AS Law English Legal System Revision Guide OCR PDF

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AS Law English Legal System Revision Guide (OCR) Describe the training, organisation, work and complaints procedure of solicitors and barristers.

Training

Organisation

Work

Complaints

Solicitors

Barristers

1a) Law degree (3 years, £9000 per year) 1b) Non law degree (3 years, £9000 per year) and GDL/CPE (1 year, £9000) 2) Legal Practice Course (1 year, £10000-£15000) 3) Training contract (4x6 months, salary) and Professional Skills Course 4) Admission to the Roll There are about 160,000 solicitors in the UK Work in firms Some are employed by businesses in-house and the government Governed by the Law Society Regulated by the Solicitors Regulation Authority Since the Legal Services Act 2007 solicitors can work in Alternative Business Structures or MultiDisciplinary Partnerships

1a) Law degree (3 years, £9000 per year) 1b) Non law degree (3 years, £9000 per year) and GDL/CPE (1 year, £9000) 2) Membership of an Inn of Court - dine or go on a course 3) Bar Professional Training Course (1 year, £12000-£18000) 4) Call to the Bar 5) Pupillage (2x6 months, funded minimum of £12000) There are about 12,000 barristers in the UK Work in chambers Are mostly self employed Some work with the Crown Prosecution Service Governed by the Bar Council Regulated by the Bar Standards Board Have a clerk to organise their cases and clients Cab Rank Rule means barristers must accept cases the clerk gives them unless preoccupied Negotiations - client (guilty/not guilty), barristers, solicitors, paralegals Legal research Advocacy - have full rights of audience in all courts Writing opinions on cases, e.g. if a client stands a chance or not

Meetings - clients, solicitors, barristers, paralegals Advice - office (30 mins for free), station (Duty Solicitor Scheme), court Documents - wills, divorce Matrimonial - marriage, divorce Advocacy - in magistrates courts unless have Certificate of Advocacy Negotiations Case research - litigation Conveyancing - selling property 1) Firm - only deal with minor issues, can’t take serious disciplinary action but can fire solicitor or order to pay back client’s money 2) Solicitors’ Regulation Authority regulates solicitors, deals with serious professional misconduct, sets up a Solicitors Disciplinary Tribunal, can fine, reprimand, suspend or

1) Chambers - only deal with minor issues, can’t take serious disciplinary action but can fire barrister or order to pay back client’s money 2) Bar Standards Boards - regulates barristers, deals with breaches of the Code of Conduct, sets up Barristers Disciplinary Tribunals or refers case to Inns of Court, can fine, reprimand, suspend or strike off

strike off solicitors and close down firms 3) Solicitors’ Disciplinary Tribunal independent, heard by a panel of two solicitors and one lay member, master of the Rolls appoints members, usually public, the power to discipline solicitors is set out in section 47 of the Solicitors Act 1974, can strike off, suspend, fire and order them to apologise 4) Court action - solicitors can be sued for breach of contract and negligence, e.g. Griffiths v Dawson (solicitor sued for £21000 after making wrong application in divorce proceedings), White v Jones (solicitor sued for £9000 for failing to draft will) 5) Legal Ombudsman - deal with complaints for both solicitors and barristers, can order the solicitor to apologise to the client, give back documents, put things right if possible, refund or reduce legal fees or pay compensation of up to £30000, started in October 2010 and received 7130 complaints about solicitors in the following two years, 20-25% of complaints are about costs, and others are about delay, poor advice or poor practice

barristers 3) Barristers’ Disciplinary Tribunal arranged by the Bar Tribunals and Adjudication Service, 3 or 5 panel members, mostly the same as solicitors’ tribunals 4) Court action - barristers can be sued for negligence but not breach of contract as barristers don’t sign an official contract, e.g. Saif Ali v Sydney Mitchell and Co 1980 (barrister sued for negligence after giving wrong advice to a woman about who to sue), Hall v Simons (held that barristers could be sued for negligent advocacy) 5) Legal Ombudsman - deal with complaints for both solicitors and barristers, can order the solicitor to apologise to the client, give back documents, put things right if possible, refund or reduce legal fees or pay compensation of up to £30000, started in October 2010, in 2011-12 there were 212 complaints against barristers to the Ombudsman 20-25% of complaints are about costs, and others are about delay, poor advice or poor practice

Evaluate the routes of training for solicitors and barristers.

Law graduate route

Non-law graduate route

6 years in total - can become a lawyer sooner

7 years in total - more mature and more life experience when become a lawyer, but 1 year GDL is stressful - learn everything that is normally learnt in 3 years More knowledge (different degree) - liked by employers and can learn something personally enjoyed Higher cost but the Law Society might fund, although this is not guaranteed

Only learn knowledge that is needed for law don’t waste time Lower cost (no GDL year) so will hopefully afford all the training

What are the problems of lawyers’ training?

Problems of training

Counter-arguments

Difficulty finding a training contract or pupillage means many lawyers never finish training

Lawyers who haven’t finished their training can become paralegals until they find a training contract or pupillage The Law Society and firms fund training, and the lawyer is likely to pay off any debts once they are fully trained and get a job

High costs and funding isn’t guaranteed, so those with financial backing have a higher chance of qualifying than those who lack financial resources GDL/CPE is believed to be insufficient as a grounding in law for non-law graduates The choice to become a solicitor or barrister is made too early, leading to the lawyer feeling discontent with their job

The GDL/CPE is good for those who want to do a degree in something else or decide late that they want to be a lawyer Solicitors’ and barristers’ job roles have become more similar, e.g. Direct Access 2004 means barristers can take cases from the start, and solicitors can get a Certificate of Advocacy to have full rights of audience in all courts

What are the similarities and differences between solicitors and barristers?

Similarities

Differences

Direct Access 2004 - barristers can now take cases from the beginning

Vocational training focuses on very different skills - barristers might not be qualified to take cases from the beginning Judges dislike and criticise solicitor advocates

Certificate of Advocacy - solicitors can now be advocates in all courts Legal Ombudsman deal with complaints for both solicitors and barristers Both solicitors and barristers can now become judges Legal Services Act 2007 - solicitors and barristers can work together in Alternative Business Structures or Multi-Disciplinary Partnerships

Solicitors can be sued for breach of contract, but barristers can’t as they don’t sign an official contract

Have recent changes lessened the differences between solicitors and barristers?

Lessened difference

Haven’t lessened differences

Courts and Legal Services Act 1990 allowed solicitor in private practice to apply for Certificate of Advocacy enabling solicitors to appear in the higher courts Direct Access 2004 - barristers can now take civil cases from the beginning The complaints procedure has been fused at certain levels – Legal Services Ombudsman and Office for Legal Complaints created under the Legal Services Act 2007 The rights of audience practicing certificate is now incorporated in solicitor’s training resulting in the vocational training preparing solicitors to undertake work previously reserved for barristers

Few solicitors have the certificate and judges dislike/criticise solicitor advocates

Limitations - Direct Access not available in criminal cases Still have different regulatory and governing bodies - Law Society regulates solicitors, and Bar Standards Board regulates barristers The different vocational courses demonstrate that training is still separate and focus on different skills

Should solicitors and barristers be fused?

Solicitors and barristers should be fused

Solicitors and barristers shouldn’t be fused

Cheaper - only pay one lawyer

More expensive - less competition due to lost jobs = can demand higher costs Lose specialist advice and skills - could increase the length of cases Lose cab rank rule - could be worse for clients if lawyers don’t want to take on certain cases No need to fuse - solicitors can get a Certificate of Advocacy to be advocates in higher courts and barristers can take civil cases from the start due to Direct Access 2004

Less duplication of work - saves time More continuity due to only one lawyer needed - better for clients Changes haven’t made solicitors and barristers completely the same - judges dislike and criticise solicitor advocates and barristers can’t take criminal cases from the start

Are the complaints procedures for solicitors and barristers satisfactory?

Satisfactory complaints procedures

Not satisfactory complaints procedures

The Legal Ombudsman are independent so shouldn’t be biased and should get an impartial result

Some complaints are dealt with by the professions’ own bodies so could be biased, e.g. Solicitors’ Regulation Authority and the Bar Standards Board There are considerable delays in dealing with complaints particularly those involving solicitors.

The Legal Services Complaints Commissioner is able to set targets for handling complaints and can fine the professional body concerned if the targets are not met. The Legal Ombudsman can pay compensation of up to £30,000, whereas before the Legal Ombudsman were formed it was harder to get compensation. Barristers can be sued for negligence, and solicitors can be sued for negligence and/or breach of contract. Hall v Simons (2000) ruled that advocates can be sued for negligent advocacy. The Law Society has a panel which provides lawyers for suing other lawyers.

£30,000 is a relatively low amount of compensation and this might not adequately compensate clients for their actual losses. When suing a lawyer there is a reluctance to start new proceedings, due to the cost and difficulty in finding another lawyer

Have the 2010 changes (Legal Ombudsman) improved the way complaints against solicitors and barristers complaints are dealt with?

The 2010 changes have improved complaints

The 2010 changes haven’t improved complaints

Legal Ombudsman are independent (complaints used to be dealt with by their own professional bodies) - those who complain are more likely to get an impartial and just decision Legal Ombudsman are faster at dealing with complaints

Legal Ombudsman are independent so don’t have inside knowledge of solicitors’ and barristers’ work, so their decisions could go against solicitors and barristers Legal Ombudsman don’t have to have previous legal training/experience so could take longer to deal with complaints if they have to research areas that they don’t understand Legal Ombudsman can’t strike off or suspend solicitors or barristers.

Legal Ombudsman can the power ask the lawyer to apologise to the client, give back documents, put things right if possible, refund or reduce the legal fees, or pay compensation of up to £30000. Legal Ombudsman only deal with poor service, so can focus all their time and expenses on this.

Legal Ombudsman only deal with poor service, so can’t deal with other issues that affect clients, such as professional misconduct.

Describe the qualifications, selection, appointment, training, role, complaints and dismissal of judges.

Qualifications outlined in the Tribunals, Court and Enforcement Act 2007

Selection

Appointment

Training

Role

Inferior judges

Superior judges

1) District Judges (Magistrates’ Court and County Court small claims - have been a solicitor, barrister or ILEX fellow for 5 years and must be a deputy District Judge first 2) Recorders (Crown/County Court part-time) - have been a solicitor or barrister for 7 years 3) Circuit Judges (Crown Court and County Court fast/multi track) - have been a solicitor or barrister for 7 years or been a Recorder, District Judge or Tribunal Judge for 3 years Vacancy goes to the Judicial Appointments Commission (set up by the Constitutional Reform Act 2005), advertise, receive applications shortlist (written test to show ability for judicial role by analysing cases, issues and law application), references (3-6 people who personally or professionally know candidate), selection day (interview panel, role play, presentation, situational questioning), panel decision, statutory consultation (consult Lord Chief Justice), report to Lord Chancellor for appointment Lord Chancellor appoints, can accept, reject or ask to reconsider but must give reasons, goes to Prime Minister and then queen Conducted by the Judicial Studies Board, training is compulsory mainly for newly appointed assistant recorders and consists of a one-week course which deals with sentencing, running a criminal court and human awareness, have to spend a week shadowing an experienced judge before sitting themselves Magistrates’ Court - keeping order in court, ruling on points of law, ruling on admissibility of evidence, deciding guilty/not guilty, passing sentences, “master of both law and facts”, issuing search/arrest warrants.

1) High Court Judges or Puisne Judges (High Court) - have been a solicitor or barrister for 7 years or a Circuit Judge for 2 years 2) Lord Justices of Appeal (Court of Appeal) - be an existing High Court judge or have had 7 years rights of audience 3) Supreme Justices (Supreme Court) hold high judicial office or have held a superior court qualification for 15 years High Court Judges and Lord Justices of Appeal - the same as inferior judges Supreme Justices: Vacancy goes to the Lord Chancellor who sets up a Supreme Court selection commission (has one JAC member), the commission reports to the Lord Chancellor for appointment

Lord Chancellor goes to the Prime Minister and then the queen who appoints Conducted by the Judicial Studies Board, training is voluntary

Hearing points of law arguments, deliver a reasoned judgement on what the point of law may be, create precedents that lower courts must follow.

Crown Court - pre-trial directions, swearing-in the jury, keeping order in court, ruling on points of law, ruling on admissibility of evidence, directing the jury on law/evidence but letting them decide guilty/not guilty, passing sentences.

Complaints

Dismissal

County Court - pre-trial issues (tracking and case management), acting as trial manager, hearing evidence and legal arguments, ruling on legal issues, decide liable/not liable, awarding damages/remedies. Referred to and investigated by the Office for Judicial Complaints, looks into complaints about personal conduct (e.g. use of insulting, sexist or racist language), cannot deal with complaints about a judge’s decision or how they handled the case. If a complaint is accepted, the judge will be asked for their comments. If necessary a senior judge will carry out an investigation and report to the Lord Chancellor and the Lord Chief Justice. If a complaint is upheld, the Lord Chief Justice and Lord Chancellor have the power to advise, warn, reprimand or remove an inferior judge for misconduct. Can be removed by the Lord Chief Justice if the Lord Chancellor agrees, only for incapacity or misbehaviour (e.g. drink driving, sexist/racist offences, and more serious offences). Rarely used, (e.g. in 1983 to remove Circuit Judge Bruce Campbell for evading customs duty on cigarettes and whiskey). Recorder may not have their contracts renewed on the grounds of misbehaviour, incapacity, persistent failure to comply with sitting or training requirements, sustained failure to observe standard, changes in the operational requirements or to enable new recorders to be appointed.

Chairing judicial inquiries (e.g. Saville Inquiry), chairing the Law Commission (check laws), chairing and helping the Judicial College (judges’ training), members of international and European courts (e.g. European Court of Justice), sitting on advisory bodies (e.g. Civil Justice Council and the Family Justice Council.

The same as inferior judges. The case can also be referred to Parliament for an address.

Act of Settlement 1701 - senior judges can only be removed by the queen after an address from both houses of Parliament, only used once (in Ireland to remove Sir John Barrington in 1830 for embezzlement of public funds). High Court Judge Mr Justice Harman resigned in 1998 after being accused of weakening public confidence by delaying a case by 20 months and being out of touch. High Court Judge Mr Justice Laddie resigned in 2005 to return to private practice as he no longer found judging stimulating.

Circuit Judge Major-General David Selwood QC recently retired from sitting before he was charged with 13 offences of making/downloading indecent images of children.

Describe the training of judges. Leaders

Aims

Inferior judges

Superior judges Areas of training Training methods

Attitude Update training

• Constitutional Reform Act 2005 - Lord Chief Justice is responsible for judge training. • Tribunals, Courts and Enforcement Act 2007 - the senior president of tribunals has an equivalent responsibility for the training of tribunal judges and tribunal lay members. • The Judicial College (set up in 2011) took over the responsibilities for training judges and tribunal judges from the Judicial Studies Board and the Tribunals Judicial Training Group (both of which no longer exist). • The chairman of the Judicial College Board (Lady Justice Hallett) is responsible for the running of the Judicial College. • The Lord Chief Justice and senior president of tribunals oversee training by sitting on the Judicial Executive, along with other members, including the chairman of the Judicial College Board. The Judicial College aims to satisfy the business requirements of judicial leaders, promote professional development of judges, improve judges’ effectiveness, and enhance public confidence in the justice system. Training is compulsory for inferior judges, mainly for newly appointed assistant recorders. Consists of a one week course which deals with sentencing, running a criminal court and human awareness. They also have to spend a week shadowing an experienced judge before sitting themselves. Training is voluntary for superior judges. There are three areas of training by the Judicial College - (1) Law, evidence, procedure and subject expertise, (2) judicial skills such as leadership and management skills, (3) social context such as backgrounds, diversity and equality. • Training for the judges is given by judges, and academics may be invited to give lectures and evaluate training methods. Civil servants must have no involvement to increase judicial independence. • E-learning complements training, such as the website www.estudo.co.uk which was set up by the Judicial Studies Board. In the 1970s, judges resented training as they believed they always made good decisions, however opinions have now changed and judges want more training. One day courses are run from time ...