The England and Wales Court System, with Reference to Criminal and Civil Justice

Question 1

The court system in operation within England and Wales is well established in history this essay will particularly look at the Criminal and Civil Justice Systems.it will also address the advantages and disadvantages of the jury system. The court process in operation in England and Wales is steeped in history dating back centuries and the assembly used to debate and address deputes between it community members. The effectiveness of historical practice is evident in the judicial system of today. This essay particularly looks at the distinction between criminal and civil justices systems. It also looks at the effectiveness of the jury system which are predominantly used as independent arbiters. The law courts of England and Wales have evolved over centuries in medieval times ‘moots’ where held to address local disputes. The origin of the Magistrates Court one of the oldest courts in existence dates back to the 12th Century were lay people were charged with the maintaining the law. (The Open University, 2014a) One of the principal functions of the court system is to determine the law and apply them to the particular circumstances provided through evidence. There are differences between courts within the system and in particular between the criminal and civil justice systems. of behaviour and offender that breach the law and punished for their behaviour. The majority of criminal cases are heard in the court of first instance, such as a example grievous bodily harm. (The Open University, 2014a,) Criminal cases are prosecuted by the Crown Prosecution Service in the name of the Crown. cases that come before criminal courts are categories as a summary offence for example drunk and The criminal law particularly focuses on enforcement and prevention of certain types disorderly, triable either way, such as burglary providing the offence is not serious requiring a tougher sentence and indictable offences most serious such as murder which is heard in Crown Court.

(The Open University, 21014a,) the criminal justice system operates a process of appeal if the defendant disputes the outcome of the court of first instance. An appeal can be lodged with a higher court with permission to have determine whether the law has been applied to the facts by the lower court. The appellate courts are the Court of Appeal and the Supreme Court which is the highest court of appeal in the United Kingdom. ( The Open University, 21014a) The civil justice system addresses disputes between citizens of two or more parties the system ensures that each party have a fair hearing. (The .Open University, 2014) The procedure for claims are determined by the value of the claim and the complexity of the case. The nature of the claim for example claims in the High Court would be above A£50,000 whilst claims below below this value would be dealt with by the County Court by one of a three track procedure. The allocation of a tracking system is to provide an efficient process for claims. The three tracks used are Small Claims under A£10,000, simplistic and not requiring representation by legal profession. The fastrack process deals with claims up to A£25,000 again considered straightforward enough to be dealt with on the same day but in this instance both parties are permitted one expert witness. The third track is called a multi track claim these cases are considered to be more complex in nature and are in excess of A£25,000 with the complex cases sometimes a judge is judge may be involved for the purpose of preparation and also encourage parties to consider resolving their dispute using alternative methods. (The Open University, 2014b)

The jury system is mostly used in Crown Court and consist of twelve members selected from the electoral role so local to the area the case is being tried. Jurors are used in trials as independent assessors of the fact of the facts that are presented before them. This independence is a result of the case of Bushell (1670) (The Open University, 2014a) where a judge refused to accept the verdict of the jury this case established the role of jurors and as a result cannot be punished or challenged for their verdict. They are required to come to a majority verdict or the judge will accept a 11 to 1 or 10 to 2 verdict. The advantages of a jury is that they are local to the area and know the area they are impartial and not connect to the case. They have been randomly selected from a cross selection of society therefore unbiased and bring fairness to the trial. Their decisions are not bound by decisions of past cases as with the judiciary. The deliberation between jurors is in private without pressure or outside influence.

The disadvantages of a jury is that they have no legal experience and therefore do they comprehend the law brought before them. Some case can be complex and technical in nature others have horrific evidence that they have to listen to or view are they prepared for what they see and the emotional affects this can have on the lay person. For example crime against children. Some juries make perverse decisions meaning that they have ignored the law and make decisions that are unjust. (The OpenUniversity, 2014a)Some jurors can be prejudice which can influence their verdict. They can also be influenced by the media particularly if the trial is high profile and sensationalised. To conclude the jury system dates back to at least 1670 so well established within the legal system. Jurors are not legal experts they are chosen through a random selection for their unbiased interpretation of the facts that are presented during a trial. The difficulty jurors have is that they are expected to understand the complexity of the law brought before them sometimes the facts that they are to interpret can be highly specialised for example medical issues the case that they are likely to hear at a trial are often of a serious nature and sometimes the evidence can be horrific.

Question 2

Tribunals are now an important contribution to the legal system of England and Wales. This essay will look at how the Franks Report 1957 and the Leggatt Report 2001 helped to reform the tribunal system A tribunal is a panel of people who have the authority to adjudicate on disputes they make awards rather than give a judgment. Tribunal members are not bound by previous decisions of tribunals, although they may look at other case for assistance in making their decisions. Member are a mixture of judges, lawyers , experts and lay people. Before the Franks Report 1957 tribunals had been created to perform various judicial functions such as immigration issues and were subject to influence and regulation by Government departments. The Frank Report resulted from concerns about the diversity of tribunals in operation and the uncertainty with the procedures they followed, lack of cohesion and supervision of practice. The report made some basic assumptions in that tribunals are seen as an adjudicating, rather than administrative body. They should be fair, open and impartial which is reflected in Article 6 of the European Convention on Human Rights 1950 states that: ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’ (The Open University, 2104b)

The evolution of tribunals provide a specialist resolution particularly with disputes relating to social security, health and education. The tribunals fall into two categories the first being administrative mean that they are state run and offer members of society redress against decisions made by government departments. For example Department of Work and Pensions. The second category refers to Domestic tribunals which addresses issues relating to professional affairs for example Medical Council misconduct issues In 2001 the tribunal system was reviewed by Sir Andrew Leggatt the system had expanded since the first review back in 1957, he identified key areas for reform. They included the need to slimline the tribunal system and sustaining independence. Encouragement of self-representation by parties involved in disputes this would help cut down the cost to individuals by not using profession legal staff would cut down the cost to individuals.

There would be a need to training panel member aiding those that choose to represent themselves and the creation of an upper tribunal tier to strengthen an appeal system strengthen the status of members regardless of their expertise (The Open University, 2014b). The Tribunal Courts and Enforcement Act 2007 enforced changes to the tribunal structure First tier tribunal divided into seven chambers which included health, education and immigration. The Upper tier tribunal divided into three chambers above them is the Court of Appeal . the tribunal system is presided over by a Senior president of Tribunals new tribunal expanded were introduced by legislation such as Mental health Tribunal Act 1983 which created the Mental Health Review tribunal with responsibility for hearing dispute by people detained under the Mental Health Act 1983 against their will. ( The Open University, 2014b) To conclude the tribunal system is a less intimidating process than a formal court for the parties who are in dispute. the panel adjudication the dispute is made up of a panel of experts from the legal service, special expertise in a particular tribunal for example social security. Parties involved in the dispute are encouraged to represent themselves enabling the cost of the hearing to be kept to a minimum

Question 3

This essay will look at the recruitment process to the judiciary and the importance the Judicial Appointments Commission makes to the selection process. It will also address diversity within the judiciary. The judiciary are independent group of people who enforce and interpret the law they act as an arbiter by examining cases brought before a court of law in response where citizens have breached the law. They protect civil freedom they are politically neutral and they ensure justice and deputes are settled in a equitable manner without bias to either the prosecution of defence of a case and determine the appropriate remedy of penalty. (The Open University, 2014c Unit 12 P1) The judiciary are a privileged group mainly educated at private school with the expectation of receiving further education at either Oxford or Cambridge University. On receiving their degree their career progresses to a barrister with one of the elite corporate or commercial law firms. The judiciary does not resemble the general population it represents. The selection of judges use to be the responsibility of the Lord Chancellors department shrouded in secrecy confidential information was gathered on potential candidates for the next judicial vacancy.

Recruitment was via a tap on the shoulder and despite these positions being high profile and carrying enormous responsibility. The Constitutional Reform Act 2005)The Open University, 2014c) the Ministry of Justice sponsored the Judicial Appointments Commission (JAC) )The Open University, 2014c) who are now responsible for the future employment of judicial staff The selection process is based on merit through a fair and open competition from among the widest range of eligible candidates.

The appointment process is clear and more accountable the vacancies are advertised on the Ministry of Justice website applications are submitted electronically, shortlisted candidates are , invited to selection days were they are subjected to panel interviews and have to provide presentations this is required by the Constitutional Reform Act 2005. Successful candidate approved by JAC is recommended to the appropriate authority were the vacancy arisen for example, Lord Chancellor, Lord Chief Justice or Senior President of Tribunals. Compare to the old process this new one the process is clear, fair, open and accountable. They do not however selected judges to the Supreme Court these appointed by the Queen on the advice of the Prime Minister required by Constitutional Reform Act 2005 to recommend to the Queen a named person. Although the introduction of the JAC has made the appointment process clear more open to scrutiny there still remains the criticism of lack of diversity within the judiciary .this can be seen through the publication of statistics for judges and magistrates particulary pertaining to the appointments of women and candidates from Black and Minority Ethic (BME) backgrounds. In 1998 statistics show that only 10.3 percent of women and 1.6 percent of BME made up the judiciary. 17 years later these figures increased by 14.2 percent for women and 4.2 percent from BME (The Open University, 2014c).

Though there has been an increase in candidates from these two groups this picture reflects the changing composition of entrants to the legal profession but in comparison to white males diversity is still very much an issue and results are poor. During this period only one female Judge was of BME group and this was Dame Linda Dobbs who was appointed in 2004 to the High Court (The Open University 2014c) and there has been a successful female judge Lady Hale who is the most senior judge who succeeded amongst the majority male senior judges. Her views on diversity is that ‘there need for a diversity background to get the best possible results from a collegiate court there not much point if all the judges have a similar background and have the same approach to law.’

(The Open university, She also pointed out that ‘The current situation promotes positive discrimination favouring one category of people over another and the gap between those of advantaged and disadvantage backgrounds in the judiciary widen. Addressing diversity within the judiciary can have a powerful symbolic value in promoting public confidence in the fairness of courts, a vitally important issue in terms of access to justice for BME communites(The OpenUniversity,2014cTo conclude substantial changes to the appointment of judges was long over due following the introduction of the Constitutional Reforms Acts 2005 the selection process became the responsibility of the Judicial Appointments Commission and out of the hands of the Lord Chancellor department.

The selection process became more transparent and accountable and the selection of candidates for now is fair as selection is based on merit and performance at interview. There still remains issues around diversity particularly recruiting from ethnic minorities it could be argued that more could be done to address this issue. Question 4 In preparation for this TMA I read the units applicable to the subject matter in fact this was repeat a few times until I understood what I was reading. Though I have a printed copy of the unit material I made use of the electronic version and was able to to highlight and cut and paste to a word document the information I thought was relevant to the TMA questions. With each question a sketch an outline of my answers this was perhaps not detailed enough with some of the questions and I tried to keep my answers to the plan. I felt this process was better than previous ad hoc approach to preparation. There is still areas that I need to improve i have restricted the urge to over edit my work but there is still more improvement required in this area. I got a little confused over tribunals my intension is to look at this subject again but I have learnt from past mistakes and left the answer as it is and not attempted a re-write last minute.

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