Criminal Justice in England WalesbyAdam J. McKeeThere is a general perception in all western nations that crime is a serious problem and that the problem is growing. The United States is at the forefront of the so-called war against crime, and is looked to by other nations as an example. Rarely, however, do American criminal justice scholars and practitioners look to other nations for guidance. As rapid advances in communications technology bring the nations of the world closer together, this trend is changing. The overt friendliness of the Clinton Administration with the Blair Government in the United Kingdom is a prime example. Criminal justice policy decisions in the United States have an impact on policy decisions in the United Kingdom, and vice versa. As the distance across the Atlantic becomes increasingly smaller, the more important knowledge of the criminal justice system of the United Kingdom becomes to those working in criminal justice in the United States. It is the intent of this paper to provide a basic knowledge of how the criminal justice system of the United Kingdom functions. This knowledge is assumed by most English authors, and will hopefully aid the reader in understanding more complex material coming from the UK. Political GeographyThe first thing the American reader will want to understand about the United Kingdom is the distinction between several confusing names. The proper name for the country is the United Kingdom of Great Britain and Northern Ireland. Great Britain is the largest in a cluster of islands referred to as the British Isles. England is the largest and most densely populated portion of Great Britain, making up the southern and eastern portion of the island. Wales makes up the western portion of the island, and Scotland lies to the north. Northern Ireland lies in the northern part of Ireland, as the name suggests. Britain is often used to describe the entire nation, but is also used to describe the island of Great Britain. Thus, the English, Scots, and Welsh may be referred to as British. England is the largest, most populous, and wealthiest division of the United Kingdom. It makes up 130,410 sq km (50,352 sq mi) of the United Kingdom’s total 244,110 sq km (94,251 sq mi). England is a close match to Mississippi's 48,286 square miles, and the entire United Kingdom compares well with the 267,277 square miles of Texas (Microsoft, 2000). Despite this relatively small landmass, the UK has about a quarter of the population of the United States. This makes for a much more compact way of life than most of America. In the United States, each state makes its own criminal law subject to the limits of the federal law. In the United Kingdom, Scotland and Northern Ireland have an analogous autonomy. England and Wales share a common criminal justice system. Thus when reference is made to the English criminal justice system, Wales is included under this umbrella, but Scotland and Northern Ireland are not. Remember that this paper only deals with the criminal justice system in England and Wales. Principles of the English Criminal Justice SystemThe Adversarial SystemAn important similarity between the legal system of the United States and that of the United Kingdom is the system that determines how guild should be established. This adversarial system is so called because the prosecution and defense face each other as adversaries. The prosecution must prove beyond a reasonable doubt that the defendant is guilty of the charge. This system is the basis of the important legal presumption that the accused is innocent until proven guilty beyond a reasonable doubt. Criminal Liability and DefenseAnother element of the English legal system shared with the United States is the marriage of the guilty act (actus reus) with the guilty mind (mens rea), which makes an act or omission criminal. Under most criminal laws, it is not enough that a person committed the act in question, but he or she must also be responsible for it. The Theft Act of 1968exemplifies how this common law practice has been brought forward into modern statutory definitions of crime. The act states (s 1) "a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it." The mental elements of dishonesty and intent to deprive are necessary for the taking to be criminal. The principle of the guilty mind gives rise to the principle that while an act has indeed been committed, there was an excuse for doing it. When the accused cannot control the behavior or is forced into the action he or she is not accountable in the eyes of the law. Children, for instance, are regarded by the law as incapable of forming the intent, and are therefore immune to criminal charges. The threat of death or serious personal injury (duress) is also a defense. The law regards the intent as coming not from the actor, but the person causing the duress. Insanity, automatism and self-defense are other examples of legal defenses. When circumstances serve to reduce blameworthiness but not eliminate it, these circumstances are referred to as mitigating. This is most applicable in the sentencing phase of a trial, where the defense may argue for leniency. The first thing the American student will notice about the English legal system is that there are two branches of the legal profession. There are no generic lawyers as there are in the United States. By long standing tradition, the English legal profession is divided into two branches. Traditionally, only barristers (known as counsel) could appear in crown court, clad in traditional robes and powdered wigs. Recently, however, certain solicitors have been granted the right to appear in Crown Court. In the Magistrates' court, either barristers or solicitors may appear. Barristers are members of the Bar, and are usually hired through referral from a solicitor. BarristersThe General Council of the Bar (2000) describes the professional education and training of Barristers as follows: By definition, a barrister provides a specialist consultancy and advocacy service to the legal profession. Solicitors tend to be more general practitioners, albeit now with increased rights of audience. The majority of barristers work in private practice. About a quarter are employed by a range of organisations including the Government Legal Service, the Crown Prosecution Service, industry, commerce and the armed forces. Increasingly employers are looking for graduates who possess specific skills fitting them for the changing world of work. Flexibility and the ability to adapt and manage change are essential requirements. The situation is no different for 'would be' barristers. There are discernible skills which students must be able to demonstrate if they are to be successful in qualifying as a barrister and surviving in a competitive professional and business world. These skills include:
Training as a barrister is divided into three stages - academic, vocational and practical. The academic stage is common to both barristers and solicitors and can be completed by taking either a Qualifying Law Degree or a degree in another subject supplemented by the conversion course, which could take the form of the Common Professional Examination (CPE) or an approved Post Graduate Diploma in Law (PgDL). Students will normally need to have a minimum of a II (ii) Honours degree, whether their degree is in Law or not. The academic stage is designed to ensure that the student has a basic body of legal knowledge, which can be assumed and built upon at the vocational stage. The vocational stage of training comprises the Bar Vocational Course (BVC). Before commencing a BVC, a student has to be a member of an Inn of Court. Training on the course builds upon the theoretical knowledge learnt at the academic stage and helps ensure that students intending to become a barrister acquire the skills, knowledge of procedure and evidence, attitudes and competence to prepare them for the practical stage of training on the job, namely twelve months of pupillage. Finally, those who are successful in securing a tenancy are now required to follow a compulsory system of continuing professional development for the three years following pupillage, namely the New Practitioners' Programme. This includes components on ethics, substantive law or training, case preparation and procedure and advocacy training. The Bar Councilrecently approved the extension of continuing professional development to all practising barristers throughout their careers, and the Established Practitioners' Programme will be phased in from 1 January 2001. SolicitorsSolicitorsare the usual first contact made by criminal defendants with the legal profession. All solicitors must be members of the Law Society. The Law Society (2000) describes the role and training of solicitors as follows: There are solicitors' offices in every town of England and Wales. They provide comprehensive legal services including advice, preparation of documents, negotiation and representation in court, and including work often performed by notaries in other countries (for instance transfers of real property, drawing up contracts, and handling successions). Financial advice, property selling, and other services complementing legal services are now offered by many solicitors. Solicitors are the first point of contact for the citizen, public authorities, businesses, other professions and foreign clients when looking for legal advice. ... Training and entry to the solicitors profession is tough and competitive. The necessary training takes a minimum of six years. Once qualified, solicitors must keep up to date through a programme of continuing professional development. Many solicitors choose to go further and obtain professional accreditation for their specialist area. All solicitors must be on the Roll, a register of all persons qualified as solicitors. The Law Society governs admission to the Roll, that is entry to the profession, ensuring that all new solicitors are fit and proper persons and have undergone the relevant training. All solicitors wishing to practise as such must obtain a practising certificate annually from the Law Society. This guarantees that the solicitor is properly qualified and is complying with the professional rules laid down by the Law Society. Origins of the Law in England and WalesThe Common Law SystemMost European nations have a system of law based on the old Roman Law. These systems are based primarily on codified or statutory laws. The English system is different in that decisions made by the courts have the force of law. This judge made law is referred to as the common law. Most of England's colonial possessions maintain the common law system, such as the United States and Canada. Sir William Blackstone(1765) describes this division of legal authority as follows: The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions. When I call these parts of our law leges non scriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole Western world, all laws were entirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing…. But with us at present the monuments and evidences of our legal custom are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However I therefore style these parts of our law leges non scriptae, because their original institutions and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom…. But here a very natural and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depository of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study…and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceeding previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. … For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law of that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sword to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, not to maintain and expound the old one. Yet, this rule admits of exception, where the former determination is most evidently contrary to reason, much more if it is contrary to divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom or the realm, as has been erroneously determined. … And it hath been an ancient observation in the law of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. … The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of several courts, but are handed out to public view by numerous volumes of reports which furnish the lawyer’s library. These reports are histories of several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determination. … ParliamentParliament is the lawmaking body of England, analogous the Congress of the United States. Blackstonedescribes parliament as follows: The constituent parts of a parliament are the next objects of our inquiry. And these are, the king’s majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with the king in one house) and the commons, who sit by themselves in another. And the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis[1]. For upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of parliament; and he also has alone the power of dissolving them. It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, would be productive to tyranny; the total disjunction of them for the present, would in the end produce the same effects, causing that union, against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the right of executive power. … To hinder therefore any such encroachments, the kingis himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather than resolving; this being sufficient to answer the end proposed. For we may apply to the royal negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the crown has not any power of doing wrong, but merely of preventing wrong from being done. The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. The legislative therefore cannot abridge the executive power of any rights which it now has by law, without its own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And herein indeed consists the true excellence of the English government, that all parts of it form a mutual check upon each other. In the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the kingis a check upon both, which preserves the executive power from encroachments. And this very executive power is again checked, and kept within due bounds by the two houses, through the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public: of his evil and pernicious counselors. Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of the opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. … The power and jurisdiction of parliament, says sir Edward Coke[2], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. … It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. … It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo. So that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowledge; for it was a known apothegm of the great lord treasurer Burleigh, “that England could never be ruined but by a parliament:” and, as sir Matthew Hale observers, this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the same purpose the president Montesquieu, though I trust too hastily, presages; that as Rome, Sparta, and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. Blackstone often refers with great pride to the system of checks and balances that served to balance the legal system of England. This system was an inspiration to the founding fathers of the United States. Again, we see an English institution kept by the United States and abandoned by England. At present, parliament is sovereign, and has no check on its power within England. England has, however, ceded some of its power to unions of other nations through international treaty. Parliamentary government in England today can be seen as a combination of ancient institutions that have evolved and adapted to meet modern purposes. While institutional changes are often discussed in English politics, change is most always slow in incremental. This is remarkable considering parliament's power to change the Constitution by a simple majority vote (Studlar, 1996). England does not have a bill of rights in the sense that civil liberties are enumerated and guaranteed by supreme law. Yet, the law of the United Kingdom is regulated by such a document: The European Convention on Human Rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms is a treaty of the Council of Europe. This organization was founded at the end of the Second World War as part of the Allies' effort to rebuild the mainland of Europe. The United Kingdom played a major role in the creation of the convention. Among the first to sign the Convention, and the very first to ratify it in 1951, the United Kingdom leads the way in protecting civil liberties in all of Europe (Benard, 1980). Over the years since its conception, the Convention has become the foremost of international agreements determining the boundaries of standards of behavior throughout Europe. Perhaps the most profound provision of this international treaty is that it establishes a system by which people from signatory countries may take complaints of violations of rights guaranteed under the Convention to be judicially determined. This international judicial body is known as the European Court of Human Rights. The significance that this judicial body has on the law of the United Kingdom should not be minimized. The United Kingdom is bound to comply with the judgments of this court by international treaty (Penal Lexicon, 1997). Any citizen of the United Kingdom who is injured by an action of the executive or by the consequence of the standing law and who supposes it is incompatible with the Convention can present a petition to the European Commission of Human Rights. The commission will then consider the admissibility of the claim. The first criterion of admissibility is that all other avenues of remedy at home must have been exhausted. If the commission decides that a complaint is indeed admissible, it will send a report stating its official opinion on whether there has been a violation of the Convention to the Committee of Ministers of the Council of Europe. The matter may be decided at this stage by the committee, or it may be referred to the European Court of Human Rights for consideration. If the court determines that there is a violation of the Convention, then it may award damages to injured parties or award costs and expenses. The court may also find a formal official conclusion of a violation to be adequate. There is no appeal from this international court (Home Office, 1997). A judgment by the European Court of Human Rights of an infringement upon Convention rights does no have the power to directly change the law of the United Kingdom. It is up to Parliament to abide by the decisions of the Court or the Committee of Ministers as per the treaty and alter the laws in such a way that they come into compliance with the Convention (Benard, 1980). Thus, there are two sources of law in England and Wales: legislation coming from parliament (as well as related statutory instruments) and law based on cases decided by the courts. This notion of the law being derived from the decisions of judges throughout the ages is important to the legal system of England and Wales as well as the United States (Davies, Croall & Tyrer, 1996). The House of LordsAn important function of the House of Lords is that it serves as a supreme court for England and Wales. The House of Lords (1997) describes its judicial function as follows: The House of Lords hears appeals from the Court of Appeal in England and Wales and Northern Ireland in both civil and criminal matters and from the Court of Session in Scotland in civil matters. In addition, the House hears criminal appeals from a Divisional Court of the Queens's Bench Division of the High Court in England and Wales and from the High Court in Northern Ireland. Certain kinds of civil cases may also be brought direct from the High Court in England and Wales and Northern Ireland under what is colloquially known as the 'leapfrog' procedure. The House may also hear appeals from the Courts-Martial Appeal Court. Although the right to appeal to the House of Lords is ancient, the conditions under which appeal can be made have been closely defined over the last hundred years. Each category of appeal is now subject to statutory provisions either confirming or creating rights of appeal, providing for the granting of leave to appeal, defining time limits within which leave may be sought from the House itself and in some kinds of appeal providing for certification of suitability of the appeal by the courts from which the appeal is to be brought. For example, civil appeals are governed by the Appellate Jurisdiction Act 1876 with additional provision for England and Wales in the Administration of Justice (Appeals) Act 1934 and for Northern Ireland in the Judicature (Northern Ireland) Act 1978. Criminal appeals from the Court of Appeal are governed by the Criminal Appeal Act 1968 and appeals from the Divisional Court by the Administration of Justice Act 1960. Similar but separate provisions govern the comparable appeals from Northern Ireland. 'Leapfrog' appeals from the High Court are regulated by the Administration of Justice Act 1969. Broadly speaking these acts provide that an appeal is permissible only with the leave of the court below whose order is being appealed against or of the House of Lords itself. Broadly speaking, if a case is suitable to be argued before the House of Lords, the issues involved must be of general and public rather than of individual importance and questions of law rather than questions of fact must be at issue. In criminal and courts-martial cases there is an additional, statutory requirement that leave cannot be granted either by the court below or by the House itself unless the court below has certified that a point of law of general public importance is involved in its decision. So when the appeal arrives, the point of law at issue is formulated precisely in the form of a question. Similarly in 'leapfrog' appeals the High Court must certify that the case relates to the construction of a statute or statutory instrument or be a case in which the trial court and Court of Appeal are already bound by a previous decision of the House of Lords or Court of Appeal. The Law Lords The composition of the House for the purpose of exercising its judicial function is now restricted to those qualified to take part. This was not always so but by the early nineteenth century articipation by 'lay' Members was rare. Indeed, the instances of 'lay' participation in judicial decisions were thought to have been few when an attempt was made by some lay Peers to vote against the quashing of Daniel O'Connell's conviction in 1844. The then Lord President of the Council, Lord Wharncliffe, said on that occasion: "I cannot help suggesting that your lordships should not divide the House upon a question of this kind, when the opinions of the law lords have been already given upon it, and the majority is in favour of reversing the judgment. In point of fact, my lords, they constitute the Court of Appeal, and if noble lords unlearned in the law should interfere to decide such questions by their votes instead of leaving them to the decision of the law lords, I very much fear that the authority of this House as a court of justice would be greatly impaired." Lord Denman intervened at judgment in the case of Bradlaugh v Clarke in 1883, but it is not clear whether his vote was counted and it did not affect the decision. No lay Lord has sought to intervene in the consideration of an appeal since. By the nineteenth century the burden of hearing appeals fell almost entirely on the Lord Chancellor and sufficient lay Peers as were necessary to form the quorum of three; very occasional assistance was rendered by Lords who were ex-Lord Chancellors or judges and who came to be called Law Lords. It was also possible in difficult cases to call upon the judges to assist the House: this was last done in 1898. Understandably, the delay in hearing appeals was considerable and it was perhaps inevitable that this state of affairs would not long escape the Victorian zeal for reform of the machinery of justice. One attempt was made in 1856 when Sir James Parke, a Baron of the Exchequer, was raised to the peerage as Lord Wensleydale with the purpose of enabling him to assist in the hearing of appeals. His original letters patent purported to create him a Baron 'for and during the term of his natural life' - the first life peer - but as a result of objections from the Committee for Privileges, agreed to by the House on 25th February, he was eventually to take his seat as a hereditary peer. Nevertheless, the idea of a Law Lord with a peerage only for his lifetime survived and was finally given expression in the Appellate Jurisdiction Act 1876. This act established the modern form of appeal to the House of Lords. Its most significant provisions were undoubtedly those which provided for the appointment by the Queen of up to four qualified persons to be called 'Lords of Appeal in Ordinary' to sit in the House and assist the Lord Chancellor in hearing appeals. These Lords of Appeal were required to have held high judicial office for at least two years or to have been practising barristers for at least fifteen years. During his life a Lord of Appeal in Ordinary was entitled to the rank of Baron but this would not descend to his heirs. The other Members of the House of Lords qualified to sit were defined as 'Lords who hold or have held high judicial office', that is to say as Lord Chancellor, or judge of the Court of Appeal, High Court or Court of Session. Today there may be, and currently are, twelve Lords of Appeal in Ordinary. They are usually appointed from amongst the ranks of the Lords Justices of Appeal or, less frequently, judges of the High Court and they normally include two from the Scottish bench. In addition, former Lords of Appeal in Ordinary, former Lord Chancellors and holders of other high judicial office are entitled to sit as Law Lords under the Act. In practice few of them sit and then only occasionally. Thus, since 1876, the House of Lords has been, for the purposes of discharging its judicial function, composed entirely of professional people. The Judicial Pensions and Retirements Act 1993, which came into force in 1995, lowered the age of retirement of new Lords of Appeal in Ordinary from 75 to 70. It also provided that no one except the Lord Chancellor may sit judicially in the House of Lords beyond the age of 75. The Court Just as the appointment of Lords of Appeal after 1876 put the House as a court at a slight remove from the House as a chamber of Parliament, other practices relating to the times and character of sittings have tended to carry this process still further. Before 1876 Parliamentary terms were not co-extensive with the law terms but were considerably shorter (the margin is not so great today), so the highest court in the land was able to sit on far fewer days than inferior courts. Delays in hearing appeals were inevitable. In order to improve efficiency the Appellate Jurisdiction Act authorised the House to sit for judicial business not only on days when Parliament was not itself sitting but also during periods of prorogation and dissolution. A more recent amendment to Standing Orders enables the House to be recalled specifically for judicial business. Today, Law Lords sit from Monday to Thursday throughout the law terms, regardless of sittings of the House for public business. However the Law Lords now seldom meet in the Chamber of the House itself to hear appeals. Until 1948 it was customary to sit in the Chamber each day, starting at half past ten in the morning and concluding at a quarter to four o'clock in the afternoon whereupon public business - that is to say non-judicial parliamentary business - would begin. During the war the Chamber of the House of Commons was bombed and the Lords moved their sittings to the King's Robing Room to enable the Commons to sit in the Lords Chamber. The noise of the subsequent re-building interrupted proceedings and it was decided to move the Law Lords from the temporary Chamber of the House to a quieter Committee Room upstairs. For this purpose the Law Lords were constituted into an Appellate Committee, which first sat on 26th May 1948. This expedient proved so successful that in 1951, when rebuilding has been completed, it was nevertheless decided to continue the existence of the Appellate Committee. In 1960, authority was given for a second Appellate Committee to be appointed although it was not until October 1962 that two Appellate Committees sat for the first time concurrently. For the purpose of hearing appeals an Appellate Committee usually consists of five Law Lords, though in cases of exceptional difficulty or importance the Committee may comprise seven members. Sittings take place in Committee Room 1 and, when necessary, Committee Room 2. The practice of sitting as a Committee has enabled the Lords to sit earlier for the transaction of public business as the Chamber is no longer in daily use by the Law Lords. The Lord Chancellor, who sits as Speaker in the Lords, is now only rarely able to sit judicially not only in consequence of this change but also because of the increased work of his department. This is not to say that appeals are now never heard in the Chamber of the House itself. At the end of the summer recess, before the parliamentary session has resumed, the Law Lords regularly hear appeals in the Chamber, although this period is now limited by agreement to one week. The final judgment of an appeal is always given in the Chamber itself, usually on Thursday afternoons, by way of a vote upon the report of the Appellate Committee, which heard the appeal in question. These sittings serve as continual reminders that, despite modern practice, the theory remains that it is the Court of Parliament that hears and determines the appeals. Furthermore, a meeting of the House (though, naturally, not of the Appellate Committee) for judicial business is equal in status to a meeting for public business and, even if neither Lords nor Commons are sitting for public business, it constitutes a parliamentary sitting day. Leave to Appeal If the court below grants leave to appeal to the House of Lords, the appeal proceeds direct to be considered by an Appellate Committee of the House. If the court below refuses leave to appeal, a party may seek leave to appeal from the House itself by presenting a petition for leave to appeal within one month (fourteen days in criminal matters) from the making of the court's order. Every admissible petition is referred to an Appeal Committee (Standing Order 83 provides for two such Committees) consisting of three Lords of Appeal. The Appeal Committee was first set up in January 1812 and its original purpose was to consider preliminary objections to an appeal, to enforce Standing Orders and consider incidental petitions. Today, as a result of the Administration of Justice (Appeals) Act 1934 and other legislation governing the bringing of appeals, its chief function is to determine whether or not leave to appeal should be granted, though it occasionally still considers petitions on opposed incidental issues arising out of appeals and it is responsible for periodic amendment of the "Practice Directions", which set out the practice of the House with regard to appeals. The Appeal Committee considers the petition, which sets out the reasons for granting leave, together with relevant documentation. The Committee will decide whether leave should be refused or whether it should be provisionally allowed. If the Committee are unanimously of the view that a petition should be provisionally allowed the respondents to the petition (that is to say the other party or parties involved in the case) are invited to submit objections within fourteen days as to why leave should not be granted. Depending on the objections received, if any, the Committee will decide whether leave should be granted or refused, or, in cases in which the members of the Committee are not unanimous, the petition will be referred for a hearing. If no objections are received within the fourteen days, leave is granted. In all cases in which the Committee are not unanimous the petition will be referred for a hearing. A public meeting of the Committee is held, attended by the parties, at which argument is heard. After the hearing, the Committee decides whether leave should be granted or refused. If leave to appeal is granted then the appeal may be presented and heard by the House of Lords in the same way as if the court below had itself granted leave. The number of petitions considered annually has increased markedly in recent years from an annual average of 26 in 1952-60, to 59 in 1961-70, 83 in 1971-80 and 150 in 1981-90. These latter increases have, moreover, occurred at a time when the jurisdiction of the House has remained unchanged. Leave to appeal is not normally required in civil appeals from the Court of Session. Such appeals may proceed directly to an Appellate Committee provided that two Counsel have certified the reasonableness of the appeal. This was also the practice for English and Irish appeals before legislation in 1934 and 1962. Judicial Procedure While the terms on which an appeal may be brought to the Lords are mostly laid down by statute, in its subsequent course through the House an appeal is governed entirely by Lords procedure. This is laid down in Judicial Standing Orders and the Practice Directions in Civil and Criminal Appeals. . . . In the United States, the term "government" usually connotes all of the executive, judicial, and legislative bodies. In England, the term usually has a much narrower scope, referring to the Prime Minister and his cabinet, much as we refer the presidential administration. In the UK, the government is more powerful than the administration in the US. This is because the executive and legislative function are not separate in the UK. The Prime Minister is the leader of the majority party in the House of Commons. In the United States, this would amount to the president being also the Speaker of the House. It is often said that parliament is supreme, but it would probably be more accurate to say that the House of Commons is supreme. As Studlar (1996) points out, "The flexibility of the British constitution has meant that, under most circumstances, governments with an adequate majority can count on party loyalty in the House of Commons to carry their preferences into law." The Home OfficeThree departments within the government are considered to be of paramount importance: The Treasury, The Foreign Office, and the Home Office. The home office is a large department with broad authority over domestic affairs, including criminal justice. The Home Secretary heads the Home Office, and is one of the most influential figures in British politics, and in criminal justice. Insofar as criminal justice is concerned, the Home Officefunctions analogously to the Department of Justice in the United States. In the US, the scope of the DOJ's power is limited by the existence of state and local criminal justice systems. Since criminal justice is largely a national system in England, the Home Office is significantly more influential. In the last half if the nineteenth century, the Home Office gained almost complete control of many aspects of the criminal justice system (see Home Office, 1997). The Home Office has always had a major influence in policing. In fact, the founder of the MPS was Home Secretary Robert Peel, who is considered the father of modern policing. Peel was also active in other areas of criminal justice, not just policing. He was responsible for the passage of the Prison Act 1823, which began the process of bringing standards to local prisons. The Police Act 1856mandated that each county establish a police force, and provided for inspection of these forces through Inspectors of Constabulary. It was during this period that the Home Office took charge of the administration of magistrates' courts and saw to the consolidation of criminal laws that began the codes seen today. The Lord Chancellor's Department The office of the Lord Chancellor is one of the oldest and most powerful in England. The reason the holder of this office is considered so powerful is that he has a part in all three branches of government. He is the speaker of the House of Lords (legislative), chairman of the Appellate Committee of the House of Lords (judicial) and a Cabinet Minister (executive). The Lord Chancellor's Department describes its function as follows: The Lord Chancellor's Department was founded in 1885 by the creation of the post of Permanent Secretary. However, it was not until 1972, after the Courts Act 1971 came into force, that it assumed most of its present role and responsibilities. The Department's essential function is to promote the fair, efficient and effective administration of justice in England and Wales. There are four main components: · appointing, or advising on the appointment of, judges; · the administration of the court system and a number of tribunals; · the provision of legal aid and legal services; and · the promotion of reform and revision of English civil law. The official head of the Lord Chancellor's Department is the Permanent Secretary, a civil servant. This position is unusual in that the Permanent Secretary also holds the ancient office of Clerk of the Crown in Chancery and is also an officer of the Supreme Court, by virtue of the Supreme Court Act 1981 [as amended by the Supreme Court (Offices) Act 1997]. However, in other respects the position and responsibilities are similar to those of the Permanent Secretaries of other Government Departments. The Department employs about 12,000 civil servants, of whom more than 10,000 work in the Court Service at courts and tribunals throughout England and Wales. The Court Service is the Department's main operational arm and it became a separate executive agency in April 1995: the other is the Public Trust Office, which became an agency in 1994. Most of the remainder of the employees work in the Department's headquarters in London primarily handling policy matters and providing advice to Ministers. The Department's estate comprises over 400 buildings, ranging from the Royal Courts of Justice in the Strand, London, to one-room court offices in the more remote districts of England and Wales. The Department has a national asset register. All the higher courts and the county courts in England and Wales are directly administered by the Department through the Court Service Agency which provides their staff and also the buildings and equipment. An important exception to this is the magistrates' courts. Although the Lord Chancellor is accountable to Parliament for the operation of magistrates' courts, they are locally administered and the service does not fall within his direct jurisdiction. Magistrates' courts are financed by local authorities who reclaim 80% of their expenditure from the Lord Chancellor's Department in the form of an annual grant. In 1994, legislation was passed through Parliament [Part IV of the Police and Magistrates' Courts Act 1994] to reform the organization and management of the service. The Act now provides clearer lines of accountability, both locally and with central government, and aims to improve the efficiency and effectiveness of magistrates' courts administration. Structure of the Criminal Justice System The United States is now vastly different from England in the structure of its criminal justice system. This was not always so. The system in America was modeled after the English system as it was around the time of the American Revolution. In modern times, the American system resembles the English system of antiquity more than the modern English system does. Blackstone describes the old English system as follows: We have hitherto considered the former kind only, namely, the supreme legislative power of parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates. … I. The sheriff is an office of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the bailiff or officer of the shire. He is called in Latin vice-comes, as being the deputy of the earl or comes; to whom the custody of the shire is said to have been committed at the first division of the kingdom into counties. But the earls in process of time, by reason of their high employments and attendance on the king’s person, not being able to transact the business of the county, were delivered of that burden; reserving to themselves the honor, but the labor was laid on the sheriff. So that now the sheriff does all the king’s business in the county; and though he be still called vice-comes, yet he is entirely independent of, and not subject to the earl . . . . Sheriffs were formerly chosen by the inhabitants of the several counties. In confirmation of which it was ordained by statute 28 Edw. 1. c. 8 that the people should have elections of sheriffs in every shire, where the shrievalty is not of inheritance. For anciently in some counties, particularly on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Westmorland, to this day: and the city of London has also the inheritance of the shrievalty of Middlesex vested in their body by charter. The reason of these popular elections is assigned in the same statute, c. 13. “that the commons might choose such as would not be a burden to them.” And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should choose their own magistrate. … We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king’s peace, as a ministerial officer of the superior courts of justice, or as the king’s bailiff. In his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in its proper place: and he has also judicial power in divers other civil cases. He is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors[3]; to judge of the qualification of voters, and to return such as he shall determine to be duly elected. As the keeper of the king’s peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king’s peace. He may, and is bound ex officio to pursue and take all traitors, murders, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king’s enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: which summons every person above fifteen years old, and under the degree of peer[4], is bound to attend upon warning, under pain of fine and imprisonment. But though the sheriff is this the principal conservator of the peace in his county, yet, by the express direction of the great charter, he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements[5]; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office: for this would be equally inconsistent; he being in many respects the servant of the justices. In his ministerial capacity, the sheriff is bound to execute all process issuing from the king ’s courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the courts into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. As the king’s bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs: a word introduced by the princes of the Norman line; in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties. He must seize to the king’s use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; unless they be granted to some subject; and must also collect the king’s rents within his bailiwick, if commanded by process from the exchequer. To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500 l[6]. … Bailiffs, or sheriff’s officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assizes, and quarter sessions; and also to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seizing prey. The sheriff being answerable for the misdemeanors of these bailiffs, of their office, and thus are called bound-bailiffs; which the common people have corrupted into a much more homely appellation. Gaolersare also the servants of the sheriff, and must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured. And to this end the sheriff must have lands sufficient within the county to answer the king and his people. … The office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw. I de officio coronatoris; and consists, first in inquiring (when any person is slain or dies suddenly) concerning the manner of his death. And this must be “super visum corporis,” for, if the body be not found, the coroner cannot sit. He must also sit at the very place where the death happened; and his inquiry is made by a jury from four, five, or six of the neighboring towns, over whom he is to preside. If any be found guilty by this inquest of murder, he is to commit to prison for further trial, and is also to inquire concerning their lands, goods and chattels, which are forfeited thereby. . . . The ministerial office of the coroner is only as the sheriff’s substitute. For when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king’s writs. III. The next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. … The king’s majesty is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king’s peace. The lord chancellor or keeper, the lord treasurer, and the lord high steward of England, the lord marshal, and lord high constable of England (when any such officers are in being) and all the justices of the court of king’s bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizance to keep it: the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county; as is also the sheriff; and both of them may take a recognizance or security for the peace, and commit them until they find sureties for their keeping it. ... The power, office, and duty of a justice of the peacedepends on his commission, and on the several statutes which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby give him all the power of the ancient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offenses; which is the ground of their jurisdiction at sessions, of which more will be said in it’s proper place. And as to the power given to one, two, or more justices by the several statutes, that from time to time have heaped them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the county is greatly obligated to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well meaning justice makes any undersigned slip in his practice, great lenity and indulgence is shown to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office: which, among other privileges, prohibit such justices from being sued for any oversight without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any willful or malicious injury, are entitled to double costs. … The general duty of all constables, both high and petty, as well as of the other officers, is to keep the king ’s peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable, the hundred[7] being however answerable for all robberies committed therein, by light, for having kept negligent guard. Watch is properly applicable to the night only, and it begins at the time when ward ends, and ends when that begins; for, by the statute of Winchester, in walled towns the gates shall be closed from sunset to sunrise, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. The constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. … Currently, policing in England and Wales is carried out by 43 forces. The largest of these forces is the Metropolitan Police with over 28,000 officers. The smallest is the City of London with only around 800 officers. Each of these forces is divided into geographically based divisions. Specialist units and departments provide support for line officers. The most important of these special units is the criminal investigation departments (CID). England has embraced technological tools for fighting crime. In 1994 England became the first nation in the world to establish a DNA fingerprint database. The Police Act 1964set up police authorities, which are composed of two-thirds elected members from the local community, and one-third justices of the peace. The Metropolitan Police is the only force in England not responsible to a police authority. These authorities have the responsibility to develop a local policing plan in cooperation with the chief constable. They are also responsible for deciding on spending priorities within the context of that plan. The Metropolitan Police ServicePolicing London is more complex than policing the rest of England. Seven million people live within the 800 square miles of the city, and millions more are there as tourists and commuters. The duty of policing this vast city falls on the London Metropolitan Police Service (MPS). The Metropolitan Police Fact Sheet (MPS, 2000) demonstrates the magnitude of this job as follows: From its 190 police stations, 800 specially trained traffic officers patrol more than 8,600 miles of roads, which carry around 2.6 million vehicles every day. In one year officers have to deal with more than 40,000 accidents, of which more than 250 are likely to involve fatalities. Their work is backed up by a fleet of more than 4000 vehicles which between them cover some 50 million miles each year: 300 bicycles, 130 horses, 300 highly trained dogs, four boats constantly patrolling the tidal section of the Thames (with four more on standby up river) and three helicopters. (p. 1) One of the greatest benefits enjoyed by the MPS is the fact that it is a centralized service and is well funded. There is little of the duplication of resources necessary in most US jurisdictions, where Sheriffs, municipal police and state police organizations may all have jurisdiction in an area. The headquarters of the MPS at New Scotland Yard houses the Communications Complex, which handles nearly 1.5 million 999(England's version of 911) calls per year. Complaints against the police are also handled from within this centralized command structure. From the very beginning, community policing was at the heart of the MPS, even if that term would not be invented until long after Sir Robert Peel founded the MPS in 1829 (MPS, 2000b). At the time it was established, there was much concern that the new police force would be an agency of oppression. To combat this negative image, officers were made strictly accountable to the public early on. Not only are officers subject to the law of the land, but also are also subject the Police Discipline Code. Officers can never break the law with the excuse that it was necessary to carry out their duties. If an officer commits a criminal offense, he or she is tried and punished just like an ordinary citizen. In less serious breaches of the Code or the law, a senior officer can investigate, if the citizen complaining agrees. Complaints about serious violations are sent either to one of the five Area Complaints Units (ACUS), or to the Complaints Investigation Bureau (CIB). The CIB investigates serious cases of alleged misconduct, and proactively gathers information about misconduct by particular officers. ACUs deal with the majority of citizen complaints and less serious internal investigations. In cases where objectivity may be questioned by the public, another police force will be asked to conduct the investigation. If the evidence suggests that a violation has in fact occurred, the matter will be heard by a Discipline Board, which functions in much the same way as magistrates' court proceedings. In serious cases, the board is composed of three Commanders and the officer has the right to representation by a barrister. The board has a wide range of punitive options, ranging from a formal warning to dismissal from the force. The officer has the right to appeal the Board's decision to the commissioner, or as a last resort, to the Home Secretary. Police PowersIn England, the police are not above the law. They are held to the same legal standards as the public, as well as special laws regarding the police specifically. The most sweeping legislation regarding police powers is the Police and Criminal Evidence Act 1984 (PACE. These rules are designed to protect citizens against police conduct. It must be remembered that England has no Bill of Rights and English courts have no power of judicial review. Thus, it is necessary for parliament to serve as a watchdog of the people's rights. Prior to PACE, the rights of English citizens were protected by sporadic legislation and various common law protections. PACE sought to bring these rights under one heading, as well as dealing with modern technological innovations used by the police. A major innovation brought about by PACE was a provision for the tape-recording of interviews in police stations. The police are also required to keep records on dealings with suspects of stops, arrests, and persons in police custody. Stringent codes of practice were also established by PACE. Any violation of the codes of practice can result in evidence being excluded by the court. Unlike in the United States, however, this exclusion is not mandatory. England uses what has been called a 'best interest of justice' standard. If the judge and the jury are satisfied that the evidence is both reliable and relevant, in may be admitted. Stop and SearchPACEstipulates that persons and vehicles may be searched in a public place for stolen or prohibited articles when a police constable (PC) has reasonable grounds for suspecting that they will find such an article. Prohibited articles include offensive weapons and articles carried with the intention to use them in an offense, such as burglary tools. Persons may be detained for the time reasonably required for the search to be carried out. The PC conducting the search must inform the suspect that he or she is a constable. The officer's name, police station, the object of the search and the grounds for making the search must also be revealed to the suspect (ss 1-7). PACE also provides that magistrates may issue search warrants if there are reasonable grounds to suspect that a serious arrestable offense has been committed (s 8). ArrestsPACE(ss 24-33) lays out the circumstances under which any person, including police officers, security officers, or ordinary persons can make an arrest. They may arrest anyone who is, or whom they reasonably suspect to be, committing an arrestable offense, and anyone who has committed or who can be reasonably suspected of having committed an arrestable offense. Police officers may additionally arrest someone they reasonably believe is about to commit an arrestable offense, or anyone they reasonably believe to be guilty of an arrestable offense. An arrestable offense is one that has a penalty fixed by law that carries a sentence of at least 5 years, or is specifically made arrestable by the wording of the statute. The police also have the power of arrest where a breach of bail occurs or is anticipated. Upon arrest, the suspect has the right to be: 1. Informed that they are under arrest and the reason for the arrest 2. Arrested without the use of excessive force 3. Cautioned (given notice of rights) 4. Interviewed only at a designated police station (except in exigent circumstances) PACEalso provides comprehensive guidelines as to the treatment of suspects at the police station. Upon arrival at the police station, suspects are entitled to again be informed of their rights. The following are among these rights: 1. The right to inform someone that they have been arrested. 2. The right to contact and consult a solicitor in private, even if they cannot afford one. 3. The right to access PACEand the codes of practice. The act also provides timetables for review of cases such that persons are not held for long periods without being charged. The Act also stipulates the suspects must be "cautioned." This warning, similar to the Miranda warnings in the United States, is as follows: You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence. (Davies, Croall & Tyrer, 1996, p. 105) The Prosecution of OffensesAs in the United States, the prosecution of criminal offenses is the duty of the state. Blackstone describes the origins of this process in England as follows: Another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice the law does not mean the author or the original, but only the distributor. Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust; it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers. It is probable, and almost certain, that in very early times, before our constitution arrived at it’s full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. … In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king’s peace or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem to be rather offences against the kingdom than king; yet, as the public, which is an invisible body, has delegated all its power and rights with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eyes of the law. … And hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving. And therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of Great Britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public. … In modern times, case must advance through several stages before going to trial. The police may decide to take no formal action at all, or may issue an informal warning. They may also issue a formal police caution that goes on record, or refer the case to some form of mediation. Failing these lesser alternatives, they may decide to pass the papers to the Crown Prosecution Service(CPS). What follows is a brief treatment of each of these options. CautioningObviously, an officer may use his discretion and take no official action in a particular case, or issue an immediate informal caution or warning. This is usually done with trivial offenses, such as begging in the London Underground. If a more formal measure is called for, the officer may issue a formal caution. The offender must admit guilt at first contact with the police, and is instructed by a senior police officer not to do it again. Records of formal cautions are kept in local Criminal Records Offices and are retained for three years. If the offender again breaks the law, the previous caution is considered by the court in sentencing. Three basic elements must be met before a formal caution can be administered. First, there must be sufficient evidence to warrant a prosecution. Second, the offender must admit guilt. Third, the offender must consent to the caution in lieu of appearing in court. Fourth, the offender must be warned that the caution may be cited in future court appearances. The Crown has shown a strong reluctance to prosecute juveniles, and thus formal cautions are more commonly used with young persons. The Crown Prosecution ServiceThe majority of cases that go on to prosecution are prosecuted by the Crown Prosecution Service (CPS), but a number of agencies have a statutory responsibility for prosecuting cases. Private individuals may also prosecute, but this is rarely done. The Crown reserves the right to take over private prosecutions once begun. The Prosecution of Offenses Act 1985 established the CPS with the purpose of prosecuting all criminal cases initiated by the police. Before this, the police were responsible for prosecutions. The CPS is required to submit annual reports to the House of Commons, but there is no legislative requirement as to the substance of these reports (Wasik, Gibbons & Redmayne, 1999). Once an offender has been charged or summoned by the police, the "papers" are handed over to the CPSbranch that handles cases for that police station. The CPS is under statutory obligation to review each case under 2 criteria: that there is sufficient evidence to merit taking the case to court, and that doing so is in the best interest of the public. The CPS is guided in this function by The Code for Crown Prosecutors(see Appendix A). The bulk of the code is concerned with these two factors in the decision to prosecute. Under these guidelines, the CPS must be satisfied that there is a realistic prospect of conviction on the available evidence. The probability of a conviction must be greater than the probability of an acquittal before the CPS will proceed. This test has been referred to informally as the 51% rule. The public interest requirement invokes the idea of "fair play." The following public interest criteria were developed to guide the CPS in assessing public interest: Factors militating against prosecution:
Factors militating in favour of prosecutions:
The Criminal Courts of England and WalesAs with any system of courts, the English court system is hierarchical. When considering caseloads, the hierarchy can be thought of as a pyramid with cases flowing upward from the lower courts to the higher courts. Criminal cases are usually dealt with by the magistrates' courtor Crown Court. Nearly all start in the magistrates' cour. The nature of the charge determines whether the trial will be held in magistrates' court, or passed up to the Crown Court. Offenses are generally either summary or indictable. Summary offences are comparatively less serious crimes. Summary offenses are made so by act of parliament. The maximum penalty for summary offences is six months' imprisonment and/or a 5000 pound fine. Summary offenses are handled by the magistrates' court, and may not be passed up to the Crown Court. Triable either wayoffenses include theft, burglary, assault and unlawful wounding. TEW offenses are generally such that the severity of the offense depends on the circumstances surrounding the crime. TEW offenses are considered by the magistrates' court, and a decision is made as to whether the case should be tried in magistrates' court, or sent up to the crown court. Offences triable by indictment only must be heard in Crown Court. An indictment is the formal document used in a Crown Court trial describing the charges against the defendant. In TEW offenses, the magistrates' court must decide which court will hear the case. This process is referred to as the mode of trial decision. The pivotal issue is these cases is the limited sentencingpower of the magistrates' court. Magistrates will generally send a case up to the Crown Courtif the circumstances of the case are so serious that the maximum penalty available to the magistrate would be inadequate. If the magistrate determines that the case is suitable to be heard in his or her court, the defendant may still move the case on to crown court by demanding the right of trial by jury. Many defendants prefer trial by jury in the Crown Court because the chances of acquittal are much higher. Just as in the United States, the English courts the judiciary holds itself to be independent. In fact, the judiciary is tied to both the executive and legislative branches. The highest appellate court is the Law Lords, which hears disputes concerning points of law. As previously discussed, the courts have no power to determine the constitutionality of laws, as does the Supreme Court of the United States. The English courts do however have to power to declare acts of the government ultra vires, meaning that the government has acted outside the laws as parliament has made them. The government can rectify this by having parliament rewrite the law (Studlar, 1996).
Legal AidIn cases where defendants cannot afford their own lawyer, they are entitled under certain circumstances to assistance from legal aid. Most legal aid is means tested. This means that it is based on the financial circumstances of the defendant. The American student may find the federal formula for educational assistance a helpful analogy. PACE(1984) introduced the duty solicitor scheme, which provides for legal advice 24 hours a day for those being questioned at a police station. The duty solicitor scheme does not cover traffic and other minor offenses. BailThe bail system in England and Wales is governed by the Bail Act 1976. The Bail Act stipulates that there is a presumption in favor of bail for unconvicted defendants. Bail may be refused by the court if there are "substantial grounds" for believing that the accused would fail to show up, commit a crime, or obstruct justice. Bail in England and Wales is much different than in the United States. Devine (1991) describes this important difference as follows: Not widely realized in the United States is that commercial bail bonding would have been illegal under English common law for well over a century before it was barred by Act of Parliament in 1976. The essence of such bail bonding, as previously discussed, is that for payment of a sum, normally a percentage of the bail required, the bondsman will provide the financial surety required by the court for release of the arrested individual. English bail, although for well over a century not relying principally upon a third party's standing surety in bail matters, has and does permit sureties to be required by a court as an extra security for the accused's appearance. Such suretyship was added where needed to the accused's own recognizance until 1976, and to the threatened exaction of criminal penalties for absconding since then. ... (p. 17) Under the English bail system, when a person is granted bail, they are released under a duty to attend court or a police station at a specified time. Certain conditions may be attached to bail which aim to ensure that the accused appears at the next hearing. Aside from the monetary security previously discussed, the court may also restrict the defendant's movement by requiring the defendant to surrender his or her passport to the police. Failure to show up at the required time is made criminal, with a fine of up to 5000 pounds and three months imprisonment (Davies, Croall & Tyrer, 1996). The TrialJust as in the United States, the defendant is presumed innocent until proven guilty beyond a reasonable doubt (Watts, 1988). The burden of proof is on the prosecution. This means that the prosecution must prove to the judge or jury that the defendant is guilty, while the defendant is under no obligation to prove anything. While a jury might suspect that a person committed a crime, they should not convict unless they are sure. The most obvious difference between trials in England and trails in the United States is the demeanor of the participants. All English legal professionals are considered servants of the court, and their primary duty is the administration of justice. While the English legal system is unquestionably adversarial, it is not combative. Both the prosecution and defense barristers sit at the same table and treat each other with civility and respect. This is not to say that the defense counsel does not provide the best possible defense. No matter the nature of the offense, accused persons are defended fearlessly. Defense counsel must put aside personal feelings and interests and defend even those accused of the most heinous crimes. This guiding sense of fairness is reflected in the "cab-rank" principle, which demands that a barrister must always represent a client when asked. This does not apply, however, if the barrister is previously engaged, is not qualified to practice in the relevant court, or is not offered a suitable payment. Under the legal aid scheme, whatever payment the government offers is suitable. In criminal trials, the judge performs several duties. He or she directs the jury on the law, determines questions as to the admissibility of evidence, determines sentences of the accused is found guilty, and generally referees the proceedings. In the fundamental interest of fairness, the judge must remain independent, not being swayed by political or other interests. The judge must direct the jury on matters of law, and may comment on evidence of fact. These legal directions must be heeded by the jury, but his comments on matters of fact may be ignored by the jury. If the judge is not careful and oversteps his authority on matters of fact, it provides the defendant with grounds for appeal. |
