Revision:OCR AS Law - Legal Personnel

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Thirty years ago very few people had contact with the legal profession. Today, the majority of people will use a lawyer at some point in their life - to purchase a house, get divorced, or make a will. Therefore, the amount of legal personnel has seen great expansion in recent years. In 1970 there were fewer than 30,000 solicitors and barristers; whilst in 2000 there were over 100,000. In the same period, the judiciary has grown to ten times its original size. Now instead of the 300 judges that existed in the 1970s, there are 3,000.

In 2001, the turnover of solicitors in England and Wales was a record £10.4 billion, of which £1 billion came from overseas earnings. Large city firms can have turnovers of hundreds of millions of pounds each year.

The Judiciary

Selection and Appointment

Due to the vast expansion of the judiciary in recent decades it has been forced to publicise its practices and pressurised to increase openness in the way judges are selected. This pressure and the need to ensure a sufficiently diverse background of judges in the light of its increasing political power has led to the Lord Chancellor’s Department introducing a range of reforms to the appointment process.

• Lord Chancellor has a crucial role
• SUPERIOR JUDGES (High Court+) – appointed by the Lord Chancellor’s Department, may involve the ‘old boys’ network’ and may mean the process is corrupt
• INFERIOR JUDGES (Below High Court) – appointment process changed by the Courts and Legal Services Act 1990 – posts are now advertised and potential candidates apply for interview. The Lord Chancellor has the final say
• THE SENIOR JUDICIARY (Lord Chief Justice, Master of the Rolls, President of the Family Division) – Lord Chancellor puts names forward to the Prime Minister; who are normally accepted

Training

• The Judicial Studies Board – provides judges with initial training and keeps them up to date with legal developments.
  • There is a one week residential course for newly appointed judges, followed up by refresher courses

Tenure

• Judges have very secure tenure – need to know their decisions will not result in dismissal
• Independent from governmental pressures
• Superior judges covered by the Act of Settlement 1700 – can only be dismissed with the consent of both Houses of Parliament who petition the Monarch (last happened in 1830)
• Inferior judges – can be dismissed by the Lord Chancellor under the Courts Act 1971 – rarely used
  • For contracted judges, the Lord Chancellor can choose not to renew their term
  • More likely that judges are persuaded to resign than formally dismissed
• The Lord Chancellor may remove a judge who has a permanent disability which means they cannot perform their duties

Independence

• Lord Chancellor is a political appointment, yet he appoints the judiciary
• Media pressure
• Narrow social background
  • Women make up 15% of the judiciary (But has improved in recent years)
  • Most began practice in the 1970s where most law graduates were white males
  • Ethnic minorities underrepresented, although now 25% of law graduates are non-white (10% of population) – 3% of judiciary
  • In 2002 the youngest High Court Judge was 47, all but one of the Lords of Appeal were over 60
    • Over 89% of solicitors and barristers with over 20 years experience are male
    • Average length of service before judicial appointment is 21 years
  • 78% from Oxbridge
• Little financial incentive – many take a pay drop from their career as a lawyer, pay does not increase particularly significantly up the hierarchy of the judiciary ( The Lord Chief Justice only gets double the amount a District Judge gets)
• Salaries are paid by the Consolidated Fund – free from Government
• Judges must be free from any self interest in companies, lobbying groups and charities
  • Re Pinochet (1998) - Lord Hoffman was seen as having an outside interest through his association with Amnesty International

SIRROS v MOORE (1974) - confirmed that judges have immunity from suit

Role

• Overseeing the conduct and procedures of trials
• Acting as legal experts on points of law
• Criminal cases – summing up, informing the duty of the relevant law, delivering sentence on a guilty verdict
• Civil cases – deciding the facts of the case, decide verdict where there is no jury, deciding the remedy for the injured party
• Judicial Review – Queen’s Bench Division of the High Court
  • Examines the legality of a decision made by the Government, a court, a public organisation, organisations such as the Football Association
  • Can overrule the earlier decision if it finds that:
    • It involved an error of law
    • Was so unreasonable that no authority would normally have made it
    • Goes against natural justice

District Judges

• Sit in Magistrates’ Court and hear cases alone
• Created by the Access to Justice Act 1999
• Previously known as Stipendiary Magistrates
• Only around 1000 – half sit in London courts
• Are fully legally qualified – at least 7 years experience as a lawyer
• Full time and salaried
  • Auld Report - proposed that a new type of court is staffed by a District Judge and two lay magistrates to hear middle-ranking cases
• Sit in the County Courts – normally hear small claims cases

Recorders

• 1300
• Part-time – spend time as a lawyer too – sit between 4 and 10 weeks per year
• Sit in the Crown Court
• Work on a fixed term contract (usually 3/5 years)

Circuit Judges

• Hear more complex civil cases in the County Courts, sometimes Crown Court
• Around 600
• Lawyers with at least 10 years experience, or existing Recorders and District Judges

High Court Judges

• Lawyers with at least 10 years experience, Circuit Judges or academic lawyers
• Since CLSA 1990, posts can be applied for
• Lord Chancellor ultimately makes choices
• Sit in one of 3 courts – the High Court, the Crown Court (very serious cases), the Divisional Courts (appeals)

Lords Justices of Appeal

• Court of Appeal
• High Court judges or those with at least 10 years rights of audience in the higher courts

Lords of Appeal in Ordinary

• House of Lords
• Selected from judges of high seniority

The Role of the Lord Chancellor

1. EXECUTIVE - A member of the Cabinet – political capacity in the Government. Appointed by the Prime Minister
2. LEGISLATURE - A member of the House of Lords – involved in the legislative process
3. JUDICIARY - Head of the Chancery Division of the High Court – judicial role, appoints most of the judiciary

The Separation of Powers

• Set down by Montesquieu – a French philosopher
• Executive, Legislature and Judiciary
• Lord Chancellor present in all 3 areas

Barristers and Solicitors

• The Courts and Legal Services Act 1990
• The Access to Justice Act 1999

Barristers

• Approx 10,000
• Professional body is the Bar Council
  • Oversees the training, work and discipline of barristers
  • A powerful, self-regulating organisation
  • Sets its own rules and standards and is very defensive of its members
  • Reluctant to change
• Normally self-employed
• Not allowed to form partnerships – work in a chambers
• Clerks arranges allocation of cases, negotiates fees etc
• Extremely expensive – fees can be slow coming as well as huge student debts
• Can apply to become a QC after 10 years practice – awarded by the Lord Chancellor to the best Junior Barristers (around 10% are QCs)
• Have immunity from suit, cannot sue for non-payment
• May be promoted to the judiciary – often means a pay cut
• Government is looking at a more independent complaints body (CLSA 1990)
• Long training – 2 routes
  • Law degree
    • One year Bar Vocational Course (organised and monitored by the Bar Council)
    • Join one of the four Inns of Court in London – make connections, socialise
    • Be called to the Bar – fully qualified as a Barrister
    • Must be a pupil for a total of 12 months before appearing in court – usually two 6 month periods
      • Usually shadows a barrister for the first 6
      • Then represents clients in court for the last 6
  • Non-Law degree
    • Common Professional Examinations or Postgraduate Diploma in Law – one year conversion course
    • BVC
    • Inns of Court
    • Called to the Bar
    • Pupillage

Roles:

1. Advocating for clients in the Crown Court
2. Preparing ‘opinion’ for clients
3. Preparing pre-trial papers - efficient as possible

Solicitors

• Approx 80,000
• 8,700 firms
• Professional body is the Law Society
  • Support solicitors
  • Uses a disciplinary procedure if there are any complaints made about solicitors by the public
  • Oversees training, is coming under pressure for change and modernisation like the Bar Council
• May work in a practice or run their own business
• Since 1996 can be made QCs
• About 15% employed by local authorities such as the CPS
• Needs a Certificate of Advocacy to work in the Crown Court and above
• Since the CLSA 1990 solicitors have more opportunity to represent clients in court
• Immunity from prosecution seems to have been lifted
  • Hall v Simons (2000) – prior to this lawyers could not be sued for their work as advocates
• Law Degree or Non-Law degree + CPE/PDL
  • Legal Practice Course (1 year)
  • 2 years on the job training – including a 20 day Professional Skills Course
  • Enrolment with the Law Society – now a solicitor
  • Ongoing training

Roles:

1. Advocating for clients in the Magistrates’ Court
2. Drawing up and processing wills and testaments
3. Divorce proceedings
4. Issues concerning tax
5. Production of commercial contracts

Cases

• Rondel v Worsley (1969) – barristers’ first duty is to the court
• Saif Ali v Mitchell (1980) – clients can sue barristers for written advice
• Hall v Simons (2000) – Barristers should be able to be sued for negligence like doctors
• Griffiths v Dawson (1993) – compensation can be claimed when a solicior uses the wrong procedure
• White v Jones (1995) – relatives of dead man sued solicitor for failure to produce his will when instructed

Fusion

• Idea approached in the Royal Commission on Legal Services – Benson Committee (1979) and the Marre Committee (1988)
• Marre Committee suggested barristers should be able to take instructions from professionals other than solicitors. (This happened in the CLSA 1990)
• Research showed that over 85% of clients did not see their barrister until the day of the trial
• Law Society survey 2001 – public think lawyers are “formal, expensive and predatory”
• Fusion debate supported by the Office of Fair Trading Report 2001
• The Bar Direct Scheme (2000) increased direct access to barristers – set up by the Bar Council
• Access to Justice Act 1999 – solicitors get full rights of audience, solicitors and barristers can form partnerships, barristers can take cases from start to end

Michael Zander: “To have one taxi meter running is cheaper than having 2 or 3”

Paralegals

• Work in a supporting role to solicitors and barristers
• There is a Paralegal Association which represents their interests
• Not as established as Legal Executives

Legal Executives

• Largest group of non-professional but legally-qualified workers
• Work alongside barristers and solicitors
• Around 23,000
• They work whilst they train - approx £9000 a year salary while training, raising to over £20,000 once qualified
• Take courses and exams organised by their professional body – The Institute of Legal Executives (ILEX)
  • Training is a combination of self-study, evening courses and day release
  • Employer often helps with the costs of the course
  • 3 main steps to qualification: Student:
    • Complete Part I and II of the qualification (family law, civil disputes, conveyancing etc)
    • Apply for enrolment (membership)
    • Fellowship – for full admission must be over 25 and have 5 years experience in a legal office
• Day to day work is very similar to that of a solicitor
• Go to court to support clients
• May attend police stations to gather information from detained clients
• Always work under the supervision of a solicitor
• Very flexible training structure – can lead to being a fully qualified solicitor

The Legal Services Ombudsman

• Investigates the way complaints about barristers and solicitors are handled
• If they find a complaint was not dealt with adequately, the LSO will ask the Bar Council or the Law Society to review the matter
• Established as part of the Courts and Legal Services Act 1990
• Works on behalf of the public
• Under the Access to Justice Act 1999, it can order that a solicitor or the Law Society pays compensation to a client
• Found that the Bar Council handles 90% of complaints satisfactorily

Changes in the Legal Profession=

1. Law outlets are being planned for shopping centres, High Streets and community locations where potential customers may be found.
2. Some solicitors operate premium-rate telephone advice lines that are advertised in local newspapers. This is an effective way to start a relationship with a potential client.
3. As in the USA, it is expected that internet legal advice will soon be available – it may be appropriate for low-cost straightforward tips; but the difficulty of holding the adviser co account if things go wrong will put some people off.
4. The ‘no win no fee’ system has led to an array of companies who use TV promotions and leafleting campaigns to get work.

The Prosecution Process

In 1986, the Crown Prosecution Service was established. It employs solicitors and barristers to prepare criminal cases for court independently of the police.

• Crown Prosecution Service – formed in 1986
• Before 1986, the decision whether to prosecute suspects was taken by the police
  • Each of the 43 police forces was free to implement its own policies = geographical inconsistency
  • Police may not be sufficiently independent to decide whether a prosecution would be in the interests of justice
• 1981 – Philips Royal Commission on Criminal Procedure – set up to review police powers and examine the prosecution process
  • Concluded that a new independent body was needed which would take over cases after a charge had been brought
  • The Government formed the CPS in 1986
  • Prosecutions can still be brought by individuals and bodies such as the Serious Fraud Office, Customs and Excise and the Inland Revenue

The CPS

• Headed by the DPP
• DPP is responsible to the Attorney General – a political appointee who is also legal advisor to the Government
• DPP may get personally involved in very serious and important cases that come to the CPS’ attention
• Created by the Prosecution of Offences Act 1985
• Glidewell Report 1998
• Narey Review 1997 – criminal justice units – piloted in late 1990s – discontinuance rates dropped from 12% to 7% on average
• Functions:
  1. Review evidence to assess chance of conviction
  2. Give guidance to police re evidence
  3. Prosecution of cases in the MC
  4. Instructing advocates to present cases in the CC
• Before 1999 Prosecutors employed by the CPS could not advocate in the Crown Court – now if they have the correct qualifications this is allowed
  • The CPS currently has around 400 solicitors with higher rights of audience – better efficiency and cost-effective case handling
• Decision to prosecute based on 2 tests
  1. The Evidential Test – there must be ‘a realistic prospect of conviction’
     1. Evidence must be admissible, reliable and substantial
  2. The Public Interest Test – against a person of authority? Etc
• A Code for Prosecutors gives the CPS detailed guidelines – sets out lists of possible aggravating and mitigating factors
  • This is periodically reviewed like the PACE codes
• Initial problem the CPS faced was understaffing – salaries were too low so attracted less experienced lawyers – developed a mediocre reputation – tackled by funding increases in 1990s – fully staffed in 1993
• Criticism that the CPS discontinues/downgrades too many cases
  • The Glidewell Report (1999) found that on average 12% of cases were discontinued
    • Criticised the fact that over half of all acquittals are directed by the judge after concluding that the evidence is insufficient – fault of CPS or police?
    • Too many discontinuances due to witnesses not attending court or giving different versions of their account
    • Success rate of cases that do reach court is high – 98% in the magistrates’ courts resulted in conviction, 88% in the Crown Court
    • Criminal Justice Units were set up in most police areas to facilitate communication between the CPS and the Police
• Accused of being over-bureaucratic and top-heavy
  • In 1997 the Government restructured the CPS into 42 areas in line with the 43 police forces – decentralise control and give more power to Crown Prosecutors. Until then it operated as a national service from a central office.
    • Does this conflict with the initial aim of the CPS – independence from the police and produce consistency?
    • Complies with Glidewell Report and Narey Review
    • A Chief Crown Prosecutor heads each of the 42 areas and liases with the police
• Since 1992, the CPS and the Probation Service have worked closely together in putting together pre-sentence reports
• The Glidewell Report (1999) – CPS not as effective as thought it would be in 1986
• In 2002, the CPS inspectorate reported a number of weaknesses in the system

CPS CASES

1. The murder of Stephen Lawrence – the CPS felt there was insufficient evidence to provide a realistic prospect of a successful prosecution. The family of the murdered young black man took out a private prosecution, but this was thrown out of court by the judge for insufficient evidence.
2. R v Field (2001) – The CPS may prosecute a crime years after it took place. In this case, the tragic murders of a number of children in the 1970s were solved when, in 2001, an offender was arrested for drunk driving whose DNA matched that of the offender in the 1970s. He pled guilty to the murders in November 2001.
3. The Joan Francisco Case (1998) – the family brought a private prosecution after the CPS decided not to prosecute a murder case. Their case was successful, so the CPS reviewed it and successfully prosecuted for murder in 1999

Lay Involvement in the Justice System

Magistrates

• Around 30,000
• Part-time, hear minor criminal cases in the Magistrates’ Courts
• Not legally qualified
• Hear approximately 97% of all criminal cases
• Unpaid, except for expenses such as travel and subsistence
• Usually sit on a bench of three
• First female appointed on New Year’s Eve 1919
• Anyone between the age of 21 and 60 may be considered (reforms to make this 18-60)
• Very few people under the age of 27 become magistrates
• A Local Advisory Committee considers applications, interviews candidates and puts forward suitable names to the Lord *Chancellor’s Department
• It is hoped that the magistracy represent the LOCAL public proportionately
• Involves ordinary people in the justice system
• Retire at 70
• Can be removed for incompetence or for gaining a criminal conviction – this happens to around 10 magistrates per year
• The Employment Act 1996 obliges employers to allow employees who are magistrates time off work to fulfil their role
• LCD lists qualities which magistrates should have:
  • Good character
  • Personal integrity
  • Sound common sense
  • Good team worker
  • Firm yet compassionate
  • The ability to weigh up evidence and reach a conclusion
  • Good local knowledge
• Magistrates must live within 15 miles of the Court and have resided there for a minimum of 12 months
• Certain people cannot become Magistrates:
  • Anyone not of good character and standing
  • Undischarged bankrupts
  • Members of the armed forces
  • Members of the police
  • Traffic wardens
  • Close relatives of someone on the same bench
  • Anyone who is disabled and cannot carry out the duties required
• The social background of magistrates has been criticised - they are largely middle class, middle aged professionals
  • Defendants often have socially and economically deprived backgrounds, some argue that most magistrates to not understand these issues
  • The political makeup is largely Conservative
  • Easier for elderly, retired people to be magistrates than young professionals
  • The application and interview process may disadvantage the working class
• Spend between 26 (minimum) and 35 (expected) half days per year hearing cases
  • Should be prepared to sit for a full day if necessary
• Hear summary offences – majority of minor driving offences, petty crime etc
• Deal with either way offences – may send to Crown Court for trial
• Pass indictable cases to higher courts (murder, rape, GBH etc)
• Decide bail conditions and issue arrest warrants
• Hear youth and family cases in the Youth Court – Magistrates with additional training
• Grant licenses for alcohol, entertainment, gaming etc
• Loss of earnings are paid if magistrates lose money from performing their role – employers are not always supportive, despite the Employment Act 1996

Training of Magistrates

• Receive initial training
• Magistrates’ New Training Initiative (MNTI) has introduced a mentor system. It aims to help them understand basic law and procedure, develop judgement skills and develop team working skills
• All training undertaken is done in their own time - evenings and weekends. The extra training when the Human Rights Act 1998 came into force led to the resignation of many Magistrates

Powers of Magistrates over Summary Offences

1. Imprisonment for up to 6 months (12 for 2 related offences)
2. Suspended sentence of imprisonment
3. Fine of up to £5000
4. Compensation order of up to £5000
5. Probation order
6. Community service order
7. Conditional or absolute discharge
8. Hospital order
9. Drug abstinence order
10. Drug treatment order
11. Curfew order

Reform of the Magistracy

• Cost – increased sentencing powers would mean more cases are heard in the MC rather than the CC = cheaper
• The Human Rights Act 1998 promotes accountability by making magistrates explain their judgements more fully
• Greater use of I.T. to make paperwork more efficient and accessible
• More pressure for qualified, paid magistrates – District judges – cost implications

The Auld Report – October 2001

• Made 300 recommendations for changes and improvements to the courts system
• Some cases will be transferred from the CC to the MC – reduced right for defendant to elect trial by jury
• New court containing 2 magistrates and 1 district judge will be created
• Some cases traditionally heard by Magistrates now dealt with by post - e.g. failure to pay a TV licence

Juries

• Must be listed on the electoral role
• Must be at least 18
• Must have lived in the UK for 5 years or more from the age of 13
• People between 65 and 70 can choose whether to serve
• Over 70s are not selected
• Hear less than 1% of civil cases
• The following are disqualified from jury service:
  • Police officers
  • Traffic wardens
  • Barristers and solicitors
  • People with mental illness
  • People who have been in prison or received a suspended sentence within the last 10 years
• The following have discretion over whether to serve on a jury:

MPs

• • Doctors (important job)
  • Members of the armed forces (difficult to arrange)
  • People who have served within the last 2 years
• Judges may excuse the following types of people, or arrange service for a later date:
  • Parents of young children
  • People who have pre-booked holidays which conflict with the proposed service time
  • Students with exams

Therefore, it can be argued that juries are unrepresentative of the overall public. Judicial discretion, excusals and disqualifications narrow the pool of potential jurors.

R v DANVERS (1982) – juries need not be racially balanced

Selection

• At random from the electoral register
• Provides a cross-section of the public
• Further selection in court – choose 12 from a random pool using cards

Role of Juries

Criminal Cases – In the Crown Court where the defendant pleads not guilty. A jury is obliged to produce a unanimous decision initially, which may be reduced to 11:1 or 10:2. Must discuss the case for at least 2 hours and 10 minutes

Civil Cases – very rarely used. Hears actions involving fraud, defamation, false imprisonment and malicious prosecution – cases where the defendant’s reputation is at stake. They decide liability and the amount of damages to be awarded. In the County Courts, there is a jury of 8. In the High Court, there is a jury of 12.

Alternatives to Jury Trial

The Auld Report, October 2001, recommended:

• Smaller juries
• Fewer disqualifications and excusals
• Greater support for jurors
• Allowing judges more power to overrule ‘perverse’ verdicts
• Reducing the randomness of selection (case where 12 people from the same street were selected)
• Juries to be told of defendant’s previous convictions
• Copies of summaries of the case should be given to juries

The report generally suggests that juries should be weakened, whilst Magistrates should be strengthened.

Government Funding

The Access to Justice Act 1999

The Legal Services Commission

• Formerly Legal Aid Board (had functioned for over 50 years)
• Came into effect on 1st April 2000
• Aim: “to promote and develop legal services that can be delivered within a controlled budget and to target them according to need”
• Makes contracts with providers of legal advice
• Around 5000 solicitors available under the scheme = significant reduction

The Community Legal Service

• Now handles civil cases
• Functions:
  • Coordination of the set budget throughout the regions
  • Targeting funds at the most deserving cases
  • Providing general information about the legal system
  • Providing support in resolving disputes
• Funding relies on criteria set down by the Government, including the calculation of:
  • Cost v benefit
  • Money left in the CLS fund
  • Importance to the public interest
  • Importance to the individual
• From January 2001, organisations that wish to provide Government-funded legal services for civil cases must have a contract from the CLS
• From April 2000, most civil cases subject to ‘no win, no fee’, or conditional fee, arrangements. Cases which fall outside of this are subject to a new funding code which gives priority to housing cases and those involving wide public interest

The introduction of new ways to fund the legal system and attempts to encourage competition within the profession has led to reforms such as:

1. The introduction of US style ‘No-win-no-fee’ conditional fee arrangements,
2. The reduction of cases eligible for legal aid,
3. The abolition of the solicitors’ monopoly on conveyancing, and
4. The abolition of the barristers’ monopoly on advocacy in the higher courts

Since the late 1990s, court fees charged for bringing a case to court have been set at levels which cover the full court costs of the case.

Unlike most other countries, the English legal system relies heavily on the use of lay participants in the form of magistrates and juries. Approximately 30,000 lay magistrates hear over 97% of all criminal cases and a substantial amount of family work. In the Crown Court, a judge and lay jury hear around 3% of criminal cases.

Many lawyers regard this extensive use of non-legally trained lay people in the criminal justice process as a valuable form of direct participation, which retains intimacy between the justice system and public values.

Despite the strong support for continued use of lay participants in the legal system, in 1999 the Labour Government introduced a Bill to curb the right of the defendant to elect jury trial in certain types of case. The legislation was intended to speed up the justice system by reducing the workload of the Crown Court and save over £100 million a year in less serious cases that the Government said did not merit trial by jury. However, the House of Lords defeated the Bill twice, leading the Government to abandon the proposed legislation.

Comments

• Suitable for: AS Level Law, OCR board (mainly unit 1)
• Written by: Lauren18
• From this thread.