Chapter 1 – The Sources of Law

The essence of Chapter One is to identify what the English Legal System actually is. ‘English Legal System’ means the legal system of England and Wales. Part 1.2 of Unlocking the English Legal System introduces the main sources of English law.

These are, briefly, the courts. This is because the judiciary has the role in respect of the development of the common law (considered in Part 1.4), equity (considered in part 1.4.2), and by the interpretation of Acts of Parliament (considered in detail in Chapter 3). Second, Parliament itself. Parliament is the principal lawmaker in the English Legal System because of the doctrine of Parliamentary Sovereignty. Laws passed by Parliament are called Acts, statutes or legislation. Third, the European Union, or EU. And fourth, the Council of Europe (these bodies are covered in Chapter 2 in detail).

The remainder of this introductory talk will focus on delegated legislation. If the authority or power to do something is ‘delegated’, it is given or passed on to someone else. Parliament may give the power to make laws and rules to another. The power to make delegated law must be given under a statute (called the parent or enabling Act).

The process involves Parliament passing a very broadly drafted statute (called a parent or enabling Act) which delegates the law-making power upon a government department or Minister. The delegated legislation is called a statutory instrument because it carries out (is instrumental in giving effect to) the requirements of the statute. Large numbers of statutory instruments – approximately 3,500 – are made every year. The rules and regulations passed under the enabling Act are in no way inferior to primary legislation (the Act itself), but unlike primary legislation they can be questioned and annulled by courts.

There are other forms of delegated legislation, including Legislative Reform Orders (see Part 1.6.2), by-laws (see Part 1.6.3) and Orders in Council (see Part 1.6.4).

Just as Parliament gives the power to make delegated legislation, it can take the power away. However, rather than use this extreme measure, Parliament will often provide in the parent Act that the delegated legislation made under it has to be laid before Parliament for approval. This enables MPs to know what a Minister is proposing and therefore they can be held accountable.

The negative resolution procedure requires the delegated legislation to be laid before Parliament for 40 days and, if it is not voted against in that time, it becomes law. Less controversial or contentious powers, which have cross-party support, are usually subject to the negative resolution procedure. About 80 per cent of statutory instruments are made via the negative procedure.

The affirmative resolution procedure requires the delegated legislation to approved by a vote in the House of Commons and the House of Lords before it is made and becomes law. Only around 20 per cent of statutory instruments are laid under the affirmative procedure. Measures that are more controversial are subject to the affirmative resolution procedure. Affirmative statutory instruments can be stopped if either House votes against them.

For the special procedures introduced to consider delegated legislation related to the UK’s exit from the European Union, see Part 1.6.5.

The judiciary cannot generally review primary legislation, but can review delegated legislation. The process is called judicial review.

This review can take place only after the delegated legislation has come into force. The court may declare it void for being ultra vires (beyond the powers of the person or body who made it). There are two types of ultra vires:

• procedural ultra vires: this is where the parent Act lays down procedural rules which must be followed by the subordinate authority – if these rules are not followed, the court can find the delegated legislation ultra vires and void; and
• substantive ultra vires: where the delegated legislation goes beyond what Parliament intended then the court can declare it void on substantive grounds.

Chapter 2 – The English Legal System and European Law

Chapter Two considers the main sources of European law that influence the English Legal System. This talk will summarise the differences between the Council of Europe and the European Union.

The UK has a dualist legal system, not a monist legal system. In monist systems, international law is incorporated and has effect automatically in domestic law. This means that a court can rule national law as void if it conflicts with international law. In the UK’s dualist system, domestic law and international law are considered separate. This means that, in order to apply domestically, international law must be incorporated into domestic law. In the UK, this is done through Acts of Parliament.

Both the European Convention on Human Rights (or ECHR), and European Union (or EU) law, have been incorporated into UK law through Acts of Parliament. The ECHR has been incorporated into UK law by the Human Rights Act 1998, and EU law has been incorporated into UK law through the European Union (Withdrawal) Act 2018.

The European Union and the Council of Europe, a body which drafted and is responsible for the ECHR, are two very separate entities.

The EU was originally an economic and trading organisation. The history of the EU can be found at Part 2.2.1 and Part 2.2.2. The UK joined the EU in 1973, and left in 2020. ‘Brexit’ happened because in 2016, a majority of voters in a nationwide referendum voted for the UK to leave the EU. This is covered in Part 2.3 of the chapter.

Importantly for our purposes, EU law has been incorporated into the English Legal System by the European Union (Withdrawal) Act 2018. It will remain part of the English Legal System until the UK Parliament decides to repeal or amend it.

Now please refer to Part 2.4 in respect of the Council of Europe and the European Convention on Human Rights. We cannot emphasise enough that the Council of Europe is not the same organisation as the European Union. It is easy to see why the error arises, but try to keep them separate in your minds. Use the Key Facts chart, just before the end of the chapter.

When you think of the Council of Europe, think of the European Convention on Human Rights. This Convention is, for our purposes, a treaty, which lists in Articles some fundamental rights and freedoms, such as the right to life, the right to a fair trial and freedom of thought and expression. These can be found in Figure 2.2.

Next, link the Convention to the Human Rights Act 1998. This is an Act of Parliament, and is arranged in sections like any other Act of Parliament. These provisions give legal effect to the rights listed in the Articles into English law. The study of the English Legal System usually requires you to have a basic grasp of sections 2, 3 and 4 of the Human Rights Act. These are explained and illustrated with cases in Part 2.4.1.

Chapter 3 – The doctrine of judicial precedent

This chapter is all about following previous decisions.

We look at which courts have to follow cases which have gone before, which courts should follow what has gone before, which courts do not have to follow what has gone before, and how a court can avoid following what has gone before. We also have to look at what it means to say “follow what has gone before”, because not all aspects of a case are binding on future decisions.

To get a full picture of the system of precedent, you must have a reasonable working knowledge of the court hierarchy, which you can find at Figure 3.1. You also need to have a grasp of the nature of the ratio decidendi of a case, which you can find at Part 3.2.2. And to do well, you will need a detailed understanding of how the system works in each court within the hierarchy. This is covered in Part 3.3 of the book. A good starting point to understanding the system of precedent can be found in Part 3.2.1, taken from the writings of Twining and Myers.

However, in this talk, we will focus on the self-binding nature of precedent in the House of Lords, now of course the Supreme Court, and the Court of Appeal, because students do tend to overstate the flexibility of the system.

You should always think of the House of Lords as having been normally bound by its own previous decisions, and the Supreme Court as being normally bound by its previous decisions, and the previous decisions of the House of Lords.

The 1966 Practice Statement, which you can find in Part 3.3.1, explains why the highest court should regard its previous decisions as normally binding. For example, because it provides for some degree of certainty. That said, the House of Lords could, and the Supreme Court can, depart from a previous decision “when it appears right to do so”. These are the key words, and you should address what they mean by looking at the cases discussed in Part 3.3.1 under the sub-heading “The use of the Practice Statement by the House of Lords”, such as Conway v Rimmer (1968), Herrington v British Railway Board (1972), R v Shivpuri (1986) and R v G (2003).

When we move on to look at the Court of Appeal in Part 3.3.2, you should always say that previous decisions of the Court of Appeal are normally binding on later cases at the same court. You must also recognise that the Court of Appeal does not have the same power to depart even if it appears right to do so, as the House of Lords did, and the Supreme Court does.

In both divisions of the Court of Appeal, a departure from a previous decision can be made only if one of the three rules from Young v Bristol Aeroplane (1944) is satisfied. And in particular, you should note that the per incuriam rule is very narrow. There is a little more flexibility at the Criminal Division of the Court of Appeal under the rule in R v Taylor (1950), explained in Part 3.3.3 of the book.

But the doctrine of stare decisis is more than the binding nature of previous decisions. A good answer would show your grasp of the more subtle forms of avoiding previous decisions, such as distinguishing, and the less subtle attempts of the previous Master of the Rolls, Lord Denning, to avoid the Court of Appeal being bound by the House of Lords.

More recent developments in precedent are also worthy of your consideration, such as the impact of the Human Rights Act 1998. You are referred to Part 3.4, and the case of Mendoza v Ghaidan (2002), as decided at the Court of Appeal and the House of Lords.

Chapter 4 – Statutory interpretation

A major issue in statutory interpretation is whether the literal approach or the purposive approach should be used. These two approaches are very different, and may lead to different results for cases. The traditional method in the English courts was the literal approach. The courts took the view that their role was to implement the words that Parliament had set down in law. The court should not create law. The literal approach has led to harsh decisions in some cases, or absurd decisions in others. However, this did not use to bother the courts. The old view of the courts was expressed by Lord Esher in R v Judge of the City of London Court (1892), when he said:

“If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.”

This attitude led to decisions such as Whiteley v Chappell (1868), where the defendant was not guilty of impersonating any person entitled to vote, because the person he impersonated was dead. See section 4.2.1 in Unlocking the English Legal System for full details.

The use of the literal rule has also led to harsh decisions, such as that in London & North Eastern Railway Co v Berriman (1946), where the widow of a railway worker killed by a train when oiling points was unable to claim compensation as her husband had not been literally re-laying or repairing the track, and those were the only situations in which a lookout had to be provided. See Section 4.1.1 for full details.

The modern purposive approach looks at what Parliament intended to achieve by the Act. If Whiteley v Chappell had been decided under this approach it is probably that the court would have held the defendant to by guilty, as the law was aimed at preventing people from voting in the name of another person. Similarly, if Berriman was decided under the purposive approach, it is almost certain that the courts would have held that the railway company was liable for not providing a lookout when a man was required to work on the track, even though he was maintaining it.

The purposive approach was expressed in 1950 by Lord Denning when he said:

“We sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

At that time the other judges were critical of Lord Denning’s view. However the purposive approach has become more widely used. A major reason for this is the influence of European Union Law. It is the approach used by the Court of Justice of the European Union, and our courts use of the purposive approach when deciding points of European law.

The use of the purposive approach was strengthened by the decision in Pepper v Hart (1993), when it was held that the courts could look at Hansard in order to discover what Parliament had intended when passing an Act.

The Human Rights Act 1998 has also led to far more use of the purposive approach. This is because section 3 of the Act states that as far as it is possible to do so, legislation must be read and given effect in a way which is compatible with Convention rights. So where the literal interpretation would not give effect to Convention rights, the courts have to consider whether interpreting the legislation in a purposive manner could do so.

Given this, the purposive approach is likely to continue to be used more frequently, even after the UK’s withdrawal from the European Union.

Chapter 5 – Legal Reasoning

This talk discusses different approaches to legal reasoning that are adopted by judges. In listening to these different approaches, you should consider which of the approaches to deciding cases you find the most persuasive, and why.

Legal formalism contends that law is, and should be, a self-determining system. Formalists view law as a system of known rules, which are clear and capable of literal interpretation. Formalists argue that legal reasoning can be conducted through the logical formulations of deductive reasoning. Deductive reasoning can be expressed through a deductive syllogism. A ‘syllogism’ is a deductive argument that yields the conclusion as deduced from the premises. A famous example of deductive reasoning, which shows the different premises, is as follows:

[Major premise]	All men are mortals
[Minor premise]	Socrates is a man
[Conclusion]	Socrates is mortal

The conclusion is deduced from the major premise being applied to the minor premise. If the premises of the syllogism are true and clear, and the rules of deductive logic followed (that is to say, that the major premise is applied to the minor premise), then the conclusion reached must be true.

Legal realists claim that the life of the law is experience, not logic. Legal realists claim that legal rules are indeterminate, meaning that it is not possible to reason deductively with those rules. In addition, realists claim that legal facts are not certain pieces of information, but are created by legal processes like the trial. Because of this, other factors must influence a judge’s decision-making. These other factors could be what the judge thinks is the morally right answer in the case, or it could be the judge’s own political beliefs that underpin the decision. See Part 5.5 for further discussion.

Legal positivists argue that there is no necessary connection between law and morality. Judges should not rely upon morality in deciding cases. H L A Hart was a famous positivist. Hart argued that there will always be ‘hard’ cases, which is where the applications of legal rules cannot be done in a straightforward manner. In a hard case, the judge has to use their discretion to adapt pre-existing legal rules to novel cases as they arise. Law is therefore a system of rules supplemented by law-creating exercises of judicial discretion which do not rely on their own morals. See Part 5.6 for more detail.

Natural lawyers claim that the authority of law derives, at least in part, from considerations having to do with the moral merit of those standards. This means that there is no clean division between the notion of law and the notion of morality. For a good example of how to construct a theory of legal reasoning based on natural law, see the book’s discussion of Ronald Dworkin’s theory of ‘integrity’ at Part 5.7.

Critical legal theorists contend that the law contains rules, but it also will contain exceptions to those rules. Instead of just being rules and exceptions, critical legal theorists argue that they represent competing social visions that are contested in every decision. The rule and the exception represent a principle and counter-principle – for example freedom of contract and fairness of contract. The point is that the law provides a wealth of possibilities for lawyers to argue any case either way. This means that lawyers can use the law to effect radical social transformations, and should embrace this role.

These issues are explored further in the end of chapter essay question and associated discussion.

Chapter 6 – Civil Courts

The Civil Justice System should be accessible, fair, efficient, with rules that are both simple and simply expressed. However, during the second half of the twentieth century, it was felt that taking a case to court was very expensive, there were excessive delays, and the rules which governed civil justice were very complex (see section 6.4 in the textbook).

Between the years 1950 and the year 2000, this problem of delay was considered on six occasions by different committees. These included the Heilbron-Hodge Committee in 1993, and most importantly the Woolf Review, from 1994 to 1996. Further details of the Woolf Report can be found at section 6.5 of the textbook.

Lord Woolf published his report in July 1996. There were several key objectives that he wanted the Civil Justice System to achieve. First, he wanted parties to be encouraged to explore alternatives to a court resolution of a dispute. Second, he wanted a single set of rules that would govern proceedings in both the High Court and the County Court. Third, he wanted a shorter timetable for cases to reach court and for the length of trials. Fourth, he wanted more affordable litigation.

To this end, following the Woolf Report, a system of judicial case management was instituted. This system means that it is judges, and not the parties’ lawyers, that would manage and direct the case (see section 6.5.3 of the textbook). In addition, the court encourages parties where appropriate to use Alternative Dispute Resolution, or ADR (see section 6.5.5 and Chapter 7 of the textbook).

Have the Woolf reforms been a success?

Lord Woolf wanted the Civil Justice System to deal with cases at a reasonable speed, for cases to not be too expensive, to be just and fair in the way it treats litigants and the results it delivers, and to be effective, adequately resourced, and organised. Lord Woolf also recommended that more use should be made of IT to make the court system more efficient. However, in the many years since the Woolf Report was released, reality still has not caught up with this recommendation.

The Woolf Report has also been criticised by leading academics. Professor Zander reviewed the ten years after the Woolf reforms and pointed out that there was still a delay in cases. The delay had merely changed from after the issue of the case, to before starting a case itself. Professor Zander also noted that the complexity of the Civil Procedure Rules had increased. They are now more than five times longer than the rulebooks pre-Woolf. Finally, on the issue of costs, Professor Zander noted that there was universal agreement that costs have increased after the Woolf Report was published.

In response to this, the Government asked Lord Justice Jackson to make recommendations to reform the costs system. The Jackson Report was published in 2010. Within this Report, The Review of Civil Litigation Costs, Lord Justice Jackson stressed the need for costs to be proportionate to the claim. Lord Justice Jackson sought to introduce a general scheme of fixed recoverable costs and to impose a budget for each individual case, called ‘costs budgeting’. Fixed recoverable costs set the amount of legal costs that the winning party can claim back from the losing party in civil litigation.

Following the Report, the Court of Appeal was given power to direct and issue rulings against parties who did not strictly follow rulings on costs, thereby financially penalising them for any delaying tactics. An example of this can be found in the case of Mitchell v News Group Newspapers (2013). The claimant filed their costs budget late, which led to the original hearing being delayed, and as a result the claimant was only allowed to recover court fees and not the wider legal costs which were more than £500,000. The Court of Appeal looks like it is going to be taking a strict line on the issue of costs to try and reduce the expense involved in civil justice.

In 2019 the Government reviewed the impact of the Jackson Report and concluded that the post-Jackson policies were working to reduce the cost of civil justice.

In July 2016, twenty years after the Woolf Report was published, Lord Justice Briggs authored the Civil Courts Structure Review, which recommended that a new ‘Online Court’ be created. This would involve litigants not being represented by lawyers, but digitally exchanging documents and information about their case with the process being overseen by a judge.

In September 2016, the Ministry of Justice report ‘Transforming our Justice System’ committed the Government to modernising the courts and tribunals system. The programme aims to:

• Introduce a new process for resolving claims entirely online, using IT and specialist case officers to progress simple cases through the system, reserving judicial time for more complex claims;
• Introduce a digital case management system;
• Encouraging parties to resolve disputes themselves where possible (see the next chapter for more details);
• Reduce the size of the courts estate and upgrade to modern facilities, including flexible operating hours (see section 6.8.2);
• Encourage further use of video hearings; and
• Upgrade Wi-Fi and IT infrastructure.

Chapter 7 – Alternative Dispute Resolution

Using the courts to resolve disputes can be costly, in terms of both money and time. It can also be traumatic for the individuals involved and it may not lead to the most satisfactory outcome for the case. An additional problem is that court proceedings are usually open to the public and the press, so there is nothing to stop the details of the case being published in local or national newspapers. It is not surprising, therefore, that more and more people and businesses are seeking other methods of resolving their disputes. Alternative methods are referred to as ADR, which stands for ‘alternative dispute resolution’. This includes any method of resolving a dispute without resorting to using the courts.

There are many different methods of ADR that can be used, ranging from very informal negotiations between the parties to a comparatively formal commercial arbitration hearing. The four main methods are:

• negotiation;
• mediation;
• conciliation; and
• arbitration.

Negotiation is the quickest and cheapest method of settling a dispute. It also has the advantage of being completely private. Anyone who has a dispute with another person can always try to resolve it by negotiating directly with them. If the parties cannot come to an agreement, they may decide to take the step of instructing trained negotiators. Even where the parties have referred the matter to their solicitors, it is usual for the solicitors to try to negotiate a settlement. In fact, even when court proceedings have been commenced the lawyers for the parties will often continue to negotiate on behalf of their clients. This is reflected in the high number of claims which are issued but are then settled out of court.

In mediation a neutral mediator helps the parties to reach a compromise solution. The role of a mediator is to act as a ‘go-between’. He will consult with each party and see how much common ground there is between them. He will explore the position with each party, looking at their needs and will carry offers back and forth, while keeping confidentiality. This usually takes place at a neutral venue. The parties are given separate private rooms.

In conciliation the conciliator takes a more active role. They suggest grounds for compromise and the possible basis for a settlement. As with mediation, conciliation does not necessarily lead to a resolution and it may be necessary to continue with a court action, though the conciliation process, even where unsuccessful, may well narrow the issues and avoid lengthy court cases. The parties remain in control throughout the proceedings; they do not have to accept the conciliator’s suggestions.

Arbitration is where the parties agree to submit their claims to the judgment of an independent person instead of taking a court case. The Arbitration Act 1996 governs arbitration. The precise way in which the arbitration is carried out is left almost entirely to the parties’ agreement. Under s.33 of the Act the parties are free to adopt whatever procedures they think appropriate, but the arbitrator(s) must act fairly and impartially under the rules of natural justice. Arbitration is much more formal than the other forms of ADR, and the delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyers are used. The main advantage is that proceedings are held in private and there will be no publicity.

Chapter 8 – Criminal courts and procedure

This talk will consider race in the criminal justice system. A key principle of any criminal justice system should be that everyone should be treated in a fair and even-handed way. However, there has long been concern that the criminal justice system discriminates against those from an ethnic minority (or BAME – black and minority ethnic group).

Ethnic minority communities in the UK have long had difficult relationships with the police. In 1981 there were riots in Brixton, South London, a result of years of systemic discrimination. The main riot on resulted in 279 injuries to police and 45 injuries to members of the public; over a hundred vehicles were burned, including 56 police vehicles; almost 150 buildings were damaged, with thirty burned. There were 82 arrests. Reports suggested that up to 5,000 people were involved.

The racist murder of Stephen Lawrence in 1993 was a seminal moment in British policing. The 1999 Macpherson Report, an investigation into the murder and the failure of the police to establish sufficient evidence for the prosecution of the charged suspects, concluded that the Metropolitan Police’s policing was institutionally racist. Institutional racism was defined as:

‘The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.’

Over 20 years have passed since the Macpherson Report was published, but recent data suggests that there is still cause for concern that institutional racism is still an issue in the criminal justice system.

Not a single police force in England or Wales registered an arrest rate of less than 20 for every 1,000 black people. By contrast, not a single police force in England and Wales registered an arrest rate of more than 20 for every 1,000 white people. Overall stop-and-search rates between 2019 and 2020 show that Black people are now nearly 10 times more likely to be stopped and searched by police than white people. Young black men were stopped and searched by police more than 20,000 times in London during the coronavirus lockdown – the equivalent more than a quarter of all black 15- to 24-year-olds in the capital. If stopped a Muslim individual is eight times as likely to be searched as other ethnic groups. Across the UK, Black children were over four times more likely than white children to be arrested.

Police data also shows a disproportionate number of people from ethnic minorities died because of excessive force. Between 1990 and 2015, an average of one person a week died following contact with police or whilst being held in police custody. One African, Caribbean, or South Asian person died in custody every two months. Data disclosed by the Metropolitan Police in August 2017 found that people of African descent and of ethnic minority background, young African and Caribbean men, subject to deadly use of force by restraint and restraint equipment, were twice as likely to die after the use of force by police officers and the subsequent lack or insufficiency of access to appropriate healthcare.

At the beginning of 2016, David Lammy MP was asked by the then Prime Minister, David Cameron, to review the workings of the criminal justice system, with the object of seeing whether the system worked fairly, in relation to ethnic minority individuals. The final report of his review was published in September 2017. The statistics on race in the criminal justice system identified by the Review pointed to systemic disadvantage suffered by ethnic minority groups.

Lammy made several innovative recommendations for judges, prosecutors, and prisons. For example, he proposed that a ‘deferred prosecution’ model be rolled out, allowing low-level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. The Review also recommended that all sentencing remarks made by judges in the Crown Court should be published. It argued that this could help to make justice more transparent for victims, witnesses, and offenders.

The Review also argued that the United Kingdom should learn from the United States system for ‘sealing’ criminal records, claiming that ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed. The judge would then decide whether to ‘seal’ the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision went the applicant’s way, their record would still exist, but the individual would not need to disclose it and employers would not be able to access it. It was hoped that this would help the people affected to become more employable.

The Review accepted that there were other wider social issues that must be addressed as well; but argued that the recommendations could do much to build greater trust in the criminal justice system, reduce reoffending, and improve outcomes for victims. The Government and the Ministry of Justice committed to acting on the Lammy Review’s recommendations.

Chapter 9 – Sentencing

Whenever a person pleads guilty or is found guilty by a court of an offence, the role of the court is to decide what sentence should be imposed on that offender. Judges and magistrates have a fairly wide discretion as to the sentence they select in each case, although they are subject to certain restrictions and guidelines.

When judges or magistrates have to pass a sentence, they will not only look at the sentences available, they will also have to decide what they are trying to achieve by the punishment they give.

The Sentencing Act 2020 was passed in 2020. It is a consolidation project bringing together many Acts of Parliament on sentencing into one Act. The Act creates the Sentencing Code, which aims to assist judges and legal professionals in identifying and applying the law, reducing the risk of error, and enhancing the transparency of the sentencing process for the public.

The purposes or aims of sentencing for adult offenders are set down in section 57 of the Sentencing Act 2020. They are as follows:

1. The punishment of offenders;
2. The reduction of crime (including its reduction by deterrence);
3. The reform or rehabilitation of offenders;
4. The protection of the public;
5. The making of reparation by offenders to persons affected by their offences.

One of the problems in relation to these purposes of sentencing is that some of them may conflict with one another in particular cases. For example, the sentence which is most suitable for reforming an offender may not be the same sentence which is passed if the judge, or magistrate, simply wanted to consider the purpose of punishment. In most cases the judge is performing a balancing act.

We will now look at these five purposes of sentencing in turn.

First, punishment. This aim is also referred to as retribution. It is based on the idea that the punishment should be imposed because the offender ‘deserves it’. It does not seek to reduce crime, nor alter the offender’s future behaviour. This punishment, or retribution, is therefore only concerned with the fact that the offence was committed, and in ensuring that the punishment is inflicted in proportion to that offence.

Second, deterrence. This can involve either individual deterrence or general deterrence. Individual deterrence is intended to make sure that the offender does not reoffend through their own fear of future punishment. General deterrence is aimed at preventing other potential offenders from committing crimes. Both individual deterrence and general deterrence aim to reduce future levels of crime.

Third, reform and rehabilitation. Under this the main aim of the penalty is to reform the offender and rehabilitate him or her into society. It is therefore a forward-looking aim, and it can be contrasted with retribution which is retrospective, or backward-looking. The hope with reform and rehabilitation is that the offender’s behaviour will be altered by the penalty imposed so that he or she will not offend in the future. Therefore, it also aims to reduce crime.

Fourth, protection of the public. This usually involves incapacitating the offender in some way, and is also known as ‘incapacitation’. This punishment aims to make the offender incapable of reoffending. The ultimate form of incapacitative punishment is the death penalty, but in England and Wales the death penalty has been abolished, so the ultimate incapacitative punishment available for judges is life imprisonment. Incapacitation is thought of as protecting society from the criminal activities of the offender because the offender will not be able to commit any offences whilst they are in jail.

Fifth, reparation. This is where the offender must make reparation, or compensation, to the victim or community who have suffered because of the offence. This could involve monetary compensation to the victim of the crime, or it could involve a community sentence.

Each of these five purposes of sentencing have slightly different aims and would involve different sentences if they are issued by a judge or magistrate. In your own study of the English Legal System, try to think about which one of the five you find the most persuasive and why.

Chapter 10 – Appeals

Chapter 10 deals with the appeals system for civil and criminal cases, but much more detailed consideration is given to criminal cases because the Civil Procedure Rules have simplified appeals in civil cases. In a nutshell, appeals in civil cases are not automatic, permission to appeal is generally always required, and the appeals will be allowed only if the decision of the lower court was wrong or unjust.

Part 10.3 of the book deals with the more complicated system of appeals in criminal proceedings. The court of trial or sentence dictates the court to which an appeal lies. Let us start with appeals from summary trial considered in Part 10.5.1. Only the defendant can appeal to the Crown Court. Depending on his original plea, he may appeal against conviction, or sentence, or both. Further appeal lies to the High Court only.

The prosecution cannot appeal a case from the Magistrates’ Court to the Crown Court. However, both the defendant and the prosecution may bring an appeal by way of case stated from the Magistrates’ Court to the High Court. This is a paper only appeal, heard in the Administrative Court. Further appeal lies to the Supreme Court.

Let us consider now appeals from trials on indictment. These differ depending upon whether the defendant or the prosecution is bringing the appeal. Obviously, the prosecution would not usually wish to appeal against a conviction, but there is an appeal following a conviction against an unduly lenient sentence – see Part 10.4.2.

The prosecution can also bring an Attorney-General’s Reference, for clarification of the law following an acquittal – see Part 10.4.1. But the outcome of the Reference does not affect the acquittal, so strictly speaking it is not an appeal at all.

An acquittal could be appealed against either under sections 54 and 55 of the Criminal Procedure and Investigations Act 1996 or sections 75 and 76 of the Criminal Justice Act 2003. The latter is the partial abolition in England and Wales of the rules against double jeopardy. Please refer to Part 10.4.5 for more information.

Defence appeals following trials on indictment are examined in Part 10.5. Leave must be granted, and all appeals lie to the Criminal Division of the Court of Appeal, and thereafter, if further leave is granted, to the Supreme Court.

It is commonly forgotten by students that the Court of Appeal must allow an appeal against conviction if it feels that the conviction is unsafe. The meaning of that very small word ‘unsafe’ has been subject to analysis, and if you go into criminal practice representing clients, its meaning is vital for you to understand. The leading case is Mullen (1999). You will find the facts and decision in Part 10.5.2. ‘Unsafe’ bears a broad meaning, much broader than many people imagine.

No consideration of defence appeals would be complete without some understanding of the role and importance of the Criminal Cases Review Commission, which is discussed in Part 10.8. Please remember its remit includes cases originally heard summarily as well as on indictment.

Chapter 11 – Funding

This talk concentrates on the debate over how much public funding of claimants and defendants in civil cases should be available.

Public funding of civil cases is important in providing access to justice. Access to justice is a human right as everyone should be equal before the law.

Bringing or defending a claim in the civil courts can be very expensive, and beyond the reach of many people. Indeed, most people could not afford to pay for legal services for a large civil case.

Public funding of civil cases began in 1949, following the report of the Rushcliffe Committee. It continued to develop and expand so that by the 1970s it was estimated that over 80% of the population qualified for some help. This certainly created access to justice, but it came at a cost. Legal funding has to be paid for through taxes. It has to compete for funding with all other public services, such as health, education and defence, and a sum for it is allocated each year in the Government’s budget.

The original scheme was demand-led. This meant that the amount spent on it each year was usually more than had been budgeted for and the cost of it spiralled upwards year on year.

This was the main reason why successive governments have made severe cuts to legal aid to save money. By the 1990s only about 48% of the population were eligible to receive help. Under the Access to Justice Act 1999, there was a major reform of the legal aid system. This was followed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (or LASPO), which made further major changes to the system. The administration of legal aid has, since 2013, been operated by the Legal Aid Agency which comes under the umbrella of the Ministry of Justice. Anyone applying for legal aid must satisfy a ‘means test’. This means that the applicant must show that they do not have enough money to pay for their own lawyer.

Under the system set up by the 2012 Act, the starting point is that legal aid is not available for civil cases unless it is a category specifically mentioned in the Act in Schedule 1. These categories include cases involving children’s rights, domestic violence, the loss of one’s home and immigration rights.

Section 9(2) of LASPO gave the Lord Chancellor power to add to, or ‘vary or omit’ the categories listed in Schedule 1. The Lord Chancellor attempted to amend Schedule 1 to introduce a ‘residency test’. This would have meant that only those who are lawfully resident in the UK at the time of the application and have been resident in the UK for at least 12 months would be able to claim civil legal aid. The Supreme Court unanimously ruled that the Lord Chancellor’s actions were unlawful in R (The Public Law Project) v Lord Chancellor (2016). This was because the Lord Chancellor was given the power to add or remove categories from the list in Schedule 1; he was not given power to determine who could access legal aid for those categories.

The Lord Chancellor set, in 2013 through exceptional funding guidance, a very high threshold to reach for legal aid to be granted:

‘The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold.’

During the passage of the LASPO Bill through Parliament, the Government originally projected that 5,000–7,000 such exceptional cases would be funded per year. In reality, only 954 people benefited from the scheme in 2017.

The restrictive nature of the legal aid rules led to several legal challenges. In R (Gudanaviciene and others) v The Director of Legal Aid Casework; The Lord Chancellor (2014) the Court of Appeal ruled that the exceptional funding guidance was unlawful as it set the bar for the provision of legal aid too high. Revised guidance was held to be lawful in 2016. See Part 11.3.2 for more details.

These cuts to legal aid have been criticised by lawyers. See the Critiquing the Law exercise at the end of the chapter for more details.

Despite the criticisms, it is likely that a restrictive approach to granting legal aid will continue for the foreseeable future.

Chapter 12 – Juries

This talk focuses on the issue of allowing police and lawyers to sit as jurors. Prior to the Criminal Justice Act 2003, police and lawyers were ineligible for jury service. That Act changed this and made police and lawyers eligible. As a result, there have been a number of appeals against conviction in cases because of the inclusion of a lawyer or a police officer on a jury. These appeals have been based on the alleged breach of Article 6 of the European Convention on Human Rights, the right to a fair trial.

This deals with what is known in English law as ‘apparent bias’. The test for apparent bias was laid down in Porter v Magill (2001) is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. How have the courts grappled with this issue?

The reality is that whether individual jurors fall foul of the apparent bias test will depend upon the exact circumstances of the case in question. In the conjoined cases of R v Abdroikof: R v Green: R v Williamson (2007) the House of Lords considered appeals in three cases where there had been either a police officer or a prosecuting lawyer as a member of the jury. The House of Lords by a majority of three to two allowed the appeals in the cases of Green and Williamson. The appeal in the case Abdroikof was unanimously dismissed by the Law Lords.

The majority decision in the cases of Green and Williamson was based on the problem of appearance of bias. In Green the defendant was searched by police. During the search a police officer put his hand into the appellant’s pocket and pricked his finger on a used syringe. The appellant was charged with assault occasioning actual bodily harm and having a bladed or pointed article. A police officer posted within the same Operational Command Unit as the officer who had searched the defendant was a part of the jury that convicted Green. The two officers did not know each other. In Williamson the defendant was charged with rape. A senior Crown Prosecutor sat on his jury.

In the case of Green there was a dispute on the evidence between the appellant and the police officer who searched him. The fact that the policer officer and the juror, although not personally known to each other, shared the same local service background gave rise to apparent bias. In the case of Williamson there was a broader issue as to whether a trial in which there was a juror who was professionally committed to one side only of an adversarial trial process could ever be seen to be fair; the majority concluded that it could not be.

In Abdroikof the defendant was tried for attempted murder. When the jury were considering their verdict, the foreman of the jury sent a note to the judge revealing that he was a serving police officer. He was concerned that, if required to report for duty at the Notting Hill Carnival on the following Bank Holiday Monday when the court was not sitting, he might meet one or more police officers who had been called to give evidence at the trial. The Lords in their judgment thought that it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant. Accordingly, all five Law Lords agreed that this appeal should be dismissed.

In the conjoined cases of R v Hanif (Ilyas); R v Khan (Bakish Allah) (2014) two appellants had police officers on their respective juries who convicted them at trial. The presence of a police officer on a jury where there was no challenge to the evidence of the police would not affect the impartiality and independence of the jury. However, if the evidence of the police was in dispute, it would be a matter of judgment, applying the test of apparent bias from Porter v Magill (2002), as to whether the relationship between the police officer giving evidence and the police officer on the jury was such that the fair-minded and informed observer would consider that there was a real possibility that the tribunal was biased. The first appellant's conviction for conspiracy to supply heroin was rendered unsafe by the presence on the jury of a police officer who knew one of the officers who was giving evidence in the case. However, there was no possibility of bias in relation to the second appellant, as the case against him did not depend in any way on the evidence of the police.

It is interesting to see how other jurisdictions cope with this problem. Lawyers are eligible for jury service in most other jurisdictions, for example in the United States of America. However, in the USA defence and prosecution lawyers have the right to challenge any juror and have them removed from the jury without giving a reason for their removal. It is widely acknowledged that such a challenge is often used to remove lawyers from the jury. However, we no longer have any right of challenge without cause in this country. That was removed in 1988. So, we have the situation where professional prosecutors can still be summoned to serve on juries and unless the defence knows they are a prosecutor they cannot remove them. There may continue to be cases in which bias may be seen to exist even if the prosecutor is a very impartial member of the jury.

Chapter 13 – Lay magistrates

The existence of lay magistrates is a result of history. Starting in 1195, the Keepers of the Peace were created to help the Sheriff maintain law and order. Their role became wider in the 1300s when “good and lawful men” were assigned to keep the peace and hold four sessions each year. These sessions were initially more concerned with administrative matters, but gradually they came to include criminal cases. From 1496 these Justices of the Peace were given powers to deal with minor criminal cases locally. This was the real start of the Magistrates’ Courts. Their role in the criminal justice system has continued ever since then.

So should non-lawyers be able to decide criminal cases, and impose penalties on guilty defendants in today’s world? Magistrates Courts deal with about 1 million criminal cases each year. This is about 98% of all criminal trials. In most Magistrates’ Courts, cases are dealt with by lay magistrates. That is, people who are not qualified lawyers. The range and seriousness of the cases heard by lay magistrates has also increased. This is because various offences have been downgraded over the years. Previously indictable offences are now triable either way, so could be tried in the Magistrates’ Courts. Previously triable either way offences are now summary offences, and so can only be tried in the Magistrates’ Courts. Also, in the past twenty years successive Governments have created over 3,000 new offences. The vast majority of these are summary offences and so only triable in the Magistrates’ Court. So, you can see that magistrates have a much bigger range of cases to deal with.

There are many reasons for using lay magistrates. One of the main ones is that it gives citizens a part to play in the administration of the law. Penny Darbyshire states that:

“Every person has an equal right to participate in matters of general concern.”

There is also the fact that lay magistrates are far more representative of the local community than professional judges. Lay magistrates are a wider age range, they have a well-balanced gender ratio, and they have a good representation of ethnic minorities compared to qualified judges.

However, to be accurate, only about 1% of lay magistrates are under the age of 30, and there is still some over-representation of the middle class. Lay magistrates are no longer as amateur as they may have been in the past. Training is compulsory and has been much improved. Lay magistrates are much more aware of procedures and their duties. They have clear sentencing guidelines to apply when imposing sentences on offenders.

Each court area has a Justices’ Clerk, who must be qualified as a solicitor or a barrister. Also, when any court is sitting there is a Court Clerk present. These Court Clerks also must have a legal qualification – perhaps a law degree or a special Diploma in Magisterial Law. The lay magistrates are there to make decisions of fact, and to pass sentence on guilty defendants. If points of law arise, then they will consult the Court Clerk. This system seems to work amazingly well, as there are only about 100 appeals on a point of law to the Queen’s Bench Divisional Court each year, and this is out of 1 million cases tried in the Magistrates’ Court each year.

So, although lay magistrates may be seen as a ‘historical hangover’, the system has been adopted to modern needs and generally works well.

Chapter 14 – The legal profession

Following the publication of the Legal Education and Training Review (or LETR, pronounced ‘letter’) in 2013, the Solicitors Regulation Authority (or SRA) proposed far-reaching reforms to how solicitors qualify.

The SRA argued that the LETR painted a dismal picture of the current market for professional legal education and training. In the previous system, the cost of training was too high, and fell disproportionately heavily on those prospective solicitors who risked not getting a training contract. In addition, there was not enough information about how solicitors can qualify.

The SRA introduced the new Solicitors Qualifying Examination, or SQE, in 2021. The SQE is designed as a common professional assessment to test those competences for all aspiring solicitors in a rigorous and consistent way. There are two stages to the SQE – SQE 1 and SQE 2.

To become a solicitor, an individual must:

• complete both stages of assessment, SQE1 and SQE2;
• complete a degree-level qualification or equivalent;
• complete two years of qualifying work experience (QWE);
• satisfy the SRA’s character and suitability requirements.

While the other required elements of the SQE can be completed in any order, candidates must complete the SQE1 assessments before they can sit the SQE2 assessments.

The two SQE1 assessments cover the following subject areas:

• Business Law and Practice; Dispute Resolution; Contract; Tort; Legal System of England and Wales; Constitutional and Administrative Law and EU Law and Legal Services.
• Property Practice; Wills and the Administration of Estates; Solicitors Accounts; Land Law; Trusts; Criminal Law and Practice.

Within each of the above assessments, questions may draw on any combination of the subject areas which might be encountered in practice. Ethics and Professional Conduct will be examined pervasively across the two assessments above.

The assessments will be closed book and will comprise single best answer multiple choice questions. Each single best answer question is followed by five possible answers. Candidates should mark only one answer for each question.

The questions in the assessments are designed to test the application of fundamental legal principles which can be expected of a newly qualified solicitor of England and Wales without reference to books and notes. Candidates will be tested on the law as it stands at the date of the assessment.

The questions in SQE2 are designed to test legal skills within the context of the application of fundamental legal rules and principles at the level required of a competent newly qualified Solicitor. The legal skills assessments in SQE2 are:

• client interview and attendance note/legal analysis;
• advocacy;
• case and matter analysis;
• legal research;
• legal writing;
• legal drafting.

Although there is no separate assessment called negotiation, all deliveries of SQE2 will contain at least one assessment involving negotiation. Negotiation may be assessed in either interview and attendance note/legal analysis and/or case and matter analysis and/or legal writing. The practice areas in which these legal skills are assessed are:

• Criminal Litigation (including advising clients at the police station)
• Dispute Resolution
• Property Practice
• Wills and Intestacy, Probate Administration and Practice
• Business organisations, rules and procedures (including money laundering and financial services).

SQE2 is assessed through oral and written assessments. The assessments in SQE2 oral are:

• Interview and attendance note/legal analysis
• Advocacy.

The SQE2 oral will take place over two half days.

The assessments in SQE2 written are:

• Case and matter analysis;
• Legal research;
• Legal writing;
• Legal drafting.

SQE2 written takes place over three half-days with 12 written legal skills assessments. The assessments will cover Dispute Resolution, Criminal Litigation, Property Practice, Wills and Intestacy, Probate Administration and Practice, and Business Organisations, Rules and Procedures.

Instead of a training contract, the SRA will require applicants to complete at least two years of qualifying work experience (or QWE). QWE can be accrued at law firms, legal clinics in academic institutions, law centres or other appropriate organisations. It is likely that many employers will continue to take on trainees for a two-year period as is current practice. QWE will give individuals a chance to experience the work of a solicitor, as well as helping them prepare for SQE2 assessments. All QWE needs to be notified to the SRA by a solicitor.

There are no preparatory courses required for the SQE. The SRA has said that a candidates’ education and training should give them the knowledge and skills to pass the required assessments. However, there will be SQE preparation courses run by providers of legal education and training for those who want to prepare in this way or who will need to undertake some form of legal education, having taken a non-law degree or degree equivalent qualification.

The SQE does not mean the end of a law degree. Many leading law firms still want to recruit the best candidates, and a very good law degree from a university will be one of the main ways individuals can stand out from others in a competitive jobs market. Some firms will hire graduates after their law degrees, but they will mandate certain courses, which they will pay for, for their employees to prepare them for the SQE assessments.

The SRA will put in place transitional arrangements for anyone who has started, completed, or accepted an offer for the CPE/GDL, Qualifying Law Degree or a training contract before the SQE started in 2021. In these cases, individuals have until the end of 2032 to qualify as a solicitor under the existing routes. They can still elect to choose the SQE route to qualification if they want to.

The SRA’s decision to introduce the SQE represents a huge change in the way solicitors will qualify. It marks the end of the Qualifying Law Degree, and as such it provides universities and education providers with a great deal of freedom in how they can design their law courses in the future. It is likely that this will lead to a wider array of content being offered by various providers.

Chapter 15 – The Judiciary

Throughout your study of the English Legal System, and throughout your Law Degree, you will notice that the bedrock of the English Legal System as a common-law system are cases. These cases can involve disputes and disagreements about common law principles, or they can involve disputes and disagreements about the meanings of statutes. Fundamental to the common-law system are the judges. Judges are the arbiters of these disputes. They hear cases tried before the courts. They make decisions concerning the meaning of the law, concerning the facts of cases, and make decisions which are binding on courts and parties to those proceedings.

The judiciary has undergone a number of changes in recent years. The Constitutional Reform Act 2005 instituted a number of far-reaching reforms. The 2005 Act reformed the role of the Lord Chancellor (see section 15.1.1 of the textbook). For the first time, following the 2005 Act, the Head of the Judiciary is a judge – the Lord Chief Justice, and not the Lord Chancellor. The 2005 Act abolished the Appellate Committee of the House of Lords, and replaced it with the Supreme Court of the United Kingdom. Section 3 of the 2005 Act also expressly provided for the independence of the judiciary.

Alongside this, training and appointment of judges has been modernised. Judicial training is now provided by the Judicial College, which was created in 2011 (see section 15.3 of the textbook). The Judicial College brings together separate arrangements that previously existed for training judges – both the Judicial Studies Board, and the Tribunals Judicial Training Group. The Judicial College offers initial training for new judicial office holders, continuing professional education to develop the skills and knowledge of existing judicial office holders, and it aims to deliver change and modernisation by identifying training needs and providing training programmes to support major changes to legislation and the administration of justice.

The old system of judicial appointments was variously referred to as the ‘tap on the shoulder’, the ‘secret soundings’, or ‘the old boys network’. The ‘tap’ usually came from the Lord Chancellor. The Judicial Appointments Commission, or JAC, was created by the 2005 Act to remove the responsibility for selecting candidates for judicial office from the Lord Chancellor alone. It aimed to make the appointments process clearer and more accountable. Judicial vacancies are now advertised. Shortlists are drawn up. Candidates are interviewed. Appointment is now solely on merit and not on who you know (see section 15.4 of the textbook).

Over the past twenty years the composition of the judiciary has slowly been changing. In 2021, there are now more female, and Black and Minority Ethnic (BAME) judges than ever before. However, the judiciary is still overwhelmingly white and male. In 2001, eight out of ninety-nine High Court Judges were women. There were no High Court Judges who were Black or of Ethnic Minority origin. In 2021, thirty-one out of 105 High Court Judges were women, and there were five Black and Minority Ethnic High Court Judges. This number is still not representative of society as a whole.

Throughout your studies, consider what you think the role of the judge should be. Do you think that this call for more female and Black and Minority Ethnic judges is justifiable? If the role of the judge is simply to apply the law, would it then not matter whether that judge is white, black, Asian, a man, or a woman? Or, do you think that the judge’s own background – their experiences, their life – plays some role in how they approach interpreting the law and what they view the law should be?

These are difficult questions, and there is no easy answer. You should think carefully about what you think the correct role of the judge is, and whether it actually matters whether those judges are actually representative of society or not.

Chapter 16 – Legal Skills and Examination Preparation

A fundamental part of a University education, and of a Law degree, is to encourage you to learn and think independently. This is reinforced through the lectures and seminars which you will undertake, but also through the assessments you will complete. In the modules which are taken in a Law degree, you will be asked to submit a variety of assessment types. Some of these may be short assignments, for example asking you to summarise legal texts such as cases, statutes, decisions or opinions. You may be asked to complete problem-based assessments. Other assessments may be longer; for example, essay assignments, or, common in the final years of degrees, a dissertation on a chosen topic.

This talk will discuss how to answer a problem-based question.

‘Legal problems’ are a common form of assessment. This involves being presented with a given set of facts together with an instruction to advise relevant parties on their rights and remedies: this type of assignment is designed to test how well you are able to ‘apply’ the law. You should keep an open mind to all the possibilities that a given set of facts throws up; in other words, you must convince your examiner that you are able to see all of the issues that arise for consideration and that you are able to deal with them in a logical, structured and legally accurate way.

The first requirement is to plan your answer and, in doing so, adopt a logical and clear structure that includes an introduction and a conclusion. At Harvard Law School, a system known as IRAC was developed encapsulating the legal method in planning legal writing. The acronym stands for Issue, Rule, Application and Conclusion. IRAC may be used to structure your answer as a whole or for individual issues within the answer.

The issue(s) - The first thing you must do is identify the issues that arise out of your given set of facts. You will need to read through the whole problem at least once to get an overall idea of the area(s) of law involved and you should also pay close attention to the question posed at the end of the problem. This will help to reveal the legal issue arising for determination. In any event, begin your answer by setting out the legal issue(s) concisely. 

The Applicable Laws/Rules - After you have identified the issues that arise for determination, you need to set out the law applicable to those issues. This requires you to cite the relevant statutory provisions, case law, and so on, that represent the current legal position in respect of the issues raised. If case law is relevant, apply it judiciously. Do not provide a ‘shopping list’ of cases with short summaries of the facts; rather, use the relevant point or points from a case to show how that case supports (or rejects) the existence of a particular rule or principle relevant to the issues raised. If there is no authoritative source then you should cite a persuasive one (for example an obiter dictum, a textbook or a journal article). If the law is unclear, then acknowledge this lack of clarity and note any examples from legal literature where different authors have expressed an opinion as to what the law should be. If you prefer one view over another, say so and why.

Applying the Law to the Facts - Once you have identified the issues and set out clearly the applicable law, you need to apply the law to the facts of the problem. Sometimes these will resemble closely the facts from a particular case you have read, and this may provide you with a clear starting point. More often you will have to reason by analogy or formulate your own argument as to how this case ought to be decided, supporting your conclusions with evidence in the facts. If you think that the facts lean a particular way or if you think you can substantiate one or other conclusion then say so.

Conclusion - Having identified the issue, set out the law, and applied the law to the facts, you need now to conclude, summarising your conclusions regarding the legal rights and duties of the parties. Make sure to frame your conclusion in relation to the issues identified and the question(s) asked.

To ensure that you produce the highest standard of work, you need to ensure that you allow sufficient time to plan, research, and write the finished answer.

Chapter 17 – Ethics and Law

What are ‘legal ethics’ and why will they be so important to your future legal career?

Lawyers are placed under several principles of conduct which they are expected to observe in their practice. ‘Legal ethics’ is the term used to describe these principles which the legal professions are obliged to follow. These principles are not to be ignored.

Although they are not ‘law’, in the sense that they are not created by either Parliament or judges, it is possible for a lawyer to lose their ability to practise law if they breach these principles of conduct. Understanding the ethical obligations which are placed on lawyers is vital to anyone wanting to pursue a career in the law.

Legal ethics are the principles of conduct that members of the legal profession are expected to observe in their practice. Legal ethics are separate from norms of behaviour which govern lawyers. There may be certain norms which lawyers follow. These norms could dictate what the dress code for a barrister or solicitor should be, or when the working day starts, or when they should take their lunch break. These are norms in the sense that they are common behaviour, but it is not justified by an ethical principle. There is nothing unethical about not following a dress code, even if it is very unlikely that people will do so. You can tell if something is a norm or an ethical principle by looking at the reaction of others when the rule is broken. A lawyer not following a dress code would not be deemed as serious as a lawyer who revealed confidential information, or who did not represent their client adequately in litigation.

Legal ethics involves ethical regulation. Ethical regulation must offer guidance. Professional bodies regulate the legal profession through codes of professional conduct which must be followed. These codes are published and are publicly available. This is necessary because if a lawyer is to be disciplined for breaching that code of conduct, that lawyer must know what the ethical requirements are for their job in advance. These ethical regulations are also enforceable. If regulations were unenforceable, then there would be no incentive for lawyers to follow them.

The guidance which the legal professions must follow in England and Wales do not set out what the best ethical responses are to certain situations. Rather, they set out the minimum requirements that lawyers must meet in their jobs as lawyers. Setting out a minimum ethical requirement is different from outlining what the best ethical response is to an issue. This approach to regulation means that there are a range of ‘acceptable’ ways for lawyers to act, from ‘barely above the minimum’ to ‘the best ethical response possible’. A lawyer can act in accordance with the code, even if they do not act in the most ethical way possible.

A key pillar of legal ethics is the principle of confidentiality, which is vital to legal practice. Lawyers have a special obligation (subject to some important exceptions) not to disclose information that their clients have given them. Confidentiality means that you must keep your client’s information confidential. Communications between lawyers and clients are known as legal professional privilege and there are special protections given to these. This is because individuals seek legal advice on private or sensitive issues. To receive accurate legal advice, individuals need to be completely open with lawyers. Protecting that communication means individuals do not need to worry that what they say will be disclosed to others.

This privilege is jealously protected by the courts. The following case can illustrate how important it is. In Bates and another v Chief Constable of the Avon and Somerset Police (2009), a warrant was issued to search the premises of Mr Bates who had acted as an expert witness in court proceedings. Mr Bates had his computers seized because the police suspected that he was in possession of indecent images of children. Mr Bates asserted that the computers contained legally privileged material. The High Court quashed the warrant and ordered the return of the computers, because it was not possible to have reasonable grounds to believe that there was no material on the computer protected by privilege. Protecting legal privilege took precedence over the police’s investigations.

There are a few exceptions to the rule that communications between a lawyer and their client is confidential and privileged. These include:

• Client consent or waiver, when the client gives permission to the lawyer to disclose that information to other parties.
• Criminal activity exception, when the client is trying to use the confidentiality of lawyer-client communications to carry out criminal activity. In such circumstances the communications are no longer privileged.
• Where there is a duty to the court. For example, if a client directs a barrister to lie about their situation to the court, the barrister must tell the truth.
• Finally, if the client sues the solicitor, the solicitor can defend themselves using material which would otherwise be confidential.