Unlocking The English Legal System

Running Head: UNLOCKING THE ENGLISH LEGAL SYSTEM 1

Unlocking the English Legal System

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UNLOCKING THE ENGLISH LEGAL SYSTEM 2

Question One

Mrs. Smith claims that one day last year, she saw Dan point a gun in the direction of his

girlfriend and pull the trigger. The gun failed to fire because the mechanism was faulty, but

Dan had not been aware of that until after he had pulled the trigger. Dan is now being tried

for the attempted murder of his girlfriend, under the provisions of the Criminal Attempts

Act 1981. He claims that he did not point the gun in his girlfriend’s directions alleged and

that Mrs. Smith is mistaken or is lying. Secondly, he claims that the act of pointing a gun in

this way is not legally capable of falling within the relevant section of the 1981 Act.

(a) Who has decided whether Dan should be charged for his offense and by what procedure?

[20 marks, approx. 300 - 400 words]

It is the Crown Prosecution service that has the role of deciding whether Dan should be

charged with attempting to murder his girlfriend or not. The aim of this service is to ensure that a

high-quality prosecution service is delivered that ensures that justice is exercised, reduces crime

and the fear that is associated with it and promotes the confidence of the public in the legal system.

This is done through an independent and fair review that is consistent, of all the cases that pass

through them, and a firm and thorough presentation in the courts. This is the only body that can

make a decision whether to charge one with a criminal offense or not.

The CPS is an independent public authority that prosecutes people who have been charged

with a criminal offense by the police in England and Wales. In undertaking this role, the CPS

advises the police on any cases where prosecution is possible, reviews all the cases that the police

submit for prosecution according to the principles stated in the Crown Prosecutors Code, and

considers any alternatives that can be exercised when the circumstances are appropriate. Where a

UNLOCKING THE ENGLISH LEGAL SYSTEM 3

decision is made to carry out a prosecution, the CPS determines all the charges except for minor

cases. The CPS also prepares court cases and presents them to court.

Once the police have investigated Dan’s case and referred the case to the CPS for advice,

the CPS makes a decision on whether the person suspected has to be charged, and what this charge

is. It acts, not on behalf of any particular individual, but for the sake of the public. The CPS

prosecutor reads the file and then considers two tests that are laid are prescribed in The Code for

Crown Prosecutors. This gives the fundamental principles a crown prosecutor has to abide by while

deciding on a prosecution. The tests have to be applied in all cases

(b) In which court would this case be tried and by whom? [10 marks, approx. 150 - 200

words]

Attempted murder is an indictable offense. An indictable offense can only be tried in a

Crown Court. An offense that is only triable by indictment is one that is considered so serious that

the Magistrates Courts cannot deal with it. The only person who can try such an offense is,

therefore, a judge and a jury. Other examples of indictable offenses are rape, murder, and

aggravated burglary among others. Indictable offenses are those that are developed, not by statute,

but by common law. There are four divisions of indictable offenses, and these are based on the

gravity of every offense. This provides the basis on which the crimes can be matched to judges of

the correct status. As such, Classes one and two cases, which include rape, murder, and treason

are tried by a judge of the High Court together with a jury. The cases in all the other classes can

Cps.gov.uk, 'The Decision To Charge | The Crown Prosecution Service' (Cps.gov.uk, 2018)

<https://www.cps.gov.uk/publication/decision-charge> accessed 28 May 2018

UNLOCKING THE ENGLISH LEGAL SYSTEM 4

be tried by a Recorder, a Circuit Judge, or a High Court Judge, accompanied by a jury whenever

the defendant pleads innocent

about what happened? [10 marks, approx. 150 - 200 words]

Once the case has been taken to a court of law and trial has kicked off, it is the role of the

jury to decide which of the parties is lying. This is done through a careful consideration of the facts

of the case. Today, this is the most important and also the most common use of a jury in the Crown

Court

. They make decisions on criminal matters which revolve around the fundamental finding

of whether a party is guilty or not. Only in a limited number of cases are juries used. Whenever

used, they have a dual role. The jury ponders over the facts of every case to determine whether the

person making the claim has given a proof of their case. Appropriate action is taken if it is found

that there is a proof of the claim being made by the claimant. If not, it is likely that the case will

be dismissed

Huxley-Binns RJ Martin, Unlocking The English Legal System

Inbrief.co.uk, 'When Are Juries Used In Criminal And Civil Cases? - Inbrief.Co.Uk' (InBrief.co.uk, 2018)

<https://www.inbrief.co.uk/legal-system/when-are-juries-used/> accessed 28 May 2018

Huxley-Binns RJ Martin (n 2).

UNLOCKING THE ENGLISH LEGAL SYSTEM 5

(d) Once the case has gone to court, who will decide whether Dan’s alleged actions are

capable as a matter of law of being within the ambit of the Criminal Attempts Act 1981?

[20 marks, approx. 300 - 400 words]

When the case has been taken to court, it is the judge that will make a decision whether the

allegations against Dan are capable of being within the ambit of Criminal Attempts Act of 1981

as a matter of law. Under the 1981 Criminal Attempts Act, the defendant possesses an attempt’s

actus rei if the steps he takes are more than merely preparatory towards committing an offense.

The trial judge first has to make a decision on whether the conduct of the defendant, in this case,

Dan, was not merely preparatory to the jury. The 1981 Criminal Attempts Act does not give any

guidance as to what is constituted by an attempt. Therefore, it is difficult to figure out exactly what

“steps that are merely preparatory” refers to. Therefore, liability for any attempt by the defendant

is determined based on the individual case in question

Therefore, the judge will go over the facts of the case and determine whether the actions

of Dan are within what is termed as a crime by the Criminal Attempts Act of 1981. According to

the act, impossibility cannot be used as a defense for an attempt. Therefore, Dan will be guilty of

the offense that he attempted even if it was impossible to commit the substantive offense. This

works regardless of the reason for impossibility, whether legal impossibility, inadequate means or

factual impossibility

Nicola Monaghan, Criminal Law (Pearson Education Limited 2012).

Nicola Monaghan (n 5).

UNLOCKING THE ENGLISH LEGAL SYSTEM 6

The judge has to consider some important factors. The first is whether the intentions of the

person would be regarded as amounting to an intention of committing the offense. The second is

that if the case’s facts had been as believed to be by him, his intention would be regarded to be as

per the facts of the case. Therefore, he would be seen as having intended to commit the offense.

This is what the judge will use to determine whether Dan’s allegations are capable as a matter of

law according to the Criminal Attempts Act of 1981

Question Two:

Alisha has separated from her husband. They agreed that they should seek for divorce but

cannot agree on her husband’s contact time with the children, or on the division between

them of some of the furniture in their home.

Alisha has also just been dismissed from her job because she took a day off to care for her 3-

year-old son when he was ill. She believes that her employers have unfairly dismissed her.

In the light of the above facts advise Alisha on:

(a) The best method(s) of dispute resolution for the problems she faces. [20 marks, approx.

300 - 400 words]

In the light of the facts give above, Alisha should avoid a court proceeding and instead

resort to a method of alternative dispute resolution. This is because, in a court trial, there is usually

Legislation.gov.uk, 'Criminal Attempts Act 1981' (Legislation.gov.uk, 2018)

<http://www.legislation.gov.uk/ukpga/1981/47/part/I> accessed 28 May 2018

UNLOCKING THE ENGLISH LEGAL SYSTEM 7

the party that wins and the party that loses. The adversarial procedure together with the aggressive

court atmosphere of court proceedings can lead to divisions between her and her husband and

employer, and make them end up as enemies even though this was not the situation at the beginning

of the case. This would be a great disadvantage for Alisha as she definitely needs to maintain a

good relationship with her employer and husband after either case is sorted. Alisha could, for

example, use arbitration.

The first case is about Alisha separating with her husband and a disagreement about the

contact of the husband with the children. The best way to solve child custody issues is informal

negotiations between the involved parents and third parties (attorneys) by mediation

. The

proceedings facilitate a voluntary resolution, and the issue does not have to be taken to a family

court. Arbitration is another good option in Alisha’s case. This will involve a neutral third party

deciding the case after having heard the evidence and arguments of each side. When arbitration is

used, the decision of the arbitrator is not usually final. The parties involved may also choose to

resolve any key issues that remain pending before a law court at a later date.

In the second case, mediation is the best option because Alisha needs to maintain a good

relationship with her employer so that she does not face difficulties should she be accepted back

to the job. If she finds a good mediator who resolves the issue between herself and her employer

Legislation.gov.uk, 'Prosecution of Offenses Act 1985 (C. 23)' (Legislation.gov.uk, 2018)

<http://www.legislation.gov.uk/ukpga/1985/23/part/I/crossheading/constitution-and-functions-of

service/enacted/data.xht?wrap=true> accessed 28 May 2018

UNLOCKING THE ENGLISH LEGAL SYSTEM 8

amicably, she will keep the relationship with her employer. A court proceeding is most appropriate

where the parties involved are strangers and would be happy to remain so

(b) The advantages and disadvantages of resolving the dispute in this way. [20 marks,

approx. 300 - 400 words]

The use of alternative dispute resolution has a number of advantages for Alisha in this case.

First, ADR is cost effective. It requires no legal representation and even if it does, it proceeds more

quickly than court proceedings. It is, therefore, quicker. ADR is more accessible since it is not as

formal as court procedures. It has no rules of evidence that are complicated. The process of ADR

is, therefore, less stressful and intimidating than court proceedings. In the employment case, speed

is an important factor, and ADR provides this. There are many delays in the court system. Waiting

for the case to be presented to court may cause a lot of loss for Alisha s she will not be working

for all this time. The people who administer ADR are specialists in those areas and so can give

quick settlements that are fair. In addition, there is a high level of customer satisfaction with ADR

and the parties involved remain in a good relationship because ADR avoids dividing the parties,

thus maintaining the relationship between Alisha with her employer and also with her husband.

Despite these advantages, ADR has a number of disadvantages. The first is that there could

be power imbalance with one party acting more voluntarily than the other. An arbitrator may lack

the legal expertise to render a decision in cases of difficult law points. However, a legal expert can

Elliott, Catherine, and Frances Q. English Legal System. 2015.

<http://www.vlebooks.com/vleweb/product/openreader?&isbn=9781292076775&uid=^u >.

UNLOCKING THE ENGLISH LEGAL SYSTEM 9

be called to advise the arbitrator whenever this is necessary. In ADR, there is no precedent system

and every case is judged on its own, without the provision of guidelines for future cases. Another

problem is that a decision that has not been made by a court of law may prove difficult to enforce

because it is not legally enforceable. This makes many people see ADR as ineffective and

minimizes its use by the people

Elliott, Catherine, and Frances Q. (n 5).

UNLOCKING THE ENGLISH LEGAL SYSTEM 10

References

Cps.gov.uk, 'The Decision To Charge | The Crown Prosecution Service' (Cps.gov.uk, 2018)

<https://www.cps.gov.uk/publication/decision-charge> accessed 28 May 2018

Elliott, Catherine, and Frances Q. English Legal System. 2015.

<http://www.vlebooks.com/vleweb/product/openreader?&isbn=9781292076775&uid=^u >.

Huxley-Binns RJ Martin, Unlocking The English Legal System

Inbrief.co.uk, 'When Are Juries Used In Criminal And Civil Cases? - Inbrief.Co.Uk' (InBrief.co.uk,

2018) <https://www.inbrief.co.uk/legal-system/when-are-juries-used/> accessed 28 May 2018

Legislation.gov.uk, 'Criminal Attempts Act 1981' (Legislation.gov.uk, 2018)

<http://www.legislation.gov.uk/ukpga/1981/47/part/I> accessed 28 May 2018

Legislation.gov.uk, 'Prosecution of Offenses Act 1985 (C. 23)' (Legislation.gov.uk, 2018)

<http://www.legislation.gov.uk/ukpga/1985/23/part/I/crossheading/constitution-and-functions-

of-service/enacted/data.xht?wrap=true> accessed 28 May 2018

Nicola Monaghan, Criminal Law (Pearson Education Limited 2012).

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