Year 12 Mock Exam Marking Scheme

Question (a) grades:


 Mark Levels                                  AO1
               ...
SECTION A


1.    (a) Describe the various roles lay magistrates play in both
      criminal and civil cases.
            ...
2.     (a) Describe the selection and tenure of the different type of
       judge.
                                      ...
•   Constitutional Reform Act 2005 – LC has power to suspend inferior
       judge subject to criminal proceedings.

Retir...
3.     (a) Describe the training of both barristers and solicitors.
                                                      ...
4.     (a) Describe both the qualifications required for jurors and the
       procedure for selecting a jury.
           ...
(b) Discuss the arguments for retaining a jury.
                                                                  (12 mark...
SECTION B

5.    (a) Describe the civil court system including both the first
      instance courts and the appellate cour...
(b)   Jane has had a dispute with her neighbour, Jeff. Jeff dug a
      flower bed near to their adjoining wall (which is ...
6.      (a) Describe the different methods of using Alternative Dispute
        Resolution available for civil disputes.
 ...
(b)   Jane has had a dispute with her neighbour, Jeff. Jeff dug a
      flower bed near to their adjoining wall (which is ...
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Law-Exchange.co.uk Shared Resource

  1. 1. Year 12 Mock Exam Marking Scheme Question (a) grades: Mark Levels AO1 Level 4 15–18 Level 3 11–14 Level 2 6–10 Level 1 1–5 Question (b) grades: Mark Levels AO2 AO3 Level 4 8–9 - Level 3 6–7 3 Level 2 4–5 2 Level 1 1–3 1
  2. 2. SECTION A 1. (a) Describe the various roles lay magistrates play in both criminal and civil cases. (18 marks) Criminal roles: • Hear summary or indictable cases in magistrates court in panel of 2-7 • Specially trained magistrates sit in youth court • Sit in crown court with qualified judge to hear appeals from magistrates court • Issue search warrant/warrant to enter premises or warrant for arrest • Hear applications for bail • Transferring Defendant to crown court for trial Civil Roles: • Family proceedings court – deals with wide range of domestic issues e.g. maintenance and residence orders, contact, care and supervision orders, and emergency protection orders • Licensing applications for pubs, bookmakers, casinos etc • Enforcement of council tax. (b) Discuss the disadvantages of using lay magistrates to make decision in criminal matters. (12 marks) • Middle aged, middle minded and middle class i.e. not socially representative • Prosecution bias • Inconsistency in sentencing • Too reliant on legal adviser • Many do not have local knowledge – only knowledge of the area they live in (generally middle class areas)
  3. 3. 2. (a) Describe the selection and tenure of the different type of judge. (18 marks) Selection: Selection of all judges (inc heads of division) with exception of law lords by Judicial Appointments Commission (JAC) – Created as a result of Constitutional Reform Act 2005. All judges are now selected by the independent Judicial Appointments Commission (JAC) Main features of JAC selection: • Appointments made only on merit with JAC carrying out assessment of merit (s.63 Constitutional Reform Act 2005) • No candidate can be appointed without recommendation of JAC • Lord Chancellor can reject candidate once or ask JAC to reconsider once but must give reasons in writing for this (this power is currently under review) Judicial Qualities: • Intellectual • Personal qualities i.e. integrity, independence of mind, sound judgement, decisiveness, objectivity, and willingness to learn. • Ability to understand and deal fairly • Authority and communication skills • Efficiency Law Lords - Part 3 of the Constitutional Reform Act 2005 –the Lord Chancellor convenes a Supreme Court Selection Commission (which must include the President and Deputy President of Supreme Court). The Commission decides on selection process to be used to assess the merit of the candidate. LC can reject candidate or ask Commission to reconsider their recommendation if he believes candidate not suitable or not best candidate on office. LC must put this in writing. Tenure: Superior judges: • Senior judges cannot be dismissed by the Government • Can only be removed by monarch following petition from Parliament (allows them to be independent in judgements) • LC can declare vacant position of senior judicial office where judge incapable of carrying out his work and resigning e.g. ill health (Supreme Court Act 1981) Inferior Judges: • LC has power to dismiss for incapacity and/or misbehaviour.
  4. 4. • Constitutional Reform Act 2005 – LC has power to suspend inferior judge subject to criminal proceedings. Retirement: • Judicial Pensions and Retirement Act 1993 – must retire at 70 (b) Discuss whether or not the changes to the selection of judges should lead to a wider cross section of people becoming judges. (12 marks) • Identify previous problems with the system i.e. appointment of senior judges based on who you know what not what you know • Identify Constitutional Reform Act 2005 reformed whole selection process and now based solely on merit and not necessarily gender or ethnic background but can lead to greater diversity in judiciary • Identify that positions are now widely advertised whereas they weren’t before. • Main problem is women and ethnic minorities under-represented but has improved recently with first Court of Appeal female judge appointed in 1988 and first House of Lords judge appointed in 2004. • Educational and social backgrounds still an issue – with senior judges being more from upper levels of society.
  5. 5. 3. (a) Describe the training of both barristers and solicitors. (18 marks) Demonstrate knowledge of training of barristers: 1 Academic: law degree (7 core subjects) or other degree plus Common Profession Examination / Post Graduate Diploma in Law after one year's extra training on core subjects; Vocational: join Inn of Court and dine 12 times or attend residential training courses during Bar Vocational course - practical training with emphasis on advocacy and drafting opinions and statements of case, called to the Bar; Practical: pupillage of two six-month periods with a pupil master, tenancy. Demonstrate knowledge of training of solicitors: Law degree route: Completion of LLB law degree, one year Legal Practice Course (1yr), two years training contract at Sols firm. Non law degree route: Any other degree plus Common Profession Examination (1yr), legal practice course, training contract Non-graduate route: Completion of Institute of Legal Executives course, work in solicitors office for 2 yrs, Admitted as a fellow of legal exec, legal practice course or completion of 2 yr training period and completion of exams. (b) Discuss the problems associated with training for both barristers and solicitors. (12 marks) Criticisms: • Expensive – large amount of debt on completion • Not necessarily the best students will apply – deters students from poor backgrounds • Not enough pupillages/training contracts • Not enough detailed training – especially for non-law graduates • Choice to become barrister or solicitor must be made early • Low training salary for barristers by comparison to solicitors Credit any suggestions for reform, eg more joint training, better funding, and more opportunities to do qualifying work in a legal environment whilst studying.
  6. 6. 4. (a) Describe both the qualifications required for jurors and the procedure for selecting a jury. (18 marks) Demonstrate knowledge of qualifications set out in Juries Act 1974 amended by Criminal Justice Act 2003: • Chosen at random from the electoral registers for a court area by computer at central office. Summonses sent out each fortnight; • Only those aged between 18 and 70, on the electoral register, and resident in UK for 5 years since age 13 can sit; • Must sit unless disqualified or excused. Demonstrate knowledge of those who cannot or need not sit: 1 • Cannot sit if disqualified: for life if convicted of a serious offence and sentenced to 5 years or more imprisonment, for 10 years if served any sentence of imprisonment or been given a suspended sentence or a community order in the last 10 years: or whilst on bail; • Cannot sit if ineligible: mental disorder; • Can be excused if serving in the armed forces and commanding officer certifies needed; • Can be excused or have service deferred for "good reason" - application has to be made to Jury Central Summoning Bureau. • Credit any reference to the deaf, or those being unable to speak English effectively being unable to sit as jurors. Demonstrate knowledge of selection once at Crown Court: • 15 chosen at random from the jury pool to go into the court room; • 12 chosen at random in court by the clerk. Demonstrate knowledge of challenges. 1 • Challenge to the array, by prosecution or defence on way jury selected; • Challenge for cause, by prosecution or defence, because of connection with case or incapacity; • Right of stand by, by prosecution, usually following vetting.
  7. 7. (b) Discuss the arguments for retaining a jury. (12 marks) Discuss the arguments for retaining juries. • Public confidence in the system – regarded as one of the fundamental indicators of a democratic system "the lamp that shows that freedom lives"; • Traditionally seen as fair as having many people on a jury cancels out any individual prejudices; • Jury equity – can disagree with a particular law and apply their own idea of fairness even if they do not follow that law as they do not need to give reasons for decisions e.g. Ponting, but this can be seen as a problem as the law is not being followed; • Allows the ordinary person to take part in the administration of justice, but as they are forced to take part there may be problems with this; • Juries are likely to be impartial as they are not connected with anyone involved in the case and they are randomly selected; • Lawyers have to explain matters simply and clearly for the jury so the defendant is better able to follow the proceedings and they become more accessible to the public but juries still do have difficulty understanding some aspects of criminal law. • Secracy – what goes on is secret so jurys aren’t influenced from outside.
  8. 8. SECTION B 5. (a) Describe the civil court system including both the first instance courts and the appellate courts. (18 marks) Explanation of allocation of cases to the fast track system based on value and complexity. County Court and High Court hears first instance claims. County Court hears small, fast and multi track cases. High Court hears fast and multi-track cases but personal injury cases over £50k must be started in the high court. Small Claims – under £5k or under £1k for PI Fast track cases – Between £5k and £15k and PI over £1k Multi Track – over £15k Appeal routes in small claims will depend on judge hearing case at FI – District judge to Circuit; Circuit to Puisne Judge. Second appeal to Court of Appeal from there in exceptional circumstances. 3 appellate courts: Divisional courts of High Court; Court of Appeal; House of Lords. Divisional Court of QBD: Appeals from MC by way of case stated; Judicial review of tribunals, public bodies, ministers etc Divisional Court of Chancery: Tax appeals made by commissioners or bankruptcy from Court Court. Divisional family court: Appeals from Magistrates Court. Court of Appeal hears appeals from divisions of high court, county court multi track procedure, Immigration and Lands Appeals Tribunals. Must identify that leave to appeal needed – when real prospects of success and/or public policy. Leapfrog appeals from High Court to House of Lords in exceptional circumstances – Point of Law of General Public Importance or binding precedent by CA. Leave from HL must be given and cert of satisfaction. House of Lords – hears appeals from CA, Divisional courts and occasionally High Court. Must mention leave to appeal needed – Point of law of public importance or bound by previous decisions. A grade candidate mention reform of House of Lords with establishment of new Supreme Court implemented by Consitutional Reform Act 2005.
  9. 9. (b) Jane has had a dispute with her neighbour, Jeff. Jeff dug a flower bed near to their adjoining wall (which is Jeff’s responsibility to maintain) which caused the wall to collapse. Jeff refuses to repair it as he doesn’t have any spare money. Jane wishes to pursue a claim in civil law. Explain to Jane the problems she may encounter using the court system to solve her civil disputes. (12 marks) • Costly – Court fees expensive and if an appeal necessary can be extremely costly • Complexity especially if she doesn’t employ a lawyer • In small claims lawyers don’t have to be used but if Jeff uses a lawyer she is unlikely to win • Can be lengthy – time a case takes to get to trial has improved but can take a long time, therefore long to resolve dispute • Court timetables can be strict and case can be struck out if she fails to comply with court directions. • Funding – legal aid not available so she will have to fund the case privately or get a lawyer to take her on under a Conditional Fee Agreement.
  10. 10. 6. (a) Describe the different methods of using Alternative Dispute Resolution available for civil disputes. (18 marks) Describe each of the different methods of ADR. 1 Mediation - neutral person helps parties reach a compromise solution. Mediator does not offer an opinion; 2 Conciliation - conciliator goes beyond mediation in that they have the power to suggest grounds for compromise or a settlement; 3 Mediation and conciliation both allow the parties to have control over the resolution process as they can withdraw at any time and a resolution to the dispute cannot be imposed on them as they must agree to it; 4 Arbitration – both parties voluntarily agree to let their dispute be left to the judgment of an arbitrator or a panel of arbitrators who are neutral. Agreements to arbitrate are governed by the Arbitration Act 1996 and are usually in writing. Agreement to go to arbitration can be made before a dispute arises [usually by a Scott v Avery clause in a contract]. Agreement will either name an arbitrator or provide a method for choosing one. A court may also appoint an arbitrator. The parties agree the procedure for hearings and these range from a ‘paper’ arbitration to a formal court style hearing. Arbitration decisions are binding on the parties and can be enforced by the courts if necessary. An award by an arbitrator can be challenged in the courts for serious irregularity in the proceedings or on a point of law. Credit if Negotiation mentioned– parties reach agreement themselves with no third party. May use solicitors. But it is not required for full marks. Credit mention of the Centre for Dispute Resolution or any other service available for mediation or conciliation e.g. ACAS. Credit will be given for any other details.
  11. 11. (b) Jane has had a dispute with her neighbour, Jeff. Jeff dug a flower bed near to their adjoining wall (which is Jeff’s responsibility to maintain) which caused the wall to collapse. Jeff refuses to repair it as he doesn’t have any spare money. Jane wishes to pursue a claim in civil law. Explain to Jane which method of Alternative Dispute Resolution would be most suitable for Jane and your reasons why she should consider this method rather than the other methods available. (12 marks) Explain which form of ADR you think is most suitable and why. • Mediation and/or Conciliation most appropriate • Credit any reference to negotiation first • Explain the difference between mediation and conciliation and explain that it depends on whether you want the third party to have more of an active role • Mediation and Conciliation readily available and can be available on-line too. • Less formal and does not have to follow the strict letter of the law; • Encourages co-operation; • Likely to maintain relationships between her and Jeff which is necessary given that they are neighbours • Explain that Arbitration not really suitable as generally used for commercial disputes and as this is not one of those should be avoided. • Arbitration also expensive.

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