Courts and the Judiciary — SQE1 FLK1 Legal System

A newspaper reports that the Supreme Court has struck down an Act of Parliament. Your client read it too. She was refused a licence she needs in order to trade, under that very Act, and now she is on the phone: is the provision dead? No. No court here can strike down an Act of Parliament. Not one. What the courts can do instead is subtler, and it is worth reliable marks.

This is Courts and the Judiciary, the first topic in Legal System, and it is the map you need before anything else makes sense. Which court hears a case settles the procedure, the judge, the route of appeal, and whose earlier decisions bind whom. Keep your client in mind. We are coming back for her.

Here is the route. The civil courts and their four tracks first. Then the criminal courts, where the type of offence decides everything. Then the top of the tree, the Supreme Court, with the tribunals beside it. Then the judges: independence, and the separation of powers. Then legal personnel. And finally, how disputes settle without a courtroom at all.

Start with the shape of the system. England and Wales is a common law jurisdiction: judges do not only apply statutes, they develop the law through decisions that bind the courts below. So a ruling of the Supreme Court carries far more weight than one from a County Court. Height matters. Hold that thought for the next episode.

Civil first. Civil is everything that is not criminal: contract, negligence, property, family. Where do most civil claims start? The County Court, the workhorse, and since 2014 there is technically one County Court for the whole of England and Wales. The moment a claim arrives, it is allocated to a track, on value and complexity.

Four tracks, four figures. Up to £10,000: small claims, or £1,000 for personal injury. £10,000 to £25,000: the fast track, trial within 30 weeks. £25,000 to £100,000: the intermediate track, the new one, introduced on 1 October 2023. Above £100,000: the multi-track, which also takes complex cases below that figure. Learn the figures cold. They are quick marks.

Above it all sits the High Court. Claims over £100,000, or £50,000 for personal injury, typically start there, and judicial review goes there whatever the value, which is exactly where your client's licence case is heading. Three divisions. King's Bench, the largest: contract, tort, personal injury, judicial review, plus the Commercial Court and the Technology and Construction Court.

Until September 2022 it was the Queen's Bench Division; older materials use the old name. Chancery takes property, trusts, wills, company law, insolvency and intellectual property. Family takes divorce and children's welfare. Lose in any of them and the next stop is the Court of Appeal, Civil Division, where Lords Justices of Appeal usually sit three to a panel.

Criminal now, and one idea organises everything: the classification of the offence decides the court. Summary offences, the least serious: common assault, minor driving offences. Magistrates' Court only. Indictable-only offences, the gravest: murder, rape, robbery. Crown Court, no choice. And in between, the either-way offences: theft, ABH, burglary.

Try one. A man takes £3,000 of electrical goods from a house while the occupiers are away. Burglary. Summary only, indictable only, or either way? Either way. So there is an allocation hearing. If the magistrates decline jurisdiction, the case goes up. If they accept it, he is asked whether he consents to summary trial, and he can refuse and elect trial on indictment.

That election belongs to the defendant alone. Nobody's permission required. Hold on to him; he returns at the quick check. The Magistrates' Court handles about 95% of all criminal cases, and there is no jury: a bench of two or three lay magistrates, Justices of the Peace, or a single District Judge.

Sentencing powers matter, and they carry dates. A single summary offence: six months' imprisonment. A single either-way offence tried summarily: up to twelve months, since 18 November 2024. Consecutive sentences are capped in aggregate at six months for summary offences, or twelve where two or more either-way offences are tried summarily. That is s.133 of the Magistrates' Courts Act 1980.

And fines? No longer capped at £5,000. Since March 2015, magistrates can impose an unlimited fine for the most serious, level 5, offences.

The Crown Court takes the indictable-only offences, the either-way cases sent up, and appeals from the magistrates. Trials run before a judge and a jury of twelve. The division of labour is clean: the judge decides the law and passes sentence; the jury decides the facts, above all guilt. A convicted defendant may appeal, with leave, to the Court of Appeal, Criminal Division, which can quash an unsafe conviction or vary a sentence.

And appeals cut both ways. A sentence that is unduly lenient can be referred by the prosecution under the Attorney General's reference procedure, and increased.

Now the top. The Supreme Court was created by the Constitutional Reform Act 2005 and opened in October 2009, replacing the Appellate Committee of the House of Lords. Twelve Justices. A normal case gets a panel of five; seven, nine, or exceptionally eleven sit when it matters enough. You need permission, granted only for a point of law of general public importance.

Which brings back your client and her newspaper. Can the Supreme Court strike down the Act? No. Parliamentary sovereignty means an Act of Parliament is the supreme form of law. What the Court can do is declare the provision incompatible with Convention rights under s.4 of the Human Rights Act 1998. The provision stays on the statute book. It keeps operating. Her licence stays refused, unless Parliament decides to change the law.

Not every dispute goes to court at all. Immigration, tax, employment, social security: tribunals. The Tribunals, Courts and Enforcement Act 2007 unified them into two tiers. Most cases start in the First-tier Tribunal, divided into chambers; appeal lies on a point of law to the Upper Tribunal, whose decisions can create binding precedent, just like the High Court.

Employment is the odd one out: Employment Tribunal, then the Employment Appeal Tribunal, then the Court of Appeal, then the Supreme Court. Why choose a tribunal? Four advantages: speed, cost, informality, expertise. And costs orders are rare, so a losing party usually does not pay the winner's legal fees.

The judges, then. The ladder starts with lay magistrates, volunteers with no legal qualifications, advised by a legal adviser. Above them: District Judges, Circuit Judges, High Court Judges, Lords Justices of Appeal, and the Justices of the Supreme Court. Before 2006, judges were effectively appointed by the Lord Chancellor, through what was politely called a tap on the shoulder.

The Constitutional Reform Act 2005 ended that. The Judicial Appointments Commission now selects through open competition, on merit, against published criteria.

Independence is the point of all of it. Judges must decide according to the law, free of pressure from government, Parliament, or anyone else. Senior judges hold office during good behaviour and can be removed only by an address of both Houses of Parliament. It has never actually happened.

Security of tenure is what lets a judge rule against the government without fearing for the job. It sits inside the separation of powers: the legislature makes law, the executive implements it, the judiciary interprets and applies it. And before the 2005 reforms, the Lord Chancellor sat in all three branches at once.

Legal personnel next, and a pairing worth locking in. Solicitors advise clients, draft documents and manage cases: regulated by the Solicitors Regulation Authority. Barristers are the specialist advocates, usually instructed through a solicitor: regulated by the Bar Standards Board. The cab rank rule means a barrister must take any case in their area of expertise, if available.

Rights of audience: who may speak in which court. Barristers, every court. Solicitors, automatically in the lower courts, the Magistrates' Court and the County Court; the Crown Court, the High Court and above need the higher courts advocacy qualification.

Last, settling without a trial. Mediation, the most common: a neutral mediator helps the parties negotiate, imposes nothing, and the process is voluntary, confidential, and non-binding until an agreement is reached and signed. Arbitration is the formal cousin: the parties submit the dispute to an arbitrator whose award binds, under the Arbitration Act 1996, enforceable abroad under the New York Convention.

Adjudication is construction's speciality. Under the Housing Grants, Construction and Regeneration Act 1996, a party to a construction contract can refer a dispute to an adjudicator at any time, and the adjudicator must decide within 28 days. The decision binds on an interim basis. Comply now, challenge later.

And the courts have teeth about settling. Refuse unreasonably to consider alternative dispute resolution and you can be punished in costs even if you win: Halsey v Milton Keynes General NHS Trust, from 2004. Since then the position has hardened. In Churchill v Merthyr Tydfil, in 2023, the Court of Appeal confirmed that a court can order parties to engage in it, and the Civil Procedure Rules were amended in 2024 to say so.

A word on how SQE1 tests all this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules. The names in this episode are memory pegs, nothing more.

If you keep only three pegs: the Constitutional Reform Act 2005, which built the Supreme Court, the Judicial Appointments Commission and the modern Lord Chancellor. Halsey v Milton Keynes General NHS Trust, where refusing to consider settlement can cost even a winner. And Churchill v Merthyr Tydfil, where the court gained the power to order you to the table.

Four traps. One: there is no automatic right of appeal in most civil cases. Permission, from the court below or from the appeal court, and you must show a real prospect of success or some other compelling reason. No permission, no appeal.

Two: never claim this country has a strict separation of powers. It does not. Ministers sit in Parliament, and the Lord Chancellor still has some involvement with the judiciary. Partial separation, with checks and balances.

Three: an arbitration award binds; a mediated outcome does not, until the parties sign a written agreement. Four: match the regulator to the profession. Solicitors: the Solicitors Regulation Authority. Barristers: the Bar Standards Board. That pairing turns up again and again.

Quick check, and you have met this man already. Charged with burglary: £3,000 of electrical goods taken from a house while the occupiers were away, nobody threatened or hurt. At the allocation hearing the magistrates say they will deal with the case themselves and that their sentencing powers are sufficient. He wants twelve members of the public to decide whether he is guilty. Can he insist on the Crown Court?

Three candidate answers. One: no, because the magistrates have accepted jurisdiction and their sentencing powers are sufficient. Two: yes, because the offence is triable either way and he may elect trial on indictment. Three: no, unless a judge of the Crown Court first agrees to accept the case. Pause here if you want a moment.

The answer is two. Burglary is an either-way offence. When the magistrates accept jurisdiction, the defendant is asked whether he consents to summary trial, and he may instead elect trial on indictment. The choice is his. Nobody's permission required.

Why the others fail. Option one has it backwards: acceptance of jurisdiction is what opens the election, not what removes it. Option three invents a filter that does not exist. He elects. The case is sent up.

Five things to take away. One: civil claims run County Court, High Court, Court of Appeal Civil Division, Supreme Court, and the four track figures are quick marks. Two: in crime, the classification of the offence decides the court, and on an either-way offence the defendant can elect a jury.

Three: your client's newspaper was wrong. The Supreme Court can declare a provision incompatible under the Human Rights Act, but it cannot strike an Act down, and the provision keeps operating. Four: tribunals are the faster, cheaper, specialist route, with appeals on a point of law. Five: solicitors, the Solicitors Regulation Authority; barristers, the Bar Standards Board. Next time: the Doctrine of Precedent, where those court rankings turn into binding law.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.