Criminal Justice System of America and Britain - Research Paper Example

?Criminal Justice System of America and Britain Introduction The topic for discussion of this research paper is rather interesting: to compare and contrast criminal justice system of America and England. The citizens of these countries have many opportunities to follow the judicial processes on TV or read in the magazines about them. Still, there are many differences and similarities between the judicial systems in these countries. The first difference occurs, when American lawyers are defense attorneys, notwithstanding that they prefer to call themselves “trial lawyers”. British lawyers name them “solicitors, representing people’s legal needs and barristers, who take the cases to civil or criminal courts” (Carter, 2001). The differences should be found not at the verbal level, but at much deeper conceptual and historical levels. Similarities and differences between the US and UK legal systems As far as we can see, there can be found a lot of parallels between English Common Law and the American legal system, many differences exist as well. It is relevant to trace the deep historical roots of legal system of these countries, because “the life of the law has not been logic, it has been experience...the law embodies the story of a nation's development through many centuries..." (Carter, 2001). There is no Supreme Court in the Great Britain and a government is positioned as a totally separated unity from the legal process. The House of Lords performs a function of the highest justice and represents the “court of highest appeal”. (Carter, 2001) In America, state courts are separated from federal courts, but in Britain the lowest criminal courts “Magistrate's Courts” exist. These courts deal with the minor offenses. In case a greater offense is appealed from this court, it is heard in the Crown Court (Carter, 2001). The Court of Appeal deals with the cases, when an impugned decision was made in the lower courts. The House of Lords is often compared with The U.S. Supreme Court. Nevertheless, this claim is not totally correct: judicial functions in the House are separated from the legislative work (Friedman, 1973). We can find out even more interesting differences in the courts of England. For example, in the US an Attorney-General is responsible for the Executive branch of the legal system, the Supreme Court and Federal Courts act in compliance with the US Constitution. In England there is Home Secretary, who is responsible for the criminal justice system and Wales and advising the Queen on the royal prerogative of mercy to pardon exercise given to a person who is convicted of a crime. In accordance with the US Constitution, the President has a power of a pardon (of course, this mainly happens on the basis of political considerations about the cases). Therefore, it is evident that legal and judicial systems are more separated from each other in the US. On the basis of the difference of the legal systems in Britain and America, it is clearly seen that the US Constitution is the leading legal document in America. The Judiciary has the control over its own actions and the Executive or Legislative branches can obtrude in this process. Another interesting fact is that the Executive branch is responsible for appointments of federal judges and judges in the Supreme Court. The Congress has a right to either approve or disapprove such kind of appointment. Therefore, on the basis of these facts the independence of the American judiciary can be questioned. The differences between judicial systems between these two countries occurred after the Revolution, when “American law became, in some ways, More than less English....The law later needed was not to be found in the colonial past....Only England had a supply that American lawyers could use without translation or transformation." (Knight, 1996) Still, the majority of lawyers and critics claim that the development of the judicial system should be a more dynamical process. In order to accommodate republican versus monarchial system of Britain, America had to make some changes in the judicial system. Thus, common laws of English legal system required reconsideration. The American legal system started to propagate “a verifiable reason for a search warrant” issuing, in accordance with which the rights of an accused criminal would be preserved. Trial by jury in England differs from American system as well. The jury is selected by the Crown, the Queen’s Counsel in Britain, but this does not happen in US (Fennel et al, 1995). The matter of death penalty is the most controversial matter to be considered in this comparison/contrasting paper. When America carries out death penalty sentences it is strictly criticized in the world. Britain has rejected from the death penalty and carries out death penalty sentences in extreme cases during potential war. Therefore, police in Britain is considered to be more humane than in America. The policemen from the former country do not carry guns. Still, there are many drawbacks of such kind of non-violent practices of UK police: “coalition of immigrants and a growing minority population in Britain has stirred up racial troubles, so one may see some harsher methods of convicting everyone from mere rabble rousers to those who incite riots, and cause damage to persons and property” (The Death Penalty). Of course, this fact does not to describe methods employed by UK police as beneficial for the national’s safety and protection. It should be noted, that both judicial systems of UK and US should be more evolutionary and developing in the course of time. In another case, no essential and efficient changes would occur. It is desirable that judicial systems of these countries would be developed in accordance with the following statement: “The blots we see upon the law are all made by human hands and by those hands they can be taken away.” (Fennel et al, 1995) People have the power in their hands to change legal system if they like. It is not required to introduce strict preventive measures, but it is necessary to develop more flexible principles of the judicial systems in the UK and the US. Comments and reflections In accordance with Rt Hon. t h e Baroness Scotland of Asthal QC: “It is a system [criminal justice system] that has its origins in the middle ages, and it can draw on a long history of legal practice and deeply embedded traditions. The wigs and gowns, the pomp and the ceremony that are so often associated with the British legal system still exist because they reflect the system’s deep and ancient roots. However, for these very reasons, we need to keep asking whether this criminal justice system meets the needs of the modern world” (James, 2004). Moreover, taking into account the fact that US and UK criminal justice systems are adversarial systems, potential changes should be discussed in relation to the inquisitional style. This style is usually supported, because it “supposedly offers less opportunity for the state bias against the defendant” (Fennel et al, 1995). Still, the US and UK criminal justice systems supporters underline the fact that an institutionalized nature of the inquisitorial court systems remotes it from a common citizen. Thus, the common law lawyers can make correct decisions in a forensic atmosphere in the court (O’Reilly, 2001). On the contrary, the supporters of the inquisitional system may claim that their judges have required resources for making correct decisions. Still, a trial by jury can be considered as the most relevant institution, because it is easy to influence on the principles of justice of a state salaried inquisitor and his peers. Therefore, it is possible to suppose that a gradual shift to the inquisitional system of justice would result in challenging chain of changes and events happening in different jurisdictions. Thus, it may be suggested that in accordance with this system, the United States citizens’ rights to be a member of a jury of peers would be discarded. The supporters of the inquisitional system would further claim that in the adversarial system, cases are solved by plea bargaining (Jones and Newburn, 2007). In case when in the adversarial system many cases do not reach courts may mean the fact that the defendant has a poorly qualified advocate or does not have enough money to pay for the better defense. On the one hand, it is clearly seen that idiosyncrasy and perversity is present in the cases of adversarial system. Moreover, the power of the judge in this system is supervised by the employ of lay assessors. Still, it remains unresolved why jury cannot be suspected of bias. The main drawback of the adversarial system can be seen in its inarguable benefits for richer defendants. The poorer the defendant is the less chance to pay for a good defense he has. Nevertheless, solicitors and trial lawyers would oppose to this fact for sure, because no one guarantees that an advocate with perfect skills can influence jury’s decision making process. For example, the well known case of Michael Jackson shows that the best lawyer cannot disturb the integrity of judges and jury in making their right decisions. “In case a defendant confesses to a crime in the adversarial system, the case proceeds to further sentencing. In an inquisitional system, a confession of a defendant is another fact of evidence” (O’Reilly, 1994). Moreover, a commentator may interpret it in such a way that it would lead to a wrong conviction. The rules of evidence are quite different in both systems as well: “important evidence such as persuasive or high quality hearsay, may therefore be excluded in the adversarial system and thus effect the outcome of a trial” (Hoffman and Graham, 2009). Conclusion As far as we can see, criminal justice systems in both UK and US require re-conceptualization and gradual transformation in order to comply with the needs of the modern world. Still, the essence of the adversarial system dominates over the inquisitional system. In these terms the systems of criminal justice in the considered countries are more beneficial than in other European countries (e.g. France, Germany and others). The main emphasis for changes in the US system should be made in the field of real justice of the system. Thus, the abovementioned process of the judges’ selection is not quite independent from the Executive branch of the country. Moreover, the developers of the US criminal justice system should refer closer to the roots of this system and tend to equality and uniformity throughout the States. Basically, the US has the seeds of democracy, justice and integrity, because the system still has death penalty (Van Wormer, 2001). Though inhumane, this highest measure of punishment is a weighty argument in favor of the US criminal justice system. The UK criminal justice system should be made more flexible and realistic. The roots of The Middle Ages should be eradicated from this system and it should turn its face to American justice and integrity in spite of strict and very often blind delegation of the House of Lords. Works cited 1. Carter, Sarah. "A Guide to the UK Legal System". Canterbury UK: University of Kent. (2001). Available from: 2. Fennell, Phil, Christopher Harding, Nico Jorg, and Bert Swart, eds. Criminal Justice in Europe: A Comparative Study. Oxford: Clarendon Press, 1995.  3. Friedman, Lawrence M. History of American Law. New York: Simon & Schuster, 1973. 4. Hoffman, J. and Graham, P. Introduction to Political Theory. Second edition. Pearson Education, 2009. 5. James, E. John. “A Meaningful Criminal Justice System for the Future- An English Perspective”. The Fourth Annual Distinguished Lecture, Walter F. George School of Law, Mercer University, Macon, Georgia, (September 21, 2004). Available from: 6. Jones, Trevor, and Tim Newburn. Policy Transfer and Criminal Justice: Exploring Us Influence over British Crime Control Policy. Maidenhead, England: Open University Press, 2007.  7. Knight, Alfred H. The Life of the Law. New York: Random House, 1996. 8. "The Death Penalty". Available from Amnesty International website:  9. O'Reilly, Gregory W. "England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice." Journal of Criminal Law and Criminology 85.2 (1994): 402-452.  10. Van Wormer, Katherine. "Restoring Justice." USA Today (Society for the Advancement of Education) Nov. 2001: 32+.  Read More