Advantages and disadvantages

Precedent :

Disadvantages

Stifling innovation: Relying too heavily on precedent can sometimes discourage innovation and creative legal thinking.
Lawyers and judges may be hesitant to push the boundaries of the law if they fear that doing so will conflict with established
precedent.

Limitations on judicial discretion: Precedent can limit a judge's ability to use their own discretion in deciding a case. If a
previous decision sets a strict rule, a judge may be unable to deviate from that rule even if they believe it would lead to a
more just outcome.

Unjust outcomes: Precedent can also result in unjust outcomes if a previous decision was based on flawed or discriminatory
reasoning. In such cases, relying on precedent can perpetuate injustices rather than rectifying them.

Inflexibility: Precedent can sometimes be inflexible and prevent the law from evolving to reflect changes in society or new
circumstances. This can result in outdated or unjust outcomes.

The system results in a large number of precedents made and then there is difficulty of finding a relevant one.

Advantages

 Consistency. No legal system can be perceived as fair unless everyone receives equal treatment. Precedent ensures
that everyone is treated fairly and equally under the law. It helps prevent judges from making arbitrary decisions
based on personal bias or opinion.

 Certainty and predictability enabling lawyers to advise their clients with some degree of certainty. If the client is
likely to lose the case, it may prevent him from wanting to go to courts and thus reduce the back log of the courts.

 Enhances the efficiency as legal rules help guide judges in their resolution of legal disputes. If judges had to begin
the law anew in each case they would add more time to the adjudicative process and would duplicate their efforts.

 Cases are reported and so there is publicity.

 It is authoritative due to the numbers and experience of the judges in the SC and CA.

ADR

Advantages

 Speed - Settling a dispute using ADR is usually much quicker than using the court system.

 Expertise - A specialist from within a particular trade or industry is able to suggest a reasonable solution which
will be acceptable to the parties involved. A judge is unlikely to have specialist knowledge, other than in the law.

 Privacy - ADR is conducted in private, therefore avoiding publicity from the media. The public are also unable to
attend.
  Parties may be able to remain on good terms – The aim of ADR is to find a compromise solution which is
acceptable to both parties. Court proceedings create a winner and a loser. Using ADR to settle a dispute means
businesses can remain on good terms and continue to trade with each other once their dispute is resolved.

 Costs to the Parties - All forms of ADR are far cheaper than taking a case to court.

Disadvantages

 Unequal Bargaining Power - In certain situations one side is able to dominate the other, for example, employment
and divorce cases, making the courts a better option for a weak party.
 Lack of Legal Expertise - Where a dispute involves difficult legal points a mediator or arbitrator is unlikely to have
the same legal expertise and knowledge as a judge.
 No System of Precedent - It isn’t easy to predict theoutcome of a dispute decided through ADR as there is no
system of precedent.
 Enforceability - Most forms of ADR are not legally binding, making any award difficult to enforce.

Judges – selection process

Advantages

1. Persons who are not barristers or solicitors can join the judiciary at the level of Circuit Judge if they have experience
as a Magistrate or Chairperson of an employment tribunal for at least 03 years. This allows for persons of more
diverse training and experience to enter the judiciary. Fellows of CILEx ( Chartered Institute of Legal Education) are
eligible to be appointed as Deputy District Judges as per the Tribunal Courts and Enforcements Act of 2007.
2. The traits and qualities of candidates are examined by the JAC , and they are not recruited if they have a criminal
record; R v JAC (2014).
3. The JAC is an independent body and is thus free from political bias.
4. appointees are chosen from the profession based on merit, there is a further benefit of extensive legal knowledge
accumulated from their experience with court rules and procedure.

Disadvantages

 Judiciary is not representative of the sexual/racial/educational mix of the country. In 2022 only 30% of judges
were women in high courts and above. Moreover, In 2016, 74% of Lords of Appeal, Heads of Division, and High
Court judges were educated at Oxford or Cambridge. The narrow background of the Judges means that they can be
out of touch with the world in which they are working. As of 2023, only 9.9% of the judiciary represent black,
Asian, mixed or ethnic background.

 Judges may not have practical experience or knowledge or be a specialist in the law they are required to deal
with in court. UK judges generally begin with serious or complex cases concerning loss of individual liberties,
especially in the case of Upper Court appointees.

 Although the basic qualification for most appointments is 07 years in the field of law as a barrister or solicitor,
the vast majority of judges to the post of High Court judges and above are appointed from Barristers who have
been in practice for 20 or 30 years.
Only 13 % of Circuit Judges are former solicitors, which shows that most judges appointed are former
barristers.
Therefore , although there are only limited procedural barriers to solicitors or non lawyers becoming judges, in
practice - barristers with a great amount of experience are appointed as judges. There is a predominance of
barristers applying for these posts.

 Best lawyers may not apply.

 Removal of judges

Advantages

1. Superior level judges have security of tenure , and can only be dismissed by parliamentary petition. This is a positive
aspect , which allows judges to take actions that maybe unpopular with the government. This aspect of Judicial
independence has allowed the Superior Court judges to force the government to change the law. Eg : A and Another
v Secretary of State for the Home Department (2004)

2. Inferior level judges being dismissed for poor conduct is a positive aspect , which allows the confidence of the
public to be retained in the judiciary. The public will otherwise lose confidence in judges, if they themselves are wrong
doers. Loss of confidence in the judiciary will eventually lead to a loss of respect in the law and subsequent violation
Bruce Campbell (1970) : Circuit Judge was convicted of evading customs duty on cigarettes and whisky.

Disadvantages

 the removal of inferior judges can be ineffective as it is highly time consuming and used very rarely.

 Inability to dismiss the post of superior level judges without a petition of Parliament can be a disadvantage,
especially if a Judge is popular with the government. Such a government will not allow for a petition dismissing
the judge to pass through, even if the conduct of the Judge has been questionable.

Literal rule

Advantages

 Promotes certainty: The Literal Rule provides a clear and predictable meaning for the statute's words, making it
easier for individuals and businesses to comply with the law.

 Upholds separation of powers: The Literal Rule limits the power of the judiciary to interpret statutes, as it
requires judges to defer to the plain meaning of the words chosen by the legislature.

 Encourages legislative precision: The Literal Rule encourages the legislature to draft statutes with precise and
unambiguous language, as any ambiguity or inconsistency in the language will be strictly interpreted by the courts.

Disadvantages

 Ignores legislative intent: The Literal Rule can lead to an interpretation of the statute that is contrary to the
legislature's intent, as it does not allow judges to consider the purpose or context of the statute.

 Can create absurd results: The Literal Rule can lead to absurd or unreasonable results when the literal meaning
of the words produces an outcome that is clearly contrary to the legislature's intent or the policy considerations
underlying the statute.

 Limited flexibility: The Literal Rule can be inflexible and may not allow for exceptions or variations in the
interpretation of the statute based on changing circumstances or societal needs.

 Parliament may have to rectify errors : Fisher V bell

Golden rule
Disadvantages

 "Feeble Parachute" Analogy by Michael Zander: Michael Zander, a legal scholar, might have referred to this limited
authority of judges to change statutes as a "feeble parachute" to highlight its ineffectiveness. Parachutes are meant to
provide safety and control during a fall, but if they're feeble or weak, they won't serve their purpose adequately.
Similarly, if judges are constrained in their ability to modify statutes, then this authority might not be particularly useful
in addressing certain legal issues or adapting to changing societal norms.
 Restricted Scope for Statute Modification: The limited circumstances under which judges can alter statutes pose a
significant disadvantage. This constraint curtails the judiciary's ability to address nuanced legal issues effectively. It
confines judges to a role of mere interpreters rather than active participants in legal evolution, potentially hindering the
adaptability of the law to modern societal needs.
 it is unpredictable and lacks guidelines because the rule does not allow judges to change the wording of a statute

Advantages

 it allows the court to make sensible decisions

 it prevents parliament from having to pass amending legislation
 it respects the authority of parliament because it only allows wording to be altered in very limted situations
where the outcome would be absurd or repugnant.

Purposive approach + Mischief rule

Advantages

 Understanding the purpose of an Act provides a comprehensive context for interpreting its provisions. Laws aim to
address societal issues or achieve certain objectives. By aligning interpretation with legislative intent, judges avoid
narrow or overly technical readings that might undermine the Act's intended effect. This holistic approach ensures
effective implementation of the law.
 It allows judges to consider social and technological changes : Considering social and technological changes
allows laws to stay relevant and adaptable. Judges can interpret statutes in line with current norms and
advancements, ensuring the law's continued effectiveness.
 Using external aids like Hansards offers valuable insights into legislative intent. They clarify ambiguities and
provide context for informed interpretations, ensuring consistency with the legislative purpose.
 implementing Parliament's Intention: Legislation originates from the democratic process, where elected
representatives debate and pass laws to address societal needs. Interpreting the Act in a manner that reflects
Parliament's intention respects the legislative authority and promotes the rule of law. It ensures that the judiciary
acts in harmony with the broader democratic framework, giving due deference to the decisions made by elected
representatives on behalf of the public.

Disadvantages

1. Difficulty in Finding Parliamentary Intention: Determining the true intention of Parliament behind enacting a statute can
be challenging. Legislative processes involve numerous debates, compromises, and amendments, making it difficult to
ascertain a singular intent. This ambiguity can lead to differing interpretations by judges, potentially resulting in inconsistent
application of the law and undermining legal certainty.

2. Undemocratic Nature: Some argue that judicial interpretation, especially when it involves delving into parliamentary
intent, may stray into undemocratic territory. Judges, who are unelected officials, wield significant power in interpreting
laws passed by elected representatives. This could be perceived as an infringement upon the democratic principle of
accountability to the electorate.

3.Potential for Uncertainty and Instability: When judges interpret statutes in ways that diverge significantly from their literal
meaning or previous interpretations, it can introduce uncertainty into the legal system. Such reinterpretations may lead to
confusion among legal practitioners, citizens, and even future judges about the proper application of the law. This
uncertainty can erode confidence in the legal system and create instability in the interpretation and enforcement of laws.

Delegated legislation

Advantages

Delegated legislation enables the creation of laws by individuals or organizations with specialized knowledge and expertise
in specific fields. This often results in higher quality legislation that is more effective and informed in addressing intricate or
technical matters.

Speedy implementation: Delegated legislation can be introduced more quickly than primary legislation, enabling rapid
responses to urgent matters or evolving situations.

Reduced Parliamentary workload: By allowing lower bodies to manage the finer details of regulations, Parliament can focus
on broader policy issues, thereby improving overall efficiency in the legislative process.

Delegated legislation enables the creation of laws by individuals or organizations with specialized knowledge and expertise
in specific fields. This often results in higher quality legislation that is more effective and informed in addressing intricate or
technical matters.

Disadvantages

Lack of control: the reality is that effective supervision is difficult. Judicial review relies on individual challenges being
brought before the courts and many individuals are unaware that such DL exists. A further problem is that some Enabling
Acts confer extremely wide powers on Ministers so there is very little room to consider anything as ultra vires.

Another issue with delegated legislation is its overuse, resulting in a complex web of laws and regulations that may confuse
and overwhelm those who are affected by them. The sheer volume of delegated legislation has raised concerns about clarity,
accessibility, and proper understanding of the law. With the extensive amount of delegated legislation in existence, finding
the applicable rules for a specific situation can be challenging for individuals, businesses, and legal practitioners alike.

Undemocratic nature: Delegated legislation is created by unelected officials, which can raise concerns about democratic
legitimacy, accountability, and transparency in the law-making process.

Sub-delegation: DL is sometimes made by people other than those given the original power to do so.

Jury

Strengths

Public participation: it allows ordinary citizens to participate in the administration of justice and satisfies the constitutional
tradition of judgement by one’s peers. Lord Denning described jury service as giving ‘ordinary folk their finest lesson in
citizenship.’ A defendant who does not come from this sector or society may well prefer to be judged by a jury which is
more likely to include a member from his own race or class.

Certainty: jury adds certainty to the law as they give a general verdict that cannot give rise to misinterpretation. Thus the
decision is not open to dispute.

Mitigating the harsh effects of law: It was once said that the jury is to criminal law what equity is to common law; it lends
flexibility and justice. Unlike the jury the judge cannot bend the rules and mitigate the harshness of the law.

Secrecy of the jury room – the jury are free from pressure in their discussion and are protected from outside influences when
deciding on the verdict.

Due to Random selection, the jury may display a wider cross section of society than the judiciary.

Weaknesses
Jurors may influence their decisions on external factors; in R v Young the jurors used and ouji board to reach a verdict,
whereas in R v West the case had large amounts of pre trial publicity which may have influenced the jurors decision to give
a verdict of guilt, and in the case of R v Karakaya the jurors had been found do be reading about the difficulty of obtaining
rape convictions.

Bias: Jurors have been found to be bias against certain groups.Bias appears to be a particular problem in libel cases where
juries’ prejudices against newspapers award huge damages. Ex the £500,000 awarded to Jeffrey Archer in 1987.

Jury nobbling: this problem has led to the suspension of jury trials. It could scare jurors into making unjust verdicts.

Distress to jury members: juries trying cases involving crimes of serious violence, like rape, murder or child abuse may have
to listen to deeply disturbing evidence and in some cases to inspect photographs of injuries.

Burden on the jury: Those accepted to the jury suddenly have a very heavy burden laid upon them, jury service is
compulsory and once the person is chosen as a juror there is an obligation on him to do his duty.

Fusion of the Professions of Barristers and solicitors

Advantages

1.Less costs as one does not have to pay a barrister and a solicitor

2. More efficiency in the system as previously barristers were only instructed at

the last minute leading to points being misunderstood or passed over.

3.Not having to decide early which branch of the profession to choose

4. No other countries have divided their legal professions into two as England has
done.

5. More continuity as the same lawyer could deal with the case from start to finish.

Disadvantages

1. Specialization: 2 professions can do their different jobs better than one

profession doing both.

2. Lack of availability of advice from an independent specialist at the Bar.

3. Loss of the cab rank principle under which barristers have to accept any case
offered to them.

4. Fall in the quality of good advocacy: while many solicitors are competent to
advocate, arguing before a judge requires different skills and greater
experience.

5. If leading barristers join larger firms of commercial solicitors their specialist skills
will be less accessible to the average person.

1. Solicitors are usually the first point of contact with the client and so are better
equipped to understand your legal issues and suggest the best possible
recourse;
2. They review your case and help prepare the paperwork pertaining to court
proceedings
 3. If you go with no win no fee employment solicitors, you won’t have to pay any
consultation fees upfront. You will only have to pay if you win your case.

 Most solicitors charge a high hourly rate of consultation, limiting your right to the law

 They usually concern themselves with client interactions and preparing paperwork. Although their rights
of advocacy have increased as per the Courts and Legal Services Act 1990, they are still limited in these
rights.

Advantages of Representation by Barristers

1. They are qualified to review all evidence within a reasonable period of time and then participate in court
hearings.

2. They operate on a cab rank principle

Disadvantages:

1. Clients have limited or no contact with the barrister, instead they work with solicitors to prep the evidence
and other facts of the case before the barrister reviews them;

2. You have to pay the fee of hiring a barrister up front- there is no concept of no win no fee with them.

Lay Magistrates

Advantages

 The use of unpaid lay magistrates is cheap as magistrates are only paid expenses, thus saving tax payer
money. The cost of a trial in the Magistrates' Court is also much cheaper than a trial in the Crown Court.
This is partly because the processes in the Crown Court are more complex and therefore likely to take
longer, but even so it is clear that the cost both to the government and to defendants who pay for their own
lawyer is much higher. The system in the Magistrates' Court enables the Crown Courts to get freed up,
since the MC deals with a large number of cases.
 Lay magistrates provide a wider cross-section on the Bench than would be possible with the use of
professional judges. This is particularly true of women, with 50% of magistrates being women compared
with 22% of judiciary overall. Also, ethnic minorities are reasonably well represented in the magistracy.
Lay magistrates are more representative than District Judges in the Magistrates' Courts.
 Lay magistrates are volunteers and this means theoretically that they are more eager and interested in the
work.
 Lay Magistrates come from the local area and therefore may have a more informed picture of local life
than professional judges.

Disadvantages

 The lack of legal knowledge of the lay justices should be offset by the fact that a legally qualified clerk
is available to give advice. However, this will not prevent inconsistencies in sentencing since the clerk
is not allowed to help magistrates decide on a sentence. In some courts, it is felt that the magistrates
rely too heavily on their clerks.
 Magistrates in different areas often pass very different sentences for what appear to be similar offences.
Despite the training scheme for lay magistrates, figures for 2010 still show wide-ranging discrepancies
in sentencing.

 It is often said that lay magistrates tend to be prosecution biased, believing the police too readily.
One fact supporting this theory is that there is a lower acquittal rate in Magistrates' Courts than in the
Crown Court. There is also the fact that they will see the same Crown Prosecution Service prosecutor
or designated case worker frequently and this could affect their judgement.

 It is argued that the middle classes are over represented on the bench there is no realistic. expectation
that the Social compassion of magistrates could be class to that of the general population as not
everyone will posses the personal attributes needed to become a Magistrate. Consequently, magistrates
Cannot he a mirror image of the what society.

 police officers are frequent witnesses and become well known to members of the bench resulting in a
tendency to believe police evidence; ex parte Jowitt.