Selection and training of lay magistrates
- person must be between 18-65. The Lord Chancellor is responsible for appointment and relys on recommendations from Local Advisory Committees (LAC).
- The vacancies are publicly advertised since 1993 so anyone can apply.
- Once applied the candidate will complete a 2-interview process.
- First interview finds out about personal attributes, looking for 6 characteristics. Views on issues such as youth crime and DUI will also be discussed.
- Second interview - tests judicial aptitude by looking at 2+ case studies that occur regularly and discuss certain factors e.g. sentencing. The LAC will then recommend candidates they approve of.
- Training - 1) initial introductory training - understanding bench organisation and administration. 2) core training - allows magistrate to develop key skills and knowledge required. 3) activities - involves court sittings and visiting places such as prisons.
- Each trainee has a mentor and keeps a log of their progress. They also partake in structured court observations to experience different cases.
- Training occurs locally however Youth and Family may occur nationally.
- During the first 2 years the magistrate will sit 8-11 mentored sessions and when seen fit they wil be appraised to sit. Otherwise they will get extra training and if still not, LAC may recommend removal.
Advantages and disadvantages of magistrates
- Cross section of society - Shows more diversity, like juries and provides less bias .
- Local knowledge - They will be aware of social struggles and issues in the area, allowing more understanding and fairer results.
- Cost - Its cheaper to use magistrates.
- Legsal advisor - There is a legally qualified clerk to ensure that all results are made with correct legal facts.
- Few appeals - Less apeals are made here and many are against the sentance, not guilt.
- Sentencing - In triable either way offences the sentence is likely to be more lenient here.
- Middle aged middle class - Many magistrates originate from a professional background, contradicting the more just cross section.
- Prosecution bias - Magistrates are critisised for believing police too quickly.
- Inconsistency in sentencing - For driving while disqualified sentencing to custody was 21% in Neath Port Talbot but 77% of offences in Mid North Essex.
- Reliance on the Clerk - The Magistrates have the advice but the Clerk can't play any part in sentencing which contributes to inconsistency.
Discuss different methods of ADR in Civil cases
- Negotiation - Can be done directly and in private and solicitors can also be used as go-between negociators. This can also occur in the background of a court case to try and solve matters faster.
- Mediation - Where a neutral mediator goes between each party to find common grounds to make a compromise. They keep confidentiality whilst giving the key points from each side. Their own views aren't usually given as they are a 'facilitator.' This method can only be used where there is hope of co-operation. Formalised settlement conference- a formal approach which involves a mini trial where each party presents their side and two executives from each side try to make a compromise and otherwise a third neutral party will get involved.
- Conciliation - Very similar to mediation however the conciliator has a more active role and makes suggestions for compromise based on common ground.
- Arbitration - A more formal approach for the judgement of an arbitrator who will make a final decision and give an 'award'. Its governed by the Arbitration Act 1996. In contract parties can agree to arbitrate in a scott v avery clause. A paper arbitration may take place or a more formal hearing may occur with witnesses. The 'award' set is legally binding.
Discuss the advantages and disadvantages of ADR
- its cheaper
- its faster
- its more flexible
- Parties can use professionals is necessary
- Some results are legally binding and some aren't.
- Its all to the freedom of the parties choice.
- Maintains working relationships.
- Unexpectected legal points may arise with non-professionals.
- When dealing with professionals there may be delays.
- Professionals are costly to use.
- Arbitration has limited rights to appeal.
- In other methods the compromise may not be followed.
Describe the training of barristers and solicitors
- Solicitors -
- Law degree or any degree + a one year Graduate Diploma in Law (GDL).
- Next is a one year Legal Practice Course (LPC) which focuses on skills such as interviewing, advocacy and negotiation.
- Next is a two year training contract where the student will get practical training from a professional firm.
- Non graduate route - 4 GCSEs - Institute of legal executives diploma (ILEX) - ILEX higher diploma - LPC - Become a fellow of ILEX after working 5 years or two year training period - qualified solicitor.
- Barristers -
- Law degree or any degree + a one year GDL.
- Next is the Bar Professional Training Course (BPTC) where a student will join one of the 4 inns of court and dine 12 times as well as passing the BPTC.
- Next is the pupilage where the student will shadow a profession for 12 months of two different ones for 6 months each. They will also continue education with the Bar Council and after 6 months they will be able to appear in court alone.
Criticisms of the training of solicitors and barri
- 1) There is a huge financial problem with GDLs costing around £10,000 and LPCs and BPTCs costing around £14,000 and there are no loans or grants available for this. They can be done part time but even so its hard to gain funding.
- 2) Non-law graduates that transfer on a GDL are thought to lack legal knowledge and be viewed as under qualified.
- 3) Theres an over supply of students to not everyone will gain a training contract.
Powers of police to arrest a person on street
- Rights are set out in the Police and Criminal Evidence Act 1984, as ammended by the Serious Crime and Police Act 2005, the Criminal Justice Act 2003 and the code of practice G.
- S.24 PACE as amended by SOCPA 2005 - sets out the power to arrest without warrant If a person has committed an offence or is in the act of committing an offence or is about to commit an offence or there are reasonable grounds for suspecting one of these occurrences. (even if no offence is actually committed.)
- There is a necessity test and this power of arrest can only occur for one of the following reasons - to enable the name and address of suspect to be ascertained, to prevent physical injury, loss or damage to property, causing an offence against public decency, obstruction of the highway, to allow effective investigation of the offence, protect a vulnerable person or prevent any prosecution being hindered by the disappearance of the person in question.
- Arrest for breach of the peace - McConnell v chief (carpet).
- Arrest for breach of bail.
- Arrest with a warrant.
- Police must tell person they are under arrest and the reason for arrest and also have to identify themselves to make arrest lawful.
- Reasonable force may be used and they may be searched for prohibited articles.
Role of magistrates in criminal and civil
- They try 97% of all crinimal cases and deal with the preliminary matters of the other 3% (EAH)
- Decide guilt or innocence.
- Sentence offenders of send them to crown court if they dont have jurisdiction.
- Deal with preliminary matters e.g. bail and mode of trial hearings.
- Specially trained judges hear youth court cases.
- Sign warrants.
- Hear cases of police detention extension.
- Enforce debts owed to utilities.
- Deal with non payment of TV licence and Tax.
- Hear appeals for the refusal of alcohol licences.
- Special panel deals with certain matters under the Children Act 1989 in the Family court e.g. orders for protection against violence and adoption.
Civil appeals system from the County Court
- Small claims appeals are heard by the next judge above in the hierarchy.
- Fast-track cases heard by a District Judge will be dealt with by a Circuit Judge. Cases first heard by a Circuit Judge will then be dealt with by a High Court Judge.
- Final decisions in Multi-track cases heard in the County Court will be heard by the COA.
- Second appeals to the COA in Fast-track cases are only in exceptional cases with compelling reasons or important points of law.
- Appeals usually go to the COA (civil division).
- Possible leapfrog appeal directly to the House of Lords if “statutory interpretation or precedent” is involved or the COA is bound by one of its own previous decisions.
Further appeals -
- There is further apeal to the Supreme court of the ECJ under Article 234 of the Treaty of Rome.
Selection and tenure for different judges
- Law Lords and LJA selected by the Prime Minister.
- Heads of Division, selected by senior judges and JAC. LC has limited powers to object.
- All other Judges selection is organized by the Judicial Appointments Commission. Selection by a mixed panel of judges lay people and lawyers.
- All other judges is by the Judicial Appointments Commission. Mainly by application with references & interviews assessment.Lord Chancellor has limited power to object to selection.
- Applicants for higher appointments are expected to show competence at a lower level.
- Senior judges have security of tenure under the Act of Settlement 1701 and the Supreme Court Act 1981 and cannot be removed except by the Monarch following a petition to both houses of Parliament. Superior judges can be asked to resign.
- Inferior judges can be removed by the Lord Chancellor and the Lord Chief Justice for incapacity or misbehaviour but must comply with set procedures. (Constitutional Reform Act 2005).
- Recorders are only appointed for a period of five years but must be reappointed unless there is a good reason. Judges retire at 70.
Rights during detention of indictable suspect
- Rights are set out in PACE as ammended by the Serious Organised Crime and Police Act 2005, the Criminal Justice Act 2003.
- The right to have someone informed s56 PACE can be delayed by 36 hours.
- The right to see the codes of practice and be monitored by a custody officer.
- To be detained for 24 hours max unless extended to 36 by custody officer or 96 hours by a magistrate.
- All interviews must be recorded and D must be cautioned first. The room must be adequately lit, warm, ventilated and breaks must be given. A seat must also be offered.
- The right to free legal advice which may be delayed in some cases.
- The right to an appropriate adult if u17, suffering mental illness or a vulnerable adult.
- Access to medicla treatment or an interpreter.
- Theres no automatic rights to searches, there must be reasonable suspicion.
- ***** searches are to be done in private with officers of the same sex and only the necessary amount of people present. Only one area should be exposed at a time and women should be offered a robe.
- Intimate searches must be done by professionals with authorisation from high ranking officer.
- Intimate samples may only be done with permission.
Are individuals rights protected in S&S and arrest
- Officer must identify themselves to protect people from random searches. e.g. Osman v DPP.
- Code of practice A sets out what reasonable suspicion is so discrimination can't take place. Its still very broad and easily justified however.
- Not as protected as stop and searches have increased tenfold since 1986.
- Only 10% of people stopped are actually arrested so many are unnecessary.
- Misuse of s60 CJPOA to deal with street robbery instead of riots.
- Protected by necessity test however this is usually overruled as police can arrest "to allow prompt and effective investigation."
- Only reasonable force is allowed to be used however deadly force may be reasonable in certain situations.
- Person told reason for arrest and caution gives some protection of rights.
- Many don't know their rights so they are ineffective.
- Reasearch shows ethnic minorities are less likely to be charged after arrest meaning that they shouldn't have taken place. Monitoring is now in place for it.
Police power to stop and search on the street
- Powers set out under PACE, Codes of practice and CJA 2003.
- S1 PACE - Police have the right to stop and search a person in a public place if they belive prohibited articles, weapons or stolen goods may be found.
- Police must give name and station, reason for search and a written report.
- S2(9) states only outer garments such as a coat and gloves may be removed. Not gloves.
- Code of practice A sets out guidance for stop and search and the meaning of a reasonable suspicion.
Work and organisation of barristers and solicitors
- Controlled by the General Council of the Bar.
- Regulated by the Bar Standards Board.
- All barristers must be a member of one of the four inns of Court.
- Self employed but usually work from a chambers with a clerk to organise the administration.
- Some are employed in organisations e.g. CPS.
- Usually work on intruction of solicitors
- Most concentrate on advocacy
- Will write opinions
- Give advice and draft docs for use in court.
- Some specialise and rarely appear in court.
- Can apply to be a queens counsel after 10 years.
Work and organisation of barristers and solicitors
- Represented by the Law Society
- Regulated by the Solicitors Regulation Authority
- Most work in private practice in a firm as a partner or assistant.
- May be employed by local government or CPS.
- Meet with clients, take instructions and offer advice.
- Draft legal docs
- Wills and probate
- Family matters
- Negligence claims