Legal Personnel Essay Sample
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- Category: justice
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Introduction of TOPIC
In any justice system the key figures that make sure justice is served, include Lawyers, Judges, Magistrates and juries. Unlike in the United States of America, “Lawyers” in the British legal profession are divided into two branches; barristers and solicitors. Both the former and the later specialize in advocacy, and although both jobs are similarly highly demanding in their own right, there is a distinction between the role of a barrister and a solicitor. Prior to the Courts and Legal Services Act 1990 (CLSA) and the Access to Justice Act 1999 (AJA), a barrister was regarded as superior to a solicitor, because only barristers had rights of audience.
However this has changed and if a solicitor completes the required training, they as well can exercise rights of audience. When it comes to addressing the process of becoming a solicitor or a barrister, in order to distinguish the training that is required in both fields of practice and understand the roles of both lawyer’s, it is better to address the professions with their differing titles, rather than regard them as one. This paper will evaluate the roles and training of both solicitors and barristers, as well as evaluate the profession of a judge, which is regarded as the core of any legal system (Elliot & Quinn, 2009); in regards to the appointment process and the issue of accountability. It will also address the role of a lay magistrate and the jury; in order to provide an understanding of the advantages and disadvantages of these figures in the justice system.
Be it would be solicitors or barristers, all perspective law students have to go through a specific academic route in order to qualify as lawyers. Traditionally the route to law begins with a three years law undergraduate course (LLB), [Elliot & Quinn, 2009] where students will study various modules to familiarize themselves with the legal system. In some universities student might be given the choice of selecting which modules they would like to study, however regardless of the modules they choose to study, they would have had to study core modules such as Public Law; which covers Constitutional and Administrative Law, including Human Rights; Law of the European Union; Criminal Law; Obligations, which include Contract, Restitution and Tort Law; Property law, Equity and the Law of Trusts, (www.barstandardboard.org.uk).
Achieving this degree will qualify a student to be recognized, by both the Law society for trainee solicitors and the Bar council for trainee barristers. However there are other alternative routes, such as a Postgraduate Diploma in Law (PDL) also known as Graduate Diploma in Law (GDL), (www.legalweek.com); this is a one year (or two years part-time) conversion course for students who already have a degree in another subject but want a career in law. Although the GDL is for students who already have a degree, there are also other alternatives such as the Common Professional exam (CPE); for mature students with achievements in other fields. Although this course is not recommended by the Law society, as they would rather students gain access into the legal profession through the conventional route as an undergraduate, (Elliot & Quinn, 2009). However www.legalweek.com suggests that an increasing amount of law firms actually prefer to employ students that have the CPE academic background, on the bases that the CPE promotes independence, because of its nature as an advanced course, and the fact that CPE students already have life experiences.
On completion of the undergraduate study, students will either enrol onto the Bar vocational Course (BVC) for barristers, or the Legal Practice Course (LPC), for solicitors. For students who enrol onto the BVC they are required to have at least a 2:1, and for acceptance onto the LPC there is no minimum qualification, however it would be beneficial to at least acquire a lower second class degree (2:2), in order to be recognized by the Law society, because with increase in the amount of professional solicitors, it is obvious that the competition for places on the course will be intense which could result in students with lower grades being over looked, (Law Society website. Trends in the solicitor’s profession: statistical annual report. 2004. Cited in Elliot & Quinn, 2009. p.180).
The (one year) BVC for barristers will cost approximately £12.000, as opposed to the (one year) LPC which costs £9.000. Unlike the degree programme, both the LPC and the BVC cannot be funded by the government. Students on the LPC have a few options regarding funds like bursaries from the Law Society; some students will even get offers from law firms who want to assist them with finances, on the bases that they would work for the firm on completion of the LPC. However at this point it gets much difficult for the students who want to enrol on the BVC, as there are only 500 spaces a year on the course and students who apply have to rely on sponsorship from their Inns of Court. The Inns have only £4 million for sponsorship between them and only 25% of the 2000 students, who apply for the BVC every year, will receive sponsorship from their Inn. Which means students will have to loan money to pay for the course, (Elliot & Quinn, 2009).
At the Bar there are four Inns of Court from which students have to join one; Inner Temple, Middle Temple, Grays Inn and Lincolns Temple; all the Inns provide professional accommodation for barristers and law libraries. One key function of the Inn is the responsibility for calling barristers to the Bar. Anyone wishing to train at the Bar must join one of the Inns. Every Inn provides minor disciplinary tribunals for complaints against barristers as well as promote collegiate activities in which pupils will be required to work together in order to encourage practical team work, there are also dining facilities, common rooms and gardens, (Elliot & Quinn, 2009). The BVC which from autumn of 2010 will adopt the term Bar Professional Training Course (BPTC) can be taken at one of the eight Inns of Court schools in the country; the contents of the course are split into two areas; knowledge and skills.
The eight areas of skills will compromise of tuition on interviewing skills, oral exercises, opinion writing, legal research, and negotiation, etc. On the other hand the five areas of knowledge will include civil litigation and remedies, evidence, professional ethics and criminal litigation, (www.barstandardsboard.org.uk); the purpose of this mixture of practical and theoretical training is so barristers will have knowledge of what to expect when they are faced with a real court situation in the future. After the BPTC students will be called to the Bar where they will serve a year pupillage; this is the final stage of training. They will be required to serve under a pupil master who is an experienced barrister, all their travel expenses will be met and they will receive a salary of no less than £833.33p a month (www.barstandardboard.rroom.net) or £10,000 a year, (Elliot & Quinn, 2009).
The twelve months of pupillage include the non-practicing six months which could be referred to as the theory stage; pupils will accompany their pupil master in the chambers and on court trips in order to learn a few skills in advocacy and paperwork, the final six months will be practical and pupils will embark on legal services and advocacy (on their ow
n) with the permission of their pupil masters. The BVC in all is
For the perspective solicitors, the next step is to enrol on the LPC as a student, with the Solicitors Regulation Authority (SRA); who will confirm that you have been recognized as graduate with a relevant law degree, (www.lawsociety.org.uk). The course structure will include core areas, elective areas, pervasive areas, skills areas and compulsory areas. The process of training for solicitors is not as complicated or expensive as that of barristers; it is a straight forward one year course that will lead to an apprenticeship. On completion of the LPC students must work in a firm as apprentices for two years before they are able to practice on their own, or form a partnership, (Elliot & Quinn, 2009). However a survey carried out by the Law Society pointed out that the job of an apprentice is demanding, because a third of them work for 50 hours a week, (Elliot & Quinn 2009, p.182).
Although the profession of a solicitor and a barrister have become very much alike, there are still a few areas of practice that are limited to solicitors. For example barristers have to work independently, while solicitors can form a partnership in a firm. However this can be risky because if a solicitor is liable, his/her partner will automatically be liable. Since 2001 solicitors have had a choice of forming Limited Liability partnership (LLP) which means every partner is solely responsible for his or her actions. Other areas of practice such as conveyance are also limited to solicitors, and other experts in the field, (Elliot & Quinn 2009).
A Barristers main duty is to represent their clients in court, because they are professional advocates. This distinguishes them from solicitors; who on the other hand spend a majority of their time in offices doing paperwork. Barrister’s are also involved with paperwork; but not of the same capacity as solicitors. However the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, have now paved the way for solicitors to acquire full rights of audience; provided they have completed the required training, (www.barcouncil.org.uk). Although the job of a barrister is demanding and they are not allowed to work in partnership with other barristers; even though they are permitted to share chambers.
In order to make sure clients are satisfied with the services of both barristers and solicitors, the Law society and the Bar Council have separate bodies that regulate and represent them. The Bar Standards Board deals with the complaints concerning the work of barristers and the Legal Complaints Service deals with complaints concerning Solicitors. The former regulator for solicitors (Solicitors Complaints Bureau) was controlled by the Law Society and therefore criticised for handling complaints inefficiently and slowly (in favour of the solicitors). However the Legal Complaints Service was introduced along with its new scheme of lay members who are not part of the Law society, (Elliot & Quinn, 2009).
The Legal Services Ombudsman (LSO) on the other hand oversees the handling of complaints by the various regulatory bodies. If a complainant is not satisfied with a regulatory body they can appeal to the LSO for a reconsideration concerning a complaint. Solicitors as well as barristers can also be sued for negligence where there is evidence that they have not performed properly. This was out lined in the case of Arthur JS Hall & Co v Simons (2000), and as a result both professionals are no longer immune from liability, (Martin, J. 2006). It is important that solicitors and barristers can be held accountable for their works; because they get paid for their services and should not be allowed to get away with neglecting a client’s case.
Evaluate the selection and appointment of judges and how their accountability is maintained.
On the other extreme of the criminal justice system are Judges, magistrates and juries. The one thing they all have in common is that they try cases. Judges are selected from a field of lawyers and their duty is to apply the law to the case, whilst magistrates are a jury can compromise of unqualified and qualified citizens, who are required to try cases based on the facts that have been presented before them, in the court. To become a judge, it could be suggested that the academic route is the same as that of lawyers, because judges are selected from a pool of lawyers. All judges, regardless of what court they preside in, are appointed by the Queen on the recommendation of either the Prime Minister who in turn was advised by the Lord Chief Justice (the head of the judiciary), or by the Lord chief Justice himself, (Elliot & Quinn, 2009, p.152).
The former judicial appointments procedure for judges did not have a fixed criterion, so both the candidates and the clue what they were being judged on. It was also based on social networking, therefore leaving it open to class discrimination and as a result the majority of judges were white upper and middle class males. This resulted in the criticism of the old system of appointment by Helena Kennedy a QC; she concluded that the system was infiltrated by gender and racial discrimination, which meant that there was little chance for people of ethnic minorities and female’s becoming judges. The current selection of judges is now based on merit and good manners and candidates are assessed based on their skills and attributes rather than race or gender, (Elliot & Quinn, 2009, p.154).
According to Elliot & Quinn, 2009, not all countries share the same method of appointing judges. For example in France the profession of a judge is a career path on its own; whereby the profession has its own academic route and training process. Ideally judges should have a few years of intense legal knowledge and experience of the legal system; a trustworthy background that could be researched and reliable referees that could provide an honest account of their character. In all the French system could be flawed, because as a judge who is looked up to by society for justice, there is a need for one to have passed through stages in the justice system that could justify ones position as a judge with experience. In regards to accountability the judiciary have several provisions to ensure that Judges are accountable for legal errors and unacceptable personal conduct.
This can be through the media, scrutiny by the legislature or the Office of Judicial Complaints. These means of accountability can be provided through annual reports by the Lord Chief Justice from the judiciary, to the Queen, and select committees in the legislature scrutinizing heads of the different jurisdictions in the judiciary. However in order not to cross the boundary between the judiciary and the legislature this is done rarely. In terms of accountability towards the civil society, the office of Judicial Complaints deals with all the matters brought forth by members of the public. In addition, the media can also be a form of maintaining accountability, as judges are required to give a public account of their proceeds in court.
Evaluate the role of a lay person in the justice system and the advantages and disadvantages.
When it comes to the position of magistrates and juries as a form of unqualified judges, it seems as though the use of magistrates for 95% of criminal cases has decreased the role of the jury in the justice system. Most common crimes that are committed; such as theft are classified as summary offenses; therefore they are tried in the magistrate’s court, as magistrates only deal with the least offences. It has been suggested that there is no need for the jury in the justice system as they only try one percent of criminal cases (indictable offenses) and one percent of civil cases such as defamation, Elliot and Quinn, 2009, p.221). As voluntary workers magistrates are not paid for their duties; however they have the right to claim for loss of allowance and travel expenses. On the other hand the jury which constitutes 12 randomly chosen individuals from an electoral register requires a lot of preparation therefore making it expensive to summon and reimburse the 12 people needed. Jurors do not need any relevant qualification; however they need to have a clean criminal record; be able to speak the relevant language (English) and have good reasoning.
The only people who do not qualify for jury service are those who are mentally unstable. To be excused from jury service one will need to have a credible reason or have a duty that is of more importance than jury service. Unlike magistrates who have been criticized for the fact that they are mostly white males from middle class backgrounds. It is arguable that the jury is a much reliable system in terms of representation; because of the diversity in terms of age, sex and ethnicity; as jurors can be between the age of 18 and 65. The use of a jury also benefits the jurors as well as the justice system, as it makes the public aware of the procedures that are taken by the state in making sure offenders as well as victims needs are addressed in an unbiased manner, as well as given the opportunity to defend themselves.
In addition the jury is a significant representation of the society as a whole in the justice system; making jury trail fair, (Elliot & Quinn, 2009) With magistrates there is a possibility of a defendant or victim feeling as though he/she has been treated unfairly as a result of their race, if they are being tried by one person of another race; who is not in the position to judge by virtue of qualification and experience, but merely volunteer, (www.direct.gov.uk).
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