The Legal System

by Malleson, Kate

• ISBN13: 9780199282418
• ISBN10: 0199282412
• Edition: 2nd
• Format: Paperback
• Copyright: 2006-02-02
• Publisher: Oxford University Press

Summary

The Legal System provides an overview of the institutions, personnel and procedures that make up the legal system in England and Wales. Current changes are explained and critically evaluated. The text explores a number of key competing themes and underlying tensions which run through the legal system. These are identified in the first chapter and then highlighted using practical examples through the following substantive chapters. The book draws out the difficult dilemmas which the system is currently facing: Should efficiency be prioritised over quality of justice? Is the civil justice system fundamentally private or public? Can litigation be discouraged without reducing access to justice? These are the sorts of questions which must be addressed in order to understand the direction in which the legal system is moving. Nor are the answers necessarily driven by the needs and internal logic of the system itself. The book shows how political and economic priorities are just as importantin determining the policies which shape the legal system today.

Author Biography

Kate Malleson is Professor of Law, Queen Mary, University of London. She is the author of The New Judiciary and has published widely on the judiciary and the legal system. She was a member of the Fawcett Commission on Women in the Criminal Justice System which reported in 2004 and is case notes editor of the Modern Law Review.

Table of Contents

Preface	v
Preface to the second edition	ix
Chapter one Introduction	1	(16)
Summary	1	(1)
Trends and themes	1	(2)
The expansion of the legal system	3	(1)
Political and economic significance of the legal system	3	(3)
The pace of change in the legal system	6	(1)
Efficiency versus quality of justice	7	(1)
Access to justice versus litigation reduction	8	(2)
Private versus public justice	10	(1)
Lay versus professional justice	11	(1)
Inquisitorial versus adversarial justice	12	(2)
Further reading	14	(1)
Self-test questions	15	(2)
Chapter two The organisation of the courts	17	(14)
Summary	17	(1)
Tribunals	18	(3)
Magistrates' courts	21	(1)
Crown Court	22	(1)
County court	23	(1)
High Court	24	(1)
Court of Appeal	25	(1)
Appellate Committee of the House of Lords	25	(3)
Judicial Committee of the Privy Council	28	(1)
Further reading	29	(1)
Useful websites	30	(1)
Self-test questions	30	(1)
Chapter three Sources of law	31	(8)
Summary	31	(1)
Case law	31	(1)
Legislation	32	(1)
European Law	33	(2)
The Human Rights Act 1998	35	(1)
Other international treaties	36	(1)
Further reading	37	(1)
Useful websites	37	(1)
Self-test questions	37	(2)
Chapter four The Human Rights Act 1998	39	(14)
Summary	39	(1)
The traditional English approach to human rights	39	(1)
The European Convention on Human Rights	40	(2)
Political history of the Human Rights Act 1998	42	(1)
The structure and provisions of the HRA 1998	43	(1)
HRA 1998,ss 3 and 4	43	(1)
HRA 1998,s 2	44	(1)
HRA 1998,s 6	45	(1)
Key Human Rights Act cases	45	(2)
The application of HRA 1998,s 3 and s 4	47	(2)
The Human Rights Act and judicial review	49	(1)
The Human Rights Act and the judiciary	50	(1)
Conclusion	51	(1)
Further reading	51	(1)
Useful websites	52	(1)
Self-test questions	52	(1)
Chapter five The legislative process	53	(10)
Summary	53	(1)
The Whitehall stage	54	(1)
Drafting	55	(1)
The Westminster stage	55	(3)
Royal Assent	58	(1)
Overview of the system	58	(2)
Further reading	60	(1)
Useful websites	60	(1)
Self-test questions	61	(2)
Chapter six Statutory interpretation	63	(10)
Summary	63	(1)
Different approaches to statutory interpretation	64	(3)
Aids to interpretation	67	(1)
Pepper v Hart	68	(2)
The Human Rights Act 1998	70	(1)
Further reading	71	(1)
Self-test questions	72	(1)
Chapter seven Case law, precedent and judicial law-making	73	(14)
Summary	73	(1)
The rules of binding precedent	73	(2)
Common law and civil law systems compared	75	(1)
Are earlier decisions binding on the court which made them?	76	(1)
The scope of judicial law-making	77	(2)
The traditional approach to judicial law-making	79	(1)
Parliamentary sovereignty	80	(1)
Problems raised by judicial law-making	81	(2)
The Human Rights Act 1998	83	(1)
Summary	83	(1)
Further reading	84	(1)
Self-test questions	84	(3)
Chapter eight The civil justice process	87	(18)
Summary	87	(1)
Distribution of workload	87	(1)
Appeals	88	(1)
Alternative dispute resolution	89	(2)
Do we want more litigation or less?	91	(3)
Different functions of the system	94	(1)
Is the civil justice system public or private?	95	(4)
Fault	99	(2)
Enforcement	101	(1)
Further reading	102	(1)
Useful websites	102	(1)
Self-test questions	103	(2)
Chapter nine The Woolf reforms to civil justice	105	(14)
Summary	105	(1)
Lord Woolf's proposals	106	(1)
The civil procedure rules	107	(1)
Costs	108	(1)
Allocation of cases	109	(1)
Time limits	109	(1)
Case management	110	(1)
Information technology	111	(1)
The use of plain English	112	(1)
Problems with the reforms	113	(1)
Front-loading	113	(1)
Speed	114	(1)
Case management	115	(1)
Evidence to date	115	(2)
Summary	117	(1)
Further reading	117	(1)
Useful websites	118	(1)
Self-test questions	118	(1)
Chapter ten Recent trends in the criminal justice system	119	(14)
Summary	119	(1)
The politicisation of criminal justice	119	(1)
Getting tough on crime	120	(1)
The rise of the victim and the decline of the offender	121	(4)
The growing importance of race	125	(2)
Drugs and the criminal justice system	127	(1)
Different aims of the criminal justice system	128	(1)
Streamlining criminal justice	129	(2)
Further reading	131	(1)
Useful websites	132	(1)
Self-test questions	132	(1)
Chapter eleven Police powers	133	(22)
Summary	133	(1)
Recent trends	133	(2)
The statutory framework — the Police and Criminal Evidence Act 1984	135	(1)
The structure of the Act	136	(1)
Police powers on the street — stop and search provisions	137	(2)
The use of stop and search powers in practice	139	(1)
Police powers in the police station	140	(1)
Arrest and detention	141	(2)
Rights of suspects during detention	143	(2)
Questioning	145	(1)
The right of silence	146	(4)
Photographs, fingerprints and samples	150	(1)
The implications of the Human Rights Act 1998	150	(1)
Stop and search	151	(1)
Detention	152	(1)
Summary	153	(1)
Further reading	154	(1)
Useful websites	154	(1)
Self-test questions	154	(1)
Chapter twelve The prosecution process	155	(12)
Summary	155	(1)
The creation of an independent prosecution service	155	(2)
The prosecution criteria	157	(1)
The record of the CPS	158	(1)
Discontinuance	159	(2)
Disclosure	161	(2)
Discrimination	163	(1)
Summary	163	(1)
Further reading	164	(1)
Useful websites	165	(1)
Self-test questions	165	(2)
Chapter thirteen The trial process	167	(16)
Summary	167	(1)
Deciding on venue	167	(2)
Proceedings in the magistrates' courts	169	(1)
Proceedings in the Crown Court	170	(2)
The trial process for young defendants	172	(2)
Evidence	174	(2)
Guilty pleas, sentence discounts and charge bargaining	176	(2)
Differences in guilty plea rates	178	(1)
Sentencing	179	(1)
Summary	180	(1)
Further reading	181	(1)
Useful websites	181	(1)
Self-test questions	182	(1)
Chapter fourteen Criminal appeals and the post-appeal process	183	(16)
Summary	183	(1)
The structure of the appeal process	184	(1)
Hurdles to the Court of Appeal	184	(2)
The approach of the Court of Appeal to its powers	186	(3)
The effect of the Human Rights Act 1998 on the approach of the Court of Appeal	189	(2)
Appeals to the House of Lords	191	(1)
The post-appeal process	192	(1)
The role of the Home Secretary	192	(1)
The Criminal Cases Review Commission	193	(1)
Prosecution appeals	194	(2)
Summary	196	(1)
Further reading	197	(1)
Useful websites	197	(1)
Self-test questions	198	(1)
Chapter fifteen The provision of legal services	199	(20)
Summary	199	(1)
Providers of legal services	199	(1)
The legal profession	200	(1)
Advocacy	201	(2)
Assessment of the advocacy reforms	203	(3)
Direct access to the Bar	206	(1)
Queen's Counsel	206	(2)
Regulation of the legal services market	208	(1)
The complaints system	209	(1)
Multi-Disciplinary Partnerships and Legal Disciplinary Partnerships	210	(1)
Expansion, diversification and specialisation	211	(2)
Composition of the profession	213	(2)
The future	215	(2)
Further reading	217	(1)
Useful websites	218	(1)
Self-test questions	218	(1)
Chapter sixteen The structure and functions of the judiciary	219	(14)
Summary	219	(1)
The judicial ranks	219	(5)
Independence	224	(1)
Accountability	225	(2)
Constitutional position of the judiciary	227	(1)
Judicial review	228	(1)
Fact-finding	228	(1)
Sentencing	229	(1)
Case management	229	(1)
Training	230	(1)
Extra-judicial activities	230	(1)
Summary	231	(1)
Further reading	231	(1)
Useful websites	232	(1)
Self-test questions	232	(1)
Chapter seventeen Judicial appointments	233	(16)
Summary	233	(2)
Independence	235	(2)
Accountability	237	(1)
Openness	238	(3)
Make-up of the judiciary	241	(4)
Implications of the new judicial appointments process	245	(1)
Summary	246	(1)
Further reading	246	(1)
Useful websites	247	(1)
Self-test questions	247	(2)
Chapter eighteen Lay adjudication	249	(16)
Summary	249	(1)
Rationale for lay participation	249	(1)
History of the role of the jury	250	(1)
Selection and composition of the jury	251	(3)
Reliability of jury verdicts	254	(1)
Reduction of the jury system	255	(2)
Magistrates	257	(1)
Selection and composition of magistrates	257	(2)
Comparison between professional and lay magistrates	259	(1)
Comparison between magistrates and juries	259	(2)
The use of mixed panels	261	(1)
Summary	261	(1)
Further reading	262	(1)
Useful websites	262	(1)
Self-test questions	263	(2)
Chapter nineteen Funding of legal services	265	(16)
Summary	265	(1)
Funding civil justice	266	(1)
Legal aid	266	(1)
The Access to Justice Act 1999	267	(1)
Legal aid budget	268	(1)
Scope and availability of legal aid	268	(1)
Matching need and supply	269	(1)
Contracts	270	(2)
Conditional fees	272	(3)
Legal insurance	275	(1)
Funding criminal justice	276	(2)
Assessing the changes	278	(1)
Further reading	279	(1)
Useful websites	280	(1)
Self-test questions	280	(1)
Index	281