Paper 1 section A- legal system

Triable either way

Middle range offences which can vary in the degree of harm caused e.g theft and assault. These cases can either be tried in the Magistrates court or the Crown court

Summary

less serious offences always tried in the Magistrates court e.g minor driving offences and common assault

Indictable

More serious crimes always tried in the crown court e.g. murder, manslaughter and grievous bodily harm with intent

criminal law

A system of law concerned with the punishment of offenders. Seeks to punish for an offence

civil law

The system of law concerned with the private relations between members of a community rather than criminal, military or religious affairs

rule of law

The principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced. Innocent until proven guilty

claimant

a person making a claim, especially in a lawsuit or for state benefit

defendant

an individual, company or institution sued or accused in a court of law

tort

A civil wrong that causes someone else a loss or harm

contract

A written or spoken agreement, especially one concerning employment, sales or tenancy, that is intended to be enforceable by law

The burden of proof

A party’s duty to produce sufficient evidence to support an allegation or argument

The standard of proof

The amount of evidence that is necessary and needed to prove an assertion or claim in a trial in court

beyond reasonable doubt

the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial

assault

no touching required, no injury required, victim in fear of force

battery

requires touching but no injury

ABH- actual bodily harm

an assault or battery which causes some harm or injury (which can be psychiatric)

GBH- grievous bodily harm

requires serious injury (which can be psychiatric)

wounding

requires break to the skin

theft

means taking someone's property but does not involve the use of force

robbery

stealing from a person using force or making them think force will be used

burglary

means illegally entering a property in order to steal property from inside

plea before venue

defendant is asked whether he pleads guilty or not guilty

point of law

a particular question relating to the law, especially one that might need to be explained to people who are not experts

aquittal

a judgement or verdict that a person is not guilty of the crime with which they have been charged

legal aid

the defendant will be allowed to talk to a free duty solicitor and may have free representation if they plead not guilty 

bail

if there is a general right to bail

reports

e.g. a probation officer may be requested 

Modal of trial

Magistrates decide whether or not to accept jurisdiction. They will decide on the most appropriate court to try the case

jurisdiction at first instance

applies to those courts which try the case

appellate jurisdiction

a judgement or verdict that a person is not guilty of the crime with which they have been charged

unduly lenient

An unduly lenient sentence is one that falls outside the range of sentences that a judge, taking into consideration all relevant factors, and having regard to sentencing guidance, could reasonably consider appropriate.

aggravating

factors make the offence more serious and increase the sentence

mitigating

factors make the offence less serious and decrease the sentence

fines

a sum of money paid to the state, most common type of sentence given. Given to lower level crimes

compensation orders

money paid to the victims e.g. for injuries or loss or damage to property

absolute discharge

no penalty is imposed, court decides not to impose a punishment because the experience of court is punishment enough

conditional discharge

court discharges an offender on the condition that no offence is committed during a set period of up to 3 years.

if offender commits another crime, can be sentenced for the first offence and the new one

discharges

given for the least serious offences, person will be released from court without any further action. Still get a criminal record.

jurisdiction

the authority or power of the court to determine a dispute between parties as well as the territory over which the legal authority of a court extends.

Aggravating factors

an aggravating factor makes the offence more serious and increases the sentence e.g. previous convictions 

Modal of trial

Magistrates decide whether or not to accept jurisdiction. They will decide on the most appropriate court to try the case

jurisdiction at first instance

applies to those courts which try the case

appellate jurisdiction

applies to those courts which hear appeals

unduly lenient

An unduly lenient sentence is one that falls outside the range of sentences that a judge, taking into consideration all relevant factors, and having regard to sentencing guidance, could reasonably consider appropriate.

bail

if there is a general right to bail

reports

e.g. a probation officer may be requested 

challenge for cause

prosecution or defence can challenge right of individual juror to sit on jury e.g. because of connection with case or incapacity

prosecution right to stand by

allows the juror who has been “stood by” to be put to the end of the list of potential jurors, so that they will not be used on the jury unless there are not enough jurors

Jurisdiction of county court

• All contract cases up to £100,00 (including consumer disputes about goods and services)

• All tort claims up to £100,000 (£50,000 in personal injury claims)

• All cases for recovery of land 

• Cases relating to wills, trusts and inheritance (where the value does not exceed £350,000)

• Divorce and dissolution of civil partnerships 

• Bankruptcy

Tort law

the body of law that deals with legal theories of negligence and strict product liability 

Contract law

deals with how valid, enforceable contract is formed and what should happen if the parties to the contract fail to perform 

High court

The high court has three divisions, each of which specialises in hearing certain types of cases 

Queen’s bench division, chancery division and family division

Queen’s bench division

• contract and tort cases over £100,000 (£50,000 for personal injury)

• some complex multi-track cases transferred from the County Court

• (over £25,000)

•  appeals from the Magistrates’ Court on points of law

• complex cases arising out of business disputes (Commercial Court)

• shipping matters (Admiralty Court)

• disputes arising in the fields of construction, engineering and technology (Technology and Construction Court)

• applications for judicial review of the actions of public bodies (Administrative Court).

Chancery division

This Division deals with disputes relating to land, wills, companies and insolvency. It also has jurisdiction to hear intellectual property matters, including disputes about copyright and patents.

Family division

• cases relating to children

• exclusive jurisdiction in wardship proceedings

• (court custody of a minor)

• appeals from the Family Law Courts

What is the general rule in civil appeals?

General rule is that the appeal is heard by the next judge up in the hierarchy from the judge who initially heard the case 

Small claims track appeal

heard in the County Court by a District Judge, the appeal would be heard by a Circuit Judge. No further route of appeal afterwards

Fast claims track

Cases heard by a Circuit Judge, the appeal would be to a High Court Judge. There is a second appeal to the Court of Appeal (Civil Division) in fast track cases. Third appeal to the supreme court on a point of law of public importance, permission is needed

Multi-track claims

Multi-track cases decided in the County Court must be appealed to the Court of Appeal.

From a decision in the Court of Appeal, there is a further possible appeal to the Supreme Court on a point of law of general public Importance – permission is needed to appeal.

From a decision in the High Court, the appeal usually goes to the Court of Appeal. In rare cases, there may be a possible “leapfrog” appeal directly to The Supreme Court if statutory interpretation or precedent is involved, or the Court of Appeal is bound by one of its previous decisions. From the Court of Appeal, there is a further possible appeal to the Supreme Court on a point of law of general public importance

Advantages of the civil courts

• Fair

• Expert

• enforcement

• Appeal

• Legal aid

• precedent

• Some claims (small track claims) do not require a lawyer which makes it a cheaper option for the ordinary person pursuing a claim

Disadvantages of the civil courts

• Costs

• limited legal aid

• Delays

• Technical expertise

• Complicated process

• The court system is adversarial

• Uncertainty

Alternative dispute resolution (ADR)

People and businesses seeking other methods of resolving their disputes

Negotiation

• Parties reach agreement themselves with no third party. May use solicitors or unqualified representatives.

• Possible forms of negotiation – face to face, using telephone, email or conference calls.

• The process – continued talking / contact until resolution was made or failed.

Mediation

• Neutral person helps parties reach a compromise solution acting as a facilitator.

• Mediator does not offer an opinion unless asked – a third party plays a passive role.

Conciliation

• Neutral person helps parties reach a compromise solution

• Conciliator goes beyond mediation (takes an active role) in that they have the power to suggest grounds for compromise or a settlement.

Arbitration

• Both parties voluntarily agree to let an arbitrator (neutral 3rd party) or panel of arbitrators decide.

• Parties agree the procedure for hearings and this ranges from a “paper” arbitration to a formal court-like hearing.

• Arbitration awards are binding on the parties and can be enforced in the courts if necessary.

Advantages of negotiation

• Can be conducted by the parties themselves and do not need to use lawyers or other people.

• Can be used at any point in the dispute right up to the start of court hearing.

• Cheapest method of resolving a dispute.

• Preserves future business relationships.

Disadvantages of negotiation

• May not be successful – parties may still need to use courts and any agreement is not legally binding.

• Not suitable where parties are very antagonistic towards each other / not willing to cooperate.

• Repeated unsuccessful attempts may just prolong the issue.

Advantages of mediation and conciliation

• Parties are in control and can withdraw at any point if compromise is not possible.

•  Decisions can be based on commercial common sense rather than strict application of the law.

• Preserves future business relationships.

• Avoids adversarial conflict in the courtroom.

Disadvantages of mediation and conciliation

• No guarantee the matter will be resolved – may still have to go to court so the process has only added to cost and delay.

• Relies on skilled mediators / conciliators – so weaker parties are not forced to accept compromise.

• Amounts paid in mediated settlements are often lower than amounts agreed by other forms of ADR and awards by courts.

Advantages of Arbitration

• Parties can choose their own arbitrator – technical expert, lawyer or professional arbitrator.

• No need to call so many expert witnesses – arbitrators with expert knowledge can handle technical issues, saving time and money.

• Time and venue and procedure for hearing can be decided by the parties to suit their commitments. Often less formal so quicker and cheaper. Parties can even choose a paper hearing so work and life continues while waiting for the arbitrator’s decision in the post.

• Cases dealt with in private – open court hearings can lead to bad publicity in the media. A private hearing may make it less confrontational and aid future relations between the parties. However, the process is less transparent.

• Award is final – can be enforced by the courts.

Disadvantages of Arbitration

• An unexpected legal point may arise in the case which is not suitable for decision by non-lawyer arbitrators.

• Fees for professional arbitrators can be expensive.

• If parties opt for a formal hearing with witnesses giving evidence and lawyers representing both sides, this can be expensive.

• Delays for commercial and international arbitration may be as great as those in courts if a professional arbitrator and lawyers are used.

• Rights of appeal are limited. More opportunities to appeal following a decision of the court.

Benefits of ADR

• Cost- ADR is usually cheaper as there are no court costs incurred and potentially removes the need for legal advice.

• Control- The parties have more control over ADR rather than handing control to the courts.

• Parties- The matter will be dealt with in private and therefore no publicity.

• Less adversarial-  ADR encourages cooperation and allows relationships which might otherwise have been destroyed in court to continue.

• Expertise- The parties can choose their own mediator / conciliator / arbitrator, i.e. a technical expert

• Speed- ADR will allow matters to be resolved more quickly than going through a court hearing.

Employment tribunals

Employment tribunals make decisions about disputes between employers and employees.

Tribunals are like “mini courts” which operate alongside the court system and they deal with certain types of dispute that cannot be taken to court.

What are the most common types of employment disputes?

unfair dismissal, redundancy, unfair deductions from wages and discrimination.

Starting an employment tribunal

1. First the parties must attempt conciliation, a process in which an organisation called Acas tries to help the parties reach an agreement.

2. If no agreement is reached, the Claimant (employee) can file a claim form (ET1) to the employment tribunal either online or by post.

3.  The claim is served on the employer who must respond within a certain time.

4.  The Tribunal sends the claimant a copy of the employer’s response.

5. The Tribunal may request a “case management” hearing to establish what claims are being made and issue instructions to both parties about how it expects them to prepare the case.

Composition of a tribunal

• Heard by a panel consisting of an employment judge (legally qualified) and two non-legally qualified members 

• One person will usually be from an employers’ organisation and the other from an employees’ organisation).

Stages of a tribunal hearing

• held in office buildings and the hearings are in individual tribunal rooms. Most hearings are open to the public but the tribunal can make an order that the hearing should be heard in private.

• Hearings are “inquisitorial” (investigative), with the panel asking questions to find out all the information they need.

• Both sides are given an opportunity to put their case.

• Some formal procedures are followed with witnesses giving evidence on oath and being cross-examined.

•  Both parties or their representatives make closing submissions which gives them the opportunity to summarise their case to the tribunal.

• Once the hearing has finished, the tribunal panel will adjourn to consider its decision. It may give its judgement the same day or send the decision in writing later. The Tribunal must give reasons for its decision.

• An appeal to the Employment Appeal Tribunal (EAT) is only possible on a point of law (i.e. if a legal mistake has been made).

Barristers

usually work in the courtroom as an advocate representing people during their trial.

counsel's opinions

Barristers usually specialise in giving advice on detailed legal issues

advocacy

representing clients in a court

What areas of law do barrister’s work in?

criminal law, family law, commercial law or personal injury 

Direct address

a member of the public can now approach a specially- trained barrister directly for advice.

role of barristers

• Giving advice / holding case conferences

• Advocacy

• Drafting documents

• Negotiating settlements

• Writing opinions on a case or an aspect of a case.

• Undertaking legal research.

The General Council of the Bar

represents the interests of barristers in England and Wales. It promotes the Bar’s high quality specialist advocacy and advisory services and makes known the Bar’s view on issues (such as legal aid) to the government.

Bar Standards Board (BSB)

an independent body which regulates the profession of barristers. The purpose of the BSB is “to promote and maintain excellence in the quality of legal services provided by barristers to support the rule of law”. It does that by setting standards of entry into the profession and by setting out a Code of Conduct with which barristers should comply.

Making a complaint against a barrister

• Chambers from which the barrister practises using its complaints

• procedure.

• If the complaint is not satisfactorily resolved, then a complaint can be  made to the Bar Standards Board. It can discipline any barrister who is in breach of the Code. If the matter is serious, it will be referred to a Disciplinary Tribunal.

• If the complainant is unhappy with the decision of the Bar Standards Board, he or she may take the matter to the Legal Ombudsman. mThis is an independent and impartial body set up under the Legal Services Act 2007. Has the power to ask the barrister to apologise to the client, give back any documents the client might need, refund or reduce legal fees or pay compensation of up to £50,000.

• It is also possible to sue a barrister in the civil courts for negligence.

• In Saif Ali v Sydney Mitchell (1990) a barrister was sued for negligence in respect of written advice and opinions

Solicitors

usually work from behind a desk giving legal advice to the general public. Solicitors prepare the case and provide more general initial advice and instruct barristers when necessary. They are the first point of contact for people seeking legal advice

What area’s of law do solicitors work in?

conveyancing (the transfer or property from one person to another), wills and probate (dealing with the estate of a deceased person), family matters (e.g. divorce, child custody), negligence (e.g. personal injury claims) and commercial law.

role of solicitors

• Meeting with clients – finding out their needs and establishing how to help, offering advice on a range of topics such as housing,

  consumer problems and family problems.

• Taking instructions from clients – researching relevant areas of law where appropriate and proposing courses of action to clients.

• Drafting letters, contracts and other legal documents.

• Negotiating on behalf of clients.

• Advocacy – representing clients at tribunals or in court. All solicitors have rights of audience in the lower courts, and can apply for higher courts qualification

 Law Society

is the governing body of solicitors. It exists “to represent, promote and support all solicitors, so they in turn can help their clients”.

Solicitors’ Regulation Authority (SRA)

sets the training standards for entry into the profession. It also sets a code of conduct for solicitors and deals with complaints about professional misconduct.

Making a complaint against a barrister

• Initially the complaint should be made directly to the solicitor or firm, explaining the reason for the complaint.

• If the matter is not resolved, the complaint can be made to the Solicitors Regulatory Authority. The SRA has powers to investigate misconduct, including the power to require solicitors to explain their conduct and to produce documents. 

• In cases of serious professional misconduct, the Solicitors’ Disciplinary Tribunal can fine a solicitor, suspend them so they cannot practise for a certain period of time, or even strike off a solicitor from the roll.

• If the complainant is unhappy with the decision of the SRA, they may take the matter to the Legal Ombudsman. 

• There is the possibility of suing the solicitor in the civil courts. In White v Jones (1995), a solicitor failed to draw up a will, resulting in two daughters not being able to inherit any money when their father died. They successfully sued the solicitor in negligence.

legal executives

A chartered legal executive is a qualified lawyer who is trained to specialise as an expert in one particular area of law.

Areas of law legal executives specialise in

• conveyancing – the legal side of buying and selling property

• company and business law – advising on legislation that affects

• clients’ businesses such as tax, contract and employment law

• family – advising on divorce and matters affecting children

• probate – dealing with wills, trusts and inheritance tax

• personal injury – handling accident claims

• crime – advising clients accused of crimes.

Where are legal executives employed?

 mostly employed in private law firms, but some will work “in-house” for organisations or businesses. They work with solicitors and individuals, advising clients, drafting documents and conducting research to find solutions to problems.

Regulation of legal executives

• All legal executives are members of the Chartered Institute of Legal Executives (CILEx) which has a published code of conduct which it expects legal executives to comply with.

• CILEx Regulation Board is the independent regulator and investigates complaints about legal executives. If there has been misconduct, the Professional Conduct Panel may reprimand or warn a member. In serious cases, the Disciplinary Tribunal has the power to exclude a person from membership and order the legal executive to pay a fine.

The judiciary

As a group, judges are referred to as the judiciary. Their main role is to make decisions and apply the law and legal rules in a fair, unbiased way.

The judiciary is divided into what are known as “superior” judges (those in the High Court and above) and “inferior” judges (those in the lower courts).

Justices of the supreme court

• Hold the highest judicial office. 

• They hear appeals on points of law of the greatest public and constitutional importance in civil and criminal cases. 

• They usually sit as a panel of 5 or more.

Lord/Lady Justices of appeal

• Sit in the Court of Appeal hearing appeals in civil and criminal cases. Decisions on points of law become precedents which lower courts must

• follow. 

• They usually sit as a panel of three judges.