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Title: the English Legal System - Easton, Catherine
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s
e
t
o

the english
legal system

C

o

u

r

s

e

N

Catherine Easton

C

E

ours

S

N

OTE

First edition published 2012 by Hodder Education
Published 2013 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY, 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © 2012 Catherine Easton
All rights reserved
...

Proudly sourced and uploaded by [StormRG]
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The advice and information in this book are believed to be true and
accurate at the date of going to press, but neither the authors nor the publisher
can accept any legal responsibility or liability for any errors or omissions
...
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Contents
Guide to the book
...
vi
Acknowledgments
...
ix
Table of cases
...
xiii
1: Sources of Law
...
15
3: Statutory Interpretation
...
45
5: Criminal Courts and Procedure
...
68
7: Funding
...
88
9: Lay Magistrates
...
111
11: The Judiciary
...
131
Glossary
...
148

Guide to the book
Check new words and essential legal terms and what they mean
Deﬁnition
Capacity: understanding, awareness, capability, clear mind,
reasoning, ability
...
Look up paragraphs 35 to 38 and make notes on the
main arguments below
...
The
mental element need not be
explored
...

Provide you with potential real-life exam questions
...

Potential exam questions
1) Assess the ways in which incapacitated defendants are dealt
with in the criminal court system
2) Examine the role of vicarious liability in criminal law
3) Corporations can be indicted for criminal offences the same as
individuals can
...

Login at
Interactive questions to help you revise aspects of the law

Model Answers
Chapter 1
1
...

Useful links to websites to help you research further your
studies in law

www
...
gov
...

GUIDE TO THE WEBSITE

www
...
uk
The ofﬁcial Parliament website; use it to track all criminal bills
currently before Parliament, explore the role of the House of Lords
in law-making, and search for delegated legislation
...

Preface
The Course Notes series is intended to provide students with useful
notes, which are presented in a way that helps with visual learning
...

There is also support available on the companion website where students can check their own answers to the examination-style questions
against the suggested answers on the site, as well as interactive questions and useful links for research
...
The sources
of the English Legal System and how they interact provide the context for further, detailed study in all areas of law
...

This text is an indispensable revision aid which succinctly and clearly
provides the required English Legal System knowledge, making full
use of current examples and diagrams
...

Catherine Easton

Table of cases
Addie v Dumbreck [1929] AC 358
...
21, 42, 71
Anns v Merton London Borough [1977] 2 WLR 1024
...
119
Beta Construction Ltd v Channel Four Television Co Ltd [1990]
2 All ER 1012, [1990] 1 WLR 1042
...
42
Bushell’s Case (1670) Vaugh 135
...
21
Davis v Johnson [1979] AC 264, [1978] 1 All ER 1132
...
21
Elliott v C (a minor) [1983] 2 All ER 1005, [1983] 1 WLR 939
...
38
Fothergill v Monarch Airlines Ltd [1980] 3 WLR 209
...
93
Herrington v British Railways Board [1972] AC 877
...
34
Jones v Secretary of State for Social Services [1972] AC 944,
[1972] 1 All ER 145
...
20
McDonald’s Corporation v Steel and Morris (1996) The Times,
22 November
...
32
Mendoza v Ghaidan [2004] UKHL 30, [2002] EWCA
Civ 1533
...
21, 22
Murphy v Brentwood District Council [1991] 1 AC 398, [1990]
2 All ER 908
...
41, 42, 44
Powell v Kempton Park Racecourse [1899] AC 143
...
97
Practice Note (Jury: Stand By: Jury Checks) [1988] 3 All ER 1086
...
20, 29

xi

TABLE OF CASES

R v A [2001] UKHL 25
...
90
R v Allen (1872) LR 1 CCR 367
...
128
R v Caldwell [1982] AC 341, [1981] 1 All ER 961
...
97
R v G [2002] EWCA Crim 1992, [2003] 3 All ER 206
...
62
R v Kronlid and others (1996) The Times, 10 September
...
91
R v McKenna [1960] 1 QB 411, [1960] 2 All ER 326
...
97
R v Registrar-General, ex parte Smith [1991] 2 All ER 88
...
10
R v Shivpuri [1986] 1 All ER 334
...
25
R v Taylor and Taylor (1994) 98 Cr App R 361
...
96
R v Twomey (John) and others (2009) The Times, 25 June
...
97
R (on the application of the Crown Prosecution Service)
v Guildford Crown Court [2007] EWHC 1798 (Admin),
[2007] 1 WLR 2886
...
84
Salomon v Commissioners of Customs and Excise [1966]
3 All ER 871
...
33, 36
Smith v Hughes [1960] 2 All ER 859
...
81
Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801, [2000]
1 WLR 1311
...
38
Timmins v Gormley [2000] 1 All ER 65
...
21
Vaise v Delaval (1785) 1 Term Rep 11
...
93
Whiteley v Chappell (1868) 4 LR QB 147
...
24
Young v Bristol Aeroplane Co Ltd [1944] KB 718, [1944]
2 All ER 293
...
6
Access to Justice Act 1999
...
78, 79
s 12
...
82
s 13(2)
...
85
Sch 2
...
78, 83
Administration of Justice Act 1985—
Pt II
...
125
Bribery Act 2010
...
7, 8
s 27
...
7
s 29(3)
...
7
Child Abduction and Custody Act 1985
...
48, 107
Children and Young Persons Act 1933—
s 44
...
138
Constitutional Reform Act 2005
...
126
ss 76–85
...
126
Contempt of Court Act 1981—
s 8
...
133
s 7
...
92
Courts Act 2003—
s 11
...
93, 114, 124
s 58
...
74
s 4
...
74
Criminal Appeal Act 1995—
ss 8–12
...
22
Criminal Justice Act 1972—
s 36
...
72
Criminal Justice Act 2003
...
61
s 43
...
66, 95
ss 57–63
...
73
s 76
...
132, 133
s 143(1)
...
140
s 144
...
140
s 146
...
141
s 152(2)
...
141
s 177
...
136
s 205
...
136
s 269
...
89
Criminal Procedure and Investigations Act 1996—
s 54
...
72
Domestic Violence, Crime and Victims Act 2004
...
39
European Communities Act 1972
...
10, 12
s 2(1)
...
13

xv

TABLE OF STATUTES AND OTHER LEGISLATION

Fraud Act 2006
...
1, 11, 13, 26, 29, 43, 44
s 2
...
26
s 3
...
13
s 10
...
40, 43
Judicature Act 1873
...
4
Judicial Pensions and Retirement Act 1993
...
89
s 5
...
91
s 17(3)
...
102
Legal Aid Act 1988
...
77
Legal Services Act 2007
...
65
Magna Carta 1215
...
89
Parliament Act 1911
...
6
Police and Criminal Evidence Act 1984
...
78
Poor Prisoners’ Defence Act 1903
...
77
Powers of Criminal Courts (Sentencing) Act 2000—
s 91
...
138
Prosecution of Offences Act 1985
...
128
s 69
...
93
Solicitors Act 1974
...
34
Sustainable Communities Act 2007
...
53, 54, 124
University of Manchester Act 2004
...
39
Statutory Instruments
Civil Procedure Rules 1998, SI 1998/3132
...
85
Criminal Procedure Rules 2005, SI 2005/384
...
59
Criminal Procedure Rules 2011, SI 2011/1709
...
108
European Legislation
European Convention on the Protection of Human Rights and
Fundamental Freedoms 1950
...
11
Art 3
...
135
Art 6
...
78
EU Treaty
...
1 The English Legal System
The English legal system (ELS) draws upon the following sources:
• Common law: the law held in judges’ decisions
• Equity: a source of law based on fairness
• Legislation: Acts of Parliament and secondary (delegated) legislation
• European Union law
• The European Convention on Human Rights
...
2 Sources of Law
Who are the law-makers?
The Courts
Crucial to the development
of the common law

Parliament
The supreme law-maker

The law-makers

The European Union
Creates law under the EU treaty
Incorporated in the ELS by the
European Communities Act 1972

The Council of Europe
Created the European Convention on
Human Rights
...
3 The Courts
Supreme Court of the UK
(used to be House of Lords)
Hears appeals on civil and criminal law
(only on civil from Scotland)
Court of Appeal
Criminal division – hears appeals
Civil division – hears appeals
The High Court
Divisional Courts
Administrative Court
Hears judicial review and
criminal appeals
First Instance
Queen’s Bench Division
Hears higher value civil
claims

Family Divisional
Hears family
appeals

Chancery Divisional
Hears land and tax
appeals

Family Division
Hears family cases

Chancery Divisional
Hears land/tax/trust
cases
Figure continued overleaf

Workpoint
Look at the diagram of the court system for ﬁve minutes, close the
book and then draw a very simple diagram of this system
...
4 The Supreme Court of the UK
The House of Lords
Meaning 1: A chamber of Parliament: still exists to make law
alongside the House of Commons
The House of Lords
Meaning 2: The superior court in the English legal system
This has now been replaced…
Constitutional
Reform Act
2005
The Supreme Court
In October 2009 the Supreme Court of the UK replaced the House of
Lords as the superior court in the English legal system
Sources of law, hierarchy:

Parliament
Equity
Common law

3

1
...
7 below

SOURCES OF LAW

4

1
...

• It can mean the law developed through judgments handed down in
cases
...

This aspect of the common law is underpinned by judicial precedent
(see 2
...
It can mean the entire legal system of a country which operates in a similar way to the English legal system
...
Remember
this difference when studying judicial precedent
...
To understand this difference,
we need to understand the historical development of English law
...
5
...

• After 1066: a uniform, central system was developed with judges who
travelled the country (named Curia Regis)
...

• But if you did not lodge the correct paperwork (writ) then you could
not have a remedy
...

• The King appointed a Lord High Chancellor to hear these cases in
the Court of Chancery
...

• The two court systems were fused together by the Judicature Acts
1873–75
...
5
...

• Equitable principles are based upon equality and fairness (you will
study equity in more detail in, for example, the law of trusts)
...

• Equity will intervene where the law itself would produce absurd or
unfair results
...

So, we know that the English legal system is a common law system within which laws are developed through judgments found in case law
...
However, the highest source of law in the English legal system is Parliament and legislation
...
6 Parliament and Legislation
Legislation can be split into two categories:
• Primary: Acts of Parliament, also known as statutes
...

The House of Lords
Parliament

The House of Commons
The Monarch

The majority of primary legislation (Acts of Parliament/statutes) is
passed in the following way:
A proposal for a new law is drafted
...

5

1
...
An Act of Parliament would prevail over both of these sources (see 1
...

SOURCES OF LAW

6

There are different types of Bill
...
Public Bills: Bills drafted by the Government (the majority of
Bills)
...
Private Members’ Bills: Bills prepared by MPs who have been
given the chance to propose a new law
...

The ﬁnal type of Bill usually applies only to the body who proposed it:
3
...
g
...

Acts apply to country as a whole
Public Bills
Private Members’ Bills

Acts usually apply only
to the body who proposed it
Private Bills

Do not confuse Private Members’ Bills with Private Bills
...
g
...

A Bill can enter Parliament in either House (although the majority
enter the House of Commons, ﬁnancial or money Bills have to enter
the House of Commons) and it goes through the following stages:
• First Reading
• Second Reading
• Committee Stage
• Report Stage
• Third Reading
...

Under the Parliament Acts of 1911–49, the Assent of the House of
Lords may be bypassed under certain circumstances
...

If a Bill has received the Royal Assent and become law, is it automatically in force? Answer: It depends upon its commencement
...
This Part comes into force on the day on which this Act is passed
...

2
...

Therefore these parts come into force on the date stated (22nd May 2011)
...
The other provisions of this Act come into force in accordance with
provision made by order made by statutory instrument by the Treasury
...

Therefore, an Act of Parliament does not automatically come into
force on the day it receives the Royal Assent
...

Research Point
Locate an Act passed this month (either on paper or in a database)
work out whether or not none, some, or all of it is in force
...
6 PARLIAMENT AND LEGISLATION

Royal Assent: No Bill can become an Act without the Royal
Assent
...
However, this is merely a formal
process: the monarch does not read every Bill and give personal
consent (it has not been withheld since 1707)
...
7 Secondary or Delegated Legislation
A primary Act of Parliament (statute) can pass on (delegate) power to another to make law
...
The primary Act is known as the secondary (delegated)
legislation’s parent Act
...
7
...
7
...
1 Statutory instruments
A minister or government department can be given powers to
commence an Act at a certain time
...

Why are they used?
This allows for more speciﬁc, targeted control of the timing of an Act’s
sections coming into force in the light of evolving events without having to go back to Parliament
...
7
...
2 By-laws
These are rules created by a public body such as a Local Authority
...
7
...
3 Orders in Council

Why are they used?
To allow a quick response to an emergency and to bring detailed rules
into force
...

Advantages of secondary legislation
• Removes pressure on parliamentary time – this leaves more time
for primary legislation to be debated
...

• Expertise – complicated rules in areas such as tax can be created
by, for example, Treasury representatives with technical expertise
(which MPs may not have!)
...

Disadvantages of secondary legislation
• Scrutiny (technicalities) – due to the sometimes technical nature of
secondary legislation, it can be difficult for MPs to understand the
new measures
...

• Accountability – according to the theory of the separation of
powers, the legislature (Parliament) should enact legislation
...

Due in part to the disadvantages listed above, a piece of secondary legislation can be struck down by a court if it is found to be ultra vires

9

1
...
They are ofﬁcially made by the Legislative Committee of the Privy Council and can be used to respond to
an emergency or enact domestic legislation
...
The Parent Act (primary legislation)
will outline the scope of the power to make secondary legislation and if
its creator exceeds this power, then it can be struck down
...

Workpoint
Outline the differences between primary and secondary legislation and
analyse the advantages and disadvantages of secondary legislation
...
Find the full text of at least one of these and locate its
parent Act and the section which delegates the powers to your
local authority
...
8 The European Union
Time line
1951 Early version of the European Union was created

1972 European Communities Act passed in the UK (key section: s 2)

1973 The UK joins the European U i (then Community)
Union

o
1991 Case of Factortame (No 2): the H
House of Lords holds that if a
statute and EU law conflict then the statute will be ‘set aside’
(remember: not repealed) and the EU law is applied

To clarify issues of EU law, the European Court of Justice (ECJ) hears
references from the English legal system on matters of EU law
...

The process

11

A domestic court has a case in which it needs advice on applying EU law

The ECJ answers the ‘reference’ and sends it back to the court in the
English legal system

The court applies the law following the reference provided by the ECJ
and makes a decision on the case

1
...

The European Court of Human Rights (ECtHR) in Strasbourg makes
decisions relating to the rights enshrined in the Treaty
...
The key change is that human rights principles as
enshrined by the ECHR can now be relied on in UK courts; previously
you had to appeal your case to the highest possible court (exhaust all
domestic remedies) and then go to the ECtHR in Strasbourg
...

Key sections of the Human Rights Act include:
s 2: When making a decision on a Convention issue the Court should
take into account the past cases of the ECtHR (see Chapter 2)
s 3: Legislation should be interpreted in the light of the articles of
the ECHR (see Chapter 3)

1
...

(4) …any such provision (of any such extent) as might be
made by Act of Parliament, and any enactment passed
or to be passed, other than one contained in this part of
this Act, shall be construed and have effect subject to the
foregoing provisions of this section…
Human Rights Act 1998
Section 2
(1) A court or tribunal determining a question which has
arisen in connection with a Convention right must take
into account any—
(a) judgment, decision, declaration or advisory opinion of
the European Court of Human Rights…
Section 3
(1) So far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in
a way which is compatible with the Convention rights
...

It is essential that you learn the differences between these two legal
systems (they both have Europe in the title but are very different!)
...
These have
a signiﬁcant impact

This is static (no new laws
are created)

Court

European Court of
Justice

European Court of
Human Rights

UK membership

Joined 1973

Ratiﬁed 1953

Key
incorporating
legislation and
cases

European Communities
Act 1972
s 2(1) and (4)
Factortame

Human Rights Act 1998
ss 2, 3, 4 and 10
RvA

Impact of
incorporation

If EU and UK law
conﬂict, the UK statute
will be set aside and
the EU statute will be
applied

If a UK statute conﬂicts
with the ECHR, the
judge could take a wide
interpretation (s 3) taking
into account past cases
of the ECtHR (s 2) or
make a Declaration of
Incompatibility (s 4/s 10)

Workpoint
Brieﬂy outline how a court would approach the following two imaginary scenarios:
A statute has been passed which states that people can no longer be
housed in local authority care homes
...

continued overleaf

13

1
...
10 Differences between the European
Union and the European Convention
on Human Rights

Workpoint (continued)

SOURCES OF LAW

14

A statute governing working time has been passed which states that
all hospital doctors can work 78 hours a week
...
Tim is a hospital doctor who is routinely asked to work 78 hours
a week
...

Checkpoint
Task

Done

I know the sources of the English legal system and can
outline key concepts
I can draw a simple diagram of the court system
I understand the deﬁnitions of ‘common law’
I understand how equity developed and how it ﬁts into
the English legal system
I know how Parliament makes law
I know what delegated legislation is and can analyse its
advantages and disadvantages
I understand how the European Union impacts upon the
English legal system
I understand how the European Convention on Human
Rights impacts upon the English legal system
I know the difference between the European Union and
the European Convention on Human Rights

Potential exam questions
1) Outline, using examples, the sources of the English legal system
...

3) Outline the relationship between the courts of the English legal
system and the European Court of Justice
...
1 What is the Doctrine of Judicial
Precedent?
The English legal system follows the doctrine of judicial precedent
...

Workpoint
Imagine that you are a solicitor advising Mr A, who has come to you to
ask how he can claim damages from a building company who ruined
his roof
...
You ﬁnd the similar cases of Mr B and Ms C and start to
build a case from there
...

Does this matter? Ms C’s case is very similar to Mr A’s but Ms C lost
and was not awarded damages
...
This is known as the principle of stare decisis
...
When a legal principle has been decided in one case then this has to be followed
in certain other courts
...
What would be the point of developing
the relevant legal principles from scratch when they have already been
decided elsewhere?

Workpoint
Think about how a system could be developed in which this doctrine
of judicial precedent based on stare decisis works effectively
...
How can the doctrine of judicial precedent function when there are thousands of cases heard every day – would there
not be chaos? We’ve all read case reports and they’re often very long!
Does every single word impact upon other cases, and if so, how does
any judge manage to make a decision?

To deal with these issues, the English legal system’s doctrine of judicial
precedent developed to require the following elements:
• A system of law reporting
(so that we can find out how past
legal principles were decided)
What is needed
in a system which
follows the doctrine
of judicial precedent?

• A court hierarchy
(so that only certain, important courts
impact on others to avoid confusion)
• A method of working out exactly
what the decided legal principle is (so
that judges and lawyers can apply the
law effectively)
...
The legal principle
upon which a case is decided in the light of the material facts
(it is the part of the case which is binding)
...

Example
Daisy Smith is an Australian citizen and is involved in two legal cases:

2
...

Workpoint
In which of these two cases would her Australian nationality be a
material fact?

If the ratio decidendi is the binding legal principle found in a case, then
what about the rest of the case? (Again, judicial decisions are often very
long!) Words in a case which do not outline the reason why the decision was made are called obiter dicta
...
A statement or
statements said in a case which do not form part of the ratio
decidendi but can be persuasive (not binding!) in other cases
...
g
...

• Legal discussion not directly related to the case itself
...
g
...

These statements are not binding following stare decisis but they can
be persuasive, e
...
if, after Mr A’s case, another client came to you with
a case in which a plumber broke a pipe, you could persuade a judge to
follow the obiter dictum in Mr A’s case in relation to plumbers
...

The higher the court, the more persuasive the obiter dicta will be
...

2
...
She sues Manchester City Council as she injured herself falling
down an uncovered manhole
...
g
...
To allow the doctrine of judicial precedent to
function, a court hierarchy was developed
...
The lower courts have to follow the
decisions of the higher courts
...

Superior

Superior

Binding

Never binding

Inferior

Inferior

• The rules governing whether or not a court binds itself are speciﬁc to
each court
...

• Stare decisis is applied more strictly in civil rather than criminal cases
...

2
...
The
criminal division is
slightly more flexible

Family Divisional Chancery Divisional
Appeals
Appeals
As these are appeals,
they follow the rules in
Young v Bristol
Aeroplane, the same
as the Court of Appeal

----------------------------------------------------------------------Queen’s Bench
Family
Chancery
Division
Division
Division
These courts are not
bound following strict
stare decisis but past
decisions are very
persuasive
Crown Court

County Court

Merely persuasive

Magistrates’
Court

Neither binding nor
persuasive

A simpliﬁed diagram of the court system

2
...
The points relating to whether a court
binds itself will be discussed in greater detail below
...

Workpoint
While we examine the details of whether courts bind themselves,
consider the advantages and disadvantages of strictly applying the
doctrine of stare decisis
...
)

2
...
3
...

The approach to precedent in the House of Lords now applies to the
Supreme Court
...

1966: Practice Statement [1966] 3 All ER 77 (not a case but a statement
of how the court regulates itself): ‘… Their Lordships … propose therefore
to modify their present practice and, while treating former decisions of
this House as normally binding, to depart from a previous decision when
it appears right to do so
...
When is this? No
extra guidance was given on this point
...
In the case of Jones v Secretary of State for Social Services (1972) 1 All ER 145, the majority of the Law Lords decided that
a past precedent relating to the interpretation of a statute was wrong
but refused to depart from it
...

21

• No wider issues of public policy are involved
...

• The decision was merely wrong
...
Note
also the issues discussed in
the Jones case above

R v G (2003) departed
from R v Caldwell
(1982)

The deﬁnition of
recklessness in
certain crimes

The law desperately
needed clariﬁcation and
the principles in Caldwell
had led to some very
harsh decisions (e
...
a girl
with learning difﬁculties
was judged on objective
standards – Elliott v C
(1983))
...
3 HOW THE DOCTRINE APPLIES TO INDIVIDUAL COURTS

• It should be Parliament that legislates to change the law
...
3
...
1 Some issues
The Practice Statement noted the danger of ‘disturbing retrospectively the
basis on which contracts, settlements of property and ﬁscal arrangements have
been entered into
...
If the Supreme Court often changes the legal principles relating to, for example, contract terms, then
those entering into long-term negotiations would not know which law
would apply to them (their legitimate expectations would be affected)
...

The Practice Statement also highlighted ‘the especial need for certainty as
to the criminal law’
...
However, note
the criminal case of R v Shivpuri which departed from a decision of one
year earlier relating to the Criminal Attempts Act 1981
...

Workpoint
Do you believe that the need for the law to be correct outweigh the
need for certainty?

The arguments for and against the existence of the Practice Statement
often fall into two camps:
Flexibility

v

Certainty

The law needs to
update as society
updates (see Miliangos)

The hierarchy of the courts and judicial
precedent operate on the basis that
the superior courts with the best
judges make deﬁnitive decisions

Incorrect decisions need
to be changed to avoid
injustice (see Shivpuri)

The best judges in the country should
not make mistakes
...

• The Practice Statement should be rewritten as it gives no guidance
and is too vague
...

Research Point
Try to ﬁnd more cases in which the Practice Statement has been used
...
3
...

The Court of Appeal (CA) is bound by its past decisions subject to
the exceptions outlined in the case of Young v Bristol Aeroplane Co Ltd
[1944] 2 All ER 293
...
Where two previous decisions of the Court of Appeal conﬂict with
each other
...
In this case the later court can choose which precedent to
follow, e
...
:
A CA decision of 2005

… conflicts with…

In a case on the same legal principle
heard in the CA in 2011 the Court can
choose which precedent to follow

A CA decision of 2005

2
...
g
...
3 HOW THE DOCTRINE APPLIES TO INDIVIDUAL COURTS

Write down some arguments (where possible supporting your points
with reference to case law) in favour of the following statements:

Supreme Court decision
2010

THE DOCTRINE OF JUDICIAL PRECEDENT

24

Conflicts with

CA decision 2009

In a case on the same legal
principle heard in the CA in
2011 the Court must follow the
Supreme Court decision

3
...
g
...
If the judgment overlooked
either a binding precedent or relevant statutory provision and,
due to this, the ﬁnal decision was incorrect
...

2
...
3 Issues relating the Court of Appeal
(Criminal Division)
It was stated above that strict adherence to stare decisis can be relaxed in
criminal cases
...

In the case of R v Simpson (2003) EWCA Crim 1499, Lord Woolf CJ
stated that in relation to the Court of Appeal (Criminal Division):
• Precedent can be followed in a less rigid manner, particularly if there
is likely to be no right to appeal
...

2
...
4 The High Court, Divisional Courts and
Judicial Precedent
These courts are bound by the decisions of the superior courts; the
Supreme Court and the Court of Appeal
...
That is:
• They are normally bound by their past decisions
...

• There is more ﬂexibility in criminal cases (heard in the Queen’s
Bench Divisional Court, also known as the Administrative Court)
...
3
...
1 The High Court
• This court is bound by the decisions of all courts higher than it
...

• It is not strictly bound by its own past decisions but these are highly
persuasive
...
3
...
2 The Crown Court
• This court is bound by the decisions of all courts higher than it
...

2
...
4
...

• These courts do not bind themselves (this would be very difﬁcult in
relation to court reporting)
...

25

2
...

THE DOCTRINE OF JUDICIAL PRECEDENT

26

2
...

However, the Human Rights Act s 2(1) places a duty on inferior courts
to avoid precedent if the superior court’s decision is not compatible
with a decision taken by the European Court of Human Rights
...

Workpoint
In the case of a conﬂict between the common law principles of stare
decisis and a statute, namely the Human Rights Act 1998, following
what was learned in Chapter 1 about sources of law, can you determine which takes precedence and why?

2
...
Only Parliament
makes the law
...
g
...

1
...
Legal principle
3
...

However, does judicial discretion not undermine Parliament’s role as
the supreme law-maker and the separation of powers? This area links to
sources of law in Chapter 1 and statutory interpretation in Chapter 3
...
6 Avoiding Precedents
Throughout this chapter we have discussed stare decisis, the doctrine of
binding precedent
...
Do you have to follow the legal principles in this case?
Following strict stare decisis, the answer would be yes
...

If it can be proved that key facts in Mr A’s case are sufﬁciently different
from Ms C’s (if, for example, Mr A’s building was domestic and Ms C’s
building was commercial), then the binding precedent can be avoided
...

Deﬁnition
Distinguishing: The process by which a past binding precedent
is avoided by proving that its material facts were sufﬁciently
different
...
6 AVOIDING PRECEDENTS

It can be said that judges, within the constraints of the doctrine of
precedent outlined above, do have some discretion in relation to the
decisions they make and can impact on the law’s development
...

Courts can also reverse a decision
...

For example, let’s consider a hypothetical case of Smith v Jones
...
This
extinguishes the precedent value of the lower court's decision
...
This involves more than one case eg:
Supreme Court The new
precedent Case B 2011
Past decision is
overruled

Decision reversed

Court of Appeal
Court of Appeal
Case A 2000
Case B 2010
Binding precedent followed

Checkpoint
Done

I can deﬁne the doctrine of judicial precedent
I can outline the necessary requirements for the doctrine
to function
I can deﬁne the different elements of a judgment
I know how courts bind each other in the court hierarchy
I know the rules relating to how courts bind themselves
I can analyse the advantages and disadvantages of precedent
I understand the impact the Human Rights Act 1998 has
had on judicial precedent
I can outline and evaluate the declaratory theory
I can deﬁne the terms distinguishing, reversing and
overruling

Potential exam questions
1) To what extent do judges make law?
2) What are the essential ingredients in a system of judicial
precedent?
3) Explain why it is important to distinguish between ratio
decedendi and obiter dictum
...

5) Explain, with reference to case law examples, the effect of the
Practice Statement of 1966
...
6 AVOIDING PRECEDENTS

Task

29

Statutory Interpretation
3
...
Following the doctrine of the
separation of powers, all judges should do is apply the law created by
Parliament
...

• These rules are expressed in words
...
However…
Imagine a law controlling access to parks stating: ‘Men with beards or
moustaches cannot enter public parks’
...

The defendant was caught bombarding a large commercial website
with emails which eventually took the site ofﬂine temporarily
...
Guilty or not guilty?

A statute may be drafted in a way which does not foresee potential
technological developments
...

Under equality legislation, service providers are ‘required to make their
services accessible to disabled people’
...
Is the website a service?
A statute may be drafted too broadly to be sufﬁciently clear
...
The relevant statute bans ‘vehicles’ on pavements, the deﬁnition of ‘vehicle’ speciﬁcally includes ‘moped and
motorcycles’ but excludes ‘bicycles’
...

Those who draft legislation are simply human and can sometimes get
things wrong
...

If the role of the judge is simply to apply the law to give light to the
aim of Parliament and this is difﬁcult to determine, then what does a
judge do?
If he or she looks beyond the statute, is this not ‘making law’ and undermining the role of Parliament?
If the statute is clear the judge

Interprets
the law

If there is an ambiguity in the
statute the judge

Constructs
(determines
the meaning
of) the law

3
...
The relevant statute has a list of substances
which are very similar to Oxi but it is not speciﬁcally referred to in the
statute
...
2 The Three ‘Rules’
So how do judges approach statutes? Three ‘rules’ have been identiﬁed:
1
...
The golden rule
3
...

Ironically, in this context the word ‘rule’ is ambiguous
...

As Lord Reid states: ‘They are not rules in the ordinary sense of having
some binding force
...
They are
aids to construction, presumptions or pointers
...
In each
case we must look at all relevant circumstances and decide as a matter
of judgment what weight to attach to any particular “rule”
...

Case:
Whiteley v Chappell
(1868)

The relevant statute made it a crime
to impersonate people ‘entitled to
vote’
...
The court found
that as dead people cannot vote
the defendant was not guilty
...
The words of
the statute are given their plain, ordinary meaning but if this
results in an absurdity, then the statute can be interpreted to
avoid this absurdity
...

Case:
The defendant married a woman while his
ﬁrst wife was still alive
...

Any bigamous marriage is automatically
void ab initio, i
...
never a marriage at all
...
The court decided that ‘marry’ could
also mean ‘go through the ceremony of
marriage’ to ﬁnd that defendant guilty
...

Case:
Re Sigsworth
(1935)

A son murdered his mother
...
The statute stated
that where there was not a will, the next
of kin would inherit
...
On a literal interpretation, the
son would inherit, but the court found this
repugnant and took a ‘golden rule’ approach
to interpret the statute to state that an
‘issue’ could not inherit when he or she had
killed the benefactor
...
If Parliament had wanted this
result, would it not have included it in the statute? However, is it likely
that Parliament did not foresee such a situation?

3
...
Following this approach, the judge will:
1
...

2
...
e
...

3
...

Case:
Smith v Hughes
(1960)

The Street Offences Act
1959 made it an offence to
‘loiter or solicit in a street or
public place’
...
On a literal
interpretation, would they be
guilty? The court determined
that the mischief was the
molestation of people on the
streets and interpreted the
statute in the light of this to
ﬁnd the defendants guilty
...

See 3
...

3
...
In Chapter 1 we highlighted the
difference between common law and civil law systems
...
This particularly applies
when interpreting a statute in the light of EU law
...

Case:
R v Registrar
General, ex p Smith
(1991)

The applicant was a convicted murderer
detained in a high security psychiatric
hospital who wanted to obtain his birth
certiﬁcate and learn the identity of his
mother
...
It was determined that the
applicant could pose a danger to his mother
...
Therefore, despite
the words of the statute, they ruled that the
Registrar did not have to supply the birth
certiﬁcate
...
How do they know the general aims of the statute?

Research Point
Increasingly statutes are published with Explanatory Notes which
may outline the general aims of the law
...

35

3
...

STATUTORY INTERPRETATION

36

Text-based approaches

Contextual approaches

These focus on the words

These look beyond the act

The literal rule – give the words
their plain and ordinary meaning
...
Interpret the statute
in the light of this mischief
...
Interpret the
statute in the light of this
...
4 Evaluating the Rules
Text-based approaches
(Literal and Golden Rules)
Pros of text-based approaches
• Allow judges to fulﬁl their constitutional role of simply applying the law
...

• Statutes are rules, rules are made up of words, all the judges have is
the words, this is all they should apply
...

• Statutes may be ambiguous, out-of-date, too broad or incorrectly
drafted
...

• If statutes are clear and the words easy to apply, then why do we need
judges at all, couldn’t computers do the job just as well?
Figure continued overleaf

Contextual approaches
(Mischief Rule and Purposive Approach)

Cons
• Give judges far too much power and allows them to second guess the
intention of Parliament and ‘make law’
...

• When do judges decide to look at the context of the Act–always?
When the result does not match their own notion of what is correct?

3
...
Due to this, a number of legislative
shortcuts have been identiﬁed to aid the drafting and interpreting of
legislation
...

Deﬁnition
Ejusdem generis: ‘Of the same kind’
...
There needs to be more than one speciﬁc
word
...

Case:
Powell v Kempton
Park Racecourse
(1899)

The statute prohibited keeping a ‘house,
ofﬁce, room or other place for betting’
...

Was it covered by the statute? Answer:
no, as the speciﬁc places referred to in
the statute are all indoors
...
5 RULES OF LANGUAGE

Pros
• Words may not always express intention; there is a need to look
beyond words to give light to the intention Parliament effectively
...

• The purposive approach is a more modern approach to statutory interpretation and puts us more in line with European countries and
the EU
...
It allows a statute to
cover similar situations or areas which may not have been foreseen at
the time of drafting
...

Workpoint
Create your own example of the use of ejusdem generis and try to
determine how to interpret the general words
...
Would an alarm
clock fall into the general category? A hairdryer? A kettle?

Deﬁnition
Expressio unius est exclusio alterius: 'The mention of one thing
excludes others
...

Case:
Tempest v Kilner
(1846)

The statute applied to ‘goods, wares and
merchandise’, therefore it did not apply to
stocks and shares
...

This rule demonstrates why ejusdem generis is often used to provide a
‘catch all’ in case of future developments
...
'
Interpret a term in the light of words which accompany it
...
The
court had to determine whether a cloth
bag was a ‘case’ and decided it was not, as
the word's company was ‘canister’ and this
denoted a hard carrier, not a soft one such
as a cloth bag
...
6 Presumptions
When judges interpret any statute, they do so in the light of certain
accepted presumptions
...

Some presumptions are illustrated below:

Against change to the common law
Any change to the common law should be expressly stated in a
statute
...

Against binding the Crown (the State)
If a statute does not expressly state that the Crown is bound then it
is not
...

Against retrospective application of legislation
Imagine if a statute is passed today which makes it illegal to own a
mobile phone but states that this applies to the 12 months prior to it
coming into force
...
This presumption is rebutted in, for example,
the War Damage Act 1965
...

Against legislating in a manner incompatible with the ECHR
and the EU treaties
The UK operates under its international duties and it is presumed
that Parliament will not seek to create statutes which conflict with
obligations entered into under the ECHR and the EU treaties
...
6 PRESUMPTIONS

Think of words which can have different meanings in different contexts
...
In context it can mean different things,
e
...
‘match and lighter’ or ‘match and game’
...
7 Intrinsic and Extrinsic Aids to
Interpretation
Remember that the role of judges is to give light to the intention of
Parliament
...

3
...
1 Intrinsic (internal) aids
These are part of the Act itself and include:
• Long title
• Short title
• Preamble (note: remember how this could aid the mischief rule)
• Headings
• Schedules
...

3
...
2 Extrinsic (external) aids
These are found outside of the statute itself
...

These include:
• Previous Acts of Parliament on the same topic
• The historical setting
• Earlier case law
• Contemporary dictionaries
• The Interpretation Act 1978 – this includes rules such as ‘he’ includes
‘she’ and singular includes plural
...

3
...
3 Explanatory notes
• Since 1998, Bills are printed with Explanatory Notes
...

Workpoint
Which rule(s) to statutory interpretation would make use of
Explanatory Notes and which would not?

3
...
4 Hansard
Deﬁnition
Hansard: An ofﬁcial word-for-word record of what is said in the
proceedings and debates in Parliament
...
parliament
...
Find a debate on a recent Bill
...
What reading of the Bill have you found? Are the
statements clear?

Workpoint
Can you think of how Hansard could be useful to a judge trying to
interpret a statute in which there is a perceived absurdity?

3
...
4
...
Admits: ‘I do it anyway’
1992: Pepper v Hart (1993)
The rule against the use of Hansard is relaxed in the following
circumstances:
• When a statute is found to be ambiguous; and
• The statement in Hansard is made by the relevant minister or
promoter of the Bill; and
• This statement is clear
...
7 INTRINSIC AND EXTRINSIC AIDS TO INTERPRETATION

• There is no deﬁnitive rule as to whether these can be used but, for
example, in the Fraud Act 2006, the Government allowed an important principle to be included in the Explanatory Notes and not the
Act itself
...
7
...
2 Use of Hansard
Points in favour:
• If it is only used in the specified circumstances to resolve a
specific ambiguity, then it sheds light on Parliament’s intention
and helps judges to do their job
...

Points against:
• Blurs the separation of powers: judges look beyond the statute
and second-guess Parliament
...

• Hansard is merely words – these words will also need
interpretation!
• Do Parliamentary debates fully represent the views of Parliament?
Shouldn’t statutes do this?

3
...
5 Law Reform Reports
These could not be used until 1975 (decided in Black-Clawson International Ltd v Papierwerke etc
...

In Black-Clawson it was stated they could be used to determine the mischief a statute was passed to remedy
...

Some cases in which the courts have not referred to Law Reform Reports for clariﬁcation have been criticised, e
...
R v Caldwell (1981) and
Anderton v Ryan (1985) (remember these cases in relation to judicial
precedent in Chapter 2)
...
7
...
g
...

In Fothergill v Monarch Airlines Ltd (1980), it was held that even preparatory material and explanatory notes relating to the convention could
be consulted
...
8 The Impact of the Human Rights
Act 1998
Section 3 of the Human Rights Act 1998 states: ‘So far as it is possible to
do so, primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights’
...

Case:
Mendoza v Ghaidan
(2004)

The approach was taken to interpret
the words ‘as his or her wife or
husband’ to apply to a same-sex
couple, achieving a result which was
more compatible with the ECHR
...

3
...

Checkpoint
Task

Done

I know why statutory interpretation is needed
I know the three rules to statutory interpretation and
can give examples of their use
I understand the purposive approach and can give
examples of its use
I can evaluate the advantages and disadvantages of
the rules
I understand the rules of language and when they
are used
I know which intrinsic and extrinsic aids to
interpretation can be used
I know the arguments for and against the use of
Hansard
I know how the Human Rights Act 1998 has impacted
statutory interpretation

Potential exam questions
1) Explain, with reference to case law examples, which you believe
to be the most effective rule of statutory interpretation
...

4) What are the presumptions of statutory interpretation?
5) What was the impact of the case of Pepper v Hart on the interpretation of statutes?

Civil Courts
4
...

Remember that:
• Whether a case’s subject matter is criminal or civil will decide which
court hears a case
...
g
...
Try to link this back into your understanding of stare decisis
...

• There is also a system of tribunals covering certain legal areas
...
1
...
Orders
injunction/makes a
declaration or special
remedies for contract law
Judgment = ‘For the claimant’/
‘for the defendant’

Some branches of civil law: land law, employment law, company law and
the law of tort

CIVIL COURTS

46

Regulates behaviour, determines
guilt, imposes penalty
Defendant is prosecuted by
Heard in Magistrates’
the state through
Court/Crown Court
Crown Prosecution Service
at first instance

Standard: beyond
reasonable doubt

Criminal law

R (the State) v (spoken:
‘against’) defendant

Decisions made by
magistrates or jury

Judgment = Guilty/not guilty

Sentences include imprisonment/fines/community
sentences (compensation can also be awarded)

Workpoint
In each of the following short scenarios outline whether or not the
case would be criminal or civil or both and then state:
• Who would bring the case
...

• The potential outcome of the case
...
Mr Blyth has been unfairly dismissed from his job
...
Mr Blyth got into a ﬁght in a bar and punched a man in the face
...
Mr Blyth was driving without paying full attention and crashed
into a car causing whiplash injuries to the two passengers
...

4
...
2 Superior courts and inferior courts
Workpoint
Before studying this section take a look back at the simple diagram of
the court hierarchy at 2
...

Inferior courts
(hear less serious cases)
(High Court can quash their
decisions)
County Courts
Magistrates’ Courts

4
...
3 Civil appellate courts and trial courts
Deﬁnition
Trial courts/courts of ﬁrst instance: The court in which the case
is heard for the ﬁrst time
...

Type of court

Type of case heard

Supreme Court

Appellate only

Court of Appeal

Appellate only

High Court Divisional Courts

Appellate only

High Court

First instance and appellate
(e
...
in cases which were
heard by a Circuit Judge
in the County Court fasttrack)

County Court

First instance and appellate
(post-Woolf Reforms in
relation to small claims and
fast-track cases)

47

4
...
2 Civil Courts of Trial
4
...
1 The High Court
The High Court at ﬁrst instance
Queen’s Bench

Chancery

Family

Contract and tort

Corporate insolvency
Personal insolvency
Intellectual property,
copyright, patents
Trust

Matrimonial cases/
divorce
Wardship and
adoption cases
under the Children
Act 1989

Three Special Courts:
Commercial Court
Insurance/banking
(simpler procedure)
Admiralty Court
Shipping
(two lay assessors sit
to advise judge)
Technology and
Construction Court
(building, engineering,
computing)
The biggest division

One Special Court:
Companies Court –
winds up companies

Non-contentious
probate, cases under
Child Abduction and
Custody Act 1985

No juries, cases heard
by a single judge

4
...
2 The County Court
County Court
Contract

Tort

Claim on the
recovery of land

Proceedings under the
Children Act 1989

Under £30,000 only for the cases below
Trusts

Mortgages

Dissolution of
partnerships

Contentious probate

4
...
3 The Track System

£0
£1,000 – limit for personal injury and housing
Small claims track
Usually only one hearing, judge has ﬂ exibility, heard in County Court
£5,000
Fast-track
All cases heard in the County Court
Can include simpler cases for a higher amount
Aim: cases heard within 30 weeks, hearing length 1 day, only 1 joint
expert witness, no ﬁ xed costs
£25,000+
Multi-track
Can include complex cases for a lesser amount
Can be started and heard in either County Court or High Court
Judge can set timetables for pre-trial procedure
Personal injury cases of less than £50,000 must be started in the
County Court
£50,000

4
...
3
...
3 Civil Procedure Rules (CPR)
Value of the claim or disputed amount
Convenience/fairness
Availability of specialist judge
Complexity
Public interest
Disability access issues

49

4
...
It
is worth £500 and you wish to make a claim to gain compensation
...
direct
...
uk website and ﬁnd out:
• How you could access mediation
• How the hearing will be conducted
• How much you would have to pay
...
2
...
2 CPR Practice Direction
The cases involving the following issues should not usually be transferred to the County Court:
• Professional negligence
• Fatal accidents
• Allegations of fraud
• Defamation
• Malicious prosecution or false imprisonment
• Claims against the police
• Contentious probate
...
3 The Civil Justice System: Problems!
Key issues:
Expense
and
delay

Leading to

Stress, anxiety, financial hardship for claimants
Pressure to accept low offers
A detrimental impact on evidence available
Unacceptable gaps between compensation and need
Public dissatisfaction

Reforms were suggested in the Heilbron-Hodge Committee (1993)
which was built upon by the subsequent Woolf Report
...
4 The Woolf Report

51

• Interim Report (1995)
• Final Report Access to Justice (1996)
• Recommendations:
• Creation of the track system

Creation of Civil Procedure Rules to:
create fairness, save money, speed up
the process, ensure proportionality in relation
to cost, importance, complexity and equality
between the parties
See 4
...
3
Specific
rules for case
management and
pre-action protocols
Both claimant and
defendant can make
offers to settle

The Woolf Report led to…

Encouragement of Alternative
Dispute Resolution

The setting of strict
timetables

A penalty for avoiding Alternative Dispute Resolution (ADR) can be
incurred but this can be avoided if deemed appropriate on an examination of the relevant factors:
• Nature of dispute
• Merits of the case
• Other attempts to settle
• Cost of mediation
• Delay
• Potential success of mediation
...

4
...

Summary judgment: Where the defendant has ﬁled the correct
documents within the given time but the defence masks the
true defence
...

Lord Woolf believed a civil justice system should be…
• Just • Fair • Able to offer appropriate procedures
• Certain • Effective • Adequately resourced
• Cost effective • Accessible and understandable
• Able to give judgments with reasonable speed

Has this been achieved?
Some research
Goriely et al
...
However, in some areas costs
rose, cost:damage ratio was the same as pre-Woolf, overall settlement
time was the same as pre-Woolf (13 months) but the minimum time was
longer due to procedural issues
...

Other issues
Lord Woolf highlighted the need for an efﬁcient IT system but Brooke
(2008) states that there is not enough funding in effective IT
...

This led to Lord Justice Jackson’s recommendations which will focus on
the system of costs and procedural issues
...
5 Enforcement of Judgment

Taking control
of goods

Attachment of earnings –
order to the debtor’s employer

Powers of
enforcement

Bankruptcy
proceedings

Third-party debt orders
e
...
over a bank account or a
party owing money to the debtor

However, many judgments still remain unpaid!

4
...

4
...
1 Administrative tribunals
• Created by statute
...

• Employment tribunals lie outside of the new uniﬁed framework below
...

4
...
2 Tribunals, Courts and Enforcement
Act 2007
This builds on the Leggatt Report (2001) and leads to a simpliﬁed,
uniﬁed framework
...
6 TRIBUNALS

What happens when one of the parties refuses to pay a court-ordered
payment?

53

CIVIL COURTS

54

4
...
2
...
It includes the
following Chambers:
• Social Entitlement
• Health, Education and Social Care
• War Pensions and Armed Forces Compensation
• General Regulatory
• Taxation
• Land, Property and Housing
• Asylum and Immigration
Upper Tribunal
The appellate tribunal

Judicial Review
to the Queen’s Bench
Administrative Court

It includes the following Chambers
(the cases heard correspond to the
formatting of the legal areas):
• Administrative Appeals
• Tax and Chancery
• Lands
• Asylum and Immigration
The Court of Appeal

4
...
3 Composition and procedure
A tribunal judge sits, sometimes aided by two lay members with relevant
and balanced expertise
...
6
...
It:
• Reviews the work of tribunals
...

• Reports on and considers any other relevant matters
...
6
...
Greater use
of lay members may address this

Simplicity
Usually more informal and
held in private

Those self-representing may ﬁnd
the venue unfamiliar and the
procedure confusing due to its
unstructured nature
The role of the judge, particularly in an
inquisitorial role, is open to criticism

4
...
6 Domestic tribunals
Deﬁnition
Domestic tribunals: ‘In-house’ tribunals set up by private bodies,
e
...
to regulate professions or organisations such as universities
...

4
...
Carry out some research
(the Direct
...

• How you would go about submitting a claim
...

4
...

Checkpoint
Task
I understand the difference between civil and
criminal law
I can outline the different types of court in the civil court
system
I can state which type of cases will be heard in which civil
courts
I understand the County Court’s Track System and why it
is necessary
I know the recommendations of the Woolf
Report
I can evaluate how the civil court System
could be improved
I can outline the nature of the tribunal system
I can evaluate the advantages and disadvantages of the
tribunal system
I understand ADR and can evaluate the advantages and
disadvantages of arbitration

Done

57

4
...
This is quick, informal and
private but workers must waive their right to access the Employment
Tribunal
...

2) Describe the courts in the civil court system and outline the
types of cases they hear
...

4) Describe the tribunal system and analyse its advantages and
disadvantages
...

Criminal Courts and
Procedure
5
...
This chapter
focuses upon the roles of:
• The police
• The Crown Prosecution Service (CPS)
• The criminal courts
...

5
...

CRIMINAL COURTS AND PROCEDURE

60

5
...
3
...
g
...

Key focus = likelihood of conviction not the guilt of the defendant
...
3
...
Discontinuance rates improve but over 1 in 8 cases are discontinued

Workpoint
Describe the development and role of the CPS
...
cps
...
uk and discover:
• How you become a CPS lawyer
...

• If you would like to be a CPS lawyer
...
4 Advance Sentence Indication
This is not plea bargaining!
Deﬁnition
Plea bargaining: Where the defendant pleads guilty in exchange for a reduction in sentence or pleads guilty to a lesser
offence on the same facts
...

It beneﬁts the prosecuting agencies but may:
• Create a feel of injustice for the victim/victim’s family
• Lead to over-charging
• Put pressure on the defendant to accept a bargain
...
4 ADVANCE SENTENCE INDICATION

Timeline

61

CRIMINAL COURTS AND PROCEDURE

62

Research Point
In January 2011 Lord Goldsmith called for the use of plea bargaining
in the application of the Bribery Act 2010
...

Deﬁnition
Advance Indication of Sentence: Where the defendant instructs
counsel to seek an indication from the judge of the maximum
sentence which could be imposed if a guilty plea is entered
...

Following on Advance Indication of Sentence:
1
...
This sets out the facts on which
a guilty plea would be entered
...
The judge may:
3
...

This procedure is not followed in the Magistrates’ Court
...
5 Courts Exercising Criminal Jurisdiction
There is no single trial court and no single appellate court
...
6 Appellate Courts
The Court of
Justice of the European
Communities
References on criminal
issues

The Judicial Committee
of the Privy Council
Final appeal court for overseas
territories, Crown dependencies
and Commonwealth countries which
retain appeal to the UK court system
Leave granted only in exceptional
circumstances
Figure continued overleaf

Supreme Court
Points of law/public importance

Appeal by way of case stated (on a point of law)

Crown Court
Trials on indictment

Magistrates’ Court
All criminal cases start here

Appeal against conviction or sentence

5
...
7 CRIMINAL COURTS OF FIRST INSTANCE

High Court
Administrative Court (Queen’s
Bench Divisional)

Court of Appeal
Criminal Division

63

CRIMINAL COURTS AND PROCEDURE

64

There are two types of magistrate:
Lay magistrates

Stipendiary magistrates

Also known as Justices of the
Peace

Now known as District Judges

Generally not legally qualiﬁed

Will have been solicitors or
barristers for at least seven years

Unpaid

Salaried

Volunteers from the local area
Have some training
Supported by a qualiﬁed court clerk
Part-time

Full-time

Approx
...
100 plus deputies

5
...
g
...
g
...
g
...
Some issues:
• These offences have no automatic ‘home’ in either court
...

However, leave may be
granted if the jury are
not properly directed

The Magistrates’ Court
Advantages
Maximum sentence is lower
Less publicity/interest
No leave required to appeal
to the Crown Court
Reasons required therefore
easier to discover error

Disadvantages
On a not guilty plea,
conviction rate is higher

65

5
...

Defendant can request an indication of sentence which is given at the
Magistrates’ discretion
...

5
...
This has not become law
...

The Auld Report did, however lead to:
The Criminal Justice Act 2003
Key sections outlining trial without jury

Section 43
In serious or complex fraud cases
If the trial is burdensome as to prejudice
the interests of justice

Section 44
Where there is a substantial
risk of jury tampering

Checkpoint
Task
I can outline the nature and role of the CPS
I know how the CPS decides whether a case should
proceed
I know the history of how the CPS developed to
prosecute the majority of crimes
I understand the nature of the criminal court system
and the role of each court
I know the system of appeals in the criminal court
system
I can deﬁne the terms summary, either way and
indictable and I know which courts hear which type
of case

Done

Checkpoint (continued)
Done

I understand the approach taken in relation to where
offences triable either way will be heard
I understand the advantages and disadvantages of both
summary trials and trials on indictment
I know the circumstances in which trial by jury can be
denied

Potential exam questions
1) Describe how the Crown Prosecution Service functions
...

3) Deﬁne the Magistrates’ Court and Crown Court and analyse
the relationship between the two
...
9 THE ‘RIGHT’ TO TRIAL BY JURY

Task

67

Appeals
Lord Woolf: Access to Justice (1996)
The aims of the appeals system

Private: Justice for individuals

Public: Supporting public confidence
Clarifying/developing the law

6
...

Access to Justice Act 1999
(provides a framework alongside the Civil Procedure Rules)
• In a civil case the right to an appeal is not automatic
...

Appeals heard

High Court

Hears appeals in the Divisional Court

Court of Appeal (Civil Division)

Hears civil appeals from the multi track

Supreme Court

Hears appeals in civil cases from
England, Northern Ireland and Scotland

Privy Council

Civil appeals from the Commonwealth
Hears devolution issues

Remember: The European Court of Justice (ECJ) does not hear appeals
but answers references on questions of European Union law
...
8
...

The Appeal Court will review the decision of the lower court and
grant leave if:
The decision of the lower
court is wrong

The decision was unjust
due to serious procedural
or other irregularity
...

• Affirm
• Set aside
• Vary the lower court’s order or judgment
• Refer a claim for determination by the lower court
• Order a new trial
• Make a costs order
...

69

6
...

Court of Appeal
(Civil Division)

*High Court judges may sit

*Judges sit in threes but can sit in
ﬁves for important cases

*There are usually four or
ﬁve courts each day
*Twelve Justices of the
Supreme Court sit

*Created in October 2009 to
replace the Appellate Committee
of the House of Lords
...

Deﬁnition
Leapfrog appeal: A civil appeal from the High Court can bypass
the Court of Appeal and go straight to the Supreme Court, e
...

Supreme Court
Court of Appeal (Civil)

Leapfrog

High Court
This can happen if the trial judge ﬁnds:
• A point of law of general public importance is involved
...

• The Supreme Court gives leave (permission) to appeal
...
See if you can ﬁnd any similarities
in these cases
...
jcpc
...
uk and ﬁnd out more about:
• its role
• its powers
• the amount and kinds of cases it hears each year
...
2 Appeals in Criminal Proceedings
Court

Appeals heard

Crown Court

Hears appeals on fact and sentencing
from the Magistrates’ Court
continued overleaf

6
...

APPEALS

72

Court

Appeals heard

High Court

Appeals by way of case stated heard
at the Administrative Court (Queen’s
Bench Divisional)

Court of Appeal

Criminal Division hears appeals from
the Crown Court

Supreme Court

Hears appeals from English courts and
Northern Ireland

Privy Court

Appeals from the Commonwealth
where special leave has been granted
...
See 1
...

6
...
4 Defence Appeals
The mode of appeal is always governed by the place of the original trial
...

This is known as ‘by way of case stated’
...
Appeal is possible to the Supreme Court if a point of law of
general public importance is involved and leave is obtained from either
court
...

6
...

• This point is one which should be considered by the Supreme Court
...

s 4: The court has discretion to hear new evidence
Crown Court Trial on indictment

6
...

justice
...
uk website
...

2) Outline the system of civil appeal courts and how leave to
appeal is granted
...

4) Explain and evaluate the impact of the Criminal Justice Act
2003 on the criminal appeals system
...
5 THE CRIMINAL CASES REVIEW COMMISSION

How effective do you believe the Criminal Cases Review Commission is
in ensuring that justice is achieved?

Funding
7
...
citizensadvice
...
uk
• The Legal Services Commission – www
...
gov
...
asp
A very important issue in relation to access to justice is the cost
...

• Bringing a complaint against the police
...

Did you ﬁnd any key themes? Did your respondents know how to
access legal advice? Did any of them state that they would not pursue
the issue due to time and/or cost? Can you make any conclusions on
how accessible the legal system is?

7
...
2 PUBLIC FUNDING

Ask three people you know who have not studied the legal system
how they would go about:

FUNDING

78

Civil matters
• Direct money where most needed
• Ensure fairness
• Provide value for money
• Have a controlled, affordable budget
White Paper: Modernising Justice Cm4155 1998
Recommendations
Criminal matters
• Balance: protection of defendants versus value for money
• Fairness needed
• Impartial defence needed
• Confidence in the system needed
• PACE s 58(1) enshrines right to consult a solicitor
• ECHR Art 6(3) includes right to legal assistance

This White Paper led to:
The Access to Justice Act 1999
• Establishes the Legal Services Commission with two services:
• Civil: Community Legal Service
• Criminal: Criminal Defence Service
• Government-funded with an annual fixed amount
• Criminal cases can be funded from any civil case surplus
• s 8: Criteria for funding civil cases
• Schedule 3: Criteria for right to representation in criminal cases
• s 13(2) The Commission is given the power to employ
lawyers
...
3 The Legal Services Commission
Contracts with solicitors’ firms and not-for-profit agencies
Pre-1999 = Approx
...
4 Public Funding in Civil Matters
7
...
1 Limitations on funding
Level

Covers

Does not cover

Legal help

Advice

Issuing/conducting
court proceedings

Help at court

Advice and advocacy at
court

Formal legal
representation

Legal representation

All aspects of the case

Support funding

Partial funding in cases
being pursued privately

Approved family
help

Advice, negotiation,
issuing of proceedings,
required conveyancing

Family mediation

Cost of mediation to
resolve a family dispute

7
...
2 Criteria
Section 8 Access to Justice Act 1999:
• Cost
• Beneﬁt
• Availability of funds
• Importance to the individual
• Availability of other (non-funded) services
• Prospects of success
• Conduct of the individual
• Public interest
• Other factors as the Lord Chancellor may order to be considered
...
4 PUBLIC FUNDING IN CIVIL MATTERS

Outline how the Legal Aid System developed
...
Help will only be given where there is sufﬁcient beneﬁt to the client
...
4
...
g
...

Full representation will be refused if a conditional fee agreement is
likely to be available
...
This could lead to higher fees
• Sometimes clients are not referred to appropriate
advice providers
• Some advice can be poor or even damaging
• [ECtHR] Steel and Morris v UK (App No 6841/01):
Denial of Legal Aid in defamation cases infringes
Art 6 of the ECHR

Legal Aid reform
In June 2011 the Government introduced the Legal Aid, Sentencing and
Punishment of Offenders Bill for its ﬁrst reading in the House of Commons
...
If these proposals become law
they will have a signiﬁcant impact on access to civil Legal Aid
...
4 PUBLIC FUNDING IN CIVIL MATTERS

A prospect of success

81

FUNDING

82

Workpoint
Outline, with reference to the law, how legal aid can be gained in
civil cases and the potential impact of the Legal Aid, Sentencing and
Punishment of Offenders Bill
...

legalservices
...
uk/criminal/legal_aid_reform
...
Summarise the
key changes to be implemented in relation to crime remuneration
for legal aid
...
5 The Criminal Defence Service
The right to legal representation is a basic human right enshrined in
Article 6 ECHR
...
The likelihood of loss of liberty or serious damage to reputation
...
Whether a substantial point of law will arise
...
The capacity of the individual to understand the case
...
The likelihood of the need for tracing, interviewing or expert crossexamination
...
If it is in the interests of another person that the individual is represented
...
5 THE CRIMINAL DEFENCE SERVICE

Advice and assistance

FUNDING

84

Research Point
Analyse why it is a human right that representation is available in
criminal cases
...
6 The Legal Profession and Public Funding
The number of legal aid solicitors has decreased (in 2011 only 6% of
lawyers undertook legal aid work)
...

R (Law Society) v Legal Services Commission and Dexter Montague (A ﬁrm)
v Legal Services Commission [2007] EWCA Civ 1264:
• A challenge was successful in relation to the changes to contracts for
legal aid work
...

7
...
1 Reform
7
...
1
...

This could lead to fewer ﬁrms providing legal aid services and the increased potential for ‘advice deserts’
...
7 Private Funding
Paying for legal advice and
representation can be:

Costly

and

Unpredictable

This led to the introduction of Conditional Fee Agreements (CFAs)
...
5%
success fee on out-of-court settlements and 100% if the case goes to
trial
Some claims ﬁrms which relied on CFAs went into liquidation despite
initial success

After-the-event insurance is also available
...

The premium has to be paid before the case begins
...

7
...
2 above)
...
8 ADVICE AGENCIES

Conditional Fee Agreements: An agreement made by the
lawyer and client that a success fee will be paid to the lawyer if
the case is won
...

85

FUNDING

86

However:
• Sometimes these agencies ﬁnd themselves in direct competition
• These agencies are encouraged to gain a Quality Mark (see 7
...

Citizens’ Advice Bureaux
• Set up in 1938
• Around 2,000 offices
• General advice on social welfare, debt and also legal advice
• Increased caseload due to legal aid shrinkage
• Experiencing difficulty in finding appropriate lawyers for clients

Free legal services
Law Centres
Accessible
Focus on areas with a lack of solicitors
Deﬁnition
Pro-bono work: ‘for the public good’
...
Many law schools have successful,
supported pro-bono schemes
...

Checkpoint
Done

I know how funding and knowledge impact access to
justice
I understand how the legal aid system developed
I understand the impact of the Access to Justice Act 1999
I know the role of the Legal Services Commission and the
services it provides
I know which types of civil cases will be eligible for legal
aid
I know how the Criminal Defence Service functions
I know key issues relating to private funding of legal cases
I know how other agencies can aid people to access
justice

Potential exam questions
1) Outline how issues of funding impact on access to justice and,
in the light of this, describe the development of the legal aid
system
...

3) Outline which types of civil case are eligible for legal aid
...

5) Critically analyse the impact of recent reforms to the legal aid
system
...
8 ADVICE AGENCIES

Task

87

Juries
8
...
Juries become usual method for the trying of criminal cases
The role of juries develops with a focus on local knowledge
rather than decision-making
Late 1400s Role of juries becomes akin to independent assessors and
deciders of fact
1670 Bushell’s Case (1670) Vaughan 135: Juries are the sole arbiters of
fact, a judge cannot challenge their decision
1960 [CA] R v McKenna [1960] 2 All ER 326: Judges cannot put undue
pressure on a jury

Court

Crown
Court

High Court
Queen’s
Bench
Division

County
Court

Coroner’s
Court

Number
of jurors

12

12

8

7–11

When
used

In all
trials

Rarely
...
In
cases of
defamation,
false
imprisonment
and malicious
prosecution

In certain
cases in which
deaths occur in
custody, where
police ofﬁcers
are involved or
which occurred
in certain
accidents

Role

Decide
guilt

Decide
liability and
amount of
damages

Decide
liability and
amount of
damages

To determine
the cause of
death

Workpoint

89

8
...

8
...
If you were developing a legal system
from scratch, would you include jury trials? If so, for what type of
cases would you envisage that they would be used?

JURIES

90

Disqualiﬁcation (continued)
For 10 years
Those who have:
• Served a term of imprisonment in the previous ﬁve years
• Had a suspended sentence passed on them
• Had a community order or other community sentence passed on them
...

Excusal
• Pre-April 2004 judges, lawyers and police were not eligible
...

• Since April 2004 judges can serve but should do so as a private
citizen, declare any links to court staff and follow the directions of
the trial judge
...
Reasons include:
•
•
•
•
•

Illness
Disability access issues
Being a mother of a small baby
Examinations
Urgent business commitments
...

• The eligibility of police and lawyers has been questioned as a potential breach of Article 6 ECHR following:
• R v Abdroikof [2007] UKHL 37
• R v Green [2007] UKHL 37
• R v Williamson [2007] UKHL 37
...
If there is,
a conviction can be quashed or a re-trial ordered
...
Thomas, Diversity and Fairness in the Jury System (2007)
Ministry of Justice Research Series
...

• The only under-represented groups were those in lower socioeconomic groups and unemployed people
...
3 Selection at Court
8
...
1 Jurors
Jurors:
• Are selected randomly by computer from the electoral register
...
If the case will be much longer,
warning is given
...

• Can be discharged due to disability under s 9B(2) of the Juries Act
1974
...

• Are given an information leaﬂet pre-trial
...

8
...
1
...

There are two types of vetting

Where routine police checks
eliminate those who are
disqualified:
R v Mason (1980) 3 All ER 777
Held: this form of vetting was
merely reventing the crime of
acting as a juror while disqualified

Check on background and
political convictions:
Practice Note (Jury: Stand By:
Jury Checks) (1988) 3 All ER
1086: This should only be used
with the AG’s permission in
exceptional cases which involve:
• National security with evidence
given in secret
• Terrorist cases
Figure continued overleaf

8
...
Did
you believe it achieved justice? If no, would you like to sit as a juror?
Would you think that your input would lead to justice being achieved?

15 jurors are initially put into a group

JURIES

92

Of these, the court clerk chooses 12 at random

The prosecution and defence can then challenge in two main ways

To the array
s 5 Juries Act 1974 Challenge
on the basis that the jury is
unrepresentative or biased

For cause
Challenges the right of an
individual juror to sit if, for
example, they are disqualified
or related to the defendant

Deﬁnition
Right to stand by jurors: The prosecution’s right, after the vetting procedure, to put a juror at the end of the list of potential
jurors so it is unlikely that they will be used
...

Workpoint
Explain the process by which a jury is selected at court
...
4 Juries in Civil Cases
Remember that juries in civil cases not only decide who wins but also
set the level of damages
...

• However, they are retained and managed under s 66 County Courts
Act 1984 and s 69 Senior Courts Act 1981
...

Unless the case would involve a prolonged investigation of evidence
which could not be made ‘conveniently’ by a jury
...

• After some very large awards of damages made by juries, the Court of
Appeal under the Courts and Legal Services Act 1990 can now, and
often does, reduce the awards made
...
4 JURIES IN CIVIL CASES

• ‘Conveniently’ was taken in Goldsmith v Pressdram Ltd (1987) as
relating to the achievement of justice
...

• Beta Construction Ltd v Channel Four TV Co Ltd (1990) lays down some
considerations in the determination of whether a jury trial should be
allowed
...
5 Juries in Coroners’ Courts
Key issues
• Use of a jury is discretionary unless a death occurs:
1
...
In an industrial accident
3
...
In police custody

S7 Coroners and Justice Act 2009
(not yet in force):
Jury will only be used if a death occurs in police custody if:
• The death was violent or unnatural or the cause is
unknown
• The death resulted from the act or omission of a
police officer
• The death was caused by a notable accident,
poisoning or disease

Death from
unnatural causes

Death by
unlawful killing

Verdicts available to the jury
Death from dependence on
drugs or drug abuse

Death by misadventure

The deceased killed his or herself

8
...

This is the most important use of juries (in around 1% of all criminal
cases)
...
This happens in about 10% of cases
...
g
...
6
...
g
...

8
...
7 Secrecy of the Jury Room
8
...
1 Contempt of Court Act 1981 s 8
Disclosure of what happens in the jury room is contempt of court, a
criminal offence
...

8
...
2 The Common Law Rule
Case:
Vaise v Delaval
(1785)

Court refused to consider sworn
statements from two jurors relating to
how they made a decision

R v Thompson
(1962)

Even where a foreman produced a list
of the defendant’s past convictions
the court would not accept evidence
of what happened in the jury room

However, this does not apply outside of the jury room
...

Case:
Practice Direction (Crown
Court: Guidance to Jurors)
(2004)

A juror can bring any concerns about
fellow jurors to the trial judge

Workpoint
Consider the case of R v Young (1995) above
...
In the light of this, analyse whether or not you believe the
strict distinction between the jury room and the jury’s actions outside
the room should be upheld
...
8 Research into Juries
Key issue: What happens in the jury room is secret
...
The Shadow Jury at Work (1974) found
that shadow juries take their work very seriously
...

8
...
8
...

• Found one out of four acquittals and one out of twenty convictions found to be doubtful or highly questionable by three or more
respondents
...

Zander and Henderson Royal Commission on Criminal Justice (1993):
• Questionnaire-based research
...

• Lawyers and judges stated that 2–4% of verdicts were surprising and
inexplicable; the police thought 8% were
...
Try to ﬁnd
one relating to the UK and one to another jurisdiction
...
8
...
g
...
8 RESEARCH INTO JURIES

Advantages

JURIES

100

8
...
3 Alternatives to jury trials
Trial by a single judge

A panel of judges

Regarded as fairer, used in criminal
cases in N
...
Less potential for
tampering
...
Individual prejudices have
more impact

Occurs in some European
countries
...

Combines legal expertise with public
input
...
Could
be used for less serious
cases
...

Would you want to be tried by judge and jury or by magistrates? Give
reasons for your answer
...
8 RESEARCH INTO JURIES

1) Describe how the system of jury trials developed and how they
are used in the modern court system
...
1 Introduction
Deﬁnition
Lay people: People who are not legally qualiﬁed
...

Usually sit as a panel
of two or three

There are over 29,000
in Magistrates’ Courts

Also known as
Justices of the Peace

Lay magistrates

A single magistrate can:
• Decide mode of trial (in relation
to offences triable either way)
• Issue search warrants
• Issue arrest warrants

Panels of lay
magistrates hear almost
98% of criminal cases

Lay magistrates are not district judges
...
They used to be called stipendiary
magistrates
...
2 History of the Magistracy: Timeline
1195
1361
1363

1382

1792

1839

1949

Richard I appoints ‘keepers of the peace’
The title ‘Justices of the Peace’ (JP) is used
A statute states that JPs should meet at least four
times per year in each county (these meetings became known as Quarter Sessions)
JPs given power to punish offenders
During this time, the work of JPs develops to include
administrative duties and responsibilities for welfare
law and the maintenance of highways and bridges
(these duties were later taken over by Local Authorities)
Due to quality issues relating to local JPs, a system of
paid (stipendiary) magistrates was developed (this is
the origin of the District Judge, see above)
Stipendiary magistrates cease to be in charge of the
police
...
3 Qualiﬁcations for Lay Magistrates
There are no formal qualiﬁcations required but the following rules apply to
serving as a magistrate and therefore becoming a member of the Bench:
Age:
From 18–65 (increased from 60 in 2000)
...

• No serious criminal convictions
...

They need to commit to at least 26 half-days a year
...
3 QUALIFICATIONS FOR LAY MAGISTRATES

Do you think that it is acceptable that people without legal training
should have such a large role in the English legal system, particularly in
relation to criminal cases?

LAY MAGISTRATES

104

They are expected to live or work within the relevant local justice area
...

• Members of the armed forces
...

• Two close relatives will not be employed on the same bench
...

• Subsistence
...

Social awareness

Good character

Understanding and
communication

Personal qualities
of a magistrate

Sound judgement

Commitment
and reliability

Maturity and
sound temperament

Workpoint
Think of yourself and those you know
...
4 Selection and Appointment of Lay
Magistrates
• From 1,700–2,200 appointed each year
...

• Advisory Committees recommend candidates for appointment
...

There were only two high priority actions:
1
...

2
...

9
...
1 The procedure of Advisory Panels
• Encouragement of applications – nomination or direct applications
• First interview: Based on the six personal qualities above
• Second interview: Examines candidates’ potential judicial aptitude
• Assessment of whether the Bench reﬂects the community, taking into
account:
• Gender
• Ethnic origin
• Geographical spread
• Occupation
• But not political afﬁliation
...

Workpoint
In order to achieve justice, to what extent do you believe that magistrates should be representative of the country as a whole? Think about
the system of appointing magistrates and their role
...
4 SELECTION AND APPOINTMENT OF LAY MAGISTRATES

• Better representation

105

LAY MAGISTRATES

106

Research Point
Carry out some research to determine the current composition of the
Bench
...
5 Training of Lay Magistrates
Training is carried out by the Magistrates’ Committee of the Judicial
Studies Board
...

Training takes place under four areas of competence under the Magistrates’ National Training Initiative 2004 (MNTI2):
1
...
Working as a team
3
...
Managing judicial decision-making (only applies to the chairperson
of the Bench)
...
Initial training
2
...
Activities such as observations
...

9
...
6
...
6
...
1 Resignation
Magistrates must retire at age 70
...
6
...
2 Removal
The Lord Chancellor can remove a magistrate due to:

• Persistent failure to meet standards of competence (as reinforced by
MNTI2 – see above)
...
g
...

9
...
g
...
8 The Magistrates’ Clerk
Each Bench has a clerk (legal adviser) and the senior clerk has to be
qualiﬁed as a barrister or solicitor for at least ﬁve years
...
8 THE MAGISTRATES’ CLERK

• Incapacity (including illness) or misbehaviour (e
...
conviction for an
offence)
...

• Has to be legally qualiﬁed (since 2010)
...

• Has a role deﬁned by the Justices’ Clerks Rules 1999 (SI No 2784)
...

9
...

• It is suspected that magistrates
are too ready to believe the
police or the CPS representative with whom they build up
a relationship
...

• They should have a good
understanding of local issues
and attitudes
...

• Increased centralisation of
magistrates’ courts means that
the impact of local knowledge
is diminished
...

Disadvantages

Cost

Inconsistency in sentencing

• Much cheaper than District
Judges (approx
...

• Geographical disparities in
sentencing and in charging
...

Legal expertise:

Reliance on the clerk

• Since 2010, legal advisers have
to be legally qualiﬁed which
increases legal expertise in the
court
...

• MNTI2 improves the training
of magistrates, as does the
role of the Judicial Studies
Board
...
5,000 appeals against
conviction a year, with around
2,000 allowed
...
6,000–7,000 appeals
against sentence a year with
3,000–3,500 allowed
...
100 appeals on a
point of law to the Queen’s
Bench Divisional Court a year
with 50 allowed
...
two
million a year), these are very
small numbers
...
9 ADVANTAGES AND DISADVANTAGES OF USING LAY MAGISTRATES

Advantages

LAY MAGISTRATES

110

Research Point
Take a look at the DirectGov website www
...
gov
...
Do you think that this information
encourages people to apply to be a magistrate? Does it give an effective overview of the role of a magistrate?

Checkpoint
Task

Done

I can explain what a magistrate is
I understand the role of magistrates in the English legal
system
I can outline the history of the magistracy
I can explain what qualiﬁcations are needed to be a
magistrate
I know how magistrates are selected and appointed
I understand the nature of the training required to be a
magistrate
I know the reasons why magistrates can be removed from
post
I understand the role of the magistrates’ clerk
I can evaluate the advantages and disadvantages of the
use of lay magistrates

Potential exam questions
1) Describe how the system of lay magistrates developed and how
they are used in the modern court system
...
1 Introduction
The word lawyer usually refers to solicitors and barristers
...
See 10
...

Other legal roles include:
• Qualiﬁed legal executives
• Licensed conveyancers
• Notaries
• Legal clerks
• Paralegals
...
Fellowship of the Institute is a free-standing legal qualification
...

Paralegal: A general term to describe personnel who work in
the legal ﬁeld
...
ILEX offers a recognised paralegal qualiﬁcation
...

THE LEGAL PROFESSION

112

10
...
1 How to become a solicitor
Law degree route
(55% of solicitors)

Non-law degree
route

Fellow of ILEX route

Law degree

Degree in any
subject

ILEX Professional
Diploma and
employment in a ﬁrm

Graduate Diploma
in Law

ILEX Higher Professional
Diploma and
employment in a ﬁrm

Student membership
of the Law Society

Student
membership of the
Law Society

Fellowship of ILEX

Legal Practice
Course: This focuses
on practical aspects
of the work

Legal Practice
Course: This focuses
on practical aspects
of the work

Legal Practice Course:
This focuses on
practical aspects of the
work

Training Contract:
Salaried training
attached to a
practising solicitor

Training
Contract:Salaried
training attached to
a practising solicitor

ILEX Fellows are exempt
from the Training
Contract due to
employment experience

Professional Skills
Course

Professional Skills
Course

Professional Skills
Course

Admission to
the profession of
solicitor through
entrance on the Roll
of Ofﬁcers of the
Supreme Court

Admission to
the profession of
solicitor through
entrance on the Roll
of Ofﬁcers of the
Supreme Court

Admission to the
profession of solicitor
through entrance on
the Roll of Ofﬁcers of
the Supreme Court

10
...
1
...
2 Solicitors

• Many solicitors form partnerships as ﬁrms
...
2
...
lawsociety
...
uk/aboutlawsociety/whatwedo/
researchandtrends/statisticalreport
...

In 2009–10:
45
...

11
...
1% of all solicitors with practising
certiﬁcates, and 10
...

76
...
4% of women
...
4 years
compared to 38
...

The average age of a female solicitor in private practice was 37
...
7 years for men
...
0 years compared with
47
...
5 years for all solicitors in private practice
...
2%) were employed
by organisations based in London
...
What sort of trends can you
see arising in the profession?

10
...
2 What do solicitors do?
• Provide legal services on a face-to-face basis, by letter or by telephone
...
2 SOLICITORS

• Governing body is The Law Society of England and Wales under the
amended Solicitors Act 1974
...

Opened up the sphere to those other than solicitors and barristers
...

Provided that non-solicitors involved in conveyancing work
(as established under Part II of the Administration of Justice Act 1985)
are suitably qualified, accountable and insured
...

• The CLSA 1990 created a system to grant rights of audience through a
Certificate of Advocacy
...
There are three types of certificate:

Higher Courts
Higher Courts
Higher Courts
(All proceedings)
(Civil proceedings) (Criminal proceedings)
(Criminal advocacy)
(Civil and criminal advocacy) (Civil advocacy)
Since 2007 the following routes to becoming a solicitor-advocate exist:
1
...
Accreditation route
3
...
Former barrister route

Initially only independent solicitors could apply for the Certiﬁcates
but since 1997 employed solicitors can now do so
...
3
...

10
...
3 Who regulates complaints about the
legal profession?
The profession is self-regulatory
...
This must include
a written complaints procedure and strategies to keep the client
informed of both the procedures and the development of the complaint
...
Its powers
include:
Striking off

Suspension

Reprimanding

Fining

Banning

The final port of call is The Office of the Legal Services Ombudsman
...

• Ensures that standards are upheld
...

• Can recommend that a professional body reconsiders a complaint
...

10
...

10
...

Deﬁnition
‘Call to the Bar’: The procedure (managed by the four Inns of
Court above) by which students become barristers
...
Regulatory body
2
...
Those not self-employed can work
in, for example, commerce, industry, government or solicitors’ ﬁrms
...
5% of self-employed barristers were female
...
6% self-employed barristers stated that they were a member of an
ethnic minority
...
barcouncil
...
uk
...
Compare these ﬁgures to the research above
in relation to solicitors
...

10
...
1 Becoming a barrister
Law degree

Non-law degree

Graduate diploma in law

Admission to an inn
Bar professional training course
Skills-based course with modules on case preparation, research,
written skills, opinion-writing, drafting, conference skills, negotiation,
advocacy and subject-specific modules
...

It includes:
• six months of ‘non-practising’ work through shadowing
• six months of practising work such as giving legal advice and
exercising rights of audience
...

How are barristers accessed?
• In the past they always received instructions from a solicitor
...

• Since 2002, ‘Public Access’ allows a member of the public to directly instruct a barrister (but not in the case of most criminal, family,
immigration and asylum work)
...

• Disadvantage: The public may not approach the most appropriate
chambers
...
3 BARRISTERS

Chambers
• 60% are in London
...
g
...

• Employ one or more clerks who allocate work and arrange fees
...
To what extent do you believe that the
rule is necessary?

10
...
2 Queen’s Counsel (QC)
• Becoming a QC is known as ‘taking silk’
...

• Most High Court judges are appointed from QCs
...

10
...
3 Making a complaint against a barrister
The process is regulated by the Code of Conduct of the Bar of England
and Wales
...

The BSB’s complaints procedure is overseen by the Complaints
Commissioner
...
The Legal Ombudsman tries to
informally resolve the case and can issue orders for compensation
...
The immunity was no longer in the
public interest and was not reﬂected in other
professions
...
legalombudsman
...
uk
...
To what extent do you
think that the Ofﬁce provides an effective and necessary service?

10
...
4
...

• Would be cheaper, more efﬁcient and would remove communications
delays
...

• The competition provided by a split profession keeps costs down
...

The professional bodies have been consistently opposed to fusion
...

119

10
...
4
...

ABSs would allow for more than 25% of the organisation to comprise
non-legal personnel and may permit sole external ownership
...

Aim of ABSs
To provide a consolidated ‘one-stop shop’ providing professional services
...

Checkpoint
Task
I can outline the different roles undertaken in the legal
profession
I understand the ways in which an individual can qualify
to be a solicitor

Done

Checkpoint (continued)
Done

I can describe the composition of the occupation of
solicitor
I can outline the work of solicitors
I know how solicitors can now be granted rights of
audience
I can outline the procedure for making a complaint
against a solicitor
I know the names of the different bodies which regulate
and represent both barristers and solicitors
I understand the ways in which an individual can become
a barrister
I can describe the composition of the occupation of
barrister
I can outline how barristers work and understand the
cab-rank rule
I know what a QC is and can outline who can become a QC
I can outline the procedure for making a complaint
against a barrister and whether they can be found liable
for professional negligence
I can analyse the advantages and disadvantages of fusion
in the legal profession
I can analyse the impact of Alternative Business Structures
on the legal profession

Potential exam questions
1) What are the routes to becoming a solicitor and what sort of
work do they undertake?
2) What are the routes to becoming a barrister and what sort of
work do they undertake?
3) What is fusion? What are the advantages and disadvantages of
fusion?
4) In relation to the legal profession, what are Alternative Business Structures and do you think that they are a good idea?

10
...
1 Introduction
Judges:
• Arbitrate disputes
• Make decisions on the law
• Make decisions on fact (the majority of cases do not use juries)
• Are appointed by the Queen
• Used to be appointed on advice from the Lord Chancellor
...

Before the Constitutional Reform Act 2005, the Lord Chancellor was:
• Head of the Judiciary (this is now the Lord Chief Justice, judicial
appointments are now dealt with by the Judicial Appointments Commission)
• A judge in the House of Lords and the High Court (Chancery
Division)
...

Since the Constitutional Reform Act 2005, the Lord Chancellor can be
appointed from the House of Lords or the House of Commons
...

The Constitutional Reform Act 2005 also established the Supreme
Court
...

• Opened in October 2009
...

• Does not have the power to strike down legislation
...
2 The Judicial Hierarchy
11
...
1 Senior judges
Court

Judge

Judges’
qualiﬁcations

The Supreme Court
(and Privy Council)

Justice of the
Supreme Court

Two years in a high
judicial ofﬁce (superior
court)

The Court of Appeal

Lord or Lady Justice
of Appeal

Appointed from High
Court judges

Head of Division

Appointed from Lords
Justices of Appeal

High Court Judge
(can also sit in the
Crown Court)

Seven-year High Court
qualiﬁcation

The High Court

11
...
2 Inferior judges
Court

Judge

Judges’ qualiﬁcations

The Crown Court

Circuit Judge

Seven-year general
qualiﬁcation or three years as
a district judge

Recorder

Seven-year general
qualiﬁcation

11
...

123

THE JUDICIARY

124

Court

Judge

Judges’ qualiﬁcations

County Court

Circuit Judge

Seven-year general
qualiﬁcation or three years as
a district judge

Recorder

Seven-year general
qualiﬁcation

District Judge

Five-year general
qualiﬁcation

District Judge

Five-year general qualiﬁcation
or ILEX Fellowship (under
Tribunals, Courts and
Enforcement Act 2007)

Magistrates’ Court

11
...
It:
• Organises refresher sessions
• Highlights areas of change or current interest
• Publishes books and guidance
...
4 Appointments of Inferior Judges
Appointments are governed by the Courts and Legal Services Act 1990
...
4
...

• They are permanently assigned to one of the six circuits
...

• They are part-time judges, appointed for ﬁve years which is usually
extended in further ﬁve-year terms
...

District judges (Civil Court)
• These comprise the majority of District Judges known as Registrars
...

• They usually will have sat as a part-time Deputy District Judge for at
least two years
...

• They usually have been a part-time Deputy District Judge previously
...

11
...
2 Different types of superior judges
Justices of the Supreme Court
• Need to have held one or more of the judicial ofﬁces outlined in
the Appellate Jurisdiction Act 1876
...

• Appointments are made by the Queen on the advice of the Prime
Minister and Lord Chancellor
...
4 APPOINTMENTS OF INFERIOR JUDGES

Circuit judges

125

THE JUDICIARY

126

The Five Heads of Division
• Appointed under ss 65–75 of the Constitutional Reform Act 2005
(CRA)
...

Lord Justice of Appeal
• There are 37, appointed by the Queen following ss 76–85 of the
CRA 2005 on the advice of the Lord Chancellor, under advice from
a selection panel
...

High Court judges
• Appointed by the Queen under Advice from the Lord Chancellor following a recommendation from Judicial Appointments
Commission under ss 76–84 of the CRA 2005
...

• They need to be qualiﬁed as a barrister or solicitor for at least seven
years or have been a Circuit Judge for at least two years
...

11
...

This has been addressed by the creation and role of the Judicial
Appointments Commission
...

Research Point
Imagine that you have a friend who works as a lawyer in a foreign
country who asks you how you become one of the highest judges
in England and Wales
...

Commentators have noted that judges may not be representative of
society as they are mostly elderly, Oxbridge-educated males
...
1% of all judges are from a black and ethnic minority background
...

• 22
...

Workpoint
To what extent do you believe that having a representative judiciary is
essential to an effective and fair judicial system?

11
...

• Judges need to serve for twenty years to receive a full pension
...

Justices of the Supreme
Court, Heads of Division,
Lords Justices of Appeal,
High Court Judges

Inferior Judges

• Can only be removed by the
Queen after a vote of both
chambers of Parliament
...

• Can be dismissed on grounds of
incapacity or misbehaviour by the
Lord Chief Justice without the
need for Parliament’s authority
...
7 DISMISSAL AND JUDICIAL INDEPENDENCE

11
...

• The terms of service for those on
ﬁxed-term contracts include provisions not to renew on grounds
of, for example, misbehaviour or
incapacity
...
These complaints, however, need to be upheld
by the Lord Chancellor and Lord Chief Justice
...
7
...

Cases in which potential judicial bias was found:
Case:
R v Bow Street Metropolitan
Stipendiary Magistrate and
Others ex parte Pinochet
Ugarte (No 2) (1999)

The decision taken not to quash
General Pinochet’s extradition
warrants was itself quashed as Lord
Hoffman (a judge in the House of
Lords case) did not withdraw or
declare an afﬁliation with Amnesty
International (a party represented in
the case)
...

General issues

129

• Judges should treat all equally
...

Do you believe that any of these qualities are more important than
others? Do you believe that any arbitrator can take a truly equal approach in all cases?

Checkpoint
Task
I can explain how the role of the Lord Chancellor in
relation to the judiciary has been reformed
I can describe the judicial hierarchy and which judges sit
in which courts
I can outline the role of the Judicial Studies Board
I know how inferior judges are appointed
I know how superior judges are appointed
I can outline why there were changes to the system of
judicial appointments
I can describe key issues in relation to the
representativeness of the judiciary
I know how judges can leave a post
I understand the rules on judicial impartiality

Done

11
...

THE JUDICIARY

130

Potential exam questions
1) What impact did the Constitutional Reform Act of 2005 have
on the judiciary?
2) How are judges appointed and trained?
3) What criticisms can be made of the composition of the judiciary
and to what extent are they being addressed?

Sentencing
12
...

• Sentences include:
• Imprisonment
• Fines
• Community orders
...

• The Crown Court has no limits:
• they can impose life imprisonment and there is no maximum ﬁne
...
1
...
g
...

• Some such as rape and manslaughter have a maximum sentence of
life, giving judges full sentencing discretion
...

• Minimum sentences apply for three offences:
• Burglary (three years if it is a third or further offence)
• Class A Drug Trafﬁcking (seven years if it is a third or further
offence)
• Possession of Prohibited Firearms (ﬁve years, even if it is a ﬁrst
offence)
...
It also allows for an extension period to be imposed on top

SENTENCING

132

of a maximum sentence which can only be used where the court
ﬁnds the defendant to pose a signiﬁcant risk of serious harm to the
public
...

12
...

Workpoint
Take a look at the ﬁgure illustrating the purposes of sentencing above
...
You may
have to look at the table below for further explanation
...

Principal aim: Prevention of offending
by those under 18

133

Reform and Protection of
Rehabilitation
the public

Punishment

Reparation

The approach taken with young
offenders (under 18)

s 44 Children and Young Persons Act 1933:
The court should also have regard to the welfare of the young person
...
2
...

• Based on the offender deserving punishment
...

• Imposes a sentence in proportion to the offender’s act
...

• The guidelines can focus on certain aspects of a crime, e
...
use or
threat of force, or use of a weapon
...

• The impact of the guidelines on resources has to be assessed
...
2
...
1 Advantages of this system
• Achieves retribution
...

12
...
1
...

• Is too rigid and overlooks mitigation
...

12
...
2
...

• Prison does not appear to deter, particularly in relation to young people
...

• Fear of being caught could be more of a deterrent
...

• Used to warn others of the sentence they could face
...

• Conﬂicts with the principle of proportionate retribution
...
2
...

• Community sentences focus on this aim
...

• Sentences can be more individualised: this could be inconsistent and
tends to discriminate against poorer offenders
...
2
...

• Long prison sentences achieve this aim particularly in the case of
dangerous offenders
...

12
...
5 Reparation
• Aims to help the offender repair links with society and/or the victim
...

• Includes community sentences with work on community projects
...

12
...
6 Denunciation

135

This is not speciﬁcally mentioned in the Criminal Justice Act 2003
...

Workpoint
Imagine that you are a judge and, after a period of nationwide violent unrest,
a defendant is brought before you on charges relating to criminal damage
and looting
...
Look back
at your list, which sentence do you think you would actually impose?

Research Point
Take a look at the website of the Sentencing Council of England and
Wales: http://sentencingcouncil
...
gov
...
To what extent do you
believe that it will be effective in achieving consistency of sentencing?

12
...

12
...
1 Life sentences
Mandatory life sentence
• Has to be imposed where a person over 21 has pleaded or is found
guilty on a charge of murder
...

• The judge, following s 269 of the Criminal Justice Act 2003, sets
a minimum period to be served within the boundaries of full life
down to 12 years
...

• A child has been murdered following abduction or with sadistic
motivation
...

• The offender had been previously convicted of murder
...
3 CUSTODIAL SENTENCES

• Through punishment, society expresses its disapproval with criminal
behaviour
...

Mitigating factors include:
• The offender’s intention to cause GBH rather than death, lack of
pre-meditation, some evidence of acting in self-defence
...

• A minimum period after which a parole hearing can take place will
be set
...
3
...

• CJA 2003: in sentences for more than 12 months, half of the period
must be served
...

12
...
3 Custody Plus
• s 181 CJA 2003: After three months in custody a period is spentundertaking a community sentence
...

• Requirements such as unpaid work, supervision, curfew or programme
attendance can be attached
...
3
...

• This can be combined with a community order
...
4 Community Orders
Under s 177 CJA 2003, courts can impose customised community
sentences on those aged 16 or over combining one or more of the following requirements to meet the offender’s needs:

Activity

Curfew

• Between 40–300
hours

• Set activities
carried out, e
...

contact with
victim

• Can be ordered to
remain at a ﬁxed
address

• Can apply to up to
60 separate days

• Can cover 2–12
hours in a 24-hour
period
• Can be enforced
by electronic
tagging

Exclusion

Supervision

Attendance centre

• s 205 CJA 2003

• Lasts from six
months up to two
years

• For under 25s

• A ban from
entering speciﬁed
place(s)
• Can be complete
or on certain days

• Attendance is
required at set
appointments

• Can last for up to
two years

Other available requirements
• Residence
• Mental health treatment
• Drug rehabilitation
• Alcohol treatment
• Programme
• Prohibited activity

Research Point
Find ﬁve news stories which relate to crime and sentencing
...
Do
you think that, in general, society supports the types of community
orders outlined above?

137

12
...
5 Young Offenders
12
...
1 Custodial sentences
• The last resort
...

• There is a strong emphasis on education and training
...

• A minimum sentence is recommended in keeping with the
Sentencing Guidelines
...

Detention for serious crimes – additional sentencing powers
• s 53 Children and Young Persons Act 1933 – courts have the power
in the case of serious offences to state that the young offender be
detained for longer periods
...

• This power is also available for 14–17 year olds in relation to certain
driving offences resulting in death
...

• Minimum sentence is 21 days
...

Detention and training orders
• s 100 Powers of the Court (Sentencing) Act 2000: relates to an
offender between 10–21
...

• Offenders under 15: only made in relation to persistent offenders
...

12
...
2 Youth Rehabilitation Orders

139

The following requirements can be attached to such an order:

• Supervision
• Unpaid work (offenders between 16–17 at conviction)
• Programme
• Attendance centre
• Prohibited activity
• Curfew
• Exclusion
• Residence
• Local authority residence
• Mental health treatment
• Drug treatment
• Drug testing
• Intoxicating substance treatment
• Education
• Electronic monitoring
...
6 Fines and Discharges
12
...
1 Fines
• Very commonly used in the Magistrates’ Court, rarely in the Crown
Court
...

12
...
2 Discharges
12
...
2
...

• States that the offender is discharged on condition of no further
offences in a set period of time
...
6 FINES AND DISCHARGES

• Activity

SENTENCING

140

• If re-offending occurs, then the court can (on top of the penalty for
the new offence) impose another sentence
...
6
...
2 Absolute
• No penalty is imposed
...

12
...

• The Sentencing Council of England and Wales publishes sentencing
guidelines
...

s 143(1) CJA 2003 relates to
seriousness with two key factors:

Culpability

Harm

Other aggravating factors of the CJA 2003, include:
• s 143(2): previous convictions
...

• High level of proﬁt, attempt to conceal evidence, an abuse of trust, deliberate harm, targeting of the vulnerable are also taken into account
...

Sentence reduction for a guilty plea

• Sentencing Guidelines state that a very early guilty plea should receive
a reduction of up to one third unless prosecution case is overwhelming
...

Thresholds
• s 152(2) CJA 2003: A custodial sentence should not be imposed unless
justiﬁed
...

Pre-sentence reports
• Submitted by probation ofﬁcer or social worker giving information
about the offender’s background and suitability for the range of
community orders
...

• s 156 CJA 2003: the report must be taken into account on applying a
custodial or community sentence unless deemed not necessary
...

• If the defendant is mentally disordered then a medical report is required
...

12
...

• In 2010: 150 per 100,000 of the population were in prison
...

59% of all prisoners will reoffend:
In December 2010, 84,548 people were remanded in custody:
• 5% of the prison population is female
...
8 PRISON STATISTICS

• s 144 CJA 2003

141

SENTENCING

142

• 10,369 young adults (18–20 years old) are in custody
...

• 273 12–15 year olds are in private secure training centres and 157 are
in local authority secure children homes
...

Workpoint
If the re-offending rate after custodial sentences is so high, to what
extent do you believe that there is an argument for only using
imprisonment for a very small number of serious crimes such as murder, manslaughter and rape?

Checkpoint
Task
I can explain the different sentences available and key rules
relating to their imposition
I can outline the aims of punishment in the criminal justice
system
I know how the aims of punishment apply to young offenders
I can analyse the nature of the aims of punishment and give
examples of sentences which demonstrate each approach
I can outline the different custodial sentences and when
they will be imposed
I know the requirements which can be attached to
community orders
I know key issues in relation to how sentences are imposed
on young offenders
I can outline the circumstances in which ﬁnes and
discharges are ordered
I understand general guidance in relation to sentencing
practice
I know the stages the court will follow to determine
whether a sentence should be imposed and to determine
the nature of any sentence
I can outline key statistics in relation to the prison
population of England and Wales

Done

Potential exam questions

12
...

2) Describe the different types of custodial and community
sentences available
...

143

Glossary
Advance Indication of Sentence: Where the defendant instructs counsel to
seek an indication from the judge of the maximum sentence which could be
imposed if a guilty plea is entered
...

• A ‘basis of plea’ document is submitted
...

• The judge may either refuse to give an indication or give an indication which
remains binding unless, after time for reasonable consideration, the defendant does not plead guilty
...

After-the-event insurance: Insurance which allows claimants to insure
against the risk of paying costs after a claim has begun
...
After s 29 Access to Justice Act 1999 the
premium can now be claimed as part of court costs
...

Appellate court: The court in which appeals are heard
...

‘Call to the Bar’: The procedure (by the four Inns of Court) by which students become barristers
...
The lawyer does
not gain a share of any damages awarded
...

Default judgment: When judgment is given in favour of the claimant as the
defendant has not ﬁled the required documents in time
...
This happens in about 10% of
cases
...

Lay people: People who are not legally qualiﬁed
...
This can happen if the trial
judge ﬁnds:
• A point of law of general public importance is involved
...

• The Supreme Court gives leave (permission) to appeal
...

Material facts: The facts which are signiﬁcant to the legal issue being decided
in a case (they are the facts which matter!)
...

Domestic tribunals: ‘In-house’ tribunals set up by private bodies, e
...
to
regulate professions or organisations such as universities
...

Ejusdem generis: ‘Of the same kind’
...
There needs
to be more than one speciﬁc word
...

Expressio unius est exclusio alterius: The mention of one thing excludes
others
...

Golden rule: This builds upon the literal rule
...
This approach can be narrow – where a word
has more than one meaning, choose the one which avoids the absurdity
...

ILEX: The Institute of Legal Executives, the awarding body for fully qualiﬁed
legal executives
...
It has 22,000 members
...

Judicial Studies Board (JSB): The organisation, established in 1978, which
provides judicial training and advises on the training of lay magistrates and
tribunal personnel
...
Following this approach, the judge will:
1
...

2
...
g
...

3
...

Mock jury: A jury which watches or listens to a simulated case and then
deliberates in front of cameras
...

Obiter dicta (plural)/obiter dictum (singular): ‘Statements said by the way’/
‘A statement said by the way’
...

Ofﬁce for Judicial Complaints: An organisation established under the CRA
2005 with the power to investigate complaints about judges
...

Paralegal: A general term to describe personnel who work in the legal ﬁeld
...
ILEX offers a recognised
paralegal qualiﬁcation
...

Per incuriam: ‘Through lack of care’
...

Plea bargaining: Where the defendant pleads guilty in exchange for a reduction in sentence or pleads guilty to a lesser offence on the same facts
...
It beneﬁts the prosecuting agencies but may:
• Create a feel of injustice for the victim/victim’s family
• Lead to over-charging
• Put pressure on the defendant to accept a bargain
...
Advice for those who cannot afford to
pay, given, for example by the Free Representation Unit (FRU)
...

Professional indemnity insurance: The insurance that all solicitors in private
practice need to hold in case of a ﬁnding of negligent loss to a client
...
This particularly applies when interpreting a statute in the
light of EU law
...

147

GLOSSARY

Ratio decidendi: ‘The reason for deciding’
...

Reverse: Where a higher court reaches a different decision from a lower court
as the same case travels up the court hierarchy
...
Traditionally this means that the monarch must consent to the Bill becoming law
...

Shadow jury: A jury which sits in a courtroom and withdraws at the same
time as the actual jury but its deliberations take place in front of cameras
...

Stare decisis: ‘Stand by cases already decided’
...

Summary judgment: Where the defendant has ﬁled the correct documents
within the given time but the defence masks the true defence
...

Trial courts/courts of ﬁrst instance: The court in which the case is heard for
the ﬁrst time
...
98
bankruptcy 53
Bar Council 115

‘cab rank rule’ 118
‘call to the Bar’ 116
Carter Report (2006) 84
case management 51
case stated appeals 72–3
CCRC (Criminal Case Review
Commission) 74
certainty, legal
precedent, and 20–2, 25
vs
...
52
burglary 131
Burn, S
...
certainty 20–2, 25

151

INDEX

advantages/disadvantages of
hearing cases in 65
appeals to/from 71–2, 74
criminal cases heard in 63–5
judiciary in 123, 126
jury trials 88, 95
plea, choice of 65
sentencing 131–2, 139
Crown Prosecution Service (CPS) 46
criticism of 51–2
establishment 60
role 60–1
curfew orders 136–7, 139
custodial sentences 131, 135–6, 138

INDEX

152

fraud cases 50, 66, 92
jury trials 92, 99
gender, representation
in judiciary 127
in juries 90
in legal profession 113, 116
in magistracy 105
Glidewell Report (1998) 61
golden rule, statutory interpretation
32–3, 36
Goriely, T
...
98
High Court 2, 25
civil appeals from 69
civil cases heard in 47–50
judiciary in 123, 126
jury trials 88
transferring cases to/from County
Court 49–50
House of Lords 2–3, 20
human rights
under European Convention
11–13
jury room secrecy 97
jury service, police/legal
profession on 90
right to fair trial 90, 97
right to legal representation 78, 82
ILEX (Institute of Legal Executives)
111–12, 125
imprisonment see sentencing
indictable offences 64–5, 95
injunctions 5, 45
Inns of Court 116
Institute of Legal Executives (ILEX)
111–12, 125
insurance
after-the-event insurance 85
professional indemnity insurance
116

JSB (Judicial Studies Board) 124
judgments
default judgments 52
dissenting judgments 17–18
distinguishing judgments 27–8
enforcement powers 53
overruling judgments 27–8
per incuriam judgments 24
reversing judgments 28
summary judgments 52, 65
Judicial Appointments Committee
122, 124, 126
judicial precedent, doctrine of
avoiding precedents 27–8
in civil law systems 4
court hierarchy 19, 25
Court of Appeal, binding own
decisions 23–5
criminal cases, different rules for
24–5
declaratory theory 26–7
dissenting judgments 17
distinguishing judgments 27–8
Divisional Courts, and 25
EU law, supremacy of 10, 12
High Court, and 25
human rights law, compatibility
with 26
Inferior Courts, and 25
judicial discretion 27
obiter dicta 17–18
overruling judgments 27–8
past decisions, binding own 20–5
per incuriam judgments 24
persuasive statements 17–18
Practice Statements 20–2
principles 15–18, 25
ratio decidendi 16–17, 27
reversing judgments 28
stare decisis, meaning 15
Supreme Court, binding own
decisions 20–2
uncertainty vs
...
98
magistrates see also lay magistrates
history 103
qualiﬁcations 64
role 102, 107
types 64, 102
Magistrates’ Clerk 107–8
Magistrates’ Court 3, 25
advantages/disadvantages 65
appeals from 71–3
cases heard in 63–5
judiciary in 124–5
plea, choice of 65
sentencing 62–3, 131, 139

negligence
barristers, immunity from claims
119
professional indemnity insurance
116
professional negligence 50
negotiation 56
noscitur a sociis 38
notaries 111
obiter dicta 17–18
offences
indictable offences 64–5, 95
summary offences 64–5

paralegals 111
Parliament, independence 2, 30, 123
parliamentary intention see statutory
interpretation
parliamentary sovereignty
EU law, and 10–12
future parliaments, binding 2
ultra vires legislation 10
per incuriam judgments 24
personal injury cases 49, 93
persuasive statements 17–18
pleas
choice of 65
plea bargaining 61–2
plea before venue 65
Police
checks on potential jurors 91
claims against 50
on jury service 90
Practice Statements
advantages/disadvantages 22
Supreme Court 20–2
precedent see judicial precedent
presumptions, statutory
interpretation 39
prison, population trends 141–2
private bills 6
private funding, for lagal advice/representation
conditional fee agreements 84–5
problems 84
private members’ bills 6
Privy Council 3, 9
civil appeals to 69, 71
criminal appeals to 62, 72
Prize courts 71

pro bono work 86
probate, contentious cases 50
professional indemnity insurance 116
professional negligence 50
programme orders 136–7, 139
prohibited activity orders 137, 139
proof, standard of 45–6
protection of public, sentencing as
132, 134
public bills 6
Public Defender Service
advantages/disadvantages 83
background 78, 83
purpose 83
public funding, for legal advice/representation
advice and assistance 82–3
case priorities 80
challenges for 84
in civil cases 78–81
conditional fee agreements 80
in criminal cases 77–8, 82–4
criticisms 81
duty solicitors 77, 82, 84
eligibility criteria 79–80, 83
exclusions 80–1
historical development 77–8
merits tests 81, 83
Public Defender Service 78, 83
reform 84
success, prospects for 81
public protection, and sentencing
131–4, 136
punishment, sentencing as 132–3
pupillage 117
purposive approach, statutory
interpretation 33–7
Quality Marks 78, 86
Queen’s Bench Division 2–3, 25, 48
jury trials 88
Queen’s Counsel 114, 118
as High Court judges 126

155

INDEX

triable either way offences
64–5, 95
Ofﬁce for Judicial Complaints 128
Old Bailey 63
Orders in Council 9
overruling judgments 27–8

INDEX

156

ratio decidendi 16–18, 27
Recorders 64, 123–5
reform, sentencing as 132, 134
rehabilitation, sentencing as 132, 134
remedies
civil law 45
equitable remedies 5
reparation, sentencing as 132, 134
residence orders 137, 139
retribution, sentencing as 132–3
reversing judgments 28
right to fair trial 90, 97
rights of audience, solicitors 114
Royal Assent 6–7
Royal Commission on Criminal
Justice (1993) 98
rule of law 2
Runcimann Commission (1993) 96
Rushcliffe Committee (1945) 77
secondary legislation 5, 8–10
advantages/disadvantages 9
types 8–9
secrecy of jury room 95–7
sentencing
Advance Indication of Sentence
61–2
advantages/disadvantages 133
aggravating factors 136, 140
community sentences and orders
134, 136–7
in Crown Court 131–2
custodial sentences 131, 135–6,
138
custody plus sentences 136–7
dangerous offenders 131–2
denunciation 135
deterrence 132, 134
discharges, conditional/absolute
139–40
ﬁnes 139
ﬁxed-term sentences 136
generally 131

guidelines 133, 140–1
imprisonment 131, 135–6, 138
inconsistency 133–4
inﬂuences on 134, 136, 140–1
life sentences 131, 135–6
in Magistrates’ Court 62–3, 131
mandatory life sentences 131, 135
medical reports 141
minimum/maximum sentences
131–2
mitigating factors 136, 140
pre-sentence reports 141
previous convictions, and 140
prison population trends 141–2
public protection 131–4, 136
punishment 132–3
purpose 132–5
reduction for guilty plea 141
reform and rehabilitation 132, 134
reparation/restorative justice
132, 134
suspended sentences 136
thresholds 141
types 131
vulnerability, and 140
young offenders 132, 138–9
Sentencing Council of England and
Wales
guidelines 133, 140–1
separation of powers, doctrine
2, 30, 123
shadow juries 96
small claims cases 49
solicitors
Alternative Business Structures
(ABS) 120
complaints against 115
duty solicitors 77, 82, 84
fusion trends 119
on jury service 90
pro bono work 86
professional indemnity
insurance 116

literal rule 32, 36
mischief rule 34, 36–7
noscitur a sociis 38
presumptions 39
purposive approach 33–7
text-based approaches 32–3, 36–7
stipendiary magistrates 64, 102–3
success fees see conditional fee
agreements
summary judgments 52, 65
summary offences 64–5
supervision orders 136–7, 139
supremacy
of EU law 10, 12
of Parliament 2, 10
Supreme Court 2–3
cases heard in 47
civil appeals to 69–70
criminal appeals to 72, 74
establishment 123
judiciary in 123
leave to appeal to 69–70
past decisions, whether bound by
20–2
Practice Statements 20–2
suspended sentences 136
‘taking silk’ 118
telephone advice schemes 82
third-party debt orders 53
Thomas, Cheryl 98
triable either way offences 64–5, 95
trial by jury see juries
tribunals
Administrative Justice and
Tribunals Council 54
administrative tribunals 53
advantages/disadvantages 55
appeals 54
composition 54
domestic tribunals 55
ﬁrst-tier tribunals 54
judicial review 54

157

INDEX

Quality Marks 78, 86
Queen’s Counsel, appointment
as 114
racial and gender composition 113
regulation 113–15
rights of audience 114
role 113
training routes 112
Solicitors Disciplinary Tribunal 115
Solicitors Regulation Authority 115
sources, of law
Council of Europe 11–13
courts 2–5
European Union 10–11, 13
generally 1–2
hierarchy 3
Parliament 5–10
stare decisis 15 see also judicial
precedent
Statutes see Acts; Bills
statutory instruments 8
statutory interpretation
absurdity, avoiding 32–3
aids, intrinsic/extrinsic 40–3
ambiguity 31, 41–2
contextual approaches 33–7
conventions, international, use in
42–3
drafting too broad/too narrow
31–3
ejusdem generis 37–8
European Union 34–5
explanatory notes 40–1, 43
expression unius est exclusion
alterius 38
golden rule 32–3, 36
Hansard, use of 41–3
and Human Rights Act 1998 43
incompatibility, avoiding 12–13,
39, 43
judicial powers 30–1
language, rules of 37–8
Law Reform reports, use in 42–3

INDEX

158

medical tribunals 71
purpose 53
reform 53–4
Solicitors Disciplinary Tribunal
115
upper tribunal 54
ultra vires 9–10
uncertainty, and judicial precedent
20–2
unpaid work orders 136–7, 139
unsafe convictions 74
verdicts 95–6
jury verdicts, fairness of 98

majority verdicts 95, 97
perverse verdicts 99
and right to fair trial 97
Woolf Report (1996) 51–2
young offenders
custodial sentences 138
detention and training orders
138
sentencing, generally 132
Young Offenders’ Institutions 138
Youth Rehabilitation Orders 139
Zander, Michael 52, 98

Title: the English Legal System - Easton, Catherine
Description: Word Lawyer usually refers to solicitors and barristers.

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