#19841 - Ocr The English Legal System - OCR A-Level Law (with Human Rights Law)

The English Legal System

Topics:

• Introduction to law points

• Access to justice

• Civil courts

• Tribunals

• ADR

• Criminal courts

• Sentencing

• Magistrates

• Juries

• Legal personnel

• The Judiciary

Introduction to law points

Sources of law and civil versus criminal law

Civil law

Deals with private disputes.

Purpose: uphold private rights of individuals.

Standard of proof: on a balance of probabilities.

Powers of court: damages, injunction.

Criminal law

Deals public and private disputes.

Purpose: maintaining public order and protecting society.

Standard of proof: beyond reasonable doubt.

Powers of court: prison, fines - more sinister punishments.

Sources of law

Statute law (eg OLA 1957 and 1984)

Case law (from cases)

UK has a common law system - uses both statute and case law. This is contradictory to civil law systems, which are codes laws.

UK development of law: law started as 'customs' - these evolved into case law and some was eventually codified in statute law. After a while, equity courts and equitable law is created, alongside the legal courts and the law. Eventually, consolidated together.

The Rule of Law

Theory

General idea:

• no person shall be sanctioned except in accordance with the law

• equality before the law

• fairness and clarity

Honore: rule of law exists when government powers are limited by citizen rights.

Dicey: rule of law exists when: absence of arbitrary state power; equality before the law; supremacy of ordinary law. Problem: conflicts with Parliamentary sovereignty as under this, Parliament is free to legislate as it chooses (‘arbitrarily’). Problem: equality before the law is only formal, Dicey does not consider access to justice issues.

Von Hayek: supports Dicey but acknowledges it is an abstract theory, unrealistic in practice. State often intervene, like with economic matters.

Raz: rule of law exists when: clear procedures for making law; judicial independence exists; open and fair hearings/natural justice; courts can check these principles occur.

Lord Bingham: rule of law exists when 8 points occur. These revolve around the law being accessible/clear; law protecting human rights and protecting equally; law being the method of resolving disputes and affording liberties/rights/punishments/liabilities; legal adjudicative procedures and the legislative officials being fair and reasonable.

Application in practice

S1 Constitutional Reform Act 2005 recognises the principle of the rule of law. S3 upholds principle of judicial independence.

What does this mean in practice regarding law making? Influences the Whitehall legislative process and associated Bill to Act formalities, for example House of Commons and House of Lords all have to affirm Bills. Delegated legislation controls also embody rule of law through their processes/controls.

What does this mean in practice regarding the legal system? The legal system should be fair, not corrupt, allow fair trials, treat innocent until proven guilty, and accessible.

What does this mean in practice regarding substantive law?

• Crime: crimes must be clear, so people know what is illegal or not. Trials need to be fair and maximum penalties need to be set.

• Tort: though the law should be accessible, it is often difficult to achieve access to justice with tort cases, unless using ‘no fee no win’ agreements.

• Contract: often protects consumers as recognises there is a power imbalance between them and businesses, thus making the law more fair.

Access to justice

Government help schemes

Civil Legal Advice (CLA) provides telephone help.

Legal Aid Agency helps with civil cases.

Duty Solicitor Scheme helps with criminal cases.

Civil law funding

LASPO 2012 sets out civil law funding available:human rights, some environmental law; not available for torts, contracts, wills, employment. LASPO gives funding based on a means-tested basis.

Criminal law funding

Applicants must apply to Ministry of Justice Legal Aid Agency either for a means-tested approach or an 'interest of justice' approach. Interest of justice: threats to liberty, livelihood or reputation/revolves around a point of law. In summary, you get interest of justice funding if the interests of another are important in the decision that the applicant is represented.

Private funding

Insurance.

Own resources.

Conditional fee agreements ('no win, no fee' representation).

Other advice agencies

Citizens Advice Bureau - charity giving legal advice on social, housing, debt.

Law Centres - are limited, but give advice to local citizens.

Trade Unions - these represent employee members.

Schemes ran by law firms, offer free legal advice on a pro-bono basis.

Civil courts

County Court

Cases heard by Circuit Judge or District Judge.

Hears contract, tort, land, equitable matters up to 350,000.

High Court

King’s Bench Division: cases heard by single judge or 12-member jury. Hears fraud, libel, slander, malicious prosecution, false imprisonment. Hears contract and tort above 100,000. Contains the Administrative Court (dealing with judicial reviews and appeals).

Chancery Division: cases heard by single judge. Hears tax, insolvency, intellectual property, trusts. Contains the Companies Court (dealing with company law).

Family Division: cases heard by single judge. Hears child welfare, family issues.

Pre-trial procedures

Pre-action protocol: must disclose information as much as possible, governed by a list of things the parties must do, otherwise they face certain costs.

Issuing a claim:

• Need the N1 Form to claim; money claims can be made online.

• Fee must be paid, according to size of claim.

Defending a claim:

• Admit claim and pay full amount, or;

• Dispute claim, within 14 days, by sending N9 Form (acknowledgement of service) and sending a defence to court.

• If claim is ignored, court can order defendant to pay.

Three track system

Set out in the Civil Procedure Act 1997.

Small claims: for simple cases, with involvement from the judge and both parties; less than 10,000 in damage and 1000 in personal injuries. These are heard in the County Court and with a District Judge.

Fast track: more formal with a strict timetable, limiting the hearing to 1 day and around 1 expert witness. These are heard in the County Court and with a Circuit Judge.

Multi-track: for complex cases with a judge to ‘manage’ the case, to ensure costs are kept as low as possible; for damage over 25,000. These are heard in the County Court and sometimes the High Court with a Circuit Judge.

Reform

The Woolf Reforms: aimed to get reasonable costs, access and treatment in the law, as well as increase the use of IT and alternative dispute resolution, to improve speed. This has led to more party cooperation and better case management.

Lord Briggs 2016 reforms: aimed for an out-of-hours private mediation service in the courts and an online court, including: online evaluation service, online facilitation service, online judges.

Appeal routes

From County Court: if from a District Judge, to a Circuit Judge; if from a Circuit Judge, to a High Court Judge. Second appeals go to the Court of Appeal, if there is a point of law or compelling reason.

From High Court: to the Court of Appeal or the Supreme Court through a ‘leapfrog’ appeal if of national importance.

Advantages

• Possibility of legal aid.

• Judges are impartial and experienced.

• Appeal process is easy to use.

• Enforcement of decision is easier as other Courts work together.

Disadvantages

• Cost is relatively high.

• There are sometimes big delays in waiting time.

• It can be a complicated process.

• There is uncertainty of outcome.

Tribunals

What is a tribunal/what does it do?

Different to a court (more informal) but still leads to decisions.

Tribunals enforce rights related to social and welfare issues.

Most applicants represent themselves.

Decisions are binding.

Tribunals were created under the Tribunals, Courts and Enforcement Act 2007.

Types of tribunals:

1. First-Tier Tribunals with 7 chambers - Social Entitlement, Health, Education and Social Care; War Pensions and AFS; General Regulatory; Taxation; Lands, Property and Housing; Asylum and Immigration.

2. Upper Tribunals with 4 chambers - Administrative Appeals; Tax and Chancery; Lands; Asylum and Immigration.

3. Employment Tribunals.

If someone appeals: the case then goes to Court of Appeal and Supreme Court.

Composition in First-Tier: Tribunal Judge and 2 experts (non-lawyers).

Tribunals evaluation

Advantages

• Decisions are binding, meaning outcome can't change so there is certainty.

• Informal, meaning it is accessible and people can represent themselves.

• Cheaper than court because lots of people represent themselves.

• Quicker, most only take a day.

• With experts sitting tribunal judges, they can offer much more detailed insight.

Disadvantages

• People representing themselves is bad as they are not experts in the law so is not a fair way when it is people versus businesses.

• Still intimidating - not as informal as ADR.

• More expensive than ADR as may need to pay for a lawyer and a judge.

• There are delays because there is a backlog of cases to be done.

• Lack of funding for legal aid, meaning people can't access legal advice very readily.

ADR

ADR is an alternative dispute resolution which is a form of resolving issues without litigation. Woolf Reforms - we need to use ADR more.

Remember the acronym ACMN – this is the hierarchy from most like court to least like court (so most influence from third parties to least).

Arbitration - an arbitrator speaks to each party and makes a binding decision. Scott v Avery says that in some contracts, arbitration must be done before litigating in court.

Advantages

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