Comparative Law Spring 2003The Last Class! English Criminal

ProcedureColumbus School of Law

The Catholic University of America

Professor Fischer

April 24, 2003

Today’s Class

• English Criminal Procedure

General Trends in English Criminal Procedure

• Miscarriages of justice leading to crisis of confidence in criminal justice system and significant reforms (e.g. Birmingham Six, Guildford Four, Maguires, Tottenham Three)

• Greater focus on human rights after Human Rights Act of 1998, especially those rights in Art. 5 and 6 of the European Convention on Human Rights (protecting right to liberty including right not to be detained without lawful authority and also protecting right to a fair trial)

Adversarial or Inquisitorial?

• Compare the English system to the French

Pre-Trial Procedure

• Police (local forces)• Police and Criminal Evidence Act 1984 (PACE)

regulates police powers to e.g. stop, search, detain, arrest, interrogate, also contains suspect’s rights

• Police powers extended in Criminal Justice and Public Order Act 1994 (CJPOA)

• Home Office Codes of Practice provide guidance on this legislation though not law.

Pre-Trial Procedure

• Arrest (“You’re nicked for mugging”) – do police need to get a warrant? Can citizens arrest suspects?

• Stop and search – powers of police?• Detention and questioning – how long can a

suspect be detained without charge?• What safeguards protect against forced

confessions?

Safeguards for Suspects

• Caution (“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

• Tape recording, Right to inform someone of detention, right to consult a legal adviser, “An appropriate adult”, treatment of suspects, record of interview, exclusion of improperly obtained evidence,

• Is there a right to silence of those suspected of criminal conduct?

Crown Prosecution Service

• What is the Crown Prosecution Service? Created in 1985, it is a government prosecution service independent of police, who used to bring most prosecutions

• Role of CPS: Advise police on prosecutions, review prosecutions started by police, prepare cases for court, prosecute cases in magistrates courts and sometimes Crown Court (where since 1999 Crown Prosecutors have had rights of audience), instructs barristers to appear in Crown Court

• Must they prosecute all offenses?

Prosecutorial Discretion

• The CPS does not have to prosecute all offenses, though the decision can be challenged and reasons must be given

• Some prosecutions can only be brought if DPP or Attorney-General have consented.

• Private prosecutions are still possible – quite rare• Many complain that the CPS is underfunded and

overworked, drops too many cases, and is institutionally racist and sexist.

Which English Courts Try Criminal Cases?

Which English Courts Try Criminal Cases?

• Magistrates Courts

• Crown Court

Which English Courts Hear Criminal Appeals?

Which English Courts Hear Criminal Appeals?

• Crown Court (from Magistrates Court against conviction and/or sentence)

• Queen’s Bench Divisional Court (from Magistrates Court on points of law, judicial review)

• Court of Appeals (Criminal Division) (from Crown Court on points of law; requires leave)

• House of Lords (from Court of Appeals on points of law of general public importance or leapfrog appeals from QBD; requires leave; very rare – about 6 per year)

What Criminal Offenses are heard by magistrates courts?

What Criminal Offenses are heard by magistrates courts?

• Summary offenses such as traffic offenses• Since magistrates courts used to sit near police stations,

the public tends to think of them as “police courts”• Offenses are heard by 2-3 lay magistrates or by 1

district judge. Magistrates rely on a clerk for advice on the law.

• Magistrates can send an offender to prison for up to 6 months for one offense or up to 12 for more than one offense and/or fine up to £5000.

• No juries in magistrates courts

What Criminal Offenses are heard by magistrates courts?

• Also can hear offenses triable either way, which are medium serious offenses such as conspiracy, robbery, gbh, theft, burglary

• Here the defendant who pleads not guilty can elect trial in the magistrates court or the Crown Court unless magistrates insist on a Crown Court trial (or in some cases,where prosecutor does so). Most defendants opt for summary trial.

• Magistrates can commit to a Crown Court for sentencing if they think their powers are inadequate

• Serious moves to get rid of right to elect a jury trial

What criminal offenses are heard by the Crown Court?

• “indictable offenses”, which are the most serious crimes, including murder and rape.

• “triable either way offenses” • Many of the judges are High Court judges who travel

there “on circuit” and will try most serious offenses such as murder

• Other judges, circuit judges, or part-time recorders, try less serious offenses such as conspiracy or grievous bodily harm or offenses released to them such as manslaughter or causing death by dangerous driving

Crown Court Juries

• If the defendant pleads guilty, a jury of 12 sits with the judge or recorder

• There is no option of trial by judge alone though Lord Justice Auld has recommended this in his 2001 report.

Human Rights and Criminal Law

• 1994 law that abolished bail for certain offenders (e.g. rape or murder) was found to violate the ECHR Art. 5 - pending in European Court of Human Rights

• The current law on bail was reformed in 1998 and the Government wants to restrict bail further.

• Another change designed to speed cases through trial in magistrates courts is to give more judicial management powers to justices clerks

Crown Prosecution Service

• What is the Crown Prosecution Service?

Plea Bargaining

• To what extent does plea bargaining exist in the English legal system?

English Criminal Trials

• Adversarial

• Very similar procedure in magistrates or Crown court, though no jury in magistrates court.

Hot Issues in Criminal Justice System

• Institutional racism • Problem of police corruption and misconduct• Abolition of the right to silence• Crown Prosecution Service• Need for Other Evidence to support confession? • “Cracked trials” – guilty plea at the last minute• Falling conviction rates• Insufficient attention to the rights of victims? Should

victims be civil parties as in France?• Should the system be more inquisitorial?