civil courts

  • Created by: libjl
  • Created on: 22-03-17 10:16


  • 220 county courts:
    • Jusrisdiction to hear: contract, tort, recovery of land of any value, partnerships, trusts, inheritance £30,000, divorce and bankruptcy, personal injuries less than £50,000.
    • Small claims, fast track, some multi track.
  • High court in london but several district registries in major towns and cities.
  • 3 divisions with own jurisdiction:
    • QBD: Contract & tort over £50,000, some complex multi track. Contains admiralty, commercial, technology & construction.
      • Has supervisiory role & hears judicial review.
    • Family: Wardship cases, childrens act 1989, other family matters.
    • Chancery: Technical issues. Matters of insolvency, mortages, trusts, property disputes, copyrights, patents, intellectual property, probate disputes.
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starting a claim

  • Most don;t go to court if they can avoid it.
  • complete and submit N1 claim form.
    • naming D, stating particulars including amount of damages.
  • court sends N1 to D.
    • given opportunity to admit claim and pay amount claimed or defend it.
  • court sends allocation questionnaire to both parties.
  • when claimant returns questionnaire, fee must be paid.
    • fee depends on amount being claimed.
  • some claims can be made online using Ministry of Justice's Money Claim Online website.
    • only if claim is fixed amount of less than £100,000.
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Track System

Information on the questionnaire dictates which track the case is allocated to.

  • small-claims track: 
    • hears: contract and tort cases worth upto £5000 & personal injury upto £1000
    • strict time limit for cross examination of witnesses 
    • district judge in county court
    • informal (use of lawyers discouraged)
  • fast track
    • claims from £5000 to £25,000
    • strict timetable - case heard in 30 weeks
    • trial lasts one day and limited number of witnesses
    • district judge in county court
  • Multi-track
    • claims over £25,000, or cases with complex points
    • circuit judge in county court, but can be sent to high court
    • judge 'case manage' - set strict timetable for matters like disclosure of documents
    • parties may be encouraged to try ADR
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small claims track assessment


  • cost low if claim under £1000
  • distruct judge supposed to help parties explain case. make process inquisitorial rather than adversarial
  • if you lose, dont have to pay other's legal costs
  • lawyer not required. claimant can represent themselves 


  • legal funding not available
  • district judge not always helpful when dealing with unrepresented claimants
  • decision is difficult to enforce - only 60% chance of being paid what court awarded
  • businesses tend to use lawyers putting unrepresented individuals at disadvantage 
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Appellate courts

  • There are 3 appellate courts in ELS:
    •  Divisional courts of High court, court of appeal (civil division), supreme court
    • QBD:
      • 2 main appellate functions:
      • preside over applications for JR - proceedings where judge reviews lawfullness of decision or action made by public body
      • hear appeals by way of case stated from criminal matters decided in Mags
    • CoA
      • headed by the Master of the Rolls.
      • Hears appeals from: divisions of the high court, some county court Multi-Track, certain tribunals
      • leave is needed to bring appeal here - granted by the court below or CoA itself
    • Supreme
      • final court of appeal in ELS.
      • Hears cases of public importance from: courts of appeal, divisional courts, high court under 'leap frog' provision
      • leave is needed and can be granted by supreme court itself or lower courts
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Civil court assessment

  • intro of Woolf reforms in April 1999 overhauled civil procedure rules
  • more cooperation between parties & case management is a success. 
    • high rate of settlemt before hearing - 80% in some areas
  • rules on disclosure & time strictly enforced, limitations in witnesses in fast track
    • ensures cases dealt with quickly - allow for justice?
  • early settlement encouraged through pre-action protocols and encouragement of ADR
    • no large increase in ADR as expected
  • allocation questionnaires & case management conferences means parties know how case is manages and number of witnesses allowed - complex and time consuming.
  • delays between issuing claim and hearing reduced.
    • say delay is still problem compared to ADR. FT can take 48 weeks to get to trail, but faster than pre-reform. small claims 29 weeks, MT can take years.
  • costs increased due to front-loading of costs for FT and MT
    • lack of legal funding for SC
  • court remains formal which can be intimidating
  • Courts underesourced - IT systems primitive compared to private practices.
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  • voluntary process - impartial mediator assists parties coming to compromise
  • parties control process; mediator is passive facillitator.
  • incharge of process but doesnt influence outcome
  • outcome not binding unless formally recorded in signed agreement
  • can be terminated by either party at any stage
  • Formalised Settlement Conference: formal method of mediation
    • involves mini-trial with panel of 3 mediators
    • one decision makeing executive from each side and neutral mediator to assist
  • growing number of local and national mediation services
    • The Centre for Effective Dispute Resolution
      • dispute resolution to wide range from large businesses to small private clients
    • Family Mediators Association
      • comprehensive family and hybrid mediation
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  • similar to mediation
  • voluntary and both parties must agree to submit their matter to concilliation process
  • concilliator has no power to impose own solution
  • play more active role than a mediator by suggesting grounds for compromise and poossible ways to resolve the issue
  • final agreement not legally binding unless made so by signed agreement
  • The Advisory, Concilliation and Arbitration Service (ACAS) deals with employment matters
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Assessment of Mediation and Concilliation

  • Voluntary process encourages co-operation and avoids adversarial system
  • can be cheap and quick
  • less formal than court proceedings - doesn't have to follow strict letter of law
  • maintains working relationships
  • both parties maintain a sense of control and can choose the method of mediation
    • can include decisions about future dealings
  • agreements more likely to last as it's compromise
  • successful
  • private and no media exposure
  • no guarentee dispute will be resolved
  • will not work unless both parties willing to cooperate 
  • settlements often considerably lower than those awarded at courts
  • agreements cannot be reinforced
  • could go on for long time without settlement
  • mediation can turn into bullying exercise - weaker parties may not stand up for own rights
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  • most formal method of ADR where both parties voluntarily agree to:
    • allow dispute to be left to judgement of indeoendant arbitrator or panel of
    • time and place
    • procedure for hearing - range from 'paper' arbitration to formal court like hearing
    • be legally bound by arbutartors decision 
  • if required, decision can be reinforced by the courts
  • award is final. but can be challenged for serious irregularity in proceedings or point of law
  • Agreements to arbitrate governed by Arbitration Act 1996 and usually in writing
    • agreement can be made befre dispute arises as per Scott v Avery clause
    • often in business of building contracts
    • name an arbitrator o provide a method for choosing one
    • court may also appoint one
  • The Advisory, Cocilliation and Arbitration Service (ACAS) deals with employment matters
  • The Association of British Travel Agents
    • arbitration scheme deals with alleged breaches of contract and/or negligence between consumers and members of the ABTA in respect of holidays
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Assessment of arbitration

  • parties can choose arbitrator and appoint technical expert if appropriate
  • use of expert to decide avoids using expert witnesses
  • flexibility - time ad place 
  • confidential
  • quicker and cheaper than courts
  • avoidance of bad feelings between parties
  • unexpected legal points which arbitrayor may not be able to take into account
  • if dealing with technical points, may become highly complex
  • commercial arbitration can take as long as the courts to complete
  • professional arbitrators can be expensive
  • lack of availablity of legal funding may disadvantage individual 
  • rights of appeal more limited than courts
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Assesment of ADR

  • costs - cheaper as no court costs
  • speed - matters resolved quicker than court hearing
  • flexibility - time & place arranged to suit parties. more informal ad relaxed and strict letter of law does not need to be followed
  • expertise - parties can choose own mediator/concilliator/arbitrator
  • privacy - no publicity
  • less adversarial - allows relationships to continue
  • unequal bargaining power - one party may be able to dominate other so tribunal or court may be better
  • lack of legal expertise - legal issue may arise 
  • court action may still be required - matter may remain unsolved which takes more time and money
  • lack of enforceablity - for M and C the agreement is usually unenforcable 
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stop and search

  • PACE (1984) as amended by Codes of Practice 
    • S1 PACE: power to s&s in public place if reasonable suspicion that
      • prohibited articles, stolen goods or articles made, adapted or intended for use in burglary or criminal damage are in their possession.
      • Prohibited  fireworks added in SOCPA (2005)
  • other statutes give police power to s&s
    • The Misuse of Drugs Act 1971 - power to search for prohibited drugs
    • The terrorism Act 2000 - ask for headgear and shoes to be removed
    • s60 of CJPO ACt 1994 - s&s anoyone in area designated by senior officer upto 24 hours in anticipation of violence
      • doesnt have to be reasonable suspicion that anything will be found, just being in that area at that time is enough
  • Code of Practice A sets out guidance for reasonable suspicion
  • police officer must give name, station, reason Osman (1999)
    • cant be based on personal appearance or criminal record  but can be taken into account 
  • only coat, jacket and gloces removed in public
  • no such thing as a 'voluntary search' - must be statutory power & written report required
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individual rights Vs combating crime

  • important to ask people to remove items that conceal identity or help avoid detection
    • failed london bomber avoided detection dressed in burka
  • searching for prohibited items does avoud some crime
    • tottenham leaflet experiment led to 50% rediction in s&s but increases in both burglary and street robbery in the area
  • police officer has to identify himself and give a reason for search protects individual from random searches  - Osman (1999)
  • Code of Practice A setting out reasonabe suspicion protects individual from harrassment
    • reasonable suspicion is open ended and easy to justify
  • all searches must have statutory authority and report must be written protects individuals as searches must be justified 
  • s&s increased tenfold since 1986 and only 10-13% are arrested
  • many dont know rights making them ineffective
  • s60 of CJPOA is misused to deal with street robbery or other crimes rather than its orginal purpose of dealing with riots
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arrest on the street

  • powers are set out under s24 of PACE 1984, as amended by SOCPA 2005, CJA 2003 and Codes of Practice (G)
    • s24 PACE as amended by SOCPA sets out powers to arrest without a warrant, Code G gives guidelined for arrest:
      • have the power to arrest if person: has committed offence, is in the act of, is about to,or there are reasonable grounds for suspecting one of these occurences
    • police may use reasonable force to carry out arrest
    • they can search arrested person for anything that may help them escape 
    • other powers of arrest: 
      • breach of peace (common law power) preserved by s26 PACE, breaching bail conditions, arrest with warrant - s8 mags court act 1980, s41 terrorism act 2000
    • necessity test sets limits on when officer has power to arrest - only if he has reasonable grounds for believing arrest is necessary to
      • enable name & address to be ascertained, prevent physical injury, causing loss or damage to property, offence against public decency, protect child or vulnerable, allow prompt and effective investigation, prevent prosecution being hindered, unlawful obstruction of highway
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arrest on the street pt2

  • the police must tell person at time of arrest or soon as practicable after:
    • why they are under arrest
    • the reason for the arrest
      • no set words but must be understandable: Taylor V chief Constable of Thames Valley Police (2004) : boy arrested at protest after video evidence showed him commiting offence at previous protest
    • why the arrest is necessary
    • give a caution
    • they also have to identify themselves if not in uniform to make the arrest lawful
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police powers to detain suspect

  • where arrested on suspicion of summary offence, the police can only detain for max 24 hours
  • on suspicion of indictable offence, can detain further 12 hours with permission of senior officer of superintendant or above
  • to detain beyond 36 hours, police must apply to mags court.
    • Mags can order upto max of 96 hours
  • in cases of suspected terrosrism offences, detention may be extended to 14 days by a magistrate
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individual rights during detention

  • to have custody officer monitor detention and keep custody record to ensure Codes of Practice are adhered to
  • have someone informed of detention
    • can be delayed upto 36hrs in exceptional circumstances
  • if under 17, mental illness or disability, havr responsible adult informed of arrest
  • right to consult codes of practice
  • right to free legal advice, usually limited to phone advice
  • consult privately with solicitor 
  • interpreter or medical treatment if necessary
  • be released after 24 hours if offence is less serios, unless charged
  • if alleged offence indictable, be held for 36 hrs with permission of officer rank superintendant or above
  • if indictable, held for max of 96 hours obly if authorised by magistrate
  • only 14 days in terrosism cases
  • be detained om adequately lit, heated, cleaned and ventilated cell
  • at least 2 light meals and one main meal in any 24 hours plus drinks
  • in any 24 hours, detainee must be given continuous period of 8 hours rest
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  • must be taped and caution given
  • right to legal advice but may be limited to phone
  • presence if appropriate adult in certain circumstances
  • interview room must be heated to reasonable temperature and breaks and refreshments provided
  • aim of interview has traditionally been in order to get a confession than to necessarily find out the truth 
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police powers to search at station

  • have power to ***** search a suspect
    • but only if necessary to remove article which a person in detention is not allowed and there's reasonable suspicion to believe that the person might have such article on their person 
  • ***** search carried out by same sex officer, and only half clothing be removed at one time
  • a high ranking police offiver can authorise intimate search
    • only if there is reason to believe the suspect has an item which they could use to cause physical injury, or that they are in possession of class A drugs
  • can take photographs, fingerprints and DNA (mouth swab or head hair route), and swab of skin surface on hands ad arms without suspects permission.
  • can take blood, urine and dental impressions with authoirty of senior officer and permission of suspect
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individual rights during searches

  • right not to be automatically searched
  • only be ***** searched if its deemed necessary in order to remove article that a person should not have
  • ***** search carried out in private place with a same sex officer and only half clothing removed at one time
  • intimate search only carried out if auhtorised by a high ranking officer in order to search for class A drugs or weapons
    • carried out by doctor or nurse
  • cannot take intimate samples such as blood or urine or dental impressions without the suspects permisison and the authority of a senior officer
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pre-trial matters

  • summary offences: less serious, always tried in Mags
    • e.g. driving offences and common assault
  • indictable: more serious and must be tried in crown court
    • e.g. murder, manslaughter, and ****
  • triable-either-way: middle range, can vary in degree of harm caused
    • tried in either Mags or Crown Court
    • e.g. theft and ABH
  • have to decide which court TEW will be heard in:
    • plea before venue
      • D is asked whether pleads G or not G.
      • If G, automatically heard in mags, but retain option of sending to crown for sentencing
    • if not G, mode of trial procedure to decide on most appropriate court to try the case
    • Mags consider whether they think case is suitable for trial there.
      • if not, transfer to crown and D will have no choice
    • if Mags feel prepared to accept jurisdiction, D is given a choice of which court they would like to be tried in
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choosing which court

  • Crown
    • higher conviction rate in Mags. Acquittal rate at Crown is 50%, only 20% in mags
    • more likely to get legal funding and so not have to represent themselves
    • if D remanded in custody, time served will count against sentence
      • conditions are better on remand
    • benefits of using Mas in TEW lost if at the end, decide they lack sentencing powers and send the matter to crown 
  • Mags
    • restrictions on penalties
      • max of £5000 fine, 6 months or 12 months for 2 TEW
    • faster, most cases dealt with in a day
    • less publicity
    • less daunting and less formal
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should a defendant be able to choose?

  • much debate and choice has been limited by successive governments
  • much more expensive to hold jury trials
  • government has limited trial by jury by reclassifying offences that were TEW as summary
    • taking vehicle without consent
  • HoL stopped governments attempts to abolish D's right to choose
    • right to jury trial is too important as a safeguard to liberty
  • compromise with cases felt too diffcult for juries to understand e.g fraud, jury tampering.
    • no longer have a jury but still tried in crown court
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The Bail Act 1976 and subsequent amendments in the Bail Act 1993, the Crime and Disorder Act1998, CJA 2003, and the Coroners and Justice Act 2009 set out legislation on bail

  • police, magistrates and crown court can grant bail
  • general presumption in favour of bail unless good reason to refuse it
    • failure to surrender to custody, likely to commit further offences, interference with witnesses or the course of justice
  • factors taken into account:
    • nature and seriousness of offence, antecedents of D, any previous bail record, strength of evidence against D
  • mostly unconditional bail is granted with condition suspect will attend court at specified time
  • if risky, conditions can be imposed depending on risk factors:
    • residene (bail hostel or home), curfew with tagging, handing in passport, reporting to police station at specified times, exclusion zones, contact bans, sureties
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restrictions on bail

bail is rebutted in certain circumstances:

  • for offence committed while already on bail, only given if courts satisfied there is no significant risk of further reoffending 
  • only granted in exceptional circumstances for murder, attempted murder, manslaughter, **** or attempted **** if D has already served a custodial sentence for such a crime.
  • bail can only be granted for murder by a judge at crown court
  • restricted for adult Class A drug users under the Criminal Justice Act 2003 in certain circumstances
  • focus recently changed from ensuring right to liberty, to ensuring public protection
  • if no bail is granted, suspect is remanded in custody
  • bail can be appealed
    • D must be taken before Mags at first opportunity if police refuse bail
    • only one further application is allowed id refused unless circs change
    • appeal may be made from mags against refusal to a judge in crown court
    • The Bail Amendmant Act 1993 as amended by CJA 2003 gave prosecution right to appeal to a judge at crown court against granting bail for any imprisonable offence
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Appeal routes from the magistrates

  • Defence appeals to crown court:
    • D may appeak against conviction, sentence, or both to CC if original plea was not guilty
    • may only appeal against sentence if orginial plea was guilty
    • automatic right to appeal  - no need for leave
    • case compleetely reheard by judge and 2 mags
    • may confirm conviction, reverse decision and acquit D or may vary conviction and find D guilty of lesser offence
    • sentence may be confirmed, increased (mags max) or decreased 
    • out of about 12,000 appeals, half have some success
  • Defence appeals by way of case stated to QBD against conviction on point of law
    • case stated = the facts are agreed beforehand and given as statement to the court. The case is not reheard in full
    • either directly from mags, or following appeal to crown court
    • only available for appeal against conviction
    • may confirm, cary or reverse decision or send it back to mags to apply interpretation of the law
    • only about 100 oer year: C v DPP (1996)
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Appeal routes from the magistrates pt2

  • prosecution appeal to QBD against acquittal on point of law only
    • it is a case stated appeal
    • can quash the decision, confirm it, or send it back to the mags court for a rehearing
  • further appeal to the supreme court
    • both defence and prosecution can appeal further to the supreme court (from QBD) on a point of law of general public importance 
    • leave must be granted by supreme court of QBD
    • its rarely used
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appeal routed from the crown court

appeals to the court of appeal

  • D may appeal against conviction, sentence or both to the court of appeal (crim division)
  • leave to appeal must be granted either by trial judge of from CoA itseld
  • only ground for allowing appeal against conviction is that the conviction is unsafe 
    • CoA may order a retrial or quash the conviction if it allows the D's appeal
  • when hearing an appeal, the CoA may admit new evidence in the interests of justice
  • The Criminal Cases Review Commission may refer cases back to the CoA after all routes of appeal have been exhausted if there is evidence of a miscarriage of justice

Challenged by the prosecution

  • prosecution may ask Attorney-General to seek leave from CoA to consider unduly lenient sentence
  • AG may refer a point of law to CoA if prosecution is concerned about acquittal - merely settling the law on that point, not affecting the acquittal
  • if evidence of jury tampering, prosecution may apply to High Court for acquittal to be set aside and retrial ordered
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appeal routed from the crown court pt 2

  •  The Criminal Justice Act 2003 abolished the double jeopardy rule so that the Director of Public Prosecutions may apply to the CoA to overturn an acquittal and order a retrial if there is new and compelling evidence
  • the prosecution may appeal against a ruling on law made by a judge in a Crown Court trial

Appeals to the Supreme Court

  • both prosecution and defence have the right to appeal from the CoA to the supreme court
  • CoA has to vertify that it involves a point of law of public importance and either the CoA or the supreme court must give permission to appeal
  • very few cases are appealed to the supreme court
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principles of sentencing

  • main aims of sentencing set out in CJA 2003
    • punishment 
      • retribution - society's revenge for the offence, based on proportionality and just desserts. 'let the punishment fit the crime'
        • The sentencing Council produces guidelines on tarrif sentences to reflect this aim
      • denunciation - society's outrage at the offence committed 
    • deterrence 
      • individual - aimed at a particular offender to put them off re-offending by severe sentenc or by threat of imprisonment
      • general - putting society off committing crimes by exemplary sentences or minimum sentences.
        • not concerned with fairness and may be harsher than the usual tarrif for the offence so can lead to injustice in particular cases
          • e.g. severe sentences for mobile phone theft on the street
    • rehabilitation
      • reform the offender to stop reoffending
      • focused on the long term
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principles of sentencing pt2

    • its not accepted custodial sentences have limited rehabilitative effect and community orders are more likely to achieve this aim
  • protection of the public
    • preventing the offender from reoffending
    • curfews and custodial sentences may be used
  • reparation
    • considers the victim when sentencing the offender 
    • compensation orders are used to make amends to the victim
  • other factors:
    • aggravating factors that make the snetence more severe
    • mitigating factors that make the sentence more lenient
    • the seriousness of the crime
    • antecedentsof the offender
    • motive
    • early guilty plea
    • senticing guidelines/tarrif
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sentences available for adults

under CJA 2003 and CDA1998, custodial sentences available for adults include:

  • mandatory life sentences - only sentence available for murder if over 18 years old.
    • minimum term to be served before release on licence ranges from whole life to 15yrs. tarrif set out in CJA
    • discretionary life sentences for other serious offences; judge has discretion in imposing lesser sentence if more appropriate
    • fixed term sentences where there is automatic release after half sentence is served 
      • only available if over 21
    • home detention curfew - early release from prison on a curfew
    • indeterminate sentences for dangerous offenders (public protection)
    • extended sentences - custodial sentence upto max of crimefollowed by extension period on licence 
    • minimum sentences for dealing in class A drugs or a third burglary of a residential building
    • suspended sentence of 28-51 weeks susoended up to 2 years
      • sentence only served if offender commits further offences
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community sentences for adults

  • generic 'community order' under the CJA 2003 which can include range of 12 requirements for offenders over 18 which can be mixed and matched
    • unpaid work requirement - 40-300 hours work in community
    • supervision requirement - attend regular appointments with a probation officer during which work will be undertaken to change attitudes and behaviour
    • drug treatment and testing requirement
    • curfew requirement - must remainin agreed place for a certain number of hours a day
      • electronic tagging may be given
    • requirement of residence - must reside at specific address for upto 3 years
    • exclusion
    • alcohol treatment

fines and other sentences

  • unlimited in crown court; £5000 in mags
  • absolute and conditional discharges
  • disqualification from driving
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custodial sentences for young offenders

  • detention at Her Majesty's Pleasure for murder if offender is 10-17.
    • indeterminate sentence; judge will recoommend minimum term
  • young offenders institutions for offenders aged 18-20
    • from 21 days upto max for the offence.
    • offender will be transferred to adult prison if turn 21 before release date
  • detention and training orders for offenders aged 12-17, but only persistent offenders
    • if under15, duration is from 4 to 24 months
  • detention for very serious crimes is available, allowing a young person to be detained for longer
    • upto max for offence
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community sentences available for young offenders

  • The youth rehabilitation order, brought in by the Criminal Justice and Immigration Act 2008, includes a range of 18 requirements that can be attached. its similar to a community order, but for 10-18 year olds:
    • activity requirement
    • attendance centre requirement
    • supervision requirement 
      • supervision by local social services, a probation officer or a member of the Youth Offending Team
    • unpaid work requirement only if 16 or older on conviction
    • programme requirement
    • education requirement
    • local authority residence requirement
    • mental health treatment requirement
    • drug testing requirement
    • Fines: depend on age. 10-13, max £250, 14-17 max £1000, 18, same as adult
    • ASBO
    • discharged, reprimands, warnings 
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assessment of custodial sentences

  • offenders cannot commit crimes when in prison so it protects public
  • opportunity to rehabilitate offenders
  • over 65% ex prisoners reoffend within 2 years and 80% of young offenders
  • prisoners learn from other criminals in prison
  • budget cuts and overcrowded prisons prevent any effective rehabilitation
  • stigma means emplyment opportunities after getting out are limited pushing exoffenders back into crime
  • theres often a family breakdown and many become homeless
  • prison is expensive: 3 weeks cost more than a year of community order
  • many people who shouldnt be in prison are put there e.g. non payment of fines
    • non voilent offenders, asylum seekers and people on remand could be dealt with more effectively and cheaply
  • most european countries have a 3rd of our prison population in proportion to ther population
  • conditions are poor, suicide rates are high
  • Sir David Ramsbotham, chief inspector of prisons, claimed prison ppulation could be cut in half if you took away young, elderly, mentally ill, asylum seekers and those inside for trivial offences
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assessment of community sentences

  • less disruptive as offender keeps living with family and continues job
  • most offenders given supervision orders and find them useful as it allows them to talk through their problems and confront their behavior
  • cheaper than custody
  • unpaid work gives sense of achievement 
  • tagging is effective at keeping offenders out if trouble and protecting the public 
    • as technology improves, should emove need for prison for many offenders
  • tagging can be seen as degrading to offender, though less degrading than imprisonment
  • re-offending rates are still quite high
  • crime prevention is more likely to lower crime rates than a sentence as they think they will get caught
  • fines
    • bring revenue to the courts, quick for minor crimes, linked to ability to pay
    • problems collecting - mags dont always use powers to collect but send to prison for non-payment
    • under CJA 2003, person can do upaid work to pay off fine at £6hr but supervising is expensive
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qualifications required for judicial appointment

set out in the Tribunals, court, and Enforcement Act 2007

  • Justices of supreme court:
    • hold high judicial office or have held superior court qualification for at least 15 years
      • can be from northern ireland and scotland as well as england and wales
  • lord justices of appeal
    • existing high court judge or at least 7 years qualification
    • high court judge
      • barrister or solicitor for 7 years or circuit judge for 2 years
  • circuit judge
    • solicitor or barrister for 7 years, recorder, district judge, or tribunal judge
  • recorder
    • barrister or solicitor for 7 years
  • district judge
    • barrister or solicitor for 5 years or ILEX fellow (deputy district judge first)
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selection of judges

  • supreme court judges selected like all others
  • selection organised by the Judicial Appointments Commission
    • selection by mixed panel of judges, lay people and lawyers
  • all appointments now advertised
  • aim is to diversify the judiciary
  • candidates apply and provide references
  • there are interviews to assess attitude and aptitude
  • Lord Chancellor has limited power to object to selection
  • applicants for higher appointments are expected to show competence at a lower level
    • appointment at assistant recorder level is usually used to try out potential judges for more permenant positions
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training of judges

  • conducted by judicial studies board
  • for superior judges, training is voluntary
  • for inferior judge, training is compulsory
    • mainly for newly appointed assistant recorders; consists of a one week course which deals with sentencing, running a criminal court, and human awareness
  • inferior judges also have to spend a week shadowing an experienced judge before sitting themselves
  • one day courses run time to time to update judges on major changes in law, some of which are compulsory e.g. Human Rights Act 1998
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role at first instance

  • ensure the hearing is carried out fairly and preside over the court
  • decide questions of law

in criminal cases

  • magistrates court - decide both verdict and sentence and preliminary matters e.g. bail
  • crown court - sum up for jury, sentence if appropriate 

in civil cases

  • decisions made by single judge
  • decide verdict and award; in small claims help parties put their claim
  • act as case manager, deciding track, holding preliminary hearings to clarify issues, keep parties to time limits
  • may be responsible for running court office
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role in appeal courts

  • review the hearing at first instance; decide whether the law was correctly decided and whether hearing carried out properly
  • decisions are made by three or more judges sitting together
  • decide whether result is wrong or unsafe
  • can change decision or order a retrial
  • can revise sentence or award
  • can decide issues of law in important cases (UK Supreme Court and CoA usually)
  • can clarify or amend the law where appropriate (R v G&R)
  • may be involved in judicial review in the divisional high court
  • may be reviewing situations in relation to the Human Rights Act 1998
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background of judges

before changes in appointment

  • only appointed from ranks of barristers
  • on recommendation of Lord Chancellor with secret soundings
  • very few women or ethnic minorities
  • supreme court judges - over 80% went to public school & oxbridge, from wealthy backgrounds

after changes

  • appointments from application based on merit
  • all vacancies advertised and require applications
  • positive steps to diversify judiciary - more women and ethnic minorities are encouraged to apply
  • promotions from current inferior judges to more senior positions 
  • The Judicial Appointments Commission should lead to a greater diversity
  • more women and ethinic minorities are appointed, but only at the lower ranks of judges
  • it will take many years to diversity the judiciary to any great extent
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tenure of judges

  • senior judges have security of tenure under the Act of Settlement 1701 and cannot be removed excpet by the monarch following a petition to both houses of parliament
  • superior judges can be asked to resign
  • inferior judges can be removed by the Lord Chancellor and the Lord Chief Justice for incapacity or misbehaviour but must comply with set procedures
    • constitutional reform act 2005
  • recorders are only appointed for a period of 5 years, but must be reappointed unless there is good reason
  • judges retire at 70
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the separation of powers

  • the three arms of the state
    • legislature: makes law - Parliament and the Queen
    • executive: puts law into effect and administers nation's affairs - ministers (and their departments)
    • judiciary: interpret and enforce law - judges
  • the 3 arms must be kept independant of each other meaning each can exercise control over the other 2
    • without separation its easy for one person or small group to take complete control e.g. Zimbabwe
  • gives independance to judiciary
    • by giving security of tenure to judiciary
    • judges do try implement intention of parliament in statutory interpretation
    • cannot question legality of legislation
  • controls are exercised by:
    • judiciary providing check on executive through judicial review
    • executive provide check on higher judiciary
    • judiciary thought to limit legislature through statutory interpretation e.g. the golden rule
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the separation of powers pt2

  • legislature has some control over the terms of judges employment e.g. pay, retirement age
  • legislature can amend law if a minister has been held to be acting ultra vires
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maintaining judicial independance

  • judges cannot be sued for what is said or done in court which gives them freedom to come to unpopular decisions
    • can be criticised in appeal courts
  • by convention judges keep free of politics: cannot become MP's (expect recorders), avoid making political comments, Law Lords can only take part n certain debates
    • LCJ and MR have felt the need to publicly voice concerns about issues like sentencing
  • jusges have to take decisions that have a political element e.g. judicial review
  • independantly appointed on merit on past record, tests, references
    • is political element for superior judges despite reforms
  • secure tenure - need motion of Parliament to remove superior judges and good reason for inferior judges. recorders contracts must be renewed except for good reason 
    • can be eased out
  • financially secure  salary set independantly, have pension provision but this is now comparatively low in level as judges have to work 20 yeats to gain full pension
  • judges cant have any personal interest in a case they are hearing - pinochet case
  • Judicial Appointments Commission should lead to more independance
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career judiciary?

  • judges will be younger as they wont have worked as an advocate first
  • trained for longer in judicial skills
    • at present, minimal training on human awareness, sentencing, and presiding over a criminal court
  • greater scope for specialisation
  • able to concentrate on decision making skills
  • selected for judicial skills - not all good advocated become good judges
  • being younger may not be good as they lack life experience
  • less experience of court practice and barrister's techniques
  • less experience dealing with clients and possinly human awareness
  • loss of advocates habit of independence
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education and training of solicitors

    • quickest route: complete Solicitors Regulation Authority approved qualifying law degree
      • contains 7 core topics e.g. legal research, obligations, public & criminal law
      • also options for modules e.g. environmental law, intellectual propery & consumer law
    • degree in another subject, required to undertake additional training course: CPE or GDL
      • covers core topics
    • before contuining with training, student membership of SRA must be applied for
  • vocational
    • LPC: develops skills required to practice as a solicitor 
      • practical based, emphasis on skills; client interviewing, negotiation, drafting documents, business management & advocacy
      • either one year full time or 2 years part time; £12,000
  • professional training - training contract
    • final stage; 2 year training contract with firm of solicitors or organisation authorised by SRA to take trainees.
    • gain experience in at least 3 different areas of english law
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education and training of solicitors pt2

  • paid minimum of £16,650
  • the professional skills course
    • during training contract, trainee must attend and satisfactorily complete the professional skills course
      • builds on vocational training provided by LPC
  • admission to the roll
    • on successful completion of the above, person is now qualified as solicitor and admitted to roll of solicitors and able to apply for practicing certificate
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work of solicitors

  • undertake wide range of work - provide legal advice to clients in court. 
  • majority work in private practice
  • other options - working for CPS, local or national government, or working for legal department of a commercial or industrial business
  • may undertake:
    • meeting with clients & offering advice
    • drafting legal documents
    • conveyancing
    • wills and probate
    • matrimonal & family matters
    • negligence
    • negotiating
    • advocacy
      • all have rights of audience in lower courts
      • under Solicitor's Higher Rights of Audience Regulations 2010, once admitted to |Roll, can apply for higher courts qualification
        • no mandatory training but required to pass assessments
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organisation of solicitors

  • represented by the Law Society 
  • controlled by Solicitors Regulation Authority
  • can work for small or large firms and can be sole practitioners or in a partnership
  • The Legal Services Act 2007 now allows both Legal Disciplinary Practicea and Alternative Business Structures. 
  • solicitors can form companies rather than partnerships and the company does not need to be owned by solicitors
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regulation of solicitors

  • deal directly with clients and contract is formed between them
    • both can sue for breach of contract
    • solicitor for non payment of fees and client for failure to complete work satisfactorily
      • Griffiths v Dawson (1993) and White V jones(1995)
      • hall v simmons (2000) HoL decided advocates can be liable for negligent advocacy
    • unsatisfied client irst uses solicitor's firm's complaints procedure
      • outcome unsatisfactory - dealt with by Office for Legal Complaints set up by the Legal Services Act 2007
    • all ccomplaints referred to the legal ombudsman
      • power to ask solicitor to apologise, give back documents, put things right with more work, refund or reduce legal fees, pay compensation upto £30,000
  • SRA regulated profession and will investigate any alleged professional misconduct
    • if theres evidence of serious misconduct, the case will be put before the Solicitors Disciplinary Tribunal who can fine, suspend or strike from the Roll
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education and training of barristers

  • quickest route is comleting Bar Standards Board approved qualifying law degree with 7 core topics e.g. legal research, obligations, public & criminal law
    • also options for modules e.g. environmental law, intellectual property & consumer law
  • degree in other subject; undertake additional training course; GDL or CPE which covers 7 core topics
  • before continuing with training, membership of an inn of court must be obtained; inner temple, middle temple, grays inn & lincolns inn
    • dine in 12 times or attend residential training courses durong BpTC
  • vocational - bar professional training course
    • over 1 year or 2 years part time
    • develops skills required for career at the bar; practically based including advocacy, role-playing, case prep, drafting legal documents,opinion writing & interpersonal skills
    • £9,500 to £15,750
  • pupillage - one year similar to apprenticeship
    • pupil to qualified barrister, usually at a set of chambers
    •  2 sixes; first is non practicing; shadowing supervisor. 2nd; supervised work of their own
    • paid minimum £12,000 per year
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work of barristers

  • 80% self employed and concentrate on advocacy
  • some specialise in areas which rarely require attendance in court e.g. tax law
  • remainder employed by central or local government and industry and advise the organisation
  • may undertake
    • advocacy - represent in court, present case, cross-examine witness & sum up
    • legal research
    • holding case conferences with clients, advising them on the law and strength of their case
    • writing 'opinion' for client
    • negotiating settlements with the other side
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organisation of barristers

  • controlled by the General Council of the Bar and they must be a member of one of 4 inns
  • self-emplyed barristers gain tenancy and work from set of shared chambers
    • practice adminstrator and other administrative staff manage work coming into chambers and negotiate fee to be paid
  • self-emplyed barristers usually work on instruction from a solicitor but there is Direct Access in civil cases where anyone can go directly to barrister without having to involve anyone else
  • some operate the cab rank rule - have to accept work if it is on their area of law and are free to take the case
    • rule is not applicable in direct access cases
  • after 10 years practicing as a barrister it is possible to become Queens Counsel and 'Take Silk'
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regulation of barristers

  • no contract between client and barrister except in direct access 
    • client cannot sue for breach of contract, 
      • can sue for negligence regarding written advice (Saif ali v sydney mitchell and co (1980)) and negligent advocacy in court (hall v simmons (2000))
  • nsatisfied client first uses the Chambers in-house complaints procedure
  • if unsatisfactory, dealt with by Office for legal complaints set up by Legal services Act 2007
  • all complaints referred to legal ombudsman; power to ask to apologise, give back documents, put things right with more work, reduce or refund legal fees, pay compensation upto £30,000
  • Bar Standards Boad regulated the profession and investigates any alleged breach of conduct
  • can discipline any barrister who is in breach if matter is serious
    • referred to the disciplinary tribunal of the council of the ins of court
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assessment of solicitors and barristers

  • 2 professions are merging closer - differences have reduced
  • intro of Direct Access for barristers and Solicitors higher rights of audience regulations 2010
  • legal services act 2007ows the professions to work together
  • LSA 2007 removed complaints mechanism from professions governing bodies (law society and bar council) and set up independant complaints department
  • office for legal complaints and legal ombudsman will stop delays in dealing with complaints and simplify system
    • increased power to legal ombudsman means people are more likely to get impartial and just decisions 
  • cost of education and vocational training deters able candidates
    • student loans for degree, but LPC is post graduate so no funding
  • bursaries for some barristers - only those with financial backing able to qualify - best?
  • solicitors can take ILEX - paid whilst training but doesnt exist for barristers
  • cpe/gdl diesnt give grounding in law compared to law degree
    • bar council & law society said '18 months should be spent on core subjects' but the courses are one year
    • opportunity to other candidates and bring different skills with them
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assessment of solicitors and barristers pt2

  • choice to become barrister or solicitor comes upon completion of law degree or cpe/gdl without any vocational or practical training - too early to make a choice
  • difficult to find pupillage/training contract and many cannot complete training
    • 1 in 5 called to the bar and able to obtain pupillage
    • training contract 'lottery' with pto 70 applicants per job
    • lot of money and time spent getting this far to find out you are unable to achieve the goal
    • quality of pupillage/training contracts varies in terms of actual work and support
  • even after completing various trainign elements, still an over-supply of qualified lawyers
  • far too many qualify for the jobs available
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requirements, disqualifications and qualities of l

  • no formal legal qualifications required but must be
    • between 18 and 65 on appointment
    • live or work in local justice area they are allocated to
    • prepared to commit to sitting at least 26 half days per year
  • disqualifications: lord chancellor and secretary of state for justice will not appoint certain people:
    • those with serious previous convictions or a number of minor offences
    • undischarged bankrupts
    • a serving police officer
    • traffic wardens
    • full time members of the armed forces
    • anyone whose work or community activity is incompatible with duties of a mag e.g. CPS or probation employee
  • qualities
  • 6 qualities set by Lord Chancellor in 1998:
  • maturity and sound temperament, commitment and reliability, good character, undertsanding and communication, social awareness, sound judgement
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selection and appointment of lay magistrates

  • may apply directly for position, or apply following advertisements in the press for the position
  • application made to local advisory committee 
    • existing magistrates and other local people
  • application form must be completed and references taken up
  • 2 interviews
    • 1: LAC will check candidate has minimum eligiblity requirements and look to see they have the 6 main qualities
    • general questions asked to assess the candidates atitude to various criminal justice issues such as drink driving
    • 2: practically based and involves testing the candidates potential judicial aptitude.
    • given scenarios and asked to rank them in order of severity
    • more in depth case study based on sentencing practice
  • if candidate successfully completes both interviews and is deemed suitable, the LAC will submit the names to the Lord Chief Justice for approval
  • submitted to the Lord Chancellor to make the appointment
  • new mags are sworn in at an official ceremony, giving an oath of allegiance to the queen
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training of lay magistrates

  • training is supervised by the judicial college (formerly judicial stydies board)
  • court act 2003 places statutory obligation on the Lord Chancellor to provide training and training materials
  • magistrates new training initiative (MNTI 2) provides competence framework which is divided into four areas of competency:
    • managing yourself, working as a team member, making judicial decisions, managing judicial decisions (for the chairman of the bench)
  • 1st year: trainee must complete:
    • intitial training: before sitting in court, given introductory training on basics of the role and can then sit in court with experienced mags
    • mentoring: 6 formal mentored sittings in the first 12-18 months
    • core training: new mag must visit penal institutions and/or undertake court observations
    • consolidation training: end of first year to build on learning and prepare for their first appraisal
    • first appraisal: about 12-18 months after appointment - mentor and magistrate agree he/she is ready and successfully deemed competent
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training of lay magistrates pt2

  • extra training for those unablt to demonstrate theyve achieved competencies, if they continue not to achieve, LAc reccommends to Lord Chancellor the mag be removed from sitting
  • retirement and removal: 
    • retire at 70
    • names added to supplementary list; can no longer sit in the courts but they can continue with some adminstrative duties
    • under s11 Courts Act 2003, Lord Chancellor has power to remove a lay mag for
      • incapacity, persistent failure to meet competency standards or if they are deemed to be neglecting their duties
      • can also be removed for misbehaviour
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work of lay magistrates

  • criminal jusrisdiction
    • try 97% of all criminal cases start to finish and deal with other 3% at least at preliminary level with early adminstrative hearings (remand, bail apps & committal proceedings)
    • deal with all summary matters - not guilty or guilty and sentencing
    • triable-either-way; lay mags first undertake plea before venue. if guilty, mags sentence or pass to crown court. if not guilty, undertake mode of trial hearing. decide whether or not they have suffiecient jurisdiction. if they decline, trial at crown court
    • deal with arrest and search warrants and extensions to detention time
    • sit with judge in crown court to hear appeals from mags
    • specially trained panels of magistrates deal with young offenders aged 10-17 in youth courts
  • civil jusrisdiction
  • specially trained panels of mags in family court hear cases like orders for protection against violence, affiliation cases, adoption orders and proceedings under the childrens act 1989
  • enforce debts owed to utilities eg electricity & non payment of council tax & tv licences
  • hear appeals against refusal of local authority to grant a licence for the sale of alcohol and licences for betting and gaming establishments
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who else sits in mags?

  • District judges
    • members of the judiciary who hear cases in mags court. 
    • appointed to courts in big cities and deal with the more complex matters coming before mags court.
    • District judge will have been a qualified barrister or solicitor for at least 5 years, or a fellow of ILEX
  • the magistrated clerk
    • as mags are not legally qualified, bench is assisted by clerk who will act as a legal advisor to the court
    • duty is to guide magistrates on questions of law, practice and procedure
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evaluation of magistrates

  • cheaper than professional judges as unpaid (can only claim expenses and if they suffer loss of earnings, claim a loss allowance at set rate)
  • wider cross section of society than judiciary
  • local knowledge of area, know it well including crime hot spots
  • compratively few appeals from mags which indicates few errors 
  • prosecution bias - mags tend to side with police and prosecution and so overall acquittal rate is considerably lower than crown court
  • some mags rely too heavily on clerk for advice
  • inconsistency in sentencing - lottery as to what sentence you get
  • some benches more inclined to give custodial sentences while another bench may give community penalties
  • middle aged and middle class - most over 40 and come from a managerial background
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  • qualifications - set out in juries act 1974 (as amended) :
    • aged between 18 and 70
    • registered as parliamentary or local government elector
    • resident in uk for five years since the age of 13
    • must sit unless disqualified or excused
  • disqualifications
    • for life if theyve recieved 
      • imprisonment or detention for life, detention during her majestys pleasure, a term of imrisonment or detention of 5 years of more
    • for 10 years if they have recieved the following in the last 10 years
      • custodial sentence of less than 5 years, a suspended sentence, a community order or other community sentence passed on them
    • also disqualified whilst on bail
    • attending jury service and failing to declare any of this = fine upto £5,000
  • ineligibility
    • person suffering from 'mental disorder' as definied in CJA 2003
    • lacking capacity e.g. cant speak english or suffering from disability 
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juries pt2

  • excusals
    • full timed armed forces personnel if their commanding officer certifies they are required for duty
    • person with 'good reason' can be excused or have service deferred
      • at discretion of the court and reasons may be exams, business commitments and illness
  • CJA 2003 changed who was and wasnt eligible for jury service
    • act abolished rule that people involved in the administration of justice were ineligible to serve on a jury including lawyers, police, judges
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selection of juries

  • crown court official randomly from electoral registers summons enough jurors to try cases every fortnight - in larger courts upto 150 summonses are sent out at one time
  • summonses sent electronically using computer at central office, notifying a person of when they are to attend
  • at court at first instance, 15 potential jurors are chosen at random from the jury pool to go into the court room
  • 12 then chosen at random in court by the clerk
  • jurors shown a short film when they arrive in court which explains the procedure in court and how to behave, including not discussing the case with any other person
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vetting of juries

  • prosecution and dfence have the right to see the list of potential jurors and may decide that the pool needs to be vetted
    • 2 types of vetting
      • 1: routine police checks to eliminate those disqualifies as approved in R v Mason (1980)
      • 2: wider background check for political affliations
        • rarely used and the Attorney Generals guidelines must be adhered to
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challenging jurors

  • once 12 jurors have been selected but before sworn in, both prosecution and defence have the right to challenge one or more of the jury
    • challenge to the array on way jury selected e.g. chosen in bias or unrepresentative way
      • successfully used in Romford jury where 2 jurors lived on the same street
      • challenge not allowed simply because jury isnt multi racial R v Ford (1989)
    • challenge for cause - challenging a persons right to be on the jury because of connection with the case 
      • r v wilson (1996) & r v sprason (1995) or incapacity
    • right of stand-by jurors - only available to prosecution
      • allows member of juy to be put at the end of the list so they will not be used unless there are not enough jurors
  • criticisms:
  • electoral register doesnt unclude whole population as it excludes homeless people
  • no power to ensure multi-racial jury
  • some disqualified jurors may sit and those given certain sentences are still eligible
  • excusals were way too many at one point - now difficult to get an excusal and it may lead to resentment
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role in criminal trials

  • role split between judge and jury ; judge presides over case and decides point of law, jury decides fact
  • if judge decides prosecutions evidence has not made a case against the defendant s/he will direct  a jury to acquit
  • jury only used in small percent of criminal cases
  • sit in crown court and decide whether D is guilty or not
  • listen to evidence from both prosecution and defence and at the end, summing up by judge
  • decide questions of fact, judge will advise on questions of law
  • retire to jury room at end of trial to discuss case in secret and if possible come to unanimous decision, or if directed by judge, a majority decision of 10-2 if necessary
  • dont have to give any reasons for decision
  • judge has to accept verdict of jury
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role in civil cases

  • rarely used in civil cases but can be used in county and high court and mainly in defamation cases
  • in high court, 12 members, and in county court, 8 members
  • dual role - decide verdict and assess damaged to be awarded
  • jury trial only available for four types of case in high and county court
    • defamation, false imprisonment, malicious prosecution, fraud
  • only retained for these cases as they deal with character or reputation
  • judge can refuse a jury in these cases if they deem evidence too complicated
  • in excpetional circumstances, personal injury case in the high court can use a jury
    • since case of Ward v James (1966) no personal injury case has been deemed acceptable
  • criticisms
    • decide verdict and damages but do not use past precedent for damages so its difficult to predict the amount that will be awarded causing difficulty for lawyers advising clients
    • if public figures are involved they may be bias
    • cost of using a jury makes the case much more expensive for losing party
  • juries are used in coroners court to enquire suspicious deaths e.g. if death occurred while in custody of cause is unknown. between 7 and 11 jurors used.
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evaluation of juries

  • public confidence as its one of the findamentals of a democratic society
  • lord devlin "the lamp that shows that freedom lives"
  • jury equity - decide on fairness not just the law - kronlid (1996) ponting (1985)
  • open system of justice - justice is seen to be done
  • lawyers have to explain matters simply thus allowing D and public to follow proceedings - no technical jargon
  • allows ordinary people to take part in administration of justice
  • secrecy of the jury room leaves them free of outside pressure; peverse decisions; protest?
  • jury tampering through bribary or threats; may lead to trial by judge alone - r v twomey and others (2009)
  • racial bias as no right to multi racial jury - saunder v uk (2000)
  • media coverage may influence jurors - r v west (1996)
  • lack of undertanding, especially for fraud trials which are extremely complex
  • secrecy of jury room - unknown how they make decisions and they may be questionable which cannot be appealed - r v mirza and r v connor and rollock (2004)
    • does not include suspicious practice outside the jury room - r v young (1995)
  • trial by single judge? panel of judges? judge and lay assessors? mini jury?
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civil court assessment pt2

    • lack of legal funding for SC
  • court remains formal which can be intimidating
  • Courts underesourced - IT systems primitive compared to private practices.
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