The English Legal Process - Coursework Example

?The English Legal Process By Part A In assessing whether or not the police acted lawfully in their treatment ofRay it is necessary to examine the interaction between Ray and the police from the moment of his arrest until the time he was charged. The powers of arrest are contained in Section 24 of the Police and Criminal Evidence Act 1984 (PACE) (as amended by Section 110 of the Serious Organized Crime and Police Act 2005).1 In exercising the statutory powers of arrest, arresting officers are also required to comply with the Code of Practice. Failure to comply with Section 24 of PACE and the Code of Practice will render an arrest unlawful.2 Together the Code of Practice and Section 24 of PACE inform that two elements must be present otherwise an arrest is unlawful. First the person arrested must be involved or suspected to have been involved in or attempted to be involved in committing a criminal offence. Secondly, there must be reasonable grounds that arrest is necessary. Section 24(5) of PACE sets forth a number of grounds upon which an arrest is necessary to prevent the person under arrest absconding.3 As soon as Ray was approached by the officers and informed that he was under arrest he attempted to escape and therefore whether or not the police had reasonable grounds to believe that Ray’s arrest was necessary when they initially attempted to arrest him, they had reasonable grounds to believe that his arrest was necessary the moment he attempted to escape. Moreover police can make an arrest if they have reasonable grounds to suspect that the individual arrested has committed an indictable offence.4 An offence is indictable if it is a common law offence or a statutory offence for which the penalty is provided for under the statute.5 Section 8(2) of the Theft Act 1968 fixes the penalty for robbery as a potential life sentence.6 In addition there were reasonable grounds to suspect that Ray committed the robbery based on the evidence collected from Simon, who hailed down what he assumed was a cab and was able to describe the driver. David was subsequently pulled from the car and robbed. The police use of force to affect the arrest was not unreasonable. Police may use such force as is reasonable to affect a lawful arrest.7 Ray attempted to escape the police upon learning that he was under arrest and the police merely wrestled him to the ground and in doing so used only the force that was necessary to carry out the arrest. The only questionable act on the part of the police is whether or not the police properly informed Ray of the reasons for his arrest. Section 28 (3) of PACE instructs that an arrest is unlawful “unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.8 Obviously, it was impractical to inform Ray of the reasons for his arrest when he attempted to escape, but he could have been informed at any time after he was placed in handcuffs. However, the police did not inform Ray of the reasons for his arrest despite several opportunities to do so. He was in the police car win an officer while the police stopped at an unrelated crime scene. This raises the question of whether or not the police complied with their duty to take the detainee to the police station as soon as practical after the arrest.9 The stop was brief however, and given police duties to protect the public, it may be concluded that the stop was not an unnecessary intrusion and thus may not compromise Section 30 which requires the detainee be taken to the police station as soon as practical after the arrest. Although the detainee may not be questioned until after he has been cautioned, and after he is at the police station, Ray offered information while waiting in the car at the police stop. He had been cautioned and had volunteered the information and the police officer receiving the information did not encourage Ray and did not engage in discussions about it. Thus the police did not act improperly. Police are required to record all information obtained during an interview and where information is obtained properly from the detainee away from the police station, the police may record that information in their note books if tape recording is impractical.10 Thus, the recording of the information voluntarily given by Ray was proper and therefore lawful. Ray’s treatment at the police station appears to be lawful as he was turned over to a custody officer who read him his rights. These rights include the right to legal advice and the right to inform someone of his arrest.11 Although Ray was granted the right to consult an attorney he was denied the right to inform his neighbour who was looking after his children. This right may only be denied if he detainee is held on an indictable offence and an officer who is at least an inspector authorizes the denial on the grounds that the call may compromise the collection of evidence.12 It is not known what the rank of the custody officer is, but if he is an inspector or was authorized by an inspector, then delaying Ray’s call to the neighbour is proper since Ray is charged with an indictable offence and the police are in the process of executing a search warrant. As for Ray’s treatment at the police station, he is entitled to be treated humanely, has access to at least two meals within 24 hours, basic amenities, at least 8 hours of rest and breaks during interviews.13 Based on the facts of the case for discussion, Ray was treated humanely and was only in custody for just over 8 hours before an interview took place. The custody office checked on him twice which is not unreasonable as he has a duty to ensure that the detainee’s needs are being met.14 It would therefore appear that unless the officers at some stage after getting Ray in the car and soon thereafter informed him of the reasons for his arrest, Ray’s treatment by the police was lawful. In deciding whether or not to charge Ray, the CPS has a duty to simply look at the evidence gathered by the police and make a determination as to whether or not there is sufficient evidence to obtain a conviction. In the event, the CPS feels there is insufficient evidence to obtain a conviction they can request further investigations by the police.15 The evidence against Ray is purely circumstantial since David cannot identify his assailant and Simon’s evidence is not direct evidence against Ray. Although the circumstantial evidence is strong, it could be buttressed by having Ray participate in a line-up and at the very least, the CPS should have waited for the results of the police search of Ray’s residence. Thus, the CPS should have delayed the decision to charge Ray at this point and should have requested further investigations. The presumption of innocence suggest that persons accused of a criminal offence are innocent until such time as they are proven guilty. In this regard, innocent persons are entitled to their liberty.16 The Bail Act 1976 reflects the presumption of innocence concept and provides that persons charged with criminal offences are entitled to bail unless their continued detention is justified.17 In determining whether or not a defendant’s continued detention is justified, the court will take account of both vitiating and mitigating circumstances. One of the vitiating factors the court is entitled to take into account whether or not there are reasons for believing that the defendant may not “surrender to custody”.18Ray attempted to evade police arrest and the court may very well come to the conclusion that Ray is a flight risk. The fact that Ray has a sister in Budapest with whom he is close, may only heighten the court’s perception that he is a flight risk. The court may also consider antecedents, particularly those of a similar nature since it helps the court determine whether or not the applicant is at risk of committing an offence while on bail.19 However, Ray’s pervious offence, although similar in nature, was committed in 1999 and is therefore a spent conviction.20 Thus the commission of a similar offence more than 13 years ago will not assist the court in determining whether or not Ray is likely to commit an offence on bail. The court will also take account of the seriousness of the offence.21 Robbery is a serious crime punishable by life imprisonment. As for mitigating circumstances, the court will take account of the character of the applicant, community ties, and any such factors that the court deems “relevant.”22 The judge has a wide discretion and can take each case subjectively.23The court may very well decide that the fact that Ray has two young children that in his care who have recently lost their mother to cancer are mitigating factors in favour of bail. The court may also take account of the fact that Ray is employed. The court may also look at the evidence and may decide that the likelihood of a conviction is not likely since the evidenced is purely circumstantial and Ray denies committing the offence.24 However, the fact that Ray attempted to escape when approached by police may outweigh all of the mitigating factors. Thus there is no way of knowing in advance whether or not Ray will be admitted to bail. Since there are strong mitigating factors, it is worth a try. Part B The concept of a fair and public trial includes transparency and impartiality on the part of the participants in the process.25 Impartiality with regards to jurors is only obtained by virtue of the jury selection and empaneling processes in which jurors are required to meet certain requirements that are intended to ensure that they are impartial.26 Transparency however is another matter altogether and opens up the risk of jurors being partial. Although the selection process can establish that the jurors are not partial to either side in terms of having no connections to the main participants, the selection process does not reveal whether or not there are other factors that may make jurors partial to one side or the other. Therefore, I do not agree with Lord Hope’s contention that the jury secrecy rule is necessary in the public interest.27 The jury secrecy rule maintains that unlike judges, jurors are not required to and may not give reasons for their verdicts/decisions.28 Moreover, jurors deliberate behind closed doors.29 The secret deliberations could overcome the deficit in open and transparent trials if the jurors were required to disclose the reasons for their verdicts. After all, judges also deliberate in secret, but that secrecy is overcome by subsequently publishing reasons for their decisions. If jurors were required to provide the reasons for their decisions, the risk of erroneous convictions would be minimized. Juror misconduct can occur without recourse and this cannot be in the public interest to permit juror misconduct to pervert the course of justice. The case of Gregory v UK demonstrates the extent to which the jury secrecy rule can compromise the ends of justice and is therefore not in the public interest. Although the ECHR ruled that jury deliberations must be conducted in secret, those deliberations did not contravene Article 6 of the European Convention on Human Rights, 1950.30 Article 6 of the Convention guarantees that all persons charged with a criminal offence are entitled to a fair and public trial.31 In Gregory, the during jury deliberations, the judge received a note from the jury which read: I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants no on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what to do in this situation.32 The judge shared the notes with the defence and prosecuting attorneys and called the jury in. Once the jury were assembled before the court, the judge directed the panel to put aside any personal prejudices and determine the case based purely on the evidence pursuant to the oath that they had taken. Although the conviction was quashed, the court acknowledged that: It was accepted by both the applicant and the Government that it was not possible under English law for the trial judge to question the jurors about the circumstances which gave rise to the note.33 It therefore follows that the note itself may have been a fabrication or it may have been a genuine observation. Either way, there should have been some authority to pierce the secrecy of deliberations to determine whether or not the note was genuine or not. The result was that a conviction was overturned in circumstances where it may have been based on the evidence or a defendant was innocent and convicted on the basis of prejudice which could have been investigated and circumvented the appeals process. Nevertheless, the European Court of Human Rights noted that: The court acknowledges that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard.34 However, if jury deliberations are secret there are no guarantees that they are having open and frank discussions about the evidence. Moreover, the jurors can have secret deliberations, and still be permitted to disclose specific facts in certain circumstances. The case of Gregory demonstrates that there may be circumstances in which it is necessary to question jurors about potential incidents of jury misconduct and jury prejudices. In other words, the jury secrecy rule is far too absolute and as such heightens the possibility of jury misconduct. This cannot be in the public’s interest. The secrecy of jury deliberations is reinforced by Section 8 of the Contempt of Court Act 1981. Section 8 provides that: ...it is a contempt of court to obtain, disclose, disclose or solicit any particulars of statements made, opinions expressed, arguments advances or votes cast by members of a jury in the course of their deliberations in any legal proceedings.35 Therefore any misconduct occurring during deliberations cannot be investigated. Only if misconduct happens to come to the court’s intention can the court take action to remedy it and to ensure that the defendant receives a fair trial. The potential for injustice by virtue of the operation of Section 8 of the Contempt of Court Act 1981 is demonstrated by the case of Qureshi. In this case, three days after a guilty verdict a juror contacted the defendant’s lawyer claiming that members of the panel were racist and had determined the defendant’s guilt based on those racist prejudices from the very beginning of the trial. The juror subsequently wrote a letter to the Crown Court reiterating the complaint. A police officer took a statement but avoided questioning the juror about the deliberation.36 The defendant in Qureshi, applied for leave to appeal the conviction but his application was denied. The Court of Appeal, in denying leave to appeal held that the complaint only came to light after a seemingly ordinary verdict was rendered and not during the course of the trial. For the court to investigate the complaint, the court would have had to investigate the events that took place during deliberations and in the jury room and that would contravene Section 8 of the Contempt of Court Act 1981. The court followed the decision in Miah and Akhbar holding that what takes place in a jury room is secret and not open to public scrutiny.37 In Miah and Akhbar the court ruled that jury secrecy meant: Anything said by one juror to another about the case from the moment the jury is empanelled, at least provided what is said is not overheard by anyone is who is not a juror.38 It therefore follows that regardless of what jurors say to each other, unless that communication is overheard, it is not a matter for the public. Thus jurors are free to pervert the course of justice and even where there are grounds to suspect that jurors are not being true to their oaths, no inquiries may be conducted that require jurors to disclose the contents of communications between jurors in the jury room. The utility of jury secrecy must therefore be questioned. It facilitates jurors who may be biased or otherwise poised to pervert the course of justice. According to Daly and Pattenden, the census of 2001 revealed that 9 per cent of England and Wales’ population were “not white”.39 There is no doubt that there are “racial tensions” in England and Wales and it is also entirely likely that persons who are selected for jury duty will include persons with racial bias. As a result, there will inevitably be cases in which jurors are inclined to use “pejorative stereotypes based on perceptions of race, colour, descent or national or ethnic origin”.40 The jury secrecy rule assumes that jurors automatically take their oaths seriously and that jurors are all capable of putting aside their prejudices and focusing entirely on the evidence. This is an erroneous assumption particularly when jurors are selected in a random nature from the electoral poll. The jury vetting process is entirely limited in that jurors are only asked as a group to admit whether or not they are prejudiced against the defendant or the prosecutor.41 In a typical case, jurors are only asked if to identify themselves if they are unable to serve because of a connection to either the defendant or the prosecutor. Therefore, unless a juror steps forward and owns up to a connection or admits a prejudice, the jurors are empanelled, after which, they cannot be questioned about any communications that take place between them that might reveal prejudices. In all the circumstances, the jury secrecy rule does not serve the public interest. Rather it is in the public interest for the jury secrecy rule to be modified so that investigations of suspected juror misconduct can be investigated. Bibliography Textbooks Cownie, F.; Bradney, A.; and Burton, M. English Legal System in Context. (Oxford, UK: Oxford University Press, 2007). Jehle, J.; Wade, M. and de Cavarlay, B. Coping with Overload Criminal Justice Systems: The Rise of Prosecutorial Power Across Europe. (Berlin: Springer, 2006). Kapardis, A. Psychology and Law: A Critical Introduction. (Cambridge, UK: Cambridge University Press, 2010). McGourlay, C. Evidence 2012-2013. (Oxon, UK: Routledge, 2012). Partington, M. Introduction to the English Legal System 2012-2013. (Oxford, UK: Oxford University Press, 2012). Wilson, S.; Mitchell, R.; Storey, T. and Wortley, N. English Legal System Directions. (Oxford, UK: Oxford University Press, 2011). Journal Articles Brooks, T. ‘The Right to Trial by Jury.’ (August 2004) 21(2) Journal of Applied Philosophy, 197-212. Daly, G. and Pattenden, R. ‘Racial Bias and the English Criminal Trial Jury,’ (November 2005) 64(3) The Cambridge Law Journal, 678-710. Metzmeier, K. X. ‘Preventative Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada and Other Common Law Nations’. (1996) 18(2/4) Pace International Law Review, 399-438. Cases Gregory v UK [1997] No. 31 22299/93 ECHR. Miah and Akhbar (1997) 2 Cr. App. R12. http://www.bailii.org/ew/cases/EWCA/Crim/1996/1653.html (Retrieved 12 January, 2013). R v Mirza [2004] UKHL 2. R v Slough JJ ex p. Duncan [1982] 75 Crim. App. 384. Qureshi [2002] Crim LR 62. Statutes Bail Act 1976. Contempt of Court Act 1981. European Convention on Human Rights 1950. Police and Criminal Evidence Act 1984. Police and Criminal Evidence Act 1984, Code C (Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers). Serious Organized Crime and Police Act 2005. Read More