Justice In The Common Law Courts example essay topic

The law affects every aspect of our lives. We live in a society which has developed a complex body of rules to control the activities of its members. In the world two legal systems predominate: those based on the laws of ancient Rome, those based on the common law of England. In order to understand the English society we are going to examine some basic features of the English legal system. It is important to remember that English law refers to the law as it applies to England and Wales.

Scotland and Northern Ireland have their own distinct legal system (distinctive courts and laws). The administration to criminal justice involves not only the judiciary, but also the legislature and the executive. The Parliament prescribes what actions are to be classified as criminal and attaches maximum penalties to each of these. The Executive authorities manage the prisons, the probation service and give effect to the judgements of the courts. Section 1: Some Legal Concepts 1) English law and continental law Before the arrival of the Norman in 1066 there was not really English law.

The Anglo-Saxon system was based on the local community. Assemblies of free men called county courts or hundred courts applied local customs. The law was not uniform throughout the country. The Norman gradually replaced these courts by feudal courts. They created a uniform system of law for the whole country. Cases were settled by baronial courts or manorial courts.

During this period Ecclesiastical courts were also created and settled cases by canon law. William the Conqueror sent out to deal with civil and criminal matters. Later England was divided into circuits. The Norman kings instituted a body known as the which exercised certain judicial powers. In the 13th century it gave birth to courts known as the Courts of Common Law which sat at Westminster The Common Law courts were staffed by royal judges. They developed in the following order.

1) The Court of the Exchequer (Barons of the exchequer): primarily a government department concerned with national revenue; They dealt with dispute over taxation; 2) The Court of Common Pleas claimed jurisdiction over disputes between persons (civil disputes), e.g. in relation to land; 3) The Court of King's Bench: the king himself used to sit at a bench with the judges to decide disputes (criminal and civil cases). The Common law of England was created by selecting certain customs and applying them in all future similar cases. Thus Common law became a very rigid system. The disappointed litigants petitioned the king who was.

Generally the king passed the petitions to the. By the 15th century was established the Court Chancery (hearings by the chancellor). The body of rules applied by the court was called Equity. As the result of the Judicature Act of 1873 the old courts of common law and the Court of Chancery were abolished and replaced by a single Supreme Court of Judicature each branch of which had full power to administer both law and equity. In case of a conflict between the rules of equity and the rules of common law the rule of Equity should prevail...

2) The Common Law (loi tradition elle ou cout umi " ere) Definition (Encyclopaedia Britannica) English common law or the body of customary law based on judicial decisions and embodied in report of decided cases, originated in the early Middle Ages in decision of local courts which applied custom and reason to every day disputes with the aid of but few formal enactments. English common law continued to be developed by judges as opposed to legislators and their case law continues today to decide the meaning of legislative enactments and fill in gaps in the law by (in effect extending and developing) the common law. There are two elements within the English legal system itself: . equity (the separate body of rules developed by the courts of equity); . statute law (law enacted by the legislation). Separation of the English legal system into two distinct departments of Common law and Equity (justice civile) is peculiar to England. Common Law is a system of national law administered by a central body of national courts. is used to refer to the law made by the judges as opposed to the law made by Parliament (case law / statute law). Equity (civil law) means what is fair and just, moral and ethical.

It is a body of rules which evolved (15th, 16th) to remedy the defects of the Common Law system. It was possible to appeal to the King's conscience (equity) who could intervene as a sovereign justiciar. The King had delegated his power to the Chancellor and Equity was administered by the Court of Chancery. The intervention of the king which was made in the name of morality did not create new rules of law. The problem for the plaintiffs was that to obtain the remedies they were entitled to they had to bring two successive actions. One in damage before a common law court and another in Chancery to obtain an equitable injunction.

As a result of the Judicature Acts (1873-75) the Courts of common law and the Court of Chancery were abolished and replaced by one Supreme Court Judicature In English law Equity means that body of rules originally enforced only by the Court of Chancery. Petitions from persons unable to obtain justice in the common law courts were sent to the king as a fountain of justice. The two systems of law did not fused. Equity is still distinct from common law. Both are now open to a plaintiff in one action before the same court... In case of conflicts between the rules of common law and the rule of equity the rules of equity should prevail.

Englishmen fully share the incomprehension mixed with aversion as far as. Why is the Common Law so different from the law of the European continent? The Common Law is the oldest national law in Europe (12th century, 1066) and is common to a whole kingdom administered by a central court with a nation-wide competence in first instance. Continental law is more abstract and based on the laws of ancient Rome.

English law prefers precedent as a basis for judgements and moves empirically from case to case from one reality to another. Judges gave reasoned explanation to justify the judgement delivered. 3) Legislation (statute law: loi 'e crite) The basis of English law is the common law, the principles of which are to be found in the case law built up by judges ever since the Norman conquest. To keep order and peace, the king amended or altered existing law by issuing ordinances, provisions, charters, these ordinances were in effect statutes. The rise of Parliament turned the UK into a constitutional monarchy. Many areas of the common law (civil or criminal) have been revoked or reformed by the representatives of the people.

The main sources of law today is legislation which may take the form of: a) Statutes or Acts of Parliament; b) delegated legislation, mainly in the form of what are called Statutory instruments. In England unwritten law is predominant and more of English law derives from the judicial precedent than from legislative enactment. Some statutes have played a more important part in the development of the country. Magna Carta (1215) It was the first constitutional document which recognised the rights of the people of England. It guaranteed four main rights: 1) justice should not be delayed or refused to anyone; 2) no person should be imprisoned or deprived of his property except by the lawful judgement of his equals; 4) no person should be fined to his ruin; 5) no person should be deprived of his means of livelihood. The Petition of Right (1628): It dealt with the main grievances of the day against Charles I (1625-1649).

The abuses which were abolished were: 1) the exaction of taxes, gifts, or loans without the consent of Parliament; 2) the imprisonment of Englishmen without due legal proceedings; clause eight provides: (keep to what has been decided previously). This principle requires judges to follow the ruling contained in previous judicial decisions or and to follow the decisions of higher courts. Thus a judge is confronted with a binding precedent This doctrine depends on the principle that the courts form a hierarchy. A court inferior in authority is obliged to follow a court of superior authority... These decisions, therefore make the law unless they are overturned by Parliament or by a higher court or the court itself in one of the exceptional cases in which it is free to do so.

The Divisional Court of the Queen's Bench Division, the Court of Appeal, the House of Lords The House of Lords is the highest court in the country and the ultimate appeal court. Since 1972 the House of Lords is bound by some decisions of the Court of Justice of the Europeans Communities. consider themselves bound with some exceptions by their own decisions. This system of means that a judge decision in a particular case constitutes a. This doctrine for its application requires that judges and lawyers be able to consult the relevant previous decisions. From the beginning all these decisions were accurately reported and readily accessible. The Years Books were the first available law reports A distinction must be made between courts records and law reports.

The court records contains the name of the parties, the pleadings, the decision of the court. A law report is a full analysis of a case (relevant facts, legal principle aiming the judges, speech in which he (they) deliver (s) his (their) judgement (s) - explanation of his (their) decision (s) ). It must be certified by a barrister who was present in the court throughout the hearings... They were written in, a language consisting in Norman French, English and Latin. In 1865 law reporting was placed on different basis. The four Inns of Courts created the Council of Law Reporting.

The report of recent cases treated as the official Law Reports are divided into four series: Appeal Cases (A.C. ); Queen's Bench (Q.B. ); Chancery (Ch. ); Family (Fam. ); Since 1953 the Council has also published the Weekly Law Reports (W.L.R. ). There are also private reports published by firm of law publishers, for example All England Law Reports. Some newspapers, The Times, The Independent, publish report of cases of legal and general interest. We may also quote some periodicals such as The New Law Journal, Current Law, The Solicitor's Journal and Data banks (Lexis, Eu rolex).

For students law publishing firms publish on peculiar cases e.g. casebooks on criminal law etc... A distinction must be made between courts records and law reports. Court records contains some basic details whereas a law report is a fuller analysis of a case. The general principles of criminal liability are nearly all to be found in Common Law, not in an Act of Parliament. Now the great majority of crimes are defined by statutes, but some important crimes such as murder or manslaughter are not.

The doctrine of precedent provides a basis on which the law may develop. 5) The concept of natural justice a) the right to be heard by an unbiased tribunal The right of one accused of crime to be tried by a jury is deeply rooted in English Law and practice b) the right to have notice of charges and misconduct c) the right to be heard in answer to those charges. d) Right to counsel: In 1800 men accused had opportunity to defend themselves at their examination and were allowed to engage a lawyer to help them present their case at their trial if they could afford it. The accused always has a right to confer with his lawyer. Legal aid provides free legal representation. (The Poor Prisoner's Defence Act, 1903, 1930) e) Double jeopardy: It forbids the trial or punishment of a person twice for the same offence. Nemo Debt bis vex ari pro una et aedes causa. f) The burden of proof: The burden of proof is on the party making the allegation and not on the party who denied it. incumbit probation qui dic it, non qui neg at. (ancient maxim in the Roman Law). g) The Right of Audience (legal aid in criminal courts) An accused person has complete discretion about whether to conduct his own case or to be represented.

The court may advise but not force representation upon him against his will. There are many offences for which there is no need for legal advice. Only a barrister or a solicitor may represent the accused. The defendant who is able to pay for a solicitor will usually consults with him before the case is heard. Barristers have the right of audience in all criminal courts. Solicitors are limited to appearing before Magistrates " courts.

The Court Act 1971 enables solicitors to appear in the Crown Court on an appeal from a Magistrates' court, provided he or a partner appeared on behalf of the defendant in the Magistrates' cour. Section 2: The Courts Today 1) Functions of courts The main functions of courts are Court of general jurisdiction are vested with both civil and criminal jurisdiction. Courts of limited jurisdiction are specialised tribunal. : . keeping peace (to prevent the law to be taken into private hands)... pleading controversies (to determine guilt; to punish)... judicial law making (development of rules for future cases). Law is not only by legislation but by courts. It is one aspect of the doctrine of the precedent (stare decisis = to stand by decided matters).

2) The different courts The courts were reorganised by the Judicature Acts, 1873-75. It ensued that the rule of common law and the principle of Equity should be administered in the same courts. Now the Supreme court Act, 1981 has replaced earlier legislation. a) the Civil courts: They deal with private controversies. The objective is not punishment but to restore the parties so far as possible to previous positions. b) the Criminal courts: Criminal courts deal with persons accused of crime, decide whether they are guilty and if so determine the consequences they shall suffer.

Prosecution is held on behalf of the public. Criminal law is the representation of underlying principles of political morality in a liberal society. The function of criminal courts is controlling mis behaviours and enforcing ethical conducts. They deal with persons accused of crimes and if the defendant denies committing the acts charged against him, the court must choose between his version of the facts and the prosecution's. But now most person arrested and charged with crime plead guilty. There is no need to determine guilt.

The remaining question is whether the defendant should go to jail, pay a fine or be subjected to other corrective treatments. c) the Appellate courts The Appellate courts review the work and correct the errors of the courts of first instance. Section 3: Civil Courts The civil courts A plaintiff sues a defendant in the civil courts. If the plaintiff wins his action the defendant is said to be liable and the court will order an appropriate remedy (financial compensation) or an injunction (order to do or not to do something). If the plaintiff is not successful, the defendant is found not liable. are: the House of Lords, the judicial committee of the Privy council It hears appeals from those Commonwealth countries which have retained the right of appeal and from colonial territories., the Court of Appeal, the High Court of Justice, the County Courts and the Magistrates' Courts.

1) The House of Lords At the top of the hierarchy of the courts stands the House of Lords. It is the ultimate court of appeal in civil and criminal matters. It is composed of the Lord Chancellor, the Lords of Appeal in Ordinary (or Law Lords) and other Lords who have exercised judicial functions in the past. For the court to sit a quorum of three is necessary.

In civil matters, the House of Lords hears appeal from the Court of Session in Scotland, the Court of Appeal in Northern Ireland, and the Court of Appeal (Civil Division) in England. There is no right of appeal: to appeal to the House of Lards, one must get leave of the Court of Appeal or the House of Lords itself. The Administration of Justice Act 1969 created a new form of appeal in civil actions, direct from the High Court to the House of Lords", leap-frogging" the Court of Appeal. This "Leap-frog" procedure is possible only if: . the trial judge grants a certificate of appeal; . the decision involves a point of taw of general public importance; . this point of law is related to the construction of a statute or statutory instrument or is one for which the judge is bound by a precedent from the Court of Appeal or the House of Lords. 2) The Court of Appeal (Civil Division) It is composed of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division, and of 28 Lords Justices of Appeal. Normally, in civil cases, only the Master of the Rolls (acting as President) and the Lords Justices of Appeal sit.

The quorum is three. The Court of Appeal may, uphold, amend, or reverse any decision of a lower court, or it may order a new trial. It hears civil appeals from the High Court, the County Courts, and various tribunals. 3) The High Court of Justice It consists of three divisions: the Queen's Bench Division, - the Family Division, the Chancery Division. The three divisions can try any civil action; but, for convenience, each division is allocated specific matters: Apart from the presidents of each division, the High Court includes 85 puisne judges, who may sit in any division. The Queen's Bench Division The Queen's Bench Division is composed of the Lord Chief Justice and some 44 puisne judges.

It is primarily an original jurisdiction. The Administration of Justice Act 1970 has added to the traditional jurisdiction of the Queen's Bench Division (mainly concerned with crimes affecting the peace of the kingdom) the jurisdiction of the former Admiralty Court and of the Commercial Court. In practice, the Queen's Bench Division is competent for all cases which are not explicitly allocated to another division of the High Court: these include tort cases, breaches of contracts, and actions for the recovery of land; commercial cases and admiralty cases {collisions of ships, prizes, salvage and towage at sea). There is no limit to the amount of damages which may be claimed in the Queen's Bench Division. The Queen's Bench Division may also sit as an appellate jurisdiction (with two or three judges sitting) to hear appeals from the Solicitors' Disciplinary Tribunal or appeals under the: Rent Acts. The Queen's Bench Division also exercises supervisory jurisdiction over inferior courts, tribunals and administrative authorities having judicial functions.

The Family Division: The Family Division is composed of a President and 16 puisne judges. It deals mainly with divorces, separation maintenance problems, guardianship of minors, adoption problems of legitimacy, and non-contentious probate. It is normally an original jurisdiction and judges usually sit alone. It may sometimes hear appeals on family matters from the magistrates' courts and county courts: in such cases, two more judges sit.

The Chancery Division: The Chancery Division is composed of the Lord Chancellor, who usually delegates his chairmanship to the Vice Chancellor, and at least 4 other puisne judges. It deals mainly with the administration of estates of deceased persons, dissolutions of partnerships, mortgages, trusts, dissolution and winding up of companies, taxation, partition and sale of real estates, rectification and setting aside of contracts by deed specific performance of contracts, bankruptcy matters and contentious probate matters. It is normally an original jurisdiction (with a judge sitting alone), but it may hear appeals from lower courts on problems of trusts or bankruptcy. 4) The County Courts The County Courts were established to relieve the High Court of much of its work and to provide the plaintiffs with cheaper and faster local justice.

The Courts and Legal Services Act 1990 has redistributed the allocation of business between the High Court and the County Courts There are some 337 County Courts in England and Wales, with about 125 circuit judges, who have charge of two or more courts each. Judges sit alone, as the County Courts are original jurisdictions. The jurisdiction of the County Courts includes: actions on contract and tort (except defamation), equity matters (trusts, mortgages, etc. ), actions for the recovery of land, bankruptcy matters, probate matters, and winding up of companies, when the sums of money involved do not exceed a certain amount fixed by statute; as well as supervision of the adoption of infants, and problems of rent-restriction, hire-purchase, landlord and tenant, etc. To relieve the Family Division of the High Court, the Matrimonial Causes Act 1967 has given the County Courts a limited divorce jurisdiction, for instance in undefended matrimonial causes.

Appeals from the County Courts lie to the Court of Appeal. 5) The Magistrates' Courts The Magistrates' Courts have a limited civil jurisdiction for licensing, non-litigious divorces and separations, non-litigious guardianship of minors, orders in regard of children and young persons in need of protection, and orders under the Mental Health Act 1959. Section 4: Criminal Courts 1) Principles of English criminal law In England and Wales the administration of justice is a function of government to be exercised by the state. The English express this in term of the Sovereign and speak of the King's or Queen's judges, courts, and HM Prisons.

Unlike most jurisdictions, England and Wales has no criminal code. From very early times Parliament has created criminal offences but these have always taken effect in the context of the common law of crime, that is, the law made by the judges in decided cases. In civilised law, there are two main system of trial: the accusatorial system: the parties came before the court in equal footing; the inquisitorial system: interrogation of the defendant. In England and Wales the judge is thought of as an umpire who must see fair play between two contesting parties. The present system of courts of law in England and Wales depends almost entirely on legislation passed during the last hundred years: the Judicature Acts, 1873, 75; the Courts Acts, 1971.2) Court structure and organisation The structure of the criminal courts is ascending as follows: . Magistrates' Courts; . the Crown Court; .

Divisional Court of The Queen's Bench Division; . the Court of Appeal: Criminal Division; . the House of Lords. There are two methods of trying persons accused of criminal offences: summary by a magistrates' court without a jury (the formality is reduced) or by judge and jury in the Crown Courts; A great majority of criminal cases are tried before magistrates, and therefore without a jury; The process of sentencing must be distinguished from the process of a trial. The verdict is that of a jury (the burden of proof must be satisfied); the sentence is given by a judge. a) Magistrates' courts: 1) composition: Magistrates " courts consist of a stipendary magistrate or by a Bench comprising between two and seven lay magistrates. Magistrates are appointed by the Lord Chancellor in the name of the Queen (an advisory committee makes recommendation to the Chancellor).

The country justices are public-spirited laymen who are not required to possess any legal qualifications. For legal advice they rely on their clerk who is usually a solicitor or a barrister and is legally qualified. 2) functions: They have three functions: Court of trial As court of trial, the Magistrates " court is a court of summary jurisdiction which hears and determines cases without a jury. They try summary offences which are of minor importance (minor theft, drunkenness, Road Traffic offences). The maximum punishment they may impose for any one offence is six months imprisonment and / or a fine of lb 2,000. They may also hear certain offences which are triable Smith and Wesson are all equally liable to be convicted of murder and liable to the same punishment which for murder must be life imprisonment.

Smith who actually did the deeds is called the principal; the others (Wesson) are described as secondary parties or accessories. e) The burden of proof If the burden of proof is shifted any doubt must be resolved in favour of the prosecution. 3) Classification Offences may be classified according to their source, the harm done, whether their commission makes the offender liable to arrest without warrant, the criminal proceedings and the method of trial employed (summary offences, indictable offences. Criminal Statistics in England and Wales is published six months after the close of the year. It presents a very detailed classification of offences. The English legal system divide criminal offences into different categories (The Criminal Law Act, 1992): 1) indictable offences: more serious offences which will be tried on indictment in the Crown court before a judge and a jury. by a jury.

Police are given a power of arrest. 2) summery offences: minor crimes (minor theft) are tried in Magistrate's Courts by Justices of the peace lay or Stipendary Magistrates sitting without a jury (maximum penalty by offence of six month's imprisonment or a fine of lb 2,000) 3) offences triable either way may be tried with the accused consent, either in the Crown Court or the Magistrates' Courts. (theft etc); 4) treason, arrestable offences, other offences. 4) Homicides The actus reus of murder and manslaughter is generally the same. It is unlawful killing of any person.

The penalty for murder in the old days was a mandatory death sentence. Now it is a mandatory life sentence. Capital punishment was abolished by the Murder Act 1965 (abolition of the death penalty). b) Manslaughter It is killing without premeditation. It is a complex crime. The defendant kills with the fault required for murder but because of the presence of an extenuating circumstance recognised by law the offence is reduced to manslaughter.

According to the Homicide Act (1957) a person is guilty of manslaughter when he acted: -under diminished responsibility; -under provocation; -in pursuance of a suicide pact; -because of voluntary intoxication; by an unlawful and dangerous act. c) Infanticide It is the killing of a baby at or very soon after birth. Between 1660 and 1800 a married woman would be presumed innocent until evidence proved her guilty (had the child born alive? ). A Woman not married would be presumed to have killed her baby unless she could prove by testimony of at least one witness that the child had in fact been born dead. The penalty was death. It sought to discourage fornication by making it more difficult for unmarried women to escape the result of their immorality.

5) Non-fatal offences against the person a) Assault and battery (Criminal Justice Act 1988, S 39) Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale to imprisonment for a term not exceeding six months, or to both. -assaulting a police officer acting in the execution of his duty; -assault occasioning actual bodily arm; -malicious wounding and causing grievous bodily harm (Offences against the Person Act); -administering poison. b) sexual offences (Sexual offence Act 1956) 1) Rape It is an offence for a man to rape a woman or another man. A man has committed a rape if he has sexual intercourse (whether vaginal or anal) with a person who at the time of the intercourse does not consent to it and at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. A man also commits rape if he induces a named woman to have sexual intercourse with him by impersonating her husband. On the trial under this act it is necessary to prove sexual intercourse. It is not necessary to prove the completion of the intercourse by the emission of seed.

The intercourse shall be deemed complete upon proof of penetration only (cross examination of the complainant). 2) Indecent assault and indecency with children -on a woman: Sexual offence Act 1956, S. 14 -on a man: Sexual offence Act 1956, S. 15 -indecency with children: Sexual offence Act 1960, S. 1 c) Theft and Robbery 1) Theft (Theft Acts 1968, 1978) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanent depriving the other of it; and and shall be constituted accordingly. It is un material whether the appropriation is made with a view to gain, or is made for the thief's own benefit. Property may belong to a corporation just as much as an individual and may be stolen from the corporation. 2) Robbery (Theft Act 1968, S. 8) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. A person guilty of robbery, or of an assault with intend to rob, shall on conviction on indictment be liable to imprisonment for life.

3) Deception by words or conducts 4) Making off without payment (Theft Act 1978, S. 3) d) Blackmail A person is guilty of blackmail if with a view to gain for himself or another or with intend to cause loss to another, he makes any unwarranted demand with menaces. A person guilty of blackmail shall on conviction be liable to imprisonment for a term not exceeding 14 years. e) Burglary and related offences (Burglary Theft Act 1968, S. 9) 1) Burglary A person is guilty of burglary if he enters building or part of a building as a tress passer and with intent to commit any such offence as is mentioned in subsection below: -he steals or attempt to steal any thing in the building; -inflicts or attempts to inflict on any person therein any grievous bodily harm (raping, doing an harmful damage to the building). 2) Aggravated burglary (Theft Act 1968, S. 10) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him firearms or imitation of firearms, any weapon of offence, or any explosive. He shall on conviction on indictment be liable to imprisonment for life. 3) Handling stolen goods (Theft Act 1968, S. 22) (rebel) Stolen goods are money and every other description of property except land. A person handles stolen goods if knowing or believing then to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

He shall on conviction on indictment liable to imprisonment up to fourteen years. f) Offences of damage to property (Criminal damage Act 1971, S. 1) A person without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. g) arson It is a damage to property caused by fire. Section 6: Criminal Proceedings The criminal procedure relates the mode of apprehending, charging and trying suspected offenders The duty of the state is detection, prosecution, and punishment of offenders. A prosecutor prosecutes a defendant in the criminal courts... In England and Wales most prosecutions are undertaken by the police which is responsible for the arrest of suspects, the execution of warrants, the questioning of witnesses.

The Director of Public Prosecutions undertakes only the most difficult cases. 1) Investigation by the police The investigating phase in the 19th century: in the past victims could give chase and get others to join them in tracking down a robber or a burglar. In the 17th century in London the shadowy group of men known as were at least in part of the business of detecting and apprehending offenders whose conviction would pay a reward. The material elements of the crime (the corpus delict i) are examined by the police, officers of the court or the prosecuting attorney.

In fact most of the investigation of crime fall to the police which try to obtain all possible information regarding offences which have been committed. Police have not general power to compel a person to answer, but a witness may be compelled to attend court and there give evidence. a) arrest without a warrant Arrest means loss of liberty; being subject to restraint as to one's movements. The Police have powers of arrest without a warrant under the terms of the Police and Criminal Evidence Act (1984) and of the Public Order Act (1986). An arrest by the Police is lawful if the arrested person is informed that he or (she) is under arrest and told the grounds for the arrest under these Acts.

The Police have the power to arrest a person in four different sets of circumstances: . If they suspect that an arrestable offence has been committed, is being committed, or is about to be committed. The police have certain additional powers in the cases of serious arrestable offences; . If they have a statutory power of arrest (most statutory powers of arrest without warrant were repealed by the Act); . If one of the general arrest conditions is satisfied; . If they wish to finger print a convicted person... b) the three stages of police investigation First stage: the police officer has not got evidence that the person interrogated has committed an offence.

Questioning may continue without any caution be administered; Second stage: the police officer has evidence that the person interrogated has committed an offence. The Judge's Rules require a caution worded as follow: You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. Questioning may then continue. Third stage: the person interrogated is formally charged, told that he will be charged or informed that he may be prosecuted.

A further caution must be administered worded as follow: Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say may be taken down in writing and may be given in evidence. Once there is sufficient evidence against a man he must be charged. 2) Warrants and Summons a) warrants A warrant is a document empowering a police officer to search the premises or to arrest a suspected criminal and bring him before a court. It is issued by a magistrate. b) summons A summon is issued and signed by a magistrate and is addressed to the accused. The summon must be served on the accused personally or by leaving for him with some person, by sending it by post in a registered letter.

3) Bail and Plea bargaining a) bail Except in very serious cases a senior police officer may release the person on bail either for him to return to the police station or to attend before the justices. When a justice issues a warrant he may endorse it for bail. The man is arrested then released. The justice may remand a person in custody or give him bail.

If the remand is in custody the accused goes to prison where he can be visited by his lawyer. Under the Bail Act, 1976 there is a presumption that an offender should be bailed unless the police can show he will commit new offences flee from justice or tamper with the case against him. b) plea bargaining A plea bargaining is an informal agreement that the defendant will plead guilty to a particular offence in return for a promise he will not be prosecuted for a more serious offence. But the police are not in a position to make any promises about the conduct of the trial. 4) Prosecutions a) laying the information Criminal proceedings are begun either by an arrest of the person to be charged without a warrant or by laying an information before a magistrate. A magistrate is informed of a suspected offence.

The informant (a police officer or someone else) fills up a form giving a short account of the alleged offence. He may give the account orally (laid within six months from the time when the offence was committed). b) prosecution for an offence In England and Wales there is no national prosecution service. A minority of prosecution are instituted by the Director of Public Prosecutions (D.P.P.) The Crown prosecution service, headed by the Director of Public Prosecution headed by the Director of Public prosecutions was created in 1986 under the Prosecution of Offences Act (1985). 31 chief Crown prosecutors under the superintendence of the Attorney General and assisted by Crown prosecutors deal with the vast majority of cases in consultation with the police... Most prosecutions are undertaken by the police. The English criminal system is offender orientated.

Crimes are regarded as offences against the State rather than individual victims. Therefore all criminal proceedings are in theory instituted on behalf of the Crown, (Prosecution and offences Act 1985) but in general there is nothing to prevent a private citizen from initiating criminal proceedings. The name of the actual prosecutor appears in summary proceeding e.g. : Smith vs. Jones. Smith may be a private individual, a police officer, the representative of a government department or local authority. The interest of the State in the prosecution of crime is reflected in the way in which indictments are headed. For example: The Queen vs. Thomas Brown R. vs. Brown (R. stands for or At common law a prosecution for an offence can be began at any time after its commission (many years ago; c. f. time limits for bringing civil actions).

The prosecution has the burden of proving the actus reus and mens rea beyond reasonable doubt. A cardinal principle of criminal law is embodied in the maxim: An act does not make a person legally guilty unless the mind is legally blameworthy. The Queen and foreign sovereign and Head of State are immune from the criminal as well as the civil jurisdiction of the English courts. Foreign diplomats enjoy a similar privilege (Fugitive Offender Act (1967) -extradition-; State Immunity Act (1978) -Sovereign and Diplomatic Immunity-). 5) Legal aid Legal aid ensures access to justice for those who cannot afford to use the courts. Section 7: Procedure Courts are concerned with conduct which is an offence against English law.

The place of trial may be determined according to where the crime was committed, the defendant's place of residence, the place at which he was apprehended etc... Public trial is recognised as an important human right, and a trail must be in open court (it means that the public is admitted). 1) The trial of summary offences The defendant appears in person or is represented by a solicitor during criminal proceedings (Magistrates " Court Act 1980) if he pleads guilty. Otherwise, if he pleads not guilty he must appear in court.

If there is a possibility of a sentence of imprisonment being passed he must appear in court. When he appears in court for the hearing of the charge the accused will be asked if he pleads guilty or not guilty. If he pleads guilty he may be convicted and sentenced. After the evidence and speeches have been heard the Magistrates retire to decide whether to acquit or convict. The decision is reached by a majority.

If the accused is convicted of two or more offences warranting a sentence which exceed the statutory 12 months maximum sentence which Magistrates " courts are allowed to impose, the accused may be sent to the Crown court for sentencing and be remanded in custody. An appeal in a summary case will take one of two forms: an appeal to the Crown court: there is a complete rehearing of the case; an appeal on a point of law by way of case stated to the Divisional court of the Queen's Bench Division. A further appeal may be made to the House of Lords. 2) Trial on indictment a) preparation of charges The criminal proceedings begin with a formal accusation made to the court. In England and Wales the system provides for pre trial hearings. The pre trial hearing is before a judge in order to show the accused the nature of the charge and to determine whether or not the evidence presented by the prosecutor is sufficient to justify the action.

The defence counsel is of the highest importance during the pre trial proceedings. b) indictment (inculpation) An indictment is a written accusation of crime to be tried by a jury (Indictment Act 1915, Indictment Rules, 1971). c) arraignment (acte d'accusation) After the indictment has been signed and provided there has been no successful motion to quash it the next step of the trial is the Arraignment of the accused which means he is called to the bar (i.e. in front of the dock) by name: . each count of the indictment has been read out; . the accused is asked by the clerk of the court whether he pleads guilty or not guilty. If the defendant admits the truth and pleads guilty and his plea is accepted by the court, no jury verdict is called for. The court hears a statement of the circumstances of the offence and evidence of his character and circumstances (Police officer, governor of the person, medical or psychiatric reports, witnesses). If the accused denies the charges, he pleads not guilty and the case proceeds. d) the jury If the accused pleads not guilty, jurors are called from the panel (name given to the list of persons summoned to serve as jurors).

The jury consists generally of 12 laymen who decide the question of guilt. To be eligible for jury service you should be between 18 and 65 and included on the electoral register. The Lord Chancellor is responsible for summing jurors in the Crown Courts. As the name of each juror is called the prosecution and the defence have the right to challenge a limited number of jurors without giving a reason (peremptory challenge) The prosecution has the right to challenge without a cause to an unlimited extend by saying: ...

They have an unlimited right of challenge for cause (a prospective jurors is biased because of his religion, race, language, etc. ). Then the jury is sworn. The number of the jury must not be reduced below nine.

The presiding judge who controls the admission of evidence instructs the jury as to the applicability of the law. e) the conduct of the case The judge appears in his red robe and wears his wig. It is the personification of impartial justice. The defendant is in the dock facing the court. The jury is called and sworn in. The accused has been given in charge to the jury No jury is called if the defendant enters a plea of guilty... The counsel for the prosecution makes his opening speech.

The presentation of evidence is left to the parties themselves. The witnesses for the prosecution are then each called They are examined in chief, cross-examined and re-examined by counsel, not by the court. It is a tradition to the bar that the counsel for the prosecution should conduct his case moderately. He states the facts as objectively as possible and confines himself to matters which he intends to prove. During the hearing of the case the prosecution is generally not allowed to give evidence of bad character concerning the accused, nor it may refer to any previous conviction. After this opening speech is concluded each witness is called.

The accused is called to give evidence (cross-examined). He may testify as witness if he chooses. When the accused and his witnesses, if any, have given their evidence the closing speeches follow. The defence always has the right to the last word to the jury. f) the summing up After the closing speeches for the prosecution and the defence the judge sums up.

He summarises the evidence which has been given on both sides. Guilt must be established beyond a reasonable doubt; It is the judge duty to direct the jury on the law and its application to each of the charges before the court. g) verdict and sentence After the judge has summed up, the jury retire to consider their verdict. They choose a foreman to speak for them and retire under the supervision of a jury bailiff. The verdict is announced by the foreman in open court.

One of guilty or not guilty on the whole indictment. Where the verdict of a jury is clear and unambiguous the judge ought not to question the foreman of the jury about the grounds upon which it was reached. The verdict of the jury need not be unanimous. A majority verdict may be accepted (11 jurors: 10 of them agree; 10 jurors: 9 of them agree). If the jury is unable to agree they will be discharged and a new jury is called to try the case (new trial etc...

). If the prosecution is successful the defendant is found guilty (convicted) and may be punished by the courts. After it will be inquired into the accused person's record. These elements are only brought to notice of the court as a guide to sentencing once a conviction has been secured.

The punishment available to the court includes imprisonment, fines, probation, or community service. A guilty verdict does not necessary mean that the defendant will be sentenced to prison. His character or background can justify placing him on probation. The sentence of a person on probation is conditionally suspended.

If the prosecution is unsuccessful the defendant is found not guilty (acquitted). 3) Appeals After a verdict of guilty has been given accepted and recorded a plea in mitigation of sentence may be made by the accused or his counsel (mental condition of the time: Mental health Act, 1959). The Criminal Appeal Act, 1907 established an elaborate system of appellate procedure. In England and Wales the legality of the conviction may also be challenged by appeal to higher courts: . from Summary jurisdiction to the Crown Court; . from Magistrates' courts to the Queen's bench division; . from the Crown court to the Queen's bench division; . from the Crown Court from the Court of Appeal, criminal division; . from the Court of appeal or the Divisional court to the House of Lords; . from the House of Lords to the European Court of Justice. The prerogative of Mercy is vested in the Crown.

It takes the form of the grant of a free pardon which permits to suspend, commute or remit any sentence. Section 8: The Judiciary, Law Officers, The Jury A court comprehends many people (parties, lawyers - solicitors, barristers, Queen's Counsel (QC) - witnesses, clerks and jurors), but the judge is the central figure of the court). The legal profession is divided into: Magistrates, judges, members of the government, the law officers of the Crown. 1) The Government a) The Prime Minister The Prime minister is more than. He is a legislator, a judge, and the of the judicial administration. b) The Lord chancellor: He is the supreme judge of England. He is chosen by the Prime Minister and serves at his pleasure.

He appoints most of the judges and assigns Law Lords to sit in case in the House of Lords. The Lord chancellor is a political executive. He is a member of the Cabinet and the Speaker (legislative) of the House of Lords (to take the woolsack). 2) The law officers of the Crown a) the Attorney general He is a member of the House of Commons and represent the Crown in court. b) the Solicitor general He is deputy to the Attorney. c) the Masters They are salaried officials attached to the High Court (Queen's Bench Division, Chancery Division). Masters of the Queen's Bench: they adjudicate on all matters preliminary to a trail.

Chancery Division Masters: they adjudicate on all matters preliminary to a trial. Taxing Masters: checking, determining levying of costs to be paid by parties to the trials. d) Director of Public Prosecutions He is the head of the service and responsible for all criminal proceedings on behalf of the police. e) The clerk to the Justices: Professional qualified lawyers, they advise the Justices on points of law and procedure. they make a record of evidence and prepare depositions. f) Other judicial officials Courts clerks are responsible for case records and documents. Bailiffs are in charge of keeping order. 3) Magistrates There are two types of magistrates in England and Wales. a) the Lay-Magistrates: The lay magistrates (since the 14th century) known as lay justices who have the title of (JP) They have not any real legal training. Justices of the Peace are chosen by the Lord Chancellor on the advice furnished by Advisory Boards. They are assisted by clerks to the justices, solicitors or barristers who advise them on points of law and procedure.

They serve intermittently in panels on a rotary basis for short sessions. They sometimes sit with professional judges. b) the Stipendary Magistrates: The stipendary magistrates (since the 18th century). It is a body of lawyers called on to pass judgements. They.