ABE Principles of Business Law 2008-1
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The Administration of Justice 65
D. JUDGES AND JURIES
Most disputes and crimes involve two sets of investigations: deciding what are the true facts and deciding what is the law to apply to them. In some courts, these two processes are entrusted to two bodies – the determination of fact by a jury and of law by a judge – but in all courts the distinction is important because appeals to higher courts lie on points of law; on points of fact, often leave to appeal must first be obtained.
The Status of Judges
All the important judicial offices are held by nominees of the Crown, who are mainly selected from the senior barristers but who, in some cases, are former politicians, e.g. the AttorneyGeneral was often a favoured candidate for the post of Lord Chief Justice, while the Lord Chancellor actually used to combine the functions of judge and politician.
Despite this apparent relationship, it is a principle of the English judicial system that judges must be independent of the Crown. This principle finds expression in several ways:
Judges hold office for life "during good behaviour". Their salaries are secured on the national revenue and not voted annually by Parliament, and they can be removed only on the petition of both Houses – a procedure which has not been used for over 250 years.
Judges are immune from personal liability for anything done or said in their public capacity. Consequently, they need not be restrained by fear of legal or other action against them.
Judges are not under government control and cannot be overridden or instructed by Ministers. They can be overridden only by Act of Parliament.
As a consequence of these arrangements, judges are able to exercise their function without fear or favour and to act quite impartially; their connection with the government is purely nominal.
It is difficult to over-emphasise the importance of the judiciary in the English legal system for, as we saw in an earlier study unit, much of English law is contained in judicial precedents, i.e. is judge-made law. The high status enjoyed by judges in England, as compared with other countries, is partly attributable to the relative smallness of their numbers – a situation that is made possible by the fact that the overwhelming majority of cases, both criminal and civil, are dealt with by lay justices. Since the Act of Settlement 1701, all the superior judges have held their offices "quamdiu se bene gesserint" (during good behaviour) and their salaries are fixed. They are appointed by the Crown and can only be removed by the Queen upon the presentation of an address by both Houses of Parliament.
The Jury System
A jury consists of 12 persons, men or women, over 18 and not more than 70 years of age, chosen almost at random from lists of registered electors in the county in which they live.
Any person who is currently on bail, has served a lengthy prison sentence or is suffering from a mental disability is disqualified from jury service.
Trial by jury is an essential part of the English legal tradition. It has long been upheld as a bastion against injustice and oppression. In the words of Lord Denning:
"Whenever a man is on trial for serious crime, or when in a civil case a man's honour or integrity is at stake, or ,when one or other party must be deliberately lying, then trial by jury has no equal".
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Nevertheless, the jury system is surrounded by sentiment and tradition, and there are grounds for questioning whether the above views are supported by reality. In recent years, criticism of jury trial has tended to increase. Some of the major points of concern are as follows.
Function of the Jury
In practice, it is difficult to accept that the jury's function is to determine issues of fact alone. Where does law end and fact begin? Admittedly, the jury is not required to decide matters of law, but without receiving a thorough exposition of the legal principles in a case, jurors cannot form a proper appreciation of the facts. For example, in a murder case the jury has to decide whether the facts amount to murder or manslaughter, and they can do this only with the judge's explanation of the relevance of motive. It is for this reason that critics contend that a jury can be greatly influenced by a judge – or, indeed, by clever counsel. It is, therefore, not entirely true that the judge has nothing to do with the facts. In summing up, he/she must collate all the facts brought out in evidence, and evaluate each item for the guidance of the jury.
Evidence
By their oath, jurors have to try a case on the basis of the evidence presented in court. Unfortunately, this is not a simple matter in practice, because counsel are determined mainly to impress the jury with the strength of their "case". This means that facts may be emphasised in different ways. It may also mean that the jury has to reach a decision on the basis of evidence which is not submitted, e.g. by drawing deductions from the fact that the accused does not go into the witness box.
Credibility of Witnesses
The problem of deciding whether a witness is to be believed or not is another aspect of evidence. Ability to judge people's characters depends to a fair extent upon experience. However, certain occupations or professions are more closely involved in estimating the characters of others, possible examples being schoolteachers and businesspeople. It does not always follow that a particular jury is better or worse than the judge in determining the credibility of a witness.
Court Procedure
Court procedure in England is still very technical and difficult for the layperson to understand. It is also probably true to say that the average juror, on first attendance in court, will not appreciate certain forms of advocacy which are designed deliberately to win over the jury. It has been suggested that the jury's task would be far easier if the opening for the claimant or prosecution were followed by an outline of the case for the defendant, so that there would be a clear picture of what is and is not in dispute.
Assessment of Damages
In a common law action, if the jury find for the claimant, they fix the damages. A frequent criticism is that the amount of damages is not a subject upon which a jury can be expected to have any special ability or experience. Again, in libel cases, there is no way of assessing damage to character and juries' awards are often inconsistent.
Complex and Technical Cases
A further criticism of the jury system is that the average juror is not qualified to appreciate the intricacies of complex cases involving wide-scale commercial fraud and similar matters. Such cases often require detailed consideration of financial documents or accounts of which jurors may have little knowledge and experience. It has been suggested that, for such cases, a judge should sit with a small panel of assessors who have commercial and financial experience.
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E.ORGANISATION AND ROLE OF THE LEGAL PROFESSION
Barristers at Law
History
For various purposes the King often required the services of attorneys, and by the end of the 15th century there were two official law officers of the Crown – the Attorney-General and the Solicitor-General, who were in fact both attorneys. Thus, to plead a case in court, it was necessary for the King to engage some leading serjeant, and he was known as the King's Serjeant. The serjeants-at-law were the most senior category of advocate at that time, with exclusive right of audience in the Court of Common Pleas. Attorneys, on the other hand, did not appear as advocates in the higher courts. The office of King's Serjeant has now been abolished.
The Tudor monarchs, whose aim was to promote the royal prerogative, found that the serjeants were too closely attached to the Court of Common Pleas to serve their purposes in the way they wished, particularly as they required representation before other courts, e.g. the Court of Star Chamber. They solved the problem by appointing to the offices of AttorneyGeneral and Solicitor-General barristers who were not serjeants. This explains the curious anomaly of the names of these offices, when the holders are invariably barristers.
These two officers were required not only to conduct state prosecution but also to defend the royal interests in Parliament, the Solicitor-General in the Commons and the Attorney-General in the Lords, a practice which lasted until 1660 when both those officers came to sit in the Commons. As a result of this dual function, extra assistance was soon needed, and by the 17th century it became customary to appoint eminent barristers as King's Counsel to act for the Crown in court. Unlike the serjeants, who formed a class apart from the ordinary barristers, the King's Counsel remained members of their Inns and during the 17th and 18th centuries their importance grew, and that of the serjeants declined.
The Position Today
In order to become a barrister, a candidate must be over 21 and conform to all the rules and regulations of one of the four Inns of Court – the Inner Temple, the Middle Temple, Gray's Inn and Lincoln's Inn.
On passing the requisite examinations, the candidate is "called to the Bar" and is thereafter entitled to appear as an advocate in any court of law in England and Wales.
There are two classifications applied to barristers:
Queen's Counsel (King's Counsel)
By the 18th century, the title of QC (KC) – sometimes called "silks", because QCs have the right to wear a silk gown – was given to leading barristers by letters patent on the advice of the Lord Chancellor.
Where a barrister has had considerable practical experience and thinks that he has attained some eminence at the Bar, he may apply to the Appointments Committee to "take silk". If permission is granted, letters patent are issued, he is sworn as a Queen's Counsel and is called within the Bar of the Supreme Court, wearing a silk gown instead of the stuff gown worn by ordinary barristers. Thereafter he takes on less routine work and has the assistance of "junior" barristers in court. It is from the ranks of Queen's Counsel that judges of the Supreme Court are usually appointed.
A Queen's Counsel is known as a "Leader", presumably because by tradition he is usually accompanied in court by one, and sometimes two, junior counsel.
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Juniors
A "junior" is any barrister who has not applied to "take silk". Most juniors undertake advocacy as well as the preliminary paperwork, and some successful barristers (on the Chancery side, particularly) remain juniors throughout their working lives. Once a junior takes silk and becomes a QC, he/she cannot return to a junior's practice.
Organisation of the Bar as a Profession
There are three key bodies which organise and regulate the profession of barristers.
The Inns of Court
These have three classes of member:
(i)Students – who join with a view to qualifying by keeping the required dining terms and passing the Bar examinations, so that they may then be "called to the Bar" of their Inn.
(ii)Barristers – who, having been called, will remain members of their Inn until their death or resignation, unless they are disbarred.
(iii)Benchers – who are the more senior members of their Inn and responsible for disciplinary matters. These include the power to disbar a qualified member for breach of any aspect of the etiquette of the Bar, which would then mean that person could no longer practise as a barrister.
The Senate of the Inns of Court and the Bar
This body was created in 1966. It is the governing body of the Bar. It comprises senior representatives from each of the Inns of Court, together with the AttorneyGeneral and the Solicitor-General. It can make decisions affecting the whole of the Bar on such matters as admission and call, education of student members, and disciplinary rules.
The Bar Council
This body was created in 1894. It represents the Bar in a general sense, though it has no formal duties or powers. It is concerned with maintaining standards of conduct and propriety, promoting and preserving the services and functions of the Bar, and acting for the profession generally.
Work of a Barrister
This may be considered as comprising three areas, as follows:
Advocacy
The barrister speaks in court on behalf of her client, having previously taken instructions from him and/or his solicitor. This is her supreme function but she has others.
Drafting Documents
These are the "Statements of Case", i.e. the preliminary documents required before the case comes on, such as the statement of claim, defence, replies, and Further Questions. Their purpose is to clarify the issue(s) to be brought before the court and to resolve any matters which can be agreed by the parties prior to the hearing.
Barristers also draft a considerable number of legal documents, such as wills, title deeds, company prospectuses and Memorandum and Articles of Association, partnership agreements and contracts.
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Counsel's Opinion
Barristers are often asked by solicitors and their clients to give an opinion on the law relating to a difficult matter, such as the tax consequences of a proposed trust or contractual arrangement. The opinion will then form the basis of some policy decision, or it will be used in negotiations.
A Barrister's Duty
A barrister's duty is to the court, not merely to his client, although he is not an officer of the court. He is liable for contempt and must be properly robed in all courts except the Magistrates' Court. He must draw the attention of the court to the authorities (statutes, case decisions, etc.) relevant to the issue(s) before it, not merely to those favouring his client.
The Barrister and His Client
The relationship between a barrister and his client is not a contractual one. Thus, he cannot sue for his fees; but, since 2002, he is liable to his client for professional negligence.
Only barristers may be appointed to the offices of Lord Chancellor, Attorney-General and Solicitor-General. Although, today, other judicial offices are open to solicitors, in fact the majority of appointments to the High Court, Court of Appeal and the House of Lords are made from the ranks of practising barristers.
Solicitors
History
During the Middle Ages, the two professions of attorney and barrister were not entirely distinct, and attorneys were often members of the Inns of Court. A complete separation, however, took place in the 16th and 17th centuries, and such membership ceased. The attorneys then established themselves as "go-betweens", and acted as the link between the lay client and the barrister.
In addition, a special type of attorney, called a solicitor, at first of humble status, was attached to the Court of Chancery and specialised in equity work. By the middle of the 17th century solicitors had gained equality of status with other attorneys and at a later date the two types were amalgamated. The name "solicitor" then became generally preferred until, during the 19th century, the term "attorney" virtually disappeared. There were also proctors and doctors attached to the Court of Admiralty and the church courts but their special functions disappeared with the setting up of the divorce and probate courts in 1857.
In 1729, a statute required that attorneys and solicitors should go through an apprenticeship of five years' duration, which was interpreted as a period of "five years' articles" with a practising attorney or solicitor, to learn the profession.
The Law Society
The Law Society was established in 1831, and is now legally compelled to keep a roll of solicitors which is technically in the custody of the Master of the Rolls.
It regulates the education of those wishing to become solicitors, by conducting their requisite examinations, and it has a disciplinary committee which enforces good conduct among members of the profession and which has power to suspend a solicitor from practice or to strike him/her off the Roll.
Training for the would-be solicitor has long been a combination of examinations in law and the understudying of a solicitor in practice. This latter process involves the student in spending a period of time under a Training Contract. When the student has completed this satisfactorily, and passed all the examinations to which he/she is subject, he/she may then apply to the Law Society to be "admitted". This process is effected by the Master of the Rolls formally adding the name of the new solicitor to the roll of officers of the Supreme
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Court. From the date of admission, the student becomes a solicitor of the Supreme Court of Judicature and, as such, an officer of the court, but may not practise until he/she has taken out an annual practising certificate, individually issued by the Law Society.
Present Status
Nowadays solicitors are the only members of the legal profession who are not barristers. They have a right of audience and can act as advocates before the Magistrates' Courts, and also before the County Courts. As a result of the Courts Act 1971, they may become eligible for appointment as circuit judges and recorders.
Relationship between Barristers and Solicitors
As we have seen, solicitors come under the control of the Law Society and barristers under the control of their respective Inns of Court.
The Barrister's Brief
A barrister does not normally deal directly with a client but through a solicitor. When a person engages in litigation, his first contact will usually be with a solicitor, who will subsequently advise him on a choice of barristers, particularly if the case involves a court hearing where the solicitor has no right of audience.
The solicitor's main function in litigation is to prepare the case for counsel, i.e. the barrister. He will take instructions from his client and statements from all the witnesses it is proposed to call, and provide all office services for conducting correspondence, copying documents, handling funds and accounting. Finally, he will draw up a brief for the barrister who will conduct the case in court, if the hearing is in the Crown Court or High Court. In addition, if the case is important enough to warrant the expense, he may brief the barrister in a County or Magistrates' Court.
When a QC is employed, a junior may also be briefed and his fee will be a matter for negotiation. The rule that he always received two-thirds of the QC's fee has now been abolished.
Payment of the Barrister
A barrister does not discuss her fees with the solicitor employing her. The procedure is for the solicitor to arrange the fees with the barrister's clerk and to mark them on the brief.
However, if the solicitor for a client fails to pay the sum marked on the brief, the counsel may report him to the Law Society, which will probably order him to pay the fees on penalty of suspension from practice. A solicitor is supposed to pay counsel's fees, whether he obtains them from a client or not, but usually the barrister will be agreeable to a settlement in the matter where a solicitor has been "let down" by the client.
Retaining Fees
Sometimes, when it is desired that a particular counsel – usually the QC – should appear in a case, the solicitor will first pay him a small retaining fee, by the acceptance of which the barrister undertakes not to accept a brief in the case for the other side. He does not, however, agree to appear in the case although the solicitor retaining him is obliged to offer him the brief. Should the solicitor decide later that he prefers another counsel, his only remedy is to offer the brief with a ridiculously small fee which the barrister's clerk will reject.
Solicitors as Advocates
A considerable amount of advocacy is done by solicitors in minor cases, particularly of an uninvolved nature.
Solicitors' existing rights of audience are confined to proceedings before the Magistrates' Courts and the County Courts, and to appeals from the magistrates before the Crown Court.
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The Courts and Legal Services Act 1990 now makes provision for the Lord Chancellor to direct that solicitors may have rights of audience for all proceedings in the Crown Court.
Legal Work not Involving Litigation
Although some solicitors become crime or litigation specialists, most do a great deal of work which does not involve litigation, e.g. conveyancing, probate (the administration of deceased persons' estates) and trusts. Sometimes, however, a solicitor will engage counsel to draft conveyancing documents of a complicated nature, e.g. settlement of valuable family property.
Courts and Legal Services Act 1990
Part II of this Act deals with the provision of legal services and lays down a statutory objective as follows:
"The general objective ... is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new and better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice".
It goes on to lay down a general principle which is to operate in determining whether a person should be granted a right of audience or a right to conduct litigation in relation to court proceedings. Relevant factors to be considered include appropriate qualifications in respect of education and training, membership of suitable professional bodies, etc.
The Act also established the Legal Services Ombudsman. She is appointed by the Minister of Justice and given the responsibility of investigating any allegations about the way in which the appropriate professional body dealt with a complaint made to it with respect to "an authorised advocate, authorised litigator, licensed conveyancer, registered foreign lawyer, registered body or duly certified notary public and a member of that professional body". Her jurisdiction extends to complaints concerning any employees of these specified persons.
Miscellaneous Law Officers
Lord Chancellor
This office has now ceased to function, with many of the judicial functions adopted by the newly appointed Minister for Justice.
Lord Chief Justice
This officer is the head of the Judiciary in England and Wales. The office is held for life, the only ground for removal being an address by both Houses of Parliament to the Crown (Act of Settlement 1701). The Lord Chief Justice is a member of the Court of Appeal and is President of the Courts of England and Wales.
Master of the Rolls
The Master of the Rolls is the custodian of the public record and by virtue of his office he is a member of the Court of Appeal. He also has duties concerned with the Roll of Solicitors and, in some cases, appeal lies to him from the decisions of the Disciplinary Council of the Law Society.
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Study Unit 4 |
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The Law Relating to Associations |
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Contents |
Page |
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A. The Concept of Corporations |
75 |
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Definition |
75 |
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Types of Corporation |
75 |
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The Crown as Corporation Sole |
75 |
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Reasons for Corporate Existence |
76 |
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B. |
Corporations in Law |
77 |
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Creation of a Corporation |
77 |
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The Acts of a Corporation |
77 |
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Cessation of a Corporation |
78 |
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C. |
Companies |
79 |
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Definition |
79 |
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Classes of Company |
79 |
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Advantages and Disadvantages of Creating a Company |
80 |
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Distinction between Directors and Shareholders |
81 |
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The Veil of Incorporation |
82 |
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Cases which Affect Directors and Shareholders |
83 |
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D. |
Companies in Law |
84 |
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Formation |
84 |
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Name of a Company |
86 |
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Capital of a Company |
86 |
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Meetings |
88 |
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Directors |
89 |
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Borrowing by a Company |
90 |
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Common Seal |
91 |
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Winding-up |
91 |
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E. |
Unincorporated Associations |
93 |
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Legal Position |
93 |
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F. |
Partnerships |
93 |
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Definition |
93 |
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Differences between Partnership and Corporation |
94 |
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Differences between Partnership and Company |
94 |
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The Articles of Partnership |
95 |
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Registration – the Firm Name |
95 |
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Rights and Duties between Partners |
96 |
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Relationship of Partners to Third Parties |
96 |
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Termination of Partnership |
97 |
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Bankruptcy of Partnership |
97 |
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Liability of New and Retiring Partners |
98 |
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Rights of Partners on Dissolution |
98 |
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