The English Legal System - Essay Example

The English Legal System The English Legal advocacy system was first split into Solicitors and Barristers in the nineteenth century, when the Bar agreed to concede the administrative aspects of the profession as embodied in conveyancing and direct client access to the solicitors. (Zander, 2004, p 727). In return they sought sole rights of audience in the higher courts including the privilege of becoming the judges in those Courts . Barristers wore white wigs and long robes and since the 19th century, their realm of operation was confined to the courts, working as sole practitioners who were instructed by solicitors. (Zander, 2004, p 701). While solicitors are the ones who hire barristers and apprise them of the facts of the case, they were not permitted right of audience in the higher courts, therefore this often entailed double the costs for clients, since they had to hire a solicitor and a barrister as well, and in difficult cases to be contested in the highest courts they were also obliged to hire a Queen’s Counsel. Since these legal professionals charge by the hour and costs are particularly high for Queens Counsels who are allowed audience in the High Court and Crown Courts, this has often pushed the option of litigation right out if the province of poorer clients. Barristers function on the lines of the “cab rank” principle which could be projected as an advantage, however the reality is that in some cases there are returned briefs and the question of an unprepared barrister appearing in Court on behalf of a client instead of a solicitor who is better acquainted with the case, which “may be a major source of unfairness and poor justice for offenders and litigants.”(Darbyshire, 2001, p 263). Moreover, as demonstrated in the Report by the National Association of CAB (www.unece.org), few clients are properly informed about costs and this is part of the reason why the fees associated with processing a case are most often the cause of customer complaints. Duplication of costs has been inevitable because both the solicitor and the barrister must be paid and it is often difficult for a client to comprehend why he is faced with the necessity of paying two people for one case. Moreover, the lack of audience in the higher Courts has been the biggest grievance of solicitors, who are often the best acquainted with the facts of the case after their close association with the clients. It is the solicitors who brief the barristers but since there is no guarantee that the barrister who has been briefed will be free to appear in court on the appointed day, a solicitor who is acquainted with the case and is also able to argue for the benefit of his/her client, is forced to sit idly by and watch a barrister less conversant with the case represent the interests of his client to the Courts. In England, solicitors have been fighting hard to end the monopoly of the barristers in the higher courts and the Courts and legal Services Act of 1990 has paved the way for those solicitors who are suitably qualified to be treated on par with barristers in the higher courts.(O’Brien, 1998, p 13-14) The English system of advocacy has historically been separated into two distinct groups – barristers and solicitors. Access to the courts is permitted only to the barristers, while solicitors maintained exclusive contact with clients. A barrister could not deal exclusively with the client but had to be contacted and instructed by the solicitor before he could act on behalf of the clients. Before July 6, 2004, a barrister was not permitted to interact directly with members of the British public. (ww.johnlambert.law.pro). The work and responsibilities of Barristers and Solicitors have been clearly demarcated by their respective legal bodies and it was not possible for one person to belong to both braches of the legal profession. Each branch has its own training and educational requirements and while it was possible for advocates from one system to retrain and move into another, the two branches were separate professions. (Slapper and Kelly, 2001). The work of the solicitors differs from that of barristers in terms of their rights of audience. While solicitors may freely appear and offer their advocacy services in the relevant magistrate court and county Court, their rights to appear in Crown courts and the High Court were restricted earlier and such rights of audience were only granted to barristers. In such courts where solicitors were not permitted to appear, they generally instructed a barrister by providing case details that were tied up with a red ribbon and known as “briefs”, and which includes instructions from the client on how to proceed. Based upon the brief and consultations with the solicitor, the barrister argues the case in the court accordingly. Solicitors are authorized to appear in county courts, coroners courts, small costs courts, tribunals and Magistrates Courts but only solicitors who are higher-courts qualified are permitted audience in the High Courts and Crown Courts. Earlier, it was possible for solicitors to be promoted into the judiciary as circuit judges, however with the expanded provisions of the Courts and legal Services Act of 1990, it has become possible for solicitors to be promoted into any branch of the judiciary. The Clementi Report (Clementi 2004) also appears to suggest that a fusion of the two branches of advocacy may be desirable in order to ensure competitiveness and cost effectiveness within the legal system in the U.K. Fusion is a term that would refer to the merging of the elements from the two faces of legal advocacy – solicitor and barrister. There are several advantages offered by fusion. The biggest and most significant advantage offered by fusion is the elimination of duplication in legal work because having two legal professionals represent one client is a duplication and waste of skill, effort and time. As O’Brien puts it, it makes no sense to pay two professionals where one will suffice.”(O’Brien, 1998) The duplication of work also duplicates the costs involved, therefore through fusion, the costs involved in legal work and court processing are likely to be considerably reduced. This is a factor that is particularly significant, since the increasing legal costs are a bar to most people, who are unable to afford the legal costs involved in seeking redress through the Courts. Another advantage offered by fusion is the prospect of removal of some of the restrictions that currently exist which makes the legal process a cumbersome one. For example, removing the restrictions in audience for solicitors is likely to ensure that solicitor advocates have rights of audience in most courts, thereby removing the obstacles inherent in finding a barrister qualified to argue in that particular court, and risking the possibility of misrepresentation or misunderstandings in communication between solicitor and barrister which may adversely impact upon the prospects for the case. The National Audit Office Survey of 1997 also highlighted another disadvantage of the current system - it discovered that three quarters of prosecution briefs that were accepted by barristers were returned before the trial, sometimes with little time to spare, so that a fresh barrister would have to be found and made conversant with the facts of the case at short notice. This happens because barristers may find that they are double booked and are therefore unable to continue with the process. Fusion of the legal system would therefore allow for case continuity and the avoiding of returned briefs. In addressing the debate regarding fusion, many of its opponents have often examined the aspect of costs, which is one of the biggest advantages proposed from fusion. But Ian West argues that a fusion of the two professions is likely to be retrograde step because the interests of justice could be affected. He states that in a criminal court, what is perceived as restrictions in the system actually enhance the cause of justice and provide good advocacy for clients at a cheaper cost, making the English criminal justice system one of the best in the world.(West, n.d.). He points out that barrister overheads are much lower than that of solicitors, while barristers may incur overheads of about 30%, solicitors incur up to 75% overheads. Stephen and Love point out that due to the information asymmetry that exists in the legal market, the lawyer is placed in a superior position as compared to the client and has a pecuniary interest in recommending expensive legal strategies in order to benefit the most in a monetary sense.(Stephen et al, 1999). When the profession is separated into its agency function and service function, performed by the solicitor and barrister respectively, then the regulations imposed when combined with the motivation to provide justice within an unprejudiced framework may help to ensure that clients are provided with the best legal service at the optimum price, rather than being coaxed into accepting the strategy that is likely to be the most financially rewarding one for the advocate concerned. Bibliography * “Access to Justice” Available online at: http://www.unece.org/env/pp/a.to.j/TF2006/AMs-Ecoforum.ppt * O’Brien, Diedre,1998. “Bar Wars” Law Society Gazette, 92(2), pp 12-15 * Darbyshire, P. 2001. “Eddy and Darbyshire on the English legal System”, 7th edn. London: Sweet and Maxwell * Slapper, G and Kelly, D, 2001. “The English Legal System” London: Cavendish * Stephen, Frank H and Love, James H, 1999. Regulation of the legal profession University of Strathclyde, Glasgow, UK. * West, Ian, No Date. “The Clementi report: LDP’s and Criminal Justice: A different report from the Bar.” Available online at: http://www.barristermagazine.com/articles/issue25/west.html * What is a barrister?” [online] Available at: http://www.johnlambert.law.pro/whatis.htm * Zander, Michael, “Cases and materials on the English legal System”, 9th edn, Cambridge University Press Read More