Critically analyse the effectiveness of lay people and compare and contrast the roles played by the judiciary, lawyers and lay people in the English legal system; making reference to their purposes. The contribution of almost all court personnel is essential in the effective functioning of the English legal system. The most notable include: the judge or magistrate, the jury, defendant, plaintiff, barristers, solicitors and the crown prosecutors.
They all contribute to the functioning of the legal system in different ways and the effectiveness of their contribution can be assessed with references to legislation, case histories and various law reports. The term ‘lawyer’ has become an almost standard term that is heard in daily use and The Oxford English Dictionary defines it as ‘a member of the legal profession’1 but this masks the point that there is no single legal profession but instead there are two principle professions and some secondary ones.
In England and Wales there are commonly thought to be two branches of the qualified legal profession: barristers and solicitors. However there are other people who will consider themselves to be ‘a lawyer’ in other jurisdictions. The two principle professions are being joined by other types of ‘lawyers’ such as legal executives and paralegals and although they may not necessarily hold an official legal qualification they are increasingly becoming an important part of a functioning legal system.
They are governed by the Institute of Legal Executives (ILEX) and certainly view themselves as a branch of the legal profession. Barristers, especially those who practice as advocates, are often referred to as ‘counsel’. The stereotypical view of a barrister is that they spend most of their time in court; in part because once they are qualified a barrister has rights of audience in every court. However this general impression is not strictly accurate.
Whilst it is true to say that barristers specialize in litigation and advocacy, it does not mean that all of their time will be spent in court as one may expect from criminal and family practitioners, this depends on their area of practice. It is however true to say that advocacy is the most important tool of a barrister but it need not be restricted to spoken advocacy and a considerable amount of written documentation will be prepared during their work.
The majority of their preparation, when taking a case, will involve undertaking extensive research on a specialist area and then presenting this advice to a solicitor and those instructing them. If, after considering the advice of counsel, it is decided to proceed with litigation it is likely the barrister will also be involved in the drafting of the various documents needed including claim forms, particulars of the claim, and defences and questions between the two parties. Solicitors, to an extent, have the right to pick and choose their clients.
Barristers in independent practice on the other hand are bound by their code of conduct; ‘the cab rank rule’ which is described as: ‘A self-employed barrister must in any field in which he professes to practice in relation to work appropriate to his experience and seniority and irrespective of whether the client is paying privately or is publicly funded, accept a brief. ‘2 Personal preference cannot decide what case a barrister takes. Lord Irvine QC describes the rule as: “The duty to appear for the Yorkshire Ripper or any other defendant against whom there may be a hostile climate of public opinion.
In civil cases, it is also his duty to appear not only for a particular interest group with which he might prefer to identify but for every interest group”3 The second principle branch of the legal profession is solicitors who are regulated by the Law Society for England and Wales. Many people are under the false understanding that solicitors do not specialize. Whilst those within a small high street firm may undertake a variety of work there is still the ability to undertake a degree of specialism with one solicitor perhaps focusing on crime and another on family.
Within large firms there is arguably even more scope to specialise with many firms being dedicated to one form of work, most usually company or commercial law and the specifics involved in that area. Solicitors are also employed by the crown and are now more widely recognised in some inferior courts as having rights of audience. Solicitors have a more flexible practice than barristers although when they first qualify they have very limited rights of audience. This encompasses all matters in the magistrate’s court and county court.
Within the Crown Court they may only appear for preliminary matters or for appeals against the decisions of magistrates. In the High Court a solicitor has no automatic rights of audience in open court but can be heard in chambers however a solicitor can gain higher rights of audience by taking additional training. A judge or magistrate is always present in court cases and plays a key role in the functioning of the court system. Judges specifically sit in The Crown and County Courts, The High Court, The Courts of Appeal and The Supreme Court.
The role of the judge is to adjudicate in cases by applying the law on the facts presented and to instruct the jury. When there is no jury, the judge hands down sentences and rulings on facts based on the evidence. As a member of the judiciary judges also have to interpret statute laws, laws made by parliament, and apply common law. In handing down rulings and sentences, judges also have a duty not only to follow precedent but in some cases also make precedent. In doing this, a judge must always remain impartial, fair and be seen to carry out justice.
Their contribution in the court system is of vital importance because even if they are not the direct decision makers in some circumstances, it is their guidance that will eventually influence the ultimate decision. The position of a judge is not one that is taken by employment but is rather an office that the holder possesses during their tenure. Due to this, their credibility and character is always under scrutiny to ensure that their contribution is always carried out within the judicial codes of practice. The most senior judges, listed as ‘senior judges’ in s.
60 of The Constitutional Reform Act 2005, are judges that combine not only a judicial post but also an administrative role. These are judges who sit, as of right, in the higher courts, i. e. the High Court and above. Superior judges have unlimited jurisdiction in that their jurisdiction is not limited specifically by statute. In practice this means that they can use ‘inherent jurisdiction’4, or common law powers, and unless a rule of law or statute limits the jurisdiction of the courts in a particular way, the judges have the right to act as they deem fit.
Inferior judges are so called because they do not exercise unlimited jurisdiction but instead their powers are defined by statute. Accordingly if the statute does not prescribe any authority then they may not exercise any jurisdiction. The principle inferior offices are: circuit judges, recorders and district judges. Laypersons are members of the public. They are legally unqualified personnel, making decisions on individuals’ guilt or innocence. Their participation in the criminal justice system is based on the principle that an accused should be judged by his peers.
Such lay-persons are either members of the jury or magistrates. They are not paid for their involvement but do receive expenses and a contribution to possible loss of earnings if appropriate. Therefore some may say it is cheap justice and perhaps potentially dangerous to leave such important decisions that may affect people’s lives to seemingly ordinary members of the public, some of whom may not fully understand the law and what is being argued. However, others say that it is the crux of British justice, ‘Hallowed by time’5 and essential to the system of criminal trials.