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CRIMINAL PROCEDURE IN ENGLAND AND WALES
UNIT 10 CRIMINAL PROCEDURE IN ENGLAND AND WALES
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Preview Definition of crime Types of criminal offences
Elements of a crime Burden of proof Criminal procedure Adversary/inquisitorial procedure Purpose and types of punishment
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CRIME An act that is considered to be a public wrong and is therefore punishable by the state in criminal proceedings
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Types of criminal offences
Summary offences: Magistrates’ Court; no jury Indictable offences: Crown Court; jury trial Offences triable either way (Magistrate’s Court or Crown Court)
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Types of crime Crimes against the person Crimes against property Crimes against the State and public peace and order
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What does a crime consist of?
Actus reus – criminal offence Mens rea – criminal intent
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Right to a Fair Trial The right to be presumed innocent
The privilege against self-incrimination The right to silence The right to legal aid and assistance The right to be brought promptly before a court
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Right to a Fair Trial The right to release pending trial
The right to confront witnesses The right to be tried on evidence not obtained by violation of fundamental rights
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Principles of criminal justice
Every person accused of crime must know what the accusation is A person can be convicted of crime only on evidence given in open court The burden of proof is always on the prosecution ‘No man shall be condemned unheard’ Trial by jury
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The Police The police investigate a crime and may arrest suspects and detain them in custody. If the police decide an offender should be prosecuted, a file on the case is sent to the Crown Prosecution Service (CPS)
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Investigative powers of the police
To stop and search To arrest and search suspects To detain and question suspects (questioning – tape-recorded) To take fingerprints and bodily samples To enter and search premises To seize articles and documents
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Caution (Right to silence)
Before 1994: “You do not have to say anything unless you wish to do so, but what you say may be given in evidence”
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Caution Since 1994: “You do not have to say anything. But if you do not mention now something which you later use in your defence, the court may decide that your failure to mention it now strenghtens the case against you. A record will be made of anything you say and it may be given in evidence if you are brought to trial”
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The Crown Prosecution Service (CPS)
Created by the Prosecution of Offences Act (1985) Headed by the Director of Public Prosecutions (DPP)
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The Crown Prosecution Service
The CPS must consider whether there is: 1) enough reliable evidence for a realistic prospect of conviction, and if so, 2)whether the public interest requires a prosecution
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The evidential test Can the evidence be used in court?
Is the evidence reliable? Is the evidence credible?
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The public interest test
How serious is the offence committed? What is the level of culpability of the suspect? What are the circumstances and the harm suffered by the victim? Was the suspect under the age of 18 at the time of the offence?
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The public interest test
What is the impact on the community? Is prosecution a proportionate response? Do sources of information require protecting?
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The public interest test
1. a conviction is likely to result in a significant sentence 2. a weapon was used or violence was threatened 3. the offence was committed against a person serving the public (a police officer, a nurse, etc. 4. vulnerable victims, discrimination, etc.
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The Crown Prosecution Service
They can decide to: go ahead with the prosecution, send the case back to the police for a caution, or take no further action
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How do criminal proceedings start?
Criminal proceedings can be initiated 1) by the serving of a summons setting out the offence and requiring the accused to attend court, or, 2) in more serious cases, by a warrant of arrest
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How do criminal proceedings start?
Criminal proceedings against adult defendants for both summary and indicatble offences always begin in the magistrates’ court
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Custody “A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor at any time” (duty solicitors)
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Custody A person should not be detained for more than 24 hours (36 hours in serious cases to secure or preserve evidence; max. period: 96 hours) without being formally charged with a crime
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Bail Bail : ‘freedom from custody; the release of an arrested person from custody after payment has been made to a court on condition that the person will return to face trial’
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Refusing bail Magistrates may refuse bail if they believe that the defendant will: 1) fail to surrender to custody; 2) commit another offence; 3) interfere with witnesses
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Standard of proof The prosecution must prove the elements of crime BEYOND REASONABLE DOUBT (criminal standard of proof)
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Criminal trials Most cases – magistrates’ courts (summary offences): before magistrates or a district judge: facts and legal issues The Crown Court – indictable offences: before the judge (legal issues) and the jury (facts) The Youth Court
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CRIMINAL TRIAL The accused enters the dock (‘part of a court where an accused prisoner stands’) The charge is read out The accused pleads ‘guilty’ or ‘not guilty’
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Criminal Trial On a “guilty plea”, the Magistrates’ Court can either proceed to sentence or commit to the Crown Court for sentence On a ‘not guilty plea’ the trial proceeds to establish the person’s guilt or innocence
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ACCUSATORIAL (OR ADVERSARY) PROCEDURE
A procedure in common law countries where each side collects and presents their own evidence and attacks their opponent’s by cross examination
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INQUISITORIAL PROCEDURE
In countries where Roman law is applied, a procedure by which an examining magistrate has the duty to investigate a case and produce evidence
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ACCUSATORIAL PROCEDURE
Accusatorial (adversary procedure): A system of criminal justice in which conclusions as to liability are reached by the process of prosecution and defence.
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ACCUSATORIAL PROCEDURE
It is the primary duty of the prosecutor and defence to press their respective viewpoints within the constraints of the rules of evidence while the judge acts as an impartial umpire, who allows the facts to emerge from this procedure.
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STAGES OF A CRIMINAL TRIAL
1. Accusation 2. Jury sworn in 3. Prosecution opening speech 4. Prosecution evidence 5. Defence opening speech 6. Defence evidence 7. Prosecution closing speech 8. Defence closing speech 9. Judge’s summing up 10. Jury’s verdict 11. Sentence
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THE JURY Trial by jury – an ancient and important feature of English justice; the main element in criminal trials in the Crown Court Jury membership – in the past, linked to the ownership of property
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THE JURY Today – before the start of a criminal trial, 12 jurors are chosen from a list of some 30 names randomly selected from local electoral registers They listen to the evidence and give their verdict on the facts
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The Jury If a jury cannot reach a decision, it will be discharged and a new one sworn in Until 1967 the verdict had to be unanimous Today: a majority verdict (ten to two)
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The Jury System safeguards individual liberty and justice; the ordinary citizen’s link with the legal process Criticism: high acquittal rates; subjective jurors; intimidation of jurors; costs
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Lord Devlin, Trial by Jury
“The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives”
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THE JUDGE Controlling influence in the battle between defence and prosecution Applies the rules of the court and gives directions on procedure and evidence Should not interfere nor show bias Passes sentence
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Purposes of sentencing
Punishment (retribution) Public protection Crime reduction Reparation Rehabilitation of offenders
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TYPES OF PUNISHMENT Unconditional discharge (if it is a person’s first offence, and if it is not serious) Conditional discharge (the accused is set free but if he commits another crime within a stated time, the first crime will be taken into account; he may be put on probation: regular meetings with a social worker) Fine Community service
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Types of Punishment Imprisonment Life sentence
Death penalty – abolished in the UK in (except for treason); in 1998 the home secretary signed the 6th protocol of the European Convention of Human Rights which formally abolished the death penalty in the U.K.
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CRIMINAL APPEALS The Court of Appeal (Criminal Division):
1) The conviction may be quashed (the jury’s previous verdict is overruled and the accused is pronounced ‘not guilty’ 2) The sentence may be reduced The Supreme Court: Either prosecutor or defendant my appeal on a point of law of general public importance
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The royal prerogative of mercy
The power to pardon convicted individuals exercised by the Crown on the advice of the Home Secretary: 1) A free pardon: quashing a conviction 2) A conditional pardon: excusing or varying the conviction subject to conditions 3) Remission of a sentence (‘reduction of a prison sentence’)
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cross-examined,judge, jury, prosecution, trial, witnesses
A ___may be defined as a judicial examination of the issues between the parties.Although some variations may exist, trials are usually held before a__, or a judge and jury. The counsels for the __and for the defence make opening statements to the __, outlining what each sees as the nature of the case and what each hopes to prove as the trial proceeds. Next, the counsel for the prosecution presents his case by calling__, questioning them, and permitting them to be __by the counsel for the defence.
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Key A trial may be defined as a judicial examination of the issues between the parties.Although some variations may exist, trials are usually held before a judge, or a judge and jury. The counsels for the prosecution and for the defence make opening statements to the jury, outlining what each sees as the nature of the case and what each hopes to prove as the trial proceeds. Next, the counsel for the prosecution presents his case by calling witnesses, questioning them, and permitting them to be cross-examined by the counsel for the defence.
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clients, evidence, facts, law
The counsel for each side then makes a closing argument to the jury, summarizing the __in a light most favourable to their respective__. The function of the jury is to determine the __of the case, whereas the function of the judge is to determine the applicable __and to oversee the parties’ presentation of the facts to the court.
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Key The counsel for each side then makes a closing argument to the jury, summarizing the evidence in a light most favourable to their respective clients. The function of the jury is to determine the facts of the case, whereas the function of the judge is to determine the applicable law and to oversee the parties’ presentation of the facts to the court.
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applicable, constitutes, court, verdict
After the judge has instructed the jury on the ___law, the jury will retire to deliberate in private until it reaches a__, which will then be announced in open__. In a case tried before a judge sitting alone, the decision of the judge ___a termination of the trial.
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Key After the judge has instructed the jury on the applicable law, the jury will retire to deliberate in private until it reaches a verdict, which will then be announced in open court. In a case tried before a judge sitting alone, the decision of the judge constitutes a termination of the trial.
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Legal terms Summary offence
Lakše kazneno djelo; djelo za koje se sudi na osnovnom sudu (bez porote) Indictable offence Teško kazneno djelo
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Legal terms Apprehend Uhititi, lišiti slobode Suspect
Sumnjiva osoba, osumnjičenik Custody Pritvor, istražni zatvor Remand in custody Zadržati u pritvoru
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Legal terms Bail Jamstvo; privremeno puštanje na slobodu uz jamčevinu
Offender Počinitelj, prijestupnik Offence Kazneno djelo Offend Počiniti kazneno djelo
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Legal terms Charge Optužnica, optužni prijedlog To bring a charge
Podići optužnicu Summon Poziv na sud
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Legal terms Prosecute Pokrenuti sudski postupak Prosecution
Pokretanje kaznenog postupka, podizanje optužnice Prosecutor tužitelj
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Legal terms Right against self-incrimination
Right not to say anything, when questioned by the police, in case you may say something which could incriminate you Pravo na šutnju
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Legal terms Dock Optuženičko mjesto u sudnici Plea
In criminal proceedings, a formal statement made in court by an accused person as a response to the charge made against him Izjašnjavanje, odgovor na optužnicu Plead Izjasniti se o krivnji
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Legal terms Verdict Odluka porote Acquit Osloboditi krivnje Acquittal
Oslobađajuća presuda
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Legal terms Conviction
A decision that a person accused of a crime is guilty Osuđujuća presuda Sentence A legal punishment given by a court to a convicted person Kaznena presuda
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Legal terms Quash To invalidate a conviction made in an inferior court ot to set aside a decision subject to judicial review Poništiti presudu Overrule Poništiti, ukinuti presudu nižeg suda
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Legal terms Remission reduction of a prison sentence (for good behaviour) Umanjenje kazne remit Commute To reduce a harsh sentence to a lesser one
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Legal terms Prerogative of mercy
The power to commute or remit a sentence Pravo na pomilovanje
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True or False? 1. Criminal trials are always held in front of a jury.
2. A judge may sit alone to hear a legal case. 3. At the beginning of the trial both counsels outline their case. 4. The counsel for the defence may cross- examine prosecution witnesses.
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True or False? The function of the jury is to decide the applicable law. The judge may intervene if the counsels on either side fail to observe the court procedures. The judge advises the jury on the law relevant to the case. The jury discusses their verdict in open court.
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Key players in the criminal law
Who What The police interrogate Arrests, searches and seizures The police carry out On the sentence to be imposed The magistrate sometimes conducts Over the court The prosecutor conducts Suspects and witnesses The suspect has the right The case in court on behalf of the police The suspect is innocent The investigation in cases of serious criminal offence
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Key players in the criminal law
Who What The defence counsel assists The suspect from violations of his rights at the hands of law-enforcement personnel The defence counsel protects The suspect in gathering exonerating evidence The judge presides To remain silent The judge decides Until proved guilty The jury decides Whether the accused is guilty or not
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Stages in a criminal procedure:
1. Crime reported 2. investigation by police 3. investigation of suspect 4. apprehension of suspect 5. charge of suspect 6. remand in custody, or 7. release on bail 8. interrogation of accused 9. interrogation of witnesses
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11. decision of jury 12. judgement of judge 13. conviction of accused or 14. acquittal of accused 15. sentence by judge 16. appeal against judgement
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Exercise: Match each stage to its correct definition
__: the police free the person alleged to have committed the crime on condition that the accused appears at court at a future date ___: the jury panel make a decision whether they believe (beyond reasonable doubt) that the accused committed the crime of which s/he is accused
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___:the judge decides punishment
___: the police carry out a systematic examination of the person who may have committed a crime ___: the police receive information that a crime may have been committed ___: the police make a claim of wrongdoing against the person alleged to have committed the crime
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___: the police carry out further questining of the person alleged to have committed the crime
___: the defendant is found not guilty of the charge ___:the accused comes to court to face charges ___: the police carry out a detailed enquiry into the alleged crime
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___:after being found guilty, the accused brings an action to clear his/her name or to reduce the sentence ___: the police arrest the person who is alleged to have committed the crime ___: the police detain the person alleged to have committed the crime ___: the judge makes a judicial decision
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___: the police collect evidence against the accused from those who can give evidence
__: the defendant is found guilty
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Key Release on bail: the police free the person alleged to have committed the crime on condition that the accused appears at court at a future date. Decision of jury: the jury panel make a decision whether they believe (beyond reasonable doubt) that the accused committed the crime of which s/he is accused
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Key Sentence:the judge decides punishment
Investigation of suspect: the police carry out a systematic examination of the person who may have committed a crime Crime reported: the police receive information that a crime may have been committed Charge of suspect : the police make a claim of wrongdoing against the person alleged to have committed the crime
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Key Interrogation of accused: the police carry out further questining of the person alleged to have committed the crime Acquittal of accused: the defendant is found not guilty of the charge Appearance in court: the accused comes to court to face charges Investigation by police: the police carry out a detailed enquiry into the alleged crime
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Key Appeal against judgement: after being found guilty, the accused brings an action to clear his/her name or to reduce the sentence Apprehension of suspect: the police arrest the person who is alleged to have committed the crime Remand in custody: the police detain the person alleged to have committed the crime Judgement: the judge makes a judicial decision
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Key Interrogation of witnesses: the police collect evidence against the accused from those who can give evidence Conviction of accused: the defendant is found guilty
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