1a) Explain how lay magistrates and district judges (magistrate's court) are selected and appointed.
Lay Magistrates can also be referred to as 'justices of the peace'. The Lord Chancellor appoints JP's. This is formally done under a document called 'commission of the peace'. This is carried out in two ways. Either in respect of counties, where it is under the recommendation of the lord lieutenant of the county and assisted by the advisory committee, or in respect of urban areas. In this case, it is on recommendation of the advisory committee only.
These committees were kept secret, until 1992, but have since been re-published so that all names are noted.
The Lord Chancellor has to take into account that the panel has a wide-cross section. This means that there should be a variety of different people from different racial and social backgrounds. This is to make sure that the panel of JP's is representative of all possible defendants, and all aspects of society.
In order to become a JP, it is important to be reliable and committed. The lay people must either live or work, within a 15-mile radius of the area being scrutinized on behalf of the defendant. JP's must also be able to sit in court for a minimum of 26 sessions-one session making up one half day. The lay people are not paid, therefore they are reimbursed for loss of earrings, travel expenses and lunch etc. it is vital for lay people to be aged between 21 and 65, although there are not may 21 year old JP'S and the youngest age usually ranges from 26-27. This is due to lack of life experience. Above all it is important for the potential JP'S to not have a criminal record this refers to bankruptcy, theft, tax etc.
District judges are higher up than lay people. They are professional, and for this reason, are paid.
Before becoming a district judge, qualification of seven years is required. Usually you would have either of been a barrister or solicitor for seven years prior. You would start off by doing two years training as a district judge; this would be in order to gain experience, to prepare you. The usual age of retirement for a district judge is 70, and the Lord Chancellor has the power to dismiss district judges for bad behaviour. As district judges are legally trained, they can work through case quicker, and have better technical and legal knowledge.
1b) Identify and discuss the advantages and disadvantages of the use of lay magistrates.
There are many advantages of having lay magistrates. As they are not paid, the government save money. The magistrate's court is therefore cheap to run. It would be very expensive for the courts otherwise, to hire legally trained judges. The magistrates are normal people. They have understanding of the kind of live the defendants have. This variety of people shows that there is more of a representation. The judiciary is made up of a wider cross-section. 45% are women. Although there are not many ethnic minorities there are still a vast amount, and the numbers are increasing. The magistrates also obtain local knowledge. As they live within 15 miles of the area, they know what the conditions re like, and they are aware of certain problem so they can sympathize with the people. They are therefore much more aware than professional district judges and judges etc. a magistrate's clerk is on hand to give recommendations to the lay people, and to explain legal terms. Before the lay people can sit, they gain some knowledge going through a small period of training.
There are also some disadvantages to. Sometimes, as the lay people are described as being 'middle class, middle aged and middle minded' they do not always cover a very wide cross-section of the real, for example if there was young defendant on trail, the older lay people wouldn't be able to fully understand him, and his thought and feeling. This would be bad, as the younger people would be treated unfairly. There will be little common with the younger defendants and the older lay magistrates. This cross-section may also not cover the poorer regions of areas; the lay people may be made up of mostly 'middle class', so they will not have real understanding of the problems. The lay people not being trained are prone to make mistakes. Some lay people may receive better training than lay people in other areas. Although a legal clerk is on hand, he cannot help the lay people very much. He only has the power to advise on howling sentences can be. This can lead to inconsistencies of sentencing. Lay people cannot rely heavily on the legal clerks because they cannot tell them what to do, or give their opinions.
Sometimes, the lay people can be criticized for favouring the prosecution. This is because of the fact that they are aware of the social problem, and they may over sympathize.
Sometimes the lay people sit in on the same cases lead by the same crown prosecutor, and this has tended to sway their decisons, which is bad.
2a) Tribunals are an alternative venue to a court for hearing certain types of civil cases. Outline the types of cases tribunals deal with and briefly describe how this form of (ADR) works.
There are two different types of tribunal. There's the administrative tribunal, and the domestic tribunal. Tribunals are used, when the parties involved decide not to go through the courts, and instead solve the case privately.
Administrative tribunals are used in cases where welfare and rights are being tested. This includes immigration problem, discrimination regarding race or sex etc, and work problems. There are many more cases. In 1993 the Childs support act was launched. Social security tribunals are used widely and more commonly. They aim to deal with against the refusal of people to benefit rights. Rent tribunals try to ix up fairer rent prices for people struggling etc. the mental health tribunals whether or not mental patients should continue with their treatments or not, with they advice from doctors. Domestic tribunals aim to deal with matrimonial cases. Divorce cases are very common cases, and many go through to be dealt with. Domestic tribunals can be referred to as 'in-house tribunals'. There is also the education of appeal tribunal. This is where parents can appeal to get the child into a certain school, or take into action any problems within the school of their child, which concerns them.
The main reason to why tribunal were set up, was because there was quite a big load up of cases going to court, which were all very similar and which could be dealt with more quickly.
A panel of three people usually sits in on a tribunal. This consists of two laymen and one legally qualified chairman. The procedure for each individual trial is varied, but follows along the same lines.
Both sides of the parties must be given a chance to express their views. Legal representatives e.g., lawyers are usually not encouraged so there is no legal help.
2b) Briefly describe the other main forms of ADR and discuss the advantages and disadvantages of ADR as a form of dispute resolution.
ADR stands for alternative dispute resolution. This term describes the different ways of handling certain cases, as opposed to going through a court hearing. The different types are negotiation, mediation, conciliations, arbitration and tribunals.
Negotiation is a more direct way of dealing with the problem. It is private, quick and cheap for the parties and people involved. Lawyers or solicitors are usually introduced and they try to settle a negotiation, sometimes however these cases can drag out for years, and the addition of lawyers and solicitors can be costly. The next from, mediation is where a go between, neutral person is introduced. He/she helps to solve the problem. The mediator consults with both parties to try and see how much common ground there is between the parties. This will mean that the case will either be quick and easy or long and difficult. The mediator keeps strict confidentiality. The mediator's views are not displayed. Mediation is usually only used as an option, if there is some reasonable hope of co-operation, and is used mainly when contacts for businesses are done.
Conciliation is similar to meditation, there is a third party, a neatly person. The major difference however is that the conciliator has a more hands on and active role to play. He/she is expected to suggest the terms for compromise. This from of dispute resolution, like mediation is not always successful and further court appeal may be necessary. Arbitration is when the parties involved submit their papers or documents privately. Usually they choose the time relevant to them. It is a voluntary act by the parties. The arbitration act of 1996 claimed that the parties should be free to choose how they wanted their cases to be dealt with. This form of alternative dispute resolution is more common within commercial businesses.
An advantage of ADR is that is it said to be quicker and easier than going through court hearings. It also saves the parties involved a lot of money as solicitors and barristers are not used. ADR is usually all very private with a limited number of people present. This prevents problems of press getting involved. Another advantage is that ADR tends to be much more informal. This is good, because it means that cases can be handled quickly, and then forgotten about. This would favour bigger companies as they would not have to worry about bad newspaper reports and they could then continue to have a good reputation.
Disadvantages are that many of the cases have to be moved onto the courts anyway, so it would have all been a waste of time before. Money would have been wasted on solicitors and barristers. In many cases rights of appeal can be limited. This is true of arbitration. In many cases of ADR, funding can be limited. This means that legal help would have to be hired, when it could be avoided at the cost of the parties. Sometimes, good enough reasons are not given for decisions, this cannot be questioned in some cases and people have to deal with whatever the decisions are.
3a) outline how someone currently studying for a-levels can train and qualify either as a barrister or a solicitor.
When studying to become a barrister, someone sitting his or her a-levels can either take a law degree or any other degree in a university. If a law degree is taken, after the period of 3-4 years, they must then have a membership with the inns court. The different types are Lincoln's inn, inner temple, middle temple and grays inn. There, they must either sit or dine. These inns are situates within the royal courts if justice. Then after a one year vocational training they are called to the bar. The one-year vocational training course is where they gain practical skills of drafting pleadings in court, negotiation and advocacy. When they are called to the bar, they have been officially been made a barrister. However there is still more work to be done, in the form of pupillage training. Pupillage training is when the person acts as a pupil to and already qualified barrister. After the beginning 6 months, it is eligible for the barrister to appear in court. The barristers are usually paid a very small salary.
If a non-law degree option is taken up, then after the degree taken e.g. history is over, a further one-year law course professional examination must be withheld. Everything is as described before. The last option an a-level student could take is to do a non-graduate mature student course. This is much longer. A two-year law course professional examination is taken, and after attending an inn, it is then required to do a one-year examinational course, followed by call to the bar. The person is then a non-practising barrister.
3b) outline the work of both barristers and solicitors and discuss how they can be held responsible for poor work.
Barristers are usually self-employed. Barristers in the bar usually work in chambers consisting of 15-20 other barristers. Advocacy is the main part or work for barristers. Barristers tend to specialize in certain areas such as company law, tax or divorce etc. a certain amount of paperwork is often required, and extra support staff is often hired to deal with these issues. Barristers also do many drafts and give advise to their clients.
Solicitors also work independently. Usually in private practices, there are many of these. There are two main types of practices, 'small' high street ones, and big city firms. High street practices tend to deal with family problems, housing problems and consumer problems. In these cases, interviewing clients and negotiating is often a requirement of the solicitors. Paper work such as, drafting contracts leasing, and writing letters is also required. Wills, selling houses and flats and conveyancing are also part of the workload of a solicitor.
Solicitors are also sometimes asked on behalf of their clients, to stand up in court.
Sometimes complaints are made against solicitors and barristers. At times clients may not pay their fees, and then the solicitor or barrister may be able to sue. However this also means that clients can sue for breech of contact. Clients also sue if they feel that negligence has taken place. An example of this could be where the solicitor makes the wrong decisions regarding a divorce case, where the client ends up losing children, or money etc. sometimes barristers can give the wrong advice. 'Hall v Simons' (hall-a firm) it was pointed out that doctors could be sued if barristers could be. The allowance of advocates to be used meant that cases could be re-argued.
If barristers would ever fail to follow the code of conduct, senates could disbar a barrister from continuing his role.