The Crown Court and Magistrates Court - Essay Example

Running Head: THE HIGH COURT, THE CROWN COURT AND MAGISTRATES COURT The High Court, The Crown Court and Magistrates Court [The [The Name of the Institution] The High Court, The Crown Court and Magistrates Court Introduction 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(Daryl Williams, 2001, p.146). Magistrates Court Lay Magistrates can also be referred to as 'justices of the peace'. The Lord Chancellor appoints JP's. This is officially done beneath a document called 'commission of the peace'. This is carried out in two ways. moreover in respect of counties, where it is beneath the advice of the lord lieutenant of the county and help by the advisory committee, or in respect of urban areas. In this case, it is on suggestion of the advisory committee only(Anthony Blackshield, 2000, p.428). No doubt, these committees were kept clandestine, until 1992, but have since been re-published so that all names are renowned. The Lord Chancellor has to take into account that the panel has a wide-cross part. This means that there be supposed to be a diversity of dissimilar people from dissimilar ethnic and social backgrounds. This is to make sure that the panel of JP's is delegate of all possible defendants, and all feature of society(Michael White, p. 152). 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(Enid Campbell, 2001, p.95). Critical Analysis Of The Use Of Magistrates Courts There are lots of advantages of having lay magistrates. As they are not paid, the government save money. The magistrate's court is therefore contemptible to run. It would be extremely luxurious for the courts otherwise, to hire legally trained judges. The magistrates are usual people. They have understanding of the kind of live the defendants have. This variety of people shows that there is more of a representation (Cracknell DG). The judiciary is made up of a wider cross-section. 45% are women. though there are not numerous ethnic minorities there are still a vast amount, and the numbers are rising. The magistrates also get hold of local knowledge. As they live inside 15 miles of the area, they know what the circumstances re like, and they are aware of certain difficulty so they can empathize with the people(Anthony Blackshield, pp.427-28). 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 (Zander M). 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. 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(Lea King, p.458). Tribunals Are An Alternative Venue To A Court For Hearing Certain Types Of Civil Cases 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 (A.Bradney). 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. 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'(Peter Durack, 2000). 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(G. Lindell, p.449). 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. Briefly Describe The Other Main Forms Of ADR 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 (Glanville Williams). 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. 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(Michael Lavarch, p.6). 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 (K.Zweigert & H.Kotz). 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(Bush v Gore, 2000, p.98). Barristers And Solicitors 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. If barristers would ever fail to follow the code of conduct, senates could disbar a barrister from continuing his role(Megan Saunders, 2003, p.5). The High Court According to the standard research the High Court is created by section 71 of the Commonwealth Constitution. The Commonwealth government, through the Governor-General in Council, is authorized to employ judges to the Court by section 72. In practice, the Attorney-General is accountable for advocate a candidate to Cabinet for deliberation and for officially passing on Cabinet's advice to the Governor-General. Though, Cabinet is not a meager rubber stamp for the Attorney-General's advice: the decision as to who is to be appointed is made collectively and the Attorney-General's agreement with that decision is not formally required. The merely further legal constraint on the Attorney-General's role can be originate in section 6 of the High Court of Australia Act which need the Commonwealth Attorney-General to seek advice from with the Attorneys-General of the States before an engagement is made. Characteristically, at a smallest, the Commonwealth Attorney-General will demand a short list of possible candidates from State Attorneys-General and will frequently also talk about these lists(Geoffrey Sawer, 2002, p.65). There is no formal framework governing this consultation, which typically changes from one Commonwealth Attorney-General to another, nor a requirement that the Commonwealth Attorney-General heed what is discussed in the consultation. Nonetheless, 'it has generally been understood that a justice of the High Court would not be appointed whose name had not been informally and confidentially the subject of discussion with the attorneys-general of the states and territories'. Formal criteria for an appointment to the High Court are negligible. Governments will inevitably claim appointments are made "on merit", but no legislative definition, criteria or guidelines exist to help define meritorious candidates beyond the common sense and professional judgement of the Attorney-General and appointing government. Thus overall, the executive government has a great deal of autonomy with respect to what it does in making appointments to the High Court(Geoffrey Sawer, 2003, p.34). The main center of appointing governments has characteristically been on the professional and personal character of appointees. Though, partisan political deliberation have usually, and to a number of degrees unavoidably, had some pressure over the procedure of employ judges to the High Court. As Williams was in office, partisan following thought played a more famous role in the judicial meeting process than for mainly other new appointments, but not to the degree that appointments have been unmeritorious or made out of political support, nor to the degree that the appointments stand for a main shift from historical carry out. Nonetheless, the Howard Coalition Government's appointments, when viewed as a whole, do evince a somewhat greater focus on partisan political considerations by the appointing government than has been typical across Australia's history, especially in recent times. However, the most notable feature of the appointment process under the current government has been the comparative dominance of the Prime Minister over the Attorney-General in the appointment process. This has in part come about because of the particular dynamics of the current Cabinet and the individual Prime Minister and Attorney-General. Williams' own lack of political power and, arguably, acumen in comparison to other members of the Cabinet, and the dominance of Prime Minister Howard, have limited the influence the Attorney-General has had over the appointment of High Court judges. Though, structural shifts at the top of the Australian executive government have also tended to augment the power of the prime minister and reduce the pressure of the Attorney-General, together over the judicial appointment procedure and further generally. It also come into view likely the augmented pressure of Prime Minister Howard more than Attorney-General Williams by respect to current judicial appointments has been a issue in the rather greater prominence of partisan political deliberation in those appointments(Geoffrey Sawer, 2002, p.9). Thus, the increasing dominance of the judicial appointment process by the Prime Minister has played a major part in shaping recent shifts in how that process occurs in practice. Nonetheless, it is apparent Williams' privileging of partisan political considerations over independence from the executive government in his approach to the office has also changed the office to some extent. It is certainly the case that acting separately from the partisan interests of his or her government can put the Attorney-General in an uncomfortable place at times. Though, it is hard to see how the health of the decision-making and judicial arms of government, and the public they serve, are promoted by the increased prominence of partisan political considerations in appointing judges to the High Court. An explicitly partisan approach to the office also calls into question the appropriateness of the Attorney-General as a figure responsible for discharging other functions which require some independence from the executive government, such as granting fiats for relator actions or referring issues to the Australian Law Reform Commission(Brian Galligan, 2004, p.193). Crown Court As indigent defendants charged with serious criminal offenses can be represented by lawyers in the United States and by barristers and solicitors in England and Wales. No doubt, Gauging the excellence of that assist is a significant but indefinable inquiry. This article has two reasons: to map how the impoverished criminal defendant charged by means of very serious offenses is stand for in England's Crown Court, and to look at whether economic incentives can persuade the defendant's representatives to execute as expected(P Samuel, 2005, p.10). As barristers profess to be accomplished advocates, and as lots of lawyers have similarly extolled the barrister's advocacy, testing the point is tremendously hard. Apart from watch trials or reading memoirs, there is scant proof to study. The information often used to evaluate the attempt of lawyers challenges by discontented defendants to the efficiency of the lawyer's efforts barely exists in England. Without a improved sympathetic of how the criminal defendant is stand for in England, lawyer-advocates may believe themselves as inept as lots of critics maintain they are when contrast with their barrister cousins(H. C. J. Phillips, 1998, Page 270). If barristers do carry out improved than lawyers, why is this so The compensatory scheme plays a role, and this article's second reason builds on the truism that financial incentives can affect the defendant representative's training and advocacy. Poorly compensated, advocates will decline to stand for indigent defendants or will be entice to do less than needed. Matters are dissimilar in England's Crown Court. Indigent defendants can choose the barrister who, for two causes, cannot refuse the request. Primary, the cab-rank rule requires a barrister to symbolize one who seeks help, no substance how guilty that person or his legal position is, so long as the barrister has no clash of attention and the compensation is sufficient. Second, the Bar defines the recompense paid in publicly-funded criminal cases as sufficient. Barristers are not chafed by this obligation since the compensation in publicly-funded cases can be fairly high, and considerably senior even than in federal courts. Thus, defendants in Crown Court have the unparalleled occasion, when contrast to their counterparts prosecuted in American courts, to hold on to the mainly skilled advocates who are obtainable. That having been said, defendants in Crown Court are frequently disappointed when they learn, regularly in a while before the trial date, that the barrister initially retained has withdrawn from the case. The barrister's revisit of the brief threatens to undermine this significant feature of English practice. It will be significant to learn how the compensatory scheme affects the barrister's inducement to return or to keep the concise(Western Mail, 2005. Page 8). The Defending Advocates And The System Of Compensation In Non-Standard Cases This section initiate the defendant's advocates and the mechanics of payment in legally-aided job in the Crown Court that functional to the cases studied. With this information, we can begin to appreciate how the rules leading compensation can influence the defenders' advocacy under the old system. Who Represented the Defendant In the Crown Court, quite a few factors the number of professionals on behalf of the defendant, the extent of the barristers' understanding as advocates, the defendant's control in selecting them ought to unite to make sure that the advocacy will be stellar and that the defendant will be content with his legislative body. However, these results come at a high price. In this regard, of the majority curiosity were those nine cases in which juniors asked to be led. No matter why a Queen's Counsel represents a defendant, his appearance should mean that the defendant will receive excellent representation, or, at the least, believe that he has. As illustration, one defendant was so impressed by a junior's efforts during an old-style committal hearing that he wanted the junior to continue to represent him in Crown Court. This decision was unusual because the defendant, charged with murder, was entitled to the help of a Queen's Counsel. In Crown Court this junior was initially supported by another junior(H. C. J. Phillips, 1998, Page 270). The defendant's control in selecting his representatives is yet another reason why he ought to be pleased by the advocacy undertaken on his behalf. In the United States, the indigent cannot select the lawyer, whether she is in private practice or a member of a public defender's office. Instead, the lawyer is chosen for the defendant. In Crown Court, by contrast, the defendant can select the solicitor who, in turn, can select the barrister. Most will not know enough, and rely instead upon the solicitor to make a discerning choice. In the cases examined, a few barristers were replaced, and without explanation. In one, for example, the defendant fired the solicitor. The new solicitor in turn replaced the barrister briefed by the dismissed solicitor with one whom he knew and trusted. The defendant's right to replace those who represent him, and the solicitor's supposed skill in selecting an able barrister are strengths of the English A Personal Experience of Law Proceedings In some way most people will experience encounters with the law. The only question then is, how Many people may cross the law by their own actions or gain exposure through friends or family. My experience with the law happens to come from recent events in my boyfriend's life. A recent divorce from his ex-wife with whom he has two children with, has sent us into a legal head spin. Although my name isn't on all the mailings and paperwork, I have been with him through the procedure and the hardships legal proceedings can bring. In a divorce involving children, the courts will set up custody, child support and parenting time; these cases are handled by the circuit court. Before they were to be divorced, he (J) and his now ex-wife had to go before a Friend of the Court mediator to solve the issues involving the children. To cut costs, J agreed to an uncontested divorce. At the meeting they had came to an agreement on custody, which the plaintiff offered half legal custody, and no physical custody to the defendant. Custody was established, and now the real fun began. The issue of child support seemed easy to resolve after reading the guidelines of how support is determined. It is a complicated formula, which the representative from FOC calculates based on the information provided by the plaintiff and the defendant. J had to gather recent wage statements and any other information you may have regarding income and expenses. Due to my work experience and my willingness I was able to assist J with his wage statements and creating the documents he needed. During the meeting, the amount set by the referee was certainly unfair considering his salary. Later I had found out that the defendant had misrepresented herself and stated she was unemployed with no income, which lead to a motion filed with the court so a judge could reexamine the recommended amount. The judge ruled in his favor and his support was lowered. Soon after, J fell into a financial rut and no support payments were made and they fell into arrearages. Since then his support amount has been raised to cover arrearages, his income tax returns have been levied, and this all led to a Show-Cause hearing. Since then things have gone well and will continue that way as long as the payments are made. The processes and laws regarding support can be difficult, it is good to be well prepared and understand your rights and responsibilities. Parenting time is the time established by a court or between two parties to allow sufficient time with the noncustodial parent. J was granted the time permitted on the Parenting Time Schedule and some additional time during the week. Shortly after the meeting there was a disagreement between the parties and she chose to modify the extra time, in court. There have been four motions in the past eighteen months in which parenting time was the complaint. All four times the judge or referee has ordered in the favor of the defendant. I have helped J thoroughly prepare for each of these hearings, and think I have played a helping hand in the success of these motions. These three seemingly small issues of custody, child support and parenting time can turn into life long problems if they aren't set up correctly in the first place. Although J was awarded partial custody, he is still interested in half physical custody as well. The child support is now settled and through garnished wages, he is paying his ordered weekly amount and catching up on arrearages. The parenting time is still proving to be a problem but now they strictly follow the courts recommendation and slowly things are looking up. It is an advantage to be well prepared and take care of things as they come up when it comes to legal excursions, ignorance of the law is not an excuse. Conclusion We see clear reasons, then, why the cost of the defendant's legal symbol was greater in high court, magistrate courts or Crown Court than in federal district court. Cost unaccompanied would almost certainly sink an effort to adopt the English approach in an American jurisdiction. Paying these amounts, though, does get better the symbol. Because of the cab-rank rule, a barrister cannot refuse to represent any defendant who seeks his help unless, among other reasons, the fee is inadequate. This ground, however, provides no escape for the barrister who would prefer not to represent indigent defendants, because the Bar accepts as sufficient the fees paid in publicly-funded cases. Thus, in theory, the indigent defendant has the same chance to select the most able barrister as does the wealthiest defendant. By contrast, lawyers with the experience of Queen's Counsel and not bound by the cab-rank rule, typically refuse to represent indigent defendants because the pay is too low(H. C. J. Phillips, 1998, Page 270). Reference A.Bradney et al,How to study Law,Sweet & Maxwell Anthony Blackshield, 'The Appointment and Removal of Federal Judges', p.428. Michael White, 'Judicial Appointments: Including the Role of the Attorney-General', p. 152. Anthony Blackshield, 'The Appointment and Removal of Federal Judges', pp.427-28. Article Title: Western Australia. Contributors: David Black - author, H. C. J. Phillips - author. Journal Title: The Australian Journal of Politics and History. Volume: 44. Issue: 2. Publication Year: 1998. Page Number: 270. COPYRIGHT 1998 University of Queensland Press; COPYRIGHT 2002 Gale Group Article Title: High Court Win for Hampstead Swim. Newspaper Title: Western Mail. Publication Date: April 27, 2005. Page Number: 8. COPYRIGHT 2005 MGN Ltd.; COPYRIGHT 2005 Gale Group Bush v Gore (2000) United States Reports, vol. 531, p.98. Brian Galligan, (2004) The Politics of the High Court: A Study of the Judicial Branch of Government in Australia, St. Lucia, University of Queensland Press, p.193. Cracknell DG,English Legal system Daryl Williams, (2001) 'Judicial Independence and the High Court', Western Australian Law Review, 27(2), p.146. Enid Campbell and HP Lee, (2001) The Australian Judiciary, Melbourne, Cambridge University Press, p.95. See, eg, Anthony Blackshield, (2000) 'The Appointment and Removal of Federal Judges', in B. Opeskin and F. Wheeler (eds), The Australian Federal Judicial System, Melbourne, Melbourne University Press, p.428; Michael White, 'Judicial Appointments: Including the Role of the Attorney-General', p.152. Glanville Williams, Learning the Law, Sweet & Maxwell Geoffrey Sawer, (2002) Australian Federalism in the Courts, Melbourne, Melbourne University Press, p.65. Geoffrey Sawer, (2003) Australian Federal Politics and Law 1929-1949, Melbourne, Melbourne University Press, p.34. Geoffrey Sawer, (2002) 'High Court Appointments Under Mr Menzies', Nation, 2, 11 October, p.9. Jeff Shaw, Judicial Appointments', p.7. K.Zweigert & H.Kotz ,An Introduction to Comparative Law, Clarendon Press Lea King, 'The Attorney-General, Politics and the Judiciary', p.458. Michael Lavarch, A Creative Tension--Improving the Interface Between Judges and the Executive, p.6. Peter Durack, personal communication to author, 30 May 2000, in Max Spry, (2001) 'Executive and High Court Appointments', in G. Lindell and R. Bennett (eds), Parliament: The Vision in Hindsight, Armadale, Federation Press, p.449. See, eg, Bernard Lane and Megan Saunders, (2003) 'A-G Tells Judges to Cool Down, Speak Up', The Australian, 7 January, p.5. See, eg, Editorial, (2005) Sydney Morning Herald, 11 February, p.10; P Samuel, (1975) 'The Final Murphy Time-Bomb', The Bulletin, 15 February, p.14. Zander M ,The Law -Making Process Read More