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Lay People Dissertation

5569 words (22 pages) Dissertation in Free Law Dissertations

02/02/18 Free Law Dissertations Reference this

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Task 2

Laypeople are people without any formal legal training. They can also be called lay magistrates, lay Justices or Justices of the Peace. Lay people are magistrates in the magistrates’ court and juries in the crown court. Most lay people are appointed by the Lord Chancellor who chooses about 1500 people each year taken from the country’s elector list.

Using laypeople makes law more accessible to everyday people as it helps reduce specialised language. Decisions are made by ordinary people from different backgrounds. As they are not qualified they do not usually make decisions on their own but sit on a bench that is a minimum of two up to a maximum of 7. They must be over the age of 18 and no older than 70. They must be registered as a parliament or local government elector. You are only disqualified from being a lay magistrate if you have been in imprisonment, detention or are in custody for life or detention for public protection. Other causes of being disqualified can be; Lack of capacity, people who are currently on bail or are going through criminal proceedings.

A lay magistrate must have six key qualities to enable them to be appointed, these ensure that the magistrate is of good mind and judgement.

You can be excused only if you are working full time as a member of the armed forces. You are required to sit if you are a doctor, nurse, judge, lawyer or police.

Courts will accept discretionary excusals if you have a good enough reason. If you suffer from, or have suffered from a mental disorder/mental health problem and because of that state of health:

  • You are presently a resident in a hospital or other similar establishment.
  • You frequently visit a medical practitioner for treatment
  • You are legally responsible for someone under section 7 of the Mental Health Act 1983
  • Or if a judge has decided that you are not capable of managing and administering your property or affairs because you have an illness.

Jayne and Jim if your cases are heard in the Crown Court the judge will explain the law and they may use a jury to determine the verdict based on the facts in relation to the law. They are also used when the defendant pleads not guilty.

Jayne your civil case will either be heard in the county court or the small claims court. If it is heard in the County Court, juries are only used in limited circumstances. Such as defamation, false imprisonment, malicious prosecution and fraud.

If it is heard in the county court you may also have a panel of lay people who will then decide if the defendant is guilty or not.

Their roles

Lay Magistrates judge a defendant in either the Crown, high or coroners court when they plead not guilty they are sworn into hear the case and decide if they are guilty or not. They decide the facts of the case.

Magistrates must be of good character and have personal integrity, they should have common sense and the ability to weigh evidence and reach reasoned decisions. Magistrates must live or work in the area and need to have good knowledge and understanding of the local community. They need to be firm yet compassionate and be able to work as a member of a team. They are not required to have formal qualifications.

The difference between the use of lay people in magistrates and crown courts are that in the magistrates court the lay people do the sentencing but in the crown court this is left up to the judge. This means that magistrates need an element of legal training before undertaking their role, but this isn’t true of juries. They deal with civil and criminal cases. Lay people are also used in tribunals as advisors.

Lay magistrates role within the criminal court

In criminal cases lay people decide if the defendant is guilty or not. They are only used in crown court where the defendant pleads not guilty. Juries are only used 1% of the time in criminal cases. Lay people also deal with bail applications, remand hearings and committal proceedings.

Lay magistrates role within the civil courts

In civil cases lay people are only used in limited circumstances and have a dual role. A magistrate’s role within the civil court is made up of licensing, family matters and debt work. Specially qualified lay magistrates deal with cases within youth courts this includes most crimes except those exempt of serious disposition. They will attempt 10 to 17 year olds.

Task 3

Roles of solicitors, barristers and judges in civil and criminal cases.

People have direct with solicitors unlike other legal professions. Barristers get instructions from solicitors and have very little or no with the public.

Solicitors undertake legal business for individual and corporate clients, while barristers advise on legal problems submitted through solicitors and present cases in higher courts. They both present cases in lower courts.

When people need legal advice, they a solicitor. Solicitors offer skilled advice on all sorts of legal matters – from buying a home to selling a company /business.

Solicitors represent their clients in court, mostly in the lower courts; but some have advocacy rights in higher courts.

Many solicitors are in private businesses. They work in multinational City firms with large numbers of staff, in high street offices as sole practitioners. Many solicitors have jobs in local government, law centres, the civil service, commerce and industry.

Solicitors deal with people from a wide cross-section of the society. Solicitors work in an office and wear a business suit to work.

Barristers fulfil two roles. When specialist knowledge is needed, they give opinions on complex matters of law. And when clients require representation in the higher courts, Crown Courts, Court of Appeal and House of Lords, barristers provide a specialist advocacy service. Barristers will wear a black gown and a wig when in court.

Solicitors have much more with the public, while barristers do not. Solicitors employ barristers to act on their behalf, and no contract exists between the barrister and those whom they are representing in court. While solicitors have a contract with their customers.

The main difference between a barrister and a solicitor is their day to day work.

A barrister is essentially an advocate speaking on behalf of his or her client, arguing the case and persuading a judge or jury to their way of thinking. The life of a barrister tends to be influenced by the demands of the courts e.g. the High Court, Crown Court, County Court and possibly the Magistrate’s Court, with time split between working in chambers and appearing in court. Barrister works on their own account, but groups of them commonly share ‘chambers’ and collectively employ a barristers’ clerk, but it is one of the strangeness’s of English law that this agreement is binding in honour only, so that a barrister cannot sue for unpaid fees, although a solicitor who does not pay may be reported to the Law Society.

A barrister cannot be sued for negligence in the conduct of a case in court or matters which occur before a trial and which are essentially connected with the conduct or management of the case in court. Barristers are self-employed.

The work of a solicitor can be very varied, usually involving one-to-one discussions with clients though for in-house and large City commercial firms, teamwork – often in multidisciplinary groups – is the norm. Solicitors are usually employed by the firm or organisation for which they work. The office is their primary place of work, whether employed as a partner in a small high street practice or as an in-house lawyer with a multinational company.

Solicitor

Public people can go to a solicitor to ask for his/her advice. A variety of matters are bought to a solicitor to deal with, including conveyancing, most of a solicitors work is probate and lawsuit proceedings. Solicitors are the only method of gaining access to a barrister; however, professionals such as accountants may approach a supporter directly.

The relationship between a solicitor and client in contractual and such is subject to the ordinary law of contract. A solicitor can sue for their fees. If the solicitor is negligent the client may have an action against him for breach of duty for damages.

The solicitor must act in good faith in everything dealing with his client. A solicitor owes a duty of confidentiality to his client.

A solicitor is liable to disciplinary proceedings where his conduct falls short of a criminal offence before the Solicitors Disciplinary Tribunal. The tribunal members of the Supreme Court have the jurisdiction to strike his name from the name off from the roll or suspended him for misconduct.

Just like a barrister, a solicitor can be liable for contempt of court.

Barrister

A barrister can be called upon to prosecute in one case and defend in the other. A barrister must be content with paperwork. Paperwork comes in the pre-trail stages of a case. S/he may be asked to give written advice on a legal matter.

Barristers are not allowed to form partnerships but can share chambers and a clerk who serves other barristers. Barristers can be fired or imprisoned for contempt of court and can be sued for negligence by their clients at any time.

  • Barristers are specialist advocates trained to put arguments in court
  • They are independent and objective
  • Their specialist knowledge can make a substantial difference to the outcome of a case
  • They can also draft documents and advise on agreements

Barristers have a duty to the court as well as to their clients.

In criminal cases, if prosecuting counsel is aware of facts which support the defendant’s case or lessen the gravity of the offence, he must state them: it is his task to see that justice is done, and not necessarily to attempt at all costs to secure a conviction.

The court lawyer does not have direct with their lay clients, apart from conferences arranged and attended by the instructing solicitor, through whom all a barrister’s work must come. He is not permitted to advertise.

A barrister is expected not to refuse a brief in any case, unless he has a financial interest in the matter or has already been instructed by the opposite party.

Judges

The basic role of judges is to maintain and support national law.

  • They decide whether someone is guilty or innocence
  • They weigh the merits of claims between individuals and the state.
  • They make rulings on points of law, sum up cases, give judgments, and passing sentences.
  • They need to ensure that defendants, witnesses and victims are treated fairly and that those accused of having committed a criminal offence receive a fair trial.
  • Peoples rights are respected at all times and that only evidence which has been properly obtained should be admissible in court.

Judge’s role in civil cases

Civil cases include hearings in court which the public can attend. Hearings in the judge’s private room from which the public are excluded; and matters decided by the judge in private but on the basis of the papers alone, without any attendances by the parties or their legal representatives

A judge hearing a civil case

Before trying a civil case the judge will read the relevant case papers to become familiar with the details.

The majority of civil cases tried in court do not have a jury the only exceptions are; libel and slander trials. The judge will hear them by himself, to then decide by using the facts and applying them to the relevant law.

Judges also take an active role in managing civil cases when they have started to ensure they proceed as quickly and efficiently as possible.

Judges help encourage parties to co-operate with each other during court to ensure they settle the case. They also encourage the parties to use an alternative disagreement resolution procedure if it is appropriate. They also make sure the case is making progress e.g. staying on track.

Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear any live evidence. The issues may concern the law to be applied or the terms of the judgment to be given. Written and live evidence will be given by the parties and their witnesses and the live witnesses may be cross-examined.

The judge ensures that all parties involved are given the opportunity to have their case presented and considered as fully and fairly as possible. During the case the judge will ask questions on any point he feels requires clarification, or which he feels is relevant and will help with his decision but has not been covered. The judge also decides on all matters of procedure which may arise during a hearing.

Once the judge has heard the evidence from all parties involved and any submissions they wish to put forward, the judge will deliver his judgment. This can be immediately, or if the case is complex, his judgment may be given at a later date.

Civil judges do have the power to punish parties if they are in contempt of court but, generally, civil cases do not involve the imposition of any punishment on anyone. The claimant – the person who has brought the case to court – will have asked for some form of relief against the defendant.

This is likely to be damages to compensate them for the losses they say have suffered as a result of the defendant’s actions. Then, if the judge decides that the claimant is entitled to damages, he will have to go on to decide the amount.

Or the claimant may have asked for an injunction or a declaration – an order specifying the precise boundary between two properties about which the parties had never been able to agree. The task of the judge to is to decide on what is the appropriate remedy, if any, and on the precise terms of it.

When the judgment in the case has been delivered and the result is known, the judge must deal with the cost of the case – like the fees of lawyers, the court fees paid out by the parties, the fees of expert witnesses, the allowances that may be allowed to litigants who have acted in person, and the earnings lost and travelling and other expenses incurred by the parties and their witnesses in getting to and from court and in preparing for the case.

The judge’s decision on this part of the case will be highly crucial to the parties. He may decide that the unsuccessful party should pay only a proportion of the successful party’s costs or that each party should bear their own costs.

Judge’s role in a Crown Court criminal case

A Circuit Judge has control over a criminal trial and is responsible for all matters of law and making sure that all the rules of procedure are properly applied.

A judge hearing a criminal case

Before a criminal trial starts the judge will familiarise themselves with the details of the case by reading the relevant case papers. This will include the statement which sets out the charges on which the defendant is to be tried, witness statements, exhibits and documentation on applications to be made by any party concerning the acceptability of evidence in the trial.

The judge’s role is to supervise the range and swearing in the jury, giving the jurors a direction about their special place in the trial in deciding the facts and warning them not to discuss the case with anyone else.

When the trial has started the judges role is to ensure that all parties involved are given the opportunity for their case to be offered and considered as fully and fairly as possible. The judge controls the way the case is conducted in accordance with relevant law and practice. The judge makes notes of the evidence and decides on legal issues to whether evidence is acceptable and valid.

When all evidence in the case has been heard the judge’s summing up takes place. The judge sets out for the jury the law on each of the charges made and what the prosecution must prove to make the jury sure of the case. The judge goes back over his notes that s/he made during the course of the trial and reminds the jury of the key points in the case which highlights the strengths and weaknesses of each side’s argument. The judge then gives directions about the duties of the jury before they retire to the jury deliberation room to consider the verdict.

If the jury finds the defendant guilty then the judge will decide on a suitable sentence. The sentence is influenced by different factors. Which are;

  • The conditions of the case
  • the impact that the crime has had on the victim
  • The relevant law especially guideline cases from the Court of Appeal.

The judge takes into account the mitigation and any reports and references on the defendant. When the judge has considered all of these factors will the appropriate sentence or punishment be definite.

Task 4

Roles and functions of lay people and lawyers.

Lay people are individuals without legal training whereas lawyers are skilled professionals. Lay people can be called jurors and magistrates. Lay people can be part of tribunals. Lay people Using lay people helps reduce technical language and makes the law accessible to ordinary people. Also means that decisions are made by ordinary people from a variety of backgrounds Helps promote the idea of a society free from state control. A Lawyer is an individual who goes to court everyday and stands before a judge defending the freedom of another individual. This is true in some cases; however, there are many different types of lawyers with a variety of job responsibilities and duties. No matter what type of lawyer one may be they ultimately have an extremely important role in the lives of others.

Responsibilities of a Lawyer?

Lawyers have many different responsibilities. A lawyer represents clients in court; intervene to resolve conflicts, business transactions and other important legal proceedings or agreements where the law will be talked over.

The lawyer will meet with the client before, during and after legal dealings to ensure that the client completely understands all aspects of their case. The lawyer is an individual who represents another in all matters where legal interpretation is advised and considered vital.

Specific Duties of Lawyers?

A lawyer has many duties significant to their profession. One of the most important duties that a lawyer must perform in their line of work is to maintain client . Lawyers always represent someone, an individual or entity. This means it is important that the lawyer reports all progress and important information to their client in order to keep them well up to date.

Another particular duty of lawyers is to give in-person representation at court hearings and other legal proceedings. Whether the lawyer is involved with criminal litigation or civil litigation, there is most likely going to be some form of legal proceeding that they must attend on behalf of their client. The lawyer will speak on behalf of the client and give advice to the client on how to continue.

Lawyers don’t just appear in court and argue single-mindedly on behalf of their client. There is a mass of background work which lawyers must do in order to sufficiently prepare a case or pursue a legal matter. There are lots of legal papers that need to be drafted and even though lawyers assistants and legal secretaries know how to draft some of these documents, there are still many lawyers who choose to do so themselves.

Lawyers keep in with their clients as well as spending a lot of time talking on the phone, discussing terms of agreements, sending email and mail letters and faxing significant documents to and from involved parties. Lawyers do a lot of research. Which involves research on statutes, procedural rules, facts, relevant documentation and more. Lawyers spend a lot of time reviewing and compiling research to aid them in the representation of a client.

What Qualities Must An Individual Have In Order to Be An Effective Lawyer?

For an individual to be an effective Lawyer, he/she must have certain Qualities and attributes in order to do extremely well in this profession. One important feature which lawyers should possess is that of communication. A lawyer who can communicate well is one who is likely to succeed against opposing parties in court and impress and put their client at ease as well. A fluent lawyer is one who will see results.

Intelligence is another important quality a lawyer should have. For a lawyer to have a positive quality it will ensure that the person representing the client is one who is smart enough to know what to do, when to do it and how to go about getting the results which are necessary to win the case and/or abide by the client’s wishes. A lawyer who uses their brain is more likely to see the best possible outcome from a case.

Good understanding skills are important if you are a lawyer. Statutes and procedural rules are hard to understand at times and those who have good comprehension skills may do well at being a lawyer as they will have to read the relevant documentation much less than those without good comprehension skills.

It is important that Lawyers have a good personality and are willing to work well with others. Persistent determination is also important to resolve matters. Persuasiveness is another important quality to have as the legal profession is based around lawyers persuading individuals to see their point of view, a lawyer must be persuasive in their speech and tactics. A lawyer who can get their point across and persuade individuals to acknowledge it is one who will see many victories.

Layers roles in society are more important as they are acting as a voice for others.

It is important that lawyers are able to communicate legal issues to laypeople who are involved in particular cases. As the decisions are made by those from different backgrounds.

In Jayne’s case the use of lay people will reduce the strict interpreted language and makes the law accessible to ordinary people like her. A lawyer will represent Jayne in her case to help any conflicts and her with any legal proceedings or agreements that will be talk over. The lawyer will meet Jayne before the hearing in the court to make sure she understands what will happen.

D1 Task 5

The effectiveness of lay magistrate’s ad the jury in the English criminal courts.

Using lay magistrates has been recognised to be effective as when trying a defendant by 12 people who have been randomly chosen helps to maintain a justice system that is fair and independent.

Lay Magistrates help to maintain the principle of the legal system. It is effective because of people’s participation from ordinary people to see the management of justice.

Lay magistrates are unpaid volunteers who work part time – 26 half days per year this shows dedication.

Lay magistrates are trained before they sit in a court proceeding. These are the four sections of training:

  • Managing yourself – you need to be able to manage yourself, this means you need to be able to focus on some of the basic aspects of self-management in relation to preparing for court, conduct in court and on going learning.
  • Working as a member of a team – you need to be able to work as part of a team to help make decision making effective in the Magistrates’ Court
  • Making judicial decisions – you need to be able to make judicial decisions which means to focus on impartial and structured decision making
  • Managing judicial decision making – you need to be able to make judicial decision making which appeals only for the chair of the bench and concentrates on working with the clerk, managing the court and ensuring effective, not biased decision making

Advantages of using Lay magistrates

  • Local Knowledge – Lay Magistrates come from the local area and therefore have local knowledge and understanding within that area which will help them make reasonable decisions in the court. This helps reduce any unfairness against magistrates as they are being honourably upright to the law system.
  • Lack of Bias – Having a bench of three Magistrates helps to avoid bias and gives a balanced view. 12 people listening to facts without legal knowledge.
  • Gender Balance – Lay Magistrates come from a wider cross section of society than professional judges. In particular there is greater gender balance with 49% of Lay Magistrates being female.
  • Saves Money – using Lay Magistrates is much more cost effective to gain justice than using juries they are only paid expenses saving the tax payer money. They are working for free, this saves the government money which can then be spent on other subjects such as hospitals military and the police force. A trial that is heard in the magistrate’s court is cheaper and more efficient than a trail in a crown court because they use lay people. Working for free also shows their dedication to the job.
  • Saves Time – Lay Magistrates act as a filter meaning only the most serious cases are heard in the Crown Court.
  • They are more involved that judges

Disadvantages of using lay Magistrates

  • Prosecution Bias – Conviction rates in the Magistrates’ Court are much higher than the Crown Court. They are also to be regarded with suspicion. Therefore the accused party is most definitely going to choose a jury style proceeding.
  • Too Middle Class – The middle classes are over represented on the bench. Far too few working class people have the time to become Lay Magistrates.
  • Middle aged – middle minded
  • Inconsistency – Sentences vary greatly between different Magistrates’ Courts and even between different Lay Magistrates in the same court. There are also inconsistencies in the granting of bail. They are more likely to declare some body guilty.
  • Over Reliance on the Clerk – Lay Magistrates have little legal knowledge and rely too heavily on the Clerk of the Court.
  • There is also a lack of consistency between benches as magistrates are only chosen from those that come forward.
  • Lay magistrates serve for a long time and so will get used to the same cases. They become known with what excuses people use and can see through them. This could also be seen as an advantage as well. They may also get to know the local criminals as they see them come up before their bench time and time again. This would make it difficult for them to judge them without being opinionated by their previous convictions. If you happen to see the same guy up for the same sort of cases, it would difficult for you to think that he could be innocent if you have found him guilty and he’d pleaded guilty every time before.

Effectiveness of the jury in the English Criminal courts.

The advantages of juries within the English criminal system

The English legal system has chosen to use juries in their judiciary system for over 1000 years as it creates lots of benefits.

Public participation – is one of the main principals for having a jury in the English legal system. A jury lets ordinary people to partake in the administration of justice which means the verdict is seen as a representation of societies view rather than the view of just one member of the judiciary system. Jury service provides ordinary people with a lesson in citizenship and public contribution. So therefore having a jury present in some trails is seen as a fair system.

The defendant and prosecution will always strive for justice therefore they may believe that the selective judiciary system made up of qualified people from roughly the same back ground may not be able to provide them with this, this is why public participation is needed as it ensures that justice is not only done but it is seen to be done.

Certainty

Juries provide definitely, as they only have to deliver a guilty or not guilty verdict. This leaves no room for confusion and can’t be misinterpreted which means the decision is not open for debate. This is very important as it ensures there can be no grounds for appeal on the jury’s verdict unless it was made for the wrong reasons and this is very hard to find out as the juries decision is made in secret.

The case was obviously quashed as the court fell able to inquire into the event as they had taken place out side of the court. Obviously this is only one example of a rare case and the probability of a challenge to the jury’s verdict is very small.

Jurors are able to judge on the sense of right and wrong which is reinforced by the fact that they do not have to explain through reasoning for reaching a certain verdict. This means they are given protection from billing and oppression some lines exercised by the prosecution, therefore enabling them to make a fair decision based on their beliefs.

Juries have the final right to decide a verdict also protects them in certain ways against domination or bulling.

Jurors come from a wider cross section of society than lay magistrates whichenables them to give the views of society as a whole. This also ensures that the jury are able to bring knowledge and experience of different backgrounds as they are thought to have different Life experiences to the usual stereotypical member of the judicial system, who are believed to be white males from a middle class background, who attended private schooling. It could also be argued that the jury could sympathize with the both parties is the case as the jury would have local knowledge and understanding of their areas problems.

Twelve views are better than one 12 people from the public would enable the defendant to see the decision reasonable as it is made by 12 people rather than just one person.

Independence of a jury it is important as it enables a judgment to be fair to the people involved this creates public confidence.

Impartiality

Most juries should be impartial, as they are not usually connected to other cases. As the jury is selected from a cross section of society, this ensures that extreme views will cancel each other out. This is seen to be fairer as it provides a balance in opinions rather than a verdict than is made by one person who could have extreme views, therefore giving an unbalanced opinion which is clearly unfair.

Disadvantages of juries within the English, legal system

Time and expense – cases that are heard by a juror is lengthier and more expensive. It must be taken into consideration that a jury trial is more expensive than that of a trial in the magistrate’s court.

A Crown Court costs the taxpayer £7400 per day, whereas magistrates cost £1000. Juries spend a lot of time waiting around to be summoned into the court room, this time would not be wasted if cases were heard by qualified judges. Juries need the law explained to them, to be able to make reasonable judgement, this takes up further time which would be needed if the case was dealt with by a qualified person within the judiciary.

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