(p. 141) 6. Personnel of the English Legal System
● The English legal system (ELS) is composed of a multitude of different professionals, both legal and lay.
● Barristers and solicitors were traditionally two very distinct roles in the ELS. Nowadays, a fusion of roles has occurred, meaning that the two professions are not as different as they formerly were.
● Judges are not employees of the state; rather, they hold office.
● Lay personnel include juries and magistrates who are responsible for trying cases in the Crown Court and magistrates’ court respectively.
Within this chapter we shall be concerned with the following:
• judiciary—this refers to the various judicial ‘offices’ and ‘office holders’. For the purposes of simplicity, this matter involves the discussion of judges;
• law officers—these are the individuals responsible for the operation of the ELS and include such persons as the Attorney General and the Solicitor General;
• court staff—these are the individuals who are involved in the day-to-day running of the ELS and include such persons as clerks, ushers, legal advisers, and many others;
• laypersons—this term is used to describe a special class of individuals, namely magistrates and juries. The ELS could not function without either of these classes, and thus they deserve their own category.
This chapter will now go on to consider each of these classes in turn.
(p. 143) Legal professionals
The legal profession, as it may be called, is concerned with those individuals often referred to as ‘lawyers’. ‘Lawyers’ is a general umbrella term which traditionally covers two distinct professions, namely solicitors and barristers. In more recent times, two new and emerging professions (legal executives and paralegals) have increasingly become known as lawyers in their own right. The judiciary, for our purposes, is not considered within the category of ‘lawyers’ due to the holding of an office, as opposed to the holding of a practice (explained in greater detail in ‘The judiciary’ later in this chapter).
Each of these legal professionals may hold some form of advocacy rights. Advocacy refers to the ability of an individual to appear in court and present the case of their respective client. The phrase ‘rights of audience’ is often adopted to demonstrate whether a particular individual has the right to exercise advocacy in court. A further phrase that is used is that of ‘higher’ rights of audience, which refers to the situation that an individual holds advocacy rights in the lower courts (e.g. in the County Court or magistrates’ court); however, they may not practise in the more senior courts (e.g. the Crown Court or the appellate courts) unless they obtain ‘higher rights’. As will be demonstrated below, barristers hold these higher rights of audience from qualification; solicitors, on the other hand, must undertake specialist training which will allow them to ‘appear’ in the more senior courts. The advocacy rights of each professional will be dealt with later in this section.
Before considering these four legal professionals, it is first important to consider legal education and how one may become a legal professional.
In April 2017, the Solicitors Regulation Authority (SRA) announced that the pathway to becoming a solicitor would change. This has had a direct effect on the route to qualification for solicitors. In that respect, it is necessary to detail the traditional route to qualify. For the time being, the traditional route remains the same for a student who wishes to proceed to train to become a barrister.
Since the twentieth century, in order to practise as a ‘lawyer’, students must undertake a law degree (Legum Baccalaureus—LLB) and must complete the six ‘foundations’ of legal study. (There remains debate as to whether there are seven foundations of legal study (contract and tort being separate subjects) or six—the SRA contend that there are six, thus that is the approach taken here.) These are:
• criminal law;
• law of obligations (contract and torts) law;
• European Union (EU) law;
(p. 144) • equity and trusts law;
• land law;
• public law (constitutional and administrative law).
If a student has not completed an undergraduate law degree, but rather, has completed some other form of degree, such as History, they will be required to undertake a conversion course. This conversion course is known as the Common Professional Examination (CPE), which generally awards students a diploma (thus the title Graduate Diploma in Law (GDL)).
The GDL is an intense course focused on providing students with the knowledge of the foundational subjects in one year. Once the law degree or GDL is complete, the student may then proceed to their vocational study.
New SQE pathway
From autumn 2021, the SRA will introduce the Solicitors Qualifying Examination (SQE). The new pathway allows any individual with an undergraduate degree (which need not be in law) to become a solicitor. In order to do so, the student must undertake and complete the Solicitors Qualifying Examination (SQE), which is designed in two stages:
• SQE1: consists of three multiple-choice-based assessments, covering ‘functional legal knowledge’ and two practical legal skills assessments. SQE1 is concerned with the substantive legal knowledge traditionally gained through an undergraduate law degree and the Legal Practice Course (LPC);
• SQE2: consists of vocational-based assessments, such as client interviewing and legal drafting. Students will undertake a total of 14 assessments in order to complete the SQE2 assessment.
The SQE is not a course (like an LLB or GDL); it is merely a set of assessments which are required to be undertaken to qualify. In that regard, many universities are creating, or considering the creation of, ‘SQE-preparation courses’.
Figure 6.1 demonstrates the pathways that students may take upon completing their degree or conversion course.
In more recent times, there have been other methods by which individuals may come to practise in law. We shall consider legal executives and paralegals later. (p. 145)
Solicitors are often the first point of contact for individuals seeking legal advice. Solicitors work in partnerships known as ‘firms’. A qualified solicitor is admitted to the ‘Roll of Solicitors’ by the Law Society.
Quite often, solicitors are considered as ‘general practitioners’ of the law, having an in-depth understanding of all areas of law, somewhat akin to a medical General Practitioner (GP). This could not be further from the truth, however, as solicitors generally specialize in one or two particular fields and their area of specialism often depends on the work of their firm in general, for example a criminal law firm, a family law firm etc. In addition, solicitors may engage in work which is ‘non-contentious’, such as conveyancing, wills and probate, or may engage in more ‘contentious’ work, such as criminal or family litigation. In this respect, one may also use the phrase ‘litigious work’ and ‘non-litigious work’.
(p. 146) A solicitor’s role was traditionally based in the office of the firm. We refer to their traditional role as ‘pre-trial work’, given that they will be responsible for the advising of clients, the drafting of legal documents, the gathering of evidence and collection of witness statements, and, in the case of contentious work, the general preparation of the case in anticipation for trial.
Nowadays, however, the role of a solicitor has been expanded to also include an ability to appear in the courts as a trial advocate (known as a solicitor advocate). Prior to the Access to Justice Act (AJA) 1999, barristers held the monopoly over the rights of audience in the senior courts. Solicitors did have the right to appear in certain courts such as the County Court and the magistrates’ court; however, they were forbidden from appearing in the senior courts (i.e. the Crown Court, High Court, and appellate courts). The Courts and Legal Services Act (CLSA) 1990 was the first major step in extinguishing this monopoly held by barristers. Section 27 extended rights of audience to persons granted such by an ‘authorized body’, which included the General Council of the Bar and the Law Society. Intake was low, however, thus leading to ss37–38 AJA 1999, which granted further rights of audience to solicitors and other professional groups, other than solicitor and barrister, including the Institute of Legal Executives (ILEX) (now the Chartered Institute of Legal Executives (CILEx)) and the Chartered Institute of Patent Agents, upon completion of relevant training. The 1999 Act was subsequently repealed and replaced by the Legal Services Act (LSA) 2007, which came into force on 1 January 2010. This Act further extended the rights of non-barristers to practise advocacy in the senior courts. Despite this extension of rights of audience to non-barristers, applications to the Bar remain high and in many of the most serious, complex, or challenging cases, a barrister will continue to be instructed over his higher-right advocate counterparts. Figure 6.2 provides a useful timeline of the higher rights of audience granted to solicitors.
Qualifications (traditional route)
As noted above, as a result of the introduction of the SQE, the qualification route for a solicitor is now rather more complex. It was traditionally the case (and remains the case for a few more years) that in order to practise as a solicitor, an individual must first undertake their law degree or GDL and then undertake the Legal Practice Course (LPC). The LPC is a year-long (full time) intensive course instilling hopeful solicitors with the necessary knowledge (p. 147) for their first few years in practice. The LPC is comprised of certain ‘core modules’, such as criminal and civil litigation, solicitors’ accounts, and drafting. It is also comprised of certain ‘optional modules’, such as family law, employment law, and commercial property law. Many students first seek funding before they undertake their LPC. Funding is available by scholarship at some institutions, but is generally provided by the firm with whom they will undertake their training contract, should they be lucky enough to secure one. Should a student undertake the LPC without a training contract, they run the risk of being disappointed after the work and money they have invested in the course, given that the training contract is a key requirement of the qualification process.
Once the student has completed the LPC, they must then undertake a training contract (TC), which generally lasts for two years. The student will be supervised throughout their TC by Associates and Partners within the firm. Also, during their TC, an individual must undertake the Professional Skills Course (PSC). Introduced in 1994, the PSC is designed to build on the foundations laid by the LPC. Trainees must complete 48 hours of tuition on core elements of training, such as financial and business skills and advocacy skills. Having completed all of the above requirements, an individual may then adopt the title of ‘solicitor’, having been added to the ‘Roll of Solicitors’ and may then practise in England and Wales. If an individual fails to complete any of the above requirements, they are not entitled to hold a practising certificate and may not be entered onto the Roll. This traditional route is still available to any student who commences a law degree, GDL, or LPC before September 2021. The student will have until 2032 to complete the route and qualify as a solicitor. They may, however, if they wish, choose to qualify through SQE.
Qualifications (SQE route)
With the introduction of the SQE, a number of changes can be noted from the above text:
• Students no longer require a law degree or GDL in order to become a solicitor. As long as the student has an undergraduate degree (or equivalent) in any subject, they will be able to undertake the SQE.
• The LPC will be disbanded and replaced with SQE-preparation courses, which are designed to prepare students for the SQE assessments. There is no obligation on students to undertake the SQE-preparation courses; they may sit the assessments outright.
• The requirement for a training contract will be removed and replaced with a requirement of ‘qualifying work experience’. Students will still need to undertake two years’ work experience; however, unlike a training contract, this two-year experience may be split amongst up to four firms and can include any other relevant work experience (e.g. time spent in a Law Centre).
Regulation, representation, and ethics
All lawyers are regulated by the Legal Services Board; however, there are eight separate regulators responsible for the different types of lawyer on a day-to-day basis. Figure 6.3 (p. 148) demonstrates this distinction for the three most relevant lawyers for our purposes. Other lawyers regulated by different bodies include patent and trade mark attorneys, costs lawyers, notaries, and legal conveyancers.
Solicitors are regulated by the Solicitors Regulation Authority (SRA), which is responsible for ensuring that all practising solicitors (i.e. those solicitors holding a practising certificate) abide by the Solicitors’ Code of Conduct 2007, the SRA Code of Conduct 2011, and the SRA Principles 2011. One key principle, linked with the concept of legal ethics, is that of ‘client care’. Solicitors must act independently and with integrity in the interests of their clients and also in the wider public interest.
Solicitors are represented in the public eye by the Law Society, which essentially acts as a trade union for solicitors. Its role is to ‘represent and support [its] members, promoting the highest professional standards and the rule of law’. The Law Society formerly acted as the professional regulation body for solicitors; however, this function was removed by the Legal Services Act 2007.
Should a solicitor have acted in a manner inconsistent with the Code of Conduct, a claim may be brought against them in the Solicitors Disciplinary Tribunal (SDT), which is an independent body entirely separate from that of the SRA and the Law Society (s46 Solicitors Act 1974). Ninety per cent of cases are referred to the Tribunal and prosecuted by the SRA; however, claims may also be brought by the public directly.
Suing your lawyer
Upon retaining a solicitor, a contract is formed between solicitor and client. Should the solicitor breach such contract, the client may sue for damages. Solicitors may also be liable in tort law for negligence causing a loss to the client or even a third party (White v Jones (1995)).
(p. 149) Barristers
Barristers are the specialist advocates whom solicitors instruct to represent a client during trial. Barristers can helpfully be divided into two categories:
• self-employed barristers; and
• employed (in-house) barristers.
Unlike solicitors, barristers cannot work in partnerships with other barristers. Rather, self-employed barristers work collectively in a set, known as ‘chambers’, whilst employed barristers often work within the government, or in an international legal firm. Practising barristers are known to practise at the ‘Bar’.
The Bar in England and Wales is divided into six regions (also known as ‘circuits’). The circuits provide support, advice, and representation for barristers practising in those particular areas. The circuits of England and Wales are as follows:
• Midland circuit;
• Northern circuit;
• North-Eastern circuit;
• South-Eastern circuit;
• Wales and Chester circuit; and
• Western circuit.
According to the General Council of the Bar (‘Bar Council’), barristers are best classified as ‘specialist advocates and advisers’. Unlike solicitors, a barrister’s role has always been focused on trial advocacy. They hold a right of audience in all courts in England and Wales and, in the majority of cases, are unlikely to be found undertaking the work traditionally done by solicitors. Most often encountered in the senior courts (see Chapter 2), barristers are independent and objective and hold specialist knowledge and experience in their respective area of law. A barrister’s knowledge can cover broad areas of specialism, including the likes of criminal law, personal injury, and family law. Each of these categories can, itself, be subdivided into even more categories of specialism; for example, a barrister may specialize in sexual offences within the law of crime, or with adoption cases in family law.
A key distinction between the role of a barrister and that of a solicitor is the operation of the ‘cab rank rule’. Unlike a solicitor, a barrister must accept any case that comes before him where the instructions are appropriate, taking into account the experience, seniority, and/or field of practice. This rule is irrespective of the identity of the client; the nature of the case to which the instructions relate; whether the client is paying privately or is publicly funded; and any belief or opinion which the barrister may have formed as to the character, (p. 150) reputation, cause, conduct, guilt, or innocence of the client. There are, of course, exceptions to the cab rank rule; these are listed in the Code of Conduct for the Bar and include such matters as:
• where the barrister lacks sufficient experience or competence to handle the case;
• where a barrister has been asked to accept instructions outside the field of his practice; and
• where, having regard to his other professional commitments, the barrister will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do.
Be sure to make it clear that the term ‘advocacy’ does not simply relate to oral advocacy, i.e. standing up and speaking in court. Advocacy can also come in written form, requiring a barrister to draft legal documents, pleadings, and writing opinions (advice) to their instructing solicitors. As such, barristers are required to be specialist advocates both on paper and in speech.
In England and Wales, there are two types of practising barrister:
• junior barristers; and
Junior barrister refers to any barrister, of any length of service, who is not a Queen’s Counsel. Therefore, an individual could have practised at the Bar for 40 years and still be a junior barrister. In this event, they are often referred to as a ‘senior junior’.
Queen’s Counsel (QCs) refers to those barristers who have reached a level of outstanding ability and experience (generally a minimum of 15 years) such that they can justify charging higher fees. In order to become a QC, a barrister must apply to the QC Selection Panel, who will then recommend appointment to the Lord Chancellor. QCs are only instructed in very serious or complex cases and enjoy certain rights over their junior counterparts, including the wearing of silk robes (thus the phrase ‘to take Silk’) instead of the standard court dress, and the provision of sitting on the front bench (front row) in a courtroom, with junior barristers sitting behind them, and solicitors sitting behind the barristers. (p. 151)
Make clear in any answer on this topic that solicitors can become Queen’s Counsel also. It is just a rarer occurrence for this to happen. In January 2020, 114 new appointments as Queen’s Counsel were made, only four of which were solicitors. Why is this? Is the QC Selection Panel attempting to keep the ranks of QC within the Bar? Do solicitors consider that the rank of QC should remain within the Bar?
Naturally, the name Queen’s Counsel will change dependent on the gender of the monarch at the time. At the point in the future when a King sits on the throne, silks will be thereafter known as ‘King’s Counsel’.
Look at the statistics and observe the number of barristers in practice and the number of Queen’s Counsel. You will see that the number has dropped in recent years; for instance, since 2009 there has been a 15 per cent drop in the number of Queen’s Counsel.
Ask yourself, ‘Why is this?’ Use the answer to this question to strengthen your answer and reach a higher mark.
The statistics can be accessed at: www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics.
The provision of a barrister’s work is supplied and managed by their clerks. Barristers’ clerks are operated and regulated by the Institute of Barristers’ Clerks (IBC) and are tasked with ensuring their barristers are provided with work and are paid the appropriate fee for work undertaken. Barristers are not permitted to negotiate fees or accept fees from their instructing solicitors and thus all business must be conducted through their legal clerk.
The Bar remains predominantly a referral profession. This means that barristers are ‘instructed’ by solicitors to take on a certain case and that a member of the public may not directly approach a barrister to ‘take on their case’. Rather, they must first ‘retain’ a solicitor, who will then instruct a barrister, if they feel such instruction is necessary. Figure 6.4 provides an illustration of this principle.
There are a number of barristers who can be directly instructed by members of the public to deal with their cases. These are known as ‘public access’ barristers, who require appropriate training and experience before they may offer public access services. This grants barristers the ability to start the case from scratch, allowing them to investigate and collect evidence, take witness statements, conduct correspondence etc. More information on public access barristers can be found on www.DirectAccessPortal.co.uk.
In order to practise as a barrister, an individual must first undertake their law degree or GDL and then undertake their vocational training. Until September 2020, students wishing to become a barrister must undertake the Bar Professional Training Course (BPTC), formerly (p. 152) known as the Bar Vocational Course (BVC). Like its solicitor counterpart, the BPTC is a year-long (full-time) intensive course comprised of ‘core modules’ and ‘optional modules’. From September 2020, the Bar Standards Board (BSB) will not prescribe a particular course that has to be undertaken for students wishing to complete the vocational part of their studies. Instead, individual institutions will be able to secure validation for their own version of the Bar course. For instance, Nottingham Law School will launch their Bar Training Course (BTC) and BPP University will launch their Barrister Training Course in September 2020.
Before a student may formally start the Bar course, they must first join one of the four Inns of Court. The Inns of Court are professional organizations with the responsibility for providing student barristers and practising barristers with extensive support through a range of educational activities, lunching and dining facilities, access to common rooms and gardens, and the provision of various grants and scholarships. The four Inns of Court are as follows:
• Middle Temple;
• Inner Temple;
• Lincoln’s Inn;
• Gray’s Inn.
Each Inn is formally named ‘The Honourable Society of …’; however, they are commonly referred to by the names listed above as a matter of shorthand.
As part of their vocational education, student barristers must engage in 12 qualifying sessions (also known as ‘dining sessions’). Each qualifying session may span a number of hours over a morning, afternoon, or evening and often involves activities such as dining in Hall, lectures, advocacy workshops, and residential weekends.
Upon successful completion of the vocational studies, the student shall be ‘called to the Bar’ (referring to the literal bar that separates counsel and the judge from other individuals), which then allows them to undertake pupillage.
Pupillage is a year-long apprenticeship where the pupil barrister shadows barristers of the chambers (known as tenants) where the pupillage is being undertaken. Chambers shall award the pupil a minimum of £12,000 per annum to cover their daily expenses. Some chambers pay well in excess of this amount; for example, some chambers offer their pupils figures up to £80,000.
Dependent on the set, the pupil is likely to have either one or two ‘pupil supervisors’, also known as ‘pupil masters’. Pupillage is divided into two six-month periods. Table 6.1 details how the division is organized.
Table 6.1 Stages of pupillage
First six months
Second six months
Pupils can shadow tenants but have no right to appear in their own name.
Pupils can undertake work and earn a wage in their own name.
Pupils can undertake a ‘noting brief’, but only with consent of their pupil supervisor.
Once the pupil completes their pupillage, the tenants of the chambers shall then decide whether they wish to offer the pupil tenancy, meaning they become a fully fledged practising barrister, or decide not to offer tenancy and consider alternative options.
In the event that tenancy is not offered to the pupil, they may attempt to secure tenancy at a different set or may undertake a further six months’ training, known as a ‘third six’. (p. 153)
Be sure to use the correct terminology to describe a barrister during the different stages of their career.
• When undertaking their vocational qualification, they are referred to as ‘student barristers’.
• When undertaking their pupillage, they are referred to as ‘pupil barristers’.
• When they have secured tenancy, they can simply be referred to as ‘barristers’ or ‘tenants’ (the latter only works in the context of their chambers).
Show your understanding of the legal terminology by demonstrating the circumstances when a person can and cannot refer to themselves as a barrister. According to the BSB, an individual may refer to themselves as a barrister having not obtained pupillage or a practising certificate. The rules are clear in that a person is entitled to use the term ‘barrister’ in such circumstances where they are not offering legal services. To offer legal services without a practising certificate, however, is a criminal offence.
Regulation, representation, and ethics
Barristers are regulated by the Bar Standards Board (BSB), who are responsible for:
setting standards of conduct for barristers and authorising barristers to practise; monitoring the service provided by barristers to assure quality; setting the education and training requirements for becoming a barrister as well as setting continuing training requirements to ensure that barristers’ skills are maintained throughout their careers; and handling complaints against barristers and taking enforcement or other action where appropriate.
All barristers, including non-practising ones, are subject to professional rules contained in the BSB Handbook (Version 4.4 2020). The Handbook is divided into six parts, the most important being Part 2, which concerns the Code of Conduct for barristers.
Like their solicitor counterpart, barristers are also represented in the public eye by an independent body. This body is the General Council of the Bar (‘Bar Council’) and its role is to represent members of the Bar and promote ‘the Bar’s high quality specialist advocacy (p. 154) and advisory services, fair access to justice for all, the highest standards of ethics, equality and diversity across the profession, and the development of business opportunities for barristers at home and abroad’. The Bar Council formerly acted as the professional regulation body for barristers; however, this function was removed by the Legal Services Act 2007.
In addition to the Bar Council, barristers are further represented by ‘Specialist Bar Associations’ (SBAs), which are dedicated to the interests of groups of barristers within a specific area of practice. At present, there are 24 SBAs, including the Criminal Bar Association (CBA) and the Employment Law Bar Association (ELBA), which help to promote their members’ interests by, for example, responding to proposals for changes to regulations, and offering support to their members through networking events and mentoring schemes.
Complaints against a barrister are dealt with by the BSB and the Inns of Court, which have a large role in administering disciplinary tribunals to deal with serious complaints against barristers.
Suing your lawyer
Unlike their solicitor counterparts, no contract exists between a barrister and a lay client. Therefore, a client cannot sue under contractual principles. Prior to 2000, barristers also enjoyed immunity from suit by disgruntled clients for damages for any loss incurred as a result of the barrister’s negligence in representing the client in court. The House of Lords removed this immunity in Hall v Simons (2002) and set a precedent which has effect in all proceedings, both criminal and civil, and at any stage of practise. Therefore, all barristers, of any age and length of practise (yes, even pupils) are open to claims of negligence.
FACTS: Three claims were brought in a conjoined appeal to the House of Lords. In all three cases it was claimed that a firm of solicitors had been negligent in their advocacy. The firm attempted to rely on the case of Rondel v Worsley (1969), which established the rule that an advocate is immune from any claim of negligence.
HELD: It was held that it was contrary to the public interest to allow advocates, whether they be solicitors or barristers, to not be held liable for negligent advocacy when such negligence caused a loss to an individual or third party.
In 1963, the Law Society created the Institute of Legal Executives which, in 2012, became the Chartered Institute of Legal Executives (CILEx) as a result of being awarded a Royal Charter. Originally thought of as solicitors’ assistants, legal executives hold limited rights of audience in court and are permitted to undertake litigation work in their own right. Before you may be called a legal executive, you must first become a Fellow of CILEx. As opposed to barristers (p. 155) and solicitors, legal executives need not hold any form of legal education background, as all legal training is provided ‘on the job’. Following qualification, Continuing Professional Development (CPD) is compulsory for legal executives and is determined by their level of seniority:
• Fellows—16 hours minimum;
• Graduate Members—12 hours minimum;
• Associate Members—eight hours minimum.
Legal executives will specialize in a specific area of law and will practise only in civil law, for example in conveyancing, wills, or matrimonial matters. Alisdair Gillespie and Siobhan Weare, The English Legal System (7th edn, Oxford University Press 2019), however, note that ‘there is no reason why they could not, for example, also qualify as accredited police-station representatives’.
A rather large incentive for Fellows of CILEx is that as a result of their qualifications and experience they may become a solicitor without the need to undertake a training contract, given that the necessary experience to become a Fellow is equivalent to a training contract.
A paralegal is a ‘fee earner’, meaning that they are able to conduct a limited caseload for the company or firm that they represent. The type of work undertaken will ultimately depend on the qualifications and experience of the paralegal, but often includes the preparation of legal documents and limited advocacy experience in tribunals. Although it is not necessary to hold any legal qualifications to become a paralegal, in practice, the majority of firms expect applicants to have completed an appropriate vocational qualification. Further to this, the paralegal profession is largely unregulated, meaning that the exact number of paralegals in England and Wales is unknown. However, many paralegals belong to a regulated service provider, for example, the Institute of Paralegals, the National Institute of Licensed Paralegals, and the Society of Specialist Paralegals.
The ‘judiciary’ is a term to describe the numerous judicial offices and the holders of such office in England and Wales.
The judicial office
It is common for the layperson to think that a judge is an employee of the state, in that they are a representation of the Crown. However, a judge does not work under a contract of employment; rather, a judge is the holder of a judicial office for the duration of his tenure. It is for this reason that we do not characterize the judiciary as ‘lawyers’, given that upon taking office as a judge, they cease to practise in law and instead enforce the law. It is this distinguishing feature that sets judges apart from the common ‘lawyer’.
(p. 156) As is to be expected, there is a fixed hierarchy of judicial offices in England and Wales and this hierarchy can be laid out into two distinct divisions: senior judges and inferior judges.
A third division is suggested by Gillespie and Weare (2019), who argue that there is a middle ground between the senior judges, who operate administrative functions in addition to their judicial role, and inferior judges, who operate limited jurisdiction and often sit only in courts of first instance. They label this category as ‘superior judges’. Although this title is not to be found in statute or in practice, it is a useful way of dividing these classes of judges and will be adopted below.
Section 60(1) Constitutional Reform Act (CRA) 2005 defines the ‘senior judges’ of England and Wales. These judges are considered senior, given their combined functions in a judicial capacity and an administrative/leadership capacity.
Figure 6.5 details, in hierarchical order, the most prominent ‘senior judges’ for our purposes. Table 6.2 expands upon the role of these senior judges. For a full breakdown of the senior judges, visit www.judiciary.uk.
Table 6.2 Senior judicial posts
Judicial office and title
Lord Chief Justice (LCJ)
‘The Right Honourable, The Lord …’
Holds the office of President of the Courts of England and Wales and Head of the Judiciary of England and Wales (s7(1) CRA 2005).
Also holds the office of Head of Criminal Justice (and thus is the Head of the Queen’s Bench Division) (s8(2) CRA 2005). Can sit in any of the following courts (s7(3), (4)):
Mode of address in court: My Lord/My Lady.
President of Supreme Court (PSC)
Created by s23(5) CRA 2005 along with a deputy.
Responsible for the judicial operation of the Supreme Court. Has the power to issue rules and practice directions (s45 CRA 2005).
Responsible for allocating the justices who will sit on each case.
Mode of address in court: My Lord/My Lady.
Master of the Rolls (MR)
‘The Right Honourable, The Master of the Rolls …’
Ranks joint second, with the PSC, to the LCJ in precedence. Holds the office of Head of Civil Justice (s62(1) Courts Act (CA) 2003).
The ‘Rolls’ in his title signifies his traditional role as the clerk responsible for maintaining the records of the Chancery Court.
Mode of address in court: My Lord/My Lady.
President of QBD
‘Sir …’ or ‘Madam …’
Created by the CRA 2005, each Head of their respective Division is responsible for overseeing the management of the Division; ensuring judges are adequately trained in each Division; and allocating resources for those Divisions. The Presidents are led by the LCJ.
Mode of address in court: My Lord/My Lady.
President of Fam
‘Sir …’ or ‘Madam …’
Chancellor of HC
‘Sir …’ or ‘Madam …’
Gillespie and Weare (2019) describes ‘superior judges’ as those who have ‘unlimited jurisdiction in that their jurisdiction is not limited specifically by statute’. This means that they may use their inherent jurisdiction in a manner they see fit, so long as it does not contradict a rule of law or statutory provision. All superior judges are to be referred to as ‘My Lord/My Lady’ in court. Figure 6.6 details the relevant ‘superior judges’. Table 6.3 expands upon the role of these superior judges. (p. 157) (p. 158)
Table 6.3 Superior judicial posts
Judicial office and title
Justices of the Supreme Court (formerly known as ‘Lords of Appeal in Ordinary’, or ‘Law Lords’ in the House of Lords)
Consists of 12 justices (judges) (s23(2) CRA 2005).
Headed by the President and Deputy President.
Appointed by the Queen upon recommendation from the Lord Chancellor.
These judges also sit in the Judicial Committee of the Privy Council.
Lord Justices of Appeal ‘Lord/Lady Justice …’
These are the ‘ordinary judges’ of the Court of Appeal who hear the cases. They generally sit in threes and must sit in an uneven number (to avoid stalemate).
Puisne Judges ‘The Honourable, Mr/Mrs Justice …’
Pronounced ‘puny’ and meaning ‘lower ranking’, these are the ordinary judges of the High Court. These judges sit in the High Court and in the more serious cases in the Crown Court. Puisne judges may be invited to sit in the Court of Appeal. The judges are assigned to one of the three Divisions of the High Court.
They are entitled to the prefix ‘The Honourable’.
They are knighted or made a Dame upon appointment.
Inferior judges do not exercise unlimited jurisdiction. Rather, their powers are defined in statute. Where the statute does not advocate a certain authority, the judges may not exercise such authority, thus the term ‘inferior’. Figure 6.7 details the relevant ‘inferior judges’. Table 6.4 expands upon the role of these inferior judges.
As a result of the CRA 2005, the system for appointment of the judiciary was overhauled. Prior to the 2005 Act, the Lord Chancellor played a major role in the appointment of judges in accordance with the Courts and Legal Services Act 1990 (as amended by the Tribunals, Courts and Enforcement Act 2007). (p. 159)
Table 6.4 Inferior judicial posts
Judicial office and title
‘His/Her Honour Judge …’
Created by s16 Courts Act (CA) 1971.
They are appointed to one of seven regions of England and Wales.
They sit in the Crown Court and County Court within their particular region.
They must be lawyers who have held a ‘right of audience’ for at least ten years. They should have served either part-time as a recorder on criminal cases or full-time as district judges on civil cases before they can be appointed.
They are appointed by the Queen, on the recommendation of the Lord Chancellor.
Mode of address in court: Your Honour.
‘Mr/Mrs Recorder …’
Created by s21 CA 1971.
They are appointed by the Queen on the recommendation of the Lord Chancellor, for a renewable period of five years.
They have a part-time judicial role, expected to sit for 30 days a year in the County Court and Crown Court.
Mode of address in court: Your Honour.
District judges (magistrates’ court) ‘District Judge …’
Formerly known as a ‘stipendiary magistrate’ or colloquially as ‘stipes’.
They are entitled to sit in the magistrates’ court, Youth Court, and Family Court.
They must have been a professionally qualified barrister or solicitor for at least five years. Additionally, they will have sat as a Deputy District Judge for two years.
They generally sit in inner London.
Mode of address in court: Sir/Madam.
‘District Judge …’
They act solely as a civil judge, sitting in the County Court.
They are appointed by the Queen on the recommendation of the Lord Chancellor.
They are not to be confused with district judges (magistrates’ courts).
They hear procedural matters and nearly all small-claims court matters.
Mode of address in court: Sir/Madam.
Judicial Appointments Commission
The CRA 2005 established the Judicial Appointments Commission (JAC), which is responsible for the appointment of the judiciary. Schedule 12 CRA 2005 (as amended by the Crime and Courts Act (CCA) 2013) states that the JAC consists of 15 members. The composition of the members is detailed in Table 6.5.
Table 6.5 JAC composition
Type of member
No. of members
Chairman of the Commission.
A lay member is a person resident in England or Wales who has never held a listed judicial office or been a practising lawyer.
There must be one of each:
May be either:
Both commissioners must be different professionals.
A lay justice member is a justice of the peace who:
Judge of either the first-tier or upper-tier tribunal.
According to sch 12, para 13, the commissioners are appointed for a term of office no longer than five years at a time and may not hold office for periods totalling more than ten years.
(p. 160) Judicial qualities
The JAC has laid down five key qualities and abilities that a candidate is required to provide evidence of:
• intellectual capacity;
• personal qualities;
• an ability to understand and deal fairly;
• authority and communication skills;
• leadership and management skills.
(p. 161) Recommendations and appointments
The Commission will recommend the names of individuals who should be appointed to the Lord Chancellor. The Lord Chancellor has three options under s94C CRA 2005:
– accept the recommendation;
– reject the recommendation;
– ask the panel to reconsider the selection.
Please note that the Lord Chancellor may only reject a recommendation for a candidate once. Should the JAC maintain its recommendation, the Lord Chancellor must accept. Where the Lord Chancellor has accepted the recommendation, he shall then forward the names to the Monarch, who will formally appoint the individuals to the judiciary.
As a result of the CRA 2005, the LCJ is responsible for arrangements for training the courts’ judiciary in England and Wales. He does so through the Judicial College (JC). The former system of training was provided by the Judicial Studies Board (JSB), which was restricted solely to criminal matters. Prior to the establishment of the JSB in 1979, little, if any, training was provided for new and existing judges. Indeed, Lord Devlin was noted for stating that when he was appointed to the High Court in 1948: ‘I had never exercised any criminal jurisdiction and not since my early days at the Bar had I appeared in a criminal court … Two days after I had been sworn in, I was trying crime at Newcastle Assizes’ (David Pannick QC, Judges (Oxford Univesity Press 1987)).
The JC, however, is now responsible for the training of both criminal and civil judges. The JC is governed by the Board of the Judicial College, which is headed by a Chairman.
According to the then LCJ, Lord Phillips, in 2007, ‘A judge should value independence above gold, not for his or her own benefit, but because it is of the essence of the Rule of Law.’ The Rule of Law was discussed in Chapter 1 and you are advised to revisit that chapter.
In particular, judges must be independent from:
• political pressures;
• pressures from the media;
• personal motivations.
Section 3 CRA 2005 guarantees the principle of judicial independence and requires the Lord Chancellor and respective ministers to uphold this independence. The judiciary too, however, must ensure their own independence by avoiding conflicts of interests and personal bias. The key example in this respect concerns cases where a judge is disqualified by the principle of (p. 162) natural justice from sitting on a case in which they have some form of interest, whether proprietary or personal, in the outcome. For an example of this in practice, see ex parte Pinochet Ugarte (No. 2) (1999).
If you are interested in this topic, we advise you to read: John Griffith, The Politics of the Judiciary (5th edn, Fontana Press 2010).
The ability to remove members of the judiciary from office depends on the seniority of judge. The first point to note is that as a result of the Act of Settlement 1701 (renamed the Senior Courts Act 1981 in 2009) the offices of the judiciary should be maintained ‘quamdiu se bene gesserint’ (‘while they behave themselves’). Essentially, the judiciary hold a form of tenure in their legal position:
• circuit and district judges can be removed for ‘misbehaviour’ or on the grounds of ‘incapacity’ by the Lord Chancellor, who may only do so where the LCJ agrees (s17(4) Courts Act 1971);
• judges of the High Court and Court of Appeal cannot be removed from office without a petition to the Queen from both the House of Commons and House of Lords (s11(3) Senior Courts Act 1981).
The latter of the two has never been used in England and Wales, but has been used in Ireland. Specifically, Sir Jonah Barrington was removed from office as a judge of the Irish High Court of Admiralty in 1830 for corruption (he misappropriated £700 paid into the Admiralty Court of Ireland).
The former has been used on two occasions. The first use was in 1983, when a judge was caught smuggling whisky from Guernsey into England; the second in 2009, for a variety of inappropriate behaviour. For a more detailed account of inappropriate judicial behaviour, see Graeme Williams QC, A Short Book of Bad Judges (Wildy Classics 2013).
All judges are required to retire from their office at the age of 70 (s26(1) Judicial Pensions and Retirement Act 1993).
The law officers, formally known as the ‘Law Officers of the Crown’ are the chief legal advisers to the Crown. The officers are responsible for advising central and local government and they themselves must be Members of Parliament (MPs).
In England and Wales, the chief law officer of the Crown is the Attorney General. He is assisted by his deputy, the Solicitor General.
In accordance with s1(1) Law Officers Act 1997, ‘Any function of the Attorney General may be exercised by the Solicitor General’ and vice versa.
(p. 163) The Attorney General, who must be legally qualified, is responsible for overseeing several departments, including:
– the Crown Prosecution Service (CPS) (headed by the Director of Public Prosecutions (DPP);
– the Serious Fraud Office;
– Her Majesty’s Crown Prosecution Service Inspectorate; and
– the Government Legal Department.
The Solicitor General is a ‘support role’ and he is responsible for:
– such matters as the Attorney General delegates to him; and
– providing support to the Attorney General on civil litigation and advice on civil law matters and on the public interest function.
‘Legal personnel’ is a more formal way of referring to court staff; these individuals are the life and soul of the ELS. Without these staff members involved in the day-to-day running of the courts and legal sector, the ELS would not function. These staff are employed by the Ministry of Justice (MoJ) and are involved in the running of all three major types of courts, namely criminal, civil, and family courts. In addition to the court managers and administrative staff, the key legal personnel for our purposes are listed in Table 6.6. (p. 164)
Table 6.6 Court staff and their roles
Legal adviser (magistrates’ court), also known as a justice’s clerk
They provide advice to magistrates on applicable substantive, evidential, and procedural laws.
They ensure that magistrates’ court proceedings run smoothly by explaining procedures to defendants and witnesses in order to avoid disruptions.
They must be a qualified barrister or solicitor.
They are responsible for assisting the judge and managing the courtroom.
They ensure that the court runs smoothly and that everyone is in the right place at the right time.
They implement any updates and inform the judge, and prepare all the case papers for the judge to make sure they are fully prepared for court.
They are the first point of contact for all individuals involved in a case and are responsible for preparing the courtroom, checking that witnesses, defendants, and lawyers are present, calling defendants and witnesses into court, and administering oaths.
As a court of record, the Crown Court must have all of its proceedings recorded. Historically, this was to be completed by a stenographer (a court typist). In modern times, they have been recorded using tape recorders. The stenographer remains a role in the ELS, but is now responsible for ensuring that the recording equipment is functioning and transcribing the recording at a later date.
They are responsible for control of access doors and gates; conducting entry searches of persons entering court buildings via public entrances, and preventing and dealing with security incidents.
Bailiffs who sit with a defendant in the dock in criminal matters fall within this section.
Within this section we shall discuss two forms of layperson within the ELS, namely:
• juries; and
Each form is essential to the operation of our legal system, with the latter dealing with 99 per cent of criminal cases and the former appointed to try the 1 per cent that makes it to the Crown Court.
Described by Lord Devlin in 1956 as ‘the lamp that shows that freedom lives’, trial by one’s peers remains a hallmark of the ELS. This is so despite the fact that only 1 per cent of criminal cases are dealt with by way of trial by jury.
Jury trials are commonly associated with criminal trials (and indeed that is their key role); however, juries may also feature in Coroners’ Courts and in civil proceedings, albeit rarely. Prior to the Common Law Procedure Act 1854, all civil trials were determined by judge and jury. Post 1854, a judge could determine a civil law matter without the need for a jury, where the parties agreed to such. Now, as a result of s69 Senior Courts Act 1981, the use of a jury in civil trials is restricted to four circumstances, detailed in Table 6.7. A jury may also feature in the specialist Coroners’ Court in the circumstances listed in s8 (see Table 6.7). Such trials are referred to as inquests and involve the jury acting as the arbiters-of-fact, whilst the Coroner acts as the arbiter-of-law. The jury’s role is not to establish the guilt or innocence of a particular individual—that is a matter for the criminal courts. Instead, a jury is simply required to decide how the particular death was caused. (p. 165) The most highly reported jury inquest in recent times is that of the so-called ‘Hillsborough stadium disaster’, where a jury found that 96 persons were ‘unlawfully killed’ in 1989.
Table 6.7 Jury usage outside of criminal law
Civil Proceeding (s69 Senior Courts Act 1981)
Coroners’ Court (s8 Coroners Act 1988)
As a result of the common usage of juries in the criminal trial, that will be the focus of this section. For completeness, however, Table 6.7 details some of the cases outside of criminal law where a jury may sit.
The role of the jury is one based on fact. The jury must decide, unanimously or by a majority (see Chapter 7 for the meaning of ‘majority’), whether a defendant is ‘guilty’ or ‘not guilty’. They must only do so on the evidence presented before them and may not rely upon other means of reaching that conclusion. It is for this reason that jurors are known as ‘arbiters-of-fact’. For example, in R v Young (1994), four members of the jury relied upon the use of a Ouija board during their overnight stay in a hotel in an attempt to contact one of the victims of the alleged murder. The Court of Appeal quashed the defendant’s conviction on the grounds that:
there was a real danger that what occurred during this misguided Ouija session may have influenced some jurors and may thereby have prejudiced the appellant.
This was an abuse of the jury’s role and a retrial was ordered, where the defendant was found guilty for a second time.
The trial judge is the arbiter-of-law alone and the jury are responsible for applying that law to the facts with the support and guidance of the judge. Further to this, the jury plays no part in a ruling of law, nor does it play a part in the sentencing of defendants whom it has found guilty. (p. 166)
Demonstrate your knowledge of the criminal justice system by making clear that although the jury have no part to play in the sentencing of a defendant, they do have a residual privilege to add a recommendation of mercy to their verdict, although such is a rarity and judges are advised to not inform the jury of such privilege (R v Black (1963)).
Qualification and summons
Section 1(1) Juries Act (JA) 1974 provides for a general presumption that all persons shall be qualified to serve as a juror. Table 6.8 lists the necessary ‘qualifications’ required to sit on a jury.
Table 6.8 Jury qualifications
The age limit for jurors was raised from 70 to 75 on 1 December 2016. The government justified this increase by stating that the increase ‘will better reflect the healthy life expectancy of people in England and Wales and mean juries are more representative of the communities they serve’. In an essay-style question, show the examiner that you are up to date on current issues such as this and demonstrate that you understand why such changes have been introduced. Take your answer even further by offering your own reasoned opinion as to what you think of the increase in age.
For a full list of ‘disqualified’ persons, see sch 1 JA 1974. The list is divided into individuals who are disqualified for this trial alone, individuals disqualified for life, and individuals disqualified for ten years. Table 6.9 details these disqualified persons further.
Table 6.9 Disqualified persons
Length of disqualification
Reason for disqualification
On bail pending criminal proceedings against them.
A person who has at any time been sentenced to:
A person who at any time in the past ten years has:
Before the Criminal Justice Act (CJA) 2003, a list of persons existed who were entitled to avoid jury service, or for whom it was thought ‘inappropriate’ that they should sit on a jury. These individuals were referred to as being ‘ineligible’ and included:
(p. 167) • police officers;
It was viewed that these individuals were ineligible due to a potential risk of bias and because their duty was considered to be done elsewhere, i.e. in an operating room or out protecting the streets. As a result, therefore, it became commonplace for middle-class individuals to avoid jury service, leaving all other categories of individuals required to serve. As a result of the Review of Criminal Courts by Auld LJ, the CJA 2003 had the effect of removing the majority of the previous categories of individuals who could avoid jury service. Naturally, as can still be seen from Table 6.9 above, notable exceptions still apply, including the mentally incapacitated and individuals who hold certain criminal convictions. A further exception applies to serving members of the armed forces who have their excusal certified by their commanding officer. (p. 168)
Consider whether it is appropriate for legal professionals to be eligible to sit on a jury. The purpose of a jury is that they are laypersons focusing on the facts before them. Is it not possible that a legal professional will take their role as a juror too far and begin to question the case from a legal angle?
On that basis, could you justify the previous exemptions?
In response to this, see Auld LJ’s response in his Review of the Criminal Courts in 2001, where he comments that, ‘The variety of prejudices that jurors can have are almost unlimited.’ Therefore, he concluded that there is no reason why the risk of prejudice is any greater among those excluded than with anyone else sitting as a juror.
As a result of the abolition of excusal by status, the right to a fair trial in circumstances where a juror is a police officer or a member of the CPS is a matter of great importance. As a starting point, the House of Lords in R v Abdroikov (2007) noted that the key principle following the CJA 2003 reforms is that ‘justice [has] to be seen to be done’. Certain general principles have arisen as a result of the judgment of the European Court of Human Rights (ECtHR) in Hanif v UK (2012). These include:
• the fact a police officer is on the jury does not make the trial automatically unfair;
• a police officer should not sit on a jury where they know or are friends with prosecution or defence witnesses; and
• a Crown prosecutor must not sit in the same area as they practise.
The Lord Chancellor now holds the responsibility to publish guidelines on certain matters of public importance, for example, directions to the judiciary should they be required to sit on a jury.
Jurors are selected for jury service by a centralized computer system. According to Sally Lloyd-Bostock and Cheryl Thomas in Vidmar’s World Jury Systems (Oxford University Press 2000), this has been the case since 1981. The responsibility of summoning a juror for duty is vested in the Jury Central Summoning Bureau (JCSB), based in London. Its role is to select individuals randomly from the electoral register, check for any criminal records, issue the summons, and liaise with the courts as to how many jurors are required. The power to summon is solely that of the JCSB and no person or institution has the power to interfere with this, including the judge himself.
Attendance and excusal
Section 7 JA 1974 provides that a person summoned under this Act ‘shall attend for so many days as may be directed by the summons or by the appropriate officer, and shall be liable to serve on any jury at the place to which he is summoned, or in the vicinity’.
There are, of course, circumstances where a potential juror cannot or should not attend for service. These circumstances are prescribed in s8(1), which provides that a juror may be excused if he/she shows to the satisfaction of the appropriate officer, or of the court: (p. 169)
– that he has served on a jury, or duly attended to serve on a jury, in the past two years; or
– that the Crown Court or any other court has excused him from jury service for a period which has not terminated.
Furthermore, s9(2) provides that if any person summoned under this Act shows to the satisfaction of the appropriate officer that there is ‘good reason’ why he should be excused from attending in pursuance of the summons, the appropriate officer may excuse him from so attending. The same test of ‘good reason’ applies when an individual seeks a deferral of jury service (s9A(1)).
Some of the most common ‘good reasons’ include:
• prior commitments, such as pre-booked holidays;
• work/child commitments;
• personal involvement in the case.
The topic of jury vetting has long been an issue in the ELS. Compared with our American counterpart, English law does not include a formal process of jury vetting. In the USA, advocates (known as Counsellors) are entitled to ask the jury a number of questions to ascertain whether they are suitable (or ‘favourable’) for that particular jury. In the UK, such vetting and investigation is forbidden.
The Attorney General published a Practice Note on Jury Checks in 1988. These Guidelines specified certain exceptional circumstances when jury vetting would be permitted. These exceptional circumstances include, but are not limited to:
• the juror being a risk to security; and
• the juror being susceptible to improper influence.
Look into the proposals that have been made on jury vetting in the UK over the years. For instance, Alfred Denning in What Next in Law (OUP 1982) suggested vetting the background and education of all potential jurors. This included the drawing up of a list of persons ‘recommended’ for jury service.
The process of vetting is taken in two stages and must be distinguished:
• Stage One: police checks using the standard Criminal Records Bureau (CRB) check;
• Stage Two: an ‘Authorised Jury Check’, which involves a more in-depth CRB check (an ‘enhanced CRB check’), a Special Branch records check, and a Security Services check.
The former is now standard practice (R v Mason (1981)) and is automatic during the selection process for jurors. The latter is a special form of vetting exercise used only in cases (p. 170) involving national security (i.e. alleged terrorism cases). This form of background check must be first authorized by the Atorney General, following recommendation by the DPP. See Jury vetting: right of stand by guidelines published by the Attorney General (last updated 30 November 2012).
The right to ‘challenge’ a juror is available to both the prosecution and the defence. There are two forms of challenge available in English law, these being:
• challenge for cause (prosecution and defence right);
• stand-by (prosecution right only).
Prior to the Criminal Justice Act (CJA) 1988, there was a third form of challenge, known as a peremptory challenge. This granted the defence the right to challenge jurors without cause. This challenge was abolished by s118(1) CJA 1988.
Section 12(1) JA 1974, as amended by the CJA 1988, provides that a defendant charged on indictment may challenge all or any of the jurors for cause, and any challenge shall be tried by the judge in the instant case.
Two key terms need to be addressed at this point:
• challenge to the array—a challenge to the whole jury;
• challenge to the polls—a challenge to an individual juror.
Procedurally, a challenge may only be made after the juror’s name has been drawn by ballot and before he is sworn. Challenge for cause is used where it is suspected that a juror might be biased (Porter v Magill (2001)).
Bias may arise where:
• the juror has been subject to pre-trial publicity;
• the juror has personal feelings regarding the type of offence the defendant is charged with (e.g. a mother may have very strong feelings regarding the trial of a suspected pederast);
• the juror may be motivated by politics and partisanship.
To challenge for cause, counsel merely says ‘challenge’ before the juror takes the oath. In the straightforward case of the defendant knowing the juror, counsel will state this and the judge will ask the juror to leave the box. If the matter is more complicated, a voir dire (simply meaning a ‘mini trial’ within the main trial) may be held in absence of the jury.
The second form of challenge, open only to the prosecution, is known as ‘standing by’. In this case, the prosecutor will simply state ‘stand by’ and does not have to provide reasons for such. The Attorney General’s Practice Note (1988) has provided that the stand-by challenge ought to be used ‘sparingly’ and only where:
• a person is manifestly unsuitable to sit on a jury; and
• where the juror has previous convictions, which have only just come to light. (p. 171)
Ask yourself why the prosecution have the right to challenge a juror without cause, whereas the defence must provide a reason. Is there an inequality of arms present in this procedure? Compare this with the procedure in the USA, where each side is granted a number of challenges without cause which varies according to jurisdiction and type of case.
The judge in the trial also has the power to stand a juror by; however, this power is also to be used ‘sparingly’. The judge has no power to stand a juror by in order to create a racially balanced jury (R v Ford (1989); R v Smith (2003)).
Look into the Auld Report and the Royal Commission on Criminal Justice 1993, which recommended that in cases where race is of relevance, a scheme should be devised to allow a selection of up to three ethnic minority jurors. This scheme was rejected by the government in their Report, Justice for All (2002). Look at some of the justifications for racially balancing a jury and come to a conclusion of what you think is the most appropriate way forward.
In coming to your conclusion, look at research conducted by Thomas ‘Are Juries Fair?’ in 2010 (see ‘Key debates’ below) and see whether your justification is hindered by the results found by Thomas.
Empanelling the jury
The clerk of the court will first assemble and list the names of a group of potential jurors (known as ‘jurors in waiting’) from the waiting area and will bring them into court. This list is known as a ‘panel’. The panel will consist of more than 12 jurors (often 15) to allow random selection to continue even at this stage of proceedings. The clerk of the court first calls 12 jurors from the panel in the following manner:
Members of the jury in waiting, please answer to your names and step into the jury box as you are called.
He then calls each juror by name and informs the defendant:
The names that you are about to hear called are the names of the jurors who are to try you. If therefore you wish to object to them, or to any of them, you must do so as they come to the book to be sworn, and before they are sworn, and your objection shall be heard.
If the defendant is represented, any challenge will be made by his counsel.
All jurors are required to take an oath or affirmation in open court to ‘faithfully try the defendant and give a true verdict according to the evidence’. They must do so in the presence of one another. When a full jury has been sworn, the defendant is placed within the ‘charge’ of the jury, with the clerk of the court addressing the jury as follows:
Members of the jury, are you all sworn? The defendant stands indicted for that he, on the [stating the substance of the offences charged in the indictment]. To this indictment he has pleaded not guilty and it is your charge to say, having heard the evidence, whether he be guilty or not.
Dismissal of jurors
A jury must always start with 12; however, by s16(1) Juries Act 1974, up to three jurors may be discharged from the trial by reason of death, illness, or other reason. If more than three jurors are to be discharged, the trial must be abandoned and a fresh one must be ordered. The entire jury may be discharged in several circumstances:
(i) where they cannot agree on a verdict;
(ii) where the jury hears evidence that is inadmissible and prejudicial to the defendant;
(iii) where an individual juror has been discharged and there is a risk they have ‘contaminated’ the rest of the jury.
Section 6(1) provides that if it appears to the court that a jury to try any issue before the court will be, or probably will be, incomplete, the court may, if the court thinks fit, require any persons who are in, or in the vicinity of, the court, to be summoned (without any written notice) for jury service up to the number needed to make a full jury.
This means that where the court is likely to dismiss several jurors, or did not have enough jurors to begin with, they can pick individuals up off the street to act as a member of the jury (often referred to as ‘praying a tales’).
Jury deliberations and secrecy
Section 71 Criminal Justice and Courts Act 2015 amends the previous law of jury deliberations found in s8(1) Contempt of Court Act 1981. Section 8 previously prescribed a criminal offence, namely contempt of court, where an individual aimed to ‘obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations’. Breaking this section down, it meant that it was a criminal offence for:
• a member of the jury to disclose details of what was said in the jury room; and for
• any person to attempt to obtain such information from a member of the jury.
The present law is now to be found in the Juries Act 1974, as amended by the 2015 Act noted above. The new offences, although similar to the old provisions in s8, are now much broader and detailed. The offences include:
• researching the case that he or she is trying during the trial period for reasons connected to that case (s20A Juries Act 1974);
• intentionally disclosing information to another member of the jury that had been obtained by research in contravention of s20A and the information has not been provided by the court (s20B Juries Act 1974);
(p. 173) • intentionally engaging in conduct, during the trial period, from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue (s20C Juries Act 1974);
• intentionally disclosing information about statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or to solicit or obtain such information (ss20D, 20E, 20F, and 20G Juries Act 1974).
A few examples from the case law can be provided to show the operation of this area of law. Although decided under the previous s8 provision, the outcome is likely to be the same:
• AG v Fraill and Seward (2011): a juror and the defendant communicated during the trial via Facebook. Both were convicted of contempt.
• R v Hewgill (2011): jurors were caught discussing the case in a local pub with other patrons and the defendant himself.
These examples show that individuals can be liable for offences of divulging information discussed in the jury room. However, what about the circumstances where information is not divulged, but there is a likelihood or possibility that the jury reached their decision by wrongful means? We have already discussed the case of Young (1994) in relation to the Ouija board. That is but one example. Other examples include:
• Vaise v Delaval (1785): the jury reached their decision by the tossing of a coin;
• Harvey v Hewitt (1840): the jury reached their decision by drawing lots;
• R v Thompson (1962): the jury had relied on a list of previous convictions, that they were not entitled to know about, in order to convict the defendant;
• R v Qureshi (2002): allegations were made that certain members of the jury had determined the defendant’s guilt at the outset of the trial based on his race.
In each one of these cases, the court could not interfere with the decision of the jury, as to do so would be contrary to the common law, and s8, that jury deliberations cannot leave the jury room. What we hope these cases show is that a defendant may be convicted by a jury, despite evidence that they reached their decision in a manner totally unacceptable to the fairness of trial. This rule appears harsh to a defendant, and has led to stark controversy over the years. For instance, Lord Steyn in R v Connor and Mirza (2004) commented that:
In my view it would be an astonishing thing for the ECHR to hold, when the point directly arises before it, that a miscarriage of justice may be ignored in the interests of the general efficiency of the jury system. The terms of article 6(1) of the European Convention, the rights revolution, and fifty years of development of human rights law and practice, would suggest that such a view would be utterly indefensible [emphasis added].
(p. 174) The position of the English courts was, however, endorsed by the ECtHR in Gregory v UK (1997), where the Court ruled that:
the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard [emphasis added].
Make clear to the examiner that although research into ‘real’ juries is forbidden, research can be undertaken in so-called ‘mock juries’. For instance, look at the research conducted by Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ (2013) and Darbyshire et al, ‘What can the English Legal System learn from Jury Research published up to 2001?’ (2001) (see ‘Key debates’ below).
A further matter that can be discussed under the heading of jury deliberations are the so-called, ‘perverse decisions’. Perverse decisions refer to a jury’s conclusion that has come about by agreement of the jury but is not consistent with the law or the facts presented before them. It is also referred to as ‘jury equity’ to designate that some juries refuse to apply the law when they believe that to follow it would lead to an unjust verdict. Examples of such perverse decision can be seen in the following two cases:
• R v Owen (1992): the victim killed the defendant’s son through careless driving. As a form of retribution, the defendant attacked the victim with a shotgun, causing multiple injuries. The jury acquitted him, and some members later congratulated him on what he had done.
• R v Blythe (1998): the defendant cultivated cannabis for the purpose of supplying it to his wife, who was dying with multiple sclerosis. The judge directed the jury that no defence existed and yet the jury found the defendant not guilty.
The authors refer to this as ‘jury justice’ (others refer to it as ‘jury equity’). Earlier, we discussed whether the jury, in acting outside their remit, were causing a detriment to the defendant. Surely, the same principle applies in the context of perverse decisions, but specifically for the prosecution and the alleged victim.
For a discussion of jury verdicts, see Chapter 7.
Effectiveness of the jury
Table 6.10 Pros and cons of the jury system
The use of 12 jurors should mitigate or remove any potential bias by individual jurors.
Jury secrecy means that it will never be known what the true motives of the jury are, and whether the jury are biased in a particular way. Media coverage may influence a jury’s verdict (even though they are directed to avoid any relevant media coverage).
Perverse verdicts enjoy public respect.
Perverse verdicts undermine the principle of justice and the rule of law (and are actually very rare).
Perverse jury verdicts can provide a ‘criminal equity’.
Jurors may be tempted to reach a quick verdict in order to complete their jury service early.
Involvement of laypersons.
Trial by peers.
Law on jury secrecy could allow the innocent to remain convicted rather than make reasonable enquiries into how the verdict was obtained and the reasons for the verdict.
Balances state intervention in criminal trials.
Juries are not representative; they are not racially balanced.
When considering the role of the jury in the ELS, observe the trends in recent times towards arguing for a reduction of the number of jurors in trials (from 12 to nine), the issues of social media and warnings to the jury regarding social media, and the concept of fixing a jury to ensure it is ‘representative’.
Described by Lord Bingham as ‘a democratic jewel beyond price’, the use of lay magistrates is a further major hallmark of the ELS.
The role played by magistrates in the ELS can be traced as far back as 1195. It was in that year that Richard I commissioned certain knights to preserve the King’s Peace in ‘unruly areas’. It was at this point that the phrase ‘Keepers of the Peace’ was first adopted.
Another form of terminology used to describe a magistrate was to describe them as ‘Justices of the Peace’ (JPs). The phrase, first seen in 1361, during the reign of Edward III, remains in popular use today and is now synonymous with the more modern term of ‘magistrate’. (p. 176)
The term ‘magistrate’ covers both lay magistrates and stipendiary magistrates (district judges). Ensure that you understand the distinction between the two and make such distinction clear in any answer you give.
District judges have been considered under the heading ‘The judiciary’.
Magistrates are represented by the Magistrates Association and, as of 2019, there are approximately 14,000 magistrates sitting in around 330 magistrates’ courts (figures from the Judicial Diversity Statistics 2019).
Magistrates are unpaid volunteers acting as the arbiters of both fact and law. Magistrates are most commonly known for their role in adult criminal proceedings. However, magistrates may also sit, with specialist training, in the Youth Court and in the Family Court. Some magistrates also sit in a civil capacity, dealing with matters such as licensing and council tax repayments. In criminal matters, magistrates sit as a panel of three, and are required to reach a unanimous or majority verdict of guilty or not guilty on the evidence presented before them by the prosecution and defence.
Upon a finding of guilt, magistrates must then sentence the defendant according to the Sentencing Guidelines provided for magistrates. Magistrates’ sentencing powers are contained in the CJA 2003.
Their powers will vary dependent on the offence or type of offence that is in question. Table 6.11 provides further details on this, specifically in relation to their powers of imprisonment.
Table 6.11 Magistrates’ imprisonment powers
Type of offence
A single summary offence
If punishable by imprisonment, the maximum sentence is six months or that prescribed by the statute which creates the offence, whichever is less.
A single either-way offence
The maximum sentence is six months’ imprisonment.
Multiple summary offences
The court may order those sentences to be served concurrently or consecutively but with a maximum aggregate of six months.
Multiple either-way offences
The court may order those sentences to be served concurrently or consecutively and may sentence to a total aggregate of 12 months.
Table 6.12 The ‘standard scale’
Level on the scale
Amount of fine
Magistrates most commonly sit on criminal matters; specifically, they deal only with the less serious criminal offences. This process is described further in Chapter 7.
Magistrates are required to sit for at least 13 days/26 half-days each year, or 35 half-days if they also sit in the youth or family courts.
Appointment and eligibility
Prior to October 2013, the Lord Chancellor was responsible for the appointment of lay magistrates under s10 Courts Act (CA) 2003. As a result of sch 13, para 39 Crime and Courts Act 2013, which amended the CA 2003, the statutory power to appoint magistrates is now vested in the LCJ, who delegates the function to the Senior Presiding Judge for England and Wales. Appointments are made after consultation with and recommendation from the local Advisory Committee, which consists of a network of 30 committees, one in each county. The hopeful magistrates must either live or work in or near that justice area and must not be excluded from appointment as a result of criminal convictions, undischarged debts, or any other reason which could be viewed as bringing the magistracy into disrepute.
Magistrates can be appointed from the age of 18 to 65 and retire at 70 and require no legal training or qualification. Candidates must, however, demonstrate six ‘key qualities’. These key qualities reflect key personality traits necessary to sit as a magistrate. Figure 6.8 details these six key qualities.
Although magistrates require no form of legal education or qualification, training is provided for all magistrates before they undertake their role. Training is supervised by the Judicial College and costs the state £500 per trainee.
(p. 178) The training is based on three key competencies:
1. Managing Yourself: dealing with self-management;
2. Working as a Member of a Team: dealing with the team aspect of making decisions; and
3. Making Judicial Decisions: dealing with impartial and focused decision making.
There is a fourth competence dealing with ‘managing judicial decision making’; however, this applies only to the chairman of the bench. The list below details a breakdown of the training received by magistrates:
• Initial training: introductory training on the basics of the role;
• Mentoring: each new magistrate has a specially trained magistrate mentor to guide them through their first months. There are six formal mentored sittings in the first 12–18 months, where the new magistrate will review learning progress and talk over any training needs.
• Core training: further training involving visits to penal institutions takes place to equip magistrates with the key knowledge they need.
• Consolidation training: at the end of the first year, consolidation training builds on the learning from sittings and core training;
• First appraisal: about 12–18 months after appointment, when both mentor and magistrate agree he/she is ready, the new justice is appraised. The appraisal observes whether the new magistrate is demonstrating that he/she is competent in the role, against the competencies.
Magistrates sit on a panel of three. The panel is composed as follows:
• one Chairman, who speaks in open court; and
• two wingers, less experienced magistrates who assist the Chairman.
(p. 179) All three magistrates carry equal weight in the decision-making process and play a full part in the discussions held in the magistrates’ retiring room.
Once a magistrate turns 70, they must ‘retire’ from the bench. The word ‘retire’ is phrased in inverted commas given that such individuals are placed on a ‘supplemental list’ under s13 CA 2003, as opposed to formally retiring. Lay magistrates are no longer qualified to sit on a bench upon being placed on this list.
Alternate to retirement, a magistrate may decide to leave the bench of their own free will, should they wish to do so (s11(1) CA 2003). In addition, there are, of course, situations whereby a magistrate may be removed from the bench before they turn 70. These circumstances are prescribed under s11(2) CA 2003 (as amended by the Crime and Courts Act 2013), which grants the LCJ the power to remove lay magistrates in certain specified circumstances. These circumstances are:
• on the grounds of incapacity or misbehaviour;
• on the ground of a persistent failure to meet such standards of competence as prescribed; or
• if he/she is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions as a justice of the peace.
As part of their role, magistrates must act in accordance with the principle of natural justice; specifically, they must act without bias or apparent bias and must ensure that justice is seen to be done. Numerous cases demonstrate this apparent bias that may be held to the detriment of a defendant; the most prominent of these being ex parte Jowitt (1974).
FACTS: The defendant exceeded the speed limit and his evidence contradicted that of a police officer. In finding the defendant guilty, the Chairman of the panel commented: ‘My principle in such cases has always been to believe the evidence of the police officer.’
HELD: The Divisional Court held that this remark would cause any reasonable person to suspect that the Chairman was biased towards the police officer and that the defendant had not been granted a fair trial.
Natural justice does not solely involve the requirement to avoid bias. It also includes the duty to ensure fairness and attention to the defendant and the trial as a whole. This was clear in R v Weston-Super-Mare JJ, ex parte Taylor (1981), where, during the defendant’s trial, the Chairman appeared to be asleep. The defendant’s solicitor suggested that the Chairman should withdraw from the case, but she declined to do so. The Divisional Court ruled that the Chairman must ensure their full attention is given to the trial and the defendant.
(p. 180) Use of local knowledge
One of the benefits of the use of magistrates is the ability to use and refer to their own local knowledge when trying a case. The key authority on this is the case of Bowman v DPP (1991).
FACTS: The defendant drove at high speed around a multi-storey car park. He did so shortly after midnight and whilst heavily intoxicated. The magistrates were required to consider whether the car park was ‘a public place’ within the meaning of the Act that he was charged under.
One magistrate lived near the car park and a second magistrate used it regularly. Through this knowledge, they were aware that the barriers were raised at night, allowing motorists to use it freely. This meant that the car park was a public place for the purposes of the Act. The magistrates convicted.
HELD: The Divisional Court ruled that magistrates have the ‘right and duty’ to use their local knowledge where appropriate, though it is always wise for them to make their intention known so that the parties can comment.
This case was qualified by a later Divisional Court ruling in Norbrook Laboratories v Health & Safety Executive (1998), which held that magistrates may use their knowledge but they must ‘always make this intention known to the parties and allow them a chance to comment on it before the decision is made’ (emphasis added).
Assistance of the legal clerk
Magistrates are assisted in the performance of their role by the legal clerk, also known as the legal adviser (see above under ‘Legal personnel’). The role of the legal adviser is detailed in the Criminal Practice Directions 2015. In particular, Practice Direction (PD)24A, para 5 states:
It shall be the responsibility of the justices’ clerk or legal adviser to provide the justices with any advice they require to perform their functions justly, whether or not the advice has been requested, on:
(a) questions of law;
(b) questions of mixed law and fact;
(c) matters of practice and procedure;
(d) the process to be followed at sentence and the matters to be taken into account, together with the range of penalties and ancillary orders available, in accordance with the relevant sentencing guidelines;
(e) any relevant decisions of the superior courts or other guidelines;
(f) the appropriate decision-making structure to be applied in any given case; and
(g) other issues relevant to the matter before the court.
What you should gather from the above list is that the legal adviser must not advise the panel on a matter of fact. This is made clear in PD24A.12, which states that ‘A justices’ clerk or (p. 181) legal adviser must not play any part in making findings of fact.’ The clerk must therefore not retire to the deliberation room with the magistrates.
This rule is demonstrated in the ex parte Ahmed (1994) case.
FACTS: The defendant was accused of deception and handling stolen property.
The magistrates retired to consider their verdict; the clerk had retired with them, without being invited to do so in open court.
HELD: Suspicion was created that the clerk was taking part in the decision of guilt, given that no point of law arose. Such suspicion led to a retrial, given the fact that the legal clerk should not be involved in the decision.
Effectiveness of lay magistrates
As a final note on the magistrates’ system, it will be useful to briefly summarize some of the pros and cons of lay magistrates (see Table 6.13).
Table 6.13 Pros and cons of lay magistrates
Use of local knowledge assists decisions
‘Middle-Class, Middle-Minded, Middle-Aged’
Three magistrates allows for a balanced view
Use of a legal adviser allows the magistrates to focus on questions of fact
Higher conviction rate in magistrates’ court than Crown Court
Cheaper than using professionals
Inconsistency in sentencing
Deal with the majority of cases
Rely too heavily on the legal clerk
Greater public confidence in magistrates than the judiciary
Case-hardened and biased
For a more in-depth look at the pros and cons of magistrates, see Penny Darbyshire,
Darbyshire on the English Legal System (11th edn, Sweet & Maxwell 2014).
Argues that the electoral roll is problematic. Specifically argues that ‘It is not accurate, because of population mobility, house moves, death, and people not registering specially to evade council tax.’
Penny Darbyshire, A Maughan, and A Stewart, ‘What can the English Legal System Learn from Jury Research published up to 2001?’ (Kingston Law School 2002)
Undertook research and found that verdicts of all white jurors did not discriminate against black and minority ethnic (BME) defendants. She argues that racially balanced juries are ‘unnecessary for fairness’, but did raise concerns of the ‘appearance of fairness’ with an all-white jury and BME defendants.
Cheryl Thomas, ‘Are Juries Fair?’ Ministry of Justice Research Series 1/10
Cab rank rule
In response to the argument that the cab rank rule operates as a restriction of freedom and that it cannot be justified, Pannick argues that ‘any lawyer who does not understand [the purpose of the rule] really has no business being an advocate’.
David Pannick, Advocates (Oxford University Press 1992)
Undertook research on the working lives of judges, and found that many judges do not appear to believe the quality of advocacy is the same between solicitors and barristers.
Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Hart Publishing 2011)
(p. 183) Essay question 1
‘Lay participation in the English legal system is a waste of time. Only qualified lawyers should be arbiters of both fact and law.’
Critically discuss this statement in light of the pros and cons of using laypersons in the legal system of England and Wales.