Debates in the english legal system PDF

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Lecture 1

Debates in the English Legal System The assessment  

MCQ (40%) – 20 questions (30 minutes) Video presentation (60%) – on one debate (7-10 min long)

Themes       

Access to justice Constitutional uncertainty/power of the people The citizen at the centre Efficiency and cost-saving Transparency Diversity Technology

Functions of law      

Public/political/economic/international/moral order – establishing order Provides remedies Regulates conduct (guiding individual conduct) Avoids/settles disputes Sets up the structure of government Providing basics for compromise

Development of the common law (and equity) William the Conqueror  

Needed to control the legal system if he wanted to control the country Listened to the grievances of his subjects and ruled on them o The Kings Bench!

Lazier kings  

Delegated the function to Justices Local customs applied – no unified set of laws

System formalised Henry II  

Country split into circuits (areas) – judges would visit regularly Judges would adopt the best local customs = ‘Common Law’ o Gradually became a body of binding case law – stare decisis  Standing by previous decisions

Issues with the common law

Writs Remedy Sources of law Law-making institutions  

British Parliament + central government Judges and the courts

Acts   

Primary legislation - statutes (acts) Secondary (delegated) legislation - (Statutory Instruments Acts come in 2 types o Public General Acts o Local Personal Acts

Lecture 2 Judges Judicial hierarchy Magistrates Courts – Criminal Function:    

Exercise summary/triable-either-way criminal jurisdiction (no need for jury) Decide on mode of trial for those which could fall under civil or criminal. Exercise some civil jurisdiction (e.g. many family proceedings) Most criminal offences dealt with here! (95%)

Crown Courts – Criminal    

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Triable-either-way + indictable offences One Crown Court but over 90 locations. Only 5% cases end up here. 3 tiers: different levels of judge. High Court judges, circuit judges, recorders, district judges and justices of the peace. Jury present. Criminal offences classified: o Class I – murder, manslaughter o Class II – rape, sexual offences o Class III – all other offences, GBH, robbery, causing death by dangerous driving Deals with appeals from magistrates’ courts, sentencing from mag, jury trials.

County Courts – Civil 

Deal with small civil cases at first instance – contract/tort

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Jurisdiction limited financially – big ££ go to High Court.

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Also, powers re remedies – (can’t grant prohibiting orders, search orders, freezing injunctions) cases involving professional negligence, fatal accidents, fraud, defamation, equity matters etc – would go to High Court.

High Court   

Queen’s Bench Division – contract/tort Chancery Division – Fraud/mortgages Family Division

Court of Appeal Supreme Court  

https://www.supremecourt.uk/decided-cases/index.html https://www.supremecourt.uk/current-cases/index.html

Judicial posts

The role of the Judiciary

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The Bangalore Principles of Judicial Conduct are based on the values of judicial independence, impartiality, integrity, propriety and competence and diligence. In England and Wales, the judicial code of the Supreme Court Guide contains the principles. It states that judicial independence is ‘a prerequisite to the rule of law and a fundamental guarantee of a fair trial’. o United Kingdom Supreme Court Guide to Judicial Conduct (2009) para. 1(2) i. o Judicial Independence – Judges should reach their verdict without being influenced by media/bribes/government – they should not favour one party over another  Their decision should be based on the facts of the case and the law o Impartiality – Acting without any kind of bias – not being partial to one side or other o Integrity – Having the strength of a character to do the right thing even when nobody is looking (they can get away with it) o Propriety – Proper behaviour – seen to act in a judicial way o Competence – The ability to do a specific task o Diligence – Working to the best ability – careful + persistent

General Pinochet ! 

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R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [2000] 1 AC 119 The fundamental principle is that a man may not be a judge in his own cause…” Lord Browne-Wilkinson

Judicial Independence 

Cases with political implications – see recent fracking case – Judge Robert Altham given overly severe sentence to 3 protestors. Later found Robert’s family ties to oil and gas industry. Bias?

Sentencing

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Judges are too lenient when delivering a sentence 0 they are expected to be harsh

Naughty judges 

Act of Settlement 1700 – judges of HC and above removed by Queen on petition of both Houses of Parliament.

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Courts Act 1971 – circuit judges and district judges can be dismissed by Lord Chancellor, if Lord Chief Justice agrees for ‘inability’ or ‘misbehaviour’.

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All published online (named & shamed?) by Judicial Conduct Investigations Office https://judicialconduct.judiciary.gov.uk/disciplinary-statements/2019/

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In 2018… o Francis Evans QC removed from office (drinking on the job and not paying child support) o Magistrate June Wilson failed to report her own arrest and the separate conviction of a family member o Increasing action being taken about those slow to write judgments (John Hand QC)

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In 2019 a judge made the newspapers after falling asleep twice in an employment hearing.

Public Inquiries    

Grenfell Tower choice of judge – Martin Moore-Bick Lammy said of Moore-Bick: “a white, upper-class man who I suspect has never, ever visited a tower block housing estate and certainly hasn’t slept the night on the 20th floor of one” Public engagement

Debate 

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He is a white, upper-middle class man who I suspect has never, ever, visited a tower block housing estate and certainly hasn’t slept the night of the 20th floor of one…The job is not just to be independent and judicious… It is also to be empathetic and walk with these people on this journey.” o (David Lammy MP, referring to the appointment of Sir Martin Moore-Bick to lead the inquiry into the Grenfell Tower fire in 2017) Background is irrelevant - our current judiciary (and the selection process to appoint them) is fit for purpose.

Composition of the judiciary The role of the Lord Chancellor in appointing judges 

Judges appointed by the Queen (who was advised by the PM, who was advised by the Lord Chancellor). o “…the fundamental problem with the current system is that a government minister, the Lord Chancellor, has sole responsibility for the appointments

process and for making or recommending those appointments. However well this has worked in practice, this system no longer commands public confidence and is increasingly hard to reconcile with the demands of the HRA.” Reform  

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Consultation Paper: Constitutional Reform: a new way of appointing judges (2003) Three options: o An Appointing Commission o A Recommending Commission o A Hybrid Commission Constitutional Reform Act 2005

Judicial Appointments Commission 

http://www.judicialappointments.gov.uk

Background: increasing diversity 

Constitutional Reform Act 2005 s.64 o The Judicial Appointments Commission ‘must have regard to the need to encourage diversity in the range of persons available for selection for appointments.’

Positive discrimination •

Appointments and Diversity: A Judiciary for the 21st Century (2011) consultation paper.

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Crime and Courts Act 2013

Lady Hale, President of the Supreme Court  

Joined the HoL in 2004 Joined on the bench by Lady Black of Derwent in 2017 and Lady Justice Arden in Oct 2018

Radmacher v Granatino (2010)  

“In short, there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman.” (Lady Hale)

Lord Mance

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Regarding gender specifically I think, and I am probably generalising dangerously, that women do have different life experiences from men. Certainly, Lady Hale has a different viewpoint on many aspects which contributes hugely, sometimes challenges us and carries us into different directions and thoughts. There will be a lot of turnover in the Supreme Court in the next five to ten years – Lord Toulson must retire next year and a large number of us must go in 2018 – so this may prompt further change’. o UKSC Blog 05/10/2015

Recent figures •

New figures? o Just 3% of Lord Justices of Appeal from non-barrister background, but 33% of all judges in court are from a non-barrister (e.g. mostly solicitor) background. o 74% of senior judges attended public school and Oxbridge. JAC reports for 2018-19 72% applicants from state schools (69% appointed!)

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Better on gender (3 women in the UKSC!

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Only 23% in High Court/CoA) …but not on ethnicity (7% overall)

Are judges out of touch? •

Who is Gazza? [Mr Justice Harman]

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What is Linford Christie’s lunchbox? [Mr Justice Popplewell]

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What is a teletubby? [Judge Francis Appleby]

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What’s a onesie? [Judge Ian Lawrie QC]

Sheltered lives? •

In a speech, Lady Hale said: “If the lifeblood of the law is experience and common sense, then whose experience and common sense are we talking about?

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“Surely it cannot only be the experience and common sense of the judges, many of whom have led such sheltered lives? As I was once rude enough to say publicly, 'one man’s common sense is another woman’s hopeless idiocy’.”

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In 2012, the Judicial College announced that judges would be given lessons in popular culture, as well as other social issues such as unemployment, so they were “fully aware of what is happening on the streets of Britain”.

Judge “connecting” to real people •

Letter to ‘Sam’ A (Letter to a Young Person), Re (Rev 1) [2017] EWFC 48 (26 July 2017) o Minor o Judge published judgement in a letter to the minor o Using lay language and suggesting he use Google

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Also, A Council v Jack’s Mother, Jack’s Dad and Jack [2018] EWFC B12

Judges speaking out… •

Neuberger (Brexit)

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Munby (suicidal girl and state of mental health provision in the UK).

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Bodey J (‘shaming’ impact of legal aid cuts)

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Tribunal fees judgment

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Hale (politicians’ part of panel for judicial appointments)

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Crisis in family courts & withdrawal of government funding for problem-solving Family Drug and Alcohol courts

Judicial salaries

Unhappy judges •

Judicial Attitude Survey o Concerns about morale o Having to handle ‘ever-increasing quantity of challenging and emotionally charged cases’ o Feeling undervalued

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Poor pensions mean existing judges leaving early o Note 200+ judges took pensions action against MoJ (unlawful discrimination) Jan 2017

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Lawyers deterred by low salary (they can earn 4 x as much as HC judge)

The attractiveness of senior judicial appointments to highly qualified practitioners (2009)

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Female solicitors who had reached partnership in magic circle firms, and who felt that their professional journey had been something of a struggle, were reluctant to begin again, and perhaps have to struggle to re-establish their credibility, in a world that they perceived to be even more antediluvian than City commercial law practice' o Dame Hazel Genn

Part-time experience

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First, the time commitment might be more than their co-partners felt could be spared from the practice. Second, they would have to forego a significant amount of salary to compensate for the time out of practice. Third, they would have to work very hard to make up the time spent while sitting. Finally, they were concerned that taking a part-time judicial appointment might be interpreted by their partners as reflecting a lack of commitment to the practice.”

The Separation of Powers Constitutional Reform Act 2005 s.3

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The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.” “The Lord Chancellor and other Ministers for the Crown must not seek to influence a particular judicial decision through any special access to the judiciary.”

Vetting by Parliament? 

The Governance of Britain: Judicial Appointments (2007) o “To adopt such an approach in this country could lead to the strong perception that judicial appointments were being politicised, and such a perception could have an impact on confidence in the independence of the judiciary. …. [T]here would …. be the risk that the decision to confirm or reject could be based on factors other than the candidate's ability to do the job effectively.”

Boris’s revenge…? •

Overstepping their role (prorogation)

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Constitution, Democracy & Rights Commission

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Risk of judges’ constitutional role being weakened.

Lady Hale’s final speech

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We (Supreme Court justices) do not know one another’s political opinions - although occasionally we may have a good guess - and long may that remain so. Judges have not been appointed for party political reasons in this country since at least the Second World War. We do not want to turn into the Supreme Court of the United States - whether in powers or in process of appointment."

Debate

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A series of high-profile clashes between the judiciary and government (including the most recent, Miller No. 2) make it clear that ‘a constitutional reset’ is necessary. The partiality of judges is being questioned…

Workshop 4 Paying for legal services Access to justice Barriers to accessing legal services (and justice)  

Are those citizens who want to access legal remedies able to do so? OR Are they prevented from doing so by a combination of lack of awareness od their rights and an inability to pay for legal assistance?

Unmet need for legal services    

Fail to recognise have a legal problem; Do not know of legal services that could help Choose not to make use of legal services Pascoe Pleasance (Legal Services Commission) research (over 3.5 yr period) o More than 1 in 3 adults experienced a civil law o 1 in 5 took no action to solve their problem o 1 million problems went unsolved due to people not understanding basic rights/how to seek help

Snowball effect 

Many civil justice problems can trigger others: o An accident can lead to personal injury o Can lead to loss of job o Potential loss of home

Been to see a solicitor?      

Cost not ONLY factor Abel-Smith research (1973) compared people’s own perception of their need for legal help and the action they took to get it. Zander (1988) – Class comparisons Pleasance & Balmer (2013) – Action by small businesses Mayhew & Reiss (1969) – ‘Social organisation theory’ National Association of CAB – A Balancing Act; Surviving the Risk Society

Who pays the lawyer?     

Client themselves Free of lox cost from govt grant Free by the legal profession (pro bono) By membership of organisations (e.g. trade unions) Insurance companies

We cannot afford lawyers!   

Most ordinary people feel lawyers & legal advice is beyond their budgets. 70% said they would not be able to afford a lawyer to advise Large majority felt lawyers Respwere intimidating

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Responsive justice: How citizens experience the justice system (Citizens Advice, 2015)

Minister of Justice (2009) 

“I think access is at risk of being confused with physical proximity. People have grown used to a far wider range of telephone and internet-based services — and demand more rapid and convenient access to services, but not necessarily an office on the street corner.”

Legal aid State funded legal services through the ages …     

Legal Aid Scheme (1949) – initially just civil Concern over cost (1982) + Subsequent reduction in eligibility (1990s) Legal Aid Act 1988 – creation of legal Air Board – more cuts Access to Justice Act 1999 – creation of Legal Services Commission – more cuts Legal Aid, Sentencing and punishment of Offender Act 2012 (LASPO) – scope of scheme severely restricted – Legal Aid Agency created

Civil Legal Aid 

Retained for: o Environmental Law o Asylum o Mental health o Child welfare cases o Only available where a person’s life or liberty is at stake or where they are at risk of serious harm/immediate loss of their home

Civil legal aid 

Abolished for: o Medical negligence o Welfare benefits o Employment – fees were deemed unlawful in R (Unison) v Lord Chancellor [2017] UKSC 51 o Consumer o Education o Immigration (unless detained) o Housing (unless homeless/serious disrepair) o Family law (normally mediation)

Service Levels 

All service providers must obtain a quality mark relevant to the type and level of service they are offering: o Legal help o Help in court o Family help o Family mediation o Help with family mediation

o Legal representation o Other legal service Greater emphasis on remote advice  

Phone/website Civil legal Aid – telephone helpline: 0845 345 4345

Criticism from the profession   

In the Matter of D (A Child) [2014] EWFC 39 Sir James Munby “the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility…” Judge halts serious fraud trial after defendants claimed they could not get adequate representation because cuts to legal aid, and as a result they would not get a fair trial under common law or Art 6. [R v Crawley Leonard HHJ] Overturned by CofA.

R (Unison) v Lord Chancellor [2017] UKSC 51     

Until the coming into force of secondary legislation in 2013, a C could pursue proceedings in an ET without paying any fees. The stated aims of the Fees Order were to deter unmeritorious claims, and to encourage earlier settlement. Type A claim (£390 fee). Type B claim (£1200 fee) and appeals (£1600). UNISON brought judicial review proceedings on appeal on the basis that the fees interfered with the right of access to justice, among other reasons. Supreme Court unanimously allowed the appeal, led by Lord Reed

What about criminal legal aid?    

Cuts not as dramatic as for civil No fixed budget – all cases which fit the merit criteria & means test are funded by the Legal Aid Agency Legal services provided by lawyers in private practic...