or bribed

- It doesn't recognise trusts.

Equity

This determines case based on what is fair and just. After 1066 Royal Courts started to emerge as litigants where unhappy with the current law. They petitioned the King to do justice. He delegated to the Chancellor ( member of the clergy) who created the Court of Chancery. The King sent judges l over to sit in Courts of Assizes which followed precedent.

Pros:

+ No Juries- can't be bribed or intimidated

+ Dealt with facts of the case

+ Can issue subpoenas (required to appear as a witness)

+ Recognises trusts

+ Recognises concept of redemption.

Maxims of Equity:

1) Equity follows the law- Equity will intervene with Common Law if justice requires it.

2) Equity will not assist a volunteer- a person can't use Equity to get something for nothing.

3) He who comes to Equity must come with clean hands- must show themselves as having acted honourably.

4) He who seeks Equity must do Equity- must show they have acted fairly.

5) Equity looks at intent not form- the Court look at intentions of the parties.

6) Delay defeats Equity- a Claimant will be unsuccessful where they delay.

7) Equity will not suffer a wrong to be without a remedy- the Courts will be prepared to create a legal solution in circumstances where they are needed for justices to be achieved.

8) Equity acts in personam- claims founded on equitable principles are directed against a specific person,.

9) Equality is Equity- must be applied to benefit individuals equally.

10) Equity sees as done that which ought to be done- require something which should have been done to be done.

Trust

This is where a part gives property to another to hold for the use of a beneficiary until they come of age.

Concept of Redemption

In Common Law when a person has a mortgage if not payed ff by the due date the land is taken and the money still owed. In Equity the land can be kept with the promise to repay the loan with interest.

Common Law v Equity

Earl of Oxford (1616)- if there was a conflict between Common Law and Equity, Equity shall prevail. .This was reconciled by the Judicature Act 1873-1875 which amalgamated the Common Law and Equity Courts to become the Supreme Court of Judicature

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Organs of Government

There are two doctrines that are important in establishing relationships between functions:

1) Parliamentary Sovereignty

2) Judicial Independence

Devolved Power

This allows Westminster to pass power to other countries to create laws that only affect their country e.g. Scottish referendum.

- Scotland have their own Parliament is Edinburgh.

- Wales have a National Assembly based in Cardiff.

- Northern Ireland have their own Assembly based in Belfast.

Separation of Powers- this means the Executive, Legislature and Judiciary should all be separate

Legislature ( Parliament)- Make law

This is made up of three bodies:

1) House of Commons- Members are elected by the public (MP's)

2) House of Lords- known as the Second Chamber and is independent from the other house. Makes laws, considers all bills (also considered in the House of Commons before being passed as law), consideration of public policies and scrutinise Government work.

Peers sit in the House of Lord. They are appointed by the Queen on recommendation from the Prime Minister or other party leaders. Types of peers:

- Life Peers- Life Peerages Act 1958. They are appointed and is not hereditary.

- Arch Bishops and Bishops- when they retire their peerage passes to the next senior Bishop.

- Hereditary peers- not democratically elected. Inherited form their fathers

3) The Sovereign/ Monarch- symbolic role. She is the head of state, opens Parliament and gives royal assent on all Acts of Parliament.

The Role- to make laws (only binding in England and Wales)

The Voting System

We follow a First Past the Post System which means that candidates with the most votes in a constituency will win a seat. We have this as opposed to proportional representation. This is where seats are allocated in proportion to the number of votes cast.

Under S6 of the Electoral Registration and Administration Act 2013 which is due to come into effect on 01/10/2018, the number of MP's is said to be reduced to 600.

Parliamentary Power

Parliament has absolute power known as Parliamentary Sovereignty. Courts are unable to over rule Parliament's legislation. Laws are not binding to future Parliaments as they can be repealed.

Executive (Government)- Govern the country

Following a general election the Queens asks the party leader to form a Government (majority of 326). If no majority can be formed a coalition government is formed (formally or informally).

Once formed the Prime Minister selects the Ministers to form the cabinet (Secretaries of State and the Chancellor). They are responsible for certain government departments. They are assisted by a Minister of State (Junior Minister).

Whips are appointed to ensure discipline within a party. If you defy a Whip the member is expelled from the party. They keep their seat but sit as a independent.

The Prime Minister introduces a bill and it must be approved to become law. All MP's are expected to support the bill (collective ministerial responsibility). If they don't support the bill they are expected to resign.

Judiciary Apply the law and decide cases

Their judgement helps develop the law and they refer to judical precedent.

The Law Commission can be responsible for making law. They were created under the Law Commission Act 1965 to keep the law under review and reform it where necessary. they aim to repeal obsolete laws and modernise the law so it's easier to understand. It's made up of 5 and is chaired by a High Court Judge. The commissioners are barristers, solicitors and law teachers. They cover commercial, common, criminal, property, family, trust and public law.

Pros:

+ Fair

+Simple

+ Modern

+ Cost effective

Codification of the law- this is where all statutes and law are collected together into one place. This helps establish the law, creates certainty, precision and is easier to follow.

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The Creation of an Act of Parliament

A Parliamentary year is 12 months with 5 sessions.

Act ideas come from manifestos and the law commission.

Acts of Parliament introduce new laws, amend, reform and codify the law.

Preliminary Stages

- Green paper- allows people to give feedback on the proposed bill. It is optional to publish a draft proposal. If published this creates the consultation process.

- Consultation process- no set time period.

- once concluded the department explain the responses and how they will be used.

If there has been a consultation process then a white paper is published.

A white paper can also stand alone

- White paper- states a more definite intention, gives more detail.

Bill Classification

Subject Matter

1) Public bill- affects the whole country, introduced by a Government Minister.

2) Private bill- affects geographical areas, introduced by local authorities.

3) Hybrid bill- has aspects of a public and private ill (rare).

4) Private members bill- public bill, introduced by MP's and Lords

Originator

1) Government bill- introduced by Government Ministers and announced in the Queens speech.

2) Private members bill- introduced bu MP's or lords, can't involve public expenditure (usually fail).

Purpose

1) Law reform bill- politically uncontroversial.

2) Consolidation bill- usually uncontroversial, brings all parts of relevant law into one place.

How an Act is Created

A public bill starts in either house, it depends on volumes so the work load is spread out.

1) First reading- bill is formally presented to the house, copies are available for members to consider. Speakers certificate is issued here.

2) Second reading- relevant MP's/ Ministers explain the bills purpose and the house debate on the bill. The house then vote on the bill and if approved it passes to the next stage.

3) Committee stage- made up of at least 16 MP's and a Government Minister from the department supporting the bill. They look at each clause in detail and can amend or delete them where required.

4) Report Stage- the bill is formally reported to the house who then discuss amendments. Speakers certificate may also be issued here.

5) Third reading- the bill is reviewed by the whole house and minor amendments will be considered and voted on. Once passed through both houses it receives royal assent.

Speakers certificate- used in circumstances where bills/ part of bills cover only England and Wales and the subject matter is an area of law which has been devolved to Scotland, Wales and Northern Ireland.

Process with speakers certificate

1) First reading

2) Second reading

3) Committee stage (only consists of English and Welsh MP's)

4) Report stage

5) Grand legislative committee- consists of MP's but only English and Welsh MP's can propose amendments and vote. They must consent to the bill. If they refuse it goes to the reconsideration stage.

6) Reconsideration stage- further certificate can be issued by the speaker in relation to the amendments. The bill goes back to the legislative grand committee to vote again. This continues until agreed upon.

7) Third reading

Once passed in one house it goes to the other to repeat the procedure. It is passed back to the original house with amendments and voted on. Both houses must be in favour for it to be passed.

If it started in the House of Lords a speakers certificate can't be issued.

Parliament Acts 1911 and 1949- allows the House of Lords to block wills approved by the House of Commons.

- Money bills can be passed a month after rejection

- Other bills must be approved twice with a year gap between each before being passed.

Act Content

- Short title

-Chapter number

- Contents

- Long title

- Date of royal assent

- Words of enactment

- Section numbers

- Commencement

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Delegated Legislation

Delegated legislation/ secondary legislation is where a person/ organisation created legislation under the authority of the Parent/ Enabling Act. This means they have permission from Parliament.

They could make technical changes such as amending the level of fine given or fleshing out the act which allows them to add greater detail.

Government Ministers, local councils and judges hold the powers of delegated legislation.

Types of Delegated Legislation

1) Statutory Instruments- made by the government and gives authority for specific areas of authority. E.g. Transport minister gives power to alter traffic legislation.

- Regulations- fills in gaps in the law. Drafting is done by the relevant secretary of state.

- Rules- sets out procedures to be followed. Drafting is done by judges or other court staff under the Justice's, Clerks and Assistants Rules 2014.

- Orders- brings sections of acts into force which didn't come into force on the commencement date.

2) Orders in Council- passed by the Monarch and Privy Council, no Parliamentary involvement. The privy council is a formal body that advises the Queen. Members are mainly senior politicians who are current/ former members of either house. They have the power to make orders.

3) Bye-laws- brought into affect by local authorities and cover local areas e.g. traffic control.

Pros:

+ Passed quickly in emergencies

+ Saves Parliament time

+ Flexible

+ Parliament lack the technical knowledge/ expertise.

Cons:

- Large volume

- Poor drafting

- Obscure language

- Lacks democratic control

Controls

1) Publication- S2 of the Statutory Instruments Act 1946 says all SI's must be printed and put on sale after being made or a criminal offence can be brought.

2) Laying before parliament- enables Parliamentary scrutiny and two procedures.

- Affirmative procedure- both houses must vote in favour or it will not become law.

-Negative procedure- the act becomes law automatically unless their is an objection from either house.

3) Parliamentary Committees- there are two committees:

- Joint Committee on Statutory Instruments- looks for defects in the drafting and isn't concerned with the merit.

- House of Lords Secondary Legislation Scrutiny Committee/ Merits Committee - considers affirmative and negative SI's to determine whether the Houses attention should be brought to specific points. Looks at public policies, EU legislation, policy objective and consultation process.

4) Judicial review- anyone can challenge a piece of delegated legislation by applying to the High Court for a judicial review. There are two types:

- Procedural Ultra Vires- DL is deemed not to have followed correct procudre created by the Enabling Act.

- Substantive Ultra Vires- ontent of the DL is beyond the authority of the Enabling Act.

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Doctrine of Judicial Precedent

Judicial precedent is the process where judges follows previously decided cases where the case facts are similar. Follows Stare Decisis- stand by the decided. This ensures consistency.

Binding Precedent

Ratio Decidendi- reason for deciding

This forms the legal principle which is binding precedent. It is made up of Obiter Dicta.

Persuasive Precedent

Obiter Dicta-things said in passing

Things stated in the course of judgement which are not necessary to the decision a are not binding. The judge may speculate on what their decision may have been had the case facts been different.

Per Incuriam- decision reached by carelessness or mistake

Ways to Avoid Precedent

Distinguishing- If judges decide the facts of the case are not sufficiently similar he can distinguish between the cases by explaining the difference.

Overruling- A higher court can overrule a decision made previously by a lower court. The Court of Appeal can overrule an earlier High Court Decision. An overruling occurs where the previous court didn’t apply the law correctly.

Disapproval- When discussing a previous case, judges may comment that they disapprove. This is a less formal overruling.

Reserving - Reserving is the overturning on appeal by a higher court of the decision on the court below. The appeal court will then substitute its own decision.

Upholding- Upholding is where a higher court agrees with the decision of a lower court.

Case Names

Civil Cases

Williams v Smith (claimant v defendant)

If appealed the parties are called the appellant and respondent.

Probate Law

Re Johnsons (Re means in the matter of, followed by the name).

Probate law relates to issues following death e.g. wills.

Law in Relation to Children

Re M (Re, followed by first initial).

To protect identity. Only identified if the judge gives permission or they are in contempt of court.

Judicial Review Cases

R v Secretary of State for Transport ex parte Evans (R v Government Minister/public body ex parte claimant).

Criminal Cases

R v Edwards (R meaning Regina v defendant).

Multiple Parties

Miller v Smith, McFarlane v Gold (Claimant v Defendant, Claimant v Defendant).

Co-joined cases. Generally found in the Court of Appeal or Supreme Court.

Hierarchy of the Courts

County Court- decisions are not binding on any other court, deals with civil matters. Bound by the High Court

Magistrates Court- decisions made here are not binding and are not bound by their own decisions. Bound by all decisions of higher courts, deals with summary and some either way offences.

Crown Court- decisions on point of law by a judge are not binding, deals wtih appeal and serious criminal ffences. There is no obligation upon judges of the Crown Court to follow precedent.

High Court- bound by decisions in the Court of Appeal, House of Lords and the Supreme Court. Not bound by it's own decision.

Decisions are binding on the County Court.

Divisional Court of the High Court- they are bound by their own precedent but their decisions bind Magistrates, County, Crown and High Court. Bound by the Supreme Court and The Court of Appeal. There are three divisions:

Queen’s Bench Division

Chancery Division

Family

Family Court- decisions are bound by the Court of Appeal, House of Lords and Supreme Court. NOT the High Court. Not bound by own decisions.

Court of Appeal- there are two divisions. Bound by House of Lords and Supreme Court.

Civil Division- bound by its precedent, binding on High, Family, County and Divisional Court.

Criminal Division- not bound by its precedent, all cases are considered on their own merit. There is more flexibility. Binding on Crown and Magistrates Court.

Supreme Court- replaced the House of Lords. Hears appeals. Decisions bind all of the other English Courts. Bound by the decisions of the European Court of Justice, but not by its own decisions.

European Court of Human Rights- binds all UK courts.

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The European Union and the European Convention of Human Rights

Founded in 1957 as an economic union between six main countries:

1) Belgium

2) Germany

3) France

4) Italy

5) Luxembourg

6) Netherlands

There are currently 28 members of state. The UK joined in 1973 and will leave in 2019 after triggering article 50 in June 2016.

What is the EU?

The main principle of the EU is to promote greater social, political and economic harmony across Western Europe. The five main goals of the EU are:

To promote economic and social progress.

Speak for the EU on the international scene.

Introduce European citizenship of the EU and get 4 special rights.

Develop Europe as an area of freedom.

Maintain and build on established EU law.

Within the EU they have three main institutes:

The Executive governing body

The Legislative parliament

The Judiciary judge

EU Voting Systems

There are three different types of voting systems within the EU:

Unanimity- all members of state must agree. This is used for the most important decisions.

Simple Majority- a minimum of 15 of the 28 members of state must agree.

Qualified majority- each state is given a number of votes equivalent to the size of the population. 55% of the members of state must vote in favour. Proposals must be represented by at least 65% of the EU total population.

Five Institutions

European Council

This is a executive body headed by a President. The President’s election needs a qualified majority and voting is done by heads of state or government. A new President is elected every 2 ½ years but can be extended, once elected, to a total of 5 years. The council is made up of heads of state/ government. They meet four times a year.

They are the key EU decision making institution responsible for passing laws proposed by the EU. They can also pass secondary legislation/ directives and regulations. Responsible for all EU policies

European Commission

This is an executive body with considerable political power. It has 28 members known as commissioners and a President. Each commissioner heads a department of commission, e.g. agriculture, and is given the title of directorate general.

Council of the European Union

They have a legislative role and is the voice of EU member governments to pass directive and treaties. they have an executive function to make new laws and co-ordinate EU policies. It is made up of government minister from each EU country. Each country hold the presidency for 6 months, it is currently Brussels. Government ministers meet to discuss, amend and adopt laws. They have the authority to commit their government to the actions agreed on in meetings. Along with the European Parliament the council is the main decision making body in the EU. They also:

Negotiate laws

Adopt laws

Coordinate EU policies

Develop EU foreign and security policies

Conclude agreements between the EU and other countries

Adopts the annual EU budget

There are no fixed members of council, it is dependent upon what is being considered. The foreign affairs council has a permanent chair person. All discussions and votes take place in public and must have a qualified majority to pass. At least 4 countries are needed to block a decision.

There are some exceptions. Where there is a sensitive topic a unanimous vote is needed. Where the topic is administrative or procedural a simple majority will do.

European Parliament

This has a legislative function and consists of 751 members known as MEP’s. Each MEP is elected for 5 years with 73 MEP’s currently in the UK. Allocations of seats is done relative to the population size; proportional representation. MEP’s sit for one week a month and receive a salary and expenses of £6,500 a month.

The parliament can:

Propose changes to treaties

Approve, reject and amend secondary legislation

Must approve the EU budget

Must approve appointment of the president of the European commission

Must approve appointment of the European commission

Court of Justice of the European Union

Originally called the European Court of Justice. It has a judicial function and sits 28 judges, each appointed by their member of state. They are assisted by the Advocate Generals whose role is to give impartial advice to the Court of Justice. It interprets EU law and make sure it is applied equally and justly throughout all EU countries. They bring cases before courts if they feel their rights are infringed by EU institutions.

There are two courts:

General Court- deals with straight forward cases.

Civil Service Tribunal- deals with disputes between EU institutions and employees.

There are 5 main types of cases dealt with in the Court of Justice:

Preliminary rulings- Each member of state has a responsibility to ensure EU law is applied in their country. Under Art 267 Treaty on the Functioning of the European Union- if they unsure on the interpretation or legality of the law they must ask the court.

Proceeding for failure to fulfill an obligation- a commissioner of another state may start proceedings. The court investigate and if found at fault is ordered to amend this immediately. Failure to do so results in court fines.

Actions for annulment- any member of state, council of the EU or commissioner of the European Parliament who believes an EU law is illegal can ask the court to annul it.

Actions for failure to act- an individual or company can lodge a complaint with the courts to have the failure officially recorded.

Direct action- this is open to any individual or company who believes they have suffered damage from an action or inaction.

Sources of EU law

Treaties- this is a formal agreement between two or more nations and are primary legislation. They define powers of the institution, define the rights and obligations of member states, state the broad objections of the treaties and provide substantive laws. The UK joined the EU under the Treaty of Accession 1972. Treaties are binding to all member stated. They are constitutional documents and are divided into articles.

Directives- under Article 288 TFEU it allows secondary legislation to be made in the form of directives. They set out European law in general. They are secondary legislation and are binding to all members of state. It includes a time limit by which members of state are required to amend their national law. Failure to do so can lead to the European Commission taking action against members of state.

Regulations- it applies to all members of state directly.

Decisions- they are used to clarify regulations and directives. They can apply to one or more members of state and are binding.

Recommendations and opinions- they aim to persuade countries to move in the same direction and are not binding.

Horizontal and vertical direct effects

Horizontal effect:

EU law automatically becomes part of UK law

It’s binding to all citizens

Individuals can enforce an EU law against another individual in the UK

Vertical

EU law becomes part of UK law either automatically or because the UK failed to implement a directive within the time limit

It’s binding on the state

Where it becomes law due to unimplemented directive the member of state can’t rely on the failure as a defence

Where the law becomes law due to vertical effect the individual can’t use it against an individual, but can use it against the state.

Effect of European Legislation

How does the EU law affect the supremacy of Parliament?

The EU is a higher legislative authority.

The European Court of Justice can declare the UK law invalid.

If Parliament passes a law that conflicts EU law it is ineffective.

Effects of Brexit

When leaving the Union a formal notification must be made to the European Council. They must approve this with a qualified majority. The European Parliament must approve any agreement negotiated with the leaving state.

Human Rights Act 1998

Schedule 1:

Right to life

Prohibition of torture

Prohibition of slavery and forced labour

Right to liberty and security

Right to a fair trial

Right not to be convicted of an offence which was not criminal when convicted

Right to respect private and family life

Freedom of thought, conscience and religion

Freedom of expression

Freedom of assembly and association

Right to marry and start a family

Schedule 2:

UK courts are required to take into account decisions of the European Court of Human Rights (ECHR).

Schedule 3:

UK courts should interpret legislation in a way which is compatible with ECHR.

Schedule 4:

Where the higher court can’t interpret primary legislation which complies the ECHR they may make a declaration of incompatibility.

Schedule 6:

Public authorities are required to comply with ECHR

Schedule 7:

Anyone who is a victim of a breach by a public body can bring legal proceedings.

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The Court Hierarchy

Civil Courts

Civil court hears a wide range of cases from small cases to large loss and multinational cases. There are three courts of the first instance[1]:

County Court

High Court

Family Court

Rules Governing Civil Claims

The Civil Procedures Rules (CPR) (1998)- govern procedures that are followed within the English Civil Court system.

The overriding objective is “enabling the Court to deal with cases justly and at proportionate cost”.

Family Court Rules

Governed by the Family Procedures Rules (FPR).

The overriding objectives is “enabling the court to deal with cases justly, having regard to any welfare[1] issues involved.”

Starting a Case in Civil Courts

The claimant must decide which court to issue the case in; County Court or High Court. Generally cases are issued in County Court.

There are exceptions however. A claim will be issued in High Court if:

The claim is more than £100,000.

The claim has personal injury damages worth more than £50,000.

Where an Act of Parliament states specifically it should be issued to High Court e.g. slander or defamation.

Allocation

Once a case is issued to the Courts it will be allocated a track.

Small claims track- this is the normal track for defended claims to be allocated if it is under the value of £10,000 and personal injury damages are less than £1,000. At this point lawyers are unlikely to be involved as costs are not awarded. They are handled by litigants in person[2].

Fast track- this is where the value of the claim is between £1,000 and £25,000 for personal injury. It is expected that a trial is placed no later than 30 weeks after directions are given. The trial must not last over one day. Directions are standard directions and are instructions to the lawyers.

Multi-track- these are for complex cases where the personal injury value exceeds £25,000. The trial takes more than a day.

County Court

This is known as the Court Centres and deals with contract and tort law. They deal with civil wrong cases e.g.:

Bankruptcy and insolvency

Debt recovery

Personal injury

Landowner seeking to prevent trespassers on their land

Remedies are most often damages or equitable remedies. These are discretionary.

Appeal from county court is made to Divisional Court or High Court of Justice. In rare circumstances an appeal will be made to the Court of Appeal.

High Court of Justice

This is the third highest Court in the UK (Supreme, Appeal then High). It deals with civil cases and appeals of decisions made in lower courts. It is bound by decisions of higher courts and can bind decisions of lower courts. The judges don’t have to follow each other’s decisions. Previous decisions are deemed persuasive.

There are three divisions within this:

Queen’s Bench Division- it’s presided over by the president of the QBD. There are more than 70 judges. Deals with contact and tort matter. Deals with applications for judicial reviews. There are many court under this:

Commercial court- deals with complex cases relating to national and international business disputes.

Technology and construction chart- deals with UK and international case concerned with construction, technology and engineering cases.

Mercantile court- deals with business disputes to do with domestic and international sale of goods, restraint of trade and insurance and reinsurance.

Admiralty court- deals with shipping and maritime disputes such as salvage dispute and carrying cargo. They have the power to arrest a vessel and its cargo and to sell them.

Administrative court- deals with cases which looks at the lawfulness of the acts or omissions of central/local government, regulatory bodies and disciplinary bodies.

Planning court- part of the administrative court and deals with judicial reviews of planning matters.

Chancery Division- headed by the Chancellor of the High Court. There are 18 judges, 6 masters and 5 bankruptcy registrars. There are courts under this:

Bankruptcy court- deals with insolvency of individuals.

Company’s court- deals with insolvency of companies and applications for disqualification of Company Directors.

Patent court- hears complex cases which relates to patents and designs which have been registered.

Intellectual property and enterprise court- this deals with patents, trademarks, design and copyrights.

Family Division- this deals with child related cases and divorce cases. It is overseen by the President of the family division and will hear appeals from the Family Court.

Appeals from High Court and Division Court of the High Court

There are made by the Court of Appeal. Where a case is of public importance a leapfrog procedure can be used to move the case directly to the Supreme Court.

Criminal Courts

Criminal courts can hear civil cases. Cases involving TV licence fees or not paying council tax are heard in Magistrate’s court. Appeals are made to the Divisional Court not the Criminal Court of Appeal.

All cases start of in Magistrates Court until allocated. There are three different offence categories.

Summary offences- tried in Magistrates Court with a maximum of 6 months in prison, a £5,000 or community service e.g. assault.

Triable either way offences- tried in Magistrates or Crown Court e.g. theft.

Indictable offences- tried in Crown Court with a maximum of life in prison e.g. murder.

Allocation

A plea and allocation hearing takes place. The defendant enters their plea at the first hearing. If there is no indication of a plea or a not guilty plea is given it goes to an allocation hearing. If a guilty plea is entered the court considers sentencing.

The allocation hearing; firstly prosecutors outline the circumstances of the case to the court. Under S51 of the Crime and Disorder Act 1989 Magistrates Court may send the case to Crown Court if they believe their sentencing powers are insufficient. If they believe their powers are sufficient they accept jurisdiction.

If Magistrates Court accept jurisdiction the defendant can either stay or elect to move to Crown Court. If Crown Court accept jurisdiction the defendant has no choice in the matter.

When deciding what court to hear the case in certain factors are considered:

The nature of the case

The seriousness of the offence

Sentencing powers of the court

Aggravating and mitigating factors

Rules Governing Criminal Courts

The Criminal Courts are governed by the Criminal Procedure Rules 2010. The overriding objective is that “criminal cases must be dealt with justly”. ‘Just’ is defined as where the guilty are convicted and the innocent are set free.

The rights of a defendant are set out under Article 6 of the European Convention of Human Rights and must be respected. This is the right to a fair trial.

Courts

Magistrates Court- they hear the preliminary hearing and summary offences. They also have allocation hearings.

S85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 allows for unlimited fines to be imposed on more serious cases. There are suggestions to implement S154 of the Criminal Justice Act 2003 which increases the maximum sentence for one or more offenders in Magistrates Court to go to 12 months.

Appeals from here are made to Crown Court, they re-hear the case. If the appeal is based upon point of law it is made to the Divisional Court of the High Court (known as “by way of case stated”).

Youth Court- they deal with defendants age 10-17 and have specially trained magistrates. It is held in private and have a number of available punishment such as rehabilitation order, curfew, supervision, education, detainment and training orders with up to 24 months in custody.

Crown Court- These are tried by a judge (arbiter of the law) and a jury (decide upon facts).

Appeals from this court are made to the Court of Appeal based on the point of law, the conviction or the sentence.

Court of Appeal- there are two divisions:

Civil Division- hears appeals from family court, high court, divisional court of the high court and county court.

Criminal Division- hears appeals from crown court of the divisional court of the high court.

Appeals from the Court of appeal are made to the Supreme Court.

Supreme Court- it deals with civil and criminal appeals and issues of public importance.

Criminal Case Review Commission

Created under the Criminal Appeal Act 1995. It was created to investigate potential miscarriages of justice. Referrals are made by the Court of Appeal asking them to investigate or by criminals who were unsuccessful in their appeal.

To investigate further the commission needs new evidence, a new legal argument of exceptional circumstances.

They can refer the case to the Crown Court for a decision as to whether the defendant should have his conviction overturned or reduced.

Page 8

Alternative Dispute Resolution and Tribunals

ADR

ADR is a method to resolve a dispute without resorting to litigation. It is used under the circumstances where individuals have bought something or have provided a service and is dealing directly with the trader/person providing the service.

Before taking a matter to Court the judge expects parties to consider ADR before issuing proceedings. There are four types of ADR:

Negotiation- discussion between parties with an aim to reach settlement. Where no settlement is reached it allows the case to be narrowed down. Used in personal injury and employment claims.

Pros:

Efficient use of time

Inexpensive

Objectivity

Preserves good working relationships

Confidential

Control

Cons:

Waste of time if not successful

Unfair

Inequality of representation

Mediation- each party submits a brief written statement setting out their case with supporting documents which are sent to the other parties and the mediator. They ask questions to uncover the problem, assist parties in understanding issues and help to clarify options for resolving the dispute. Used for workplace, contractual disputes and family law.

Pros:

Less formal than court

Faster than court

Cheaper than court

Allows parties to present their view

Creates objectivity

Non-confrontational

Cons:

Lack of formality could lead to exploitation

Lack of legal advice could lead to exploitation

Conciliation- same process as mediation however the conciliator can propose compromises or settlements.

Pros:

Faster, cheaper and more informal than court

Share a clearer view

Objectivity

Non-confrontational

Can suggest a compromise

Cons:

Weaker party may be exploited due to informal setting and lack of legal advice.

Arbitration- governed by the Arbitration Act 1996 and used in civil cases. Parties submit their arguments and evidence to an independent arbiter who acts fairly and impartially. They decide on all case aspects. They are used for consumer matters, commercial disputes and technical and scientific cases.

Rights of appeal following an arbitration are limited. They are only allowed where there are serious irregularities or can be made on point of law where both parties and the High Court agree.

Pros:

Quicker, cheaper and more informal than court

Proceedings are private

Arbitrators will be experts in the field

Cons:

Limited rights to appeal

Tribunals

Tribunals come from previous problems in relation to costs and delays. It is chaired by a qualified tribunal judge with two experts or the judge alone. Specific tribunals exist to deal with disputes in specific areas of law.

Her Majesty’s Court and Tribunal Service administers the tribunal.

The overriding objective under S2(3) of the Tribunals, Courts and Enforcement Act 2007- “Senior President of the tribunals must make sure that tribunals are accessible and that tribunal cases are handled fairly, quickly and efficiently.”

Employment Tribunal

This is considered the most important tribunal and deals with disputes between employers and employees such as:

Unfair dismissal

Discrimination

Redundancy

Failure to pay the national minimum wage

Appeals are made to the Employment Appeals Tribunal.

Other Disputes

These are dealt with in the first tier tribunal.

First Tier Tribunal (Criminal Injuries Compensation) - Deals with appeals by victims of violent crimes in circumstances where they disagree with the Criminal Injuries Compensation Authority about the level of compensation awarded.

First Tier Tribunal (General regulatory Chamber) - Deals with appeals against decisions made by Government regulatory bodies in cases related to:

Charities

Conveyancing

Copyright licensing

Exam boards

Microchipping dogs

Pension regulations

First Tier Tribunal (Immigration and Asylum) – Deals with appeals against decisions made by the Home Office relating to:

Permission to stay in the UK

Deportation from the UK

Entry clearance to the UK

First Tier Tribunal (Mental Health) – Deals with applications for discharge from psychiatric units and a change to Community Treatment Orders and the conditions on conditional discharge from hospital.

First Tier Tribunal (Primary Health List) – Deals with appeals in circumstances where individuals are left of the list of NHS providers.

First Tier Tribunal (Property Chamber) – Deals with applications, appeals and references relating to property and land disputes e.g. rent increase, leasehold disputes and park home disputes.

First Tier Tribunal (Social Security and Child Support) – Deals with appeals against decisions relating to:

Attendance allowance

Bereavement allowance

Carer’s allowance

Child benefit

Compensation recovery scheme

First Tier Tribunal (Special Educational Needs and Disability) – Deals with appeals against local authority decisions regarding special needs.

First Tier Tribunal (Care Standards) – Deals with appeals against decisions by:

The Secretary of State for Education

The Secretary of State for Health

Care Quality Commission

Ofsted

First tier Tribunal (War Pension and Armed Forces Compensation) – Deals with appeals by current/ former servicemen against decisions made by Veterans UK in relation to pension and compensation.

Appeals

Appeals from the first tier tribunals are made to:

The Upper Tribunal (Administrative Appeals Chamber)

The Upper Tribunal (Immigration and Asylum Chamber)

The Upper Tribunal (Lands Chamber)

The Upper Tribunal (Tax and Chancery Chamber)

Tribunals Administered by Her Majesties Courts and Tribunal Services

Gang master licensing appeals

Gender recognition panel

Pathogens access appeal commission

Proscribed organisations appeal commission

Reserve forces appeal tribunal

Special immigration appeals commission

Pros to Tribunals

Fast so can get through a high volume of cases

Flexible in procedures

Informal

Access to expert advice

Cons to Tribunals

Costs not awarded

If lawyers are instructed the claimant must pay their costs

Legal aid not usually available

Page 9

Legal and Lay Personnel

Legal Personnel

Lord Chancellor

Under S2 of the Constitutional Reform Act 2005 a Lord Chancellor is appointed by the Prime Minister and must be a Government Minister. Under this Act the Prime Minister must take into account their experiences:

As a Minister of the Crown

As a Member of either House

As a qualified practitioner

As a teacher of law in a University

That are considered to be relevant

Their role in appointing justices of the Supreme Court are limited. The Justices of the Supreme Court are governed by the Supreme Court (Judicial Appointment) Regulations 2013. During selection the Selection Committee must submit a report to the Lord Chancellor setting out their choice of selection and which Senior Judges have been consulted. The Lord Chancellor then consults the Scottish and Welsh first Minister and the Northern Ireland Judicial Appointments Commission.

The Lord Chancellor has the power to reject a candidate and ask the committee to reconsider but must give a written reason as to why.

The Lord Chancellor is also responsible for:

Protecting the rule of law (S1 of the Constitutional reform Act 2005)

Preserving the independence of the judiciary (S3)

The overall strategy in relation to reforms of the criminal justice system

Human rights

Secretary of State for Justice

They are responsible for the Courts (HM Courts and Tribunal Services), the prisons (HM Prison Service) and Legal Aid (the Legal Aid Agency).

Judges

The judge is the arbiter of the law and gives written directions to the jury. A judge may hear a case without a jury under S44 of the Criminal Justice Act 2003 if there is fear of jury tampering, threatening or bribery.

The Courts a judge sits in depends on their experience and the category of judges:

Justice of the Supreme Court- This is the most senior judges in the UK and hear cases of public importance.

Lord Justice of Appeal- These senior judges have long judicial experience and sit in the Court of Appeal as well as the Divisional Courts of the High Court.

High Court Judges- They must meet the Judicial Appointment Eligibility Condition for at least 7 years of have 2 years experience sitting as a Circuit Judge. They sit in High, Crown and Family Court.

Circuit Judges- They must meet the Judicial Appointment Eligibility Condition for at least 7 years, be a Recorder or have served as a District Judge or Magistrate in a Civil Court for at least 3 years. They sit in Crown, County and Family Court.

Recorders- They must meet the Judicial Appointment Eligibility Condition for at least 7 years. They sit in Crown, County and Family Court. The majority are barristers and only sit part time.

District Judge- They must meet the Judicial Appointment Eligibility Condition for at least 5 years. Magistrate District Judges can sit in magistrates or Family Court, all others can sit in County and Family Court.

Chartered Legal Executives- They must meet the Judicial Appointment Eligibility Condition for at least 5 year. They can sit as a District or Deputy District Judge in Magistrates Court and in Civil Courts.

Application Process- Judges

This comes under the Constitutional reform Act 2005 which was established by the Judicial Appointment Commission. It was used to address criticism that judges were predominantly white men meaning cases were more bias. There is now a formal application process making it fairer.

To become a judge you must have:

Intellectual capacity, knowledge of the law, where to obtain it and the underlying principles.

Personal qualities e.g. integrity and honesty.

Ability to understand and deal with people fairly.

Authority and communication skills.

Efficiency and ability to work to deadlines.

Magistrates

They are not legally qualified but are given some training. They are sometimes called the Justices of the Peace.

To become a Magistrate you must have:

Good character

Understanding and communication skills

Social awareness

Maturity and sound knowledge

Commitment and reliability

There are certain eligibility restrictions:

You must be between 18 and 70 years old.

You can’t apply if you are over 65 years old.

Applications are made to the Local Advisory Committee and then approved by the Lord Chancellor.

Magistrates deal with lower level cases in Magistrates Court. They can also sit in Family Court after being given special training. They sit in a bench of 3 and sit for 26 half days a year. They are not paid but receive expenses. They may receive assistances from a legal advisor but only on matters of law and sentencing.

Pros:

Reduced cost

Drawn from local community, have local knowledge (must live within 15 miles of the Court)

Creates diversity

Cons:

Lack of training

Heavy reliance on the legal advisor

Bias towards police

Lawyer

The Legal Services Board oversees the legal profession and is independent from the government. It works with the approved regulatory bodies and was established to help meet the regulatory objectives of S1(1) of the Legal Services Act 2007. They aim to:

Protect and promote public interest

Support the constitutional principle of the rule of law

Improve access to justice

Promote and protect the interest of consumers

Promote completion of services provided by lawyers

Promote and maintain professional principles.

Any complains are firstly made internally to the correct authority. If it continues it is made to the Legal Ombudsman who is supervised by the Office for Legal Complaints. The service is free. The Chief Ombudsman is assisted by three other Ombudsmen. Their aim to try and resolve complaints quickly and informally. They can require parties to co-operate and award up to £50,000 compensation.

Barristers

They are self-employed and work in Chambers. Expenses are shared and a Clerk of Chambers is responsible for allocating work which is received through instruction.

Through the Public Access Scheme some work can be taken from individuals and organisations directly but they must undergo training to do this. Under the Legal Services Act 2007 barristers can work with solicitors and non-legal organisations known as Alternative Business Structure or legal Disciplinary Practices.

Barristers are known as Juniors until they receive their Silk, they are then known as the Queen’s Council.

They are regulated by the Bar Standards Board and their code of conduct. The Bar Council is the representative body of barristers.

There are five stage of qualification:

Academic- this is a qualifying law degree in law or another subject. They must achieve at least a 2(ii). They then take the Graduate Diploma in Law/ Common Professional exam.

Admission to an Inn of Court- must join one of the four. These are non-academic societies providing educational activities, library or dining facilities, common rooms or gardens.

Middle temple

Inner temple

Gray’s inn

Lincoln’s inn

Vocational stage- Must first pass the Bar Aptitude Test which is a test of critical reasoning. They then apply for a place on the Bar Professional Training Course at an accredited University. They can do a 1 year full time or 2 year part time course. During the course they are trained in written skills, legal research, advocacy skills and must undertake 12 qualifying sessions at their Inn e.g. educational/ social activities where other barristers attend.

Call to the bar- this is a formal call and a ceremony at their Inn.

Pupillage- must complete one year under the supervision of an experienced barrister. 6 months are non-practicing/ shadowing.

Solicitors

Solicitors work in partnerships/firms, limited companies, limited partnerships, ABS, multidisciplinary practice, sole practitioners or call centres. They may obtain a right of audience to appear in Magistrate, Crown, Intellectual Property Enterprise, Coroner’s Court of Tribunals. Specialists in litigation may choose to attain higher rights of audience and become solicitor advocates. This consists of taking a written and practical assessment and enables them to appeal in multiple courts (Crown, Family, High, Supreme Court and the Court of Appeal).

Solicitors are regulated by the Solicitors Regulation Authority (SRA0. Their code of conduct sets out 10 mandatory principles. They can impose disciplinary sanctions on firms and individuals:

Upholding the rule of law and the proper administration of justice.

Act with integrity.

Not allow your independence to be compromised.

Act in the best interest of each client.

Provide a proper standard of service to your clients.

Behave in a way that maintains the trust the public places in you and in the provision of legal services.

Comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner.

Run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles.

Run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity.

Protect client money and assets.

The representative body for solicitors is the Law Society.

There are three stages of qualification:

Academic- they are required to have a law degree, non-law degree plus a Graduate diploma in Law or have passed a Cilex Level 6 Exam.

Vocational- they must pass a Legal practice Course which is a one year full time or two year part time course. This covers legal and professional knowledge and includes: conveyancing, litigation, professional conduct, client care, accounts, legal research and interviewing skills. They are then a trainee solicitor and undertake a two year training contract which must cover multiple seats. They must also do a Profession Skills Course validated by the SRA which covers advocacy, oral communication, financial awareness, business accounts, ethics and responsibilities to clients.

Admissions- once admitted their name is added to the Solicitors Role, and they are qualified.

Chartered Legal Executives

When entering with no legal qualifications you can be a student or affiliate. You then study level 3 Professional Diploma in Law and Practice. There are 10 mandatory units and three optional units. They must also study two practice units. After completed this level 3 the student becomes an associate member of Cilex. They then complete a Cilex Level 6 higher diploma in Law and Practice which has two professional skills units, three law units and one practice unit. If passed they become a Graduate Member of Cilex.

They must do three years of qualifying employment. This consists of one year following becoming a graduate member. It must be 20 hours a week of a wholly legal nature. They are required to complete a learning scheme consisting of a log book, a portfolio of evidence and knowledge and skills.

Legal executives are mostly employed by solicitors or public bodies. They can also become partners in firms. They sign client account cheques, administer oaths but have limited rights of audience.

They are regulated and represented by Cilex regulations and must follow the Cilex code of conduct. There are nine principles to this:

Uphold the rule of law and the impartial administration of justice

Maintain high standards of professional and personal conduct and justify public trust in you, your profession and the provision of legal services

Behave with honesty and integrity

Act competently in the best interest of your client and respect client confidentiality

Treat everyone equally and fairly

Ensure your independence is not compromised

Act effectively and in accordance with proper governance and sound financial and risk management principles

Protect client money and assets.

Cilex membership grades:

Fellowship

Graduate member

Associate member

Affiliate member or student

Rights of Audience

County Court Direction 1978

This allows chartered legal executives employed by solicitors to represent clients in an unopposed County Court application for an adjournment and to represent a client in an application for a judgment by consent.

Higher Rights of Audience

Graduate members of Cilex and chartered legal executives can become qualified advocates in civil, criminal and family law. Members and non-members of Cilex can also apply to become conveyancing, probate and immigration practitioners.

Lay Personnel

Jury

Made up of 12 lay people. Jury summons are compulsory but can be deferred to work or hospital commitments. Jurors are not paid but can claim expenses e.g. loss of earning. The jury panel are brought into a Court and the Clerk reads out 12 names randomly.

Juries are selected under S1 of the Juries Act 1974 and must match the criteria:

Between 18 and 75 years old

Registered to vote in Local and Parliamentary elections

Been a resident in the UK since age 13 for 5 years

No mental disorders

Restrictions:

Served a prison sentence of 5 years or more

Been imprisoned within the past 10 years

Served a suspended prison sentence within the past 10 years

Served a community punishment order within 10 years

A juror can be challenged if, under S1 of the Juries Act 1974, they have a restriction or if there is a real risk of bias. The whole panel may be challenged if there is reasonable suspicion of bias. Both the Prosecution and the defence may make these challenges. From the case Abdroikof, Green, Williamson (2007) the House of Lords held that is a juror was perceived to show bias the conviction is quashed.

Under S8 of the Contempt of Court Act 1981 it is illegal to discuss the case outside of the Court. This ensures juror safety and non-bias. Juror are advised not to research the defendant and it could cause bias, the report could be wrong and a previous conviction doesn’t mean a guilty verdict of the current offence.

Communication with the defendant is prohibited and is held as contempt of Court (Attorney General v Fraill and Another: Knox 2011).

Pros:

Independent

Trial by peers

System has the confidence of the public

Decisions can lead to a change in the law (Pontin (1985))

Cons:

Longer to hear, increase in costs

Legally qualified people could sway the decision

Costly to other services

Difficult to understand legal terminology

Potential jury tampering

Influence from publicity