UNIVERSITY OF SOUTHAMPTONSCHOOL OF LAW

LEGAL SYSTEM AND REASONING (LAWS 1012) 2012 - 2013

LECTURE GUIDEWEEK 1-2: INTRODUCTION TO THE ENGLISH LEGAL SYSTEM

Dr James MacLean (J.Maclean@soton.ac.uk)

INTRODUCTION

Welcome to the University of Southampton and to beginning your studies at the School of Law.

This handout has been compiled to supplement the series of lectures on the English Legal System that will be delivered in week 1 (it may also help to provide some guidance in advance on some of the areas/topics that will be covered in week 2 and also week 11).

Please note that these notes do not provide an exhaustive list of what you are required to know; rather, they are offered simply as an initial platform from which you can proceed to plan, develop and organise your own independent research of the legal system of England and Wales and its wider European context. In this sense, you should regard them more as ‘signposts’ to relevant areas of study than definite statements of them and you should add to them continually, with your own notes drawn from lectures and from the textbooks recommended in your ‘Module Guide’. Also, while every effort is made to ensure that the information provided is up-to-date, you should be aware that these notes are always subject to revision (amounts relating to financial costs are always subject to variation – you should check to see what the current figures are) and will be supplemented and updated as necessary, throughout the year, with other materials and handouts.

Furthermore, although you will find that a number of the areas listed here (and others) will be expanded on in detail both in lectures and in your tutorials, not all of these topic areas will be covered in depth in lectures and you may even find that some of the areas are not lectured on at all. This is not because those areas are unimportant; on the contrary, it is simply because time constraints do not permit further elaboration of them formally in class.

Contents1. Customary law2. Legislation 3. European law4. Civil courts5. Civil courts6. The Woolf Report7. Alternative Dispute Resolution8. Tribunals 9. Criminal courts10. Criminal cases11. Trial12. The legal profession13. Judges and their decisions14. Lay involvement15. Access to Justice

Finally, let me take this opportunity to wish you every success with your studies.All the best,Jamie

1

1. CUSTOMARY LAW

CustomsGeneral: post-1066, judges travelled around the country applying local customs in a uniform way (this formed the basis for a common law).Local: some local customs are still applied today, though rarely (eg. see Egerton v Harding (1974)). Such local rights must be such that (a) they have always existed, (b) they are exercised peaceably, (c) they have a definite scope, location and type, and (d) they are reasonable.

Common Law (a) judge-made law(b) laws made in the King’s Court (cf. equity)

EquityDeveloped out of problems associated with the common law - not all cases were recognised, only remedy was damages.Appeals from King’s Court – the king delegated hearing to the Lord Chancellor.New remedies introduced – eg. specific performance.Cases ultimately heard in the Court of Chancery.Not a complete system of law but provides an ‘extra layer’ of law.Conflict with common law? Equity prevails – see Earl of Oxford’s case (1615); also, s.25 of the Judicature Act (1873).

Judicial PrecedentTo be effective, such a system must have these two elements:

(a) a court hierarchy(b) a system of law reporting

stare decisis – inferior courts should follow the earlier decisions of superior courts to ensure: (a) certainty(b) consistency(c) fairness

2 types of precedent: binding precedent and persuasive precedent.

Binding Precedentie. decision that must be followed.The judge, when deciding a case, gives a ‘judgment’ that consists of:

(a) a statement of the law;(b) the reason for the decision (ratio decidendi), together with a summary of the facts

and arguments;(c) other things said ‘by the way’ (obiter dicta), which may have affected the way the

case was decided.Where the decision is one that is binding upon later courts, according to the doctrine of binding precedent, then the ratio forms the precedent but things said obiter need not be followed. (Examples of ‘persuasive’ precedent thus include: cases from lower courts or the Judicial Committee of the Privy Council; obiter dicta; dissenting judgements in cases where there is more than one judge and they are not unanimous in their decision as to how the case ought to be decided; decisions from other common law jurisdictions). Law ReportsAccurate reporting and recording of decisions from cases is necessary for a system of binding precedent to work effectively. The Incorporated Council of Law Reporting (est. 1865) ensures accuracy in reporting.

Hierarchy of Courts and Precedent

Civil Courts Criminal Courts

European ‘Court of Justice’ (ECJ) European ‘Court of Justice’House of Lords/Supreme Court House of Lords/Supreme Court Court of Appeal (Civil Division) Court of Appeal (Criminal Division)

2

Divisional Courts Queen’s Bench DivisionHigh CourtCounty Courts Crown Court Magistrates’ Court Magistrates’ Court

NB. From 2009, the Supreme Court takes over the appellate functions of the House of Lords.

Avoiding Precedenta. By ‘distinguishing’ the case, where the material facts of the previous case are sufficiently different from the present case.b. By ‘overruling’ the case, where the previous decision is determined to be wrong – eg. where a higher court overrules the decision of a lower court, or the ECJ overrules its own previous decisions, or the House of lords makes use of the Practice Statement (1966), as in Pepper v Hart (1992).c. Where a higher court hears the same case as a lower court and overturns the decision of the lower court, this is known as ‘reversing’ the case.

Advantages/Disadvantages of a System of Judicial Precedent

Advantages Disadvantages

Certainty RigidityConsistency ComplexityFairness Illogical (avoiding precedent)Accuracy/Precision Slow FlexibilityTime saving

3

2. LEGISLATION Parliament is the main legislative body in the UK – ‘primary’ legislation.Some legislative powers may be delegated to the executive – ‘delegated’ (secondary) legislation.

Primary LegislationStatutes - Acts of the UK ParliamentUK parliament consists of the House of Lords (non-elected, 92 hereditary peers, life peers, Lords Spiritual, Law Lords) and the House of Commons (elected Members of Parliament, one per constituency). It is the supreme law making body in the UK, except for EC law matters, and cannot be bound by previous parliaments or bind its successors.

Delegated LegislationTypes/examples of delegated legislation:

(a) Orders in Council;(b) Statutory Instruments;(c) Bylaws.

Advantages - quicker to implement than Acts of Parliament; Parliament may not have the expert knowledge required; allows for greater consultation; flexibility (ease of amendment).Disadvantages - takes the law-making function away from the democratically elected Parliament; control is limited; excessive quantities of delegated legislation make the current state of the law difficult to determine.Control of delegated legislation:

(a) By Parliament – Parliament passes the Enabling Act; ‘technical aspects’ of Statutory Instruments are reviewed by the Scrutiny Committee;

(b) By the Courts – Judicial Review of the exercise of delegated power – eg. administrative decisions.

Pre-Legislative ProceduresGreen Paper: consultative document issued (usually) by a Government Minister.White Paper: firm proposals of new law.Bill: publication of the proposed legislation, which may be Public (affecting the whole country) or Private (affecting individuals/groups). Most are Government Bills but some are from Backbenchers, known as Private Members Bills (and often relating to sensitive issues, eg the Abortion Bill (1967)).

From Bill to Act of ParliamentFirst Reading – formal procedureSecond Reading – main debateCommittee Stage – examined ‘clause by clause’Report Stage – report to HouseThird Reading – final voteHouse of Lords – similar to House of Commons (above)Royal Assent – formal approval by monarch (Queen)

(Following the House of Lords rejection of a Money Bill in 1909, the Parliament Act 1911was passed limiting the power of the House of Lords (they may delay a Money Bill by one month and other legislation by one year – reduced from two years by the Parliament Act 1949).

Statutory InterpretationBecause the wording of statutes is not always clear, and statutes cannot be comprehensive, cases sometimes arise for interpretation of statutes. Here, judges have various ‘tools’ of interpretation to help guide them:

(a) Rules of Interpretation: (i) The Literal Rule – states that words should be given their ordinary, everyday

meaning even where this leads to absurdity (eg. Whiteley v Chappell (1868))(ii) The Golden Rule – where applying the ordinary meaning of words leads to

absurdity, the judges may avoid that interpretation. Two views:

4

a. where the word has more than one meaning, provide the definition that produces the least absurd result;

b. where the word has only one meaning but the application of that meaning is repugnant, the meaning can be modified (eg. Re Sigsworth (1935)).

(iii) The Mischief Rule – set out in Heydon's Case [1584] 3 CO REP 7a. where it was stated that there were four points to be taken into consideration when interpreting a statute: a. what was the common law before the making of the act?b. what was the ‘mischief and defect’ for which the common law did not

provide? c. what was the remedy that Parliament resolved and appointed as a cure? d. what is the true reason of the remedy? This rule gives the judge a wider discretion than the literal and the golden rule (eg. Smith v Hughes (1960)), since it allows the judge to decide effectively on Parliament's intent. But, it is sometimes argued that this undermines Parliamentary supremacy and is undemocratic because it takes law-making decisions away from the legislature.

(iv) The Purposive Approach – goes further than the mischief rule and seeks an interpretation of the law that furthers the purpose for which the law was introduced (see Pepper v Hart [1993]). Where this approach is extended to take in not just the purpose of the law but also its spirit, in the sense of the policy that underpinned the legislation, this is sometimes referred to as the contextual or teleological approach (this is the dominant approach of the European ‘Court of Justice’.

(b) Rules of Language(i) Ejusdem generis – (literally, ‘of the same class’) where a list of words is

followed by general words, the meaning of the general words is limited to words similar to those specified in the list (eg. Powell V Kempton Park Racecourse (1899)).

(ii) Expressio unius exclusion alterus – (‘the expression of one thing is the exclusion of another) a list of words not followed by general words limits the statute to the items listed (eg. Tempest v Kilner (1846)).

(iii) Noscitur a sociis – a word can be interpreted by reference to other words with which it is associated. ie. it is assumed that words in a list have something in common with each other; therefore, a word in a list should be construed as similar to others in the list (eg,. Inland Revenue Commissioners v Frere (1965)).

(c) Presumptions(i) Unless expressly stated, the statute does not intend to change the common law

(eg. Leach v R (1912))(ii) Mens rea is required for criminal cases (Sweet v Parsley (1970))(iii) The Crown is not bound(iv)Against retrospective legislation(v) Against ousting the court’s jurisdiction(vi)Against inference with vested interests(vii) Parliament does not intend to contravene international Treaty obligations

(d) Internal AidsFound within the Act - including, for example, other sections of the Act, Long Title, Preamble, Short Title, headings, side-notes and punctuation(e) External Aids

(i) Related Acts(ii) Historical context(iii) Past practice(iv) Previous case law(v) International Treaties(vi) Dictionaries, textbooks, etc,(vii) Reports leading to the Act (eg Black Clawson Case (1975))(viii) Hansard (Pepper v Hart (1992))

5

3. EUROPEAN LAW

European LawThe UK joined the European Union in 1973, introducing European Law as a source of UK law such that Parliament must legislate in conformity with EU law.

Sources of EU Law(a) Treaties – eg. Treaty of Rome – have automatic effect once signed by Head of

Government (European Communities Act (1972), section 2(1).(b) Regulations – binding, directly applicable and have horizontal and vertical direct

effect.(c) Decisions – binding on the addressee.

Note: Direct applicability – no further action required to incorporate into national law.Direct effect – method by which an individual may claim a right granted under EU law, enforceable in a national court (vertical direct - enforceable against the state; horizontal direct effect enforceable against other individuals).

Conflict between European Law and National LawEuropean Law law takes precedence over national law (Costa v ENEL (1964).Following the Factortame cases (1991, etc), where European Law conflicts with a later national statute, the statute must be set aside. In which case, it is understood that the UK has transferred some parliamentary sovereignty to the EU.

The European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA)The ECHR was incorporated into domestic law by the HRA.Section 2 – courts must ‘take into account’ judgments of the European Court of Human Rights.Section 3 – UK legislation should, as far as possible, be interpreted in line with the ECHR (eg R v Offen (2001)).Section 6 – Public Authorities must act in conformity with the ECHR.Section 4(2) – Courts may not strike out legislation as incompatible with the ECHR but may make a declaration of incompatibility, referring the matter back to the executive for further action (eg. Bellinger v Bellinger (2003)).

[Introductory lectures on European Law will take place in week 10]

6

4. CIVIL COURTS

Magistrates CourtFamily casesWelfare of Child ProceedingsLicensingEnforcement of Council Tax demands

High Court3 Divisions:

(a) Queen’s Bench Division – hears appeals, judicial review, jury available in limited circumstances;

(b) Chancery Division – single judge, no jury, dealing with property, trusts, etc;(c) Family Division – single judge, no jury, hears divorce and ancillary matters.

County CourtFast Track and Multi Track cases; heard in open court; formal; not as expensive as High Court; heard by Circuit JudgesSmall Claims:

(a) limit of claim (£5,000)(b) Low cost(c) Flexible, inquisitorial method often used

Court of AppealLeave is required in most cases, granted by either the Court of Appeal or the lower court.

House of LordsHistorically, the House of Lords was the final domestic court of appeal.Cases heard by Law Lords (usually five).Must have leave to appeal, granted by House of Lords or the lower court.Leapfrog cases:

(a) High Court and House of Lords must grant leave(b) Must be appealing a point of law of general public importance(c) Must concern a statute and the High Court must be bound by previous Court of

Appeal/House of Lords case.On 30 July 2009, the judicial function of the House of Lords and its role as the final - and highest - appeal court in the UK ended, bringing about a fundamental change to the work and role of the House of Lords. A new UK Supreme Court opened on 1 October 2009 opposite the Houses of Parliament, in Parliament Square, thus separating the judicial function from Parliament (ie separating those who make the law from those who interpret it in courts). On the commencement of the Supreme Court in October 2009, all current Law Lords became its first Justices. The first Justices remain Members of the House of Lords, but are unable to sit and vote in the House.  All new Justices appointed after October 2009 will be directly appointed to The Supreme Court on the recommendation of a selection commission.

The Supreme CourtAs well as being the final court of appeal, plays an important role in the development of UK law. As an appeal court, cannot consider a case unless a relevant order has been made in a lower court.The Supreme Court: is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland; hears appeals on arguable points of law of general public importance; concentrates on cases of the greatest public and constitutional importance.Hears appeals from the following courts in each jurisdiction:

(a) England and Wales: the Court of Appeal (Civil Division); the Court of Appeal (Criminal Division); and, in some limited cases, the High Court;

(b) Scotland: the Court of Session;(c) Northern Ireland: the Court of Appeal in Northern Ireland and, in some limited cases,

the High Court.

7

European ‘Court of Justice’Under Article 234 of the EC Treaty, any court may make a reference to the ECJ for a ruling(note: some revision of terminology and sectional references post Treaty of Lisbon).

8

5. CIVIL CASES

Main Areas of OperationContract LawTort LawFamily LawEmployment LawCompany Law

RemediesDamages: money paid to claimantInjunction: to prevent an action being takenSpecific Performance: to enforce a contract as agreedRecisssion: to return parties to their pre-contractual positionRectification: to allow an inaccurate document to reflect the true intention of the partiesEnforcement: proceedings must be initiated in order that the court can enforce judgementThe court may use the following actions to aid enforcement: oral examination; warrant of execution; attachment of earnings; Garnishee Order (effectively, allows a creditor to take the property of a debtor when the debtor does not possess the property).

Pre-Action ProtocolMust be followed:Claimant/Court issues and serves the claim on the defendant, within four months, giving: brief details of the claim, why the defendant is at fault, details of the damage Within 14 days of receipt, the defendant must either admit the claim or file a defence, acknowledge (where no response is received from the defendant the claimant may request a default)Claimant may reply and defend; failure to comply can result in the case being struck out, costs awarded, etc.

Defended ClaimWill be allocated to either (a) Small Claims, or (b) Fast Track, or (c) Multi TrackClaims of no monetary value will be heard under whichever track is most suitable in the interests of justiceAllocation of track: things to consider ...

The nature of the remedy soughtThe complexity of the caseThe number of partiesThe value of any counterclaimOral evidenceThe importance of the claim to othersThe circumstances of the parties

Cases will be allocated as Multi Track when: the case is of public importance; it is a test case; it is a clinical dispute case; there is a right to jury trial.

a. Small ClaimsMost of the cases under £5,000 (exceptions: personal injury claims over £1,000, disrepair over £1,000, unlawful eviction and dishonesty allegations).Advantages: low cost; use of lawyers discouraged; more informal (usually by district judge in chambers).Disadvantages: Delays occur; need to take time off work (hearings held during day); inequality if one side has legal representation; claimant is responsible for enforcement.

b. Fast TrackCases between £5,000 and £15,000Triable in one dayExpert evidence is limited to one per fieldHeard within 30 weeksHeard by Circuit Judge in open courtProceedings intended to protect weaker party

9

Judge usually reads pre-trial bundle prior to hearing case

c. Multi TrackClaims over £15,000Heard by Circuit Judge – sets timetable for the caseCases usually last longer than one dayMust be disclosureCourts have power to control evidenceWasted costs orders may be imposed on parties that have acted improperly.

10

6. THE WOOLF REPORT: Access to Justice (1996)

Problems Prior to WoolfDelaysInequality between partiesCostUncertaintyIncomprehensibiltiyFragmentation

Suggested ReformsUse of court as last resortSimplification of procedureTimetabling of casesAffordabilityGreater equality between partiesJudiciary should meet needs of litigantsJudges should be trained in case managementReform of Legal Aid system

Implementation of WoolfSmall claims expanded to £5,000Case management by judgesFast and Multi Track cases implementedFixed costs for Fast Track casesCosts to be met by those using the systemCivil Procedure Act (1997), s.1 – one set of practice rules (High Court, Court of Appeal, House of Lords); s.2 – created the Civil Court Rule Committee; s.6 – created the Civil Justice Council to provide advice to Lord Chancellor and suggest research.Civil Procedure Rules (1999), Rule 1.1 – ensure equality between parties; save expense; deal with cases proportionately (cost, importance, complexity); speed of cases should be improved by better allocation of time, case management, ADR, etc.

11

7. ALTERNATIVE DISPUTE RESOLUTION (ADR)

Methods of ADR(a) Negotiation – private, between parties; quick and cheap;(b) Mediation – less formal; neutral third parties assist compromise; mediator does not

usually provide an opinion;(c) Conciliation – similar to mediation; conciliator more active and may suggest grounds

for settlement;(d) Arbitration – governed by Arbitration Act (1996); voluntary referral to arbiter, whose

decision is binding on all parties; used as a last resort when conciliation fails.

12

8. TRIBUNALS

Use of TribunalsUsed in place of courtsWide variety, covering different areas of lawHighly specialisedRegulated by statute – Tribunals and Inquiries Act (1958), as amended by 1992 ActCheap, speedy accessibleSpecialist knowledge, free of technicalityShould be used (Leggatt Report) where claimant can present own case; where specialist knowledge is required; where they will be effective in dealing with fact and law.

Problems with Tribunals IsolatedCommonly regarded as part of the executive

Potential ReformIndependent Tribunal SystemApply Civil Justice ReformsRemove overlapping jurisdiction with courtsHave an Appeals DivisionExclude from judicial reviewProvide improved training for Board membersAppoint a Commissioner to oversee Tribunal appointments

Government ResponseUnified Tribunal System (2003)Employment and Land Tribunal reforms announced (2003).

13

9. CRIMINAL COURTS

Magistrates’ CourtAlmost all criminal cases start, and end (97%), hereCases heard by either District Judge or lay MagistrateHears all summary offences and some Triable Either Way offences1st hearing of indictable offences.

Crown CourtLess than 3% of all criminal casesIndictable offences and some Triable Either Way offencesRehears Magistrates’ Court cases on appeal (available only to defence)3 Tiers: most serious cases; moderately serious cases; less serious cases.

Queens Bench Division (High Court)Appeals from Magistrates’ Court (case stated)Appeals from Crown CourtJudicial review from inferior courtsAppeal on point of law re: Defence – conviction; Prosecution – acquittal.

Court of Appeal (Criminal Division)By defendant - conviction or sentence (filed within 28 days of conviction); must have leave; judge will allow appeal if conviction considered unsafe but will uphold in all other cases; new evidence may be admitted.By prosecution – against acquittal where evidence of jury tampering; on point of law, though this will not affect the acquittal in the appealed case (Criminal Justice Act (CJA) 1972, s.3); against sentence (CJA 1972, s.36), where it is deemed unduly lenient; CJA 2003, Part 10 creates an exception to double jeopardy rule where a retrial may be ordered when new and compelling evidence is found (serious offences only).

House of LordsHistorically, heard appeals from England, Wales, Scotland, Northern Ireland. Both prosecution and defence could appeal, but, must have certification that the matter is of general public importance; must have had leave from Court of Appeal or House of Lords

Supreme Court(see above note, under civil courts).

14

10. CRIMINAL CASES

BackgroundRoyal Commission on Criminal Justice reported in 1993 on the effectiveness of the criminal justice system in convicting the guilty and acquitting the innocent. This followed upon increased public anxiety after some high profile miscarriages of justice.The Narey Report (1997) made some recommendations that were enacted subsequently in the Crime and Disorder Act 1998.The Criminal Courts Review 2000 recommended a comprehensive procedure for criminal cases and established the Criminal Justice Council.The Courts Act 2003 introduced a single criminal procedure rule committee to devise rules for all criminal courts and establish a United Courts Agency to administer all courts from June 2005 The Criminal Justice and Immigration Act 2008 takes forward the government's programme of reform of the criminal justice system with steps that will help to protect the public, promote and improve access to justice, and increase public confidence in the justice system. It received Royal Assent on 8 May 2008.The Coroners and Justice Act 2009 aims to deliver more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public. The Act received Royal Assent on 12 November 2009 and includes measures to: reform and clarify the law on homicide; update the language of the offence of assisting suicide; establish a new Sentencing Council for England and Wales, with a strengthened remit to promote consistency in sentencing practice; enable the courts to pass an indeterminate sentence for public protection for certain terrorist offences; re-enact the provisions of the emergency Criminal Evidence (Witness Anonymity) Act 2008 so that the courts may continue to grant anonymity to vulnerable or intimidated witnesses where this is consistent with a defendant's right to a fair trial; extend the use of special measures in criminal proceedings, such as live video links and screens around the witness box, so vulnerable and intimidated witnesses give their best evidence.

Pre-Trial ProcedureCategories of offence:

(a) Summary - the least serious offences, heard in Magistrates’ Courts(b) Indictable - the most serious offences, heard in Crown Court(c) Triable Either Way - mid-range offences which can be heard in either court, determined

by mode of trial or procedureProsecution may be brought by: the Crown Prosecution Service (most cases); private individuals (private prosecution) - these cases may be taken over by the Attorney General and discontinued.

The Crown Prosecution Service (CPS)Formed by the Prosecution of Offences Act 1985Head of CPS is the Director of Public Prosecutions (DPP)Functions: to advise the police on the admissibility of evidence; review cases; take over cases passed on by the police; prosecution of casesTests for prosecution: Evidential Sufficiency - is there sufficient evidence to give a realistic prospect of prosecution? Public Interest - is it in the public interest to proceed with the prosecution?Criminal Justice Act 2003: CPS are now present in police stations to improve efficiency; CPS may issue a ‘conditional caution’ where there is sufficient evidence to charge the suspect, who has admitted guilt and agrees to be cautioned.

BailThe Bail Act 1976:

- provides a statutory right to bail, which may be granted at any time after arrest; - but, bail may be refused where there is a fear that the offender may not surrender to bail, or may commit further offences whilst on bail, or may interfere with witnesses whilst on bail; - when considering bail, the nature and seriousness of the offence, the offender’s character and previous bail record should be considered

15

The Criminal Justice and Public Order Act 1994: bail may be refused where the defendant was on bail when the offence was committedAmended by Criminal Justice Act 2003:

s.13: presumption against bail in this circumstance unless no significant risk of reoffendings.15: presumption against bail where defendant did not previously surrender to bails.19: presumption against bail for some drug offencesBail prohibited for murder, rape and manslaughter.

Mode of TrialCriminal Procedure and Investigations Act 1996s.49: defendant must enter plea before venue is determinedExtended by Criminal Justice Act 2003Plea:

(a) Guilty - sentence (where Magistrates’ sentencing powers are inadequate, may be sent to Crown Court)

(b) Not Guilty - Magistrates consider whether case is suitable for them and must give reasons; advice defendant of right to choose venue; defendant may ask for indication of sentence length should he plead guilty (but no obligation to provide); defendant may econsider plea; where defence choose Crown Court, the Magistrates send the case to the Crown Court without committal (s.51 Crime and Disorder Act 1998).

Pre-Trial Disclosure of EvidenceSince 1981, Attorney General must make unused material available to the defenceCriminal Justice and Public Order Act 1994 to prevent unpredictable defencesUnder the Criminal Procedure and Investigations Act 1998, Part 1:(a) the prosecution has a duty to disclose all information that may undermine prosecution’s case; (b) the accused may give a statement to gain secondary disclosureAmended by Criminal Justice Act 2003: prosecution must disclose information that undermines the prosecution’s case or aids the case for the defence, but a more detailed defence statement must be issued and the judge has discretion to show this statement to the jury

Other Pre-Trial MattersPlea Bargaining - pre-trial discussion to determine whether the defendant could plea guilty to a lesser charge.Time of Guilty Plea - the earlier a defendant pleads guilty the more ‘discount’ can be had on sentence; under Criminal Justice Act 2003, ss.144 and 174, the judge must announce the resulting sentence reduction.Plea and Discretion Hearing - 1995 Practice Direction requires a preliminary hearing where the prosecution provides a summary of the issues and the estimated length of the trial and the defendant is arraigned and enters his plea.Pre-Trial Hearing - under Parts 3 and 4 of the Criminal Proceedings and Investigations Act 1996, a judge may order a preparatory hearing to: identify the issues; assist the jury’s understanding of the case; expedite proceedings; assist trial management.

16

11. TRIAL

In a trial, the judge acts as an impartial umpire, listening to the evidence from both sides without interference; guilt must be proved beyond reasonable doubt (cf. burden of proof in civil cases is ‘on balance of probabilities’.

Order of CaseProsecution opening speechProsecution witnessesCross examination by defenceDefence may submit ‘no case to answer’ and, if the judge agrees, the jury is directed to acquitDefence opening speechDefence witnessesProsecution cross examinationProsecution closing speechDefence closing speechJudge’s summing upJury retireVerdict: Not Guilty - acquittal; Guilty - sentenced by judge

Sentencing PowersMagistrates: minimum one year in prison for a single offence and £5,000 fine or 65 weeks for two or more offences.Crown Court: unlimited fine and life imprisonment (subject to the maximum sentence available for the offence).

Aims of SentencingRetribution: ‘an eye for an eye’ - the offender has committed an offence and so should be punished.Denunciation: an expression of disapproval by society for the offence committed.Incapacitation: physically prevents the offender from committing further offences.Rehabilitation: reformation of the offender through treatment to prevent re-offending.Reparation: compensation of the victim by the offender.General Deterrence: prevention of potential future offending by others by making an example of the offender.Individual Deterrence: prevention of future offending by the offender through fear of harsh sentencing.

Sentencing in PracticeJudges should consider the following when sentencing:

- the seriousness of the offence (eg. was the offence premeditated? What was the effect on the victim?);

- the background of the offender (previous convictions? Was offender on bail? Pre-sentence reports? Medical reports? Financial situation of offender?);

- sentencing aims.

Types of SentenceCustodial: eg. prison sentence, home detention order; crime should be so serious that only custody is suitable; the court should take into account any previous convictions; age of offender; whether offence was committed while on bail, etc.Community Sentences: governed by the Powers of Criminal Courts (Sentencing) Act 2000; for offenders aged 16+; Community Rehabilitation Order (CRO) - probation officer supervision between 6 months and 3 years; Community Punishment Order (CPO) - work in the community between 40 and 240 hours; Community Rehabilitation and Punishment Order (CRO + CPO) - max 100 hours; Curfew Order - confined to a given address between 2 and 12 hours in 24 hours for a max. of 6 months; Drug Treatment and Testing Order; Exclusion Order; Drug Abstinence Order.Fines: most commonly imposed sentence; financial penalty.

17

Discharges: (a) conditional - offender is discharged on condition that he commits no further offence in a given time period (max. 3 years); if offender commits further offence then can be sentenced for this offence as well; (b) absolute - no penalty imposed.

18

12. THE LEGAL PROFESSION

Legal ProfessionalsSolicitorsBarristers Judiciary

Solicitors and BarristersSolicitors are governed by the Law Society.Barristers are governed by the General Council of the Bar.

Becoming a Solicitor or BarristerEither a qualifying law degree or a non-law degree plus PgDip in Law, then:Solicitors: 1-year Legal Practice Course; 2-year training contract;Barristers: 1-year Bar Vocational Course; join Inn of Court (Gray’s, Lincoln’s, Inner Temple, Middle Temple); 1 year pupilage.

Solicitors’ and Barristers’ Areas of WorkSolicitors: private practice; CPS; local authority; Government Departments; in-house legal adviser in business;Barristers: self-employed, either from Chambers or as an Independent (after 3 years call); employed by CPS (since Access to Justice Act 1999 they retain their rights to audience); after 10 years call barristers may apply to become QC.

Complaints Against Solicitors and BarristersAgainst solicitors - dealt with by the Office for the Supervision of Solicitors (various powers including prosecution before the Solicitors Disciplinary Council).Against Barristers - since 1997, dealt with by the Complaints Commissioner (various powers including reprimand and disbarring).Legal Services Ombudsman can investigate complaints against solicitors, barristers and legal executives (work in solicitors firms as assistants; deal with straightforward cases and have limited rights of access; responsible to partners of firm).

JudiciaryKey Personnel: Lord Chancellor; Lord Chief Justice of England; Master of the Rolls; President of the Family Division; Vice Chancellor.

Superior JudgesLaw Lords (Justices of the Supreme Court), Lords Justices of Appeal and High Court JudgesAppointed by the Monarch on advice of the Prime Minister - appointment criteria is secretGenerally, appointed by invitation but High Court Judges may now apply for position.

Other Law OfficesAttorney General – Chief Legal Adviser to the GovernmentSolicitor General – Attorney General’s deputyDirector of Public Prosecutions – Head of the CPS (duties - see Prosecution of Offences Act 1985)

Inferior JudgesCircuit Judges ( Crown Court, County Court); Recorders (Part-time; Crown Court); District Judges (Small Claims, County Court, Magistrates’ Court)Appointed by Lord Chancellor

TrainingBrief training (Recorders, District Judges)Post-2003, continuation training provided every 3 yearsJudicial Studies Board set up in 1979, following the Bridge Report – main objective: ‘to convey in a condensed form the lessons which experienced judges have acquired from their experience …’

Removal and Retirement

19

Ought to be independent and free from political pressure/bias. Therefore …- Superior Court Judges - have security of tenure; cannot be removed whilst of ‘good behaviour’ (Supreme Court Act 1981).- Inferior Court Judges – may be removed for incapacity or misbehaviour (Courts Act 1971)- Recorders – 5 year term; refusal to extend without reason is acceptableNo formal powers of reprimand against the judiciary; complaints should be addressed to the Lord Chancellor (new complaints procedure implemented in 2001).Judges usually retire at 70 years of age.

20

13. JUDGES AND THEIR DECISIONS – LEGAL REASONING

Three types of logical reasoninga. Deductive reasoningb. Inductive reasoningc. Reasoning by analogyThese three forms of reasoning are all used in decision making in law

a. Deductive reasoningReasoning from the ‘general’ to the ‘particular’Deductive syllogism:

Major Premise, (eg. All men are mortal)Minor Premise, (eg. Socrates is a man)Conclusion (ie. Socrates is mortal)

This is a simple yet powerful form of logical argument. Notice that if the premises are true then the conclusion cannot be false, ie. the argument must be valid. But this does not necessarily say anything about the truth of the premises or the conclusion derived from them. You must be careful to distinguish the validity of the argument’s form from any notion of the truth of its content (ie. although logically valid it may nonetheless still be factually incorrect, or false; for example, the following argument is logically valid but nonetheless factually false: All men are cats; Socrates is a man; Therefore, Socrates is a cat. The major premise is simply not true). Perhaps, then, a better way of expressing this same form of argument is like this:

If P, Then Q If A dishonestly appropriates B’s property with the intention of permanently depriving B of it, Then A is guilty of theft

P. A has done this.Therefore Q Therefore, A is guilty of theft

b. Inductive reasoningReasoning from the ‘particular’ to the ‘general’Different from deductive reasoning: in deductive reasoning, the conclusion is already contained in the premises; in inductive reasoning this is not so. Also, the conclusion in inductive argument is not as certain as in deductive argument; rather, if the premise is true, the conclusion is probably true. Although we cannot say with certainty, we can predict or infer. Of course, we might be wrong, but probably we will be correct. The classic form of inductive argument is:

The sun has always risen in the east and set in the west.Therefore, tomorrow the sun will rise in the east and set in the west.

Or,The victim lay dead on the ground, killed as a result of a number of stab

wounds.The suspect was found kneeling beside him with a large knife in her hands. Therefore, we can conclude that the suspect killed the victim.

Our conclusion may be reasonable but it is not necessarily correct – there might be another explanation, such as someone else did it and the suspect merely came upon the scene, picked up the knife and fell to her knees with shock. Here, our conclusion would act as a hypothesis that we would then test for its validity and, depending on the outcome of those tests, accept, reject or refine as necessary.c. Reasoning by analogyReasoning by exampleReasoning from the ‘particular’ to the ‘particular’Here, the truth of the conclusion depends on the accuracy of the analogy; thus, on the similarities and differences between the two objects being compared. That is, any two things may be both similar and dissimilar in different ways, so it is crucial that the characteristics being compared as similarities are more important than the differences. So the validity of the conclusion depends on the validity of the analogy; that is, it depends on which criteria we are using to make the comparison. For example: oranges, apples and bananas are three types of edible fruit, but is an orange more like an apple or a banana? It all depends on which criteria we are using to make our comparisons. For example,

Apples have an edible skin, but bananas and oranges do not.

21

Oranges and bananas are easily peelable without a knife, but apples are not.Apples and oranges are round, but bananas are not.Bananas have edible seeds, but apples and oranges do not.

So they are similar and dissimilar in different ways. ie. Or try another example. Coal and wood are similar; coal and diamonds are also similar, but in different ways to coal and wood. So, compare

Coal is a fuel that can be burned for heatWood is like coal.Wood is a fuel that can be burned for heat.

with:Coal is a fuel that can be burned for heatDiamonds are like coal.Diamonds are a fuel that can be burned for heat.

Consider the operation of the rules of precedent.

Precedent: in case A, in particular circumstances, principle P was applied, which led to conclusion C.

Present case: in case B, the circumstances are similar to case A.Therefore: principle P must be applied in case B to reach a conclusion

similar to C.

At first, it looks like deductive reasoning, but is this not more like inductive reasoning and reasoning by analogy?

Much depends on how we establish what the precedent is (inductive) and the criteria of similarity and difference we use to relate the precedent and the present case (analogy). Only then, can we start thinking about how the conclusion might necessarily follow from these premises (deductive).

These three forms of reasoning - deductive, inductive and reasoning by analogy - are all used in law.

22

14. LAY INVOLVEMENT

PersonnelMagistrates: Lay Magistrates; Professionally Qualified MagistratesJuriesTribunal Members

Lay MagistratesAged 21-65; can resign at any time but must retire at 70; can be removed by Lord Chancellor for ‘good cause’2 or 3 sit together as a BenchWide ranging duties but mainly hear criminal casesTraining carried out by Judicial Studies BoardVarious criteria disqualify from becoming a Magistrate (including serious criminal conviction).

Magistrates’ ClerkCounty Clerk who assists MagistratesDuties set out in s.28(3) of Justices of the Peace Act 1979Senior clerk at each court must be a qualified solicitor or barrister for at least 5 years.

JuryUsed in Crown Court, Coroner’s CourtOnly rarely used in Queen’s Bench Division and County Court.

Eligibility for Jury ServiceSet out in the Juries Act 1974 (as amended by Criminal Justice Act 2003)Under Schedule 33 of Criminal Justice Act 2003, everyone is eligible except the mentally ill and serving members of the Armed Forces, where the commanding officer has issued a certificate of excusalDisqualification – where individual has received custodial (or alternative) 5-year sentence; been sentenced within last 10 years; is on bailDiscretionary excusal – those with good reason may be excused service (eg. mothers with young children).

Selection of JurySelected at random; if selected, required to attend court for two weeksMay be removed by: vetting (either by Police check or, rarely, by wider background check with permission of Attorney General); challenges to the array (bias, acting improperly); for cause (valid reason, such as knowing the defendant but not race (see Practice Note (1973)); stand by for the Crown (prosecution only; to be used sparingly (see Attorney General Guidelines 1988); juror put at bottom of list and used only if last member remaining); excusal by judge (under s.10 of the Juries Act, where there is a doubt concerning juror’s ability to carry out duty as a result of, for example, blindness or physical disability).

Criminal Cases12 membersUsed where defendant pleads ‘not guilty’Decide on facts of the caseRetire to consider verdict in secret, following direction from the judge at the end of the caseUnanimous verdict sought but judge may advise that a majority verdict will be acceptable if no unanimity after 2 hours.

Civil CasesUsed in cases of defamation, false imprisonment, malicious prosecution, fraud (but judge may sit alone in some circumstances – see s.43, Criminal Justice Act 2003)Determine: whether case is proved; award for damages.

Coroner’s Court7-11 membersRequired for 4 types of death: prison; industrial accident; public health and safety; police custody

23

A discretion in all other cases.

Tribunal MembersUsually lay experts in relevant fields; appointed by relevant Government DepartmentChairman is usually legally qualified; appointed by Lord Chancellor.

24

15. ACCESS TO JUSTICE

Any person facing a legal problem requires legal advice and funding; without these, there is no access to justice. Prior to 1999, access to justice was provided by way of organisations such as the Citizens Advice Bureau (free legal advice) and Legal Aid (funding for pursuit of a case through the courts). When Legal Aid was established in 1949 about 80% of the population qualified; by 1993 only 40% were eligible for even partial funding.

Access to Justice Act (1999)Two new schemes: civil and criminal.

CivilS.1 – Legal Services Commission established, with members appointed by the Lord Chancellor and responsible for matching services to need and funding civil cases; however, has a limited budget and is not demand led.Excluded: allegations of negligently causing death or damage to property (other than clinical); conveyancing; boundary disputes; wills; trusts law; defamation; company law; other business matters.The Legal Services Commission (LSC) provides contracts to those who may provide legal services under the scheme.Quality mark to guarantee minimum standards.

CriminalGovernment has indicated a wish to implement a scheme of Public Defenders.Currently defendants have a choice of public defender or lawyer in private practice (with contract with LSC).S.12 – established Criminal Defence Service to ensure suspects have access to advice, assistance, and representation in interests of justice.S.13 – funding and advice to be given as appropriate.Meaning of ‘Interests of Justice’ – mainly, potential loss of liberty.Substantial point of law arises: whether an individual can understand the case against them; will expert witnesses be involved? Is it in the interests of a third party for the defendant to have representation?When means tested, about 95% of the population qualify for funding.Budget is demand led and funds may be transferred from the civil fund if necessary.

25