Unit 2 - LAW - Section A - Law Making - Specifications AQA LAW - Unit 1 - Section B - The English Legal System

LAW IN ACTION
Aspects of theEnglish Legal System

A Revision Guide

AQA LAW - Unit 1 - Section A - Law Making Specifications

AQA LAW - Unit 1 - Section B The English Legal System
Specifications

2
LAW IN ACTION
Aspects of theEnglish Legal System

CONTENTS 02-03

Specification - Unit 1 - Section A - Law Making 04
Specification - Unit 1 - Section B - The English Legal System 05

Section A - Law Making - Contents 06

THE FORMAL LEGISLATIVE PROCESS

1. Identify and outline the stages in the formal legislative process. 07
2. Identify and outline the ways in which a Bill can be presented to Parliament. 09
3. Discuss the advantages and disadvantages of the legislative process. 10
4. Outline the doctrine of Parliamentary supremacy and limitations on it. 13
5. Explain how the Law Commission can influence Parliament. 15
6. The advantages and disadvantages of the Law Commissions influence. 16
7. Explain how public opinion and the media can influence legislation. 17

TEST YOURSELF 19-21

DELEGATED LEGISLATION

1. Identify and briefly outline three forms of delegated legislation 23
2. Explain and discuss how delegated legislation is controlled both by
Parliament and by the Judiciary. 25
3. Discuss the advantages and disadvantages of delegated legislation. 27

TEST YOURSELF 29-32

THE DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedent 33
and how it operates within the English system of case law.
2. Explain how precedent works within the hierarchy of courts. 34
3. Explain the role of law reporting in the system of precedent. 35
4. Discuss whether the doctrine of precedent allows judges flexibility in
developing the law (distinguishing, overruling, reversing) 36
5. Outline and briefly explain the court structure. 38
6. Discuss the advantages and disadvantages of the system of precedent. 40

TEST YOURSELF 42-45

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Section B - The Legal System Contents 46

MAGISTRATES

1. How lay magistrates are selected and appointed. 47
2. How District Judges (Magistrates Courts) are selected and appointed. 48
3. The jurisdiction (responsibilities) of magistrates. 48
4. The advantages and disadvantages of magistrates
within the English legal system. 50

TEST YOURSELF 52-54

JURIES

1. The qualifications required for jury service. 55
2. How jurors are selected for jury service. 56
3. The function of a jury in a criminal trial. 57
4. The advantages and disadvantages of the use of juries. 58
5. Describe the function of the judge during a criminal trial. 61

TEST YOURSELF 61-65

THE LEGAL PROFESSIONS

1. Outline the qualifications and training required to become a barrister 66
or a solicitor, and describe the work each profession carries out.
2. Outline how complaints against solicitors can be dealt with. 69
3. Outline how complaints against barristers can be dealt with. 69
4. Outline the training and role of Legal Executives. 70
5. Discuss the suggestion that because of recent changes to the legal
profession it is no longer necessary for there to be two distinct
professions of solicitor and barrister. 71

TEST YOURSELF 73-74

CRIMINAL COURTS

1. The Magistrates Courts in criminal cases. 75
2. The Crown Court in criminal cases. 77

TEST YOURSELF 79

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AQA LAW - SPECIFICATION

Unit 1 - LAW01 - Law Making and the Legal System

Candidates answer three questions Candidates will study both section A and section B.
In the examination, they will answer one question from each section,
and a third question from either section. 1 hour 30 minutes 95 marks

Section A Law Making

Parliamentary Law Making

Outline of influences on Parliament: role of the Law Commission; political, media and
pressure group influences; Green and White consultative papers.

Formal UK legislative process: roles of the House of Commons, House of Lords, and the
Crown; the types of Bill; stages in the process. Doctrine of Parliamentary Supremacy and
limitations on it: effect of membership of the European Union; effect of Human Rights
Act 1998.

Advantages and disadvantages of the influences on Parliament and of Parliamentary law
making.

Delegated Legislation

Statutory Instruments; Orders in Council; By-Laws (Local Authority and other bodies).
Reasons for delegating powers.

Parliamentary and judicial control over delegated legislation.
Advantages and disadvantages of delegated legislation.

Statutory Interpretation

Approaches to interpretation: literal, golden and mischief rules; purposive approach.
Aids to interpretation: rules of language; internal and external aids.
Advantages and disadvantages of the different approaches and aids to statutory
interpretation.

Judicial Precedent

The Doctrine of Precedent: the hierarchy of the courts; stare decisis, ratio decidendi and
obiter dicta; law reporting. The operation of the doctrine: following, overruling,
distinguishing and disapproving.

Advantages and disadvantages of the doctrine and operation of precedent.
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Unit 1 - LAW01 - Law Making and the Legal System

Section B The Legal System

The Civil Courts and other forms of dispute resolution

Outline of civil courts and appeal system.

Other form of civil dispute resolution: tribunals, arbitration, mediation, conciliation and
negotiation.

Advantages and disadvantages of the civil courts and other forms of dispute resolution,
including comparisons with each other.

The Criminal Courts and lay people

Outline of criminal courts and appeal system, including classification of offences.

Lay magistrates: qualification, selection and appointment; training, role and powers.
J urors: qualification and selection; role.

The advantages and disadvantages of using lay people in the criminal courts.

The Legal Profession and other sources of advice, and funding

Barristers, solicitors and legal executives: qualification, training and work of each group.
Other sources of legal advice.

Outline of private funding: own resources, insurance and conditional fees. Outline of
state funding: Community Legal Service and Criminal Defence Service.

Simple evaluation of the legal profession, of other sources of advice and of funding.

The Judiciary

J udges: qualification; selection and appointment; role; training; dismissal.

The independence of the judiciary: security of tenure, immunity from suit; independence
of the Executive; the separation of powers.

Simple evaluation of the judiciary.

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UNIT 1 - LAW MAKING And The LEGAL SYSTEM

SECTION A: LAW MAKING


1. Identify and outline the stages in the formal legislative process.
2. Identify and outline the ways in which a Bill can be presented to
Parliament.
3. Discuss the advantages and disadvantages of the legislative process.
4. Outline the doctrine of parliamentary supremacy and its limitations.
5. Explain how the Law Commission can influence Parliament.
6. The advantages and disadvantages of the Law Commissions influence.
7. Explain how public opinion and the media can influence legislation.


1. Identify and briefly outline three forms of delegated legislation
Parliament and by the Judiciary.
3. Discuss the advantages and disadvantages of delegated legislation.

DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedent
2. Explain how precedent works within the hierarchy of courts.
3. Explain the role of law reporting in the system of precedent.
developing the law (distinguishing, overruling, reversing)

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Introduction

The formal legislative process refers to the process by which a Bill passes through
Parliament in order to become an Act of Parliament. A Bill, often called a draft Act, must
pass through a number of stages in both the House of Commons and the House of Lords
before it can be given Royal Assent and become law.

There is often a period of consultation before a Bill is introduced into Parliament by the
government. The government may publish a Green Paper in which it outlines its reasons
for wishing to create new legislation. A Green Paper gives the opportunity fort a wide
range of organisations and groups of people to comment on the proposals. Greenpeace,
Age Concern, and trade unions are examples of the organisations who may wish to
comment on the governments proposals. They may also lobby Members of Parliament
to influence views in their favour.

The government then publishes a White Paper that outlines the proposals in more detail.
These proposals will be similar to the approach taken in the Bill. For example, the White
Paper Justice for All (2002) outlined significant changes to the ways in which criminal
courts operate.

Not all Bills are preceded by Green and White Papers. In recent years the government has
published fewer Green Papers, preferring to use a more informal approach to
consultation.

1. Identify and outline the stages in the formal legislative process.

To become an Act of Parliament, a Bill must pass through both the House of
Commons and the House of Lords, and it must receive Royal Assent. Most
Bills can start off in either House, but where a Bill is likely to be controversial it
will start off in the Commons. Government Bills involving changes in taxation
or public spending must be first introduced in the Commons.

Bills must go through the following procedure in each House: First Reading,
Second Reading, Committee Stage, Report Stage, Third Reading. After the
Third Reading, the Bill is passed to the other House where it goes through the
same stages. The Committee Stage is not usually required in the Lords but
when it is, the whole House of Lords acts as the Committee. If a Bill fails to
win a majority vote in either House it will not become law unless it repeats the
whole procedure successfully.

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Once a Bill has passed through both Houses, it requires Royal Assent to
become law. It is not customary for the Monarch to consent in person; consent
is given by a committee of 3 peers (Lords), including the Lord Chancellor. The
granting of Royal Assent is a formality. Withholding Assent would cause a
constitutional crisis.

The most important stages in the legislative process are probably the Second
Reading and the Committee Stage.

During the Second Reading the aims and principles of the Bill are debated at
length. The government minister from the department responsible for the Bill
opens the debate, outlining the main principles of the new law and
summarising its most important clauses. Shadow ministers from the
Opposition then respond. The debate is then open to all MPs who wish to
speak. A vote is then taken on whether the Bill should proceed further.
Government Bills are usually whipped, which means MPs must vote in line
with their political partys instructions.

At the Committee Stage in the Commons each Bill is scrutinised in detail by its
own standing committee made up of MPs drawn from all political parties. A
Standing Committee is made up of between 16 to 50 MPs selected according to
the strength of each political party in the House. The committee examines the
Bills wording and may amend it to ensure it conforms to the general approval
given by the House at the Second Reading. For Bills concerned with taxation
(Finance Bills) or with constitutional matters, the whole House may sit as a
committee at this stage.

There are no Standing Committees in the House of Lords. After the Second
Reading, the Lords as a whole may act as a committee, scrutinising the Bill and
proposing amendments.

The Third Reading is generally a formality. Major changes cannot be proposed,
and a Commons vote is taken only if requested by at least six MPs. If
approved, the Bill will then pass to the other House of Parliament, and then on
to Royal Assent.

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2. Identify and outline the ways in which a Bill can be presented to
Parliament.

There are three types of Bill. These are: Private Bills, Public/ Government
Bills, and Private Members Bills.

Private Bills deal with local or personal matters. They are introduced by a
Member of Parliament on behalf of a private organisation, local authority, or
the individual concerned. For example, a Private Bill used to be the only way of
obtaining a divorce. However, in modern times only a very small number of
Private Bills have been passed. They were more common in the 19
th
century.
For example, a Private Bill enabled the construction of the Manchester Ship
Canal, a project much too large for the local council to achieve on its own.

By far the majority of Bills introduced into Parliament each year are
Public/ Government Bills, introduced by the Government. Government Bills
are usually introduced as a result of party Manifesto promises, or for particular
issues that arise such as the terrorism legislation, or as recommendations from
various law reforms bodies, for example the Law Commission or a Royal
Commission. An example of an Act that started as a Government Bill is the
Disability Discrimination Act 1995.

Private Members Bills are introduced by backbench MPs, i.e. MPs who do
not hold office in the Government. Every 12 months MPs who wish to
introduce a Private Members Bill can enter their names in a ballot, and 20
names are drawn.

Around 10% of Commons time is spent on Private Members Bills, but unless
the Bill has the support of the Government its chances of becoming an Act of
Parliament are limited. However, Private Members Bills have produced a
number of important statutes. Examples of Private Members Bills that have
become Acts of Parliament include the Murder (Abolition of Death Penalty)
Act 1965, the Abortion Act 1967, and the Marriage Act 1994 that allows people
to get married in any registered venue.

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3. Discuss the advantages and disadvantages of the legislative process.

ADVANTAGES

The legislative process has a number of advantages.

Firstly, it is democratic. The members of the House of Commons are
democratically elected to make our laws. Before each General Election, each
political party presents its Manifesto to the electorate. The winning party then
has control of the House of Commons and forms the Government led by the
Prime Minister. By far the majority of Bills introduced into Parliament each
year are Government Bills; it is these Bills that eventually become statutory law.

MPs in the Commons, therefore, are our democratically-elected representatives,
entrusted by the electorate to legislate for the benefit of the citizens of the
United Kingdom. MPs are answerable to the electorate and know full well that
if they produce consistently unpopular legislation, they are likely to lose their
seats and the right to govern at the next General Election.

A second advantage is that the legislative process is open and transparent from
Green Paper to Royal Assent. Formal legislation may be preceded by a Green
Paper and a White Paper. This period of consultation allows a wide range of
organisations, groups of people, the general public, and the media to comment
on the Governments proposals. MPs will certainly take into account the
popularity or unpopularity of any proposed legislation.

Formal legislation itself takes place in public. Members of the public may
attend any of the debates in Parliament. The Committee Stage, especially for
controversial Bills, will be attended by the Press, and issues may be reported in
the Media while MPs themselves may be grilled on radio and television.

There are also checks and balances throughout the legislative process. Her
Majestys Loyal Opposition, composed of MPs not in political power, are there
to scrutinise legislation at every stage. Although a Government with a clear
majority can get most of its legislation through, it will take into account the
criticisms offered by the Opposition, especially if the Opposition has
considerable support amongst the general public on a particular piece of
legislation, for example changing the jury system.

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The House of Lords has a crucial role to play as a revising chamber who can be
thought of as critical friends in the legislative process. A Bill can go back and
forth between the Houses until agreement is reached on amendments proposed
by the Lords; this often produces better Law.

The Lords recognise they are not democratically elected, so it is very rare for
them to vote against a government Bill. However, peers can force the
Government to think again by indicating they intend to vote against a Bill.
Under the Parliament Acts 1911 and 1949, the Lords may delay a Bill for up to
a year. After that, the Commons can send the Bill for Royal Assent without the
Lords agreement as happened with the Hunting Bill 2004. This ensures that
the Commons has to listen to the advice of the Lords, but it is not bound by
that advice.

Advantages of the formal legislative process:

1. Democratic. Our laws are made by our elected representatives, MPs.
Manifesto promises become Government bills, which then become
Acts, e.g. Hunting Act 2005.
2. Open and transparent process. Green Paper, White Papers, etc.
Everything debated in public. There are no secret laws.
3. Lots of checks and balances. For example, 2
nd
Reading, Committee
Stage, House of Lords (revising chamber), Royal Assent.
4. Bills are drafted by Parliamentary draftsmen; they have many years of
experience of drafting complicated legislation. Also each Minister is
responsible for his/ her Bill, so theyd better get it right.

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DISADVANTAGES

The legislative process has a number of disadvantages

The main disadvantage of the legislative process is that it often produces Acts
which are incredibly complex and difficult to interpret. For example, about
75% of the cases heard by the House of Lords in its judicial capacity each year
involve disputes over the interpretation of Acts.

The Renton Committee on the Preparation of Legislation highlighted four
main categories of complaint: (1) the language used in many Acts is obscure
and complex, (2) many Acts are over-elaborate because they try to cover every
contingency, (3) the structure of many Acts doesnt make much sense so it is
hard to find particular sections, (4) the lack of clear connection between
different Acts often made it difficult to find out what the law actually is!

The Renton Committee (1975) made 81 recommendations but only about half
of these have been implemented.

Laws are made for the benefit of the citizens. Therefore, statute law should be
as certain and as easy to understand as possible. This is clearly not the case with
statute law at present.

Summary of disadvantages of the formal legislative process

1. The legislative process is very slow. Only 300 Acts a year. Bills must go
through both Houses. System depends upon delegated legislation to
produce enough laws, especially through Statutory Instruments and
bylaws.
2. Legislation is extremely complicated. Renton Committee highlighted 4
main problems: (1) language obscure and complex; (2) Acts over-
elaborate and complex because they try to cover everything; (3) difficult
to find the connection between Acts because the law may be scattered
across several Acts.
3. About 75% of all the cases heard by the Law Lords involve arguments
about what the Acts of Parliament actually mean.

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4. Outline the doctrine of Parliamentary supremacy and limitations on it.

The doctrine of Parliamentary supremacy is based on the concept of
democratic law-making. Statutory law is created by Members of Parliament
who have, at least in the House of Commons, been elected to represent their
constituencies in Parliament. In other words, MPs are representatives of the
those who democratically elect them, and in this way the electorate can
consider themselves as part of the law-making process.

However, there are a number of limitations on this concept. Firstly, MPs
usually vote on party lines rather than how their particular constituents wish. In
this way it is more accurate to say that it is the Government in power that is
supreme rather than Parliament itself. The leaders of that party, the Cabinet,
decide what legislation will be introduced. Members of Parliament are
instructed when and how to vote by the party whips. There is the occasional
rebellion but generally the Government gets its own way. The limit on what
Parliament can do is, therefore, in reality set by the views of the Cabinet as to
the best political decision.

In addition, many MPs are elected by very small majorities, and do not in reality
represent the majority of their constituents as much as they might claim to do.
Often an MP will be elected by out 30% of his constituents, particularly if
several candidates stand for election, and if he wins by only a narrow majority.

Parliamentary elections only have to take place once every five years. This
means that constituents may find their MP regularly votes against their wishes
and be able to do nothing about it, or even that their MP leaves their political
party and crosses to the opposition bench in Parliament. Having said that, a
great deal of law is not at all political in content and similar legislation would be
passed no matter which political party was in power.

The House of Lords plays an important part in the legislative process but there
are objections to their role on the grounds they are not an elected body. The
House of Lords is seen as a revising chamber. Their task is to debate the Bill
and offer amendments. Their views are usually respected by the Commons.
The Lords are seen as a check on the balance of power in Parliament. If a
majority of the House of Lords oppose a bill, they can defeat the Government
in a vote on the bill and delay its passage for a year. However, in the final
resort, the Government can use the Parliament Acts of 1911 and 1949 to
overrule the Lords and force the Bill through.

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The will of the House of Commons must eventually prevail because its
members have been elected by the people at a General Election and, therefore,
the victorious party and the Government it forms have a mandate to
implement the proposals set out in their Manifesto.

In theory, the Queen could refuse to give the Royal Assent which signs a Bill
into Law. However, the monarchs power is only symbolic and theoretical; in
practice, the monarchy could not defy the will of Parliament and survive. Yet
the Queen remains a much-respected figure and her views will be taken
seriously by the Prime Minister and the Government.

Parliament remains the supreme domestic legislative authority but it has chosen
to limit its sovereignty in relation to Europe. When the United Kingdom
passed the European Communities Act 1972, we accepted that European law
takes priority in legislation affecting all of Europe. This was confirmed by
Factortame Ltd. v Secretary of State (1989).

Finally, the Human Rights Act 1998 has begun to influence domestic legislation
very significantly. Acts of Parliament may not conflict with any judgements
made by the European Court of Human Rights. In addition, our courts may
not make any judgements that conflict with judicial precedent set by the
ECHR.

As we live in a parliamentary democracy, the will of the people as expressed by
the House of Commons must always prevail. However, there are lots of checks
and balances in our legislative system to ensure that legislation expresses the
will of at least a majority of the electorate.

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5. Explain how the Law Commission can influence Parliament.

Introduction

Acts of Parliament are created by Parliament, but how does Parliament, and in particular
the Government, decide what Bills will be introduced in Parliament? Clearly Parliament
will be influenced by a wide variety of groups. These include political parties, public
opinion, the media, pressure groups, law reform bodies such as the Law Commission, and
judges as they interpret and apply the law in courts.

During a general election campaign, each political party publishes and promotes its own
Manifesto, its proposed programme of legislation, hoping that it will appeal to the
electorate and secure them victory at the ballot box. Proposed Bills generally fall onto
three groups. First there are non-controversial Bills that have broad approval from all, or
most of the political parties; these pass through Parliament with little opposition. Second
there are the Bills that reflect public concern, for example the Dangerous Dogs Act 1991.
Third there are political Bills that reflect the philosophy of the party that proposes them;
these are usually designed to change society in some way. For example, Conservative
governments between 1979 and 1993 passed considerable legislation to weaken the
power of the trade union movement.

The Law Commission was established by the Law Commissions Act 1965. It
is a permanent, independent law reform body and has a full-time staff headed
by five Law Commissioners, consisting of two academics, a barrister, a solicitor
and a judge. The chairman is usually a High Court judge who is appointed for
three years. The commissioners are supported by barristers and solicitors from
the civil service, parliamentary draftsmen, researchers and administrative staff.

Under section 3(1) of the 1965 Act, the role of the Law Commission is to keep
under review all the law and to recommend reform when it is needed. The
Commission carries out research and consultation, then draws up proposals
leading to modernisation and improvement of the law. These proposals are put
before Parliament who then decide whether or not to turn these draft Bills into
Acts of Parliament.

The five key areas of concern are: (1) the development and reform of the law;
(2) repealing obsolete law (getting rid of outdated law); (3) the simplification of
the law; (4) codifying the law (putting laws on the same subject together); and
(5) repealing laws that are obsolete or that conflict with each other. Since 1965,
around 5000 enactments have been repealed by Statute Law (Repeals) Acts
proposed by the Law Commission.

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The Law Commission investigates matters referred to it by Government
departments but also decides itself which areas to investigate. It usually has
around 30 projects in hand at the same time. Following research and
consultation, the Law Commission produces a report that is sent to the Lord
Chancellor with its final recommendations. The report usually includes a draft
Bill which is then laid before Parliament. Examples of legislation passed to
implement Law Commission recommendations include the Criminal Attempts
Act 1981, the Sale and Supply of Goods Act 1994, the Computer Misuse Act
1990, and the Family Law Act 1996.

6. The advantages and disadvantages of the Law Commissions influence.

Advantages of the law reform bodies

Both the Law Commission and Royal Commissions have the advantage of
many members who have considerable technical and legal expertise and
knowledge in their fields. The Law Commission is headed by a High Court
judge, a barrister, a solicitor and two legal academics. A Royal Commission can
invite whomever it wishes onto its committee.

Because the membership of both bodies is drawn from a range of backgrounds,
their recommendations are usually free from political bias; they do not support
one political party or the other. Therefore, they are likely to give a balanced
range of recommendations. Furthermore the Law Commissioners change every
five years so a different range of views is brought into the law reform body.

Both types of Commission conduct extensive research during their
investigations so their recommendations are supported with considerable
evidence. This helps to reform, develop and clarify the law and avoid future
problems in the application of the law.

Disadvantages of the law reform bodies

A major disadvantage of both the Law Commission and Royal Commissions is
that many of their recommendations are not turned into statutory legislation.
This is unfortunate because their recommendations are often well-balanced.
However, if the Government of the day dislikes any of the recommendations,
they will not put them into practice.

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For example, there was recently, a Royal Commission on the Reform of the
House of Lords. It recommended that 80% of the peers should be appointed,
and 20% should be elected. This was not implemented because a majority of
Labour MPs felt that more than 20% of the Lords should be elected.

The lack of power possessed by the Law Commission is also shown by the fact
that the Government is not obliged to consult the Law Commission or set up a
Royal Commission. Margaret Thatcher did not like Royal Commissions so she
did not appoint a single one when she was Prime Minister for eleven years.

The process of investigation often takes a long time; it can sometimes be years
before a report is produced. With Royal Commissions, this is partly because
their members work only part-time. The Law Commission often conducts
several investigations at the same time; this can seriously delay a report on any
single investigation; and investigations may not be as thorough as they could
be.

7. Explain how public opinion and the media can influence legislation.

Members of Parliament, at least in the House of Commons, are elected by the
general public, the electorate, so it is only right that they continue to listen to
those who have voted them into office. In theory, the government represents
the population, and the government will usually introduce legislation that has
the general support of the country. No government that consistently ignores
the opinions of its supporters, or the country as a whole, is likely to win the
next general election.

Each political party has its local organisation whose members feed ideas and
opinions to the national party. An MP listens closely to his constituency
members because it is they, after all, who help him win his seat at a general
election. However, active party members are a small minority of the electorate
as a whole, so politicians will seek other ways to gauge the mood of the general
public. From time-to-time political parties commission opinion polls to assess
public attitudes on legislation they may consider introducing.

Sometimes the public demand changes in the law following a small number of
sensational incidents. For example, the Government found it very difficult to
resist the campaign supported by leading tabloid newspapers following the
murder of little Sarah Payne to change the law concerning how much
information about paedophiles should be made public. On the other hand,
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shifts in public opinion may take much longer. For example, homosexual sex
between consenting adults was a criminal offence in the 1960s; today changing
attitudes have resulted in the reduction of the age of homosexual consent to 16
for both males and females.

Does public opinion shape media influence, or does media influence shape
public opinion? In fact, it is a two-way process though there is little doubt that
media influence has become increasingly powerful. This is hardly surprising
since the news media is a major source of information for most people.
Newspapers in particular can be very influential because they often put forward
a partisan political view while radio and television have an obligation to present
balanced arguments.

For example, following the murder of Stephen Lawrence in 1993 and the
acquittal of three young men, the media raised serious questions about the way
in which the police had handled the investigation and whether the acquittal
verdict was right. In response to this fierce criticism, the government set up an
inquiry led by Sir William Macpherson, a retired judge. The Macpherson
Report, published in 1999, among other recommendations, suggested that the
double jeopardy rule was in need of review this is the law which prevents
anyone being prosecuted for the same offence for the same offence if they
have already been acquitted. The Law Commission suggested amendments to
the law, and the Criminal Justice Act (2003) removes the double jeopardy rule
for serious cases if new and compelling evidence comes to light, so that a
defendant can be tried a second time.

It is fair to say the media has increasingly set the agenda for much
parliamentary debate and even legislation, for example, in relation to asylum
seekers, national identity cards, gun control and top-up fees for university
students. One must hope that the media, particularly the press, takes general
public opinion into account when launching their campaigns.

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THE FORMAL LEGISLATIVE PROCESS - TEST YOURSELF

Introduction

1. To what does the legislative process refer?
2. What is a Bill often called?
3. Name the two Houses of Parliament.
4. Who gives her Royal Assent?
5. What is the purpose of a Green Paper?
6. Who might contribute their views concerning a Green Paper?
7. What does lobbying in Parliament mean?
8. What is the purpose of a White Paper?
9. What did the White Paper Justice for All (2002) outline?
10. Why has the Government published fewer Green Papers in recent years?

Stages in the Legislative Process

1. What are the three principal stages in the legislative process?
2. Why is passage through the House of Commons the most important stage?
3. In which House are most controversial Bills introduced?
4. Which Government Bills must be first introduced in the Commons?
5. Name the 5 stages a Bill goes through in both Houses.
6. What happens if the Committee Stage is needed in the Lords?
7. What must a Bill win in both Houses if it is to become an Act of Parliament?
8. Describe in detail the nature of Royal Assent.
9. Describe in detail what takes place during the Second Reading of a Bill.
10. Describe in detail what takes place during the Committee Stage in the Commons.
11. What may the Lords do at the Committee Stage?
12. Explain why the Third Reading is generally a formality.

The Ways in which a Bill can be presented to Parliament
Private Bills
Public/Government Bills
Private Members Bills

1. What kind of matters do Private Bills deal with?
2. Who introduces a Private Bill?
3. On whose behalf are Private Bills introduced?
4. When were Private Bills fairly common? Give an example of a Private Bill.
5. Why have only a small number of Private Bills been passed in recent times?

6. By whom are Public Bills introduced?
7. What are Public Bills usually based on?
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8. Give one example of an Act of Parliament that started as a Government Bill.
9. Give examples of occasions when other Public Bills may be introduced.
10. Name the two Law Reform bodies.

11. Private Members Bills are introduced by whom?
12. Explain the term backbench MP.
13. Describe the selection process by which an MP is given the opportunity
to introduce a Private Members Bill.
14. What support does a Private Members Bill need to become law?
15. Name 3 important Acts of Parliament that started off as Private Members Bills.

Advantages and Disadvantages of the Legislative Process

Advantages

1. Legislative process can be regarded as democratic.

Commons - democratically elected - General Election - Manifesto to the electorate -
winning party - forms the Government - Prime Minister - majority of Bills Government
Bills - eventually become statutory law. MPs answerable to electorate - consistently
unpopular legislation - likely to lose their seats and right to govern - next General
Election.

2. The legislative process is open and transparent.

From Green Paper to Royal Assent - preceded by a Green Paper and a White Paper -
period of consultation - organisations, groups of people, general public, media -
comment on the Governments proposals. MPs take into account popularity or
unpopularity of any proposed legislation. Legislation takes place in public - public and
press may attend any of the debates in Parliament. The Committee Stage, especially for
controversial Bills, attended by the Press - issues reported in the media while MPs
grilled on radio and television.

3. Checks and balances throughout the legislative process

Her Majestys Loyal Opposition - scrutinise legislation at every stage - although a
Government clear majority most of legislation through, take into account the criticisms
offered by the Opposition - especially if the Opposition considerable support general
public on a particular piece of legislation, for example changing the jury system.

The House of Lords crucial role - revising chamber - critical friends in the legislative
process. A Bill back and forth between the Houses until agreement is reached on
amendments proposed by the Lords - often produces better Law.

21
Lords not democratically elected - rare for them to vote against a Government - however,
force Government to think again - indicating they intend to vote against a Bill. Under the
Parliament Acts 1911 and 1949, Lords delay a Bill for up to a year - After that, the
Commons send Bill for Royal Assent without the Lords agreement - Hunting Bill 2004.
Ensures Commons listen to advice of Lords, but not bound by advice.

Disadvantages

The main disadvantage of the legislative process - often produces Acts incredibly
complex and difficult to interpret. For example, about 75% of the cases heard House of
Lords - judicial capacity each year involve disputes - interpretation of Acts.

Renton Committee on the Preparation of Legislation highlighted four main categories of
complaint: (1) the language many Acts obscure and complex, (2) many Acts over-
elaborate - try to cover every contingency, (3) the structure of many Acts doesnt make
much sense - hard to find particular sections, (4) the lack of clear connection between
different Acts often makes it difficult to find out what the law actually is!

The Renton Committee (1975) made 81 recommendations - only about half -
implemented.

Laws made for benefit of the citizens. Therefore, statute law should be as certain and as
easy to understand as possible. Clearly not the case with statute law at present.

The Law Commission

1. When and how was the Law Commission established?
2. Describe two characteristics of this law reform body.
3. Describe in detail how the Law Commission is staffed and organised.
4. What is the role of the Law Commission Under section 3(1) of the 1965 Act ?
5. Outline briefly how the Law Commission operates.
6. What are their five key areas of concern?
7. How does the Law Commission decide which areas of law to investigate?
8. To whom is its final report and recommendations submitted?
9. What does the final report usually include?
10 Name three Acts of Parliament which were originally based on
Bills submitted by the Law Commission.

22

Introduction

Delegated legislation can be defined as law made by some person or by some body under
the authority of an Act of Parliament. Parliament delegates its authority but not its
ultimate responsibility for all legislation. Parliament cannot, in the time and with the
resources available to it, make all the laws society requires. A law may only be needed
for a specific geographical area, such as a town or county, it may only be needed on a
specialist matter, for example transport or education, or it may be needed to meet an
unforeseen emergency.

Parliament gives its authority to make laws to other bodies in parent or enabling Acts
of Parliament. The Parent/Enabling Act contains the basic framework of the law, together
with authorisation for the person/s or bodies, such as a Government department, to make
further law on the matter. For example, the Criminal J ustice Act 2003 allows rules to be
made allowing trial for serious or complex fraud cases to be held without a jury.

Another example is the Road Traffic Act 1988 which gives the Secretary of State for
Transport the authority to make regulations regarding the type of helmet that must be
worn by motorcyclists.

There are three different types of legislation, which are: Orders in Council, statutory
instruments, and bylaws.

23
1. Identify and briefly outline three forms of delegated legislation

Three forms of delegated legislation are: Orders in Council, statutory
instruments, and bylaws.

Orders in Council

The Queen and the Privy Council have the authority to make Orders in
Council. The Privy Council is made up of current and former Cabinet ministers
and other senior politicians. This type of delegated legislation allows the
Government to make legislation without going through Parliament. Orders in
Council are drafted by government departments.

The main use of Orders in Council is to put European directives into effect.
These directives are intended to harmonise the laws of Europes member
states. They cover many issues, including health and safety or workers, equal
rights, consumer law, banking, insurance, and social security.

The Privy Council also has power to make law in emergency situations under
the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. For
example, the Privy Council might use Orders in Council during an outbreak of
foot and mouth to help prevent the spread of the disease.

Orders in Council are also used to transfer responsibilities between government
departments. For example, they were used to transfer power from the ministers
of the UK government to those of the devolved assemblies in Scotland and
Northern Ireland.

Statutory Instruments

Statutory Instruments (SIs) are rules made by government ministers under the
authority of the parent/ enabling Act for the area of government for which they
have responsibility. For example, the Minister for Transport has power under
the Road Traffic Act 1988 to make regulations concerning motorcyclists, such
as the type of helmets to be worn. For this reason, SIs are often called
ministerial regulations.

If a minister did not have these powers, the Parent Act would need to be
regularly updated whenever regulations were changed. This would be time-
consuming and cumbersome.
24

The Statutory Instrument is also the most usual form of law used to put
European directives into practice. European members must pass their own
laws to bring the directives into effect, and the usual, but not the only, method
in the United Kingdom is the SI. For example, the Unfair Terms in
Consumer Contracts Regulations 1994 implemented a European directive
giving consumers protection from unfair terms in contracts.

About 3000 SIs are brought into force every year, which demonstrates that
Statutory Instruments are a major method of law-making.

BYLAWS

Bylaws are made by local authorities and public bodies or companies. These
bylaws must be approved by the relevant government minister.

Under the Local Government Act 1972, local authorities are given the power
to make laws concerning their geographical area. A County Council can pass
laws affecting the whole county while a District or Town Council can pass laws
affecting that district or town. Many local bylaws involve the control of traffic,
including parking restrictions, but they also cover a wide range of issues such as
the drinking of alcohol in certain places and the fouling of public areas by dogs.
In Canterbury it is an offence to consume alcohol in the street or any open
space in the city centre.

We can think of bylaws as local laws made by local people (councillors) for
their local area.

Public bodies and some companies make laws within their areas that affect the
public. For example, the railway companies can issue bylaws about the
behaviour of the public on their premises and trains. The London
Underground has created a by-law banning smoking on any part of the
Underground.

25
Parliament and by the Judiciary.

1. CONTROL BY PARLIAMENT

Parliament delegates its authority to produce legislation but it retains
responsibility for all delegated legislation created in its name. Therefore,
Parliament has a number of ways by which it controls delegated legislation.

All delegated legislation is written within a framework authorised by
Parliament. The framework is outlined in a Parent/ Enabling Act. The Enabling
Act sets limits which the delegated legislation must respect. For example, all
bylaws are created under the Local Government Act 1972; and all Orders in
Council are created under the Emergency Powers Act 1920 and the Civil
Contingencies Act 2004 No delegated legislation can include powers not
granted by the Parent Act, otherwise they are ultra vires, which means acting
beyond the powers outlined in the Enabling Act.

In addition, Parliament established a Delegated Powers Scrutiny Committee
in 1993. This is a joint committee, including members of both Houses of
Parliament. This committee hears evidence from government departments on
SIs. The task of this committee is to recommend that Parliament reviews SIs
when it considers the SI is defective in some way. For example, the authority of
Parliament may have been exceeded or the drafting is defective (not worded
properly). However, the Scrutiny Committee can only report its findings; it has
no power to amend/ change a statutory instrument.

A small number of SIs must receive affirmative resolution in order to become
law. This means the Statutory Instrument cannot become law unless it is
specifically approved by vote by Parliament. If affirmative resolution is required
this will have been stated in the Enabling Act. One of the disadvantages of this
procedure is that Parliament cannot amend the SI; it can only be approved,
annulled or withdraw.

Most SIs are subject to negative resolution. This means that the SI will
become law unless it is rejected by Parliament within 40 days. Ministers may be
called before Parliament to answer questions about the proposed SI during this
period.

In the final resort, Parliament has the power to revoke delegated legislation
or pass an Act on the same subject.
26
2. CONTROL BY THE JUDICIARY

All delegated legislation is subject to review in the Queens Bench Division of
the High Court. This court has the power to review legislation and to declare it
void, especially if the legislation goes beyond the powers (ultra vires) granted in
the Parent/ Enabling Act.

There are two ways in which delegated legislation can be ultra vires substantive
ultra vires and procedural ultra vires. Substantive ultra vires means the delegated
legislation included powers that were not granted in the Enabling Act. For
example, in Strictland v Hayes Borough Council (1896) the court decided
that although Hayes BC had the right to ban singing obscene songs in public,
they had no right to ban singing these songs in private because this power had
not been granted in the Enabling Act.

Procedural ultra vires means that the delegated legislation is ultra viresbecause the
correct procedure outlined in the Enabling Act has not been followed. For
example, in the Aylesbury Mushroom case (1972), the court declared the
delegated legislation void because the Minister of Labour had not consulted all
the parties, including the Mushroom Growers Association as required by the
Enabling Act.

The court may also declare delegated legislation void if it includes making
unreasonable regulations, imposes a tax, or allows sub-delegation. These will
only be permitted if the power is granted by the Enabling Act.

The courts may also issue what are called prerogative orders. There are three
kinds of prerogative orders: (a) quashing, which cancels an ultra vires decision,
(b) mandatory, ordering a party to do something, and (c) prohibition, order a
body not to do something.

The courts may also declare delegated legislation void if it conflicts with
European directives.

27
3. Discuss the advantages and disadvantages of delegated legislation.

Delegated legislation has several advantages.

Firstly, it saves Parliament time. Parliament simply does not have enough time
to pass all the laws the country needs. Over 3000 statutory instruments alone
are passed each year. The whole Parliamentary year would be taken up with
passing these, leaving little or no time for important legislation to be passed.
Parliament needs to concentrate on converting the Manifesto promises made
by the winning political party into Acts of Parliament, for example the Hunting
Act (2005).

Secondly, delegated legislation can be passed quickly to deal with situations
when they arise, including emergencies. For example, following the terrorist
attacks on September 11, 2001, an Order in Council was made to stop flights in
and out of the UK for a temporary period. In the same way, Statutory
Instruments can be created or amended far more quickly by Government
departments than by going through the whole formal legislative process.

Thirdly, people with specialist knowledge pass delegated legislation. For
example, local councils have greater knowledge of their local area. These bylaws
cover many issues including the drinking of alcohol in certain places and the
fouling of public areas, such as parks, by dogs. In Canterbury it is an offence to
consume alcohol in the street or any open space in the city centre.

Statutory Instruments are drawn up by civil servants who usually have many
years working in the same Government department and therefore have
specialised knowledge about their subjects from transport to education to
industry to health. There is also some control over this type of delegated
legislation because it is scrutinised by the Scrutiny Committee and it is subject
to affirmative or negative resolutions.

Delegated legislation has a number of disadvantages.

Firstly, the process is to some extent undemocratic because it allows non-
elected people to make the law. It is the civil servants who draft the statutory
instruments; civil servants are not elected, and the instruments are often only
scrutinised briefly, then rubber-stamped by the Minister responsible. This
would be acceptable if there was sufficient control over statutory instruments,
but in reality Parliaments control is fairly limited. For example, not all Statutory
28
Instruments are subject to affirmative or negative resolution, and quite a few
get through with very little scrutiny.

On the other hand, bylaws are made by local authorities whose members are
democratically elected and accountable to local citizens.

Secondly, there is such a huge volume of legislation for example, 3000
statutory instruments annually that it is often difficult to discover just what
the present law is. In addition, much delegated legislation is made in private
with few opportunities for public or media scrutiny. This is sharp contrast to
the formal legislative process which is open and transparent.

Thirdly, delegated legislation is often as difficult to understand and interpret as
Acts of Parliament. SIs are complex and complicated, often using obscure
wording that is incomprehensible to the man in the street.

Finally, judicial review is not generally available to the man in the street. The
process is very expensive and time-consuming. As a result, many citizens
probably have to suffer in silence from the abuse of delegated powers.

In addition, if the Enabling Act has given very wide powers of discretion to the
Minister, it may be very difficult for the courts to challenge laws that have been
created. Judges may only challenge delegated legislation where it appears to be
outside the powers given by the Enabling Act, not just because the legislation
appears to be an abuse of power.

29
DELEGATED LEGISLATION - TEST YOURSELF

Introduction

1. How can delegated legislation be defined?
2. Does Parliament delegate both its authority and its responsibility
for delegated legislation?
3. Why does Parliament delegate some legislation to other bodies?
4. Describe three occasions for which delegated legislation may be appropriate.
5. Explain the nature and function of a Parent/Enabling Act.
6. Give one example of how the Criminal Justice Act 2003 makes use
of delegated legislation.
7. The Road Traffic Act 1988 gives the Secretary for Transport the authority
to introduce what kind of legislation?
8. Why is it important that the Secretary for Transport has the authority
to introduce regulations under the Road Traffic Act 1988?
9. Name three kinds of delegated legislation.
10. Of the three kinds of delegated legislation you have named in Q9,
why are bylaws different from the other two?

THREE FORMS OF DELEGATED LEGISLATION

Orders in Council

1. Who have Parliaments authority to make Orders in Council?
2. Who make up the Privy Council?
3. What do Orders in Council allow the Government to do?
4. Who actually draft the Orders in Council?
5. Describe the relationship between Orders in Council and European directives.
6. What is the purpose of European directives? What are some of the issues
covered by European directives?
7. Under what two acts does the Privy Council have the authority to make law
in emergency situations?
8. Orders in Council are also used to transfer what kind of
responsibilities? Give one example of this kind or transfer.

Statutory Instruments

1. What are Statutory Instruments?
2. What authority does the Road Traffic Act 1988 give to the Minister for Transport?
3. Why are SIs often referred to as ministerial regulations?
4. What is the main advantage of ministers having the power to make SIs?
5. Explain the relationship between SIs and European directives.
30
6. Why doesnt Parliament simply use the formal legislative process
to put European directives into effect?
7. What was the purpose of the Unfair Terms in Consumer Contracts Regulations
1994?
8. How many Statutory Instruments are drafts and put into practice every year?
9. Who drafts Statutory Instruments?
10. Why are Health & Safety regulations usually in the form of SIs?

Bylaws

1. Bylaws are made by whom?
2. Why is it necessary for Government ministers to approve bylaws?
3. Which Act gives local authorities the power to make laws concerning their
geographical area?
4. Outline some of the issues covered by bylaws.
5. Complete the following: Bylaws are .. laws made by .. people (councillors)
for their .. area.
6. Give two examples of how companies and organisations are empowered
to make bylaws.

PARLIAMENTARY AND JUDICIAL CONTROL
OF DELEGATED LEGISLATION

Control by Parliament

1. How does Parliament set limited to delegated legislation?
2. Under which Act are all bylaws created?
3. Under which Acts are Orders in Council created?
4. What do you understand by the phrase ultra vires?
5. Why is the Delegated Powers Scrutiny Committee described as a joint committee?
6. Explain the purpose of the Scrutiny Committee.
7. When might the Scrutiny Committee recommend that Parliament review
a Statutory Instrument?
8. There are number of standing committees on delegated legislation.
What is their purpose?
9. Explain the function of the affirmative resolution procedure.
10. Describe on disadvantage of the affirmative resolution procedure.
11. Most Statutory Instruments are subject to negative resolution.
Explain how negative resolution works.
12. What is Parliaments ultimate power in relation to delegated legislation?

31
Control by the Judiciary

1. In which division of the High Court is all delegated legislation subject to review?
2. Why might the court review legislation and declare it void?
3. Name three things the court will presume delegated legislation has no power to do
unless this power is expressly granted by the Enabling Act.
4. What regulations were made by Hayes Borough Council in 1896 that the court
decided were unreasonable?
5. Why do you think the Review Court regarded Hayes regulations as unreasonable?
6. Explain the meaning of procedural ultra vires.
7. Explain why the Aylesbury Mushroom case (1972) is an example of procedural
ultra vires.
8. Explain the meaning of substantive ultra vires.
9. The Review Court may also issue prerogative orders.
Describe three kinds of prerogative orders.
10. What action will the Review Court take if delegated legislation
clashes with European directives?

THE ADVANTAGES & DISADVANTAGES
OF DELEGATED LEGISLATION

Advantages of Delegated Legislation

Complete the sentences

Firstly, it saves Parliament time. Parliament simply does not have enough time to
pass.. Over 3000 statutory instruments alone are ...
The whole Parliamentary year would be taken up with passing these, leaving little or no
time . Parliament needs to concentrate on converting
. made by the winning political party into Acts of Parliament, for
example the ...(2005).

Secondly, delegated legislation can be passed quickly to deal with situations when they
arise, including .. For example, following the terrorist attacks on September
11, 2001, an Order in Council was made to stop flights in... In
the same way, Statutory Instruments can be created or amended far more quickly by
Government departments than by going through ...

Thirdly, people with specialist knowledge often create delegated legislation. For
example, local councils have greater knowledge of ... These bylaws cover many
issues including the drinking of ..and the fouling of public
areas, such as parks, by dogs. In Canterbury a bylaw makes it an offence to
.. in the street or any open space in the city centre.

32
Statutory Instruments are drawn up by civil servants who usually have many years
working in the same .. and therefore have specialised knowledge
about their subjects from transport to education to industry to health. There is also some
control over this type of delegated legislation because it is scrutinised by the
and it is subject to .. or .. resolutions. In
addition, particular Ministers are responsible for their own .., and
government Ministers are always answerable to Parliament.

The Disadvantages of Delegated Legislation


Firstly, the process is to some extent undemocratic because it allows
... It is the civil servants who draft the statutory instruments;
civil servants are not elected, and the instruments are often only.,
then rubber-stamped by the Minister responsible. This would be acceptable if there was
sufficient control over statutory instruments, but in reality Parliaments control is
... For example, not all Statutory Instruments are subject to . or
negative .., and quite a few get through with very little scrutiny.

On the other hand, bylaws are made by local authorities whose members are
. and .. to local citizens.

Secondly, there is such a huge volume of legislation for example, 3000 statutory
instruments annually that it is often difficult to . In addition,
much delegated legislation is made in private with few opportunities for .. or
. scrutiny. This is sharp contrast to the formal legislative process which is open
and transparent.

Thirdly, delegated legislation is often as difficult to understand and interpret as Acts of
Parliament. SIs are . and , often using obscure wording that is
incomprehensible to the man in the street.

Finally, judicial review is not to the man in the street. The process is
very expensive and ... As a result, many citizens probably have to suffer in
silence from the abuse of delegated powers.

In addition, if the En A... has given very wide powers of discretion to the
Minister, it may be very difficult for the courts to ... J udges may only
challenge delegated legislation where it appears to be outside the powers given by the
Enabling Act, not just because the legislation appears to be an .
33
THE DOCTRINE OF JUDICIAL PRECEDENT

1. Explain the doctrine of judicial precedent

Judicial precedent is based on the Latin maxim stare decisis which roughly
means stand by what has already been decided. This means that judgements
reached in earlier cases should be followed in later cases unless there are sound
reasons why they should not be. In other words, judges can create binding
precedents by the judgements they make because other courts are bound to
follow these judgements. This system provides fairness and certainty in the law
because defendants can expect to be treated fairly no matter where the case is
heard, and the courts will be reasonably certain how the law should be applied
in particular cases.

Precedent can only operate effectively if the legal reasons for past decisions are
made clear. Therefore, at the end of a case, the judge will make a speech giving
his decision and, most importantly, giving his reasons for his decision. This is
called the ratio decidendi (reason for deciding), and it is the part of the
judgement in which the judge explains the principles of law upon which his
decision is based. This is what creates a precedent for judges to follow in
future, similar cases. Judgements made by a higher court are binding on all
courts beneath them.

A judges speech may also include obiter dicta (other things said). For
example, a judge may comment on what his decision would have been if the
facts of the case had been different. These comments are not binding in future
cases, but they may help other judges understand the legal reasoning for the
ratio decidendi. It is sometimes difficult to separate the ratiodecidendi from the
obiter dicta because the judgement is usually given as a continuous speech with
no headings or sections.

If a point of law in a case has never been decided before, the judge will create
what is called an original precedent. For guidance, he will look at cases similar
to the one before him and decide on what legal principles the judgement was
based. This will influence him in the creation of the new precedent. This is
called reasoning by analogy. Nowadays it is accepted that judges are creating
new law when they create judicial precedent.

34
2. Explain how precedent works within the hierarchy of courts.

In England and Wales the courts operate a rigid doctrine of judicial precedent.
This means that every court is bound to follow any judgement made by a court
above it in the judicial hierarchy.

Since 1973, the highest court affecting the English legal system is the
European Court of Justice. Decisions made by the ECJ are binding on courts
throughout the European Union.

The most senior national court is the House of Lords. Its decisions bind all
other courts in the English legal system. From 1898 (London Street Tramways
v London County Council until 1966, the House of Lords was bound by its
previous precedents. However, the Practice Statement 1966 allows the Lords
to depart from previous precedents where it is in the interests of fairness and
justice so to do. The Practice Statement 1966 allows the Lords more flexibility,
but they use this power sparingly as they wish the public to have confidence
that the law is as certain as it can be.

Below the House of Lords is the Court of Appeal which has two divisions:
Civil and Criminal. With limited exceptions, the Appelate Courts are bound by
their own past precedents. The Criminal Division is allowed more flexibility
than the Civil Divisions where the point at issue involves the liberty of the
defendant.

Below the Court of Appeal are the three Divisional Courts (Queens Bench,
Chancery and Family). These courts are bound by the decisions of the courts
above them. They are also in general bound by their own past decisions.

The High Court is bound by the decisions of all the courts above it, and in
turns it binds the courts beneath it. High Court judges follow each others
decisions though they are not obliged to do so.

The so-called inferior courts are the Crown Court, the County Court, and
the Magistrates Court. They are bound to follow the decisions of the
superior courts, and it is unlikely that a decision created by an inferior court can
create precedent.

35
3. Explain the role of law reporting in the system of precedent.

For precedent to be effective there must be an accurate record of what
decisions have been made by the courts. In 1865 the Incorporated Council of
Law was established and controlled by the courts to report the law.
Judgements are noted down exactly as delivered by the judge to ensure
accuracy.

Other well-established reports include the All England series (All ER) and the
Weekly Law Reports (WLR). In addition, all High Court, Court of Appeal
and the Law Lords cases are reported on the Internet.

Quality newspapers and journals also publish law reports; these are
summarised versions in which the law reporter tries to identify and explain the
essential parts of the judgement.

Explain:

case law
staredecisis
binding precedent
hierarchy of courts
Appeal courts
Practice Statement 1966
ratio decidendi
obiter dicta
Law Reporting Incorporated Council of Law Reporting 1865 All England
law reports Weekly Law Reports Internet reporting newspapers and
journals

www.lawreports.co.uk (summaries of important cases in the Daily Law Notes
section)
www.publications.parliament.uk (reports of cases from the House of Lords)
www.bailii.org (cases from the Court of Appeal)

36
developing the law (distinguishing, overruling, reversing)

As society changes and develops, our laws must be able to reflect these changes
if they are to be seen as fair and relevant. Judges have a number of ways to
avoid precedent, so they have room to manoeuvre in giving judgement.

Distinguishing is the main device used by judges in all courts for avoiding a
binding precedent. No two cases are exactly the same. Therefore, a judge may
regard the facts of the case before him to be sufficiently different from the
facts of the case in which the binding precedent was set. In these
circumstances, the judge is not bound to follow the original precedent; they
may distinguish the case on its material facts. This creates a second binding
precedent. The original precedent remains binding in cases of the same material
facts.

These two cases show how the distinguishing process operates. Balfour v
Balfour (1919) and Merritt v Merritt (1971) both involved a wife making a
claim against her husband for breach of contract. However, in Balfour there was
merely a domestic agreement between husband and wife, while in Merritt
husband and wife had made an agreement in writing after they separated. The
court distinguished the facts between the cases and created a new precedent
based on Merritt. Balfour, of course, remained the precedent for cases similar to
itself.

Overruling occurs where a court in a later case states that the legal rule
decided in an earlier case is wrong. For example, the House of Lords can
overrule a decision of the Court of Appeal by declaring the Court of Appeal
reached the wrong legal rule. The House of Lords may also use its power under
the Practice Statement 1966 to overrule one of its own past decisions.

For example, in Davis v Johnson (1979) the Lords ruled that judges could not
use Hansard (the record of what is said in Parliament) to try and decide what
certain words in an Act of Parliament meant. However, in Pepper v Hart
(1993) the Lords overruled David v Johnson (1979) and created a new
precedent allowing judges to consult Hansard.

37
Reversing occurs where a higher court reverses the decision of a lower court
on appeal in the same case. In other words, reversing is where the same case
has gone to appeal and the higher court reaches the opposite decision to that of
the lower court.

For example, in Fitzpatrick v Sterling Housing Association Ltd (2000), the
Court of Appeal refused to allow a homosexual partner of the deceased tenant
to take over the tenancy as he could not be considered part of his family as
required under the Rent Act 1977. Fitzpatrick appealed to the House of Lords
who reversed the decision of the Court of Appeal, so giving same-sex partners
the same right as different sex partners.

(It is important you makethedifferencebetween overrulingand reversing
clear. Many candidates muddletheexplanations).

Distinguishing: avoiding a previous precedent because the facts in the present
case are materially different. Balfour v Balfour (1919) not followed in Merritt
v Merritt (1971).

Overruling: avoiding a precedent by stating the legal ruling in an earlier case is
wrong. Pepper v Hart (1993) overruled and replaced Davis v Johnson
(1979) on the use of Hansard.

Reversing: a higher court overturns the decision of a lower court on appeal.
This can only happen if the case is appealed to a higher court. In Fitzpatrick v
Sterling Housing Association Ltd (2000), the House of Lords overturned
the decision of the Court of Appeal.

38
5. Outline and briefly explain the court structure.

European Court of Justice

It is necessary for there to be a settled court hierarchy as judges need to know
what judicial precedents they are bound to follow.

Since 1973, the European Court of Justice has been the highest court
affecting our legal system. A decision made by the ECJ is binding on all courts
in the European Union, including those of the United Kingdom. The ECJ is
prepared to overrule its own past decisions if it feels this is necessary.
European courts are generally more flexible than courts in the United
Kingdom.

39
The House of Lords is the senior national court and its decisions bind all
other courts in the English legal system. Until 1966, the HL regarded itself as
bound by its own previous decisions, unless the decision was made per incuriam
(through lack of care). However, Practice Statement 1966 stated that the
HL in future would be free to depart from its own previous decision where it
appears right to do so. However, this freedom is used sparingly so as to
maintain certainty and consistency in decisions. Pepper v Hart (1993)
overruled David v Johnson (1979).

The Court of Appeal (CA) is directly below the House of Lords in the court
structure. It is divided into two divisions, the Civil Division and the Criminal
Division. As a general rule, the Court of Appeal is bound by its own previous
decisions with some limited exceptions to this rule. The Criminal Division is
permitted to be more flexible where the decision involves the liberty of the
defendant.

The High Court contains three separate appeal courts: The Queens Bench,
Chancery, and Family. All three are bound by decision of the Court of
Appeal. The House of Lords and the European Court of Justice. The
Divisional Courts, with a few exceptions, are bound by their own decisions.

The Crown Court, the County Court and the Magistrates Court are
described as inferior courts. This is because they are bound to follow decisions
made by all higher courts. In addition, it is unlikely that a decision made by an
inferior court can create binding precedent. In theory, the Crown Court can set
precedent for the Magistrates Court on a point of law; however, since such
decisions are hardly ever recorded they have little practical effect.

40
6. Discuss the advantages and disadvantages of the system of precedent.

Advantages

The system of judicial precedent has several advantages, including certainty,
consistency and fairness, precision and flexibility.

Precedent provides certainty because the courts must follow decisions made in
previous similar cases. Precedents are established by the ratio decidendi and
explained in the obiter dicta. This means people know what the law is and how it
is likely to be applied in their case. For example, a lawyer can advise his client
about the likely outcome of his case, based on the knowledge of precedent in
similar cases. It also allows people in business to make financial and other
arrangements secure they will be recognised and supported by the law. The
Practice Statement 1966 reminds us how important certainty is in the law.

Precedent provides consistency and fairness because defendants know they
will receive the same treatment no matter where their case is heard or who is
hearing the case. As in sport, the rules of law will be applied equally to both
sides. Precedent also means that judges cannot make random or arbitrary
decisions because judges are bound to apply binding precedent in similar cases.

However, judges also have considerable flexibility in avoiding precedent by
distinguishing, overruling and reversing. For example, the House of Lords can
now use the Practice Statement 1966 to change the law when necessary; for
example, Pepper v Hart (1993) overruled and replaced Davis v Johnson
(1979) on the use of Hansard.

Precedent provides precision in law-making. As new precedents are
established, English case law becomes more and more precise. For example,
the judge was able to distinguish between Balfour v Balfour (1919) and
Merritt v Merritt (1971), so that we new have precedents appropriate to cases
similar in the material facts to these cases.

41
Disadvantages

The system of judicial precedent has several disadvantages, including rigidity,
complexity and slowness of growth.

Although judges can avoid precedent by distinguishing, reversing, and
overruling, there is still a degree of rigidity or inflexibility in the system. For
example, although Crown Courts hear very serious cases, they cannot create
binding precedent. This means too many cases go to the Court of Appeal that
could be dealt with in the lower courts.

In addition, the Court of Appeal itself is generally bound by its own decisions,
so many cases that could be dealt with on appeal are passed up to the House of
Lords. However, the Law Lords can only hear about 50 cases a year. This
makes the system slow and cumbersome , and means that bad precedents
may be in force far longer than necessary. Sometimes there is a very long wait
for a suitable case to be appealed ball the way to the House of Lords.

The system of precedent has become increasingly complex. Distinguishing is
useful in avoiding past decisions, but it has made the law very complex in some
areas because the differences in the material facts may be so small to justify yet
another precedent. There are nearly half a million reported cases, so it is not
easy to find all the relevant law even with computerised data bases.

Another problem is in the judgements themselves, which are often very long
with no clear distinction between the reason for the decision (ratiodecidendi) and
other things said by the judge (obiter dicta). This makes is difficult in some cases
to extract the ratio decidendi. Indeed, in Dodds Case (1973), the judges in the
Court of Appeal said they were unable to find the ratio decidendi in a decision of
the House of Lords.

42
THE DOCTRINE OF JUDICIAL PRECEDENT - TEST YOURSELF

How Precedent operates within the English system of Case Law

1. On what Latin maxim is judicial precedent based?
2. What does this maxim mean?
3. What do you understand by binding precedent?
4. What does the system of precedent provide, and how?
5. Why must the legal reasons for past decisions be made clear?
6. In one word, what do we call the judges speech at the end of case?
7. What does the ratio decidendi explain?
8. What does the ratio decidendi create?
9. What is the meaning of obiter dicta?
10 What might the obiter dicta contain?
12 What difficulty sometimes arises between the ratio decidendi and the obiter dicta?
13 Explain the meaning of original precedent.
14 Where will the judge look for guidance in creating an original precedent?
What kind of reasoning is this?
15 In relation to precedent, what is generally accepted nowadays?

How precedent works within the hierarchy of courts

1. Why can the doctrine of precedent be described as rigid?
2. Since 1973, what has been the highest court affecting English law?
3. Why are decisions made by the ECJ so powerful?
4. What is the most senior national court in the United Kingdom?
5. Explain the significance of London Street Tramways v London County Council
(1898).
6. Why do you think the Lords reached this decision in 1898?
7. What does the Practice Statement 1966 empower the Lords to do?
8. When is this power used?
9. Why is this power used sparingly?
10 Name the two Divisions of the Court of Appeal.
11 Which Division is allowed more flexibility, and why?
12 Name the three Divisional Courts below the Court of Appeal.
13 These three Divisional Courts are bound by the decisions of the courts above them,
but are they also bound by their own past decisions?
14 To what extent is the High Court bound by precedent?
15 Explain how precedent affects the so-called inferior courts.

43
The role of law reporting in the system of precedent.

1. Why is it essential that ratio decidendi are reported accurately?
2. Explain the importance of the Incorporated Council of Law 1865.
3. Name two organisations who regularly report new precedents.
4. Where are cases heard in High Court, Court of Appeal and the Law Lords
now reported?
5. Where can the general public read abbreviated reports of important cases?

Flexibility in developing the law (distinguishing, overruling, reversing)

Avoiding Precedent
distinguishing
overruling
reversing

1. Why must judges be able to avoid precedent?
2. What is the main device used by judges in all courts
for avoiding a binding precedent?
3. On what grounds does a judge distinguish between two cases?
4. What do you understand by the material facts of a case?
5. When a judge distinguishes between two cases because of their material facts,
how many precedents become operative?
6. Explain in some detail how Balfour v Balfour (1919) and Merritt v Merritt (1971)
are very useful in demonstrating how two cases may be distinguished
from each other.

7. In avoiding precedent, explain how overruling occurs.
8. Give an example of how the House of Lords can overrule a decision
of the Court of Appeal.
9. How have the House of Lords been empowered to overrule their own past decisions?
10 Explain in some detail how the Lords used Pepper v Hart (1993)
to overrule their earlier decision in Davis v J ohnson (1979).

11 In avoiding precedent, explain how reversing occurs.
12 In other words, Complete the sentence.
13 Explain in some detail how Fitzpatrick v Sterling Housing Association Ltd (2000)
is very useful in demonstrating how reversing occurs.

44
THE ADVANTAGES & DISADVANTAGES
OF JUDICIAL PRECEDENT

Advantages of Judicial Precedent


The system of judicial precedent has several advantages, including c..y,
concy and f..rness, preion and fl...ibility

Firstly, precedent provides certainty because the courts must .
similar cases. Precedents are established by the ratio and explained in the
. This means people know what the law is and how it is likely to be .
in their case. For example, a lawyer can advise his client about the likely . of his
case, based on the of precedent in similar cases. It also allows people in business
to make financial and other secure they will be recognised and supported by
the law. The Practice Statement 1966 reminds us how important .. is in the
law.

Secondly, precedent provides consistency and fairness because defendants know they
will receive the .. treatment no matter where their case is heard or who is . the
case. As in sport, the rules of law will be applied . to both sides. Precedent also
means that judges cannot make r.m or arrary decisions because judges are bound to
apply bg precedent in similar cases.

However, judges also have considerable flexibility in avoiding precedent by
dis.ing, over..g and rev.ing. For example, the House of Lords can now use
the Practice Statement 1966 to change the law when necessary; for example, Pepper v
Hart (1993) overruled and replaced Davis v Johnson (1979) on the use of Ha.d.

Thirdly, precedent provides precision in law-making. As new precedents are ..,
English case law becomes more and more precise. For example, the judge was able to
d.h between Balfour v Balfour (1919) and Merritt v Merritt (1971), so that we
new have precedents ap..te to cases similar in the mat.l facts to these cases.

45
Disadvantages of Judicial Precedent


The system of judicial precedent has several disadvantages, including rigidity,
complexity and slowness of growth.

Firstly, although judges can avoid precedent by d..g, re..ing, and overing,
there is still a degree of rigidity or inflexibility in the system. For example, although
Cn Courts hear very serious cases, they cannot create b..g precedent. This means too
many cases go to the Court of Ap.l that could be dealt with in the lr courts.

Secondly, the Court of Appeal itself is generally bd by its own decisions, so many
cases that could be dealt with on appeal are p.d up to the House of Lords. However, the
Law Lords can only hear about .. cases a year. This makes the system slow and
cumbersome , and means that bad precedents may be in fe far longer than necessary.
Sometimes there is a very long wait for a s..le case to be appealed all the way to the
House of Lords.

Thirdly, the system of precedent has become increasingly complex. Distinguishing is
useful in avoiding p..t decisions, but it has made the law very co..lex in some areas
because the differences in the maial facts may be so small to jufy yet another
precedent. There are nearly half a mi..ion reported cases, so it is not easy to find all the
relevant law even with computerised data bases.

Fourthly, another problem is in the judgements themselves, which are often very long
with no cl..r distinction between the reason for the decision (ratio decidendi) and other
things said by the judge (obiter dicta). This makes is di..icult in some cases to extract the
ratio decidendi. Indeed, in Dodds Case (1973), the judges in the Ct of App..l said they
were unable to find the ratio decidendi in a deion of the House of Lords.

46
UNIT 1 - LAW MAKING And The LEGAL SYSTEM
SECTION B: THE LEGAL SYSTEM

MAGISTRATES

1. Explain how lay magistrates are selected and appointed.
2. Explain how District Judges (Magistrates Courts) are selected
and appointed.
3. Outline the jurisdiction (responsibilities) of magistrates.
4. Discuss the advantages and disadvantages of magistrates within the
English legal system.

JURIES

1. Describe the qualifications required for jury service.
2. Describe how jurors are selected for jury service.
3. Describe the function of a jury in a criminal trial.
4. Discuss the advantages & disadvantages of the use of juries.
5. Describe the function of the judge during a criminal trial.

BARRISTERS and SOLICITORS

1. Outline the qualifications and training required to become a
barrister and a solicitor, and describe the work each profession
carries out.
2. Outline how complaints against solicitors can be dealt with.
3. Outline how complaints against barristers can be dealt with.
4. Outline the training and role of Legal Executives.
professions of solicitor and barrister.

CRIMINAL COURTS

1. The Magistrates Courts in criminal cases
Jurisdiction of the Magistrates Courts
Procedure in the Magistrates Courts
Appeals from the Magistrates Court to the Crown Court

2. The Crown Court in criminal cases
Jurisdiction of the Crown Court
Procedure in the Crown Court
Appeals from the Crown Court
47
MAGISTRATES

1. How lay magistrates are selected and appointed.

There are about 30.000 lay magistrates sitting as part-time judges in the
Magistrates Courts. Magistrates, who are also known as Justices of the Peace,
sit as a bench of two or three magistrates to hear cases.

Lay magistrates must be aged between 18 and 65 on appointment. The age for
appointment was reduced to 18 in 2003, which suggests that younger
magistrates will be appointed if they are deemed suitable.

Until 2003 magistrates had to live within 15 miles of the commission area for
the court they served in. However, the Courts Act 2003 abolished commission
areas and replaced them with local justice areas. Magistrates are expected to live
or work within or near the local justice area to which they are allocated by the
Lord Chancellor.

Magistrates have to give a commitment that they will sit in court a minimum of
26 half days per year and that they will do the necessary training. This
commitment may be reduced to 24 half days in the future.

Some people are not eligible to be appointed. These include police officers,
members of the armed forces, undischarged bankrupts and those who have a
serious criminal record. In addition, relatives of people working in the local
criminal justice system will not be appointed because it would not appear fair
and just if, for example, the father of a local police officer was sitting on the
bench to hear local cases.

After application or nomination, references are checked, as is the persons
criminal record. In 1998, the Lord Chancellor set out six key qualities a
candidate should have. These are assessed during two interviews: the first
measures the candidates general character; the second assesses the candidates
powers of reasoning and judgement. The candidate must also demonstrate the
ability to work as a member of a team and to have the required judicial
qualities.

The Lord Chancellor had made it clear that he requires broadly equal numbers
of men and women, occupation, ethnic origin and, to a lesser extent, political
affiliation and age.

48
The committee will finally recommend names to the Lord Chancellor, who
usually accepts their recommendations and who will then formally appoint the
magistrates. At the conclusion of the selection and appointment procedure,
successful candidates will be sworn in as magistrates at a ceremony conducted
by a senior circuit judge. Once appointed, a magistrate may continue to serve
until the age of 70.

Before sitting in court, newly appointed magistrates are required to attend a
training and mentoring programme. Four main areas of training are covered by
the Magistrates New Training Initiative 1998/ 2004. These are: (1) managing
yourself, (2) working as a member of a team, (3) making judicial decisions, (4)
managing the court as chairman.

The Courts Act 2003 obliges the Lord Chancellor to provide training and
training materials for lay magistrates.

2. How District Judges (Magistrates Courts) are selected and appointed.

District Judges (Magistrates Courts) were previously known as Stipendiary
magistrates. They must have a seven-year general legal qualification, that is a
right of audience as an advocate, and they are usually chosen from practising
barristers or solicitors. Others with relevant experience such as court clerks
may be chosen.

District Judges are only appointed to courts in London or other big cities such
as Birmingham, Liverpool and Manchester.

Before becoming a District judge, they will usually sit part-time for two years as
an acting judge in order to gain experience of sitting judicially, and to
demonstrate they have the abilities and qualities necessary for a full-time
appointment.

3. The jurisdiction (responsibilities) of magistrates.

Magistrates play by far the largest role in the Criminal Justice System as they try
about 97% of all criminal cases. This includes all summary offences and most
either-way offences. They also deal with preliminary hearings in the remaining
49
3% of criminal cases. Other functions include bail applications (under the Bail
Act 1976), applications for legal aid, and the issue of search and arrest warrants.

Magistrates also deal with a number of civil matters. These include non-
payment of the council tax, non-payment of television licences, and enforcing
debts owed to the gas, electric and water utilities. They also hear appeals from
the refusal of a local authority to grant licences for the sale of alcohol, and
licences for betting and gaming establishments.

Magistrates also try most offences committed by young offenders (aged 10-17)
in the Youth Court. The only offence which cannot be tried here is murder.
Magistrates on a Youth Court panel must be under 65, and a panel must usually
include at least one man and one woman.

There is also a special panel for the Family Court. As the name suggests, this
panel hears family cases including orders for protection against violence, and
adoption orders and proceedings under the Children Act 1989.

Appeals from the Magistrates Court are heard in the Crown Court. In these
cases, lay magistrates will form a panel headed by a qualified judge.
50
4. The advantages and disadvantages of magistrates
within the English legal system.

Advantages

Magistrates have historically been an important part of the criminal justice
system for more than 1000 years. They enable members of the community to
become involved in the administration of criminal justice.

They provide a wider cross-section of society than professional judges do.
Almost 50% of magistrates are women, compared with 10% of professional
judges, and ethnic minorities are reasonably well-represented in the magistracy,
which is certainly not true of the judiciary. As the Lord Chancellor commented
in 1999: Magistrates comefroma widerangeof backgroundsand occupations. Wehave
magistrates who aredinner ladies and scientists, bus drivers and teachers, plumbers and
housewives. They havedifferent faiths and comefromdifferent ethnicbackgrounds, somehave
disabilities. All areservingtheir communities, ensuringthat local justiceis dispensed by local
people. Themagistracy should reflect thediversity of thecommunity it serves.

As the Lord Chancellor has commented: local justice should be dispensed by
local people. Under the Courts Act 2003 magistrates normally continue to sit in
the local justice area where they reside. This means they will have more
knowledge of local events, local patterns of crime, and local opinions than
professional judges from outside their area. However, it must be admitted that
the closure of many Magistrates Courts (125 during the last 10 years) means
that in some areas people have long journeys to reach their local court, and
the advantage of magistrates having local knowledge may be lost.

Compared with the professional judiciary, the magistracy is cheap. It would
cost millions of pounds to replace them with professional judges. There would
also be a huge problem in recruiting enough qualified lawyers to fill these
positions. Because they are unpaid, magistrates courts are the only component
of the criminal justice system that actually makes a profit because the value of
fines exceeds the overall costs of these courts. They are also much quicker at
bringing cases to trial than is the case with the crown courts where delays of up
to a year are not uncommon.

Magistrates have been criticised as amateurs, but they do have the support of
clerks who must be legally qualified. In addition, the training of magistrates
under the MNTI has been great improved.

51
Disadvantages

The magistracy is often criticised as middle-aged and middle-class, and
therefore magistrates are not a genuine cross-section of society. The report The
Judiciary in the Magistrates Courts (2000) has generally confirmed this
situation. Around 40% of lay magistrates are retired people, and they are mainly
from professional or managerial backgrounds. Such magistrates are unlikely to
live in deprived areas and are probably not familiar with the problems of living
in these areas. Clearly there is a long way to go until the magistracy.reflects
the diversity of the community it serves, as encouraged by the Lord
Chancellor.

It is also argued that magistrates tend to be biased in favour of the prosecution,
and that they are too ready to believe police evidence rather than evidence for
the defence. It is certainly true that a defendant is more likely to be found guilty
in the Magistrates Court than in the Crown Court where he is being tried by a
jury of his peers. However, training for magistrates is aimed at reducing and
eliminating bias in favour of either the defence or the prosecution.

It is also argued that because magistrates are not legally qualified, their justice is
amateur justice. This fails to take into consideration the fact that magistrates
are now selected far more carefully and receive much more detailed training
than was the case several years ago. Magistrates also have the support and
guidance of a legally qualified clerk. The overall success of magistrates courts is
confirmed by the very low success rate of appeals against both sentence and
conviction.

Magistrates are also criticised for inconsistency in sentencing. In other words, a
defendant in one area may receive severe punishment for an offence while
another defendant in another area may receive much milder punishment for a
very similar offence. For example, 20% of burglars in the Teeside area are
sentenced immediately to prison, compared with over 40% of burglars in
Birmingham. However, only 4% of offenders dealt with by magistrates receive
a prison sentence, so the problem may not be as severe as it seems at first
glance. In addition, the Sentencing Guidelines issued to magistrates have been
updated, and this should help to promote common standards.

52
MAGISTRATES - TEST YOURSELF

1. The Selection and Appointment of Lay Magistrates

1. How many magistrates sit as part-time judges in the Magistrates Court?
2. What do the initials J P stand for?
3. How many magistrates sit as a bench to hear a case?
4. What are the age limits for the appointment of magistrates?
5. Why was the age for appointment reduced to 18 in the Courts Act 2003?
6. What did the Courts Act 2003 abolish?
7. Where are magistrates now expected to live and/or work?
8. What time commitment do magistrates have to make?
10. To how many sessions is the time commitment likely to be reduced?

11. Name four categories of people who are not eligible to be appointed as
magistrates.
12. Why are relatives of people working in their local criminal justice system
not appointed?

13. After a person has been nominated as a magistrate, name two things
that are checked.
14. Name two of the six key qualities in a magistrate set out by the Lord Chancellor.
15. What does the first interview assess?
16. What does the second interview assess?
17. Name two more things needed to make a good magistrate.

18. To whom does the local advisory committee submit its recommendations?
19. Outline the swearing in ceremony for magistrates.
20. Outline in some detail the training and mentoring provided for magistrates.

2. The Selection and Appointment of District Judges (Magistrates Court)

1. What were District Judges (Magistrates Courts) previously known as?
2. What qualification must a District judge have?
3. From whom are District judges usually chosen?
4. To which cities, including London, are District judges appointed?
5. For how long will District judges sit part-time before being appointed full-time?
6. What is the purpose of this part-time period?

3. The Jurisdiction (responsibilities) of Magistrates

1. What percentage of all criminal cases is heard by lay magistrates?
2. Which kind of criminal offences do they hear?
3. What do you understand by preliminary hearings?
53
4. Name three other functions carried out by magistrates.
5. Name three civil matters that are also dealt with by magistrates.
6. What kinds of appeal do magistrates hear?
7. Where are most offences committed by young people (10-17) heard?
8. What is the only youth criminal offence that is not heard in the Youth Court?
9. Describe two qualifications required by the Youth Court.
10 Where are appeals from the Magistrates Court heard, and
by whom are these appeals heard?

4. Advantages of Magistrates within the English Legal System

Complete the following where required

Magistrates have historically been an important part of the criminal justice system for
more than .. years. They enable members of the .. to become involved in the
administration of .. justice.

They provide a wider ..-section of society than professional judges do. Almost 50% of
magistrates are .., compared with 10% of professional judges, and ethnic minorities are
reasonably well-represented in the .., which is certainly not true of the judiciary.

As the Lord Chancellor has commented: local justice should be dispensed by .. people.
Under the Courts Act 2003 magistrates normally continue to sit in the local .. area
where they reside. This means they will have more ... of local events, local patterns of
crime, and local opinions than professional judges from .. their area. However, it must
be admitted that the .. of many Magistrates Courts (125 during the last 10 years)
means that in some areas people have long .. to reach their local court, and the
advantage of magistrates having .. knowledge may be lost.

Compared with the professional judiciary, the .. is cheap. It would cost millions of
pounds to replace them with .. judges. There would also be a huge problem in
recruiting enough .. lawyers to fill these positions. Because they are .., magistrates
courts are the only component of the criminal justice system that actually makes a ..
because the value of fines exceeds the overall .. of these courts. They are also much
quicker at bringing cases to .. than is the case with the crown courts where delays of up
to a year are not uncommon.

Magistrates have been criticised as amateurs, but they do have the .. of clerks who
must be .. qualified. In addition, the .. of magistrates under the MNTI has been great
improved.

54
Disadvantages of Magistrates within the English Legal System


The magistracy is often .. as middle-aged and middle-class, and therefore magistrates
are not a genuine ..-section of society. The report The Judiciary in the Magistrates
Courts (2000) has generally .. this situation. Around 40% of lay magistrates are ..
people, and they are mainly from professional or managerial .grounds. Such
magistrates are unlikely to live in .. areas and are probably not familiar with the
problems of living in these areas. Clearly there is a long way to go until the
magistracy.reflects the diversity of the community it serves, as encouraged by the .
Chancellor.

It is also argued that magistrates tend to be .. in favour of the prosecution, and that they
are too ready to believe police .. rather than evidence for the defence. It is certainly
true that a defendant is more likely to be found .. in the Magistrates Court than in the
Crown Court where he is being tried by a . of his peers. However, training for
magistrates is aimed at reducing and eliminating . in favour of either the defence or the
prosecution.

It is also argued that because magistrates are not .. qualified, their justice is amateur
justice. This fails to take into consideration the fact that magistrates are now .. far more
carefully and receive much more detailed .. than was the case several years ago.
Magistrates also have the .. and guidance of a legally .. clerk. The overall success of
magistrates courts is confirmed by the very low success rate of .. against both
sentence and conviction.

Magistrates are also criticised for .. in sentencing. In other words, a defendant in one
area may receive severe punishment for an .. while another defendant in another area
may receive much .. punishment for a very similar offence. For example, 20% of
burglars in the Teeside area are sentenced immediately to .., compared with over 40%
of .. in Birmingham. However, only 4% of offenders dealt with by magistrates receive
a .. sentence, so the problem may not be as severe as it seems at first glance. In
addition, the Sentencing Guide.. issued to magistrates have been updated, and this
should help to promote ... standards.

55
JURIES

1. The qualifications required for jury service.

The qualifications for jury service are laid down in the Juries Act 1974, which
requires jurors to be aged 18-70. Jurors must be on the electoral register and
they must have been resident in the United Kingdom for at least 5 years from
the age of 13. A juror must not be a mentally disordered person, or disqualified
from jury service.

If a disqualified person fails to disclose he is disqualified and attempts to serve
on a jury, he is liable to a fine up to 5000.

The Criminal Justice Act 2003 has abolished two categories related to jury
service: excusable as of right and ineligible for jury service.

The overall principle states that: the normal expectation is that everyone
summoned for jury service will serve at the time for which they are summoned.
This means that judges, lawyers, doctors, etc. are now eligible to serve on juries.
It is recognised that there will be occasions where it is not reasonable for a
person summoned to serve at the time for which they are summoned. In such
circumstances the summoning officer may use his/ her discretion to defer the
individual to a time more appropriate. Only in extreme circumstances should a
person be excused from jury service.

Members of the armed services may be excused from jury service. In such cases
the commanding officer of the person summoned must provide a certificate
stating their absence would prejudice the efficiency of the service.

Routine police checks are carried out on prospective jurors to eliminate those
people who have been disqualified. Detailed checks on a jurors background
may only be carried out with the approval of the Attorney General, and this
will be given only in security or terrorist trials.

56
2. How jurors are selected for jury service.

The names of prospective jurors are randomly selected from the local electoral
roll. They must be registered as a parliamentary or local government elector.
There is a further selection at court.

At court the jurors are divided into groups of 15 and allocated to a court. The
court clerk will select 12 out of these 15 at random to serve on a particular trial.
These 12 people form the jury panel.

These jurors then enter the jury box to be sworn in as jurors, but before they
are sworn in both the prosecution and the defence have the right to challenge
any of the jurors. There are two kinds of challenge they can make: (1) challenge
to the array, and (2) challenge for cause.

Challenge to the array means challenging the whole jury on the basis that the
jury is biased or unrepresentative in some way. In 1993 the so-called Romford
jury was successfully challenged at the Old Bailey because 9 of the 12 jurors
came from Romford, some of them living very close to each other in Romford.

Challenge for cause means challenging the right of an individual juror to sit on
the jury. The defence or prosecution must point out a valid reason why that
person should not sit on the jury. For example, it may be that the individual is
disqualified or that he is related to the defendant or to a witness in the case.

The prosecution has an addition right, the right to stand by jurors. This means
the prosecution may put an individual to the end of the list of potential jurors,
so that they will not be used unless there are not enough other jurors. No
reason for standing by has to be given, but the Attorney-General has made it
clear that this power should rarely be used.

57

3. The function of a jury in a criminal trial.

The function of a jury in a criminal trial is to decide whether the defendant is
innocent or guilty. The jury exercises the role of being master of the facts in
the trial while the judge is the master of the law. The jury hears all the
evidence in a trial provided by both the prosecution and the defence. Jurors are
encouraged to take notes and they may ask questions of any witness through
the judge.

At the end of the prosecution case, and before the defence presents its case, the
judge has the power to direct the jury to acquit the defendant (find him not
guilty) if he decides that, in law, the prosecution has failed to make its case
against the defendant. Directed acquittals occur in about 10% of criminal cases.

At the end of the trial, after closing speeches by counsel, the judge sums up the
evidence and directs the jury on all relevant points of law. In a complicated
trial, the judge may provide the jury with a series of questions to assist the jury
in its deliberations.

The jurors retire to a room where, in strict secrecy, they consider their verdict.
A foreman is selected to speak for the jury and he/ she should lead the jurors in
their discussions. If after 2 hours 10 minutes the jurors have not reached a
unanimous verdict, the judge may recall them to advise them that a majority
verdict upon which 10 at least are agreed will be accepted this was first
provided by the Criminal Justice Act 1967. About 20% of criminal convictions
are by majority verdict each year.

In court, the jury foreman must announce the numbers who agreed and
disagreed with the verdict. This is to make sure the jury have come to legal
verdict with at least 10 agreeing with the verdict. However, the Court of Appeal
has held that announcing the number who agreed with the verdict is sufficient.

The judge in must accept the verdict of the jury even if he does not agree with
it. This principle was established in Bushells Case(1670). The jury do not give
any reasons for their decisions, and it is a serious offence under the Contempt
of Court Act (1981) to disclose anything that happened in the jury room.

58

4. The advantages and disadvantages of the use of juries.

Advantages

Public Confidence

Trial by jury has long been considered as one of the fundamentals of a
democratic society. Trial by jury is over 1.000 years old and this tradition is held
in high esteem by the general public who have always shown great confidence
in the system. They believe that in general a jury of ones peers will be fair and
impartial. Controversy always arises when any government proposes to limit
jury trial. For example, the public were very hostile to the proposal to withdraw
the right to jury trial in cases of minor theft. The right to be tried by a jury has
also been supported by eminent judges. It was Lord Devlin who commented
that juries are the lamp that shows freedom lives.

In addition, juries allow the ordinary citizen to play a significant part in the
administration of justice. This means their verdicts can be viewed as those of
society as a whole rather than exclusively those of professional lawyers and
judges.

Laymans Equity - Jury Equity

Juries are not legal experts, they are not bound by judicial precedent and Acts
of Parliament, they do not even have to give reasons for their verdict. This
means that often reach their verdict on idea of what is fair. This idea of
fairness is sometimes referred to as jury equity or laymans equity.

Juries the power to return a verdict of not guilty even where in strict law it is
clear the defendant is guilty, but the circumstances are such that the jury feel a
guilty verdict would not be fair. This happened in R v Owen where the
defendant shot and injured the man whod killed his 11-year-old-son in a
serious traffic accident. In this case, the jury exercised the fairness of the
ordinary man in the street.

A more celebrated example of jury equity is Pontings Case (1984) where the
defendant, a civil servant, leaked classified information about the sinking of the
General Belgrano during the Falklands War. Although Ponting was clearly
guilty under the Official Secrets Act (1911), the jury refused to convict him
59
because they felt he had acted out of public interest. The judge had ruled there
was no defence; the jury ignored the judges direction, and found the defendant
not guilty in the name of fairness.

Benefits of the Trial System

Trial by jury is held in open court. Trials are attended by members of the
public, and often by members of the Media. Nothing is hidden. Nothing is
secret. Jurors are members of the public, they are not legal experts, so the law
has to be explained to them in a way the man in the street can understand.
This is also fairer for the defendant who is able to understand the case against
him more easily.

In addition, a jury is made up of a cross-section of society, so, it is hoped, any
biases and prejudices will cancel themselves out. In addition, no juror should be
connected to anyone involved in the case, and this should make their decisions
impartial.

No individual is responsible for the verdict, so no individual will have to carry
the burden of the verdict alone. Jurors also know they will not be called upon
to explain the reasons for their verdict. It is likely that most jurors would be
unwilling to serve on a jury if they had to justify their decisions in public. At the
end of the case, the jury dissolves and its members return to being completely
anonymous as far as the Law is concerned.

Disadvantages

Perverse Decisions

Juries are not legal experts and will sometimes use what is called jury equity in
reaching their verdict. Jury equity refers to the fact that juries sometimes reach
their verdicts based on the idea of what is fair rather than on what the Law
requires. For example, in Pontings Case (1984) the jury found the defendant
not guilty even though they had been advised by the jury that the defendant
had no defence under the Law.

This seemed justified in Pontings Case, but it also means that juries sometimes
reach verdicts which are described as perverse. Perverse verdicts are verdicts
that are not justified either by the Law or by the evidence. For example, in
60
Randle and Pottle (1991) the jury refused to convict the defendants even
though they were self-confessed spies. The jury probably acquitted them
because there was a 25 year gap between the offences and the prosecution.

Alleged Incompetence

Juries have been subjected to considerable criticism in recent years because of
their alleged lack of competence, especially when they are listening to complex
fraud trials, which can last many months. For example, the Blue Arrow case
lasted a year. It is argued that most jurors cannot understand the very technical
details and issues involved in these cases. The Roskill Committee
recommended that such cases should be tried by a judge sitting with two
qualified assessors, and this recommendation has been included in the Criminal
Justice Bill. However, there are only a handful of such cases a year, and the
transfer of these cases to a judge would not materially affect the principle of
trial by jury.

In the Criminal Justice Act 2003 there is a section which allows the prosecution
to apply for trial by judge alone in complex fraud cases. However, this is
provision is not in force yet, and it will need affirmative resolution from both
Houses of Parliament to become statutory law.

High Acquittal Rates

Juries have also been criticised because of their high acquittal rates. This is
certainly a serious problem in some areas of England, for example Merseyside.
One factor leading to these high acquittal rates is the number of middle-class
and professional people who manage to evade jury service. Now that the
Criminal Justice Act 2003 has abolished the category of ineligibility for jury
service, we can hope to see juries who are more representative of society as a
whole.

In addition, many acquittals are not the responsibility of the jury. Many
acquittals are ordered by the judge without a jury even being sworn in to try the
case. This happens when the prosecution offers no evidence against the
defendant and drops the case at the last minute. On other occasions, the judge
directs the jury to acquit the defendant because he feels the prosecution case is
not strong enough to warrant pursuing the case any further; this is the directed
acquittal.

61
5. Describe the function of the judge during a criminal trial.

In a criminal trial in the crown court, the judge has to keep order, decide legal
questions such as the admissibility of evidence, direct the jury on the law and
sum up the evidence impartially. In 10% of jury trials, the judge may instruct
the jury to return a directed acquittal. If the jury finds the defendant guilty, it is
then the judges responsibility to pronounce sentence.

JURIES - TEST YOURSELF

1. Qualifications required for Jury Service

1. In which Act are the qualifications for jury service laid down?
2. What is the age range for jurors?
3. From where are the names of potential jurors randomly selected?
4. For how long must a juror have resided in the United Kingdom?
5. Explain one type of disqualification from jury service.

6. Name the two categories related to jury abolished by the
Criminal J ustice Act 2003.
7. Outline the overall principle of jury service.
8. Name three professions now eligible to serve on a jury.
9. What action is at the discretion of the summoning officer?
10 In what kind of circumstances may a member of the armed forces
be excused jury service?

11 What is the purpose of routine police checks?
12 When may a detailed check on the jurors background be carried out?

2. Selection of Jurors for Jury Service

1. How does selection for jury service begin?
2. Describe the further selection at the court.
3. What may happen before the jurors are sworn in?
4. Name the two rights of challenge open to defence and prosecution.
5. How were the Romford jury successfully challenged?
6. Explain two circumstances when a challenge for cause may be successful.
7. What happens when the prosecution stands by a juror?
8. What is the function of the Attorney-General in the Criminal J ustice System?

62
3. Function of a jury in a criminal trial

1. What is the primary function of the jury in a criminal trial?
2. Explain the phrase master of the facts?
3. Explain the phrase master of the law?
4. To what evidence do the jury listen during a criminal trial?
5. What are the jury encouraged to do during the trial?
6. What two things does the judge do after prosecution
and defence have summed up their cases?
7. What may the judge provide the jury with?
8. To where do the jury retire?
9. Whom do they elect and why?
10 What do the jury then proceed to do?

11 What kind of verdict does the jury try to reach?
12 What may the judge do after 2 hours 10 minutes?
13 How many jurors must agree to make the verdict legal?
14 Who announces the verdict on behalf of the jury?
15 Why must the jury foreman announce the number of jurors
who agree with the verdict?

16 If the judge disagrees with the verdict, what can he do?
17 Why is Bushells Case (1670) so important in English law?
18 Has the jury to justify or explain their verdict?
19 What is the importance of the Contempt of Court Act (1981)?
20 Why did Parliament enact the Contempt of Court Act (1981)?

4. Advantages and Disadvantages of the Use of Juries

Advantages

Public Confidence

Trial by jury has long been considered as one of the fundamentals of a d..c society.
Trial by jury is over 1.000 years old and this tradition is held in high est..m by the general
public who have always shown great confide..ce in the system. They believe that in
general a jury of ones p..rs will be fair and imp..tial. Controversy always arises when any
gover.ment proposes to limit jury trial. For example, the public were very hostile to the
proposal to ww the right to jury trial in cases of minor theft. The right to be tried
by a jury has also been supported by em..ent judges. It was Lord Devlin who commented
that juries are the lamp that shows fr..dom lives.

63
In addition, juries allow the ord..ary citizen to play a significant part in the administration
of j..tice. This means their verdicts can be viewed as those of soc..ty as a whole rather
than exclusively those of profe..ional lawyers and judges.

Laymans Equity - Jury Equity

J uries are not ll experts, they are not bound by judicial preent and Acts of
Parliament, they do not even have to give r..sons for their verdict. This means that they
often r..ch their verdict on idea of what is f..r. This idea of fairness is sometimes
referred to as jury e..ity or laymans equity.

J uries the power to return a verdict of not guilty even where in strict law it is clear the
defant is guilty, but the cirstances are such that the jury feel a guilty verdict would
not be fair. This happened in R v Owen where the defendant shot and injured the man
whod killed his 11-year-old-son in a serious tra..ic accident. In this case, the jury
exercised the fairn..s of the ordinary man in the street.

A more celebrated example of jury e..ity is Pontings Case (1984) where the defendant, a
civil servant, l..ked classified information about the sinking of the General Belgrano
during the Falklands War. Although Ponting was clly guilty under the Official Secrets
Act (1911), the jury refused to convict him because they felt he had acted out of public
irest. The judge had ruled there was no dece; the jury ignored the judges direction,
and found the defendant not guilty in the name of frness.

Benefits of the Trial System

Trial by jury is held in open c..rt. Trials are attended by members of the public, and often
by members of the Mia. Nothing is hidden. Nothing is secret. J urors are members of
the public, they are not legal experts, so the law has to be expl..ned to them in a way the
man in the street can understand. This is also fairer for the defend..t who is able to
understand the case against him more easily.

In addition, a jury is made up of a cs-section of society, so, it is hoped, any biases and
prej..ices will cancel themselves out. In addition, no juror should be co..ected to anyone
involved in the case, and this should make their decisions impial.

No individual is resp..sible for the verdict, so no indiual will have to carry the burden
of the verdict alone. J urors also know they will not be called upon to expl..n the reasons
for their verdict. It is likely that most jurors would be unwi..ing to serve on a jury if they
had to j..tify their decisions in public. At the end of the case, the jury di..olves and its
members return to being completely aymous as far as the Law is concerned.

64
Disadvantages

Perverse Decisions

J uries are not legal experts and will sometimes use what is called jury equity in r..ching
their verdict. Jury equity refers to the fact that juries sometimes reach their verdicts based
on the idea of what is fair rather than on what the Law re..ires. For example, in
Pontings Case (1984) the jury found the defend..t not guilty even though they had been
advised by the judge that the defendant had no def..ce under the Law.

This seemed justified in Pontings Case, but it also means that juries sometimes reach
verdicts which are described as perverse. Perverse verdicts are verdicts that are not
justified either by the Law or by the evid..ce. For example, in Randle and Pottle (1991)
the jury refused to convict the defendants even though they were self-confe..ed spies. The
jury probably acqui..ed them because there was a 25 year gap between the offences and
the pr..ecution.

Alleged Incompetence

J uries have been subj..ted to considerable critim in recent years because of their
alleged lack of comence, especially when they are listening to complex fraud trials,
which can last many months. For example, the Blue Arrow case lasted a year. It is
argued that most jurors cannot understand the very te..nical details and issues involved in
these cases. The Roskill Committee recommended that such cases should be tried by a
judge sitting with two qualified a..essors, and this recommendation has been included in
the Criminal Justice Bill. However, there are only a handful of such cases a year, and the
transfer of these cases to a judge would not materially a..ect the principle of trial by jury.

In the Criminal J ..tice Act 2003 there is a section which a..ows the prosecution to apply
for trial by judge alone in co..lex fraud cases. However, this is provision is not in force
yet, and it will need a..irmative resolution from both Houses of Parliament to become
stat.tory law.

High Acquittal Rates

J uries have also been criticised because of their high acqui..al rates. This is certainly a
serious problem in some areas of England, for example Merside. One factor leading to
these high acquittal rates is the number of middle-class and professional people who
managed to evade jury ser..ce. Now that the Criminal Justice Act 2003 has abolished the
cat..ory of ineligibility for jury service, we can hope to see juries who are more
representive of society as a whole.

In addition, many acquittals are not the respibility of the jury. Many acquittals are
ordered by the judge without a jury even being sworn in to try the case. This happens
when the prosecution o..ers no evidence against the defendant and drops the case at the
65
last minute. On other o..asions, the judge directs the jury to acquit the defendant because
he feels the prosecution case is not strong enough to wa..ant pursuing the case any
further; this is the directed acquittal.

5. The function of the judge during a criminal trial.

In a criminal trial in the crown court, the judge has to keep order, decide legal questions
such as the admissibility of evidence, direct the jury on the law and sum up the evidence
impartially. J udges are often referred to as masters of the law while juries are referred to
as masters of the facts.

In 10% of jury trials, the judge may instruct the jury to return a directed acquittal. If the
jury finds the defendant guilty, it is then the judges responsibility to pronounce sentence.
66
THE LEGAL PROFESSIONS

BARRISTERS and SOLICITORS

1. Outline the qualifications and training required to become a
barrister and solicitor, and describe the work each profession
carries out.

Becoming a solicitor

There are more than 90.000 solicitors practising in England and Wales.
Solicitors are controlled by their own professional body, the Law Society.

In order to become a solicitor, most people take a university degree, not
necessarily in Law. If another degree is taken, for example in History, a further
years study is taken to pass the Graduate Diploma in Law (GDL), formerly
known as the Common Professional Examination.

The next part of the course is the Legal Practice Course (LPC) which is a one-
year full-time course (or 2 years part-time). The LPC includes training in skills
such as interviewing clients, negotiation, advocacy and drafting legal
documents. The course also includes training in business management such as
keeping accounts.

Finally, students have to obtain a training contract in a solicitors firm which
lasts 2 years. This provides two years of practical experience supervised by an
experienced solicitor.

After successful completion of the traineeship, the trainee will be admitted as a
solicitor by the Law Society, and his or her name will be added to the Roll of
Solicitors. It is also possible for mature entrants to qualify as solicitors by first
qualifying as Legal Executives and then as fellows of ILEX, after which they
take the LPC or the 2 year-traineeship. Even after qualifying, solicitors are
required to attend specialised training courses as part of their Continuing
Professional Development.

67
The work of solicitors

Most solicitors work in private practice in a partnership of solicitors. However,
some solicitors may work in the Crown Prosecution Service, or for a Local
Authority or for a Government Department. Others may become legal advisers
in commercial or industrial businesses.

High Street solicitors are often referred to as the General Practitioners of
Law. Their work involves conveyancing (transferring property rights) and
probate (wills and executing wills), together with giving general legal advice to
clients, which could include family law, employment law or setting up
companies etc.

We should also remember that solicitors work closely with barristers when
solicitors instruct them on behalf of their clients, or when solicitors seek
specialised advice from the consultants.

Most solicitors work within partnership with other solicitors. Over recent years,
in both London and large cities, there has been a trend for law firms to merge
to create much larger partnerships. This in turn has lead to greater
specialisation in the work undertaken by solicitors.

Although the work of solicitors is largely non litigious they do not argue their
clients cases in open court they do have rights of audience in both county
and magistrates courts.

In addition, under the Courts and Legal Services Act 1990, solicitors can
acquire rights of audience in the higher courts by qualifying as solicitor-
advocates. Such solicitor-advocates are eligible to become Queens Counsel and
also to be appointed to higher judicial posts. Under the Access to Justice Act
1999, it is anticipated that all solicitors will be given full rights of
audience/ advocacy when they have fulfilled the training requirements.

Becoming a barrister

There are about 14.000 barristers practising independently in England and
Wales. Solicitors are controlled by their own professional body, the General
Council of the Bar. Barristers are known collectively as the Bar.

68
Most barristers have taken a university degree. If they have not taken a degree
in Law, a further years study is taken to pass the Graduate Diploma in Law
(GDL), formerly known as the Common Professional Examination.

All student barristers must join one of the four Inns of Court which are
situated near the Royal Courts of Justice in London. They must dine at their
Inn of Court a set number of times though this can now be done by weekend
residential courses. Student barristers must also pass the Bar Vocational Course
(BVC) which provides training in the skills of drafting pleadings, advocacy and
negotiation.

Having passed the BVC, the student is officially qualified as a barrister and is
called to the Bar. The new barrister must then secure pupillage which
provides on-the-job training under the supervision of an experienced barrister,
the pupil master, for one year. The pupil work shadows the master for six
months and is then eligible to appear in court and conduct his/ her own cases.

During this period, students must also follow a programme of continuing
professional education organised by the Bar Council. On completion of the
pupillage, the barrister needs to find a tenancy in a set of chambers to practise
as an independent barrister.

The work of barristers

Barristers who practise at the bar are self-employed but usually work from a set
of chambers, comprising around 20 barristers. They share administrative
expenses and employ a clerk as a practice administrator who books in cases and
negotiates fees. They will also employ other support staff.

The majority of barristers concentrate on advocacy, representing clients in
court, but they also provide specialist advice through counsels opinion to
solicitors. The litigation work of a barrister also includes drafting pleadings
prior to the case coming to court. Barristers have rights of audience in all
English courts.

In the past anyone who wished to instruct a barrister had to go to a solicitor
first. The solicitor would then brief the barrister. However, in September 2004
the Bar granted direct access to anyone, business or individual, who wished to
engage and instruct a barrister in a civil case. However, direct access is still not
allowed in criminal cases or for family work.
69

Barristers operate what is known as the cab rank rule. This means they must
accept a case if it is in the area of law they deal with and if they are free to take
the case. However, this only applies in cases where barristers are engaged by
solicitors, not where they are approached directly by a client.

After at least 10 years experience, a barrister may apply to become a QC,
Queens Counsel. In 2004 it was agreed that appointments as a Queens
Counsel will be made by a selection panel chaired by a non-lawyer and include
other non-lawyers among its members. Appointments will no longer be made
by the Lord Chancellor.

2. Outline how complaints against solicitors can be dealt with.

A solicitor deals directly with clients and enters into a contract with them. This
means that if the client does not pay, the solicitor has the right to sue for his
fees. It also means the client can sue his solicitor for breach of contract if the
solicitor fails to do the work.

A client can also sue the solicitor for negligence in and out of court work. This
happened in Griffiths v Dawson (1993) where solicitors for the plaintiff had
failed to make the correct application in divorce proceedings. As a result the
plaintiff lost financially and the solicitors were ordered to pay her 21,000 in
compensation.

It used to be held that a solicitor presenting a case in court could not be sued
for negligence. However, in Hall v Simons (2000), the House of Lords
decided that advocates, both solicitors and barristers, can be liable for
negligence.

3. Outline how complaints against barristers can be dealt with.

When a barrister receives a brief from a solicitor, he does not enter into a
contract with their client, and so he cannot sue if his fees are not paid.
Similarly, the client cannot sue his barrister for breach of contract.

However, barristers can be sued for negligence. Since 1980 it has been held that
a barrister can be sued for negligence in respect of any written advice or
70
opinions he provides. In Saif Ali v Sydney Mitchell and Co (1980), a
barrister gave the wrong advice about who to sue; as a result the claimant was
too late o bring a case against the right person. The court decided the barrister
had been negligent.

In Hall v Simmons (2000), the House of Lords held that barristers and
solicitors can be liable for negligence in their conduct as advocates in court.
The Lords pointed out that other professions such as doctors can be sued for
negligence. There was no reason why advocates should not be liable in the
same way.

4. Outline the training and role of Legal Executives.

Legal executives are a branch of the legal profession that has developed over
recent years to fulfil the need for limited but specialised knowledge and ability.
There are around 23.000 legal executives.

Legal executives are professionals as they belong to a governing body - the
Institute of Legal Executives (ILEX) - which regulates their education, training
and operation, but they have limited responsibilities and may only practice
under the supervision of solicitors or barristers.

To qualify as a legal executive, an individual has to have five GCSEs, practical
experience and to have passed the appropriate examinations. A trainee LE will
take the associate examinations, then progress to the fellowship, all of which
takes at least 5 years, during which time they are required to be working under
the supervision of a solicitor.

As mentioned, legal executives work while they train. If they join straight from
school, they can expect to earn 8-9000 per year. After they are fully qualified,
they can expect to earn 20-24.000 per year.

Trainees have to take courses and examinations organised by their professional
body, the Institute of Legal Executives (ILEX). The training is a combination
of self-study, evening courses and day-release. The employer often helps with
the cost of the course.

Students must take a series of courses covering areas encountered in the legal
profession, i.e. family law, civil disputes, criminal cases and conveyancing.

71
Those who have passed all of the examinations must continue to work under
the supervision of a solicitor. An LE will frequently specialise in probate (the
legal work involved in dealing with a persons property after death),
matrimonial matters, or conveyancing (the legal work connected with the sale
and purchase of land).

To apply for full admission to ILEX, candidates must be at least 25 years old
and have five years experience in a legal office.

Fellows of the Institute of Legal Executives may convert their qualification
through a Law Society legal practice course and become a solicitor, even
though they do not necessarily have a degree.

professions of solicitor and barrister.

During the last 15 years there have been many changes to the legal professions.
For example, solicitors have lost their monopoly over conveyancing
(transferring property), but under the Courts and Legal Services Act 1990, they
have obtained rights of audience as solicitor-advocates in the higher courts.
There are now over 1000 solicitor-advocates although it must be noted that few
of these solicitor-advocates regularly represent clients in higher court.

Other changes under CLSA (Courts and Legal Services Act 1990) have seen
solicitors become High Court judges. In addition, the growth of large, even
multi-national firms of solicitors, has led to increasing specialisation within law
firm.

Barristers, too, have seen many changes within their profession they can now
advertise their services, and professional clients (such as accountants) can
consult directly with barristers. Sets of chambers have merged in recent years,
and cities such as Birmingham and Leeds have flourishing sets of barristers
chambers and large firms of solicitors.

These are just a few of the changes that have occurred recently. In the Access
to Justice Act 1999, employed barristers acquired rights of audience for the first
time, and the Act made it easier for solicitors to obtain higher court rights of
audience.

72
Because of these changes, especially the opportunity for solicitors to advocate
in the higher courts and to become senior judges, the question has been raised
whether it is necessary to have two separate branches of the legal profession.
Britain is the only developed country in which there are two different
professions. In the USA and other European countries, there is only one
fused profession, where lawyers specialise in either court or office-based work,
but they receive a common training process and are governed by the same
professional body.

However, it is essential to consider the very different tasks each branch of the
profession solicitors and barristers perform. For most of us, the only time
we see a solicitor is when we are buying or selling our house, making a will,
checking a contract, seeking a divorce, or setting up a company. It is very rare
for such administrative tasks to require a referral to a specialist barrister. On
such occasions, a solicitor asks for a second opinion by way of counsels
second opinion. This is rather like the relationship between a GP and a hospital
consultant. The GP will refer his patent to a consultant only is he feels
specialist advice is needed.

If a decision is taken by the client to purse or defend the case in court, the
solicitor will instruct a barrister or solicitor-advocate to represent the client in
court. In such circumstances, it is necessary to appreciate the while the barrister
is the courtroom specialist, the solicitor, too, is a specialist issuing the
proceedings in court to start the action and dealing with the pre-action
protocols such as discovery and organising witness statements. The process of
litigation has to involve both solicitors and barristers.

Most importantly, because of the changes made by the Courts and Legal
Services Act 1990 and the Access to Justice Act 1999, both barristers and
solicitors can take their clients case from start to finish. Barristers now have
the right to do the preliminary work which in the past was always done by
solicitors; and solicitors now have wider rights of advocacy and may represent
their clients in all courts.
73
THE LEGAL PROFESSIONS - TEST YOURSELF

1. Solicitors and Barristers

Qualifications and Training to become a Solicitor

1. How many solicitors are there practising in England and Wales?
2. Solicitors are controlled by which professional body?
3. What do most solicitors take after A levels?
4. If the first degree is not in Law, what diploma must be taken?
5. Describe in detail the nature of the Legal Practice Course.
6. Describe the nature and purpose of a solicitors training contract.
7. When and how is a trainee solicitor admitted to the profession?
8. What must solicitors continue to do throughout their careers?

The Work of Solicitors

1. Where do most solicitors work?
2. Name for other situations in which solicitors may work.
3. What do you understand by the phrase High Street solicitors?
4. Why are solicitors often referred to as the GPs on the legal profession?
5. Describe the range of work carried out by High Street solicitors.
6. Explain two ways in which solicitors work with barristers.
7. What development has led to greater specialization amongst solicitors?
8. Explain the work of solicitors is largely non litigious.
9. Explain advocacy/rights of audience
10 In relation to solicitors, explain the significance of the Courts and Legal Services
Act 1990. Then, In relation to solicitors, explain the significance of the Access to
J ustice Act 1990.

Qualifications and Training to become a Barrister

1. How many barristers are there practising in England and Wales?
2. Barristers are controlled by which professional body?
3. Explain the meaning of called to the Bar.
4. What do most barristers take after A levels?
5. If the first degree is not in Law, what diploma must be taken?
6. What must all student barristers join? For what purpose?
7. What does the Bar Vocational Course provide?
8. What does being called to the Bar indicate?
9. Describe in detail the nature and purpose of pupillage.
10 On successful completion of pupillage, what must the new barrister secure?

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The Work of Barristers

1. Describe a set of chambers and how it operates.
2. Explain a barristers rights of audience/advocacy.
3. What is counsels opinion?
4. What does the litigation work of a barrister include?
5. Describe the changes to access to a barrister introduced in September 2004.
6. Explain in detail the cab rank rule for barristers.
7. Why would a barrister wish to become a Queens Counsel?
8. Who formerly appointed all Queens Counsels?
9. Who now appoint Queens Counsels?
10 Why do you think this change was introduced?

2. Complaints against Solicitors

1. Why can solicitors and clients sue each other?
2. What would a solicitor sue for?
3. On what grounds would a client sue?
4. Explain in detail the significance of Griffiths v Dawson (1993).
5. Explain in detail the significance of Hall v Simmons (2000).

3. Complaints against Barristers

1. Why cannot a barrister sue a solicitor if his fees are not paid?
2. Why cannot a client sue his barrister for breach of contract?
3. Explain in detail the significance of Saif Ali v Sydney Mitchell and Co (1980).
4. Explain in detail the significance of Hall v Simmons (2000).
5. On what grounds did the Lords justify this decision?

4. Training and Role of Legal Executives

1. How many Legal Executives are there working in England and Wales?
2. Why has the need for Legal Executives developed in recent years?
3. Legal Executives are controlled by which professional body?
4. Under whose supervision must they work?
5. Outline in detail the qualifications required by a Legal Executive.
6. Outline the salary range for LEs.
7. What three elements may their training involve?
8. Name three areas in which a LE might specialise.
9. Name two requirements for full admission to ILEX.
10 How may a Legal Executive become a solicitor?

75
CRIMINAL COURTS

1. The Magistrates Courts in criminal cases.

Jurisdiction of the Magistrates Court

Magistrates courts play a significant role in our Criminal Justice System by
dealing with about 97% of all criminal cases. Magistrates courts (1) try all
summary cases, (2) try any triable either way offences if it is decided these
should be dealt with in their courts, (3) deal with the first hearing of all
indictable offences these are very serious offences which are then sent on to
the Crown Court.

Over 90% of defendants in the Magistrates Courts plead guilty. It is then up to
the court to decide on the appropriate penalty.

Magistrates also deal with such matters as issuing arrest warrants and deciding
bail applications. Magistrates also try cases in the Youth Courts; defendants
here are aged between 10 and 17 years of age. Young offenders can be tried in
the Crown Court when the charge is murder, manslaughter, rape, and causing
death by dangerous driving.


Every criminal case starts at the Magistrates Court which is responsible for
hearing over a million cases every year. There are three kinds of offences
summary offences, either way offences, and indictable offences.

Summary offences can only be tried by magistrates. These are the least serious
offences and they are divided into five levels of seriousness, 1 being lowest and
5 being highest. Fines range from a maximum of 200 to a maximum of
5000. The maximum prison sentence is six months but the Criminal Justice
Act 2003 will empower magistrates to impose a maximum prison sentence of
15 months.

Either way offences, sometimes referred to as middling offences can be tried
either by magistrates or by judge and jury at the Crown Court. In triable either
way offences, magistrates hear the defendants plea of guilty or not guilty
before deciding on the venue (where the case will be heard. This is called plea
before venue. If the defendant pleads guilty, then he has no right to ask to go
76
to the Crown Court though the magistrates may decide to send him there for
sentence if the offence is serious enough.

If the defendant pleads not guilty, the magistrates carry out mode of trial
proceedings to decide where the case will be tried. Magistrates must consider
the nature and seriousness of the case, their own powers of punishment, and
any representations from the prosecution and defence.

If the magistrates are prepared to accept the case, the defendant is then told he
has the right to choose trial by jury in the Crown Court, or he may choose to
have his case heard by magistrates. However, he is warned that if he is found
guilty by magistrates, he can still be sent to the Crown Court for sentencing if
the magistrates feel their powers of punishment are not sufficient.

Indictable offences are the most serious offences such as murder, rape and
robbery. These must be heard in the Crown Court, but the Magistrates Courts
deal with the first hearing before sending them to the Crown Court.


A defendant who has been found guilty in a Magistrates Court has the right of
appeal to the Crown Court. His appeal can be against conviction and/ or
sentence. He has an automatic right of appeal and does not need leave
(permission) to appeal.

The case is completely re-heard in the Crown Court before a judge and two
magistrates. They may confirm the original verdict, or they can decide the case
is not proved and reverse the decision. They may also vary the decision and
find the defendant guilty of a lesser offence.

With regard to the original sentence, the Crown Court can confirm the
sentence, increase it, or decrease it. However, they may not increase it beyond
the magistrates powers for the case. In recent years, statistics reveal that about
half of those who appeal have some level of success in the Crown Court.

Appeals on a point of law may go to the Queens Bench Division of the High
Court. The magistrates (or the Crown Court) are asked to state the facts in the
case, and their decisions. The QBD then discuss what points of law are
involved before they confirm, vary or reverse the decision. They may also send
77
the case back to the Magistrates Court to implement the decision on the law.
This procedure is called case stated appeal.

2. The Crown Court in criminal cases.


The main jurisdiction of Crown Courts is to hear all indictable offences such as
murder, rape and robbery) and the more serious either-way offences where
magistrates have declined to hear the case, or where the defendant has opted to
be tried on indictment by a judge sitting with a jury.

Cases are tried by different judges, depending on the seriousness of the
offence. In all cases heard in Crown Courts, the decision on the defendants
guilt or innocence is taken by the jury.


When a case goes to the Crown Court, an indictment is drawn up. An
indictment formally sets out the charges against the defendant. In complicated
cases, the indictment may be for several counts.

Under the Criminal Procedure and Investigations Act 1996, both the
prosecution and the defence must make certain disclosures to each other. The
prosecution, who have already provided the defence with statements of all the
evidence they propose to use at the trial, must also disclose any previously
undisclosed material; in other words, they must not hide something which
could help prove the innocence of the defendant.

In turn, the defence must disclose the nature of the defendants defence,
matters of fact where he differs from the prosecution, and any points of law,
including cases, on which he will rest his defence. He must also disclose details
about any alibi he intends to use, and about any witnesses supporting his alibi.

At a preliminary hearing, called a plea and directions hearing, all the charges
against the defendant are read out in open court. The defendant must then
plead guilty or not guilty to each charge. This process is called the
arraignment.

78
If the defendant pleads guilty, the judge will, if possible , sentence the
defendant immediately. If the defendant pleads not guilty, the judge will listen
to the key issues, including points of law, presented by prosecution and
defence. The judge will then give the necessary directions to organise the trial
and its date. The PDH allows the court to speed up the actual trial process, to
ensure that time is not wasted, and to plan its list of trials. If the case is very
complex, the judge may order a preparatory hearing to hear and decide on legal
arguments and whether certain evidence can be admitted or not.

The case then goes to trial. The defendant is usually represented by a barrister.
A defendant can represent himself. However, a defendant may not himself
cross-examine witnesses where sexual offences are involved, not where the
witness is a child.


Appeals may be made to the Court of Appeal (Criminal Division) by
defendants against sentence or conviction from the Crown Court, provided
leave to appeal has been granted. In appeals against sentence, the Court of
Appeal may confirm or reduce the sentence imposed at trial. Additionally, the
Court of Appeal may lay down or vary a tariff sentence this is where the
Court of Appeal establishes a clear guideline on sentencing for a particular
offence to assist trial judges.

The principal grounds for appealing against conviction are: that the original
conviction was unsafe or unsatisfactory; that new evidence has come to light;
that something irregular happened during the course of the trial. The court can
uphold the original conviction, quash it (overturn it and release the defendant),
or substitute a lower-level conviction (e.g. manslaughter instead of murder), or
order a retrial.

The Attorney General, acting on behalf of the Crown Prosecution Service, can,
with the leave of the court, appeal to the Court of Appeal against an unduly
lenient sentence under s36 of the Criminal Justice Act 1988.

Finally, the Criminal Cases Review Commission, under the Criminal Appeal
Act 1995, can investigate alleged miscarriages of justice. An example of the
work of the commission is the case of Sally Clarke (2003) whose conviction of
the murders of her two children was quashed following the disclosure of flawed
forensic evidence.
79
CRIMINAL COURTS - TEST YOURSELF

1. The Magistrates Courts in criminal cases

Jurisdiction of the Magistrates Courts

1. What percentage of all criminal cases is dealt with in Magistrates Courts?
2. Explain the meaning of summary offences, triable either way offences
and indictable offences.
3. What percentage of defendants pleads guilty in Magistrates Courts?
4. Name two other criminal-related matters dealt with by magistrates.
5. Which offences would probably be dealt with in the Crown Court rather than
in the Youth Court?


1. For which type of offence does the first hearing take place before magistrates?
2. How many levels of seriousness are there for summary offences?
3. What is the range of financial penalties for summary offences?
4. What is the maximum custodial/prison sentence that magistrates can impose?
5. What will the Criminal J ustice Act 2003 empower magistrates to do?
6. Why are triable either way offences sometimes referred to as middling offences?
7. Explain the meaning of plea before venue.
8. Why might magistrates hear the case in their court, but then send the defendant
to the Crown Court?
9. Explain the meaning of mode of trial proceedings.
10 What option is open to the defendant who pleads not guilty
to an either-way offence?


1. To where can a defendant found guilty in the Magistrates Court appeal?
2. On what grounds can the defendant appeal?
3. Does such a defendant need leave (permission) to appeal?
4. Who re-hears his case in the Crown Court?
5. Having heard the appeal, what three options are open to the Crown Court
in relation to the verdict?
6. What three options are open to the Crown Court in relation to the sentence?
7. Based on statistics, is it worthwhile appealing to the Crown Court?
8. Where are appeals on points of law made?
9. Explain the nature of a stated case appeal.
10 Following the hearing, what four options are open to the QBD?

80
2. The Crown Court in criminal cases


1. What is the main jurisdiction of the Crown Court?
2. Name three indictable offences.
3. Suggest an offence which might be treated as triable either way.
4. Why are different cases tried by different judges?
5. Explain masters of the law and masters of the facts.


1. Explain the nature of an indictment.
2. Under which Act must the prosecution and the defence make certain disclosures
to each other?
3. What must the prosecution provide and disclose?
4. What must the defence disclose?
5. Explain in detail what takes place at a plea and directions hearing.
6. What name is given to the plea and directions hearing?
7. If the defendant pleads guilty, what action will the judge take?
8. If the defendant pleads not guilty what action will the judge take?
9. What may the judge do if the case is very complex?
10 Under what circumstances is a defendant not permitted to represent himself?


1. Where are appeals from the Crown Court heard?
2. On what grounds can a defendant appeal?
3. Is leave (permission) required to appeal?
4. What actions may the Court of Appeal take in relation
to the sentence/punishment pronounced in the Crown Court?
5. Name three grounds for appealing against the conviction/verdict
reached in the Crown Court?
6. What four options are open to the Court of Appeal in relation
to the verdict reached in the Crown Court?
7. What has the Attorney General been empowered to do in relation to sentences?
8. Which commission can now investigate alleged miscarriages of justice?
9. Which Act empowers this commission to investigate alleged miscarriages?
10 Give an example when this power was employed.

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Aspects of theEnglish Legal System

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