#14630 - People Working In The Legal System - GDL English Legal System

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The judges

• Rule of law: judges must be completely impartial, allowing no preference

• Human Rights Act 1998: increased powers of the judges to control work of parliament & the executive through judicial review

  • A and X and others v Secretary of State for the Home Department 2004: HL decision that Anti-Terrorism, Crime and Security Act 2001 was in breach of HRA 1998. The conflicting provisions were then repealed.

• Constitutional Reform Act 2005: put President of the Courts of England and Wales is head of judiciary (used to be Lord Chancellor). In practice this is the Lord Chief Justice, who is head of all courts up to CA (where s/he will almost definitely choose to sit)

  • Role:

    • Represent views of the judiciary to Parliament & executive

    • Manage the judiciary in terms of welfare, training, work schedules etc

Hierarchy:

• Justice of the Supreme Court

  • 12 Justices of the Supreme Court sit in SC and PC

• Lord Chief Justice

  • President of the Courts of England & Wales

  • President of CA Crim.

• Master of the Rolls

  • President of CA Civ.

• Lord Justice of Appeal

  • 38 Lord Justices of Appeal who sit in CA (referred to as Lord Justice____, written ____ LJ)

• High Court judge

  • 108 High Court/puisne judges sitting in HC & CC for most serious criminal offences (referred to as Mr Justice_____, written as _____ J)

• Circuit judges

  • Travel around sitting in county court and middle-ranking CC cases

  • Criminal Justice and Public Order Act 1994 gives circuit judges limited opportunity to sit in CA Crim.

• District judges

  • HC & county

• District judge (magistrates)

  • Used to be called stipendiary magistrates; work in magistrates’ court

• Recorders

  • Hear less serious CC cases & county court; part-time judges

• Assistant recorders

  • Drafted in when volume at highest for minor cases

Judicial appointment:

• Secret soundings: the old system which was likened to an ‘old boys’ network’ by the Law Society

• Courts and Legal Services Act 1990: allowed solicitors entry into the judiciary (though currently only 1 HC judge has roots as a solicitor)

• Constitutional Reform Act 2005: radically reformed how judges are appointed in line with Labour's Constitutional Reform: a new way of appointing judges 2003

  • Established Judicial Appointments Commission (JAC) to reinforce judicial independence; majority of members of JAC must not be judges:

    • High Court judges & below:

      • JAC recommends one individual for each vacancy

      • Lord Chief Justice officially appoints the judges below the High Court

      • Lord Chancellor appoints High Court and above

      • (have to have been recommended by JAC; Lord Chief Justice and Lord Chancellor can ask for a candidate to be reconsidered by JAC)

    • Lords Justice of Appeal formally made by the Queen on advice of the Prime Minister, after JAC has recommended to PM

  • Appointments outside of JAC control:

    • Supreme Court judges not recommended by JAC:

      • When there is a vacancy Minister appoints a temporary Commission of at least 5 members (including at least 1 incumbent judge of Supreme Court, 1 person without legal qualifications, and 1 member of each of the legal appointing authorities for England and Wales, Scotland and Northern Ireland)

      • Temporary Commission puts forward between 2 and 5 candidates to Minister

        • Usually a judge with experience in CA, though Jonathan Sumption is first example of a senior barrister appointment

      • Minister then consults senior judges, First Ministers of Scotland and Northern Ireland, and head of Welsh assembly

      • PM then given one name by Minister who recommends this to the Queen

• Tribunals, Courts and Enforcement Act 2007: removed requirement of experience of judging in a lower court in order to become a judge - widening the net (also in terms of the qualification needed – e.g. legal executives and government lawyers now allowed)

• Crime and Courts Act 2013: where two candidates are of equal merit, JAC must prefer minority background

Wigs:

• From 2008 civil cases don't require the judge to wear a wig

• Criminal case do - provides a level of anonymity

Pay:

• 174,000 at High Court level

• Financial attraction to a barrister: security of a pensionable position

Dismissal:

• For High Court and above this requires vote in both houses, then formally removed by the Queen; to protect judicial independence

• Courts Act 1971: circuit judges and district judges can be dismissed for 'inability' or 'misbehaviour' by Lord Chancellor if the Lord Chief Justice agrees

Discipline:

• More common than dismissal

• Constitutional Reform Act 2005: gives Lord Chancellor and Lord Chief Justice joint responsibility over advice, reprimands and warnings (before just Lord Chancellor)

• Judge can be suspended pending investigation

• Office for Judicial Complaints set up 2006

Retirement:

• Retirement usually at 70, though allowed to work part-time until 75

• Lord Chancellor has power to remove for infirmity

Independence of the judiciary:

• Constitutional doctrine of the separation of powers requires judges to be independent from the executive & legislative arms

• S.3 Constitutional Reform Act 2005:

  • “The Lord Chancellor and other Ministers for the Crown must not seek to influence a particular judicial decision”

  • Cut back Lord Chancellor's position in order to protect independence (Lord Chancellor is a politician)

• Threats to independence:

  • Parliamentary sovereignty

  • Treasury counsel

    • Barristers who are retained to represent the Government in litigation are very likely to be offered HC judgeships

  • Cases with political implications

    • Liversidge v Anderson 1942: Lord Atkin levied criticism at the HL judges who agreed that the Home Sec. would not need to give reasons to detain citizens without charge – ‘more executive minded than the executive’

    • McIlkenny v Chief Constable of the West Midlands 1980: Lord Denning dismissed allegations of police brutality against 6 men accused of Birmingham pub bombings because, if it were found to be true, it would bring the legal service into disrepute

  • Freedom of expression

    • The internet as a medium for the infringement of privacy that the judiciary cannot police

  • Influence of free-masonry

    • Loyalty within the fraternity

    • Bias against women

  • Right-wing bias

  • Lack of specialisation

  • Shortage of time for judges to read the cases before them

  • Media pressure

  • Bias against women

The legal professions

Solicitors:

• Law Society: acts as representative

• Solicitors Regulation Authority: complaints & discipline

• Courts and Legal Services Act 1990 and Access to Justice Act 1999: all barristers and solicitors acquire full rights of audience when admitted to the Roll (list of qualified lawyers); but can only exercise these rights after training

  • Solicitors traditionally allowed to appear only in magistrates' court and county court

  • Many tort and contract cases moved from HC to county court as a result of this act

• 120,000 practising solicitors

  • Limited rights of audience (without training): however they can appear in:

    • High Court in bankruptcy hearings and proceedings heard in chambers

    • Before a single judge in the CoA

    • Crown Court if they were counsel for the same case in the county court

    • Usual work in magistrates/county court

• 5500 solicitor-advocates

  • Full rights of audience (with training)

• Firms:

  • Partnerships: all partners are liable for the negligence of all other partners

  • Limited Liability Partnership allowed since 2001: liable only for personal negligence

Barristers:

• c.15,000 practising barristers

• Bar Council: acts as representative

• Bar Standards Board: takes complaints and administers discipline

• ProcureCo - new commercial vehicle for barristers

• 2004 ban on direct access to barristers abolished

• 'cab rank' rule: technically if barristers are free, the work is within their stated specialty, and the price offered is reasonable, they have to take a case

To become a barrister:

1. Law graduate or CPE/GDL

2. Inn membership

3. Bar Standards Board aptitude test & English language test

4. BPTC (1400 get to this stage each year)

5. 12 qualifying dinners

6. 2 six-month blocks of pupillage

7. 300 tenancies available each year

8. Bar Council has additional training required of barristers throughout career

To become a solicitor:

1. Law graduate or CPE/GDL

2. Legal Practice Course

3. 2 year apprenticeship

4. 16 hours of training throughout career, depending on practice area

Queen’s Council:

• After 10 years barristers & solicitors can apply to become a QC

• Bar Council and Law Society in charge of QC appointment

Reserved activities:

• Legal Services Act 2007 (LSA) created 'reserved legal activities; i.e. work that requires a qualified lawyer

  • e.g. probate activities and litigation

Complaints:

• Clementi Commission 2004: calling for reform of legal complaint procedures

• Legal Ombudsman established in LSA 2007: required to be objective and free

• Tort of professional negligence

  • Arthur JS Hall v Simons 2000: end of barristers' immunity from negligence liability

Legal Education and Training Review report 2013 (LETR):

• Recommended:

  • ‘Day one learning outcomes’: establish the learning outcomes for different qualification routes & make sure trainees demonstrate that they have achieved the outcomes before qualification

  • Strengthening of professional ethics training

  • More legal research skills, critical thinking and communication skills

  • Equality/diversity training for students

Legal Services Board (LSB):

• Created by Legal Services Act 2007

• Ended self-regulation; required professions to separate regulatory and representative...