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Civil Justice System
Legal Aid
- World Justice Report 2016 (UK ranked 10th in Rule of Law index 2016)
- Pre-WWII, minimal legal aid
- After WWII, rise in divorce cases - adopted welfare state policy, increased legal
aid
- Adopted Rushcliffe Committee proposals - Legal Aid Bill
Legal Aid and Advice Act 1949
- In 1949, 80% had access
- In 1978, only 48% had access (Increase in earning capacity and inflation)
- Increase in financial limit, spent too much on legal aid
Lord McKay - Proposed capping method
Lord Irvine - Implemented the method in Access to Justice Act 1999
Access to Justice Act 1999
- Legal Services Commission decide how to divide fund between Civil Legal Service
& Criminal Defence Service
- Cases removed from provision of legal aid (small claims, defamation, company law,
wills, trust property, negligent except for medical negligent)
- HRA 1998 : Came into effect, criminal side spent more (asylum etc
...
2b in a year on legal aid
(But spent £9b on 2012 olympics)
- Abolished Legal Services Commission > Legal Aid Agency
- 623K people previously eligible, now ineligible
- 80% poorest quintile of society was ineligible
- 54% on social benefits, ineligible, believed to be disabled
a) Medical Case
- Removed by LASPO 2012 (AJA 1999 did not)
- Complex evidence, expert opinion (costly)
b) Divorce Case
- Only for victims of domestic violence
- 50% cannot prove
- Women's Aid statistics: 38% could not obtain evidence of abuse
c) Disadvantage suffered by single fathers
- No automatic parental responsibility (as opposed to mother), meaning no say in
upbringing of the child
- Child support agency assess how much to pay to the mother
- Grant by agreement or court order (No legal aid)
- Has to pay for rights over the child
- Marilyn Stowe : Mother has custody, if disregards court order to allow contact,
have to apply for contact order (No legal aid)

d) Judicial Review
- Provided only after leave is granted
- Most work done before leave permission hearing
- Sometimes government ratifies mistake before actual hearing
e) Residence Test
- Lord Chris Grayling : Proof of citizenship for several years
- Frederick Wilmot-Smith : Vulnerable people cannot satisfy (Homeless, Victims of
trafficking, Prostitutes), Suffer from British injustice should be able to access
British justice (Baha Mousa case, the wife would not have received legal aid if the
case happened after LASPO 2012)
- Man in doghouse (Man was made to live in doghouse by his wife, rescued and given
legal aid
...
If enforceable, will
invalidate the residence test
...
However, better be late than sorry
...
5m
and a long time to settle in court
5) Other advantages / disadvantages
Mediation and Social Justice : Risks and Opportunities by Bush & Folger
(i) Every case on its own terms
Advantage
- Unique features of problem be addressed with unique solution, Can tailor-make
outcomes
Disadvantage
- Party from a disadvantaged group, may be unjust, Does not contribute to social
justice, Gave away rights
(ii) Informality
Advantage
- Resolve dispute according to what parties want, Save time and cost (No
winner/loser)
Disadvantage
- One party might be at an advantage due to resources available
(iii) Mediator's accountability for substantive fairness
- Lawrence Susskind : Cannot ignore when can observe going to come to unjust
solution, have to intervene
- Joseph Stulberg : If expected to intervene, goes against traditional role

(iv) Mediator's job in power balancing
- Christopher Moore : Can do so by providing necessary support to weaker party,
has the tools to try and assist to come to a just solution
(v) Practical limits on a mediator's role
- In reality, settlement rather than quality of settlement
- Subject to cultural & social influences and may involve biases
- May lead to misunderstanding of expression or arguments
s10(1) Children and Families Act 2014 - Before initiating family proceeding, must
attend mediation information and assessment meeting
Professor Hazel Genn : Outcome not about just settlement but about just
settlement

Judiciary
Selection process before CRA 2005
- Lord Chancellor and his department considers potential candidates (Suitability)
- PM acts on LC's advice, Queen acts on PM's advice (Court of Appeal)
- Queen acts on LC's advice (HC and Below)
- 'Tap on the shoulder' / Secret soundings
- Untransparent / Unaccountable
- Headed by one individual who was handpicked by the PM and held a political office
(Political appointment)
- Robert Sayer : Secret soundings system is inconsistent with open and objective
recruitment processes
- Law Society Report 2000 : Old system suited when appointments were made
from 1500 barristers, now a profession of 85K

Selection Process after CRA 2005
- HoL > Supreme Court
- LC no longer head of judiciary
- s61 CRA 2005, JAC responsible for appointments
- Ministry of Justice makes request to JAC when there is vacancy
Selection of candidates
a) Advertise (Reach out to greater and more diverse pool of candidates)
b) Sift through application (Filter out ineligible candidates)
c) Selection process (Interview, Role-playing, Structured discussions)
d) Report to LC (If reject, have to give written reasons, must be one of merit)
Representation before CRA 2005
- JAG Griffith : Dominated by white male of Oxbridge and public schools educated,
from middle and upper middle classes
- Lack of women, Black, Asian and Minority ethnics (BAME), Lower middle class
- Baroness Hale : In a democratic society of equal citizens, it is wrong in principle
to have authority wielded by unrepresentative section of population
- Should reflect nature of society (Democratic pluralism)
- Unrepresentative (Lack of democratic credibility)
- R (Begum) v Headteacher illustrates that the judiciary needs to be more
diversified, to better understand the needs of the society and be more tolerant
towards minority needs
- Robert Sayer : Appointment of judges reflect society that they serve
- Lord Steyn : The public is increasingly looking not to Parliament but to judges to
protect their rights

Representation after CRA 2005
- Baroness Usha Prashar : Days of the secret sounding and tap on the shoulder are
long gone
Judiciary Diversity Statistics 2016
- Females in 2015 : 25%, 2016 : 28%
- BAME in 2016 : 5%
Steps to increase diversity
a) Fast-track to the High Court - Requires no previous judicial experience, does
not require to have sat as Recorder (To ensure diversity at a quicker pace)
b) Support scheme for under-represented group
- Work-shadowing (Gauge if job is suitable for them)
- Workshops (Provide guidance to better equip candidates for selection process)
c) Judicial Mentoring Scheme - Focuses on women and BAME
d) Judicial Diversity Initiative - A forum to promote equal participation of men
and women from diverse backgrounds (Greater diversity by 2020)
Is the judiciary independent, neutral and impartial?
- Have been questioned about representation and diversity but independence was
never an issue
...
The independence of judiciary was enhanced after CRA
2005 (s3 and s4)
...
No judges should be directly involved in selection of successor
...
LC should not be offered a shortlist of candidates from
which to choose
- More diverse judiciary would not undermine quality of judges and increase trust
and confidence
- Agree that merit and diversity are distinct concepts and merit should continue to
remain the sole criterion for appointments
Lord Chief Justice Diversity Strategy 2013
- Strategy will be developed by Judicial Diversity Committee of the Judges'
Council

(i) Aimed at serving office-holders, legal professions, law students
(ii) Remind all judicial office-holders of their responsibilities for promoting
diversity within their courts and tribunals, and as part of their outreach to the
wider community
(iii) Inform public of the role of a judicial office-holder and the justice system
(Improve understanding and confidence of public)

Criminal Justice System
Models of crime
a) Crime control model :
- Powerful police
- Presumption of guilt
- Punishment
- Speed
- Protect victims' rights rather than defendants'
b) Due process model :
- Protect innocent
- Jury
- Presumption of innocence
- Rules of evidence (Procedural safeguards)
- Article 6 ECHR and HRA 1998
- Protect defendants' rights rather than victims'
*Crime control model mirrors the conservative ideals while the due process
reflects liberal views
...
However, when conservatism dominated from the mid

1970's to the early twenty-first century the criminal justice system took the
shape of the crime control model
...

Miscarriages of justice illusrate the crime control model in UK
World Justice Project on criminal justice systems
- Freedom from corruption and improper government influence
- Impartiality
- Effective criminal investigation and adjudication
- Respect and observe due process of law and rights of accused
The Effect of the Criminal Justice Act 2003
a) Removed double jeopardy principle
- Safeguard for the removal :
(i) Prosecutor needs permission of DPP
(ii) Requires new and compelling evidence
(iii) Satisfies public interest test
(iv) Only CoA can quash acquittal and order retrial
(v) Offence must be in Schedule 5 (Max
...

Prosecution proves guilt beyond reasonable doubt

c) Public Interest Immunity
- Prosecution can silently submit evidence (Will be harmful to someone) and
defendant might not know about the evidence (No equality of arms)
d) Closed Material Procedures
- Secret trials (For sensitive materials)
Miscarriages of Justice
Stephen Downing - 9 hours without solicitor, signed confession he couldn't read,
jailed for 27 years
Stephen Lawrence - Guilty but acquitted, only convicted after 18 years
...
)
- Only referred 7 major cases but not all efforts are theirs (Sean Hodgson - Took
credit for lawyers' efforts and recorded as success)
- Victor Nealon - Failure of CCRC to research paper trial, turned down request
twice, conviction quashed after 17 years in prison
- CCRC focusing on wrong cases (Ministers can blame CCRC for MOJ)
Bob Woffinden - CCRC statistics are exaggerated (Calculated by how many
individuals and not by cases)
Russell Causley - Multiple counting (CoA quashed, HC convicted again, only count
quash)

Statutory Interpretation
Declaratory Theory - Judges merely interpret the law
Literal rule : Plain and ordinary meaning
- DPP v Cheeseman - Defendants acquitted due to literal meaning of the statute
being given effect to
- R v Judge of the City of London Court - L
...
However, it should also be
noted that the UK is well-known for its common law which has been followed and
respected by judges worldwide
...


Causes absurdity, Too rigid as it assumes every Act is perfectly drafted, Can lead
to absurd results and unjust decisions, Outdated
Golden rule : Modification of literal rule
- Grey v Pearson - L
...
)
Leads to justice in individual cases as the broad approach can cover more
situations
...

Can make law uncertain and lawyers will have difficulty advising clients on possible
outcomes of a case
...
In reality, judges almost always decide on the outcome of a case
before choosing a rule of interpretation to justify the decisions
Extrinsic & Intrinsic Aids
- Pepper v Hart (Hansard can be referred to in a limited circumstances
SI and HRA 1998
s3 - Domestic legislation must be interpreted to be compatible with Convention
Rights - R v Lord Chancellor ex parte Witham
s3(2)(b) - Does not affect validity and operation of the Act
Change in interpretations? Not really
...
HRA 1998 and ECHR is more like a realignment rather than redefinition
...
Not
entirely correct to say HRA 1998 has altered the basis of SI
Freedom increased, but not absolute freedom, still cannot go against Parliament's
intentions
Inco Europe v First Choice Distribution : Whether or not HRA 1998 is there,
judges still have to solve such issues, therefore not entirely accurate to say HRA
altered basis of SI (Gradual change)
s4 Declaration of incompatibility : Search for compatibility but cannot find
compatible reading if there is not one - Bellinger v Bellinger
Constitutional position of judges are unchanged
No more strict rules or approaches, but there are still rules (Today, judges look
more at purposive)

Interpretive obligation not only under HRA 1998 but also Parliamentary Statutes
How judges approach SI before 2000 is similar to after 2000, still follow
Parliament's intentions
Judiciary has no power to strike down ECHR

Judicial Precedent
Objective : Predictability & Certainty of law
Respect for hierarchy of the courts : Decisions from the top are not to be taken
lightly
Do judges make law?
Declaratory theory : Judges do not make law, they only declare law that is already
there
Make law with limited powers - Precedent in practice (Can modify/correct/develop
earlier ratios or precedents)
Practice Statement 1966 - HoL can depart, only if 'right to do so'
Limiting powers
- Provide ratio for decisions (Reasoning)
- Young v Bristol Aeroplanes (Can depart in limited circumstances)
- Miliangos v George Frank (L
...
The question is how they approach their task
Law-making powers have been widened by HRA 1998
Judges may not always consider their powers limited - Jackson v AG

What ought judges do?
- McLoughlin v O'Brien (When Parliament is silent, judge has jurisdiction but should
not be too involved with policy considerations unless leads to development of legal
principle)
- R v Offen and others (If the area involved is regulated by statute, courts refuse
to change the position of the law)
- DPP for NI v Lynch (If the area involved is not regulated by statute, courts make
law)
Justice is ultimate goal, only question is the degree judges participate in lawmaking
Precedent - Can changes be made?
- Owed not to judges but to the law
- R v R reflects this status, change was necessary although bold
...
Valuable attitude in ensuring proper balance between
Rule of Law and justice
Decisions of ECtHR - Binding?
s2(1) HRA 1998 - All courts must take into account decisions of ECtHR (No strict
obligation)
R (Alconbury) v SOS for the Environment, Transport and Regions - Obligated to
take into account if clear and constant
Manchester City Council v Pinnock - Not bound to follow every decision of ECtHR,
s2 only requires to take into account if clear and constant

*Important for SC to preserve the ability to engage in constructive dialogue



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