The Legal Profession• Distinction between Solicitors and Barristers• The separation is quite unique; Barristers were

aided by an officer who ‘solicited’ work. In 1845 they became a separate profession, regulated by the Law Society

• Distinction between work (advocacy for the barrister and outside court work for solicitors)has been jealously guarded and only recently, in the Courts and Legal Services Act 1990 has the distinction become less obvious

• Training of the two professions quite different

Solicitors• Around 75-80,000• Acts more like a businessman, running an office

and dealing with correspondence• deals with the initial stages of litigation (court

action)• Non court work includes conveyancing, dealing

with wills, advising on matrimonial issues and matters involving employment

• Solicitors can act as advocates in the Magistrates Court and County Court, and since 1990 in the Crown Court and High Court

• Solicitors normally practise in a firm of partners, usually quite small

Routes into the Legal Profession - Solicitors

Qualifications and Training for Solicitors· Law degreeLaw degree or any degree and a Diploma in Law (previously, CPE) then· Legal Practice CourseLegal Practice Course (one year and approximately £6-7,000) then· Training ContractTraining Contract (two years paid at the Law Society minimum: £10,850 outside London; £12,150 in inner London)· Professional Skills CourseProfessional Skills Course (twenty days and includes an advocacy module)· Name added to roll of solicitors· 16 hours of Continuing Professional 16 hours of Continuing Professional DevelopmentDevelopment per year for three years and 48 hours for each subsequent three year period

Criticisms of training•Many people with a good good degree cannot get on to the legal practice Course- demand is very high

•Students have to pay fees and support themselves during the year-no grants, thus poor families will be unlikely to support such a financial burden

•Students are not qualified until they complete their training contract, so further financial burdens arise; not all students can find a training place

Backgrounds of Solicitors• Middle class. The College of Law

reported that 60.9% of its students had professional or managerial class parents, only 8% were from manual backgrounds

• In 1994 28% of solicitors were women, but this is changing

• In 1989 only 19% of students were non-white

• Male solicitors tended to earn more than female

Regulation of Solicitors• Can be sued, but often difficult

• The Solicitors Complaints Bureau was set up to investigate complaints but was replaced in 1996 by the Office of the Supervision of Solicitors, replacing the system that appeared to favour solicitors over clients

• In the OSS is described as more user-friendly and gives non lawyers a role in order to increase its independence

• Complaints handled by a 7 strong team of solicitors. Minor complaints are sent back to the firm to deal with; more serious complaints are directed to a network of local conciliators

• OSS has also been criticised for not acting sufficiently independently and in the interests of clients

BARRISTERS

Barristers• Around 8,500 in independent practice, under the

control of the General Council of the Bar (the Bar Council)

• Must be one of 4 Inns of Court- Inner Temple, Middle temple, Lincolns Inn and Grays Inn

• Main work is in oral presentation of a clients case in the ‘higher courts’ (High Court and Appeal Courts)

• Clients cannot approach a Barrister directly- must be done via a solicitor. Therefore the client pays 2 fees. This is heavily criticised

• Barristers must act alone and cannot enter into a partnership, though they often share ‘chambers’

Taking Silk• A barrister who has

practised for at least 10 yrs has the chance to become a QC if asked by the Lord Chancellor

• A QC concentrates almost solely on advocacy and takes the front bench in court

• With the exception of circuit Judges, virtually all judges are appointed from barristers

•Some very traditional rituals such as dining at the Inns at least 18 times, but abolished in 1988

•Must pass the Vocational course set by the Council on Legal Education•3 types of training:

1)Academic training,with high class degree passes plus the Common Professional Exam

2)Vocational training to include a 1 yr vocational training course

3)Professional training known as ‘pupillage’

Qualifications and Training for Barristers· 2(2) Law degree2(2) Law degree or another degree plus Diploma in Law/CPE Diploma in Law/CPE then· Join one of the four Inns of Courtfour Inns of Court (in London) then· Bar Vocational CourseBar Vocational Course (one year and approximately £6-7,000)· Dining at the Inns of Court now voluntary· Called to the Bar· One year pupillageOne year pupillage (or two six month pupillages)

· Find a tenancy in chambers or 'squat'· Can apply to LCD to become Queen's Counsel after ten years' experience (currently 600 also known as QC or silk)

· Forty-two hoursForty-two hours of advocacy training in first three years of training

Regulation of Barristers• Barristers in the past could not be sued for

negligence in the Courtroom (Rondel v Worsley 1969), but now can (Hall v Simons 2000)can be disciplined for failing to uphold professional conduct

• Legal Services Ombudsman may investigate complaints in the same way as that for solicitors

• in 1997 the bar appointed its own Complaints Commissioner who can require barristers to waive, reduce or refund fees and order compensation of up to £2,000

Criticism of Barristers

• Its exclusiveness has been widely criticised:– difficulty of finding pupillage– expensive to qualify because bar fees are so

high and it is not possible to earn during first 6 months of pupillage

– most members of the bar are middle class and there is evidence of race and sex discrimination

– exclusive lifestyle cushions barristers from the ‘real world’

Fusion of the Professions?• The advantages

• a) The specialism of a separate Bar.

• b) As barristers do not deal directly with the client it is argued that they can be more objective as they have no interest in the case

• c) Those systems (e.g. USA) that are unified are in practice divided, but on less desirable lines than English law.

• d) Costs would be reduced as a client would only have to employ one lawyer.

• e) There would be less bureaucracy if the same person handled the case from beginning to end.

• f) There would also be more continuity as the client would deal with the same lawyer throughout the case. Research in cases in the Crown Court have shown that most defendants do not meet their barrister until the day the trial starts.

• g) Students would not have to decide on which profession to enter at such an early stage.

a) If a case appears in the High Court then the client has to pay two fees, one for the solicitor for the initial work, and one to the barrister for appearing in the court.b) Employing two people is inefficient because with two offices dealing with the paperwork, then breakdowns in communication can occur.c) Solicitors find it difficult to become judges in the higher courts.d) There are two different systems of legal education and training. Should it not be possible to be qualified in both branches at the same time? e). The specialist skills of advocacy might be lost if more lawyers did court work. At present top barristers appear in court almost every day and this regular work improves their skills. f). Barristers are more detached from the case and so will be more objective.g) It is also argued that the same number of witnesses will have to be interviewed, the same number of documents will have to be prepared and the case will also require the same length of time in court.

Disadvantages of Fusion

Reform of the Legal Profession•1979 Royal Commission on Legal Services- public best served by keeping the distinction, but make the education process the same•Marre Report 1988 recommended that solicitors have rights of audience in Crown Court•1988 Lord Chancellor published 3 Green Papers on the legal profession :

–Solicitors should appear in courts as advocates–clients should be able to approach a barrister directly–lawyers should be able to take cases on ‘no win no fee’ basis–solicitors should lose their monopoly on conveyancing

The Courts and Legal Services Act 1990

• Sc 17 states: the objective

“ …the development of legal services by making provision for new or better waysnew or better ways of providing such services and a wider choicewider choice of personspersons providing them…”

Effects of the Courts and Legal Services Act 1990

•Law Society given advocate rights in 1993, allowing solicitors to practice if they have an advocacy certificateadvocacy certificate

•Few solicitors have taken up this right because of cost and low pass rate (there is some evidence of barristers treating solicitor advocates rudely)

•now possible for a solicitor to become a High Court judge (10 yrs practice as a higher advocate)

Other effects of the CLSA 1990

•permitting professional clients direct access to barristers

•Licenced Conveyancers and Will Writers can now undertake this work and compete with solicitors

Magistrates

Training and Removal of Lay Magistrates•Since 1966 all magistrates must attend basic training

– 8 hours of induction training– within 6-8m months they should undergo basic

training to include sentencing provisions– if appointed since 1980 they must attend 12 hr

refresher course every 3 yrs– voluntary courses

• Justices of the Peace Act 1979 allows the Lord Chancellor to remove a magistrate who has failed to fulfil the minimum number of sittings or because they have moved out of the area, or if they are guilty of ‘misbehaviour’

• Magistrates must retire at 70

The advantages and disadvantages of Lay Magistrates

•A wider cross section than that of judges

•Lay magistrates have local knowledge

•It is a cheaper and quicker system than the Crown Courts…But

•They tend to be middle class and middle aged

•Inadequate compensation for loss of earnings

•Inconsistency in sentencing practice

•Lay magistrates tend to be prosecution minded

(conviction rate 80%)

District Judges (were called Stipendiary Magistrates)

•Full time, paid judges doing magistrates court work

•Hold a 7 yr qualification

•Sit in busy city courts. In 2001 there were 105 DJ’s in England and Wales, paid £80,000 pa

Stipendiaries (as they were called) were created at the end of the 18th century due to corruption among lay magistrates and appointed in areas where the workload is high

•District Judges sit alone

•Permanent appointment up to retiring age of 70

Should Lay Magistrates be replaced by District Judges?

•LM cheap; would require 000’s of lawyers to supply the necessary numbers•Lay involvement a healthy sign of citizenship•A decision by 2-3 magistrates is fairer than 1 District judge…BUT•DJ can work through a case quicker•DJ better equipped to deal with complexity of offences and sentencing available•Professional magistracy would bring us into line with other countries•Q: should the current system be professionalised?

How effective are magistrates in their work?

• Over 95% of criminal cases are dealt with by magistrates…that’s about 1.2 million cases per year

• About 75% of defendants plead guilty so there is no trial anyway, just sentencing

• There is more consistency in the types of punishment given out in courts across the country, largely due to better training and directions issued by the Sentencing Advisory Panel

• Magistrates have targets to meet and one important one is what percentage of cases are heard for sentencing within the ’59 day rule’

• By how many appeals to the crown court take place and succeed. About 1% of decisions are appealed against and around 44% of these are successful. This is an extremely small amount in a given year.

BailBail• Where the accused is allowed to go free

rather than being held in custody.• 2 stages:

– during police investigation but before being charged (Police and Criminal Evidence Act 1984 Sc 38(1)) (A police power)

– after being charged but before trial, providing the accused agrees to attend court at a later date (A magistrates power)

The Bail Act 1976•This Act lays down reasons for granting bail - can be refused if it is likely that:•Accused has failed or likely to fail to attend court•May commit further offences while on bail•May interfere with witnesses while on bail

•The right to bail is decided by:the nature of the offencepast record of the accusedwhether the accused lives in the areawhether the accused has previously jumped bail

The Right to Bail•Subject to Sc 25 and 26 of Criminal Justice and Public Order Act 1994 and The Criminal Justice Act 2003 which states:•Sc 25 - limitations to bail due to offences charged with•Sc 26 - limitations to bail in respect of offences committed previously while on bail•Common for magistrates to impose conditions and/or impose a surety on the accused•The Bail (Amendment) Act 1993 allows the prosecution to challenge bail where the offence is punishable by 5 yrs imprisonment and/or to offences involving theft of conveyances

The Right to Bail•The Criminal Justice Act 2003 has taken up some key concerns about drug related crime and bail and states;

•Where a person is charged with an offence and

•The person tests positive for a class A drug and

•Refuses a drug treatment order…that person will be denied bail

Bail and the Human Rights Act 1998

•As you can appreciate, remand in custody is a denial of liberty

•Such a denial of liberty must conform to the requirements of the HRA 1998

•As a result, even for the most serious of offences the magistrates must consider whether it is in the public interestpublic interest and the person chargedperson charged to either deny or allow bail

Criticisms of Bail system

•Not enough people granted bail-as many as 15% of accused kept in custody•Time in custody is too long –average time =56 days (males) and 51 days (females)•Conditions in remand poor•Magistrates decisions inconsistent•Magistrates too heavily influenced by the police•Concern over ‘bail bandits’-those who repeatedly re-offend while on bail post 1993 legislation tries to deal with this

Research on Bail in 1998 shows:

• 24% of those granted bail go on to commit more offences (vehicle crime 44%; shoplifting 40%)

• The longer the bail period, the more likely suspects are to offend – 29% of those who had to wait 6 months or more committed offences whereas only 14% committed offences if dealt with within 2 months

• Juveniles (under17) are more than twice as likely to re-offend as adults

• 30% of juveniles breached police-imposed bail conditions, compared to 7% of adults

• 7% of those bailed by the police failed to turn up for their first court appearance

• Research suggests that curfews in burglary cases may be effective

• The police are generally pessimistic about the effectiveness of bail and would prefer juveniles to be detained in secure accommodation

THE JURY

The Jury System• A group of men and women chosen to hear

case and decide the outcome-goes back to before the Norman Conquest

• Juries used mostly in criminal cases, but some are still used in civil trials

• In criminal cases a jury of 12 is called• The selection of a JURY PANEL is laid

down by the Juries Act 1974 as amended in the Criminal Justice Act 1988

• The Criminal Justice Bill 2002 will also affect jury composition

Eligibility of Jurors•Between 18-70 yrs of age, on the electoral register•UK resident for at least 5 yrs•Those disqualified are:

those sentenced to 5yrs or more custody; anyone having served a prison sentence, borstal or custody, suspended sentence or community service in last 10 yrs or those placed on probation in last 5 yrs

•Research presented to the Auld Committee in 2001:

•38% of jurors were excused from trial

•15% of jurors failed to attend

•13% were ineligible or disqualified

As a result, compulsory excusals as of right for MP’s, doctors and over 65’s have been abolished

Legal professionals are now allowed to serve•These reforms designed to involve more “professionals” and make juries more representative of society

Jury Vetting•The prosecution may wish to determine:

-A juror’s criminal record (R v Mason 1980)

-Political beliefs (especially important where there are cases involving national security. A controversial area which has been subject to Attorney General guidelines.•Challenges by the Prosecution: The prosecution can ask a person to ‘stand by’ until all 12 are chosen•Challenges by the Defence: The defence can exclude any or all the jury for ‘cause’. The defence cannot examine a juror for attitudes to an offence or his/her racial attitudes

The Jury’s Verdict

•The jury must leave the court and deliberate in private

•These deliberations are secret and subject to the Contempt of Court Act 1981..WHY?

•protects jurors from outside influences

•enables jurors to reach unpopular verdicts

•without it there would be a reluctance to serve

•the decision would hold less respect if it were publicised

Ending the secrecy of jury decisions?

•It would make juries more accountable

•It could make it possible to enquire into the reason for the decision and the reliability of a conviction

•Young 1995- the jury was sent to a hotel overnight-there they used a Ouija Board to contact the deceased..a retrial was ordered

•The jury is not required to say why they have reached a verdict- unanimous or majority(12:0, 11:1, or 10:2)

The Pros and Cons of jury trial• Public confidence

and fairness• A check on the

power of judges (R v Ponting 1985

• Juries are sympathetic and there is a better chance of an acquittal

• Ordinary people participate in the law

• Most cases dispensed by the Magistrates court and around ¾ of defendants plead guilty

• jurors not always a good cross section (see Auld Committee Report)

• jurors not always competent in lengthy trails or trials involving technical detail

• jurors can be swayed by the manner of presentations

• jury nobbling has been evident, despite it being an offence

• some jurors may want to get it over with and rush to a hasty judgement

• stressful

The Criminal Courts• The criminal courts are arranged in a hierarchy:

The House of Lords The Court of Appeal (Criminal Division)

Crown Courts

Magistrates Courts

The Magistrates Court does most of the work-dispensing over 95% of criminal justice

Magistrates Courts• Tries 3 types of offences:

1. Offences Triable Summarily-minor offences

2. Indictable Offences-more serious offences

3. Offences Triable ‘either way’-depending on the choice of the magistrates, the defendant or prosecution

The court can be described as a court dealing with:• Petty Sessions (minor offences)• Preliminary Examination (Committal Proceedings)• Youth Court

Appeals will go to Crown Court or the Queens Bench Division of the High Court

Appeals - A request to a superior court to vary the decision of a

lower court

Three types of mistake

• Lower court is mistaken about the facts• Lower court is mistaken about the law• Lower court is mistaken about

sentencing

What is a mistake about the law?

• e.g. Magistrates rule in a case that the Defendant is not guilty of assault because she did not physically touch the victim

• Law says that assault can be committed by words alone

Two methods of Appeal from the Magistrates Court

1. Appeal to the Crown Court against

conviction or sentence

2. Appeal “By way of case stated”

Appeals from the Magistrates Court

• to the Crown CourtAgainst conviction or

sentence• This will be a complete re-hearing

of the case

• Will be a judge and magistrates (no jury)

• Defence only can apply

• Crown Court can confirm the Magistrates original decision, or decide the case is not proven and acquit the defendant

• Crown Court can also confirm the sentence, decrease it, or increase it

• to the Divisional Court of the Queens Bench Division of the High Court

• ‘Case stated’ - there is a need to resolve a matter of law (e.g. the interpretation of a statute), rather than an argument on the facts

Appeal by way of case stated

• Defence and Prosecution can appeal in this way• Panel of 2 or 3 High Court Judges• no evidence is heard, they read a written summary

of the Magistrates “findings of fact” they decide whether the law was applied correctly to those facts

• If it is a defence appeal – they can confirm the conviction, or quash the conviction, or perhaps send the case back to the Magistrates Court for rehearing

• If it is a prosecution appeal - they can confirm the acquittal, or send the case back to the magistrates Court for a rehearing

How many people use Crown Court appeal route?

• Less than 1% of all those found guilty in Magistrates appeal in this way

• Numbers are falling

• 1993 – 23,000

• 1997 – 16,000

• 2001 – 12,000

• Percentage of those successful – 44%

How many people use QBD appeal route

• 1993 – 182 people• 1997 – 144 people• 2001 – 112 people• Very rare for people to use this appeal route

Why are appeals so rare?

The Crown Court•Deals with all indictable offences – the defendant is ‘indicted’ for jury trial

•The defendant pleads guilty or not guilty

•If defendant pleads not guilty, a jury is sworn in (see notes on juries)

•Procedure for the defence and prosecution similar to that of Magistrates Court (prosecution witnesses-cross examination-defence witnesses-cross examination –summing up

•Judge sums up for the jury to retire and consider verdict

Appeals

Appeals following a ‘miscarriage of

justice’ in the Crown Court

•Major concerns over miscarriages of justice in the 1980’s

•Led to the setting up of a Royal Commission under Lord Runciman

•352 proposals, most implemented, in the Criminal Appeals Act 1995

•Major development is the setting up of the Criminal Cases Review Commission

The Criminal Cases Review Commission

• Composed of 11 members and about 60 support staff

• Considers any allegation of a miscarriage of justice from conviction or sentence in either the Crown Court or the Magistrates Court, either after a refusal of leave to appeal or the dismissal of an appeal.

• The Court of Appeal also has powers to refer questionable convictions to the CCRC for investigation

 • Will use the police - this has raised doubts as to the

independence of the new body, since some miscarriages of justice have been caused by police malpractice.

Criminal Trials

SUMMARY OFENCES TRIABLE INDICTABLE OFFENCES EITHER WAY OFFENCESMagistrates Magistrates or Crown Crown

The gravity of the offence determines which court is used