Transcript People working with the system

Katarzyna Gromek Broc
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History
The jury system is known in Britain after the
Norman Conquest
Function: the first jurors acted as witnesses
providing the information on local matters and
were used for administrative purposes gathering
information, e.g. collecting data
Under Henry the II, the jury started to exercise the
judicial role
The jury moved from reporting the events to
deliberating on evidence provided by the parties
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History
Bushell’s case 1670 reiterated in the House of
Lords’ decision R v Wang 2005
Before Bushell’s decision, a well-known practice
where judges exercised pressure on the jury to
convict the defendant mainly for the political
reasons.
Bushell established that the jury were the sole
judges of fact, having the right to give a verdict
according to their conscience and should not be
penalised for the views on the facts even if
opposed to the judge’ views.
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The Bushell’s case established the principle that the
juries may acquit the defendant even if the law
demands a guilty verdict
In R v Wang, 2005 House of Lords confirmed that
the judge cannot pressurise the jury to convict
Today the jury is seen as fundamental part of
English Legal System although only a small
number of cases is tried by jury
It is in place to ensure that criminal justice system
works for the benefit of the public and not for the
benefit of the politicians or other leaders.
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The jury is weighing up the evidence in order to
decide the true facts of the case
The jury’s role is to find out what has actually
happened
The judge should inform the jury what is relevant
law, the jury then has to apply the law to the facts
they have found in order to reach the verdict
In criminal matters if the jury found the defendant
guilty, the judge decides on the sentence
Jury can only consider evidence presented in the
court R v Marshall and Crump (2007)
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Criminal cases
Symbolic role of the jury in criminal cases
Jury’s role in the Crown Court only
However, the role of the jury has been reduced
(criminal offences: summary offences tried in the
magistrate’s courts, indictable offences are tried in
Crown Court.)
Criminal Justice Act 2003 increased the power of
the magistrates and reduced the power of the jury.
Summary offences (road traffic offences) still for
the jury.
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Criminal Justice Act 2003 allows trial by judge
only in two situations
When a serious risk of jury tempering exists
(s.44)
Where the case involves complex or lengthy
financial and commercial arrangements (s.43)
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Civil cases
Very limited cases, less than 1%
middle of 19th century: judges were given right to
refuse case be heard before a jury
Jury trial is accepted in cases involving malicious
prosecution, false imprisonment and fraud
There are also exceptions to this rule
In case of prolonged examination of documents or
accounts or any scientific or local investigations or
defamation cases
In other cases trial by jury is at the discretion of the
court.
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Before 1972: only those who owned the house of
certain value were eligible
95% of women were excluded
Ineligibility
1) the judiciary
2) those who deliver justice: barristers, solicitors,
prison officers, police, staff working in the Crown
Prosecution
3) the clergy
4) mentally-ill people
5)People on bail in criminal proceedings
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Criminal Justice Act 2003
Potential jury members should be
Aged 18-70
On electoral register
Resident in the UK for at least 5 years
Not a mentally disordered person
Not disqualified from the jury service
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½ million people are summoned every year
Computerised system is used to send the letters to
people from the electoral lists
Jury is compulsory and non attendance can result
in fine
The jury for a particular case are chosen by
random ballot in open court
The clerk has each panel member’s name on the
card, the cards are shuffled and the first 12 names
are called out. 12 people are sworn in
never fewer than 9 jurors in criminal cases, never
less than 8 in county courts.
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Jurors are not allowed to communicate with
anyone (apart from the judge and the court official)
before the verdict is reached.
The arguments in favour of the secrecy
It ensures freedom of discussion in the jury room
Protects from outside influence and from
harassment
The public should not know how the verdict was
reached, they might respect the decision less.
Protects citizens acting as jurors
Protects their opinion and unpopular verdicts
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1. Public participation: ordinary citizen takes
part in the administration of justice, respects
tradition judgment by peers
Lord Denning : jury service “giving an ordinary
folk their finest lesson of citizenship”
2. Certainty : criminal law: verdict guilty or not
guilty decision is not open to discussion
3. Judging according to Conscience: protection
from political pressure
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Lack of competence
The ‘perverse verdicts’ problem
Bias
Representation of ethnic minorities
Jury nobbing
Crown Prosecution Service and models of criminal
justice.
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The first thing that you could think about are the
purposes for which the Crown Prosecution Service
was established for:
What do you think is its main role? Where can we
situate it in our system of ‘applying law and doing
justice’?
In terms of procedural orthodoxy we can see that
the CPS can be placed ‘in the middle’ between the
investigation by the police and the adjudication by
the courts
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The CPS was created in 1985
It was a response to criticisms made by the
Royal Commission on Criminal Procedure.
The expectations were that the CPS would
make the criminal process fairer;
and would address some concerns about the
quality of police investigations
and introduce some accountability.
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The key role of the Crown Prosecution Service
(CPS) is prosecuting.
It sits between the police and the courts
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To what extent do you think that the CPS has
delivered on these aims?
Will look at some issues raised by the Royal
Commission on Criminal Procedure prepared in
1981. Some criticisms raised included the lack of
objectivity of the investigation process relative to
prosecution (police used to be responsible both for
investigating and prosecuting); and that there was
a lack of accountability in the process and in some
extreme cases a misuse of power.
Other criticisms referred to lack of uniformity in
application of the law and the poor filtering of
weak cases.
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The CPS provided an independent prosecution
body that has been in operation for the last
twenty five years.
Do you think that the process has been fairer
since? Could you reflect upon the role of the
CPS and what criminal justice system is for?
In doing so, you could reflect on the different
purposes of criminal justice. Can you think
about some? What models of criminal justice
could be identified? Are they contradictory?
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For example could you identify the advantages of the
Due Process model, the Crime Control Model and the
Bureaucratic model? You will need to think what the
CPS actually does?
In the light of the current debate could you consider
the issue of efficiency of criminal justice system?
Furthermore, could you reflect upon the increasing
attention and centrality of the victims of crime? More
importantly could you look at the extent to which the
CPS protects victims? Could you balance the interest
of victims with the public interest?
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Police
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Investigate
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CPS
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Prosecute
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Courts
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Adjudicate
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Lack of objectivity ...
Variations in application from place to place ...
Not filtering out weak cases ...
CPS created to provide an independent
prosecution body ...
Role of the CPS makes us think about what
criminal justice is for
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Models of criminal justice are devices for
thinking about what is important in criminal
justice ...
The best known models were devised by
Herbert Packer in The Limits of the Criminal
Sanction (1968) ...
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The Due Process model
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Acknowledges the
importance of
suspects’ rights ...
Processes have an
intrinsic value,
independent of the
guilt of the suspect ...
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The Crime Control
model
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Emphasises the need
to secure convictions
Focuses on needs of
victims and public
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An administrative /
bureaucratic model ...
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Focuses on efficiency
and cost ...
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The models can help us to understand what the
CPS does ...
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Consider the extent to which ‘efficiency’ is
now driving the criminal justice debate
Consider the increased priority given to the
interests of victims of crime in policy
discussions around criminal justice
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Who could argue against it ... ?
Has always been there as an issue ...
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The tests in the Code for Crown Prosecutors reflect
a variety of concerns, including efficiency
 Evidential sufficiency (‘realistic prospect of
conviction’)
 Public Interest
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Who could argue against it ... ?
A sensible move –
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CPS aligns geographically with police areas in 1999
following the Glidewell review
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Who could argue against it ... ?
A more problematic moves –
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CPS start to work closely with police on charging
decisions following White Paper Justice for All (2002)
and Criminal Justice Act 2003
CPS now responsible for most charging decisions
other than in minor cases
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Clearly, the interests of victims and witnesses
are important, but ...
... to what extent, and in what ways, is it the job
of the CPS to protect them?
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Recognising the interests of victims and
witnesses will often be consistent with good
outcomes for prosecutors, but, for example,
victims’ interests are not necessarily the same
as the public interest
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Magistrates: 1361 Peace Act: gave judicial
power to appoint lay people
Till the 19th century administration of local
government was entrusted to them
Today, there are over 28.000 lay magistrates
(justice of peace) hearing over 1000 criminal
cases a year. (they do not receive salary but
travel, subsistence and financial loss of
allowance)
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Usual criminal, but some civil cases eg
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Who does the judging:
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Family Proceedings Court
Licensing
Three lay magistrates (unpaid, not professional), +
Court Clerk,or
District Judge
Appeals
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High Court
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Summary offences – minor
offences eg road traffic, common
assault, minor criminal damage
Either way offences tried
summarily eg theft.
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Accused can insist on a trial ON
INDICTMENT at Crown Court (with
jury) or the magistrates may refer the
case to Crown Court.
2 or 3 Lay Magistrates (Justices of the
Peace) or a legally qualified District
Judge (previously Stipendiary
Magistrate).
Legal representation by solicitor or
barrister.
Committal proceedings:
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Either way offences to
be tried on indictment
Major offences known
as indictable offences
Is there a prima facie
case against the
defendant?
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not guilt or innocence
Is there evidence upon
which a reasonable jury
could convict?
Should be ‘on remand’
in custody or given
bail?
Trial court
 More serious offences
 Trial before a judge (to
decide the law and
direct the jury) and jury
(to decide the facts and
apply the law as
directed by the judge).
Sentencing Court
 Some ‘either way’
cases, tried by
magistrates are sent to
Crown Court for
sentencing as Crown
Court has greater
powers of sentencing.
Appeal Court
 Appeals from
magistrates court
 Magistrates + judge.
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For children (10 – 13) and young persons (14 – 17)
Special part of magistrates court.
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2, often 3 judges, usually including a Lord Justice of
Appeal, often Lord Chief Justice.
2 main functions:
Appeals from magistrates courts on a point of law ‘by
way of case stated’
Appeals from the Crown Court by way of case stated
when the Crown Court has heard an appeal from the
Magistrates Court.
Summary offences or either way offences tried
summarily.
If an appeal is lodged against an indictable offence (or
an either way offence which has been tried on
indictment) then appeal to Court of Appeal Criminal
Division
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Appeals against conviction and sentence from Crown
Court
Consists of LCJ, Lord Justices of Appeal and QB Judges
Usually 3 judges sit (eg LCJ, LJ of Appeal and QBD),
exceptionally 2 judges may hear appeals against sentence.
Judges
The judges are in the centre of the English Legal System,
deciding the cases and creating precedence
The Constitutional Reform Act created as a head of
judiciary: the President of the Court of England and
Wales replacing the Lord Chancellor
The president (Lord Chief Justice) is a president o the
Court of Appeal, the High Court, the Crown court the
county courts and magistrates’ courts and can hear
cases in any of them. He would likely sit in the Court
of Appeal
Function: to represent the views of judiciary to Parliament
and the government ministers
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Appointment of judges: Constitutional Reform
Act 2005 changed the procedure:
Old system:
Lords of Appeal and Lord Justices of Appeal
appointed by the Queen on the advice of the
Prime Minister who was advised by the Lord
Chancellor
High Court Judges, Circuit Judges were
appointed by the Queen on the advice of the
Lord Chancellor
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Appointment: New System
Constitutional Reform Act 2005 established a
Judicial Appointments Commission responsible
for new appointments:
Purpose? To reinforce judicial independence
Commission : 14 members, 5 lay members, 5
judges, two legal professionals, a tribunal member
and a lay magistrate.
Appointments of the Lord Justice will continue to
be made by the Queen on the recommendation of
Prime Minister after the Commission had made
recommendation
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Appointments:
The new Appointment Commission is not
involved in appointment of judges in Supreme
Court
Instead a minister would appoint a temporary
Commission ( in case of vacancy)
Termination:
Judges of High Court and above are covered by
the Act of Settlement 1700, which provides that
they can only be removed from office by the
Queen on the petition of both Houses of
Parliament. This happened only once.
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Dismissal:
Under the Courts Act 1971, Circuit Judges and
district judges can be dismissed for inability
and misbehaviour by the Lord Chancellor after
the Lord Chief Justice had agreed. (It happened
only once)
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Two separate branches solicitors and barristers
They do similar job, drafting, giving written
advice advocacy, representing a client
Barristers spend more time in court
Solicitors are more concentrated on the paper
work
Barristers are hired by solicitors if there is such
a need (recent relaxation of this rule)
These two branches are quite free to regulate
their own matters
Solicitors, 98.000 solicitors since 1970 tripled in size
 Work: paper work, conveyancing, wills and
contracts, giving written and oral advice
 Advocacy work in the lower courts, county courts
and magistrates’ courts,
 In the past Solicitors were eligible for the judiciary
but only to become Circuit Judges, Legal Service
Act 1990, opened it up to become a judge of a
higher court
Qualifications: Law degree is not necessary, instead
CPE, then LPC and two years training.
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Self-employed,14 000, their number is
diminishing
Work: advocacy, but also some paper work,
sometimes employed by the government
departments or by law centres
they cannot form partnership
Qualification: Bar Vocational Training 1 Year
(expensive)
Called to the Bar, he/she needs to find a place
in Chamber for a one year apprentenship –
pupillage after tenancy
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10 years of practice as a barrister
Work higher profile cases, better pay £270 000
a year
Appointment: in the past similar to the senior
judges, now government is not longer involved
It is a task of Bar Council and Law Society
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Law Students
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- No compulsory link between a
university legal education and the legal
profession or the legal system.
- for solicitors: no need for an university
education
- barristers: university education but
need not be law
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- law schools central to legal training
for solicitors
- 192 non-graduate
- 220 formerly barrister
- 3907 law degree
- 1185 other degree
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61% female
29% ethnic minorities
18% working class
26% father has degree
18% has close relative in legal
profession
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Perception of legal studies: vocational
with strong academic content
72% pragmatic choice (enter legal
profession)
24% interest in the subject
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- blackletter (doctrinal)
- socio-legal
- Jurisprudential:
critical (CLS)
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realist
other
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traditional approach
‘although law may appear to be irrational,
chaotic and particularistic, if one digs deep
enough and knows what one is looking
for, then it will become evident that law is
an internally coherent and unified body of
rules’ (Sugarman)
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‘[i]t is for law professors to set forth the
law as a coherent whole – to analyse and
define legal conceptions – to reduce the
mass of legal rules to an orderly series of
principles’ (A.V.Dicey)
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- emphasis on legal philosophy
- can take a variety of perspectives including
realist, critical legal studies, positivist,..
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- interprets law from the point of view of
power relationships.
- Marxist inspired
E.g. Birkbeck College School of Law
(University of London)
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- Promotes interdisciplinary legal studies
- aims to be relevant for the society in which it
operates
E.g. Kent Law School (University of
Canterbury)