legaleasy

13 March, 2007

The Judiciary

Filed under: additional reading,dispute solving,domestic law,homework — legaleasy @ 9:32 pm

Today we finished off looking at the judiciary by examining their independence.

 We discussed Montesquieu’s theory on separation of powers.  We discovered that the Lord Chancellor (prior to the reforms in the Constitutional Reform Act 2005) occupied a role in all three arms of state. 

It is vitally important that we have an independent judiciary that is free from influence by politicians or the media in order that they may carry out their duties in an impartial and unbiased manner.  As early as the Act of Settlement 1700, this has been recognised.  This act set out, amongst other things, that the judiciary should be paid for by the state.  It also provided judges with security of tenure. 

Security of tenure means that a judge can carry out his or her duties without fear of being removed from office as a result of an unpopular decision.  They can only be removed from office through resignation, retirement, or dismissal on the grounds of misconduct or incapacity. 

Further, judges have immunity from suit. 

“Judicial immunity from suit means that a judge of a superior court (such as the High Court) cannot be sued for damages for acts done in his judicial capacity in good faith, even though he has acted mistakenly or in ignorance of his powers. Immunity from suit enables a judge to perform his duties with complete independence and freedom from fear of repercussions. Although he cannot succeed in a civil action for damages, the hapless litigant who is damaged in some way at the hands of the judiciary is not totally without remedy. He may, for example, appeal against the judge’s decision to a higher court or seek to have it set aside by [the process of judicial review] ….. Such a judge is only liable in a civil action for damages if he was not acting judicially, knowing that he had no jurisdiction to do what he did …. Prior to 1991, magistrates, as judges of inferior courts, had a more limited form of immunity from suit under the Justices of the Peace Act 1979 … The opportunity was taken in the Courts and Legal Services Act 1990 to amend the 1979 Act so as to give the magistrates the same immunity from suit as that enjoyed by judges of superior courts.”

 Terence Ingman, The English Legal Process

This too means that judges can act independently and without fear. 

Please remember your homework is due Tuesday 20th of March.

Additional Reading:- please see previous entry.

8 March, 2007

The Judiciary

Filed under: additional reading,dispute solving,domestic law — legaleasy @ 8:57 pm

06-03-07 & 08-03-07

The role of judges can be split into four categories criminal cases, civil cases, judicial review hearings and cases involving the Human Rights Act 1998. 

Major changes to the way the judiciary in England and
Wales are appointed were brought about by the Constitutional Reform Act 2005. Many of these provisions came into force in April 2006; other provisions will be in force by April 2007.
 

Before the CRA 2005 came into force, the system of judicial appointments was carried out on behalf of the Lord Chancellor by the Legal and Judicial Services Group under the Department for Constitutional Affairs. The Courts and Legal Services Act 1990 regulated much of the procedure and introduced qualifications. This meant that appointments were much more on the basis of merit and not personal contacts. 

This system had some advantages.  One of these was that under the Courts and Legal Services Act 1990 the Lord Chancellor lifted the ban on lawyers in the civil service and CPS becoming judges. 

However, it was felt changes were needed because it was perceived that the bench was dominated by old, white upper class males. It was argued that judges do not represent a cross section of society.  Today, there are still very few women or ethnic minorities on the bench.     

The CRA 2005 altered quite drastically the way judges are appointed and selected. One major change was the Lord Chief Justice replaced the Lord Chancellor as the Head of the Judiciary. A Supreme Court will also eventually replace the House of Lords as the highest court in the
United Kingdom.
 

The CRA 2005 also created the new and independent Judicial Appointments Commission. This now has responsibility for the process of selecting people for judicial appointments – from senior judiciary all the way down to magistrates (eventually).  However, the Lord Chancellor still continues to appoint judges and recommend those for appointment to the Queen.  

The JAC is made up of a mixture of lay members, judicial members and other legal professionals. 

 

The Act requires that selections must be made solely on merit. Further, the JAC have a responsibility to encourage diversity in the range of people available for selection. 

A major advantage of this new system is that by selecting candidates using the principles of fairness, openness, and merit, the JAC will contribute to an impartial judiciary.

The Judicial Appointments and Conduct Ombudsman investigates complaints about the appointment of judges. 

Additional Reading:

8 February, 2007

The Arrangements For Next Term

Filed under: dispute solving,homework — legaleasy @ 8:06 pm

Today we finished off the Criminal Court system by carrying out research on the role and function of the Criminal Cases Review Commission. We also spent some time comparing a summary trial and a trial by indictment. You need to know the differences, for example, in venue, decision makers, appeals routes, costs and timing.

We also discussed the arrangements for next term. You will need to work through the pack of tasks during the first two weeks. I will be in touch with arrangements for the following two weeks. 

Week One – ADR 

We have looked at how using the courts to resolve civil disputes can be costly, time consuming and very complex. A court case may not provide you with the outcome you are looking for. Further, courts are usually open to the public, so there is nothing to stop all the details of your dispute appearing in the national or local press. It is not surprising that many people and businesses are looking to resolve their dispute in an alternative way. This is known as Alternative Dispute Resolution (ADR) and is any method used other than courts to solve a dispute.

First Task 

Read through the article “The Civil Court and Alternative Dispute Resolution” and attached information sheets. Answer all the questions as fully as you can. Complete the crossword and the table on p121. I will be taking in all your work to mark. 

Second Task 

Read through chapter 2 of the revision guide (p11 onwards) and summarise the information in whatever way suits your own style of learning. Create lists, bullet point notes, mind maps, spider diagrams, posters, story boards, talk it through with a classmate or tape yourself reading aloud. It is up to you! Remember, if you miss this out, you will harm your grade. Take responsibility for your learning!  

Third Task

Plan an answer to the following question. Remember, the better the plan, the easier it is to write an answer. 

1 (a)     Alternative Dispute Resolution (ADR) can be used instead of the civil courts in order to settle a dispute. Describe any three forms of ADR (20 marks);

   (b)    Discuss the advantages of ADR as a form of dispute resolution. (10 marks) 

Once you have completed your plan as fully as possible, open the envelope provided. This contains a suggested plan to the essay. Compare your plan with this. Can your plan be improved? Have you missed anything out? Can my plan be improved? 

Fourth Task 

Now that you have your plan – write your answer. Try to write your answer in one go and not spend longer than 30 minutes on it. Think of this as exam preparation. ADR is another area that usually turns up in the exam. It is quite a narrow area with a limited number of questions. I will collect in your essays and your plans to mark.

Week Two – Lay People in the Legal Process 

There is a tradition of using non legally qualified persons in the decision making process of our court systems (lay people). There are generally two types of lay persons used today – magistrates and juries. We will look at both in this topic.

Fifth Task  

Read through the Information Sheets and Worksheets provided. Answer all the questions as fully as you can. Where the information sheet asks you to look at a website – LOOK AT THE WEBSITE! This will improve your understanding of the topic. As I have mentioned many times before, reading around the topic you are looking at will increase your understanding and improve your grade. I will be taking in all your work to mark.

Sixth Task 

Read through Chapter 6 of the revision guides (p35 onwards) and summarise the information in whatever way best suits your style of learning. Create lists, bullet point notes, mind maps, spider diagrams, posters, story boards, talk it through with a classmate or tape yourself reading aloud. It is up to you! Remember, if you miss this out, you will harm your grade. Take responsibility for your learning!

Seventh Task 

Plan an answer to the following question. Remember, the better the plan, the easier it is to write an answer.

2 (a)     Explain how jurors may or may not qualify for jury service, and describe how jurors are chosen to serve on a jury.  (15 marks)

   (b)    Identify and discuss the advantages and disadvantages of trial by jury. (15 marks) 
Once you have completed your plan as fully as possible, open the envelope provided. This contains a suggested plan to the essay. Compare your plan with this. Can your plan be improved? Have you missed anything out? Can my plan be improved?  

Eighth Task

Now that you have your plan – write your answer. Try to write your answer in one go and not spend longer than 30 minutes on it. Think of this as exam preparation. Lay People is another area that usually turns up in the exam. It is quite a narrow area with a limited number of questions. I will collect in your essays and your plans to mark. 

General Comments

  • Miss O’Shea will to collect the work due from you.
  • The first and fourth tasks are due at the end of the first week back after Half Term, that is by Friday 23rd February 2007.
  • The fifth and eighth tasks are due by Friday 2nd March 2007.
  • There are no excuses.
  • The tasks I have set you should take the entire class time we are missing together with a little homework.
  • Speak to Miss O’Shea if you have any problems.

6 February, 2007

Criminal Court System

Filed under: additional reading,dispute solving — legaleasy @ 1:41 pm

6.02.07

Today we looked at the criminal courts: jurisdiction and routes of appeal.

As you are aware there are three types of offences – summary, triable-either-way and indictable.

Summary offences are tried without a jury in the Magistrates’ Court and include such offences as driving without insurance, and common assault.

Triable-either-way offences as the name implies can be tried in either the Magistrates’ or the Crown Court depending on (1) whether trial by jury is opted for; or (2) the seriousness of the offence merits it being remitted to the Crown Court. Examples of triable-either-way offences are ABH and theft.

Indictable offences are the most serious offences including murder, manslaughter, rape and robbery. These are tried in the Crown Court with a judge and jury.

The Magistrates’ Court deals with all criminal cases in the first instance. Indictable offences are remitted to the Crown Court. There are limits on the sentencing powers of a magistrate. The Youth Court also forms part of the Magistrates Court. The vast majority of criminal cases are dealt with in the Magistrates’ Court.

The Crown Court deals with indictable offences and triable-either-way offences.  The Crown Court may also hear appeals from the Magistrates Court.

You will need to know the appeals route from both the Crown and Magistrates’ Court. Please see the worksheets and handouts for more details.

Additional Reading

Please see previous entry. There are very good books in the Resource Centre for you to use – please look at them. Also, remember to keep up to date with the news and read a good quality paper. 

1 February, 2007

Introduction To The Criminal Court System

Filed under: additional reading,dispute solving,homework — legaleasy @ 9:45 pm

1.02.07

Today we started to look at the Criminal Court System. We concentrated primarily on the role of the Crown Prosecution Service. Prior to 1986, all prosecutions were brought by the police. Now, the CPS is responsible for the vast majority of prosecutions in England and Wales. However, large shops and organisations such as the RSPCA can also bring private prosecutions against individuals.

The CPS is headed up by the Director of Public Prosecutions. The DPP answers to the Attorney General. The CPS is responsible for reviewing all cases and advising the police as to the validity of evidence. It is up to the CPS to decide whether to prosecute. There is a code of practice to assist the prosecutors with their decision. Before the CPS will prosecute they have to decide whether:-

1. The Evidential Test can be passed, i.e is the evidence gathered of sufficient quality and quantity to result in a conviction. Is the evidence admissable in court?

2. The Public Interest Test can be passed, ie is it in the public interest to bring a prosecution against an individual.

Each case is looked at on its merits.

Homework was set for Tuesday 6th February. This must be done – no excuses!

Additional Reading

See previous entries – look at the books available to you in the Resource Centre. Remember to have a look at  www.lawcom.gov.uk – its your chance to change the law!

25 January, 2007

Appeal Routes in Civil Cases

Filed under: additional reading,Civil Court Structure,dispute solving — legaleasy @ 10:14 am

25.01.07

Today we finished off looking at the Civil Court System by examining the appeals routes available.  The appellate courts are courts which hear appeals from lower courts. The main ones are the Divisional Courts, the Court of Appeal and the House of Lords.

Small Claims – appeals from the district judge’s decision are to the Circuit judge of the County Court. An appeal can only be made if the district judge made a mistake in the law or the proceedings were not carried out correctly.

To appeal from the County Court or the High Court to the Court of Appeal requires permission – this is known as leave to appeal. Permission will only be given if the court feels there is a real chance of the appeal being a success. The Court of Appeal will allow appeals if the lower court has made a mistake in the law or the there was an irregularity in the proceedings.

Again an appeal from the Court of Appeal to the House of Lords requires permission. Remember appeals are not retrials and oral evidence is not given. The judges involved will listen to counsel’s arguments and read all the documents in the case.

A “leapfrog” appeal can be made from the High Court to the House of Lords if there is a point of law of general public importance involved and where the Court of Appeal is bound by precedent – remember the exceptions set out in the Bristol Aeroplanes Case.

Any court can refer a question of European Law to the ECJ under Art 234 procedure.

Additional Reading

Please see previous post. Try using the Internet to look up a case in which there has been an appeal to the House of Lords and a case which is waiting to be heard. See www.parliament.uk 

23 January, 2007

The Civil Court Procedure

Filed under: additional reading,Civil Court Structure,dispute solving — legaleasy @ 1:33 pm

23.01.07

Today we continued with our examination of the Civil Court procedure. We discussed the importance of the Woolf Reforms on Civil Procedure. The Woolf Reforms aimed to make the Civil Procedure quicker, cheaper and simpler. They also introduced the three track system and encouraged  ADR. However, the reforms have been criticised for not going far enough. The Civil Court system is still seen by many as costing too much, taking too long and overly complex. 

Court action should always be the last resort!

We then had a go at filling out the forms that would be used in a court action. By doing this we gained an understanding of why cases are often settled out of court or by ADR.

We looked at briefly the three track system. Cases are allocated to a track by the judge who is managing the case. The track they are allocated to depends on the amount claimed and the complexity of the case.

Additional Reading

This is not an exhaustive list! Try reading a quality newspaper at least once a week and keep up to date with the news – the law is always in the news! 

Emerging Findings: An Early Evaluation of the Civil Justice Reforms (2001)

English Legal System – Elliot & Quinn

English Legal System – Slapper & Kelly

www.e-lawstudent.com

www.dca.gov.uk

www.homeoffice.gov.uk

www.lawsociety.org.uk

www.barcouncil.org.uk

www.ilex.org.uk

www.adviceguide.org.uk

www.acas.org.uk

www.lawteacher.net

www.baili.org

www.justask.org.uk

www.citfou.org.uk

18 January, 2007

Civil Court Structure

Filed under: Civil Court Structure,dispute solving,homework — legaleasy @ 9:49 pm

Today we carried on with our examination of the civil court structure and possible routes of appeal. Homework was set on the Woolf Reforms which gave us our present civil court structure. If you did not receive a copy of the homework, please come and see me. This is due Tuesday 23.01.07. You will be expected to comment on the Woolf Reforms in your exam – this is important!

16 January, 2007

Introduction to Dispute Solving

Filed under: dispute solving — legaleasy @ 9:46 pm

Happy New Year!

Today we started the new module on Dispute Solving. This module covers areas such as the Civil and Criminal Court Structure; alternatives to court; and the training and regulation of both legally qualified and lay personnel within the court system. For more information – go to the AQA Website.

We started by seeing if we could identify when the criminal law is used or when it is a civil case. Sometimes a situation will involve aspects of both criminal and civil law.

We then looked at the differences between the criminal and civil court systems. Both systems have their own terminology and it is important that you get to know the differences. For example, in a criminal case a person is found guilty or not guilty; whereas in a civil case a defendant will be found liable or not liable. The burden of proof is also lower in a civil case than in a criminal case. Look at your notes for further information.

To begin with we are concentrating on the civil court system. We looked at the hierarchy of the courts (refer back to precedent for further information) and the possible routes of appeal in a civil case. We talked about the differences between the divisional High Court and the High Court Divisions – QBD, Chancery and Family. We also looked briefly at the leap frog procedure.

We looked at the jurisdiction of the courts – this means the compentency of a court to hear a particular case. For example, for all civil claims worth less that £15,000 (or £50,000 for personal injury claims) the court to use in the first instance is the County Court. For all claims above £15,000 (or above £50,000 for personal injury) the correct court to use is the High Court.

You also need to know when a court can hear an appeal (by leave of the judge) and that the House of Lords only hears appeals in civil cases on points of law. The Court of Appeal hears appeal cases on points of law and fact.

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