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TMA04 Contract law and tort law

Published : 18-Oct,2021  |  Views : 10

Question:

The cut-off date for TMA 04 is 12:00 midday (UK local time) on 16 March 2017. This is the latest date by which your TMA must reach your tutor. You must submit your TMA using the online TMA service. TMA 04 is worth 25% of your overall continuous assessment score (OCAS).

TMA 04 consists of three questions. You are expected to answer all questions in this TMA. The word limit for TMA 04 is a maximum of 2500 words. Remember, all the words you use to answer the questions, including quotations and citations, count. You should use the mark allocation for each question as a guide to the number of words required as follows:

1 Read Sections 1, 2, 3 and 7 of the Report, and those parts of Section 4 that relate to respondents’ gender and ethnicity. Use only this information and relevant information from Unit 11 to compare:

the gender profiles of the Bar in 2012 and 2015, and

the ethnicity profiles of the Bar in 2011 and 2015.

Write a brief report summarising whether comparison of the diversity statistics for 2011 and 2012 with those for 2015 support the proposition that the gender and ethnic diversity of the Bar is increasing.

2 Evaluate the following statement:

‘The consequences of recent cuts in the budget for legal aid mean that the time is right for the courts of England and Wales to adopt an inquisitorial system’.

3 Identify the revision technique(s) that you plan to use in preparation for the W102 examination. Give brief reasons for your choice(s).

Answer:

1 Comparative Report 

Analysis of the diversity data report helps in critically examining the nature and extent of diversity among the barrister profession as of the period 2015 in comparison to the year 2011 and 2012. The current diversity report draws data from specific membership records of the Bar Council and the Pupillage Registration Survey during 2014 and 2015 and there are in all 16336 practicing barrister at the bar.

An improvement can be witnessed in the survey process as regards the response rates during the period 2015 as compared to the year ago figure. The response rates have positively changed during the year 2015 in the categories such as gender, ethnicity, age, disability. Religion, sexual orientation, type of school attended, first generation to attend university, care of children and care for others. As regards the protected characteristics, the number of male members in the bar increased by around 1% during 2014 up from 63% during the year 2014 (Rhode 2014). Analysis of ethnicity at the bar reflects the fact that there are different categories such as “BME”, “White”, “Unknown” and “Prefer not to say” among many others. Detailed evaluation of the report on ethnicity helps in understanding the fact that the BME has increased by approximately 1% during the year 2014 and the number of BME QCs also increased considerably during the year 2014 (Rhode 2014). Reports on diversity reflects the fact that the total number of pupillages that were granted during the period 2012 was 438. The pupils as per the ethnicity at the bar was recorded to be 83.6% that were white. In addition to this, 15.4% formed the BME category of the pupils and the 0.7% were in the unknown category of the pupils as per the reports of 2014. Thus, the number of pupils increased considerably during the period 2014 as compared to the period of 2012 (Rhode 2014).

In addition to this, analysis of the gender at bar reveals the fact that during the period 2012, female population comprised of 34.7% of the barrister profession. According to the present report, response rate towards the gender increased to around 99.9% up by 1.9% registered to be 98% during 2014. As per the records, the, during the year 2011, there were around 64.9% of the men and 35.1%   women in the bar. However, during the year 2012, the percentage of men decreased to 64.2% although insignificantly and the percentage of women at the bar also decreased to 34.7% as compared to the year ago period. Thus, it can be said that the gender representation has greater diversity during the period 2012 (Rhode 2014). On the other hand, the reports of 2014 reveals that the percentage of women who are practising at the bar is recorded to be 35.9%, whilst the percentage of men was recorded to be 64%. Thus, it can be said that the gender diversity is existent in the population for the study but the gap has declined during the period 2014. Thus, it can be gender diversity in the barrister profession have increased in the population during the year 2015 as compared to the figure of 2012 (Rhode 2014).

Reports on ethnic minorities reveal the fact that there are several solicitors from ethnic minority groups that has increased considerably. Reports declared during the period 2012 reflects the fact that around 11% of the solicitors are from the ethnic minorities and this figure has remained the same since the period 2012 (Rhode 2014). The latest statistics replicates the fact that the overall picture is enhancing the entire ethnic minorities. Thus, the total number if solicitors belonging to the ethnic minority class has increased considerably. As per the reports of the year 2011, approximately 13.2% belong to the ethnic minority class. Moving further, analysis of the report announced during the year 2011, reflects the fact that only 23% belong to the black as well as minority that are ethnic solicitors (Slapper and Kelly 2013). They can also be considered to be partners in the business corporations, compared to the entire 39% of the entire white solicitors. However, reports of the year 2011 also replicates the fact that there are essentially 150 law firms in which 3.5% of the specific partners belong to the group of ethnic minority. Reports declared during the period 2011 also reflects the fact that prior researches undertaken by the Legal Services Commission during the year 2008 mentions that ethnic minority barristers earned on an average approximately £50000 that are less than their white colleagues. Again, identical earning gap essentially exists for different solicitors of the ethnic minority (Slapper and Kelly 2013).

On other hand, diversity data report declared during the period 2014 reflects the fact that there are severe issues related to the progression of Black and Minority essentially at the bar where only 6% of particularly the QCs announced that they are necessarily BME whereas 90% declared that themselves to be white. According to the diversity reports, the response rates on particularly the ethnicity was registered to be 89% during the year 2015 and 91.4% recorded during 91.4%. Thus, the percentage variance as regards response rates changed positively by around 2.4% during 2015 (Slapper and Kelly 2013). Consequently, the gender profiles as well as ethnicity profiles of the bar analysed from the diversity report helps in comparing the gender and ethnicity profiles of the bar (Gillespie 2013).

2 Critical evaluation of the statement

The consequences of recent cuts in the budget for legal aid mean that the time is right for the courts of England and Wales to adopt an inquisitorial system

The current segment intends to analyse the statement as regards the consequences of the current reduction in the budget for essentially the legal aid that implies that the time is appropriate for the courts of England as well as Wales to assume an inquisitorial process. As per reports declared by the Guardian on 9 September 2014 on legal aid in particularly England and Wales reveal that the numbers on first year of civil justice transformations lead to access to civil legal aid (Flynn et al. 2016). The report reflects the fact that the civil legal aid has decreased by a number that is more than the half. Again, there are certain classifications of regulations that have already become inaccessible for the purpose of state financing (Webley 2014).

As rightly put forward by Flynn et al. (2014), the legal aid, sentencing as well as Penalty of Offenders Act 2012 was introduced during the period the period 2013. However, during the same period, the total number of registered civil case that was granted financing for the purpose of representation as well as legal advice decreased by around 62% (Welsh 2015). Again, the social welfare as well as regulations on family was affected and there was a decrease of around 80% and 60% correspondingly. It can be witnessed that LASPO essentially reverses the overall situation by which the legal aid can be made accessible for different civil case excepting those debarred by the “Access to the Justice Act” during the year 1999 (Holt et al. 2013). The classifications of regulations are out of the purview for specifically the legal aid, while the others can only qualify only if they successfully meet specific standards. However, there particular categories that are out of the range comprises of family cases not involving asylum, housing and debt matters that do not constitute an immediate risk, cases on welfare advantages barring cases that demand appeal to the superior tribunal or else high court (Egerton 2013).

In addition to this, cases that are out of scope include clinical cases of negligence, employment instances that do not encompass human trafficking or else contraventions of specifically the “Equality Act 2010”. Besides LASPO, there are government regulations that can make significant alterations for criminal regulations (Amnesty.org.uk 2017). However, the budget developed for criminal legal aid decreased by approximately £215 million and this came into effect from April 2014. This directive necessarily directed the barristers to withdraw the overall labour. Morris and Barr (2013) mentioned that the legal aid delivers financing for the purpose of providing legal assistance to particularly the ones who primarily cannot afford to make payments to the lawyers to provide the legal advice or else for representation in the court. Again, the legal aid in specifically England as well as Wales is essentially utilized for family, civil cases, crime, social welfare, welfare benefits, housing, debt, employment, social care, mental health, immigration as well as tribunals (Gillespie 2013). As per reports, the total legal aid granted in England and Wales amounted to 1600765 during the year 2012-2013 and that decreased by around 504865 during the year 2013-2014. Cut in the legal aid fees by approximately 8.75% confirmed by the Ministry of Justice was criticized by lawyers.

The major decision of spending was disapproved and condemned by lawyers and they claimed that this particular cut can undermine the entire system of criminal justice. In addition to this, Pleasence et al. (2014) put forward the view that the sharp reduction in the MOJ spending to £1.7 billion on varied criminal as well as legal aid during 2014 and 2015 can preserve the overall access of population to justice and superior quality advocacy. Consequently, Slapper and Kelly (2013) expressed concerns regarding the fact that the new round of reduction in this legal aid can undermine the entire system of justice in the upcoming future and its survival in the coming years. Bowcott (2017) further added that the cut in the legal aid declared by the government can severely undermine the entire criminal justice procedure to the extent of non-deliverance of just and fair legal outcomes. As such, no increment of fees for twenty years followed by two cuts in legal aids since the period 2010 also pushed sustainability of different legal firms to the breaking point and solicitors were forced to stop practicing and undertaking this crucial task (Amnesty.org.uk 2017).

As per reports published by the Guardian on 10 June 2015, the justice secretary is continuing in spite of several warnings and concerns expressed by different experts. This has led to the position where there is no further fat that can be cut leaving the cut to get deepened into the bone (Bowcott 2017). As per the reports, the chairman of the Bar Council of both England as well as Wales expressed their concern regarding the adverse impact of the cut on the further reduction in the fees of the solicitor colleagues along with the implementation of the dual scheme of contracting. As per the views of Howard (2017), the measures can probably cause serious damage to the accessibility of justice along with the provision of advocacy services superior quality in England and Wales. However, the chairman of the Bar Council, Alistair Mac Donald welcomed a particular development and was pleased about the fact that the MOJ agreed over the fact of further non-reduction of legal aids and decided not to continue the scheme of cuts to all graduated fee structure of advocates. As rightly indicated by McVeigh (2017), the Criminal Bar association also deeply protested the decision of the Ministry to pursue the duty provider scheme and to enforce further reduction in fees on tough litigators. Thus, the criminal barristers also overwhelmingly staged a protest and carried on a mass walk out. According to reports published by The Guardian on 26 March 2016, around nine out of total 10 people have faced stringent admittance to legal aid, suffered from strain both physical as well as mental under the new regulations as per research reports pronounced by Citizens Advice (Newstatesman.com 2017). Data suggests that the total number of cases where people are going without a lawyer to the court has increased since the enforcement of the legal aid cut in the year 2013 (McVeigh 2017). About 90% of the population who decided to be litigants inn person reported to have encountered a negative influence on their everyday lives (Newstatesman.com 2017). Welsh (2015) opines that there are 30% increase in cases whether neither of the party had admittance to legal assistance and a 20% increase in such kind of cases that involved children.

Analysis of the cut in legal aid in both reveals the adverse impact of the scheme on the overall access of the population to the justice and lawyers. However, there is also a persistent need for reduction in the overall deficit keeping into account that the aspect of maintenance of efficiency of the justice system. Critical evaluation of the consequences of the cut in legal aids reveals the fact that there is pressing need for a specifically an inquisitorial system. McVeigh (2017) opines that an inquisitorial system that is essentially a legal system where the court in itself can actively involve in the process of investigation of different legal cases as against an adversarial process where the court’s role is to play the part of an unbiased referee between a definite prosecution and the party of defence. As such, this particular inquisitorial system introduce the systems of summary hearings specifically in such cases of minor breaches of law such as violation of traffic regulations and many others (Flynn et al. 2014). The implementation of the inquisitorial might possibly help in the process of addressing different questions of the specific criminal proceedings and not the substantive regulations. This in turn can help in the process of determination of the manner in which different criminal inquiries as well as trials can be undertaken but not the particular kind of crimes for which a specific individual might be prosecuted or else sentenced (Holt et al. 2013). In addition to this, the implementation of the inquisitorial system can lead to trial judges to act as inquisitors and the trial judges themselves can play an active part in finding out the public enquiry by way of questioning the particular party of defense, witnesses as well as the prosecutors (Flynn et al. 2014). In addition to this, the trial judges can also order for definite evidences that need to be scrutinised in case if they can find that the presentation by either the defense or else the prosecution is not adequate. Thus, this inquisitorial system can help in addressing the crisis situation brought about the reduction in legal aids by the government and has affected the overall justice system of England and Wales.

3 Identification of different revision techniques that can be planned for preparation

In particular, the planning can be considered to be the key for preparation of exams on law. However, the plan for revision involves creation of a revision timetable. The creation of time for revision might include suggestion for starting revision at least five to six weeks prior to the due date of beginning of the exams. It is necessary to develop realistic goals as per the availability of time and remember to permit breaks within long hours of study. In addition to this, it is also important to balance the entire set of subjects that are there in the course. It is also essential to allocate time for each topic under different subjects that need to be covered within the available time for revision. Again, for each course it is obligatory to understand the key topics in the course that need to be revised, content of the course, question patterns along with own interests as well as capabilities (Gillespie 2013). Moving further, it is also important to arrange all the revision materials for the study such as the lecture notes, diverse seminar notes, class notes, essays, hand out and journals among many others. Note taking, note making, drafting answers are also important part of preparation for the exam.

References:

Amnesty.org.uk 2017. [online] Available at: https://www.amnesty.org.uk/files/aiuk_legal_aid_report.pdf [Accessed 16 Mar. 2017].

Bowcott, O. 2017. Legal aid fees to be cut by 8.75%, confirms Ministry of Justice. [online] the Guardian. Available at: https://www.theguardian.com/law/2015/jun/10/legal-aid-fees-to-be-cut-by-875-confirms-ministry-of-justice [Accessed 16 Mar. 2017].

Egerton, R., 2013. Legal Aid Ils 210. Routledge.

Flynn, A., Freiberg, A., McCulloch, J., Naylor, B. and Hodgson, J., 2014. Access to justice: A comparative analysis of cuts to legal aid.

Flynn, A., Hodgson, J., McCulloch, J. and Naylor, B., 2016. Legal aid and access to legal representation: Redefining the right to a fair trial. Melb. UL Rev., 40, p.207.

Gillespie, A., 2013. The English legal system. Oxford University Press.

Holt, K., Broadhurst, K., Doherty, P. and Kelly, N., 2013. Access to Justice for families? Legal advocacy for parents where children are on the ‘edge of care’: An English case study. Journal of Social Welfare and Family Law, 35(2), pp.163-177.

Howard, E. 2017. Legal aid in England and Wales: what is changing?. [online] the Guardian. Available at: https://www.theguardian.com/law/datablog/2014/sep/09/legal-aid-in-england-and-wales-what-is-changing#img-1 [Accessed 16 Mar. 2017].

McVeigh, T. 2017. Legal aid cuts add to strain on divorcees. [online] the Guardian. Available at: https://www.theguardian.com/law/2016/mar/26/legal-aid-cuts-put-strain-on-divorcees [Accessed 16 Mar. 2017].

Morris, D. and Barr, W., 2013. The impact of cuts in legal aid funding on charities. Journal of Social Welfare and Family Law, 35(1), pp.79-94.

Newstatesman.com. 2017. The real impact of the legal aid cuts. [online] Available at: http://www.newstatesman.com/politics/uk/2016/03/real-impact-legal-aid-cuts [Accessed 16 Mar. 2017].

Pleasence, P.T., Coumarelos, C., Forell, S., McDonald, H.M. and Mulherin, G., 2014. Reshaping legal services: building on the evidence base.

Rhode, D.L., 2014. Foreword: Diversity in the Legal Profession: A Comparative Perspective. Fordham L. Rev., 83, p.2241.

Slapper, G. and Kelly, D., 2013. The English Legal System: 2012-2013. Routledge.

Webley, L., 2014. Legal Professional De (Re) Regulation, equality, and inclusion, and the contested space of professionalism within the legal market in England and Wales. Fordham L. Rev., 83, p.2349.

Welsh, L., 2015. (Neo) liberalism and legal aid: an analysis of the effect of ideology at institutional level.

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