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189 Cards in this Set
- Front
- Back
- 3rd side (hint)
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What is the practice statement 1966? |
- Allowed the HL more flexibility saying that the “rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law” - use of the practice statement allowed the HL to change the law if they believed an earlier case had been wrongly decided I.e. “when it appears right to do so” |
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What is the case of Herrington v BRB about? (Practice statement case) |
Summary of facts: - six year old boy was electrocuted and suffered severe burns when he wondered from a play park - there was a gap created from the fence that was around the play park - D was aware of the gap that allowed the boy to wonder off Overruled the case of: - Addie vs Dumbeck How/why overruled: - D owed a duty of common humanity to trespassing |
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What happened in the case of Howe? (Practice statement case) |
Summary of facts: - Howe and Bappister and victim were driving by to an isolated area - they assaulted the victim and killed him - Bappister also jointly strangled another victim that managed to escape - charged with murder on two accounts Overruled the case of: - Ireland v Lynch How/why overruled: - decided defence of duress is not available to a person charged with murder |
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What tracks are there ? |
Small track claim, fast track claim, multi track claim |
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What claims are taken with a small track claim ? What judge hears them ? Formal or informal ? What kind of cases ? Is there cross examination ? Are there lawyers ? |
- claims under 10k, injury under 1k - heard by district judge - informal - quick cases - no cross examination - no lawyers |
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What claims are taken with a fast track claim? How fast are they heard? What judge hears them? What kind of cases are they? Formal or informal? Are lawyers allowed? |
- no more than 25k, injury are 1k - heard within 30 weeks of being received in court - heard by circuit judge - deals with higher cases - formal - lawyers allowed |
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What claims are taken with a multi track claim? What judge hears it? Formal or informal? How fast are they heard? |
- more than 25k, injury over 1k - heard by circuit judge or high court judge - heard within 72 weeks |
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What does ADR stand for ? |
Alternative dispute resolution |
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What type of ADR is there ? |
Negotiation, mediation, conciliation and arbitration |
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What are the 4 disadvantages of civil courts ? |
Takes a long time, parties do not control process, cost - loser pays winner, no privacy |
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Why is civil courts taking a long time a disadvantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- the court process and procedures/documentation takes a long time - time is wasted, if ADR was used then a decision could have been reached in less time - negotiation - process is a lot quicker - it’s a quick conversation rather than a long court process |
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Why are parties not having control in civil courts a disadvantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- parties are not compelled to continue negotiations or mediation, parties may have limited bargaining authority, little or no check or power imbalances between the parties - in court the judge decides every part of a dispute and therefore the parties have no say, meaning the parties may sometimes not like the decisions a judge makes - negotiation, mediation - NOT DONE HOW IT COMPARES |
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Why is civil courts costing so much a disadvantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- might get a bigger loss instead of a win if the courts decide in their favour, if party loses they will have to pay which can get expensive - loosing side will always have to pay winner side - negotiation/mediation - negotiation - free, mediation - only pay for mediator (less than court) |
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Why is civil courts not being private a disadvantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- if you have a claim and you go to the court there will be no privacy as it’s formal meaning that most of the time it will end up in the news - past claims have never been private and will always go out to the public - mediation - mediation is formal meaning it will most likely not be private |
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Why is civil courts being enforceable an advantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- If one of the losing party decides they don’t want to pay after the judge has explained the payment then the other person can decide the next punishment - court decides final decision - negotiation - discussion + decision between parties |
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Why is civil courts being enforceable an advantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- If one of the losing party decides they don’t want to pay after the judge has explained the payment then the other person can decide the next punishment - court decides final decision - negotiation - discussion + decision between parties |
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Why is civil courts always reaching a decision an advantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- if a case/claim always ends in a decision there will be less money and time being wasted - when a claim ends in a decision usually both parties are satisfied with the decision made and therefore the claim ends - negotiation - cannot be resolved, the two parties aren’t obligated to come to an agreement it may be taken to court or another ADR type |
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Why is having the right to appeal in civil courts an advantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- if claimant is not happy with the decision you have the right to appeal - having the right to appeal takes the claim to a higher court in hope of satisfying the claimant - a higher court has more chance of reaching a solid solution - arbitration - can appeal regarding irregular procedure |
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What is the meaning of precedent? |
Once a law is decided that law must be applied into all future cases with considerably similar facts |
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Why is civil courts being precedent an advantage? Give evidence/explanation, what is the ADR comparison and how does it compare? |
- provides certainty in law, provides and idea of how the case will be decided, also provides consistent decisions within the law which also ensures fairness - a court decision will be kept as an example or analogy meaning for the future it can be used to resolve similar cases - arbitration - someone else rather than a judge making a decision for the parties |
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Why would the courts act of 2015 be used ? |
- there is an issue of national importance - the case raises issues of sufficient importance to warrant a leapfrog |
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What are three things civil courts deal with ? |
Taut, contract and fraud |
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What is a taut claim ? |
Damages for someone who is injured in an accident or someone claiming an injunction to prevent someone building on land |
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What is a taut claim ? |
Damages for someone who is injured in an accident or someone claiming an injunction to prevent someone building on land |
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What is a contract claim ? |
Damages for someone who is claiming for non-payment of goods |
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What is a taut claim ? |
Damages for someone who is injured in an accident or someone claiming an injunction to prevent someone building on land |
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What is a contract claim ? |
Damages for someone who is claiming for non-payment of goods |
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What is a fraud claim ? |
The winding up of a company that cannot pay its depts |
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What does the queens bench division deal with ? |
- damages in contract and tort claims over £100,000 - personal injury cases of £50,000 or more - smaller claims where there is an important point of law - cases are heard by 1 judge |
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Advantages and disadvantages of using negotiation. |
Ads: - can be conducted by parties themselves - can be used at any point in the dispute - cheapest method of ADR - can resolve a dispute about future business deals (not possible with court claim) Dis: - May not be successful so other ADR method or court procedures must be used - it’s not suitable where the parties do not want to participate - May waste time if negotiation fails |
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Advantages and disadvantages of meditation and conciliation. |
Ads: - choice of arbitrator - cost - control - flexibility - private - speed - cost - enforceability
Dis: - lack of legal expertise - cost - rights of appeal are limited - delays |
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Advantages and disadvantages of using arbitration. |
Ads: - expertise - privacy - convenience - flexibility - get to choose arb, format etc - informality - speed - enforceability of award - Cost Dis: - lack of legal expertise on a particular point of law - inconsistencies in decision - cost - right of appeal are limited - delays |
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Advantages and disadvantages of tribunals. |
Ads: - cost (no lawyer fees to pay, tribunal hearings do not involve the costs court hearings do, rare that applicant will be ordered to pay the respondents costs if they lose the case) - quick (often dealt with in a day, not caught up in courts where they are swamped with cars) - informality (strict rules of evidence do not apply) - privacy - expertise (lay members experts in law) Dis: - lack of funding (public funding is not available for most tribunals except discrimination at work e.g. on the grounds of sex, race, religion, age, sexual orientation - more formal ADR (procedure can be more confusing if representing own cases) - delay (hearings, law members only sit part time so case may be spread out over weeks if it’s not heard in a day) |
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Why could the Defence appeal in the court of appeal? |
- the conviction or/and sentence D got - leave to appeal (permission to appeal) needed from the Court of Appeal or from the trial judge |
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Why would the prosecution be able to appeal in the crown court ? |
- if a judge’s error in explaining the law to the jury leads to an acquittal (charges are dropped) S36 criminal justice act 1972 - if the jury has been nobbled (blackmailed, given money to vote for one side) - if there is new and compelling evidence of D’s guilt e.g Stephen Lawrence |
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What is the procedure before a trial for summary offences ? |
- The accused is formally charged with the summary offence - specifying the details of the alleged offence - the accused will be asked to plea guilty or not guilty - it will need to be made sure whether the D want legal representation or already have it - magistrates have the power to sentence the D and can also set a trial date |
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What is the magistrates act ? |
S19 of the magistrates court act 1980 |
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What are the appeals for the magistrates court ? |
1) magistrates court 2) crown court - d appeals conviction or sentence 3) Queens bench’s division court 4) Court of appeal (criminal division) |
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What are the appeals for the crown court ? |
1) Crown court 2) court of appeal (criminal division) - either because D’s conviction sentence or P’s acquitted sentence 3) Supreme Court (only for national importance e.g. Stephen Lawrence) - a case can go from the crown court to the Supreme Court via a Leap frog only if the case is of national importance |
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What does the chancery division deal with ? |
- deals with insolvency (unable to pay bills) mortgages (government lending money), patents, trust property (the assets placed into a trust, which are controlled by the trustee on behalf of the trustor's beneficiaries) - special companies court deals mainly with winding up companies - cases are heard by 1 judge |
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What is the hierarchy of the Civil courts? |
1) civil court (court of justice of the European Union and European court of human rights) 2) Supreme Court (formerly the HL) - House of Lords 3) court of appeal (civil division) 4) divisional courts (queens bench division, family division and chancery division) 5) high court 6) county court |
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What is the Hierarchy of the criminal court? |
1) Criminal court (court of justice of the European Union and European court of human rights) 2) Supreme Court (formerly the HL) - House of Lords 3) court of appeal (criminal division) 4) queens bench divisional court 5) crown court 6) magistrate court |
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What is a mode of trial hearing ? |
Where the trial will be heard (magistrates/crown court) |
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What is jurisdiction? |
The power to apply a law |
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Who hears appeals about a conviction or sentencing in criminal courts ? |
A judge and two magistrates |
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What does the process of case stated mean ? |
Appeals on an aspect of law of the D believes the magistrates have gotten the law wrong |
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What is the max fine and sentence magistrates can impose ? |
Up to 12 months and a £5000 fine |
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What does the criminal justice act 1991 provide ? |
Makes protection of the public and prevention of crime central of policy as well as making the punishment fit the crime by making sentences broadly endorses the concept of sentencing proportionate to the seriousness of the crime but allows longer sentences to be imposed in certain cases. |
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What is a custodial sentence ? |
Most serious punishment only for cases that “was so serious that neither a fine, alone nor community sentence can be justified” - can range from a few weeks to life imprisonment - types of custodial sentences : mandatory and discretionary life sentences, fixed term sentences, suspended sentences |
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What is a suspended sentence ? |
When the sentence will not take effect unless the offender commits a subsequent offence within a given period. |
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What does the family division deal with ? |
- claims related to children, family matters, divorce etc - cases are heard by a single judge |
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What is a mandatory life sentence ? |
- only a sentence a judge can impose for murder - the judge can state the minimum number of years a D may serve before being eligible to be released on license - the judge can sentence the D to a full term down to 12 years depending on the factors - this would be appropriate for a murder of a child involving abduction or sexual motive or a murder for a political, religious, racial religious or ideological cause |
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What are aggravating factors ? |
- premeditation - vulnerability of the victim - infliction of mental or physical abuse of the victim |
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What are mitigating factors ? |
- intention to cause GBH rather than kill - lack of premeditation - an act of mercy |
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What is a discretionary life sentence ? |
- suitable for serious offences e.g. S18 offences against the person act 1861 e.g. throwing acid in the face or hitting someone over the head to cause brain damage |
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What is a fixed term sentence ? |
- Imprisonment a set number of months or years - prisoner do not serve the whole sentence - they are automatically released after they have served half - only offenders over 21 can be given a custodial sentence |
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What is a suspended sentences ? |
- an adult offender may be given a suspended sentence of up to 2 years (max 6 months in the magistrates court) - if prisoner doesn’t coming any further crimes the prison sentence will not be served - however if the offender does commit further offences within the period of suspension then the prison sentence is “activated” then the offender will serve the sentence together with any sentence for the new offence - a suspended sentence should only be given where the offences is so serious that an immediate custodial sentence would have been appropriate, but there are exceptional circumstances in the case which justify suspending the sentence |
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What community orders are there? |
Fines, discharges (conditional and absolute)
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What are fines ? |
Fine - common way of disposing of a case in magistrates court however in crown court only a small amount of offenders get fines |
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What is a conditional discharge ? |
- a conditional discharge means that the court convicts but discharges an offender on the condition that no further offence is committed during during a set period of up to 3 years. - intended for use where it is thought that no punishment is necessary - if the offender commits a crime in the time limit then the court can impose another sentence in place of the conditional discharge, as well as imposing a penalty for the new offence |
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What is an absolute discharge? |
- no penalty is imposed - penalty is likely to be used where an offender is technically guilty but morally blameless - e.g. where a tax disc on a vehicle has fallen to the floor - it is technically not being displayed and an offence has been committed - if someone is prosecuted of this, the magistrates who would have to impose some penalty, would most probably however appear on his or her criminal record |
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What three changes did lord Woolf suggest in his 1996 report on access to justice? |
- simplify the current language - introduction of the “three track system” - encourage alternatives to the courts |
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What are the purposes of sentences and what act is it under? |
S142 Criminal justice act 2003 |
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What are judges and magistrates required to regard during sentencing ? |
- the punishment of offenders - the reduction of crime (including its reduction by deterrence) - the reform and rehabilitation of offenders - the protection of the public - the making of reparation by offenders to persons offended by their offences - this means “making good” or compensating the victim or society for the offending behaviour e.g. by doing unpaid work |
Two P and three R |
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What is a pre-sentencing report ? |
- prepared by the probation service who will be told how serious the offence is considered to be and the purpose of the sentence - to compile the report an officer from the probation service will interview the D |
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A pre-sentence report will look at the aggravating and mitigating factors which include: |
-the reasons why the person committed the offence - their attitude to the offence - their attitude to any victims - any other factors that might affect their blameworthiness |
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What are some aggravating factors ? (Aggravating factors means that the court will pass a more severe punishment than usual) |
- previous convictions that are similar to the present offence - on bail when offence was committed - racial or religious hostility being involved in the offence - hostility to disability or sexual orientation being involved in the offence |
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What are some aggravating factors for specific offences ? |
- O is part of a group attacking the victim - particular vulnerable victim e.g child/elderly - victim serving the public e.g. a doctor or nurse - the crime was pre-mediated |
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What are some mitigating factors ? Factors regarding the D or the circumstances of the crime that might result in reduced charges or a more lenient sentences |
- mental or physical illness of the D - the D having no previous convictions - evidence of genuine remorse - co-operation with the police and others involved with the court case - pleading guilty at the first opportunity - attracts reduction of up to 1/3 from their sentence (or 20% if the evidence if overwhelming) |
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What is the application to be a lay magistrate? |
1) advert for magistrate 2) application submitted 3) check for general eligibility - age (18-65), criminal record, live/work in area 4) 1st interview - key qualities: commuted + reliability etc 5) 2nd interview - case studies - are they biased 6) background checks - can anyone influence you to make a decision 7) recommendations by LAC (magistrate/ retired magistrate) - local advisory committee 8) LC Justice appoints Mags - under the act Crime + courts act 2013
- expertise: legal terminology, facts about legal cases, defences background |
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What is a plea before venue ? |
Decides whether you will be heard in mags or crown court |
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Facts about legal executives |
- specialised in type of law - no need for law degree, diploma or uni - work with solicitors - contract work - governed by (chartered institute of legal executive) who can fire you and remove you from the specific part of the job |
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Explanation of negotiation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- coming to an agreement, most basic and informal way of ADR - two parties come together because they had a dispute - two parties and someone who could represent them such as a family member, friend, a lawyer or other professional - individual or business, householders/trademan, two drives who were in a car accident - face to face, phone, FaceTime, email letters - dispute occurs between two parties, two parties discuss the dispute, they put each agreement together, they talk about what they want and what they’re willing to give - dispute is resolved in a binding agreement, or if dispute is unresolved then they may seek another route to resolve the dispute |
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Facts about juries |
- no need for qualifications - 18-75 - juries act 1974 - to live in the UK or channel island for 5 years since their 13th birthday - can’t have serious criminal record e.g robbery - on electrical register - must not have done any criminal activity for 10 years - can’t be jury if on bail - get selected computer - get send back if jury looks bias e.g 12 white women/men |
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Magistrates do not need special qualifications but must have 6 key qualities: |
- good character - understanding and communication - social awareness - mature and sound temperament - be of sound judgment - commitment and reliability
In the exam u do not need to know all of these just make sure u have a clear understanding of them |
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People are not eligible to be lay magistrate if they have: |
- serious criminal convictions - undischarged bankrupts - any other good reason - having a mental/physical issue like not being able to see/hear the D |
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What is the role of a magistrate? |
- deal with preliminary work such as bail applications for summary, either way and indictable cases - hear less serious crimes I.e. all summary cases and most triable - either - way cases (94% of all criminal cases) - decide the sentence for those Ds found guilty in the magistrates court of summary and either way cases - can also sit in crown court with a judge to hear appeals from the magistrates court against conviction or sentence - if they hear the appeal they also decide the sentence |
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Advantages of jury trial |
- open system of justice - lay persons are part of the process - secrecy - freedom from pressure - impartiality - random selection of jurors
Pontings case - the jury refused to convict the D as his actions disclosing official secrets were in the public interest |
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What is the jury central summoning bureau control process? |
1) selection by computer from electoral register (random) 2) jury Summons (disqualification/excusals) 3) arrive at crown court (2weeks) 4) jury vetting (crown court checking potential jurors background to assess their suitability to decide particular cases) 5) 15 allocated to court clerk randomly choosing 12 jurors |
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What are the challenges for cause (prosecution or defence) |
- challenges for the array (the whole jury) - R v Ford the court said if the jury was chosen randomly then it could not be challenged simply because it was multi - social - challenges to the polls (individual juror) - must be a valid reason e.g. disqualified or knows or is related to the witness or defendant - right to stand by (prosecution only) - the juror may be illiterate or may be a security risk - judges discretionary power - if the judge realises that the juror is struggling |
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What qualifications do barristers need ? |
- law degree (3 years) or degree (3 degree) plus general diploma in law (1 year) - bar vacations cause (1 year) - inns - called to bar - pupillage - 6 months shadowing, 6 months work supervised |
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What is a barristers role, where are they located a what skills do they need ? And what are their regulations? |
What: - advocacy (court) - drafting legal docs: - contracts, partnerships agreement - opinions - interviewing clients/provide advice to solicitor/clients Where: - cps - in house - chambers - self - employed Skills: - patience - think on feet - knowledge of law - people skills Regulation: - struck off - fired - suspended |
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What qualifications do solicitors need? |
- Law degree (3years) or degree (3years + general diploma in law (1 year) - legal practice course (1 year) - training contract (2years) - qualified as a solicitor |
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Explanation of mediation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- discussion using a neutral person to help parties come to a compromise solution - there is a disagreement/dispute between two people - two parties, commercial mediation service centre for dispute resolution, meditator - contracts e.g. lease, small business ownership to resolve disputes or dissolve the partnership, employment, divorcing couples who want to agree a child custody agreement - face to face, phone - 1) introductory remarks, 2) statement of the problem from the parties, 3) information of problems, 4) bargaining and generating options 5) reaching and agreement - may be a successful outcome, if an agreement is reached it will be binding on the parties, if an unsuccessful outcome the parties must seek another route |
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What is a solicitors role, where are they located and what are their regulations ? |
What: - interview clients/ witnesses - advice - draft legal docs: claim forms - wills, contract - legal research Where: - solicitors firm Regulation: - struck off (fired) - fined - suspended |
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What qualifications do legal executives need and what are their regulations? |
- no uni needed - study specialist areas of law
Regulations: - chartered institute of legal executives |
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Superior judges and where they sit |
1) High court judges sit in 1 of 3 divisions 2) lords justices of appeal sit in court of appeal 3) justices of the Supreme Court sit in Supreme Court |
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Inferior judges and where they sit |
1) district judges sit in the county court - district judges in the magistares court sit in the magistrates court 2) recorders sit part - time in the crown court and the county court 3) circuit judges sit in the crown court and the county court |
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What has the courts and legal services act 1990 amended ? |
Amended by the tribunals, court and enforcement act 2007 sets out the necessary qualifications to be a judge |
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What is the role of justices of the Supreme Court, do they work in criminal/civil, where do they sit? |
Role: - hear about 100 appeals a year, set a precedent for lower courts Civil/criminal: - yes/yes Sit: - a minimum panel of 3 |
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What is the role of lord justices of appeal, do they work in criminal/civil, where do they sit? |
Role: - hear appeals from the lower courts Criminal/civil: - yes/yes Sir: - they sit as a panel of 3 judges (5 for important cases) |
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What is the role of high court judges, do they work in criminal/civil, where do they sit? |
Role: - hear cases at first instances (the first time they have been heard) hear appeals from the lower courts Criminal/civil: - yes/yes Sit: - sit as a panel of 2 judges |
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What is the role of circuit judges, do they work in criminal/civil, where do they sit? |
Circuit judges in county court Role: - hear civil cases - decide law, facts and outcome Civil/criminal: - yes to civil and no to criminal Sit: - sit on their own
Circuit judges in crown court Role: - hear criminal cases - decide law, jury decides facts - judges decides sentences Civil/criminal: - no to civil and yes to criminal Sit: - sit with jury |
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What is the role of recorders, do they work in criminal/civil, where do they sit? |
Role: - are part - time judges appointed for 5 years Civil/criminal: - yes/yes Sit: - sit mainly in crown court to hear criminal cases - sit alone - sit mainly in the county court to help with civil cases |
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Explanation of conciliation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- discussion using a neutral person (conciliator) to help the parties come to a compromise solution - disagreement - two parties, trained conciliator - contracts e.g. lease, small business ownership to resolve disputes or dissolve the partnership, employment, divorcing couples who want to agree a child custody agreement - face to face, phone - 1) introductory remarks, 2) statement of the problem from the parties, 3) information of problems, 4) bargaining and generating options 5) reaching and agreement - may be a successful outcome, if an agreement is reached it will be binding on the parties, if an unsuccessful outcome the parties must seek another route |
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How can judges be removed ? |
By a petition from both Houses of Parliament presented to the monarch, it has once been used for an Irish judge but never for an English judge - this legislation can be used for judges who are ill |
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How can inferior judges be removed ? |
- For incapacity or misbehaviour (including criminal convictions) - the LCJ must consent before the lord chancellor can remove a judge from office A the constitutional reform act 2005 states that the LCJ can suspend someone subject to criminal proceedings or convicted of a criminal offence |
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Explanation of arbitration? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- the parties agree to submit their claims to private arbitrations, arbitration comes under the arbitration act of 1996 - Scott v Avery clause in contract (before dispute). After dispute, agree to go to arbitration: agree process, agree arbitration, court - arbitration to be appointed - 1-3 arbitrators (trained arbitrator) - consumer dispute e.g. package holiday - the format is agreed between the parties. It can take the form of: a paper arbitrator where all evidence is given in writing, a hearing where they make oral submissions and call witnesses. The formal procedure means that witnesses swear on an oath and can be compelled to attend. - date, time, place is up to parties - final decision is called “award”, it is binding on the parties and the decision can be enforced through the courts, “award” + reason why, appeal - irregular procedurally (an error or mistake in the way that an assessment has been carried out) |
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What is not an ADR ? |
Tribunals |
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Explanation of tribunals? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- an individual tribunal which makes decisions in legal disputes around employment law - employment tribunals act 1996 - the parties and a tribunal judge and 2 lay people experienced in the dispute - discrimination, equal pay, redundancy etc - formal/informal - formal includes evidence and oath and cross examination - parties make an application for a tribunal hearing - they present their evidence to the tribunal - the tribunal make a decision that is binding called “an award”, an employment appeal for tribunals is only possible on the grounds including getting the law wrong, not applying correct law, procedures not correctly followed which could affect the outcome, having no evidence to support decision and bias - if an appeal is wanted to be made it needs to be made within 42 days of the date the written reason for the judgment were sent out |
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What does the queens bench division deal with ? |
- damages in contract and tort claims over £100,000 - personal injury cases of £50,000 or more - smaller claims where there is an important point of law - cases are heard by 1 judge |
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Advantages and disadvantages of using negotiation. |
Ads: - can be conducted by parties themselves - can be used at any point in the dispute - cheapest method of ADR - can resolve a dispute about future business deals (not possible with court claim) Dis: - May not be successful so other ADR method or court procedures must be used - it’s not suitable where the parties do not want to participate - May waste time if negotiation fails |
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Advantages and disadvantages of meditation and conciliation. |
Ads: - choice of arbitrator - cost - control - flexibility - private - speed - cost - enforceability
Dis: - lack of legal expertise - cost - rights of appeal are limited - delays |
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Advantages and disadvantages of using arbitration. |
Ads: - expertise - privacy - convenience - flexibility - get to choose arb, format etc - informality - speed - enforceability of award - Cost Dis: - lack of legal expertise on a particular point of law - inconsistencies in decision - cost - right of appeal are limited - delays |
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Advantages and disadvantages of tribunals. |
Ads: - cost (no lawyer fees to pay, tribunal hearings do not involve the costs court hearings do, rare that applicant will be ordered to pay the respondents costs if they lose the case) - quick (often dealt with in a day, not caught up in courts where they are swamped with cars) - informality (strict rules of evidence do not apply) - privacy - expertise (lay members experts in law) Dis: - lack of funding (public funding is not available for most tribunals except discrimination at work e.g. on the grounds of sex, race, religion, age, sexual orientation - more formal ADR (procedure can be more confusing if representing own cases) - delay (hearings, law members only sit part time so case may be spread out over weeks if it’s not heard in a day) |
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Why could the Defence appeal in the court of appeal? |
- the conviction or/and sentence D got - leave to appeal (permission to appeal) needed from the Court of Appeal or from the trial judge |
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Why would the prosecution be able to appeal in the crown court ? |
- if a judge’s error in explaining the law to the jury leads to an acquittal (charges are dropped) S36 criminal justice act 1972 - if the jury has been nobbled (blackmailed, given money to vote for one side) - if there is new and compelling evidence of D’s guilt e.g Stephen Lawrence |
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What is the procedure before a trial for summary offences ? |
- The accused is formally charged with the summary offence - specifying the details of the alleged offence - the accused will be asked to plea guilty or not guilty - it will need to be made sure whether the D want legal representation or already have it - magistrates have the power to sentence the D and can also set a trial date |
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What is the magistrates act ? |
S19 of the magistrates court act 1980 |
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What are the appeals for the magistrates court ? |
1) magistrates court 2) crown court - d appeals conviction or sentence 3) Queens bench’s division court 4) Court of appeal (criminal division) |
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What are the appeals for the crown court ? |
1) Crown court 2) court of appeal (criminal division) - either because D’s conviction sentence or P’s acquitted sentence 3) Supreme Court (only for national importance e.g. Stephen Lawrence) - a case can go from the crown court to the Supreme Court via a Leap frog only if the case is of national importance |
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Advantages and disadvantages of meditation and conciliation. |
Ads: - cost - control - flexibility - private - speed - cost - enforceability
Dis: - lack of legal expertise - cost - rights of appeal are limited - delays |
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What is the hierarchy of the Civil courts? |
1) civil court (court of justice of the European Union and European court of human rights) 2) Supreme Court (formerly the HL) - House of Lords 3) court of appeal (civil division) 4) divisional courts (queens bench division, family division and chancery division) 5) high court 6) county court |
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What is the Hierarchy of the criminal court? |
1) Criminal court (court of justice of the European Union and European court of human rights) 2) Supreme Court (formerly the HL) - House of Lords 3) court of appeal (criminal division) 4) queens bench divisional court 5) crown court 6) magistrate court |
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What is a mode of trial hearing ? |
Where the trial will be heard (magistrates/crown court) |
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What is jurisdiction? |
The power to apply a law |
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Who hears appeals about a conviction or sentencing in criminal courts ? |
A judge and two magistrates |
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What does the process of case stated mean ? |
Appeals on an aspect of law of the D believes the magistrates have gotten the law wrong |
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What is the max fine and sentence magistrates can impose ? |
Up to 12 months and a £5000 fine |
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What does the criminal justice act 1991 provide ? |
Makes protection of the public and prevention of crime central of policy as well as making the punishment fit the crime by making sentences broadly endorses the concept of sentencing proportionate to the seriousness of the crime but allows longer sentences to be imposed in certain cases. |
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What is a custodial sentence ? |
Most serious punishment only for cases that “was so serious that neither a fine, alone nor community sentence can be justified” - can range from a few weeks to life imprisonment - types of custodial sentences : mandatory and discretionary life sentences, fixed term sentences, suspended sentences |
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What is a suspended sentence ? |
When the sentence will not take effect unless the offender commits a subsequent offence within a given period. |
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What does the family division deal with ? |
- claims related to children, family matters, divorce etc - cases are heard by a single judge |
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What is a mandatory life sentence ? |
- only a sentence a judge can impose for murder - the judge can state the minimum number of years a D may serve before being eligible to be released on license - the judge can sentence the D to a full term down to 12 years depending on the factors - this would be appropriate for a murder of a child involving abduction or sexual motive or a murder for a political, religious, racial religious or ideological cause |
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What are aggravating factors ? |
- premeditation - vulnerability of the victim - infliction of mental or physical abuse of the victim |
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What are mitigating factors ? |
- intention to cause GBH rather than kill - lack of premeditation - an act of mercy |
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What is a discretionary life sentence ? |
- suitable for serious offences e.g. S18 offences against the person act 1861 e.g. throwing acid in the face or hitting someone over the head to cause brain damage |
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What is a fixed term sentence ? |
- Imprisonment a set number of months or years - prisoner do not serve the whole sentence - they are automatically released after they have served half - only offenders over 21 can be given a custodial sentence |
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What is a suspended sentences ? |
- an adult offender may be given a suspended sentence of up to 2 years (max 6 months in the magistrates court) - if prisoner doesn’t coming any further crimes the prison sentence will not be served - however if the offender does commit further offences within the period of suspension then the prison sentence is “activated” then the offender will serve the sentence together with any sentence for the new offence - a suspended sentence should only be given where the offences is so serious that an immediate custodial sentence would have been appropriate, but there are exceptional circumstances in the case which justify suspending the sentence |
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What community orders are there? |
Fines, discharges (conditional and absolute)
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What are fines ? |
Fine - common way of disposing of a case in magistrates court however in crown court only a small amount of offenders get fines |
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What is a conditional discharge ? |
- a conditional discharge means that the court convicts but discharges an offender on the condition that no further offence is committed during during a set period of up to 3 years. - intended for use where it is thought that no punishment is necessary - if the offender commits a crime in the time limit then the court can impose another sentence in place of the conditional discharge, as well as imposing a penalty for the new offence |
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What is an absolute discharge? |
- no penalty is imposed - penalty is likely to be used where an offender is technically guilty but morally blameless - e.g. where a tax disc on a vehicle has fallen to the floor - it is technically not being displayed and an offence has been committed - if someone is prosecuted of this, the magistrates who would have to impose some penalty, would most probably however appear on his or her criminal record |
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What three changes did lord Woolf suggest in his 1996 report on access to justice? |
- simplify the current language - introduction of the “three track system” - encourage alternatives to the courts |
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What are the purposes of sentences and what act is it under? |
S142 Criminal justice act 2003 |
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What are judges and magistrates required to regard during sentencing ? |
- the punishment of offenders - the reduction of crime (including its reduction by deterrence) - the reform and rehabilitation of offenders - the protection of the public - the making of reparation by offenders to persons offended by their offences - this means “making good” or compensating the victim or society for the offending behaviour e.g. by doing unpaid work |
Two P and three R |
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What is a pre-sentencing report ? |
- prepared by the probation service who will be told how serious the offence is considered to be and the purpose of the sentence - to compile the report an officer from the probation service will interview the D |
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A pre-sentence report will look at the aggravating and mitigating factors which include: |
-the reasons why the person committed the offence - their attitude to the offence - their attitude to any victims - any other factors that might affect their blameworthiness |
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What are some aggravating factors ? (Aggravating factors means that the court will pass a more severe punishment than usual) |
- previous convictions that are similar to the present offence - on bail when offence was committed - racial or religious hostility being involved in the offence - hostility to disability or sexual orientation being involved in the offence |
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What are some aggravating factors for specific offences ? |
- O is part of a group attacking the victim - particular vulnerable victim e.g child/elderly - victim serving the public e.g. a doctor or nurse - the crime was pre-mediated |
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What are some mitigating factors ? Factors regarding the D or the circumstances of the crime that might result in reduced charges or a more lenient sentences |
- mental or physical illness of the D - the D having no previous convictions - evidence of genuine remorse - co-operation with the police and others involved with the court case - pleading guilty at the first opportunity - attracts reduction of up to 1/3 from their sentence (or 20% if the evidence if overwhelming) |
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What is the application to be a lay magistrate? |
1) advert for magistrate 2) application submitted 3) check for general eligibility - age (18-65), criminal record, live/work in area 4) 1st interview - key qualities: commuted + reliability etc 5) 2nd interview - case studies - are they biased 6) background checks - can anyone influence you to make a decision 7) recommendations by LAC (magistrate/ retired magistrate) - local advisory committee 8) LC Justice appoints Mags - under the act Crime + courts act 2013
- expertise: legal terminology, facts about legal cases, defences background |
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What is a plea before venue ? |
Decides whether you will be heard in mags or crown court |
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Facts about legal executives |
- specialised in type of law - no need for law degree, diploma or uni - work with solicitors - contract work - governed by (chartered institute of legal executive) who can fire you and remove you from the specific part of the job |
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Explanation of negotiation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- coming to an agreement, most basic and informal way of ADR - two parties come together because they had a dispute - two parties and someone who could represent them such as a family member, friend, a lawyer or other professional - individual or business, householders/trademan, two drives who were in a car accident - face to face, phone, FaceTime, email letters - dispute occurs between two parties, two parties discuss the dispute, they put each agreement together, they talk about what they want and what they’re willing to give - dispute is resolved in a binding agreement, or if dispute is unresolved then they may seek another route to resolve the dispute |
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Facts about juries |
- no need for qualifications - 18-75 - juries act 1974 - to live in the UK or channel island for 5 years since their 13th birthday - can’t have serious criminal record e.g robbery - on electrical register - must not have done any criminal activity for 10 years - can’t be jury if on bail - get selected computer - get send back if jury looks bias e.g 12 white women/men |
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Magistrates do not need special qualifications but must have 6 key qualities: |
- good character - understanding and communication - social awareness - mature and sound temperament - be of sound judgment - commitment and reliability
In the exam u do not need to know all of these just make sure u have a clear understanding of them |
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People are not eligible to be lay magistrate if they have: |
- serious criminal convictions - undischarged bankrupts - any other good reason - having a mental/physical issue like not being able to see/hear the D |
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What is the role of a magistrate? |
- deal with preliminary work such as bail applications for summary, either way and indictable cases - hear less serious crimes I.e. all summary cases and most triable - either - way cases (94% of all criminal cases) - decide the sentence for those Ds found guilty in the magistrates court of summary and either way cases - can also sit in crown court with a judge to hear appeals from the magistrates court against conviction or sentence - if they hear the appeal they also decide the sentence |
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Advantages of jury trial |
- open system of justice - lay persons are part of the process - secrecy - freedom from pressure - impartiality - random selection of jurors
Pontings case - the jury refused to convict the D as his actions disclosing official secrets were in the public interest |
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What is the jury central summoning bureau control process? |
1) selection by computer from electoral register (random) 2) jury Summons (disqualification/excusals) 3) arrive at crown court (2weeks) 4) jury vetting (crown court checking potential jurors background to assess their suitability to decide particular cases) 5) 15 allocated to court clerk randomly choosing 12 jurors |
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What are the challenges for cause (prosecution or defence) |
- challenges for the array (the whole jury) - R v Ford the court said if the jury was chosen randomly then it could not be challenged simply because it was multi - social - challenges to the polls (individual juror) - must be a valid reason e.g. disqualified or knows or is related to the witness or defendant - right to stand by (prosecution only) - the juror may be illiterate or may be a security risk - judges discretionary power - if the judge realises that the juror is struggling |
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What qualifications do barristers need ? |
- law degree (3 years) or degree (3 degree) plus general diploma in law (1 year) - bar vacations cause (1 year) - inns - called to bar - pupillage - 6 months shadowing, 6 months work supervised |
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What is a barristers role, where are they located a what skills do they need ? And what are their regulations? |
What: - advocacy (court) - drafting legal docs: - contracts, partnerships agreement - opinions - interviewing clients/provide advice to solicitor/clients Where: - cps - in house - chambers - self - employed Skills: - patience - think on feet - knowledge of law - people skills Regulation: - struck off - fired - suspended |
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What qualifications do solicitors need? |
- Law degree (3years) or degree (3years + general diploma in law (1 year) - legal practice course (1 year) - training contract (2years) - qualified as a solicitor |
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Explanation of mediation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- discussion using a neutral person to help parties come to a compromise solution - there is a disagreement/dispute between two people - two parties, commercial mediation service centre for dispute resolution, meditator - contracts e.g. lease, small business ownership to resolve disputes or dissolve the partnership, employment, divorcing couples who want to agree a child custody agreement - face to face, phone - 1) introductory remarks, 2) statement of the problem from the parties, 3) information of problems, 4) bargaining and generating options 5) reaching and agreement - may be a successful outcome, if an agreement is reached it will be binding on the parties, if an unsuccessful outcome the parties must seek another route |
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What are the challenges for cause (prosecution or defence) |
- challenges for the array (the whole jury) - R v Ford the court said if the jury was chosen randomly then it could not be challenged simply because it was multi - social - challenges to the polls (individual juror) - must be a valid reason e.g. disqualified or knows or is related to the witness or defendant - right to stand by (prosecution only) - the juror may be illiterate or may be a security risk - judges discretionary power - if the judge realises that the juror is struggling |
1. Challenges for the array (the whole jury) 2. Challenges to the polls (individual juror) 3. Right to stand by (prosecution only) 4. Judges discretionary power |
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What qualifications do legal executives need and what are their regulations? |
- no uni needed - study specialist areas of law
Regulations: - chartered institute of legal executives |
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Superior judges and where they sit |
1) High court judges sit in 1 of 3 divisions 2) lords justices of appeal sit in court of appeal 3) justices of the Supreme Court sit in Supreme Court |
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Inferior judges and where they sit |
1) district judges sit in the county court - district judges in the magistares court sit in the magistrates court 2) recorders sit part - time in the crown court and the county court 3) circuit judges sit in the crown court and the county court |
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What has the courts and legal services act 1990 amended ? |
Amended by the tribunals, court and enforcement act 2007 sets out the necessary qualifications to be a judge |
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What is the role of justices of the Supreme Court, do they work in criminal/civil, where do they sit? |
Role: - hear about 100 appeals a year, set a precedent for lower courts Civil/criminal: - yes/yes Sit: - a minimum panel of 3 |
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What is the role of lord justices of appeal, do they work in criminal/civil, where do they sit? |
Role: - hear appeals from the lower courts Criminal/civil: - yes/yes Sir: - they sit as a panel of 3 judges (5 for important cases) |
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What is the role of high court judges, do they work in criminal/civil, where do they sit? |
Role: - hear cases at first instances (the first time they have been heard) hear appeals from the lower courts Criminal/civil: - yes/yes Sit: - sit as a panel of 2 judges |
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What is the role of circuit judges, do they work in criminal/civil, where do they sit? |
Circuit judges in county court Role: - hear civil cases - decide law, facts and outcome Civil/criminal: - yes to civil and no to criminal Sit: - sit on their own
Circuit judges in crown court Role: - hear criminal cases - decide law, jury decides facts - judges decides sentences Civil/criminal: - no to civil and yes to criminal Sit: - sit with jury |
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What is the role of recorders, do they work in criminal/civil, where do they sit? |
Role: - are part - time judges appointed for 5 years Civil/criminal: - yes/yes Sit: - sit mainly in crown court to hear criminal cases - sit alone - sit mainly in the county court to help with civil cases |
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Explanation of conciliation? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- discussion using a neutral person (conciliator) to help the parties come to a compromise solution - disagreement - two parties, trained conciliator - contracts e.g. lease, small business ownership to resolve disputes or dissolve the partnership, employment, divorcing couples who want to agree a child custody agreement - face to face, phone - 1) introductory remarks, 2) statement of the problem from the parties, 3) information of problems, 4) bargaining and generating options 5) reaching and agreement - may be a successful outcome, if an agreement is reached it will be binding on the parties, if an unsuccessful outcome the parties must seek another route |
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How can judges be removed ? |
By a petition from both Houses of Parliament presented to the monarch, it has once been used for an Irish judge but never for an English judge - this legislation can be used for judges who are ill |
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How can inferior judges be removed ? |
- For incapacity or misbehaviour (including criminal convictions) - the LCJ must consent before the lord chancellor can remove a judge from office A the constitutional reform act 2005 states that the LCJ can suspend someone subject to criminal proceedings or convicted of a criminal offence |
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What was the Abortion act 1967 about ? |
- an act of parliament of the United Kingdom legalising abortion on certain grounds by registered practitioners - regulating the tax paid provisions of such medical practices through the national health service |
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What was the equality act 2010 about ? |
- the act makes it unlawful to discriminate against someone on the grounds of any of these characteristics: age, disability, gender reassignment, marriage, civil partnerships, pregnancy and maternity, race, religion and belief, sex, sexual orientation |
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What is the dangerous dog act 1991 about ? |
- The act of the parliament of the United Kingdom prohibited or restricting certain types of dogs - codifying the criminal offence of allowing a dog of any breed to be dangerously out of control - this was done by a man named Kenneth baker after 11 dogs attacks all occurring in 1991 - he promised to “rid the country of the menace of these fighting dogs” |
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What are the parliament acts 1911 and 1949 about ? |
- the parliament acts 1911 and 1949 are two acts of the parliament of the United Kingdom which form parts of the constitution (voting member of a organisation) of the United Kingdom. - section 2 of the parliament act 1949 provides that the two acts are to be construed (interpreted) as are. - the parliament acts of 1911 and 1949 limit the powers of the House of Lords in relation to the House of Commons. - they replaced the lords right to veto Commons Bills with a right only to delay them and put into law the Commons exclusive powers to pass Bills or public tax and spending. |
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What is meant by insolvency? |
Situations where a debtor cannot pay the debts they owe |
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What happens in the case of insolvency ? |
When forced with insolvency or buisness or individual can contact creditors directly and restructure debts to pay them off |
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What is meant by potent ? |
Having great power, influence or effect |
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What is meant by obtained judgement by default ? |
If the defendant doesn’t respond within 14 days, the court automatically makes an order requiring the D to pay the amount claimed (court decides how much money the D owes the claimant) |
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Explanation of arbitration? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- the parties agree to submit their claims to private arbitrations, arbitration comes under the arbitration act of 1996 - Scott v Avery clause in contract (before dispute). After dispute, agree to go to arbitration: agree process, agree arbitration, court - arbitration to be appointed - 1-3 arbitrators (trained arbitrator) - consumer dispute e.g. package holiday - the format is agreed between the parties. It can take the form of: a paper arbitrator where all evidence is given in writing, a hearing where they make oral submissions and call witnesses. The formal procedure means that witnesses swear on an oath and can be compelled to attend. - date, time, place is up to parties - final decision is called “award”, it is binding on the parties and the decision can be enforced through the courts, “award” + reason why, appeal - irregular procedurally (an error or mistake in the way that an assessment has been carried out) |
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What does Conceded mean ? |
Admit or agree that something is true after first denying or resisting it |
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What is not an ADR ? |
Tribunals |
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Explanation of tribunals? How it comes about? Who’s involved? Types of dispute? Format? Process? Outcome? |
- an individual tribunal which makes decisions in legal disputes around employment law - employment tribunals act 1996 - the parties and a tribunal judge and 2 lay people experienced in the dispute - discrimination, equal pay, redundancy etc - formal/informal - formal includes evidence and oath and cross examination - parties make an application for a tribunal hearing - they present their evidence to the tribunal - the tribunal make a decision that is binding called “an award”, an employment appeal for tribunals is only possible on the grounds including getting the law wrong, not applying correct law, procedures not correctly followed which could affect the outcome, having no evidence to support decision and bias - if an appeal is wanted to be made it needs to be made within 42 days of the date the written reason for the judgment were sent out |
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What is the civil procedure act 1997 ? |
An act to amend the law about civil procedure in England and wales |
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What is judicial independence? |
Judges making their own decisions without interference from litigants, the state, media etc |
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What is the legal aid agency ? |
-Was created by the legal aid, sentencing and punishment of offenders act 2012 - it provides civil and criminal legal aid and advice to help people deal with their legal problems |
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Three roles of the legal aid agency ? |
- Fund the civil legal advice service - publish evidence about decisions made on whether or not to fund a case - run the public defender service |
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What are two other alternative sources for legal advice ? |
Pro bono lawyers - lawyers who offer free legal advice and representation Law centres network - free access to legal advice from solicitors for those who can’t afford a lawyer |
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What is one source of funding under access of justice ? |
Conditional fee agreements |
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What are the 3 ads and 3 disad of conditional fee agreements ? |
Ad: - they remove the stress of having to pay a huge amount of costs - they are widely available - there is no payment upfront or in advance to begin the case Dis: - solicitors usually charge a higher fee in case they lose the case - court costs may still need to be paid that may not be covered in the arrangement - lawyers will generally insist on insurance being taken out, which stops many poorer clients from contacting CFA (conditional fee agreements) |
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What did the civil procedure act of 1997 set out ? |
Three tracks : small track, fast track, multi track |
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