LAW

STUDY GUIDE
2021-2023
PAPER 1
SECTION A:
LEGAL SYSTEM
1
 INDEX
Page 3: HOW TO SUCCEED
Page 4: COURSE OVERVIEW
Page 5: LEGAL SYSTEM OVERVIEW
Page 6: LEGAL SYSTEM EXAM QUESTIONS

THE TOPICS
Pages 8-19: CIVIL COURTS AND OTHER
FORMS OF DISPUTE RESOLUTION
Pages 20-37: CRIMINAL COURTS AND LAY
PEOPLE
Pages 38-50: LEGAL PERSONNEL

3
 HOW TO SUCCEED
AT ALL TIMES:
• Aim very high and have very high expectations of yourself.
• Work very hard.
• Be very organised.

IN LESSONS:
• Get to the lesson promptly, make sure your phone is switched off, and
begin the starter assessment straight away.
• Have a file containing the Study Guide and paper.
• Make the most of every lesson – concentrate, work hard and contribute.

OUTSIDE OF LESSONS:
• You must do at least 4 hours of independent study on Law each week.
• Make the most of independent study time during the College day.
• Plan your week’s work. Stick to the plan - get into a routine.
• Set goals and reward yourself when you achieve them.
• Use effective learning strategies during independent study. Examples:

Read the Study Guides and highlight key points.

Make summary mind maps / spider diagrams.
Make cue cards.
Use pictures/images.
Use model answers.
Plan your own answers to past exam questions using mark schemes.
Teach someone else, perhaps a friend or family member.
Test yourself using past exam questions then mark your answers.
Get your teacher to mark extra work that you have done.
Create your own exam questions and answer them.
Create a revision wall to display your learning.
Attend one to one support with your teachers.
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 COURSE OVERVIEW
PAPER 1: 80 marks - one third of the A level.
SECTION A: THE LEGAL SYSTEM – 20 marks
SECTION B: CRIMINAL LAW – 60 marks

PAPER 2: 80 marks - one third of the A level.

SECTION A: LAW MAKING – 20 marks
SECTION B: THE LAW OF TORT – 60 marks

PAPER 3: 80 marks - one third of the A level.

SECTION A: THE NATURE OF LAW – 20 marks
SECTION B: THE LAW OF CONTRACT – 60 marks

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 LEGAL SYSTEM
OVERVIEW
PAPER 1: SECTION A - 3 TOPICS

TOPIC 1: CIVIL COURTS AND OTHER

FORMS OF DISPUTE RESOLUTION
TOPIC 2: CRIMINAL COURTS AND LAY
PEOPLE
TOPIC 3: LEGAL PERSONNEL

6
 EXAM QUESTIONS
• Legal System is worth 20 marks out of 80.
• You must answer 2 questions - one for 8 marks and one for 12
marks.
• You must answer Question 1 OR 2, AND Question 3 OR 4.
• Questions 1 and 3, and Questions 2 and 4, MAY NOT
necessarily be linked through a common topic area.

• Questions 1 and 2 are for 8 marks.

Assessment Objective 1: “explain/describe”.

• Questions 3 and 4 are for 12 marks.

Assessment Objective 3: “discuss”.

SPECIMEN QUESTIONS
EXPLAIN arbitration as a form of Alternative Dispute Resolution. [8]

DISCUSS the advantages of using arbitration as a way of dealing

with a civil dispute. [12]

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 TOPIC 1: THE CIVIL COURTS AND OTHER
FORMS OF DISPUTE RESOLUTION
Describe the JURISDICTION of the COUNTY COURT and the HIGH COURT (8
marks)
There are two civil courts of first instance (where trials take place) – the County Court and
High Court.

The County Court deals with the majority of civil cases of up to £100,000 in value. There are
about 170 in towns and cities around the country.

The County Court has jurisdiction to hear cases involving contract, tort, trusts, inheritance
up to £30,000 and bankruptcy. It hears cases from the Small Claims Track, the Fast Track
and sometimes from the Multi Track.

The High Court is based in London but has judges sitting in other towns and cities. It has 3
Divisions. Each Division deals with different matters.

The Queen’s Bench Division (QBD) mainly deal with contract and tort matters over
£100,000 in value and complex multi-track cases transferred from the Country Court. Claims
may involve issues such as personal injury, negligence, breach of contract, defamation and
the non-payment of a debt.

The courts within the QBD also include the Administrative Court (applications for Judicial
Review and appeals by way of case stated from criminal cases), Commercial Court (eg.
insurance and banking cases), Admiralty Court (maritime law eg. shipping), Circuit
Commercial Court (deals with claims in the area of trade and commerce that are not within
the jurisdiction of Commercial Court or the Chancery Division), and the Technology and
Construction Court (eg. cases involving architects and engineers).

The Chancery Division has jurisdiction to hear claims relating to business, property and land
related disputes, competition law, intellectual property claims, insolvency disputes and
will/probate claims.

The Courts within the Chancery Division include The Intellectual Property Enterprise Court
and The Patents Court.

The Family Division deals with family matters, for example matrimonial cases such as
divorce under the Family Law Act 1996, cases concerning child welfare under the Children
Act 1989 and the Child Abduction and Custody Act 1985, and Court of Protection cases
where the court makes decisions on behalf of those who ‘lack mental capacity’. It also has
jurisdiction to hear matters concerning forced marriage and female genital mutilation.

8
Describe the PRE-TRIAL PROCEDURE of a civil claim, including the 3 TRACKS (8
marks)
Pre-trial procedure was reformed by the Civil Procedure Rules 1999.

Before starting a claim, a pre-action protocol will be followed where information and
documents are exchanged, and the parties are encouraged to negotiate a settlement
through Alternative Dispute Resolution (ADR) such as mediation.

If a settlement cannot be agreed, the claimant may be advised to use the Ministry of
Justice’s ‘Money Claim Online’. The claim begins by the claimant filing at court a Claim
Form (N1) and paying a court fee. On receipt of the Claim Form the defendant can admit the
claim and pay the full amount, admit the claim and pay in instalments, dispute the claim by
filing at court a Defence (N9), or file an Acknowledgement of Service, which confirms he is
aware of the claim but asks for time to file a defence.

The case will be allocated to one of 3 tracks after an allocation questionnaire has been
completed by the parties, depending upon the amount being claimed and/or the complexity
of the case.

The Small Claims Track deals with any claim up to £10,000, or up to £1,000 for personal
injury or landlord and tenant cases.

Cases are heard in the County Court by a District Judge and can be heard by a Circuit Judge.
There will be strict time limits and a restricted number of witnesses allowed. The parties are
encouraged to represent themselves without using lawyers.

The Fast Track deals with cases between £10,000 to £25,000, and over £1,000 for personal
injury or landlord and tenant cases.

Cases are heard in the County Court by a District Judge and can be heard by a Circuit Judge.
There will be a strict trial time limit of one day, and a restricted number of witnesses. Legal
representation is common.

The case is usually heard within 30 weeks of allocation.

The Multi Track deals with cases of over £25,000 (or less if the case involves complex law).
Cases usually start in the County Court before a Circuit Judge, but are sent to the High Court
if the case involves complex law or is over £50,000.
The judge will actively manage the case and will set a strict timetable including what
evidence must be disclosed, how many witnesses will be used, and trial length. Legal
representation is common.

9
Describe APPEALS and the APPELLATE COURTS in the civil court system (8
marks)
Appellate Courts are the courts that can hear appeals.

There are 3 potential grounds/reasons to appeal - where there was an error of law, an
error of fact or procedural unfairness.

An error of law means that the judge had the right information, but applied the law wrongly.
An error of fact means that the judge had the wrong information (facts) or interpreted them
wrongly. Procedural unfairness means that the judge has not followed the relevant rules of
procedure when hearing the case.

A First Appeal can be made from the three tracks.

A Small Claims Track appeal will be before a Circuit Judge sitting in the County Court.

A Fast Track appeal, if the case was heard at first instance by a District Judge, will be before
a Circuit Judge in the County Court. If the case was initially heard before a Circuit Judge the
appeal will be heard by a High Court Judge sitting in the High Court.

A Multi Track appeal will be to the Court of Appeal (Civil Division), but is allowed only in
exceptional cases where there is “a compelling reason” as set out in s.55 Access to Justice
Act 1999.

Appeals from the High Court are made to the Court of Appeal (Civil Division). In exceptional
circumstances, such as an issue of national importance, there may be a ‘Leapfrog’ appeal
direct from the High Court to the Supreme Court. Leave (permission) to appeal is required.

Appeals from the Court of Appeal (Civil Division) are made to the Supreme Court but are
only available if the Supreme Court gives leave (permission) and the matter is of national
importance.

10
Discuss ADVANTAGES and DISADVANTAGES of using the civil courts (12
marks)
Notes:

You may be asked to discuss advantages or disadvantages or both.

Advantages can be used in a disadvantages question and vice versa, but only where it is
used as a counter-argument.

You may need a brief introduction and conclusion in order to respond to the precise
wording of the question eg. To what extent……

A first advantage is that an APPEAL can be made by a party if they are unhappy with a
decision in a civil case. This means that justice is achieved because any mistakes can be put
right, which increases fairness.

On the other hand however, a disadvantage is that the appeal process is unfair as it
favours the parties who are wealthy, such as businesses compared to individuals. An appeal
means that legal costs will increase, for example by paying for solicitors and barristers.

A second advantage is that LEGAL AID for those on low incomes is available for civil cases.
This allows everyone to be legally represented, regardless of wealth, which makes the
system fair. In some types of claim, it may be possible to arrange a “no win, no fee”
arrangement.

On the other hand however, a disadvantage is that the availability of legal aid has been
considerably reduced since Legal Aid Sentencing and Punishing of Offenders Act 2012 was
introduced. This is unfair, because it means that an individual on a low income is at a
disadvantage when bringing a claim against a wealthy party such as a business. If a person
legally represents themselves in order to save money, they are at a disadvantage as civil
procedure is complex. Also, “no win, no fee” arrangements will only be available in personal
injury claims, and will only be accepted if the .lawyer decides there is a high chance of
success.

A third advantage is that JUDICIAL PRECEDENT in civil law provides certainty. Judges must
give reasons for their decisions in cases, so lawyers can advise their clients with certainty as
to the outcome of a case, which saves time and money. The decision is also legally binding,
and the parties are guaranteed a resolution by the end of the hearing.

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On the other hand however, a disadvantage is that uncertainty is present as there is no
guarantee of winning a case, and the uncertainty of what the judge will decide is stressful
on the parties. If the outcome of all cases was predictable, there would be no appeals.
Judges can avoid following precedent through overruling, distinguishing and disapproving
previous decisions.

A fourth advantage is the FORMALITY of a civil case. A party may want their “day in court”
to resolve a matter in a formal way. There is trust in the judge to reach a fair decision, and
the strict procedures give a party confidence that their case is being dealt with properly.
Judges are experienced, qualified lawyers, who can deal with complex legal matters. The
judges will also case manage (allocate to the correct track etc) to minimise delays, and give
a clear, reasoned judgement which results in a binding decision, which means there is a
guaranteed remedy.

On the other hand however, a disadvantage is that the procedures mean that the cost of
taking a case to court may be more than the amount being claimed. Delay is a problem as
cases can still continue for many months, even years. The adversarial nature of a court case,
which produces winners and losers, is stressful, and ruins relationships forever. It should
also be noted that it is very difficult for a claimant to take a case without the assistance of a
lawyer, due to requirements of pre-action protocols.

12
Explain the work of EMPLOYMENT TRIBUNALS (8 marks)

Employment tribunals are part of a wider system of tribunals which work alongside the
court system, but sits in a separate building.

They provide an alternative system of adjudication to the more formal civil court
proceedings.

They were created by the Industrial Training Act 1964 but are now governed by a mixture of
primary legislation eg. The Employment Tribunals Act 1996 and secondary eg. The
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

They hear disputes between employees and employers where the employee thinks they
have been treated unlawfully eg. unfair dismissal, discrimination (for example under the
Equality Act 2010) or unfair deductions from pay.

Before registering a claim the employee must allow ACAS - the Advisory Conciliation and
Arbitration Service – to try to facilitate a settlement. ACAS can be involved throughout the
proceedings.

Each Employment Tribunal panel is made up of three members: a legally qualified chair, a
representative of employers and a representative of employees.

There are no fees to pay, unlike in the civil courts, and a party will only be ordered to pay
the other party’s legal costs if they have behaved unreasonably during the proceedings.

Procedure is less formal than in the civil courts, and the panel sit on the same level as the
parties unlike in a civil court. However, both sides will put forward their case, evidence is
given on oath, with witnesses giving evidence and being cross examined, and legal
representation is very common.

Hearings are in public and cases can be high profile. For example in 2020 TV presenter
Samira Ahmed won her equal pay claim against the BBC.

Hearings are generally quite short as al issues will have been identified beforehand and the
panel will have read the papers. The decision is legally binding.

An appeal can be made to the Employment Appeal Tribunal on the grounds of error of law
or error of fact or procedural unfairness. This must happen within 42 days. Further appeals
can be made to the Court of Appeal and the Supreme Court.

13
Explain NEGOTIATION as a method of alternative dispute resolution (8
marks)

Negotiation is where the two parties resolve their dispute without referring to third party
assistance or submitting to alternative adjudication.

It can be the quickest, cheapest and least formal method of ADR, and has been strongly
encouraged by the courts since the Civil Procedure Rules 1999.

It can be used to resolve any kind of civil dispute, no matter how complex the case is, or
how much money is at stake eg. negligence, contract and family law disputes.

Negotiation may be informal such as two individuals resolving a dispute face to face eg.
a consumer dispute when returning goods and getting a refund. It could happen in
writing or via phone or email.

It could be formal such as asking qualified negotiators such as solicitors to act on behalf of
the parties eg. negotiating the settlement of a personal injury claim, or a company
acquisition. It can take place face to face, by telephone, email or letter.

It can take place at any time during a case, from before legal proceedings are brought,
through to the final trial itself. Many claims will “settle at the door of the court” just before
the trial is due to start as the legal costs and risk of losing are brought sharply into focus.

Tactics play a part as one party may be in a stronger financial position than the other, and
once solicitors are involved, the costs will rise the longer negotiations go on.

95% of civil claims are settled ‘out of court’ through negotiation.

14
Explain MEDIATION as a method of alternative dispute resolution (8 marks)

Mediation uses a neutral 3rd party (the mediator) who facilitates discussion between the
parties in order to reach a compromise. The parties will usually be in separate rooms or
locations, and the mediator will put forward the different points and opinions.

It can be used to resolve any kind of civil dispute, no matter how complex the case is, or
how much money is at stake.

The Family Mediation Council oversees the mediation of family law disputes, for example
concerning contact with children following a separation. In most cases (but not domestic
violence for example) court proceedings can only begin once mediation has taken place.

In commercial disputes mediation has been strongly encouraged by the courts since the
Civil Procedure Rules 1999.

The main mediation service is the Centre for Effective Dispute Resolution (CEDR). Many law
firms are members of CEDR, whose service includes providing the parties with a choice of
mediators with relevant expertise, suggesting a date and venue for the mediation, and
running the mediation itself.

During the mediation the mediator will consult each party to try to establish common
ground. He then acts as a ‘go-between’ as he goes to and fro between the parties with
offers and counter-offers.

The mediator does not give their own opinions (unless asked), leaving the parties in
control.

Most mediations take place in one day, the parties have control over the process and so can
actually stay as long as they wish and can withdraw at any time

The decision is not legally binding.

Mediation does not always succeed, and a court case may follow.

However, in 2020 a CEDR report stated that 16,500 mediations took place 2019-2020, an
increase of 38% from 2018-19., involving £17.5 billion worth of claims, with a 93% success
rate.

15
Explain CONCILIATION as a method of alternative dispute resolution (8
marks)

Conciliation uses a neutral 3rd party (the conciliator) who facilitates discussion between
the parties in order to reach a compromise.

Conciliation is similar to mediation but the neutral third party (the conciliator) plays an
active role in assisting the parties to resolve their dispute.

The conciliator will make suggestions, such as areas for compromise and a possible basis for
settlement. The parties still have control over the process and can withdraw at any time.

The conciliator cannot seek evidence or call witnesses.

Conciliation is very common in industrial (employment) disputes about pay and working
conditions between employees and employers.

The Advisory Conciliation and Arbitration Service (ACAS) has helped to resolve many
disputes where strike action has taken place, and recent examples are the pay disputes in
2019 by air traffic controllers, and in 2020 by teachers.

Before registering a claim with an Employment Tribunal, where the employee thinks they
have been treated unlawfully eg. unfair dismissal, discrimination (for example under the
Equality Act 2010) or unfair deductions from pay, the employee must allow ACAS to try to
facilitate a settlement. ACAS can be involved throughout the proceedings.

Conciliation is also used to resolve family law disputes in the Family Division of the High
Court, for example involving the custody of children.

Conciliation does not always succeed, and a court case may follow. Success relies on the
parties’ willingness to listen to the conciliator’s views.

The decision is not legally binding.

16
Explain ARBITRATION as a method of alternative dispute resolution (8 marks)
Arbitration is the voluntary submission of the parties to the dispute being dealt with by an
independent 3rd party - the Arbitrator, chosen by the parties. The arbitrator will normally
have experience in the field of the dispute.

It is governed by the Arbitration Act 1996.

Decisions to arbitrate can be made before or at the time of a dispute.

It is often used in business disputes such as involving building contracts, and here it can be a
requirement to arbitrate due to a ‘Scott v Avery’ clause in the written agreement made
before a dispute arises. Such clauses are also found in package holiday contracts and mobile
phone contracts.

ABTA provides an arbitration scheme to resolve disputes within 10 weeks between travel
companies and their customers, for example during the collapse of Thomas Cook in 2019.

The Institute of Arbitrators provides trained arbitrators who will have expertise in the
relevant area.

The parties agree the Arbitrator, the date and venue, and the procedure to be used.

Procedure can be a formal court-like hearing with witnesses giving evidence, or a ‘paper
arbitration’ where the parties put their arguments in writing to the arbitrator who will then
make his decision.

The Arbitrator sits on the same level as the parties unlike in a civil court. Legal
representation is very common.

The decision made by the Arbitrator is called an ‘award’.

The decision is legally binding under the Arbitration Act 1996 and can only be appealed
against in exceptional circumstances such as a serious irregularity.

17
Discuss ADVANTAGES and DISADVANTAGES of using ADR (12 marks)
Notes:

You may be asked to discuss advantages or disadvantages or both.

Advantages can be used in a disadvantages question, and vice versa, but only where it is
used as a counter-argument.

You may be asked to discuss a particular method of ADR, or just ADR generally.

If asked to discuss ADR generally, you must refer to specific examples of ADR. Try to
compare ADR with the civil courts.

You may need a brief introduction and conclusion in order to respond to the precise
wording of the question eg. To what extent……

COST is an advantage as cases are dealt with more cheaply than in the courts as parties are
encouraged to represent themselves and not use lawyers. Cases are also dealt with quicker,
which reduces the cost.

On the other hand however, a disadvantage is that costs can be significant, with legal
representation by solicitors and even barristers being increasingly common as parties do not
want to be at a disadvantage. [Legal representation is very common in arbitration]. Also,
legal aid is not available, so a party may represent themselves, which puts the other party –
often an employer or business – at an unfair advantage if they use a lawyer.

SPEED is an advantage as disputes are resolved much quicker than in the courts. Court
hearings can last many days and even weeks. [Mediation usually lasts one day, and
negotiation and conciliation can be even quicker].

On the other hand however, a disadvantage is that the civil courts can now deal with cases
quickly under the Small Claims Track and Fast Track, and certain methods of ADR.
[Negotiation can last a long time before a settlement is reached. Arbitration hearings can
last several days].

PRIVACY is an advantage as matters are dealt with in private, and bad publicity is avoided,
unlike in the courts which are open to being reported by the media. This also helps to
preserve relationships for the future, for example businesses are more likely to continue to
deal with each other if a dispute has been resolved in private.

18
On the other hand however, a disadvantage is that a party may want their “day in court”
to resolve a matter in a very public way, with maximum bad publicity for a party who has
behaved dishonestly. This is only provided by the court system. Also, because of privacy,
there is a lack of publicity about methods of ADR that places ordinary people at a
disadvantage compared to businesses with lawyers who understand how ADR works.

EXPERTISE is an advantage because knowledge of a particular area will increase the chance
of reaching a fair settlement. A civil court judge is a legal expert, but may not have
knowledge of a particular type of business or activity. [The mediator, conciliator, arbitrator
will have expert knowledge, as will a lawyer involved in negotiation]. [Note: no ‘on the other
hand’ disadvantage here].

FLEXBILITY AND CONTROL is an advantage. The parties are free to choose the time, place
and procedure used to resolve the dispute, to fit in with working commitments, unlike in the
courts. This flexibility means that procedures are less formal than in the courts, which
reduces the stress levels for the parties, and creates an atmosphere of ‘compromise’,
whereas a court case is adversarial, producing winners and losers. [The parties can choose
the mediator or arbitrator].

On the other hand however, a lack of formality can be seen as a disadvantage. The lack of
judicial precedent means that there is uncertainty about outcomes. A party may want their
“day in court” before a judge. [With mediation, conciliation and negotiation there is no
guarantee of resolving the dispute, and a court case may follow]. [With arbitration, although
the arbitrator’s award is binding, the ability to appeal a decision is limited, compared to the
courts].

19
TOPIC 2: THE CRIMINAL COURTS AND LAY
PEOPLE
Describe the JURISDICTION of the MAGISTRATES’ COURT and the CROWN
COURT (8 marks)
The Magistrates’ Court and the Crown Court are the two criminal trial courts, known as
courts of first instance.

The MAGISTRATES’ COURT has jurisdiction to deal with all summary offences from start to
finish, some triable either-way offences depending on whether it has the sentencing
powers to hear the trial, and the first hearing of indictable offences before sending to the
Crown Court for trial.

All cases first appear at the Magistrates’ Court. In this preliminary hearing, the magistrates
consider legal representation, legal funding and bail applications under the Bail Act 1976.
The magistrates may refuse bail on certain grounds such as a risk that the defendant will fail
to turn up to court, or may grant conditional bail such as with a curfew order.

It has the power to sentence an offender to a maximum of 6 months imprisonment for one
offence or 12 months for consecutive offences, and/or up to a £5000 fine.

The Legal Aid Sentencing and Punishment of Offenders Act 2012 gives additional powers to
issue higher penalties for offenders who have committed ‘Level Five’ summary offences.

It can also grant search or arrest warrants requested by the police.

THE CROWN COURT has jurisdiction to deal with triable either-way and indictable offences.

It has unlimited sentencing powers, subject to the Sentencing Council’s Guidelines.

A judge sits alone to hear pre-trial matters in cases at the Crown Court, and where a
defendant pleads guilty. When a defendant pleads not guilty, a jury is used to decide the
verdict.

It also has jurisdiction to hear appeals from the Magistrates’ Court.

From July 2022, broadcast news channels will air judges’ sentencing remarks from the
Crown Court, following a change in the law under The Crown Court (Recording and
Broadcasting) Order 2020.

20
Describe the CLASSIFICATION OF OFFENCES and PRE-TRIAL PROCEDURE in the
criminal process (8 marks)
There are 3 types of criminal offence.

PRE-TRIAL, ALL CASES first appear at the Magistrates’ Court. In this preliminary hearing, the
magistrates consider legal representation, legal funding and bail applications under the
Bail Act 1976. The magistrates may refuse bail on certain grounds such as there is a risk the
defendant will fail to turn up to court, or may grant conditional bail such as with a curfew
order.

SUMMARY offences are less serious offences, such as assault and most driving offences,
which are dealt with from start to finish in the Magistrates’ Court.

If the defendant pleads guilty, the magistrates will decide on the sentence there and then. If
the defendant pleads not guilty, the magistrates will hear the trial there and then or set a
date for the trial.

TRIABLE EITHER WAY offences are middle range offences such as S.47 of the OAPA 1861
(Assault occasioning ABH) where the trial is heard in either the Magistrates’ Court or the
Crown Court, depending on whether the Magistrates can accept jurisdiction based on their
sentencing powers.
There is a preliminary hearing known as a plea before venue hearing. If the defendant
pleads guilty, the magistrates may sentence the defendant or send to the Crown Court for
sentencing if their powers are insufficient.

If the defendant pleads not guilty, the magistrates will then conduct a mode of trial
hearing. If the magistrates do not have sufficient sentencing powers, the case will be sent to
the Crown Court for trial. However, even if the magistrates are prepared to hear the trial,
the defendant can choose to have their trial heard in the Crown Court.

Under the Powers of Criminal Courts (Sentencing) Act 2000, the magistrates have the
power to sentence an offender to a maximum of 6 months imprisonment for one offence or
12 months for consecutive offences, and/or up to a £5000 fine.

The Legal Aid Sentencing and Punishment of Offenders Act 2012 gives additional powers to
issue higher penalties for offenders who have committed ‘Level Five’ summary offences.

INDICTABLE offences are the most serious offences such as murder and S.18 of the OAPA
1861 (GBH/wounding with intent) where the trial is heard in the Crown Court.

21
After a preliminary hearing the magistrates will send the case to the Crown Court. If the
defendant pleads not guilty there will be a review where details of the trial will be
confirmed, such as which witnesses will be called, and then the trial will take place. If he
pleads guilty, he will be sentenced.
Describe APPEALS and APPELLATE COURTS in the criminal process (8 marks)

APPELLATE COURTS are those that can hear appeals.

There are 2 types of appeal FROM THE MAGISTRATES’ COURT.

Firstly, the Defence can appeal to the Crown Court, as of right, against the conviction
and/or the sentence.

The case is completely reheard by a judge and two magistrates. The conviction may be
confirmed, reversed or varied to find the defendant guilty of a lesser offence. The sentence
may be confirmed or increased.

Secondly, a Case Stated Appeal ‘on a point of law’ can be made to the Queen's Bench
Divisional Court.
The Defence may appeal against the conviction on a point of law. The court may confirm,
vary or reverse the decision, or send the case back to the Magistrates’ Court for a re-trial.

The Prosecution may appeal against the acquittal on a point of law. The court may confirm
or quash the decision, or send the case back to the Magistrates’ Court for a re-trial, as with
the Stephen Lawrence murderers in 2012.

There are 3 types of appeal FROM THE CROWN COURT.

Firstly, the Defence may appeal to the Court of Appeal (Criminal Division) against the
conviction and/or sentence on the grounds that the conviction is unsafe, for example if the
defendant does not feel they were given a fair trial. Leave to appeal (permission) is required
under The Criminal Appeal Act 1995, and the application must be made within 28 days of
the decision.

The court may order a re-trial or quash the conviction. The sentence may be reduced but
not increased.

Secondly. the Prosecution may ask the Attorney General to review an unduly lenient
sentence, but leave (permission) is only given in very serious cases and the application must
be made within 28 days of the decision.

The Attorney General may then send the case to the Court of Appeal (Criminal Division)
who can increase the sentence or keep it the same.

22
Thirdly, the Prosecution may appeal to the Queen’s Bench Divisional Court against the
acquittal on the grounds of ‘jury nobbling’, where the family or friends of the defendant
have threatened or intimidated one or more members of the jury.

The QBD may order a re-trial, or even a re-trial without a jury.

An appeal can be made by the Prosecution or Defence FROM THE COURT OF APPEAL
(CRIMINAL DIVISION) to the Supreme Court on the grounds that there is a point of law of
public importance.

Leave to appeal is required from either the Court of Appeal or the Supreme Court.

The Supreme Court may confirm, reverse or vary the decision, or order a re-trial.

23
Describe the different AIMS when sentencing adult offenders (8 marks)
The 5 AIMS of sentencing are set out in Section 142 Criminal Justice Act 2003.

Punishment of offenders means that the offender deserves punishment for his acts and so
this aim is based on ‘an eye for an eye’ – society and victims getting revenge. A judge makes
sure that the sentence given is in proportion to that offence and so the more serious the
offence, the more severe the sentence. The most severe example is a mandatory life
custodial sentence for murder.
Public protection means that the public needs to be protected from dangerous offenders.
Where the court considers that there is a significant risk to members of the public of serious
harm being caused by the offender in the future, the court must give a custodial sentence.
Another method of protecting the public is to impose a Home Detention Curfew order on
the offender ordering him to stay at home at certain times, up to 16 hours per day, which
can be monitored by an electronic tag which triggers an alarm if the offender breaks the
curfew.
Rehabilitation and Reform of offenders means reforming (changing) the offender in order
to rehabilitate him into society. It is a forward-looking aim, with the hope that the
offender’s behaviour will be altered by the penalty imposed. An example is a Community
Order with a Requirement to attend anger management classes or a drug and alcohol
treatment programme.
Reparation by the offender means that the offender makes amends to the victim of the
crime. This can be achieved by ordering the offender to pay compensation to the victim or
by ordering ‘restitution’ which means returning stolen property to the victim. There are also
local reparation projects to bring offenders and victims together so that the offender can
make direct reparation to the victim.
Reduction of Crime means that the court uses sentencing to try to lower the levels of crime
in the future. Sentencing that involves the rehabilitation and reform of offenders aims to
reduce crime. Reduction by Deterrence is another method and can be individual deterrence
by punishing the offender so that they are less likely to re-offend, or general deterrence by
making an example of an offender in order to warn other potential offenders of the type of
punishment they face. Obviously severe custodial sentences will be a deterrent, but also a
suspended custodial sentence acts as a deterrent as the offender only goes to prison if they
commit another similar offence within a specific time.

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Describe the different FACTORS when sentencing adult offenders (8 marks)

The Criminal Justice Act 2003 and the Sentencing Council Guidelines together provide a list
of potential aggravating and mitigating factors that the courts should take into account
when sentencing an offender.

The court may order a Pre-sentence Report to be prepared by the Probation Service before
proceeding to sentence, which will include such factors. The report will give information
about the offenders background and suitability for a community-based sentence. It might
show why the offender has committed the crime, and indicate the likely response to a
community based penalty.

Medical reports prepared by a relevant doctor may also be prepared where the offender
has medical or psychiatric problems.

Aggravating factors make a crime more serious, and may increase the severity of the
sentence.

Examples are where the offender has previous convictions, committed the offence whilst on
bail, operated as part of a gang, deliberately targeted a vulnerable victim such as the elderly
or children, used a weapon or was motivated by, or demonstrated hostility towards, a
person who falls within one or more of the protected characteristics under the Equality Act
2010 eg. race, religion, sexuality, gender reassignment, disability, age.

Mitigating factors make a crime less serious, and may decrease the severity of the
sentence.

Examples are where the offender shows genuine remorse, if he only played a minor part in
the crime, if it was a first time offence, if he co-operates with the police and if there is an
admission of guilt at the earliest opportunity (which can reduce the sentence by up to one
third, but itself reduces as the trial gets closer). Personal circumstances such as serious
illness may be considered.

The offender’s background may also be considered. For example, his financial situation
may be considered when deciding whether a financial penalty is suitable.

25
Describe the different TYPES of sentences for adult offenders (8 marks)
The Sentencing Council was set up by the Coroners and Justice Act 2009. It issues
Sentencing Guidelines for the courts to follow.

An adult may be given a CUSTODIAL SENTENCE (imprisonment) which is the most serious
sentence, for the most serious crimes.

A mandatory life sentence is only given for murder, but the judge is allowed to state the
minimum number of years’ imprisonment that the offender must serve before being eligible
for release on license. A “whole life order” is given to the most dangerous criminals who the
judge thinks should never be released from prison. There are approximately 75 prisoners
currently serving this sentence.
A discretionary life sentence is for other serious offences such as manslaughter. It means
the maximum sentence is life imprisonment but the judge does not have to impose it.

An extended determinate sentence was introduced by the Legal Aid Sentencing and
Punishment of Offenders Act 2012. It is a combination of a 12 month minimum custodial
sentence and an extended period ‘on licence’ where the offender can live in the community
on certain conditions such as keeping in regular contact with the police. It is aimed at
protecting the public from offenders who have committed violent or sexual crimes.

A minimum sentence may apply, for example the offence of playing a leading role in dealing
in Class A drugs of 5kg or more has a minimum custodial sentence of 12 years.

A suspended sentence means the offender will only go to prison if he reoffends within a
particular time frame. This should only be given if the offence is so serious that an
immediate custodial sentence would have been appropriate but there are exceptional
circumstances in that case which justify suspending the sentence.

A fixed term sentence is where the judge can only give a custodial sentence up to a specific
length, for example the maximum is 6 months for assault.

A Home Detention Curfew means the offender is ordered to stay at home at certain times,
up to 16 hours per day, which can be monitored by an electronic tag which triggers an alarm
if the offender breaks the curfew.

An adult may be given a NON-CUSTODIAL SENTENCE for less serious crimes.

Under Section 177 Criminal Justice Act 2003 an adult may be given a Community Order
which may include one or more of 14 available REQUIREMENTS.

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Examples are an Unpaid work requirement (up to 300 hours of work in the community), a
Curfew requirement (staying at home for up to 16 hours per day) which often combines
with an Electronic monitoring (tagging) requirement, a Drug rehabilitation requirement, an
Alcohol treatment requirement, and a Residence requirement (must live in a certain place).

A FINE can be ordered to be paid and a COMPENSATION ORDER can be paid to the victim.

A DISCHARGE is the least severe sentence, and can be Absolute where no further action will
be taken or Conditional where further action will only be taken if the offender re-offends.

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Describe the qualification, selection and appointment of LAY MAGISTRATES
(8 marks)

For QUALIFICATION, upon appointment magistrates must be aged between 18-65, and
must retire from the bench at the age of 70.

They must live or work in, or reasonably close to, the area they want to serve, known as the
‘local justice area’ so they will have an insight into local patterns of crime.

They must be prepared to sit for at least 26 half days per year.

For DISQUALIFICATION, those unable to sit include people with a serious criminal
conviction; undischarged bankrupts; a person who has a job incompatible with the role or a
relative of those with an incompatible job.

An incompatible job means those in the criminal justice system such as the police, lawyers
and judges.

Others who are not eligible to be appointed are those whose hearing is impaired or are
infirm.

SELECTION begins with an advertisement on the Ministry of Justice website, in newspapers

or on the radio, and then completion of an application form.

Applications are made to the Local Advisory Committee.

If the applicant is eligible, he will be invited to a First Interview by the Local Advisory
Committee. The LAC aims to select a good cross section of society.

In this interview they see whether the candidate possesses the 6 key qualities set out by
the Lord Chancellor in 1998 : good character, understanding and communication, social
awareness, maturity and sound temperament, sound judgement, commitment and
reliability.

If the candidate is successful, there is a Second Interview, at which two cases studies are
given to the candidate in order to test ‘judicial aptitude’ and look for possible conflicts of
interest.

APPOINTMENT begins when the LAC recommends suitable candidates to the Lord Chief
Justice.

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The Lord Chief Justice designates the appointment to the Senior Presiding Judge under the
Crime and Courts Act 2003.

At a local court the candidate will then be ‘sworn in’ by swearing an Oath of Allegiance to
the Queen and to the court to carry out their duties “without fear or favour”.

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Describe the ROLE of LAY MAGISTRATES (8 marks)

Magistrates are unpaid and sit for at least 26 half days per year. They sit as a Bench of 3: a
Chairperson and 2 less experienced “wingers”.

Magistrates deal with approximately 97% of all criminal matters.

PRE-TRIAL, ALL CASES first appear at the Magistrates’ Court. In this preliminary hearing, the
magistrates consider legal representation, legal funding and bail applications under the
Bail Act 1976. The magistrates may refuse bail on certain grounds such as there is a risk the
defendant will fail to turn up to court, or may grant conditional bail such as with a curfew
order.

SUMMARY offences are less serious offences, such as assault and most driving offences,
which are dealt with from start to finish in the Magistrates’ Court.

If the defendant pleads guilty, the magistrates will decide on the sentence there and then. If
the defendant pleads not guilty, the magistrates will hear the trial there and then or set a
date for the trial.

TRIABLE EITHER WAY offences are middle range offences such as S.47 of the OAPA 1861
(Assault occasioning ABH) where the trial is heard in either the Magistrates’ Court or the
Crown Court, depending on whether the Magistrates can accept jurisdiction based on their
sentencing powers.
There is a preliminary hearing known as a plea before venue hearing. If the defendant
pleads guilty, the magistrates may sentence the defendant or send to the Crown Court for
sentencing if their powers are insufficient.

If the defendant pleads not guilty, the magistrates will then conduct a mode of trial
hearing. If the magistrates do not have sufficient sentencing powers, the case will be sent to
the Crown Court for trial. However, even if the magistrates are prepared to hear the trial,
the defendant can choose to have their trial heard in the Crown Court.

Under the Powers of Criminal Courts (Sentencing) Act 2000, the magistrates have the
power to sentence an offender to a maximum of 6 months imprisonment for one offence or
12 months for consecutive offences, and/or up to a £5000 fine. In a recent update,
Magistrates can now issue prison sentences of 12 months for a single offence to help deal
with pandemic backlog, resulting in 1,700 extra days of Crown Court time to be freed up
annually.

The Legal Aid Sentencing and Punishment of Offenders Act 2012 gives additional powers to
issue higher penalties for offenders who have committed ‘Level Five’ summary offences.

INDICTABLE offences are the most serious offences such as murder and S.18 of the OAPA
1861 (GBH/wounding with intent) where the trial is heard in the Crown Court.

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After a preliminary hearing the magistrates will send the case to the Crown Court.
AT TRIAL, the magistrates will listen to all the evidence. The Justices’ Clerk helps
magistrates with any law. The magistrates then alone decide the verdict. The magistrates
will then proceed to sentence the defendant if found guilty. They can send the case to the
Crown Court for sentencing if they do not have sufficient powers.

Specially nominated and trained magistrates work in the Youth Court and hear criminal
cases involving young offenders between 10-17 years old.

Magistrates sit in the Crown Court with a professional judge to hear appeals from the
Magistrates’ Court.

Magistrates can also grant search or arrest warrants requested by the police.

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Describe the qualification, selection and appointment of JURIES (8 marks)
Rules are contained in the Juries Act 1974 (amended by the Criminal Justice Act 2003 and
the Criminal Justice and Courts Act 2015).

For QUALIFICATION a person must be aged between 18-75, on the electoral register, and a
resident of the UK, Channel Islands or Isle of Man for at least 5 years since the age of 13.

Some people are UNABLE TO SERVE:

DISQUALIFICATION for life is for those who have been imprisoned for life or for public
protection, or have received a prison sentence of 5 years or more.

Disqualification for 10 years is for those who have received a prison sentence of less than 5
years, or a suspended sentence, or who have received a community order.

A person is disqualified whilst on bail.

If a disqualified person fails to disclose the fact and turns up for jury service, they may be
fined up to £5,000.

INELIGIBLE people are those with certain mental health issues, who cannot
speak/understand English, those with deafness or a disability which would stop them
carrying out the role.

Jury service can be DEFERRED (delayed) for up to 12 months where there is ‘good reason’.
Examples are a booked holiday, an exam or an operation, and Armed Forces personnel if
their commanding officer certifies they are needed elsewhere.

EXCUSAL can be given if jury service cannot be undertaken in the next 12 months. Again
‘good reason’ is needed, for example having a serious illness or disability, or being a full time
carer of someone with a serious illness or disability.

Excusal can also be given if jury service has been undertaken within the previous 2 years.

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SELECTION begins when the Jury Central Summoning Bureau randomly selects names from
the electoral register.

A Lord Chancellor’s Summons is then sent through the post and those summoned must
reply. Approximately 150 summonses for each court are sent out every two weeks. If the
summons is ignored then they could be fined up to £1000.

All jurors are expected to attend for two weeks’ service, but will have to attend for longer if
the trial lasts more than that.

From the jury pool In the waiting area at court people are randomly divided into groups of
15.

The Court Clerk will then call 12 names out randomly selected from a shuffled pack of
cards.

Checks and challenges are undertaken.

Vetting can happen in two ways; The Disclosure and Barring Service (DBS) checks, and
authorised jury checks. DBS checks are routine police checks and checking whether certain
jurors are disqualified. In exceptional circumstances, such as in a case involving national
security, authorised jury checks are made on the wider background or the juror, such as
their for political affiliations. Permission from the Attorney General is required.

In the courtroom jury members may be challenged in 3 ways.

A challenge ‘to the array’ means a challenge to the whole jury on the basis that it has been
chosen in an unrepresentative or biased way. It is extremely rare. In Ford it was held that a
challenge cannot be made simply because a jury is not multi racial.

A challenge ‘for cause’ means a challenge to an individual juror, for example because they
are disqualified or because the juror knows or is related to the defendant or a witness. In
Wilson the juror was a wife of a prison officer who worked in the prison where the
defendant was imprisoned.

The prosecution may ask a juror to ‘stand by’, without giving a reason. The juror will be put
to the end of the list and will only be used if there are not enough others. An example would
be if a juror clearly would be unable to follow a complex case.

APPOINTMENT takes place when the jury enters the jury box to be sworn in on oath on the
holy book of their choice, or they can ‘affirm’ if they are of no faith.

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Describe the ROLE of JURIES (8 marks)
Rules relating to the role of the jury are contained in the Juries Act 1974 and the Criminal
Justice Act 2003. They listen to around 1% of all criminal trials – about 20,000 cases a year.

Twelve jurors sit in the Crown Court. Trials are presided over by a Judge, and the functions
are split between the judge and jury. The Judge decides points of law, and the jury decides
the facts. They decide the trials of indictable offences (the most serious offences such as
murder) and some triable either way offences (mid-range offences such as assault
occasioning ABH under s47 OAPA 1861).

They listen to the evidence and submissions provided by those in court, including the cross
examination of the witnesses, and the closing speeches, of the defence and prosecution
barristers. They may see exhibits such as items involved in the crime, photographs, CCTV
images and diagrams.

The jury is the sole decider of fact. Jurors are excluded from court whilst advocates argue
points of law.

They can make notes during the trial but these can only be used in the courtroom and the
private jury room. They cannot be taken home.

After evidence has been presented in the courtroom, the jury must listen very carefully to
the judge’s summing up when he summarises the facts, explains the law, and explains to
the jurors what they have to decide.

In about 10% of cases the judge can tell the jury to acquit the defendant - but cannot tell
them to find the defendant guilty, as established in Bushell’s Case 1670. The judge can do
this if it has been decided that the prosecutions evidence has not made out a case against
the defendant.

The jury has to reach a verdict of guilty or not guilty, and they retire to a private jury room
to do this.

They have a secret discussion. Jurors are not allowed to discuss the case with anyone else
and could be liable under the Contempt of Court Act 1981 if they don’t ensure
confidentiality, as in Fraill where a woman contacted the defendant by Facebook during the
case, and in Beard where Google research was shared with others in the jury.

They can put written questions to the judge while they are deliberating.

A unanimous verdict is preferred, i.e. all agree that the defendant is either guilty or not
guilty. However, a majority verdict of 11:1 or 10:2 can be accepted by the judge when
enough time has elapsed, usually at least 2 hours.

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The foreman then publicly announces the verdict to the court but does not have to give
reasons for the decision.

The judge then decides the sentence, not the jury.

35
Discuss ADVANTAGES and DISADVANTAGES of JURIES (12 marks)

Notes:

You may be asked to discuss advantages or disadvantages or both.

Advantages can be used in a disadvantages question and vice versa, but only where it is
used as a counter-argument.

You may need a brief introduction and conclusion in order to respond to the precise
wording of the question eg. To what extent……

A first advantage is that juries have jury equity as they do not have to give reasons for their
verdicts so they can decide cases according to their idea of fairness, established in Bushell’s
Case 1670. In Kronlid women damaged planes and admitted they had done so in order to
prevent the planes being used in war. The jury acquitted even though they were legally at
fault. Similarly, In Blythe a man was acquitted having supplied cannabis to his ill wife.

On the other hand however, a disadvantage is that perverse decisions can be reached by
juries. This means juries have refused to convict in clear cut cases. In Owen a man was
acquitted having killed the man who killed his son – the jury acquitted even though he was
legally at fault, which is perverse and unfair. More recently in 2022, the “Colston Four” were
found not guilty of criminal damage after they pulled down a statue of slave trader Edward
Colston. Even though the defendants did actually commit the crime, they were found not
guilty due to the heightened awareness of the “black lives matter” movement. [mention
Kronlid and Blythe if not done previously].

A second advantage is that they promote public confidence in the criminal justice system.
Trial by jury supports the longstanding principle of “trial by peers” and was established by
the Magna Carta in 1215. Strong objections were raised in recent years to calls to withdraw
the right to trial by jury for cases of minor theft. The jury helps to make the legal system
more transparent, and because the law has to be explained to the jury, the defendant will
be able to understand what he is being accused of. Justice is seen to be done as members of
the public have an active role in the legal system. Lord Devlin said that juries are the “lamp
that shows that freedom lives”, meaning the right to be tried by one’s peers is a key
element of liberty against the state.

On the other hand however, a disadvantage is that ordinary citizens may be easily
influenced. Firstly, the media can influence the jury, especially in high profile cases. In
Taylor and Taylor, the two defendant sisters were allowed to appeal their conviction for
murder because of misleading photos published in a newspaper which may have influenced
the jury. Secondly, the internet can influence the jury. Some jurors research the case,
meaning a costly re trial and some jurors ending up in prison. For example, Theodora Dallas

36
was a juror who researched a defendant’s past on the internet and shared it with the other
jurors. She was imprisoned for six months. Similarly, in Fraill a woman contacted the
defendant by Facebook during the case, and in Beard Google research was shared with
others in the jury. Thirdly, Jury nobbling may occur where jurors are threatened or bribed
by the defendant’s friends and family, for example in criminal gang cases. Protecting juries
from nobbling costs the taxpayer millions each year. Fourthly, in Young, four jurors held a
séance in their hotel room to try to contact the alleged victims of the defendant and to ask if
he had killed them. They returned a guilty verdict, but The Court of Appeal quashed the
defendants conviction.

A third advantage is the secrecy of the jury room so that anything said in the jury room
cannot be disclosed. The Contempt of Court Act 1981 makes it a criminal offence to disclose
the juries’ deliberations. This means jury are free from pressure in their discussions.

However, secrecy may in fact be a disadvantage for a variety of reasons. The jury does not
need to give a reason for the decision reached making difficult for the defendant to appeal
and there is no way of knowing how the decision was arrived at. There is also no way of
knowing whether the decision has been reached fairly or how the decision was reached.
Also, the fact that jury service is compulsory means it may be an inconvenience to some.
This means they may not take deliberation seriously, resulting in a rushed decision.

On the other hand however, a disadvantage of secrecy is that there may be a lack of
understanding. As discussions are in secret, it is not possible to check whether the jury
understood the issues in the case and came to their decision for the right reasons. A
Ministry of Justice report in 2010 found two out of three jurors do not fully understand the
legal directions given to them by judges when they retire to consider their verdict. This is
particularly prevalent in fraud trials. It has been suggested by the Roskill Committee that
juries should not be used for fraud trials. In addition, it could also be argued that twelve
people in one room is considered too many to allow for a productive and high quality
discussion.

A fourth advantage is the impartiality of the jury as they are not connected to anyone in
the case. The process of random selection should result in a cross section of society which
should lead to an impartial jury as the jurors’ different biases should cancel each other out.
Challenges can be made ‘to the array’ on the basis that the jury has been chosen in an
unrepresentative or biased way, or ‘for cause’ because a juror knows or is related to the
defendant or a witness, or the prosecution may ask a juror to ‘stand by’. Also, no one
individual person is responsible for the decision, which decreases the chance of a biased
decision.

On the other hand however, a disadvantage is that there may be bias. Jurors may have
prejudices which can affect the verdict, for example racist, sexist or homophobic views. In
Sander, a juror wrote a note to the judge complaining that other jurors had been making
openly racist jokes and remarks. There may be bias against the police, which means that a
37
not guilty verdict is more likely, and juries are often criticised for having high acquittal rates.
Also, a dominant personality can unfairly influence the other members of the jury, meaning
that a verdict is biased and so not truly representative of the whole jury.

TOPIC 3: LEGAL PERSONNEL

Describe the ROLE of BARRISTERS (8 marks)
The Bar consists of about 16,500 self employed barristers who work from a set of Chambers
(similar to offices) of usually about 15-20 barristers. They will employ a clerk as an
administrator who books cases and negotiates fees, and other support staff.

There are about 3,000 barristers employed by organisations such as the Crown Prosecution
Service and Local Government.

They can also work within an Alternative Business Structure which were set up by the Legal
Services Act 2007 and are law firms that are owned by non-lawyers.

In most cases a party will instruct a solicitor first, who then instructs - ‘briefs’ - a barrister.

Since 2004 barristers can be instructed directly by members of the public under the Public
Access Scheme.

Many barristers specialise in particular areas of law, for example criminal law or family law.

The key area of work is advocacy – presenting cases in court. They have full rights of
audience which means they can appear in any court in England and Wales. If prosecuting in
a criminal case, the barrister will be instructed by the CPS. The barrister will advise on the
likely success of the charges, and work with the CPS and police to try and secure a
conviction. If they are defending, they will advise on the strength of the prosecution
evidence and any weaknesses in the defence. They cannot represent a client with a “not
guilty” plea who has confessed guilt. They may also advise on the possibility of an appeal if
their client is convicted.

All barristers give advice, write ‘opinions’, host case conferences with solicitors and
witnesses, draft legal documents such as a Defence and help with negotiations.

They may receive a ‘brief fee’ for taking on a case, an ‘advice fee’ for providing written
advice, and then fees for days in court if the matter proceeds to trial.

After practising for at least 10 years, a barrister can apply to be made a Queen’s Counsel
(QC), known as ‘taking silk’. There are currently about 1,500.

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A QC can take on more complex cases than junior barristers, will charge higher fees, and
will often have a junior barrister to assist with a case.

Since 2004, an independent selection panel recommends the appointment of a QC. If

appointed, the QC must pay fees of over £5,000.

Describe the REGULATION of BARRISTERS (8 marks)

The General Council of the Bar is the governing body of barristers in England and Wales. It
represents the interests of their members – much like a union. It promotes high standards
across the profession.

A complaint will usually first be made to the barrister’s Chambers, for example about
excessive fees, delay, lack of communication or negligent advice.

If not satisfactorily resolved, a complaint can then be made to the Bar Standards Board,
created under the Legal Services Act 2007 to regulate the profession. It currently consists of
8 ‘lay people’ and 5 barristers and the Chair is Baroness Tessa Blackstone. It publishes a
Code of Conduct and investigates any alleged breach of the Code.

The BSB can discipline any barrister who breaches the Code.

In serious matters of professional misconduct, the barrister will be referred to the

Disciplinary Tribunal of the Council of the Inns of Court.

The Tribunal can give a formal warning, order further training, order payment of a fine of
up to £50,000, suspend for up to a year, or even disbar – ‘strike off’ - from practising as a
barrister.

If the complainant is unhappy with the Tribunal decision, he can take the matter to the Legal
Ombudsman which was set up by the Office for Legal Complaints under the Legal Services
Act 2007.

The Legal Ombudsman can order an apology, work to be re-done, a refund or compensation
of up to £30,000.

39
A barrister can be sued in the civil courts for negligence in respect of written advice,
established in SAIF ALI v SYDNEY MITCHELL (1980), and in respect of advocacy in court,
established in HALL v SIMONS (2000).

Describe the ROLE of SOLICITORS (8 marks)

There are over 150,000 solicitors practising in England and Wales, with most employed in
private practice in solicitors’ firms, and the rest employed by organisations such as the
Crown Prosecution Service, Local Government and businesses.

A solicitor may work as a sole practitioner but most work in a firm of partners (a
partnership).

A newly qualified solicitor will start as an assistant solicitor, then will seek to progress to
being a salaried partner, and then ‘buy in’ to the firm as an equity partner so that they can
share in the firm’s profits.

Firms of solicitors range from the smaller ‘high street’ firms with a few partners to larger
‘big city’ firms with many partners.

In larger firms solicitors will have a great degree of specialisation, for example in company
law or property law. In smaller firms solicitors may still specialise to some extent, but they
may also be expected to advise clients on a wide range of topics such as housing, wills and
conveyancing.

Solicitors are principally office based. They charge by the hour, and will interview clients,
advise them, draft documents, negotiate with other parties and may instruct – ‘brief’ - a
barrister to provide advice on a complex case, or to present the case in court.

They undertake ‘contentious work’ such as personal injury litigation and criminal
prosecutions, and ‘non-contentious work’ such as wills and conveyancing.

Solicitors can be an advocate in court. Solicitors have automatic rights of audience in the
Magistrates’ Court and County Court. Since the Courts and Legal Services Act 1990 solicitors
with some advocacy experience can obtain a certificate of advocacy for the higher courts
after passing an exam and undergoing training.

Those with relevant advocacy experience are eligible to be appointed Queen’s Counsel and
also to be appointed to higher judicial posts.

Solicitors may act as Deputy District Judges in the Magistrates’ Court and County Court.

40
Describe the REGULATION of SOLICITORS (8 marks)
The Law Society is the governing body of solicitors in England and Wales. It represents the
interests of their members – much like a union. It promotes high standards across the
profession.

A complaint will usually first be made to the solicitor’s employer, for example about
excessive fees, delay, lack of communication or negligent advice.

If not satisfactorily resolved, a complaint can then be made to the Solicitors Regulation
Authority, created under the Legal Services Act 2007 to regulate the profession. It publishes
a Code of Conduct and investigates any alleged breach of the Code.

If there is evidence of professional misconduct, the SRA will put the case before the
Solicitors Disciplinary Tribunal, which consists of 2 solicitors and one ‘lay person’.

The SDT can order a fine, a written warning, or in more serious cases suspend or even ‘strike
off’ a solicitor from the Roll so they can no longer practise.

If the complainant is unhappy with the Tribunal decision, he can take the matter to the Legal
Ombudsman which was set up by the Office for Legal Complaints under the Legal Services
Act 2007.

The Legal Ombudsman can order an apology, work to be re-done, a refund or compensation
of up to £30,000.

A solicitor can be sued in the civil courts for negligence in respect of advice/work,
established in WHITE v JONES (1995) – including those who are not their clients, but who
have been affected by their work - and in respect of advocacy in court, established in HALL v
SIMONS (2000).

Describe the ROLE of LEGAL EXECUTIVES (8 marks)

41
They are qualified lawyers who have passed the Institute of Legal Executives’ Professional
Qualification in Law. There are over 20,000 legal executives practising.

They usually specialise in a particular area of law. They mainly work in solicitors’ firms as
assistants, but can also work in Local Government.

They are principally office based. Their work is similar to that of a solicitor, but they tend to
deal with more straightforward matters, for example drafting wills, handling aspects of
conveyancing or advising on matrimonial problems. However, they will interview clients,
advise them, draft documents, and may instruct – ‘brief’ - a barrister to provide advice on a
complex case, or to present the case in court.

They undertake ‘contentious work’ such as personal injury litigation and criminal
prosecutions, and ‘non-contentious work’ such as wills and conveyancing.

They can be an advocate in court, and have some limited rights of audience. They can be an
advocate in the County Court in a civil case, or a family case that is not defended.

Since 2008 they have been able to do an advocacy course and obtain wider rights of
audience through a Civil Proceedings, Criminal Proceedings or Family Proceedings
Certificate.

This Certificate allows legal executives to be an advocate in the Magistrates’ Court, for
example to make an application for bail or deal with cases in the Youth Court or Family
Court.

They charge an hourly rate just like solicitors, and so contribute to the income of the law
firm.

A Fellow of the Chartered Institute of Legal Executives can go on to qualify as a solicitor

after passing the Law Society’s Legal Practice Course.

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Describe the REGULATION of LEGAL EXECUTIVES (8 marks)
The Chartered Institute of Legal executives (CILEx) is the governing body of legal executives
in England and Wales. It represents the interests of their members – much like a union. It
also provides education, training and development for legal executives.

It promotes high standards across the profession and publishes a Code of Conduct.

A complaint will usually first be made to the legal executive’s employer, for example about
excessive fees, delay, lack of communication or negligent advice.

If not satisfactorily resolved, a complaint can then be made to the CILEx Regulation Board
which regulates legal executives and investigates any alleged breach of the Code.

It prepares a summary and the matter is put to the Professional Conduct Panel who will
decide if there has been misconduct. It can give a formal warning, or for serious matters it
can refer the case to the Disciplinary Tribunal. The Tribunal can give a formal warning,
exclude a person from membership or order a fine up to £3,000.

If the complainant is unhappy with the, he can take the matter to the Legal Ombudsman
which was set up by the Office for Legal Complaints under the Legal Services Act 2007.

The Legal Ombudsman can order an apology, work to be re-done, a refund or compensation
of up to £30,000.

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Discuss the problems facing a person wanting to join the legal
profession (12 marks)
Cost of training - the cost of the vocational training to become a solicitor is approximately
£15,000 and £18,000 to undertake the vocational training to become a barrister.

Over supply - there has always been an oversupply of students completing vocational and
professional training. There is now a greater number of students undertaking CILEX and
solicitor apprenticeships further increasing the number of would-be lawyers looking for jobs
at the end of training

Professional training opportunities are becoming more difficult to obtain, there are fewer
around

Fewer job opportunities: The growth of on-line dispute resolution and technology has
resulted in a reduction in need for lawyers to take on what would have previously been
‘bread and butter’ work. On-line services provide can provide automated advice and on-line
documents

Disruption to traditional legal practices from a wide range of new providers for example, on-
line services, accounting firms. Such ‘disruption’ is changing the face of the legal profession
in the 21st Century.

Austerity and cuts in public funding has resulted in less legal aid work available. on legal aid
work provided and as a result there are less job.

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Describe the different TYPES of JUDGES and their ROLES (8 marks)
Broadly, there are 2 types of judge – Inferior Judges and Superior Judges.

An Inferior Judge can be a District Judge, Recorder (a part time judge) or Circuit Judge.

In the Magistrates’ Court, District Judges hear summary, and some triable either-way,
criminal cases of first instance. They decide the verdict and pass sentence.

In the County Court, District Judges, Recorders and Circuit Judges hear all civil cases of first
instance. They decide liability and award the appropriate remedy.

In the Crown Court, Recorders and Circuit Judges hear some triable either-way, and all
indictable, criminal cases of first instance. They advise the jury on law and pass sentence.
The jury decides the verdict. They also hear appeals from the Magistrates’ Court.

A Superior Judge can be a High Court Judge, Lord/Lady Justices of Appeal or a Justice
of the Supreme Court.

In the High Court, High Court Judges hear cases in one of the 3 Divisions. They hear civil
cases of first instance where they listen to evidence, decide the law decide liability and
award the appropriate remedy. They also hear both civil appeals from the County Court, and
case stated appeals from the Magistrates Court. They sometimes sit in the Crown Court to
hear criminal trials, where they decide verdict and sentence.

In the Court of Appeal, Lord/Lady Justices of Appeal sit as a panel of 3 and hear appeals
from the three divisions of the High Court and the County Court. More specifically, they
hear appeals against the finding or liability or about the remedy awarded. The court may
allow the appeal in part, in full, dismiss it, or order a retrial. They also hear criminal appeals
in the Criminal Division.

In the Supreme Court, Justices of the Supreme Court sit as a panel of 3 to 12, but usually 5,
and hear both civil and criminal appeals on points of law of public importance. They may
retire for months when making their decision. They also hear leapfrog appeals from the High
Court.

Decisions of Superior Judges on a point of law, particularly in the Supreme Court and Court
of Appeal, can become a binding precedent for all lower courts to follow in future cases of
similar fact, under the doctrine of judicial precedent.

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Describe the SEPARATION OF POWERS and the INDEPENDENCE OF THE
JUDICIARY (8 marks)
THE DOCTRINE OF THE SEPARATION OF POWERS is a key principle of the UK constitution
and was put forward by Montesquieu in the 18th century. To allow for a democratic society,
the three main sources of power are kept separate. The doctrine provides a system of
checks and balances.

The Legislature is the law making arm of the state, which is Parliament. The Executive is the
body controlling the law, which is the government. The judiciary apply the law.

THE JUDICIARY MUST BE INDEPENDENT so that fair and impartial justice is delivered, and
no one person or body of people holds all the power in society.

JUDICIAL INDEPENDENCE is achieved in several ways:

Independence from the legislature (Parliament) means that full-time judges are not
involved in Parliamentary law making and cannot be MPs. The Supreme Court was created
in 2009 in order to emphasise the separation between the judiciary and the legislature. It is
housed in a building separate to the Houses of Parliament.

Independence from the executive (Government) is guaranteed under the Constitutional

Reform Act 2005 whereby the government must not try to influence judicial decisions. This
was upheld in the 2016 Brexit case: R (Miller) v Secretary of State for Exiting the European
Union, where the Supreme Court ruled against the government and ordered it to seek
Parliament’s approval for the UK to leave the EU. It was also illustrated in September 2019
when the Supreme Court declared Prime Minister Boris Johnson’s decision to suspend
Parliament to be unlawful.

Independence from the case they are hearing is important as judges must be completely
impartial when making decisions – they must not hear any case where they have any
interest. In the Pinochet Case, which concerned human rights violations by a Chilean
dictator, a re-trial was ordered when it was discovered that Lord Hoffman, a judge hearing
the case, was a director of Amnesty International.

Immunity from suit means that judges cannot be sued in the civil courts, or prosecuted in
the criminal courts, for actions taken in connection with their judicial duties, confirmed in
SIRROS v MOORE. This gives judges the freedom to make difficult decisions, or to use strong
words, without being taken to court.

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Security of tenure means that judges are difficult to remove. It allows judges to be
independent when making decisions without fear of being dismissed by the government.
Superior judges can only be removed by the monarch upon petition by both Houses of
Parliament. This power has never been used for an English judge, but was used for an Irish
judge in 1830 who stole £700 from court funds. Inferior judges can be dismissed by the Lord
Chancellor with the consent of the Lord Chief Justice for incapacity or misbehaviour, but
this is very rare.

The selection process for appointing new judges is now less likely to be politically
influenced. The process was made more transparent by the Constitutional Reform Act
2005 which created the Judicial Appointments Commission to ensure that judges are now
appointed solely on merit rather than being ‘recommended’ in a secretive system. Also, the
role of the Lord Chancellor – a political appointment - in the selection process is now much
reduced.

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Discuss ADVANTAGES of JUDICIAL INDEPENDENCE (12 marks)

Notes:

You can only be asked to discuss advantages.

The one disadvantage can be used as a counter-argument.

You may need a brief introduction and conclusion in order to respond to the precise
wording of the question eg. To what extent……

A first advantage is that fair and impartial justice is delivered in all cases. As judges are
independent, they make decisions only on the basis of the facts of the case, the relevant
law, and the strength of the arguments put forward by the advocates in the courtroom.

A second advantage is that citizens are protected against the unlawful acts of the
government. For example, an individual can apply for judicial review with regard to a
decision made by a public body such as the government or a local council. As judges are
independent, their decision will be made fairly and impartially so that justice is done on
behalf of the individual without being influenced by the more powerful public body.
Independence from the executive was illustrated by Prime Minister Teresa May in the 2016
Brexit case: R (Miller) v Secretary of State for Exiting the European Union, and illustrated in
September 2019 when the Supreme Court declared Prime Minister Boris Johnson’s decision
to suspend Parliament to be unlawful.

A third advantage is that the public have confidence in the judicial system as the judges are
independent. They have trust in the system because they know that their cases will be
decided fairly and impartially. This is important because a transparent legal system is an
essential part of any democracy. This was illustrated in the Pinochet Case, which concerned
human rights violations by a Chilean dictator - a re-trial was ordered when it was discovered
that Lord Hoffman, a judge hearing the case, was a director of Amnesty International.

A fourth advantage is that no one person or body of people holds all the power in society
when the judiciary is independent. Judicial independence is an important part of the
doctrine of the separation of powers, a key principle of the UK constitution which provides a
system of checks and balances. To allow for a democratic society, the three main sources of

48
power are kept separate - the Legislature is the law making arm of the state, which is
Parliament, the Executive is the body controlling the law, which is the government and the
judiciary apply the law.
On the other hand however, a disadvantage of judicial independence is that judges have
too much freedom. It is unfair that security of tenure means that it is virtually impossible to
remove a judge for poor performance or even misconduct. Superior judges can only be
removed by the monarch following a petition presented by both Houses of Parliament. This
power has never been used for an English judge. It is also unfair that judges have immunity
from suit which means they cannot be sued in the civil courts, or prosecuted in the criminal
courts, for actions taken in connection with their judicial duties. This means they have
special treatment compared to the rest of society, which does not set a good example and is
unfair.

49
Discuss ADVANTAGES and DISADVANTAGES of the JUDICIARY (12 marks)

Notes:

You may be asked to discuss advantages or disadvantages or both.

Advantages can be used in a disadvantages question and vice versa, but only where it is
used as a counter-argument.

You may need a brief introduction and conclusion in order to respond to the precise
wording of the question eg. To what extent……

A first advantage is their independence from the executive (government) and the
legislature (Parliament) under the doctrine of the separation of powers, a key principle of
the UK constitution which provides a system of checks and balances. This means that fair
and impartial justice is delivered in all cases, citizens are protected against the unlawful
acts of the government, the public have confidence in the judicial system and no one
person or body of people holds all the power in society.

On the other hand however, a disadvantage is that critics say that judges have too much
freedom. It is unfair that security of tenure means that it is virtually impossible to remove a
judge for poor performance or even misconduct. Superior judges can only be removed by
the monarch following a petition presented by both Houses of Parliament. This power has
never been used for an English judge. It is also unfair that judges have immunity from suit
which means they cannot be sued in the civil courts, or prosecuted in the criminal courts,
for actions taken in connection with their judicial duties. This means they have special
treatment compared to the rest of society, which does not set a good example and is unfair.

A second advantage is that the judiciary is becoming more representative of society in

terms of gender and ethnicity. The Judicial Appointments Commission selection system,
which is based solely on merit, has improved diversity. In the 1990s there were no BAME
superior judges, but by 2020 there were 4 BAME High Court Judges and 27 BAME Circuit
Judges. There are now 8 female Court of Appeal judges, and 33% of Circuit Judges are
female. Two of the twelve judges in the Supreme Court are female, and the first female
president of the Supreme Court – Lady Hale - was in post 2017-2020.

On the other hand however, a disadvantage is that there is still much room for
improvement in terms of gender, ethnicity and class. There is only one BAME judge in the
Court of Appeal – Rabinder Singh – and none in the Supreme Court. Class is still a problem,
as most of the superior judges have been to private school, and 9 of the 12 Supreme Court
judges were educated at Oxbridge. Also, most superior judges are well over 40 years old,
unlike in other European countries.

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A third advantage is that judges are experienced legal experts who have spent many years
working as barristers or solicitors. They are highly qualified, and pass through a difficult
selection process to assess the 5 desirable qualities of the Judicial Appointments
Commission. Judges understand the law better than the Magistrates who are unqualified lay
people, which allows them to work quickly and efficiently.

On the other hand however, a disadvantage is that the narrow background of most
superior judges means that they are out of touch with society, and the reality of ordinary
people’s lives. The majority of judges are white, male, middle class and have had privileged
lives. This makes it difficult for them to make fair decisions in cases, particularly when
dealing with less advantaged people. In 2019 the Lord Chief Justice admitted that there was
a problem with male judges behaving in a sexist way towards female advocates in court.

A fourth advantage is that judicial precedent allows judges to develop and change the law
for the better through making case law For example, in R v R (1991) marital rape was made
illegal, and whole areas of law have been developed by judges – for example the civil law
areas of negligence, nuisance and Rylands v Fletcher, and the criminal law areas of murder
and gross negligence manslaughter. Many of these laws seek to protect individuals against
harm and fill gaps in the law left by Parliament.

On the other hand however, a disadvantage is that judges can be inconsistent when
making decisions. This leads to uncertainty when lawyers are advising their clients, and to
unfair decisions. Judges can avoid following precedent by overruling, distinguishing and
disapproving. Law making by judges has also been criticised as being undemocratic as
Parliament is considered to be the supreme law making body in the UK, and judges should
merely apply the law that is given to them rather than make new law themselves.

A fifth advantage is that the training of judges is very effective in producing high quality,
independent judges. The training of judges is carried out by the Judicial College, set up in
2011. There are 3 main elements – knowledge of law, evidence and procedure; judicial
skills; social context. All new judges must go through an induction programme appropriate
to their level, consisting of a residential course of 3-5 days. At the lower levels new judges
are given an experienced mentor. Continuing education is provided for all judges with
regard to changes in the law and ‘human awareness’ such as racial, gender and disability
issues.

On the other hand however, a disadvantage is that the training is insufficient compared to
other countries. In countries such as France, becoming a judge is a career choice made at a
young age and so law graduates are trained as judges without practising as a lawyer. This
means that the average age of judges is much lower than in the UK, so they may be socially
aware and will gain more judicial experience from an early age. Also, from an early they
receive more training in the specific skills they need to be effective judges.

51
Discuss whether judges are adequately trained for their Role (12
Marks)

The Judicial College established in 2011 is a national training institution offering continuous
education through core programmes, plus options and lectures ensuring judges are more
than adequately trained for their role, as well as being kept up-to-date with changes in the
law.

However, to save money many judicial training courses are carried out on-line rather than
face-to-face, thus not preparing judges fully for the role they need to undertake. The three
to five-day induction course is far too short and as a result does not adequately train for the
role.

Judges are trained in three main elements; knowledge of substantive law, evidence and
procedure, the acquisition and improvement of judicial skills and the social context within
which judging occurs ensuring judges are more than adequately trained for their role.

However, much of the training is aimed at inferior judges meaning that there is not high-
quality training required of all levels of judges. Also, training does not prepare judges fully
for the type of cases they will hear. It is very difficult when a lawyer with a civil law
background first sits in a criminal case as a judge.

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