English Legal System - Essay Example

THE ENGLISH LEGAL SYSTEM I. The different roles and functions of the four branches of the legal profession in England and Wales In England and Wales, the legal profession is subdivided into four groups of law-trained persons. They are Barristers, Solicitors, Legal Executives and Licensed Conveyancers. The largest categories are the Barristers and Solicitors. Legal Executives and Licensed Conveyancers are specialized practitioners that are an off-shoot of the need for more law practitioners than was available from the pool of Barristers and Solicitors. Barristers deal with the advocacy or representation of clients before the courts and with the high level consultancy on difficult or specialist cases where trial is the common outcome. Solicitors were more concerned with office work such as the preparation of contracts for clients. Since 1991, solicitors with a little extra qualification have been allowed to act as advocates before the highest courts. On the other hand, barristers can now deal directly with professional clients without the intervention of a Solicitor. Many commentators believe that the two legal professions, once almost entirely separate, are slowly entering a state of gradual fusion as both are training and qualifying themselves to serve in the capacity of the other. Solicitors require a practicing certificate if they are to be involved in legal work. An exception is made for those in local government, commerce and industry. In 1996 there were 8702 firms of solicitors in England and Wales which earned at least £15,000 per annum, with 4,377 of those firms classified as sole practitioners.1 There are also Legal Executives who qualify separately from both Barristers and Solicitors. Legal Executives carry out lower-level procedural or transactional work and must work under the supervision of a Solicitor. These functionaries are classified as paralegals in other countries. The practice of having Licensed Conveyancers started in 1986. They work separately from solicitors and are focused on domestic property transactions. The profession has its own system of qualification. a. How each branch is regulated The legal profession is largely self-regulated. The chief methods of regulation are; restrictions on entry, restrictions on advertising and other means of promoting a competitive process within the profession and restrictions on fee competition. The associations that regulate the practice of legal professionals are largely independent of government control. The main tool for regulation of the legal profession comprises the limitations imposed on who may enter into the legal profession. To become a solicitor one must take one of two degree routes or, alternatively, a combination of a more extensive period of vocational training in addition to professional legal education. Most students will take the degree route to enter the profession2. The third route involves qualification as a solicitor through a combination of work experience as a legal executive in a firm of solicitors, completing examinations in the core subjects as set by the Institute of Legal Executives, and taking the Legal Practice Course (LPC). This gatekeeper process means only the most qualified both academically and ethically will be allowed to practice the legal profession. Barristers are regulated by the Bar Standards Board, which is part of the General Council of the Bar. To become a barrister, one must be a member of one of Inns of Court. In the past, the inns educated and regulated the barristers independently. The four Inns of Court are: The Honourable Society of Gray’s Inn, the Honourable Society of Lincoln’s Inn, The Honourable Society of the Middle Temple and The Honourable Society of the Inner Temple. These Inns also perform scholastic and social roles, and in all cases, provide financial aid to student barristers through scholarships. In practice, the Inns ‘call’ the students to the Bar at a ceremony similar to graduation. They are also in charge of the internal discipline and regulation of their members. Solicitors are regulated by the Law Society of England and Wales and The Solicitors Regulation Authority (SRA). Should any complaints against a solicitor remain unsatisfied by their organizations, recourse may be made to the Legal Ombudsman. As mentioned earlier, the main regulation of Solicitors is the gatekeeper function of training and qualifications administered by the SRA. Would-be Solicitors are required to undergo one of two graduate routes to enter the profession. Aspiring Solicitors holding a qualifying degree in law3proceed to enroll with the Law Society as a student member and study the Legal Practice Course. Those who do not have a qualifying degree must first take a conversion coursE before they can enroll in the Legal Practice Course. After completion of the Legal Practice Course, a prospective solicitor must then undertake a two-year apprenticeship program, called a training contract, before he can become a full-fledged solicitor. This practice ensures that only the most committed aspiring Solicitors would undergo the process to qualify as such. The regulatory body for Legal executives is The Institute of Legal Executives or ILEX. It is a professional body which represents both Legal Executives and trainee Legal Executives. These Legal Executives are qualified to act as lawyers in specialised areas and undertake tasks similar to those of solicitors. Their work requires a high level of ethical standards on a par with Barristers and Solicitors. All the actions of Legal Executives are regulated by the Institute of Legal Executives. A Licensed Conveyancer can hold a limited license with a requisite eight hours of professional training each year under the remit of the Continuing Professional Development (CPD) training program. Otherwise, a fully Licensed Conveyancer must complete 12 hours of professional training taken elsewhere. Like Solicitors and Barristers, Licensed Conveyancers are also Commissioners for Oaths and thus must have an appointment from the Lord Chancellor. They are regulated by the Council of Licensed Conveyancers as enunciated in the Administration of Justice Act of 1985 4. b. The benefits of this system The benefits of this system are two-fold. First is that, as self-regulating bodies, the professional associations are able to police their own ranks with a minimum of intervention from the state. Second, they lower the entry barrier needed to be a legal practitioner and increase the number of legal practitioners available to meet specific needs. Being self-regulating brings many benefits because the professional bodies are members of the Inns and and/or practitioners in the field themselves. This means that regulation is highly responsive to the needs of the profession as opposed to government-imposed regulation which is typically sifted through layers of bureaucracy. As fellow practitioners, they will have an excellent perspective as to what regulatory steps are needed to ensure the greater good of the profession. Lowering the ‘price of admission’ to the legal profession is a benefit granted by the separation between Solicitors and Barristers and the scope permitted Legal Executives and Licensed Conveyancers. More people are able to practice aspects of the legal profession without unnecessary training in fields that they do not intend to practice. For example, a Licensed Conveyancer may practice aspects of commercial and civil laws but needs as little as eight hours a year of Continued Professional Development Training to remain in good standing. His activities in the legal profession are limited but sufficient to discharge his duties. Solicitors and Barristers receive training and education that is commensurate with their duties. Should they wish, they can undertake further training to qualify as both a Solicitor and Barrister. However, Solicitors who are Barristers are few in number relative to those who require the services of legal professionals. Legal Executives and Licensed Conveyancers therefore help fill the gap providing services that would otherwise become out of reach for lack of Barristers and Solicitors. II. Changes brought about by the Constitutional Reform Act of 2005 The Constitutional Reform Act of 20055 provides for a Supreme Court of the United Kingdom to take the role of the Law Lords and the duties of the Judicial Committee of the Privy Council. The Act also removes the functions of the Speaker of the House of Lords and the Head of the Judiciary of England and Wales from the office of the Lord Chancellor. The Act essentially reforms several institutions of the United Kingdom. In relation to practice of law, the most significant change is the establishment of the Supreme Court, which was initially composed of the twelve Lords of Appeal in the Ordinary. This new court has assumed the jurisdiction of the House of Lords and the jurisdiction of the Privy Council with respect to matters of devolution. Another section of the Act provides for reforms in the appointment of judges. In the past, the Queen appointed judges on the advice of the Lord Chancellor. This was supposedly a defective practice and had to be reformed according to the Law Society. Hence Section 61 of the Act responded to this by creating a judicial appointments commission which is responsible for the appointment of judges in English and Welsh courts. The Appellate Committee of the House of Lords was abolished and its members were transferred to the new Supreme Court, while largely retaining their roles. New justices will not take the peerage. So in the future the Supreme Court will no longer be composed entirely of Lords. The head of the English judiciary is now styled Lord Chief Justice. To further separate the Supreme Court from the institution of the House of Lords, the new Supreme Court is housed in a separate building from the Houses of Parliament. These changes give the impression that the Judiciary has greater independence from the Crown and from the Legislative and Executive branches of government. After all, the judges are no longer chosen purely at the discretion of the Crown and the Supreme Court Justices are no longer automatically drawn from the House of Lords. III. Cases That Go to the Courts of First Instance and Appellate Courts and Their Methods of Trial Jurisdiction is the sun around which all procedural law orbits. A case that is filed with a court that lacks jurisdiction will be thrown out no matter how good or airtight it is. Therefore, it is important to know in which court a case should be filed. Likewise, if and where a case can be appealed should the decision of the court be unfavourable is crucial knowldge. After all, an unfavourable decision may be overturned or moderated upon review by a higher court. a. Common assault Common assault is a statutory offence in England and Wales. It is also a summary offence. Common assault is committed when a person causes another person to ‘apprehend’ the immediate use of unlawful violence by the defendant. The penalty and mode of trial for this offence is provided for in section 39 of the Criminal Justice Act6. Like all criminal cases the court of first instance is the Magistrates’ Court. Due to its nature as a summary offence the entire trial and sentencing can be done in a short period of time before this court. Depending on the age of the defendant the case may be brought before an Adult Criminal Court or a Youth Criminal Court. Both are essentially Magistrates’ Courts but are specifically focused on the trial of criminal offenses of adults or the youth. Should the Magistrates’ court find for acquittal, such is not subject to appeal. If the decision is adverse to the defendant then an appeal may be filed with Crown court. It may also be elevated to the Appeals Court with leave of court. Likewise, if the Crown court’s findings are adverse the case can also be elevated to the Appeal Court with leave of court. In the unlikely event that the simple case of common assault can be made out to be of public importance it may be raised further to the Supreme Court. In practice the case rarely leaves the Magistrates’ court because the defendant will ordinary not appeal anymore or will plead guilty and receive a low sentence in the form of some sort of community order. Given the low sentence involved it is usually not worth it to litigate it beyond the Magistrates’ court. b. Murder Murder is the most serious form of homicide, when one person kills another either intending to cause death or intending to cause serious injury. After the abolition of capital punishment, the penalty for Murder became life imprisonment. A somewhat more involved process occurs to determine the court of first instance in this case. The Magistrates’ court is the place where the defendant will be brought first. This court has only to determine if bail may be granted to the defendant. The actual court where indictment, trial and sentencing occur is the Crown Court. This is because the Magistrates’ court does not have the power to impose the requisite penalty for murder; it is thus beyond its jurisdiction to try the case. As with common assault, an acquittal is not appealable. A conviction may be appealed to the Court of Appeals and possibly the Supreme Court. In both cases there must be leave of court. It is unlikely that a case will be elevated to the Supreme Court because this requires that there is some cause that gives the case public importance. Unlike common assault, murder is vigorously litigated because the potential sentence is life imprisonment. c. Injuries in the amount of £700 sustained as a result of negligence Claims arising from negligence, excluding criminal negligence, are civil cases. Unlike the earlier examples which are criminal cases, these follow the hierarchy of civil procedures. Civil claims under £5,000 are dealt with in the County Court under the Small Claims Track7. This is more commonly known as the Small Claims Court but the correct terminology is simply County Court under the ‘Small claims track’. This allows for speedy disposition of the claim in the amount of £700. Unlike a criminal case where the parties are the Crown and the defendant, a civil case is between two plaintiffs. Therefore, if either plaintiff feels that he did not receive a proper remedy he may, with leave of court, elevate it on appeal to the civil division of the Court of Appeals. He may further elevate it to the House of Lords should he feel the need, provided the leave of the Court of Appeals is secured. In other words, a claim for negligence may be appealed but only upon leave of court. d. Breach of contract with a claim for damages in the amount of £125,000 A claim for damages arising from a breach of contract is a civil case that would ordinarily be cognizable by the County Court. However, the amount of £125,000is beyond the jurisdiction of the County court acting in its capacity under the small claims track. It is also beyond the £25,000 nominal jurisdiction of the County Court. Therefore it must be elevated to the High Court. The High Court of Justice will be the court of first instance because the amount of the claim is beyond the jurisdictional amount of the County Court. Should the High Court of Justice render an unsatisfactory decision, the plaintiff may elevate the case on appeal to the Court of Appeals with leave of court and, should the need arise, even further to the House of Lords. References Self Regulations in Practice, and trends in Solicitors’ Profession.in The Solicitors Complaints Bureau Annual Report 1996. The Law Society RPPU Administration of Justice Act of 1985 Constitutional Reform Act of 2005 Criminal Justice Act of 1988 Civil Procedure Rules 1998 De Friend, Richard. International Journal of the Legal Profession Vol 2 No 1 1995 Solicitors Regulation Authority Website Available at http://www.sra.org.uk/students/academic-stage.page Last accessed 18 May 2011 Read More