LEGAL STUDIES Unit 4 AOS2 Overview U4.AOS2

Unit 4 Area of Study 2 Unit 4 Area of Study 2 Court processes and procedures, and engaging in justice 1. Elements of an effective legal system2. Adversary system3. Criminal procedure4. Civil procedure5. Juries6. Reform of the legal system TopicsAssessment U4AOS2 contributes 15% to your study score. There will be two SACs: SAC 4.2.A: 7.5% of study score Topics 1-3 Week 5, Mon 10 Aug SAC 4.2.B: 7.5% of study score Topics 4-6 Week 9, Thurs 10 Sep All content will be covered by end of Week 8

LEGAL STUDIES 1. Elements of an Effective Legal System U4.AOS2

Learning Intentions At the end of this topic, we will be able to: 4.2.1The elements of an effective legal system: - entitlement to a fair and unbiased hearing - effective access to the legal system - timely resolution of disputes Define key legal terminology and use it appropriately Discuss, interpret and analyse legal information and data Apply legal principles to relevant cases and issues SD 27

Elements of an effective legal system Fair and unbiased hearing Access to dispute resolution Timely resolution

W HAT IS AN EFFECTIVE LEGAL SYSTEM ?

What is a legal system?  A legal system consists of the rules, institutions, processes and procedures established to maintain order in society.

What is an effective legal system?  Although there is no one measure of an effective legal system, there are several elements that contribute to a legal system that operates effectively to meet the needs of the community.  These elements can be seen as the strengths of an effective legal system. They include:  entitlement to a fair and unbiased hearing, which implies the recognition of prevailing values and basic human rights  effective access to mechanisms for dispute resolution  timely resolution of disputes.

A FAIR AND UNBIASED HEARING

What constitutes a fair and unbiased hearing?  An effective legal system provides structures and procedures that facilitate a fair hearing or trial, free from bias.  What constitutes a fair trial will vary according to the particular circumstances of each case.  At a basic level, the court processes, including rules of evidence and procedure, the adversary system and the jury system, should operate so as not to disadvantage either party.

Elements that contribute to a fair and unbiased hearing  The rules of evidence and procedure act to ensure that the accused is treated fairly. Only evidence that has been properly obtained may be presented to the court.  In Dietrich v The Queen it was found that the right to legal representation is an essential part of a fair system of justice.  All persons charged with an indictable offence have the right to a trial by jury. The use of a jury ensures a high degree of certainty. Members of the jury share the responsibility for the decision.

Elements that contribute to a fair and unbiased hearing  The burden and standard of proof aim to ensure that individuals are treated fairly and without bias.  In criminal cases, it is presumed that you are innocent until proven guilty beyond a reasonable doubt.  The standard of proof in civil cases is ‘on the balance of probabilities’. This provides each party with an equal opportunity to persuade the court that their version of the facts is the most likely.

E FFECTIVE ACCESS TO THE LEGAL SYSTEM

What is effective access to the legal system?  All people should be aware of their right to take a matter to a court, a tribunal or other dispute resolution body, and have equal access to these legal bodies.

How is effective access to the legal system achieved?  Existence of a hierarchy of courts for both criminal and civil disputes, thereby allowing for appeals.  Availability of a range of dispute resolution processes for civil disputes with each offering specialised services, including tribunals, mediation, conciliation and arbitration.  Legal aid is available to eligible individuals to assist people who might not otherwise be able to afford access to the legal system.

T IMELY RESOLUTION OF DISPUTES

What is timely dispute resolution?  ‘Justice delayed is justice denied.’  To operate effectively, the legal system must not only provide mechanisms to resolve disputes, but also must ensure that disputes are resolved in a relatively timely manner.

What is timely dispute resolution?  On the other hand, there should be sufficient time to allow parties to prepare appropriate cases and for all evidence to be considered.  Cases should therefore be resolved in a reasonable time.  Despite this aim, delays in dispute resolution do occur, and remain a significant problem in our legal system. These delays may be due to processes and procedures used in dispute resolution, including pre- trial, trial and post-trial procedures (both criminal and civil).

S UMMARY

Elements of an effective legal system  This topic will likely, but not necessarily, arise in the context of other topics or require knowledge from other topics. For example:  The right to trial by jury is protected in the Constitution. Discuss how the jury system provides for the recognition of prevailing values and basic human rights. (6 marks)  Discuss the effectiveness of alternative dispute resolution, tribunals and courts in achieving a fair and unbiased hearing. (6 marks)

Summary Questions 1. Why is it necessary for the law to recognise that disputes will arise between individuals and crimes may be committed? 2. How can the provision of enforcement procedures and avenues of dispute resolution contribute towards an effective legal system? 3. Discuss an advantage and a challenge associated with achieving a fair and unbiased hearing in a court. 4. To what extent do you think people are provided with effective access to the legal system? 5. Why is the timely resolution of disputes important in achieving justice? Discuss. In your explanation discuss a possible advantage and a possible disadvantage of a speedy trial.