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Paper 1 - English Legal System & Criminal Law

Law People

Solisters

Roles

Please - Pro Bono
Try - Translating client discussions into legal terms.
Contacting - Client interviewing
Lawyers - Legal admin
Really - Representing cases
Fast - Finance managing

Regulations

Solicitors are employed with about 150K solicitors in the uk.
They work in law firms (DLA Piper) / courts/ stations and ‘In house’.
The governing body for a solicitor is the law society
- Support solicitors
- Uses a disciplinary procedure if there are any complaints made about solicitors by the public
- Overseas training, is coming under pressure for change and modernisation like the Bar Council
The regulations for solicests is the Solicitor Regulation Authority who deals with complaints about professional misconduct of solicitors.

Barristers

Roles

Review evidence
Advocacy (prosecute and defend)
Writing document
Prepare for court
Advise clients
Negotiate settlements
Court
Appeal the law
Knowledge of law
Examining evidence

Regulations

There are about 35K Barristers in the UK.
They can be employed and self-employed.
They can be found in courts and chambers.
The governing body for barristers 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
The regulations for a barrister is the Bar Standards Board
- They set the training standard
- They created the Code of Conduct barristers need to follow
- They will investigate and discipline any barristers who break the code of conduct.

Legal Executives

Roles

Specialise in one area
Contact professionals on behalf of clients
Represent clients in court
Advise clients
Prepare bills for clients
Prepare legal documents and contracts
Explain legal matters to clients
Draw up wills

Regulations

There are about 8K legal executives in the UK
They are employed
They can be found in law firms
The governing body and regulations for legal executives is the Chartered Institute of Legal Executives.
- Training is a combination of self-study, evening courses and day release
- Employer often helps with the costs of the course

Judges

Types

There are 2 groups of judges; superior judges and inferior judges.

Inferior - Circuit Judges, District Judges and Recorders.
Superior - appointed by the Lord Chancellor’s Department - Superior judges are Justices of the Supreme Court, Lord Justices of Appeal and High Court Judges.

Inferior Judges

Hear cases of First Instance in the Courts of First Instance - Magistrates, county, crown and sometimes the High Court
Decide the law and facts
Allocate their cases to their correct track.
Hear mainly small track cases
Give the remedy to the situation
These cases are within strict time - carried out fairly in the court.

Superior Judges

Justices of the Supreme court hear appeals from the Court of Appeal and the High Court.
Appeals on points of law of general public importance and appeals with arguable points of law.
Listen to the arguments from both sides
Decisions will become precedents.
Lord Justices of Appeal hear appeals from the High Court, County Court and certain Tribunals.
Can hear cases in lower court
Hear appeals against the decision made by the court - liability and remedy awarded.
High Court Judges hear cases in the High Court but sometimes Crown Court.
Hear cases of First Instance and Appeals.
Hear evidence from the witness, decide what the law is and make a decision (liability)

Roles: Civil

Take a more active role
Deciding the facts of the case
Decide verdict where there is no jury
Deciding the remedy for the injured party
Will decide on time limits and penalties if appropriate
Determine the final decision in regard to the law
Determine how much, if any, compensation is owed/ other penalties such as an injunction
Determine how much and if the unsuccessful party pays for the successful party's costs.

Roles: Criminal

Judge acts as a referee
Summing up
Informing the duty of the relevant law
Delivering sentence on a guilty verdict

Decides legal matters (which evidence is admissible, whether bail should be granted)

Regulates the trial - make sure each party has a chance to speak + that witnesses or defendants are not unduly bullied or harassed
Making notes on the relevant points
Carefully explain these to the Jury (so they does not influence them)
Advise and answer questions from the Jury
Decide whether or not a majority sentence is acceptable.

Sex

Higher court = 3 women v 34 men - civil appeal

26% women - high court +

44% female in magistrates court (District Judges)

Ethnicity

80.6% white 8.5% ethnic - minority

Improving - increased in the last 20 years

Background

75% = Oxford or Cambridge

65% = Private schools

Good education = good decision making

Lay People

Jurors:

The use of Juries - used in 4 courts:

Crown Court

Jury - 12 people
Deal with serious criminal cases, such as murder and rape.
Their duty is to decide the verdict - Guilty or not guilty?

High Court

Jury - 12 people
Deal with - False imprisonment, Malicious imprisonment, defamation and any case alleging fraud
Their Duty is to decide the liability of the claimant (this means, have they proved their case?) and decide the number of damages the defendant must pay the claimant.

Country Court

Exactly the same as the High Court, except their Jury consists of 8 people rather than 12.

Coroner's Court

Jury - varies between 7 - 11.
Deal with - Death: In custody, As a result of an act or omission by a police order, Where the death was a notifiable accident, poisoning or disease.
Their duty is to decide on the cause of death

Qualifications

The present qualifications are set out in the Juries Act 1972 which state, in order to qualify an individual, one must be:

18 - 70
Registered as a parliamentary or local government elector
Resident in the United Kingdom, the Channel Islands or the Isle of man for at least 5 years since their 13th birthday.
Selected from the electoral register by Central Summoning Bureau – legal obligation
Ballot to decide which case
Challenged
Sworn in and take oath

They are disqualified if:

Sentenced to five years or more imprisonment (Disqualified for life)
Served a prison sentence or suspended sentence or community order (Disqualified for 10 years)
On Bail (disqualified whilst on bail)
Mentally ill and disordered individuals under the Mental Health Act 1983 are disqualified.

Blind and deaf people are also disqualified because they won't be able to see the evidence or hear certain ways the evidence/other individuals involved communicate and their specific way of saying and pronouncing things. Also if a sign language interpreter was invited in, that would mean the Jury would consist of 13 people, when the rule is 12.

Selection

Selected at random from the electoral register - Jury Central Summoning Bureau
Summons sent to these people
They must attend unless the will have to pay a £1,000 fine
Must attend for 10 working days
Provides a cross-section of the public
Background check
Further selection in court – choose 12 from a random pool using cards

Appointment

A court clerk will select 12 out of 15 potential jurors at random
If the jury member knows who stands for hearing they must tell the judge and the judge will decide if they stay on the jury

Vetting

When the potential Jurors are checked for suitability, there are two types of vetting:

Routine Police Checks - Made on prospective jurors, to eliminate those disqualified. R v Mason (1980) Where a Chief Constable had been allowing widespread use of unauthorised vetting of criminal records. However, the Court of Appeal approved this type of vetting. They pointed out that since it's a criminal to serve a Jury whilst disqualified, the police were only doing their duty of preventing crime, by checking such records.

Juror's Background checks - Attorney-General published guidelines in 1980 on when political vetting of jurors should take place. These state that this type of vetting should only be used in exceptional cases, involving national security and terrorist cases, to check the individuals' political affairs and their loyalty.

Challenges

Individual jurors may challenge for a cause - for example, they know the juror.

The whole panel may be challenged for biassed selection - but no right to a multi-racial jury (R v Ford (1989))

Roles: Civil

Juries in civil cases are now only used in very limited circumstances but where they are used they have a dual role.

They decide whether the claimant has proved their case or not, then if they decide that the claimant has won the case, the jury also goes on to decide the number of damages that the defendant should pay to the claimant.

Rules for when juries may be used in civil cases are set out in section 69 of the Senior Courts Act 1981, for High Court cases and section 66 of the County Courts Act 1984, for cases in the County Court.

These acts state that parties have a right to a jury trial in the following cases:

Defamation
False imprisonment
Malicious imprisonment
Any case alleging fraud

HOWEVER, A jury can be refused if the judge feels the case involves complicated documents or accounts or scientific evidence and is therefore thought to be unsuitable for a jury trial.

Roles: Criminal

Although juries are very important, in the criminal justice system, they actually deal only in a minority of the cases.

The jury can try a case in the Crown Court, and if the defendant pleads not guilty and the trial proceeds further, they will be tried before the jury. There is a split function in that the Judge decides the points of Law and the Jury decides the facts. The Judge has the power to direct the jury to acquit the defendant because the judge has decided that the prosecution's evidence has not made out a case against the defendant (This is called a direct acquittal and occurs in 10% of cases.)

The judge will sum up the case at the end, and direct the Jury on any point of Law involved. The Jury retires to a private room and makes a decision on the guilt or innocence of the accused in secret. They must try to come to a verdict that they all agree on. The Judge must accept the verdict, even if they disagree with it!

The Jury discussion takes place in secret and there can be no inquiry into how the jury reached its verdict. The Contempt of Court Act 1981 makes disclosure of anything that happened in the Jury room.

Advantages and Disadvantages

Advantages	Disadvantages
Public Confidence	high acquittal rates undermine confidence in the Criminal Justice System
Considered to be a fundamental part of a democratic society	doing Jury service is unpopular
Jury Equity	this can cause perverse verdicts (Jury relying on their opinion of what's right and wrong, rather than the law)
Open system of justice	Media Influence - ie. they may say in The Sun that the defendant is a rapist when they could actually be innocent, and the jurors may read this and therefore be influenced in making their verdict
Involves members of the public	media influence is a disadvantage.
Secrecy of the jury room protects jurors from pressure	reasons for the decision are not known and the Jury's understanding of the case cannot be checked.
Impartiality (Having 12 members with no direct interest in the case should cancel out any bias)	some cases there have been biassed and racial bias

Magistrates:

Qualifications

No specific qualifications
Must be the right character – 6 key qualities
- Good character
- Understanding & communication
- Social awareness
- Maturity & sound temperament
- Sound judgement
- Commitment & reliability
Age: 18-65 *retire at 70 (some disqualifications, e.g. serious criminal conviction or undischarged bankrupt)
Commitment of 13 days per year
Local Advisory Committee selects and appoint
Names can be put forward by anyone and adverts are used
Candidates interviewed and names put forward to Lord Chief Justice.

Selection

Appointed through recommendation for recruitment of advisory committees, public bodies of current magistrates and non-magistrates.
Local Advisory Committee - volunteer
- Interview 1 - maturity, sound judgement + reliability social judgement, understanding and communication, good character
- Interview 2 - case studies

Appointment

There are 700 new magistrates appointed per year
They are appointed by the Lord Chief Justice based on recommendations from the Local Advisory Committees
Such committees have 12 members and at least 1/3rd are non-magistrates

Roles: Civil

Magistrates hear cases in the family proceedings court and make decisions on a range of issues affecting children and families.
Magistrates also decide whether to grant certain orders, licences or certificates.
council tax bills, television licences and enforcing debts owed to the gas, electric and water utilities.
Enforce financial penalties

Roles: Criminal

They try about 97% of all criminal cases.
Also deal with preliminary hearings in the remaining 3% of criminal cases.
Issue warrants for arrest search
Grant applications for bail or remand defendants in custody
In summary trials determine whether a defendant is guilty or not
Pass sentence on a defendant who has been found guilty
May decide to hear an either-way offence if the defendant also agrees.
Sit in the Crown Court with a judge to hear appeals from Magistrates’ Courts against conviction or sentence
Sit in the Crown Court with a judge to hear committals for sentence
Commit defendants convicted of either way offences to the Crown Court for sentence
Sit in the Youth Court to hear cases involving young offenders aged 10-17

Criminal Court Procedure

3 Categories of Criminal Offences

Summary Offences

Least serious criminal offences.

Must be trialled in the Magistrates' court

Indictable Offences

The most serious offences that have to be trialled in the crown court

Strats at the magistrates court to find the identity of the defendant

If the defendant pleads not guilty, a jury will decide if the defendant is guilty or not after hearing all the evidence

If the defendant pleads guilty, the judge will impose a sentence

When sentencing the judge can impose any sentence up to the max of tha offence (murder, Mansalughter and robbery)

Trial Either-Way

More serious offences

These offences contain include assaults causing actual bodily harm and theft of property over £200

These differences can be trialled in either the magistrates or the crown court.

If it started at the magistrates - then the process is similar to summary offences the only difference is that if the defendant pleads guilty or is found guilty, the magistrates have the power to send the defendant to the crown court for sentencing. - they can only do this if they think that they cannot give an adequate sentence.

If the case starts at the crown court the trial will continue like an indictable offence. if the defendant pleads guilty or is found guilty, the judge decides the sentence up to the maximum of that offence.

Pre-trial procedures

The defendant will be put before the Magistrates’ Court who will deal with administrative matters (known as an Early Administrative Hearing). This may be done by a single Magistrate or the Legal Adviser who will make decisions about legal aid and bail.

Summary offences

They aim to complete the case as quickly as possible. When the hearing starts the court clerk will take the defendant's plea (weather they say they are guilty or not guilty)

Over 90% of defendants in the magistrates’ court plead guilty.

If the defendant pleads guilty, the magistrates can sentence the defendant immediately or adjourn the case to allow for a pre-sentence report to be made by the probation service (these reports outline the defendant’s circumstances and can aid the magistrates in their sentencing).

The jurisdiction of the Magistrates’ Court is imprisonment up to 6 months for one offence and Magistrates can also impose community-based sentences, fines and conditional or absolute discharges.

If the defendant pleads not guilty the magistrates will try to find the issues involved and set a date for the trial.

Indictable offences

After the preliminary administrative matters have been dealt with at the Magistrates’ Court, a defendant charged with an indictable offence will be sent to the Crown Court. If the defendant pleads guilty to an indictable offence, the judge will pass sentence. If the defendant pleads not guilty, he or she will be tried by a jury who will decide the verdict. If found guilty by the jury, the judge will pass a sentence.

Triable either way

After the Early Administrative Hearing, a person charged with a triable either-way offence will have a ‘plea before venue’ hearing where the defendant will enter a guilty or not guilty plea. If the defendant pleads guilty, the magistrates will sentence. If however, the magistrates believe that the defendant deserves a more severe punishment than they have the power to give, the magistrates will send the defendant to the Crown Court for a judge to pass sentence.

If the defendant pleads not guilty, there will be a ‘mode of trial’ hearing. Magistrates will consider the case and decide if they accept jurisdiction (have enough sentencing power). They will consider the seriousness of the case and hear reasons from both the prosecution and the defence. If the magistrates decline jurisdiction, the case will be sent to Crown Court for a trial by judge and jury. If the magistrates accept jurisdiction, the defendant has the right to opt to be tried summarily at the Magistrates’ Court or choose a trial by jury at the Crown Court.

Sentencing

Types of Sentences

Custodial services

Community service/ Community Penalty

Fines

Divided into levels which carry out different maximum fines:

Level 1 - max £200 (magistrates)

Level 2 - £500 (magistrates)

Level 3 - £1000(magistrates)

Level 4 - £2500 (magistrates)

Level 5 - unlimited (magistrates + crown)

Discharge /others

Aims of Sentencing

Deter - General (all)/ individual (one)

There are 2 types: general and individual.

This aim is to reduce crime by dissuading people from offending or reoffending.

Individual deterrence

The aim is to deter that particular person from re-offending. A custodial sentence could act as a deterrent as the offender who is sent to prison will be reluctant to reoffend as they do not want to be

sent back in the future.

General deterrence

The aim is that people will be deterred from committing crimes by the level of punishment that they will receive if convicted. People convicted of certain crimes will be given a very harsh sentence to deter others from committing the same crime. This might be used if a particular type of crime has become a problem in an area – for example football hooliganism, joy-riding or mobile phone robberies.

Rehabilitation - back to public

To reduce crime by reforming the offenders and h=rehabilitate them into society. To alter the offenders’ behaviour so that they don't reoffend.

An offender is helped to solve the issues that lie behind his/her criminal behaviour. Eg - A drug addict who steals to fund their habit may be assisted to overcome their addiction thereby removing the need to steal in future. A person who reacts aggressively and commits acts of violence may be sent on an ‘Anger Management’ course. Other offenders may be helped to develop their social skills and some may undertake training to improve their chances of employment.

Individualised community sentences are often used to help rehabilitate the offender in the hope that this will reduce the chance of reoffending in the future. The probation service will often be involved to help the offender deal with the issues that have resulted in their offending

Protect the public

Main aim is to protect the public from violent or prolific offenders. For Example, Imprisonment removes these criminals from the public domain by restricting their liberty. In physically restraining offenders, it protects the public, albeit temporarily from becoming the victims of further acts of crime. a drunk driver will be disqualified from driving. Offenders who are subject to a curfew or electronic tag will restrict their movements and therefore, reduce their contact with the general public.

Retribution - punishment

To punish the offender who deserves punishment for carrying out a criminal act(s). The idea is that if a person has knowingly done wrong, they deserve to be punished and society expects that they are. NOT to reduce the amount of crime or fix the offender’s future behaviour.

Only concerned with the offence that was committed and making sure that the punishment fits the crime.

“An eye for an eye, a tooth for a tooth and a life for a life” used in America as convicted shoplifters are made to stand outside the shop that they stole from with a sign proclaiming that they are a thief.

Reparation

Aim at compensating the victim of the crime by ordering the offender to pay a sum of money or to make a reparation like giving back something they stole. They could also carry out work in the community encouraging offenders to accept responsibility for their crime.

Factors of Sentencing

Aggravating factors will increase the sentence and mitigating factors will reduce the sentence. In the Magistrates’ Court, it is the magistrates who decide on the sentence whilst at the Crown Court it is the judge who sentences the offender.

Aggravating

These are factors which make an offence more serious and can result in a more severe sentence being passed. They can include a number of things such as the use of a weapon, a premeditated attack, if the offence involved a breach of trust, a racist or religious motive behind the offence, if the victim was particularly vulnerable. It also includes any relevant previous convictions and if the offence was committed whilst on bail.

Mitigation

Mitigating factors may relate to the offender and can include previous good character, personal circumstances and the fact that they have shown remorse. Under s.144 of the Criminal Justice Act 2003, a prompt guilty plea can reduce the sentence by up to one third. This reduction reduces the closer it gets to the trial.

Other mitigating factors include assisting the police, the fact that the offence was committed on the spur of the moment rather than being premeditated, the fact that the offender was provoked or an attempt by the offender to compensate the victim.

Appeals

From Magistrates Court

From Crown Court

Key Terminology

An indictment - formal charge
Prosecution a trained lawyer who tries to prove the defendant guilty of committing a crime in a court of law
Defence - people that are facing indictment
Point of Law of General Public Importance - no right to appeal to the supreme court as permission is needed
Jury Nobbling - the actual of attempted influence of one or more jury members through intimidation or inducement.
Manifestly Severe - sentence might be deemed too severe/strong/harsh
Unduly Lenient - leapfrog procedure (sentence might not be strong enough) - skip court of appeal (precedence)
Unsafe Conviction - (conviction - outcome/ guilty) - police misconduct evidence, the law applied incorrectly
Trial de Novo - new trial
Double Jeopardy - defendant cant be trialled unless new evidence is found

Civil Courts and Tracks

County court

If the defendant is a company, a registered office must be situated there.
All contract claims & almost all tort actions up to a value of £50,000 can be tried in the county court; the only tort action that can't be tried is libel.
Most county courts deal with divorce cases, bankruptcy cases, tax cases, land law disputes.
All fast-track actions must be taken in the county court.
Appeals are heard by a circuit judge (small claims cases), a single High Court judge (fast-track cases) or a court of appeal (multi-track cases).
In all cases leave to appeal must be granted.

Small Claims Arbitration procedure: has a jurisdiction to hear cases up to a value of £5000 (£1000 for personal injury claim). Less formal procedure and a district judge presides over this (legal aid not available). This arbitration has dealt with many cases that could not have been pursued in the county court itself because of the high costs, delay and complexity.

High court

The high court is set up in divisions: Queen's bench, chancery and family division. There is no financial limit to the jurisdiction of the high court.

Queen's Bench

Traditionally hears contract and tort actions, it also has jurisdiction to hear defamation (mainly libel) cases. The Queen's Bench is the most important of the divisional courts and has three main areas of jurisdiction:

under the magistrates courts act 1980 appeal to the queen's bench is by way of case stated on a point of law.
most important area of jurisdiction: 2 judges assess the legality/decisions of public bodies, especially of government ministers.
has oversight of all inferior courts.

Family

has jurisdiction over matrimonial matters, including contested divorce actions, wardship, adoption and uncontested probate matters. Example: Re A (conjoined twins) 2000.

Chansory

mainly exercises an equitable jurisdiction and deals with contested probate matters, trusts, mortgages, bankruptcies, company and partnership cases and taxation matters.

Advantages and disadvantages of using civil courts

Advantages	Disadvantages
Small Claims Court is less formal than the main County Court, with a District Judge taking an active role, setting time limits and asking questions	ADR is encouraged, but not always appropriate or enforced by judges
Solicitor not needed in many cases, unless the claim is contested	Expensive and time-consuming cases can prevent many claims from reaching the High Court
Simplified and single set of rules governing both the High Court and the County Court	QBD is based in London, but the Chancery division has bases around the country

Pre-trial Procedures

Most civil cases start at the county court.

Court is the very last option and the pre-trial procedures help fix most of the problems to avoid using court hearing.

First they explain the conduct and set out the steps the court would want people to normally take before court.

Certain claims must be started in their court:

Amount of claim	Which court
Less than £10,000 or in £1000 for personal injury claims.	Small Claims Court
Less than £100,000 or £50,000 for personal injury claims.	Must be started in the County Court
More than £100,00 or more than £50,000 for personal injury claims.	Can be started in the county court but is more likely to be started in the High court

Small Claims Court

Claima under £10,000 + £1000 for personal injury
Claimant encouraged to represent themselves in order to keep overall costs low
The “winner” cannot recover thee cost of the solicitor, if one is used, from the loosing party
Heard by a District Judge
Minior civil cases
Informal setting
No strict rules of evidence, no cross-examination
Use of lawyers is not encouraged + witness are dicouraged or not allowed

The Fast Track

Claims of no more than £25,000
Strict time tabe for pre-tiral matters, to ensure no wasting time
Aim for claim to be heald within 30 weeks of being received by court
Heard by a Circuit Judge
High value claims
More formal and heald in an open court
Lawyer is allowed and only one expert witness allowed
Judge directed by civil procedure rules to manage each claim
This is an attmept to reduce time wasting by council an subsequent running up cost

The Multi-Track

Claims of more than £25,000
Heard by a more senior judge (circuit or hogh court judge)
Most formal
Judge has a more “hands-on” apporach
- They manage tometab;es
- Gathering evidence
- Control of expert witnesses
Use of alternate dispute resolution is encouraged by the judge where possible
Trial dates are set and strictly enforced which generally a 72 weeks

Civil Appeals

If either party in a case is dissatisfied with the decision made by the judge at first instance, then it is possible to appeal.

From County Court

Appeal’s against the district judge’s decision can only be made if there was a serious irregularity in the proceedings or the district judge made a mistake of law. The application for appeal will be referred to a Circuit Judge who may either dismiss the appeal or order that it be listed for hearing. The appeal itself will be heard by a Circuit Judge.

From High Court

From the High Court the appeal usually goes to the Court of Appeal (Civil Division)
On a point of law
Leave to appeal required
Possible leapfrog appeal directly to the Supreme Court
Can only leapfrog if statutory interpretation or precedent is involved or the Court of Appeal is bound by one of its own previous decisions
Permission to leapfrog required from the Supreme Court

ADR and Employment Tribunals

Both employment tribunals and ADR are ways of resolving disputes without going to court.

Employment tribunals involve disputes between employees (or potential employees) and employers.
DR generally involves disputes between consumers and traders. The most common types of ADR are mediation and arbitration.

Negotiation

Negotiation is the most basic form of ADR, where an individual attempts to resolve the issue directly, privately and possibly face to face with the other party. However there is a chance that their problem might not have been resolved. For example, this would be suitable for:

noise caused by neighbours
returning faulty goods to a shop
receiving poor service from a tradesperson.

Negotiation is not binding, involves cooperation informal and the procedure is controlled by the parties disputing.

Advantages and Disadvantages

Advantages	Disadvantages
It can be straightforward contract between parties.	One of the parties may be hostile towards the other
Low to no cost - no need for lawyers	Either party may believe they are in the right and not prepared to settle
The parties themselves are in control	If the dispute is not settled, the case may go to court, which will involve costs and the court may insist the parties go back to negotiation before trial.

Mediation

Mediation is slightly more formal than negotiation, but still a relatively informal method of dispute resolution. This is not binding, the third party has no say and acts like a facilitator and goes back and forth from party to party giving each other views on the problem.

A neutral third-party mediator attempts to resolve the issue (possibly face to face) with both parties, without giving their opinion. For example, this would be suitable for:

businesses negotiating or renegotiating contracts
marriage guidance to avoid separation or divorce.

Advantages and Disadvantages

Advantages	Disadvantages
Cheaper than court	Will only work if both parties agree and cooperate
Parties in control of the process	Many decisions may not ultimately be binding on both parties
Based on common sense rather than decisive legal rules	May be unable to reach agreement.

Conciliation

Conciliation is a form of mediation, where a third party tries to suggest a compromise between the disputing parties (has a say). For example, this would be suitable for:

disputed access to goods and services by disabled people
cases of alleged discrimination
some employment disputes
some family law matters involving the Family Division of the High Court.

Advantages and Disadvantages

Advantages	Disadvantages
Cheaper than court	Many decisions may not ultimately be binding on both parties
Parties have some control in choosing the conciliator and process	No decision is guaranteed at the end
The process is flexible with a time and date set to suit the parties	The concilliatr may force a resolution on one or both parties

Arbitration

For this ADR, a third party decides the case when the disputing parties refer the case to it. The arbitrator is impartial – they don’t take sides but hear all of the arguments and make a decision based on the evidence. This is a formal procedure similar to a court procedure with a witness and evidence.

Scott v Avery clause - if anything goes wrong arbritation is used first

Before arbitration is used, both sides must agree that the arbitrator’s decision will be binding. For example, this would be suitable for:

package-holiday contracts
disputes between employees and employers using ACAS, an organisation that gives employers and employees free, impartial advice on workplace rules, rights and practice.

Advantages and Disadvantages

Advantages	Disadvantages
It is voluntary	More expensive than other formas of ADR
This decition is bnding and can be enforced	Requires confrontation with the other party
The arbitrator will be qualified and experienced	Process can be complicated anf formal

Employment tribunals

Employment tribunals are specialist employment ‘courts’ that deal with such issues outside the civil courts system.

Role	Responsible for hearing claims from citizens who think someone such as an employer, a potential employer or a trade union has treated them unlawfully. Employment tribunals (ET) were established to deal with specific areas of employment rights as part of a historic overhaul of social and welfare legislation.
Jurisdiction	Includes:unfair dismissal discrimination unfair deductions from pay.
Procedure	When a claim arises and cannot be sorted out between the individual and their employer throughinformal discussions, then:Claimants generally use an ET1 form to make a claim via the gov.uk website to the Tribunal Office, if they feel they have been treated unfairly.A respondent has 28 days after receiving the ET1 to complete a response form known as an ET3.If the claim is accepted by the Tribunal Office, then the employer is contacted.If the employer does not respond, then judgement is made in favour of the claimant.If the employer disputes the claim, then the case will go to ‘case management’ and a hearing is held to resolve the dispute.Hearings are heard by a panel of three: an employment judge, a representative of an employer’s organisation and a representative of an employee’s organisation.Following the hearing a judgement is issued.

Role

Responsible for hearing claims from citizens who think someone such as an employer, a potential employer or a trade union has treated them unlawfully. Employment tribunals (ET) were established to deal with specific areas of employment rights as part of a historic overhaul of social and welfare legislation.

Jurisdiction

Includes:unfair dismissal discrimination unfair deductions from pay.

Procedure

When a claim arises and cannot be sorted out between the individual and their employer throughinformal discussions, then:Claimants generally use an ET1 form to make a claim via the gov.uk website to the Tribunal Office, if they feel they have been treated unfairly.A respondent has 28 days after receiving the ET1 to complete a response form known as an ET3.If the claim is accepted by the Tribunal Office, then the employer is contacted.If the employer does not respond, then judgement is made in favour of the claimant.If the employer disputes the claim, then the case will go to ‘case management’ and a hearing is held to resolve the dispute.Hearings are heard by a panel of three: an employment judge, a representative of an employer’s organisation and a representative of an employee’s organisation.Following the hearing a judgement is issued.

Advantages and Disadvantages

Advantages	Disadvantages
Cheaper than court	Huge volume of cases → delay
Quicker than court	Public funding is not available for tribunals so one side may be at a disadvantage if the other parties can afford a lawyer to represent them making the process unfair
Informal and provate	Appeals are limited to issues of law.

Criminal Law

Criminal Formula – Actus Reus + Mens Rea - defence = POTENTIAL criminal liability

Scenarios:

Murder
Voluntary Manslaughter
Involuntary Manslaughter
Non-Fatal Offence Against a Person
Attempts
General Defences; consent, self-defence, duress, intoxication

Essays:

NFOAP
Consent
Self-defence
Intoxication

Key aims of Criminal law:

Detter - put off people from doing crimes
Retribution/ Punishment - punish the right people
Protection - protect people
Justice
Balance

Murder

Content + Cases

Intro

The legal definition of murder is 'the unlawful killing of a human being in the King’s peace, with malice aforethought'

The actus reus of murder consists of the unlawful killing of a human being in the King’s peace. The mens rea of murder is malice aforethought, which has been interpreted by the courts as meaning intention to kill or intention to cause GBH.

Act or Omission

The defendant’s (D) physical acts or omissions required for liability. The general rule regarding omissions is that there is no liability for a failure to act.

Gibbons and proctor - she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Gibbons was in regular employment and the latter was earning a decent amount of money. It was his duty to provide the money; it was hers to provide food. However, the child was not hers, but she was living with Gibbons

Causes

Factual causation -

But for test (but for the actions of the defendant, would the result have occurred?)

White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.

Legal causation - Was the defendant the operating and substantial cause?

Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.

Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.

Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.

Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)

Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)

Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. There may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant

Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.

Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs

Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment

Unlawful

Death is only lawful if War, Necessity and Self Defence. The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

Beckford - The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found.

Death

A person is classed as legal dead if they are ‘brain stem dead.’

Malcherek - the defendant had stabbed his wife. The victim had been taken to hospital and placed on a life support machine. The doctors later switched off the life support machines as the victim was not showing any activity in their brain stem.

Steel - Defendant attacked a girl and as a result she suffered serious head injuries. She was taken to hospital and had to be put on a life support machine. After a short time, the doctor’s came to the conclusion that there wasn’t any activity in her brain stem and classed her as ‘brain dead’, and turned off her life support machine.

Human Being

You are classed as a human being if you are wholly independent from the mother and have taken your first independent breath.

AG Ref No3 - The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth.

Direct intent to cause death or serious injury

there must be a direct intent to cause death of serious injury.

Vickers - Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result."

Death or serious injury was a virtual certainty

2 tests - Was death or serious injury a virtual certainty? Did the Defendant foresee it as such

Nedrick - The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night, poured paraffin through her letter box and set light to it. A child died in the fire. “he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder.”

Woollin - The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. He must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder.

Scenario

Ellie and Liam are having a disagreement, Liam gets angry at Ellie and stabs her in the stomach and chest repeatedly. Ellie is pregnant at the time. Ellie is rushed to hospital, and in the ambulance a piece of medical equipment falls on her head, Ellie dies on the way to the hospital and is pronounced brain stem dead, and so does her unborn child.

Advise Liam on his potential liability for murder (20)

Act or omission

For murder, the law states there must be an act or omission. An omission is demonstrated in the case of Gibbons and Proctor, the defendants neglected their child and he died of starvation, they were found guilty of murder. In this scenario, Liam stabbed Ellie, this is an act, Liam satisfies this element.

Cause (factual)

To satisfy this element the defendant must be the factual cause, but for their act or omission the victim would not have died. In the case of White, but for the defendants action of poisoning the milk the victim may have had a heart attack anyway, White was not guilty of murder, he was not the factual cause. In this scenario, but for Liam's act of stabbing Ellie, it’s likely she would not have died. Liam is arguably the factual cause.

Cause (legal)

Legal causations looks at possible breaks in the chain of causation, did anything intervene that will remove criminal liability for murder from the defendant. Points to consider include medical treatment, actions of the victim, a 3rd party and a thin skull. In the case of Smith where the medical professionals dropped the victim whilst attempting to save their life, it was found that the defendant was still the substantial cause of death, the actions of the Medical Professionals did not contribute as much to death as the defendants actions. In this scenario the case would likely take the same approach, Liam could seek to blame the medical equipment falling on Ellie’s head for Ellie’s death. However it’s likely Liam repeatedly stabbing Ellie was the substantial cause, the medical equipment falling on her head would not have contributed to the death and would not break the chain of causation. Liam is arguably the legal cause.

Unlawful act

Murder is only lawful for war, necessity and self defence. This is demonstrated in the case of Beckford, he acted in self defence as he believed he was threatened by a gun. He was found not guilty or murder. In this scenario, war, necessity and self defence aren’t relevant. Liam committed an unlawful act.

Death

To be guilty of murder, the law states you must be brain stem dead. This was demonstrated in the case of Malcharek where the victims family tried to argue that the hospital turning of the victims life support was murder, they where not guilty as the victim was already brain stem dead. In this scenario, Ellie is brain stem dead.

Human being

The law states to be guilty of murder, the victim must be wholly independent from the womb and taken their first breath. This was demonstrated in AG ref NO3, defendant stabbed pregnant wife and the baby died, he was not guilty or murder as the victim was not wholly independent from the womb. Similarly, in this scenario, Liam would not be guilty or murder for the unborn baby as they were not wholly independent from the womb, but Ellie was so he can be found guilty of murder for her.

Direct intent

The law states the defendant must have direct intent to cause death or GBH, as demonstrated in the case of Vickers. The defendant punched an elderly woman when robbing her home, he was found guilty or murder as he had the direct intent to cause GBH. In this scenario it’s arguable Liam had the direct intent to cause at least GBH to Ellie. This is because his actions were repeated.

Indirect intent

If there was no direct intent to cause GBH the jury may consider whether death was a virtual certainty. In the case of Nedrick, he set fire to a house and a young boy died in the fire, the jury acquitted him of murder as the boys death was not a virtual certainty. In this scenario If it is not seen as direct it would arguably be at least indirect intent. This is because death or serious injury was a virtual certainty.

In conclusion, Liam would more than likely be found guilty of Murder as he appears to satisfy all necessary elements of conviction.

Voluntary Manslaughter

Mens rea was affected because the mind was affected to do the act.

Reduces charge of murder to manslaughter if the defence is successful.

Voluntary manslaughter is a partial defence.

These defences are only available for Murder - hence special defences to murder.

Content + Cases - Loss of control

Loss of Control

This represents a change from the law of provocation which required the loss of control to be sudden and temporary now it does not need to be temporary but the provocation can be a “slow burn” reaction, rather than the immediate loss of self-control.

This represents the 3 different types of requirements needed to prove provocation:. There must be evidence of provocation, The defendant must have been provoked to lose their self-control and The provocation must be such as to make a reasonable man do as the defendant did.

R v Ahluwahlia - Ahluwahlia, suffered abuse and violence from her husband for years. After one violent evening, she went to bed thinking about her husband’s behaviour and could not sleep. She finally went downstairs, poured petrol into a bucket, lit a candle, went to her husband’s bedroom and set it on fire. Her husband died from his injuries.

Section 55 - Qualifying trigger, that is extremely grave in character and provides a justifiable sense of being wronged.

Section 55 of the Coroners and Justice Act 2009 identifies three qualifying triggers:

S55(3): D’s fear of serious violence from V against D or another identified person (e.g. family member) [subjective test];

The defendant does not have a fear of violence by the victim, fear of violence on another person who must be identified can amount to a qualifying trigger.
- R v Ward - the victim attacked the defendant's brother. He pleaded for loss of control which he succeeded in

S55(4): thing(s) said and/or done

The jury decides whether a reasonable person would lose control

S55(4): Must be extremely grave character and also caused D to have a justifiable sense of being seriously wronged [objective test]

OLD LAW - R v Doughty - His wife had had a caesarean and was told to take things easy so the appellant was looking after his wife and the baby in addition to carrying out all the general household matters. One night the baby kept crying. The appellant used his best efforts to keep the baby quiet to no avail. He then covered the baby's mouth to dampen the sound. He then stated that due to his excessive tiredness and the constant noise of the baby he lost his control and pressed down harder than he meant to and ended up suffocating his son, killing him.

Characteristics of the defendant.

S.54 Coroners and Justice Act 2009 - A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’

DDP v Camplin - A 15-year-old boy, killed a middle-aged man by hitting him over the head with a chapati pan. he defendant raised the defence of provocation stating that the deceased had raped him and then laughed at him at which point he lost his control and hit him.

Exclusions to the defence

S.55 Coroners and Justice Act 2009 - Defence cannot be used if Self Induced, Sexual Infidelity or Revenge.

Sexual infidelity - Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.

R v Clinton - The appellant and his wife both suffered from depression. He and his wife agreed to a trial separation for four weeks as she needed time out. She left him with the children and moved into her parent’s home. The appellant did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet. However he had arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover.

Revenge -

Self-induced - A defendant will still be allowed the defence if they induced the provocation

R v Johnson - the appellant was at a night club. A woman called him a 'white ni**er'. The appellant was white but had taken to adopting a West Indian accent. He took exception to the comments and made violent threats to her. A male friend of hers intervened and poured a glass of beer over the appellant. A fight developed between the two men and the appellant stabbed the man resulting in his death. The appellant argued he was acting in self-defence as he believed he was about to be glassed. He also denied losing any self-control.

Scenario - Loss of Control

Content + Cases - Diminished Responsibility

The Homicide Act originally governed diminished responsibility

Abnormality of mental functioning caused by recognised medical condition

There must be an abnormality of mental functioning caused by a recognised medical illness.

R v Kemp - The defendant assaulted his wife with a hammer. He had no previous history of violence and no apparent motive. He suffered from hardening of the arteries which lead to a congestion of blood in the brain. This caused a temporary lack of consciousness so he was not conscious that he picked up the hammer or that he was striking his wife with it.

Substantial Impairment

One of the 3 things that must be substantially impaired is:

To understand the nature of his conduct - where he is in such a state where he does not know what he is doing.
To form a rational judgement - those suffering from paranoia, schizophrenia or battered wife syndrome may not be able to form all relevant circumstances before or after the killing.
To exercise self-control

R v Lloyd - it was held that substantially does not mean total or trivial and minimal. It is something in between and it is for the jury to decide if the defendant’s mental responsibility is impaired and if so whether it is substantially impaired.

R v Campbell - the defendant had previously suffered frontal lobe damage and this was considered to be a substantial impairment. This was considered to be an impairment that would impact his behaviour and thought process, which would be a successful defence for murder.

Causal Link between illness and action

There must be a causal link between the illness and the damage that was caused

Blackman - PTSD is what caused him to kill the captured man.

R v Joyce Kay - In this case the jury found there was a causal link between the defendant’s actions of killing and his paranoid schizophrenia.

Intoxication

Intoxication is only applicable when there is a defence of DR if the intoxication is due to an illness itself such as alcohol dependence syndrome

If a person is intoxicated but also has another illness. It must be proved it was the illness that made them act if the defence is to be successful

Dietschmann - the defendant felt that the victim was disrespecting the memory of the defendant’s aunt who had just died. He killed the victim by readily kicking him and stamping on him, the defendant had drunk about a third of a bottle of whisky and two and a half pints of cider before killing the victim.

Scenario - Diminished Responsibility

Ella suffers from a history of domestic violence and has been abused by previous partners, because of this she suffers from severe PTSD and depression. One evening after a night out with friends she came home drunk to find her current partner Harry sleeping with another woman. Harry jumps frantically and tries to grab Ellas arm to remove her from the room, Ella retaliates and hits Harry over the head with a cast iron doorstop. Harry died at the scene of a serious bleed to the brain.

Intro

Diminished responsibility is a defence to murder under s52 of the Coroners and Justice act 2009. There are several factors to satisfy a successful defence of diminished responsibility.

Abnormality of mental function

The law states for this route to defence there must be an abnormality of mental functioning caused by a medically recognised condition or disorder, this must be approved by 2 medical professionals. The case of RvBryne demonstrates this, the defendant was sexually perverted, this condition was an actual medical disorder and was successfully used as his defence to murder. In this scenario Ella has both PTSD and depression, both are widely recognised mental health conditions,due to these conditions Ella would likely satisfy this element.

Causing a substantial impairment

The law states that the abnormality must cause a substantial impairment to the way in which the defendant acts, thinks, processes situations and behaves. This is demonstrated in the case of Rv Campbell where the defendant's frontal lobe damage was seen as something that would affect his thought process and behaviour and was a successful defence to murder. In this scenario, Ellas PTSD is something that has the possibility to affect reactions, behaviours and thought processes and her depression may also affect the way she thinks. Both of these mental health conditions are likely to affect her behaviour, actions and thought processes in this situation, Ella likely satisfies this element.

Causal link between illness and action

The law states that there must be a causal link between the illness and the way the defendant acted in the situation, there must be some correlation and relevance between the two. The case of R v Joyce kay shows how the jury found a causal link between the defendant's actions and his schizophrenia. In this scenario, Millie's PTSD from previous domestically violent relationships and what she did may be found as having a causal link. Millie retaliated to Harry reaching out to grab her, her PTSD from previous relationships may have made her fear violence and lash out at Harry in fear and self defence. Her depression may have caused her to hit him due to her previous bad relationships with men, she may have grown tired of constant abuse and hurt and lashed out as a final resort. Ella will likely satisfy this element.

Role of intoxication and the defence

The law states that this is only applicable as a defence of diminished responsibility if the intoxication is due to an illness such as alcohol dependence syndrome. If the defendant was intoxicated voluntarily and has other mental abnormalities, the defence must prove it was the mental abnormalities not the alcohol that caused the behaviour. The case of RvDowds establishes that voluntary acute intoxication cannot be a defence of diminished responsibility as it is self inflicted. In this scenario Ella could not use intoxication as a defence, she was not intoxicated due to alcohol dependence syndrome, she was intoxicated due to voluntary acute intoxication. Her defence would have to prove that the intoxication wasn't the cause of her actions and that it was the PTSD and depression.

Conclusion

In conclusion, it's likely that Ella will satisfy all elements of diminished responsibility if her case was to be heard in court. It's likely the jury would find her previous violent relationships, and the PTSD and depression she has because of them means she is not fully responsible for the way she retaliated to Harry, it was her mental health issues that played a great cause in this. Ella is likely to be found guilty of Manslaughter by diminished responsibility.

Involuntary Manslaughter

Content + Cases - Unlawful Act Manslaughter

Unlawful Act

The act must be unlawful in a criminal scene. Must be and act not an omission.

Franklin - OLD LAW - a civil wrong could not give rise to unlawful act manslaughter

Lamb - the defendant possessed a revolver. He was joking around with it containing 2 bullets in the barrel and joked around with his friend who did not fear dying because he and the defendant thought that the bullets would not go off when he pulled the trigger. However when the defendant pulled the trigger and killed him. no crime as not scared/no criminal act no manslaughter

Lowe 1973 - The appellant's child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter.

Dangerous

the act must be dangerous. This is an objective test which was stated in Church - “a sober and reasonable person would realise risk of some harm”

Cause