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Which Online (Consumers Association)

As well as all these persons and groups seeking to make the legal system work more fairly and efficiently, there is now an important trend towards the resolution of problems without resort to the legal system. This movement - often now referred to as Alternative Dispute Resolution (ADR) - has arisen mainly in connection with civil law issues. Some of the reasons why the formal legal system is felt to be unsatisfactory include:

• Delay It was calculated in 1994 that an accident claim in the County Court will take on average 79 weeks to process, 177 weeks in the High Court. This is a big improvement on previous figures and results in part from reforms in procedures under the Courts and Legal Services Act 1990. But major delay still occurs and is inevitable when very formal procedures, such as are required by courts, are adopted.
• Cost The involvement of qualified lawyers inevitably results in cost. According to evidence presented to the Woolf Report: Access to Justice, even in small claims in the County Courts, costs for claims under �1000 averaged �836, and for those over �1000 were �1267 - overall, 60% of the damages received. (See also Lord Woolf’s Inquiry Internet Site)
• Complexity The complexity of procedure makes it difficult for a person to handle their own case and itself requires the use of relatively expensive lawyers.

These issues were considered by the Woolf Report. The remedies suggested include better judicial management of cases. But also suggested is a greater adoption of the forms of alternative dispute resolution ("ADR").

ADR is already expanding as a service offered by the private sector (including lawyers). It involves the imposition of a solution to a dispute by an independent arbitrator or conciliator. That person may or may not be a lawyer. The outcome can be made binding by prior agreement. Arbitration in this way has advantages: it involves less formal procedures and so is quicker and cheaper. It can also take place without publicity. And the deemphasis of legal rights and litigation may help to produce greater reconciliation at the end of the process.

The judiciary are perhaps the most prominent amongst those involved in running the court. The largest group of judges are lay magistrates - formally titled justices of the peace. The word "lay" means that these are ordinary citizens who are not legal professionals - they have no legal training and are appointed not for any legal expertise but in order to ensure that the local community is involved in the running of the legal system and that its substantive decisions - who is guilty or innocent and what the law means - reflect to some extent community values. There are around 30,000 lay magistrates. They sit as groups of three (as a "bench"), though sometimes a shortage of magistrates means there are just two (but it is not lawful to have just one). The lay magistrates preside over criminal trials in the magistrates’ courts, which deal with the vast majority of criminal cases.

This very heavy reliance upon lay members of the public in the running of the courts system is centuries old but it is unusual in comparison with many other countries. Some of the controversies which arise are as follows:

• it is suggested that lay magistrates in their composition do not really represent the local community. Traditionally, they were predominantly male and upper or middle class. The gender balance has been addressed to a fair extent, but recruitment from all sections of society has not been achieved. Some of the problems include the degree of commitment required (around 20 sittings per year, plus some training sessions) and the narrow ways in which recruitment takes place.
• the impact which lay persons can have or should have on the legal system. Are substantial variations in the way in which the law is applied to be viewed as fair? For example, complaints are made when one group of magistrates has a much higher conviction or imprisonment rate than another.
• There may also be limitations on lay involvement because the lay magistrates sit with a legally qualified clerk, though the clerk should confine the advice to matters of law not fact.
• there are concerns about efficiency. Because they are not professional lawyers, it is said that lay magistrates take longer to analyse and understand cases. They are also more tolerant of verbose advocacy than a professional judge would be. So cases last longer, and there are three of them per case. Though they are not paid a fee for their services, the fact that the court has to be in session for longer is a great expense.

An increasing number of magistrates’ courts now make use of stipendiary magistrates. These are professional lawyers (most were either barristers or court clerks before taking this office) who are paid (a stipend) to act as full-time lawyers. There are in fact only around 100 full-time stipendiary magistrates (half in London), but their number is growing, and as it is reckoned that one stipendiary can perform the work of around 30+ lay magistrates, their presence is significant. (see Stipendiary Magistrate Appointments through the Lord Chancellor's Department pages) From the government’s point of view, their efficiency is very desirable. Nevertheless, the Lord Chancellor (Lord Irvine) has emphaised the principle of lay involvement:

"....I have no plans for a wholesale replacement of the lay magistracy by stipendiary magistrates...Without the lay magistracy, there would be a justice system - but it would be much less ‘of the people, by the people, and for the people’."

In the Crown Court, dealing with more serious criminal cases, the court personnel involves not only members of the judiciary but also a jury.

The Crown Court judiciary:

The trial is presided over by a judge whose functions are to ensure the fair conduct of the proceedings and also to give rulings on points of law. The judges also determine the sentence if the defendant is found guilty. At the end of the presentation of evidence, the judge "directs" the jury as to the law to be applied. This can involve quite complex instructions as to the law on a given subject. Ususally, judges will also summarise and analyse the facts for the jury - but should not pass comment on them. An important example of the latter is that judges may now make adverse comments if a suspect fails to give evidence in court about a defence being relied upon.

The judges are almost all former barristers. Some will be High Court out "on circuit" from London, who will stay at a provincial centre for a couple of weeks. More permamently assigned to a particular area are circuit judges. But many cases are heard also by Recorders or Assistant Recorders - part-time barristers from private practice.

The Crown Court jury consists of 12 persons, aged 18 to 70, drawn from the electoral register of local community according to rules set out in the Jury Act of 1974. They are meant to be a random cross-section of society and, like magistrates, to reflect back community standards into how the law is applied. The jury considers the facts according to the law as directed by the judge. The consideration takes place in private - the jury "retires" to a closed room where they may not discuss the case with anyone else.

Moving to civil cases, both in County Court and High Court cases, there will be a presiding judge who will decide both facts and law. It is possible to have a jury in some cases (probably most common in cases of defamation) but it is not common.

Most county court cases are heard by circuit judges; lesser value claims are dealt with by a district judge who also deals with "interlocutory" hearings (i.e. pre-trial procedural disputes).

The High Court is divided into three divisions, and the judiciary varies accordingly:

• the Queen’s Bench Division - the head is the Lord Chief Justice, but the cases are dealt with by around 50 High Court judges (sometimes called "puisne" judges)
• the Chancery Divsion - the head is the Vice Chancellor and there are around a dozen High Court judges
• the Family Division - the head is the President, assisted by over a dozen High Court judges

As for the appeals courts, these consist entirely of professional judges who have been promoted, originally from the High Court. The Court of Appeal consists of Lord Justices of Appeal and is headed by the Master of the Rolls on the civil side and the Lord Chief Justice on the criminal side. Appeals are usually heard by three judges. The House of Lords is headed by the Lord Chancellor who is the head of the judiciary and is involved in the appointment of all other judges. As well as the Lord Chancellor, there are Lords of Appeal in Ordinary - commonly called "Law Lords" - who sit in benches of five per case.

The technical quality of the professional judiciary is probably higher than at any time. They are all experienced advocates, and in addition there is now training for judicial work through the Judicial Studies Board. Nevertheless, criticisms are made of the judiciary from time to time that they are not necessarily skilled at running a court - they can appear rude and remote to ordinary people. They are certainly not representative of a cross-section of society - women and ethnic minorities are under-represented. The position of the Lord Chancellor, who is also a politician and a member of the cabinet, is also very controversial and seems to undermine the idea of judicial independence.

From Times Online

October 19, 2007

Every jurisdiction organizes the administration of justice in different ways. In England, the basic division between criminal and civil law is reflected in the court system.