Describe the Role of the Judges, Solicitors, Barristers, and Legal Executives in the English Legal System
Introduction
English law is one of several leading European legal systems, the other one being Roman law. Its influence has spread to former colonies, including the United States, Australia, Canada, and New Zealand, as well as other countries. English law relies on both primary and secondary sources. Primary sources are drawn from official bodies and include decisions of statutes, regulations, and tribunals, as well as treaties. On the other hand, secondary sources include law reviews, and treaties (Gillespie and Weare, 2015). They act as background resources whose function is to interpret, analyse, and explain the law (Slapper and Kelly, 2008). Various legal professions play a key role in the analysis and interpretation of these sources of law and they include judges, solicitors, barristers, and legal executives. The focus of this essay is to examine each of these legal professions' roles in the English legal system.
Judges
The roles of judges vary depending on the legal case in question. One of the key roles of the judge in an English trial is to supervise how the trial is conducted. Although the parties involved and their lawyers are required by law to present their cases, be they criminal or civil, it is the judge who ensures that law and order are maintained by abiding by the set rules during the trial, in addition to ensuring that the trial flows smoothly. According to Heywood (2015), judges direct tribunals and court proceedings. In this role, judges are expected to ensure that the laid down rules of court procedure are followed to the letter by both the prosecution and the defence. Therefore, the judge is expected to ensure that the trial is conducted fairly, and so assumes the role of a referee or umpire in a sporting competition. To effectively execute this role, judges act as a source of specialist knowledge in terms of directing a verdict or advising the jury. Therefore, judges utilise their experience and knowledge of the law in ensuring a fair and legal conduction of a trial. Judges are however expected to remain impartial and fair and although they have to ensure that legal procedures are followed, it is important that they are not seen to interfere too much.
Judges are however expected to decide the outcomes of civil cases. It is up to the judge to decide who loses or wins the case, in addition to also deciding on the amount of damages to be awarded to the winning party. Moreover, judges have to decide how property or money will be distributed in family cases, or make decisions regarding the custody of a child. The judge is also expected to interpret, explain, and analyse the law while issuing judgement, especially if the law is unclear or there are gaps in it. Judges have also been considered to play a role in creating the law by way of exercising the judicial precedent principles, but this is determined by the level of court where the judge is situated within the court hierarchy.
Judges in the English legal system is charged with the role of upholding and interpreting the law, as spelled out by parliamentary statutes. While judges are theoretically expected to implement laws passed by the legislation, they, nonetheless, exercise a certain level of discretion in terms of how they interpret statutes. Nevertheless, this could result in conflicting interpretations of the law by ministers and judges (Heywood, 2015). Moreover, judges must uphold such important principles of common law as fairness and reasonableness. Judges retain the discretion to exercise equitable remedies. In this case, equitable remedies refer to a form of discretionary remedies as provided for by common law to facilitate the exercising of justice (Mason and Lindell, 2007).
Judges are also viewed as also playing a role in making laws, such as in changing interpretations of certain statutes, creating legal rules, and taking into account moral and social changes. A vital component of their role is that judges are expected to incorporate Human Rights Acts and EU laws into the English legal system. In this case, they are expected to read statutes alongside EU Law and in case of direct conflict with a statute, judges have the discretion to apply EU Law. On the issue of legislation, it has to be read alongside the Human Right Act and in case of conflict, the judge retains the discretion to evaluate if the derogation overrides the conflicting law or it should be permitted. Even though the British constitution does not have any formal principle in regard to the separation of powers, Parliament's primary role is to make laws, whereas the constitutional role of judges is to ensure that laws made by the legislature have been implemented. In the past, judges have been seen to prefer a low-key role with regard to making laws as a means of sidestepping controversial policy issues in order that they may not be accused of partaking in undemocratic activity (Wilson et al., 2016). Making of laws of tort, contract, and, to a certain extent, property law, rarely attracts great public interest. Judicial law-making tends to be thus more concentrated in such areas that are likely to attract the least interest. Nevertheless, the role of judges in the interpretation of statutes as provided for by the 1998 Human Rights Act tends to raise controversial issues.
The Law Lords, who are the most senior judges in the UK Legal System, also play a role in making laws in an effort to influence Bills passed by the House of Lords.
Even though judges play a role in making laws, which is a constitutional prerogative of the legislature, they often do so within certain limits. In 'Law in the Making', C.K. Allen has enumerated the limits of judges as far as law-making is concerned, 'the creative power of the courts is limited by the existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material.' (cited by Wilson et al., 2016, p. 152). Furthermore, the judge retains the sole responsibility regarding legal issues that could emerge during the trial, especially regarding the admissibility of evidence. This role is very crucial in criminal trials in deciding whether certain evidence should be administered to the jury, or not. In making a ruling in a criminal trial, one of the most important roles of the judge is to summarise the evidence presented to the jury.
In criminal cases, magistrates or the jury is charged with the responsibility of deciding if the defendant is innocent or guilty. During criminal cases, the judge plays the vital role of ensuring that questioning by the prosecution and defence is done in an orderly and fair manner. The judge also summarises the case prior to the jury arriving at their final decision. The judge acts as the unbiased party and hence must give impartial interpretation and description of the law to the jury who do not have a legal background. Besides, the judge is the best-placed party to remind the jury of the facts around which the case in question revolves as a reminder, in case they can no longer recall some of the main points of the case. Moreover, the judge is charged with the role of reminding the jury the defence has to prove that indeed the accused is guilty of the crime they have been accused of, as opposed to opening that the accused is innocent. Once the jury has delivered a verdict on the accused, the judge is then expected to pass a sentence in case the jury has given a guilty verdict. Furthermore, the judge has to invoke relevant legislation in ensuring that the punishment and duration of sentences are commensurate to the weight of the crime committed.
Solicitors and Barristers
The role of solicitors overlaps with those of barristers to a certain extent but the two legal professions are nonetheless unique. Traditionally, solicitors and barristers differed mainly in terms of their work. Solicitors would deal with clients directly, and would only require the services of a barrister if needed, either to represent clients in a court of law or to give advice regarding an elaborate area of law. Moreover, only barristers were permitted to make appearances in higher courts. Nonetheless, the differences between these two branches of the judiciary appear to have been broken down following sweeping changes in the judiciary in the 1990s. Prior to 1985, solicitors did all the conveyancing work, though the monopoly that they enjoyed is slowly getting eroded following the creation of licensed conveyancers, not to mention that financial institutions are now providing conveyancing services (Vollans and Asquith, 2011).
The passage of the 1990 Courts and Legal Services Act effectively broke down the strict separation of duties of barrister and solicitor, thereby eradicating the monopoly that barristers enjoyed as advocates and at the same time, allowed solicitors rights of audience in stated situations. Subsequent Acts such as the 2009 LDP (Legal Disciplinary Practice) Act and the 2011 ABS (Alternate Business Structure) bodies were meant to further break down the hitherto strict separation of roles between solicitor and barrister. Solicitors were permitted to apply for the award of an advocacy certificate that would grant them rights in higher courts. However, just about 5% of the solicitors have applied for this certificate. Besides, the passage of the 1999 Access for Justice Act meant that all solicitors can now gain access to the full rights of the audience. Such a move was aimed at introducing new training requirements that would see to it that "newly qualified solicitors automatically had advocacy rights” (Martin, 2014, p. 147). Sadly, this is yet to happen. Solicitors working with the CPS enjoy the right to play the role of a prosecutor-advocate in any court that their advocacy qualification permits them. On the other hand, solicitors in the Legal Services Commission may represent members of the public in their capacity as an advocate in any court as their advocacy qualification may permit. Other solicitors also enjoy the rights of the audience in terms of acting an advocate for their employer.
Majority of the individuals who qualify to become solicitors end up working in private practice, initially as an assistant solicitor in a solicitor's firm. However, they could rise through the ranks with time and end up as partners in the same solicitor's firm. Alternatively, they could opt to set up their own private practice.
The work of a solicitor differs depending on the nature of the firm. Solicitors working in small high-street firms often concentrate on such issues as wills, family law, housing law, criminal law, probate, and consumer law. In contrast, solicitors working for large city-based firms are more likely to deal with commercial and business law. Solicitors may also work in the Civil Services, the CPS, or even local authorities. Besides, solicitors may also work as legal advisors in private businesses. Solicitors working in private practice could also be involved in advocacy work as advocates. Solicitors have always enjoyed full advocacy rights while working in the County Court and the Magistrate’s Court.
Solicitors undertake varied work. Besides representing and advising clients, they also draw up contracts, wills, and partnership agreements, in addition to doing matrimonial work, conveyancing, handling accident claims, and forming companies, among other roles (Roberts, 2008). Solicitors handle nearly all civil cases tried in county courts.
Barristers
Barristers have traditionally handled cases tried in the Crown Court, High Court, and Court of Appeal. Thanks to the aforementioned reforms, clients no longer have to depend on a solicitor to refer them to a barrister and solicitors can now also appear in all courts, as long as they undertake specialised training to qualify as solicitor advocates. Today, barristers mainly work in chambers. Following the changes in the legal landscape since 1990, it is no longer a requirement that they do so. Barristers also no longer have to work from the Bar Library but can work from home or an office, as they have also been granted permission to practise alone. According to Martin (2014), "Barristers at the Bar are self-employed. They usually practise from chambers, sharing expenses of rent, secretarial staff, etc." (p. 148). Barristers at the Bar are hence independent and can receive court briefs from just about any solicitor. Besides, the public may directly approach barristers in civil cases. The majority of barristers are involved in advocacy issues and enjoy the rights of audience across the entire court system. Their work entails giving opinions and advice on potential cases or points of law, over and above their role in drafting papers for the courts. Other barristers specialise in such disciplines as patent law or taxation, and they only appear in court on rare occasions. Employed barristers have the freedom to work for various government departments, businesses, the CPS (Crown Prosecution Services), or local authorities. While employed barristers enjoy individual rights of audience, there are nonetheless, limits on whom they are permitted to represent.
Legal executives
Legal executives work in specialised areas of the English law system, such as trust work, probate, matrimonial, conveyancing, and criminal or civil litigation. They work under solicitors and are comprehensively involved in managing branch offices, in addition to dealing directly with the legal law firm's clients. To qualify as a Legal Executive, one has to be a member of the ILEX (Institute of Legal Executives). Legal executives can now train towards becoming advocates, following the amendments to the English legal system courtesy of the 1990 Courts and Legal Services Act and the 1999 Access to Justice Act.
Conclusion
In sum, judges, solicitors, barristers, and legal executives all play varied and sometimes, complementary roles in the English legal system. Judges are first and foremost expected to implement laws as developed by Parliament, although they also play a role in the law-making process. This is besides their role as facilitators in court trials where they ensure fairness and impartiality. The roles of solicitors and barristers have traditionally been seen to be distinct but following the passage of the 1990 Courts and Legal Services Act, they now overlap. Solicitors engage in varied roles, including preparing marriage contracts, wills, conveyancing, and advocacy matters. Conversely, barristers are mainly involved in advocacy issues, while legal executives engaged in such specialised areas of the law as probate and trust work, mainly as legal assistants to solicitors.
References
Gillespie, A., and Weare, S., 2015. The English Legal System. Oxford: Oxford University Press.
Harris, P., 2002. An introduction to Law (6th Edition). Oxford: Butterworths.
Heywood, A., 2015. Essentials of UK Politics. London: Palgrave Macmillan.
Martin, J., 2014. English Legal System. London: Routledge.
Mason, A., and Lindell, G., 2007. The Mason Papers: Selected Articles and Speeches. Sydney: Federation Press.
Roberts, M., 2008. Mediation in Family Disputes: Principles of Practice. Aldershot, United Kingdom: Ashgate Publishing Ltd.
Slapper, G., and Kelly, D., 2008. English Legal System. London: Routledge-Cavendish.
Vollans, T., and Asquith, G., 2011. English Legal System Concentrate: Law Revision and Study. Oxford: OUP.
