Separation or Division of Powers between Institutions in the Criminal Justice System - Essay Example

Separation or division of powers between s in the criminal justice system is essential to safeguarding the rights of the suspect. Institution: Subject: Date: Introduction Before comparing the criminal Justice of countries like United Kingdom, South Africa, and France, there is need first to understand what criminal justice system entails and some of its components. Criminal justice system1 entails processes put in place by the government of a given country to prevent crime and inflict penalties to those who break the law. How the criminal justice system works in a given region depends on the jurisdiction in charge: county, city, federal, state, or military installation. Different jurisdictions encompass different agencies, laws, and the process of running the criminal justice processes. The composition of the criminal justice system entails five components that includes; Law Enforcement: are mandated with the roll of taking the report for crime that happened in a given area2. Defense attorneys have the mandate to defend the accused in the court of law3. Prosecution: they have the mandate of representing the government at the court of law4. Courts: they are managed by the judges who ensure abiding of the law to the latter and also oversee the court proceedings5. Corrections: they are mainly found in the prisons; they supervise the convicted offenders when they are in prison. Each of the components has a key role in the criminal justice process. And their separation ensures the suspects rights protection by the system. Various factors for comparison of the three countries South Africa, United Kingdom, and France criminal justice system include: the system of law practiced by the country, policing, structure of the court, juvenile justice, and gender equality in the criminal system, arrest of foreigners, prison and the punishment6. Structure of the Court United Kingdom Court Structure: The lowest court in the United Kingdom is the Magistrates’ Court. The magistrate court deals with trials of most criminal offense. The District Judges and the Deputy District Judges heads the magistrate court. The suspect in the Magistrate Court appeals to the Crown Court. The suspect in the Crown Court appeals to the High Court headed by the Circuit judges. The suspects in the County Court appeals to the High Court, and they are headed by the Circuit judge, District Judge, Recorders and Deputy District judges. County Court deals with the trial of most Civil Cases. The High Court is the third powerful court in the country, Queens’s bench, Chancery and Family Division. All the three division appeals to the High Court and it can also hear first cases. The High Court and Deputy High Court judges are the heads of the High Court. Suspects in the High Court appeal to the Court of Appeal. The Court of Appeal is the second powerful court in UK and only takes appeals on issues of law from either the criminal or civil division. The Lord Chief Justice, head of Division and Court of Appeal Judges are the head of the court of Appeal. On the approval of the Appeal by the Court of Appeal, the issue is then presented to the Supreme Court of UK; Supreme Court is the most powerful Court in the UK. The head of a Supreme Court is Justice of the Supreme Court. The Supreme Court deals with issues related to law and only listens the Appeal from the court of appeal7. South Africa Court Structure: The lowest court in South Africa includes Small Claim Court, Chiefs Court, District Magistrate Court and Regional Magistrate Court. The suspect in the chief court appeals to the District Magistrate Court whiles the suspect in the District Magistrate Court appeal to the High Court Division. The High Court decision is binding on the areas Magistrate Courts. The decision by the High court is an important source of law. The decision of the High Court in a division dose not binds another division. Higher Court Division appeals to the Supreme Court of Appeal. South Africa has a total of 10 high courts at the moment. The Supreme Court is also known as the Appellate Division. The court is the highest court in respect of all matters. The Supreme Court of Appeal verdict is binding all the courts below it. The highest court in South Africa is the Constitutional Court. The Constitutional Court majorly deals with the protection, enforcement and interpretation of the Constitution. It deals with the matters concerning the Constitution8. France Court Structure: The lowest court in France is the Lower District Court (Tribunal d’Instance). The Lower District Court is under the Higher District Court (Tribunal de Grande Instance); in this court, an Attorney must represent the accused as required by the law. The Higher District Court follows the Commercial Court (Tribunal de Commerce). Commercial Court only deals with issues relating to comers dispute and trade. The bench of the Commercial Court is elected from the Local business Community. Commercial Court is below the Court of Appeal (Cour d’Appel). In France, there are a total of over thirty Court of Appeal. Each of these courts is found in various major regions of administrative. Court of Appeal falls under Court of Cassation (Cour de Cassation). This court is sometimes referred to as France Supreme Judicial Court and it is the highest court in France. It’s important to understand that the proceeding oral part is less important when compared with the jurisdiction common- law than the written submission essay exchange before the start of a trial9. Comparison of the system of law practices in the three countries. Both United Kingdom and France have different system of law practiced. United Kingdom practices the common law system while France practices the civil law system. However, South Africa mixes both the common and the civil law system. In South Africa, civil law is an academic source for the authority and not forgetting the common law which is also influential10. Common law is mainly Uncondified. This explains that the compilation of the legal status and rule is not comprehensive. Even though common law depends on statutes that are scattered which are mainly legislative decisions, common law is dependant on precedent. Dependant on precedent means the common law depends on the previous judicial decision on the similar cases. The precedents are preserved over time through the court records and at the same time the precedent are historically recorded case laws collections known as reports and yearbooks. The presiding judge is mandated to determine the preceding that is used in the next case. As a result, judges have the responsibility of shaping the British and the American Law. Common law acts as an adversarial system, a competition between two parties that are opposing each other before a judge who acts as a moderator. A panel of adjudicators then decides on the facts of the case. The judge then determines a suitable sentence based on the verdict of the Jury’s. On the other side, civil law is codified11. All the countries with a system of civil law comprehensive, continuous legal codes that are updated and explain all matters that are brought before the court. Included are also the relevant or the appropriate punishment for each offense. The civil law system codes differentiate the different law categories: substantive law determines which acts are determined be civil or criminal prosecution. Procedural law on the other side establishes a means on how to categorize if a given deed constitutes a criminal act, and the appropriate penalty is determined by the established panel law. In the system of a civil law, the judge has the role to determine the truth of the case and to apply the codes provided. Even though the judges always investigates the issue, provide the formal charges, and makes a decision on the case, he or she is has a mandate to use the framework provided by a confined and comprehensive set of law. The decision of the judge is less vital in shaping civil law than the legislator’s and legal scholar’s decisions that plan and interprets the codes12. In France, the prosecutors office includes the chief prosecutor, who is assisted by the deputy prosecutor and the assistant prosecutors. It is the role of the chief prosecutor to initiate the preliminary investigations and necessary ask the examining judge to be assigned to lead a formal judicial investigation. When the judge leads an investigation, the prosecutor plays a supervisory role. Furthermore, the prosecutor defines the scope of crime being investigated by the law enforcement and the judge. Like the defense counsel, the chief prosecutor may motion or petition for a further investigation. During the criminal proceeding, the prosecutors are mandated to presenting the case at the trial to the jury or bench. The prosecutors suggest a guideline for sentencing. Prosecutors are considered as law magistrates by the French. The prosecutor majorly sits on the platform as the court does but does not participate in the deliberation. Judges and prosecutors go for training in the same school and refer to each other as colleagues13. In United Kingdom, the police are responsible for their investigations. Prosecutors have responsibility at all for the neglectful behavior or action for the investigators. It is the senior police officer responsibility to make sure that their junior adheres to the law when doing an investigation. Because the police are responsible for their investigation, they need to consult with the prosecutor on any investigative issues. This also follows that the prosecutors are not entitled to give police instruction on investigative matters. The police are permitted to ask for advice from the prosecutor concerning any aspect relating to any of their work. Although the police seek advice during the investigation and them, seek advice on most cases that are serious. The advice is mainly about the legitimacy of a particular procedure, whether there is sufficient evidence to the prosecutor or if there is a need for further investigation. The police then hand over the case to the CPS. The CPS then discuss with the police the existing different option and deciding on whether the case is to be dropped or need more evidence. The police remain legally they will investigate what they wish and what they dont wish to investigate14. In South Africa, the public prosecutions are conducted by the National Prosecuting Authority (NPA), National Director of Public Prosecutions (NDPP). NDPP is supported by the regional DPPs, deputies, a number of Special Directors. NPA has the power to institute criminal procedure on behalf of the State. The prosecution is mandated to carry out any necessary function incidental to the institution of proceeding of the justice of criminal and to discontinue criminal proceedings15 Policing In the Three Countries In United Kingdom and France, the number of the police recording on criminal issues has been reducing16. However, in South Africa, the rate of crime is in the rise. The three countries have a common sentence range in most of the jurisdiction. The three countries practice conditional and caution discharge, fines, suspended sentence, community sentence, and imprisonment. All the three countries abolished death sentence from the system17. Fine was the most common form or sentence in the three countries. In the year 2011, considering the prison population rate per 100,000 of the population, South Africa recoded the highest number at 316, followed by France at 297 and finally Unite Kingdom that recorded the lowest at 12118. In the same year of 2011, among the three countries, South Africa recorded the highest number of sentencing at about 159,265 total prison populations. The second country was United Kingdom at 94,880 total prison populations and France was at 680 total prison populations19. The three countries also have different procedures when making arrest: In France, the first thing that is done is informing the public prosecutor of the offenses committed by the suspect. The public prosecutor should also be informed if the suspect is being held in custody by the police for investigation purposes. The public prosecutor has the responsibility to ensure that the suspect’s custody is in line with the law. The public prosecutor has the power to extend the suspects custody beyond 24 hours to 48 hour if needed for investigation. The investigation is done by different police department. The prosecutor office will then will then go through the case and decide on the charges and the direction the case will take. However, the prosecutor may decide to prosecute or close the case according to the prosecutorial discretion principles20. However, for South Africa, the suspect has the right to know his or her rights. The suspect has the right to remain silently, right not to give evidence, and the right to go before the court as soon as possible. After arrest the suspect is placed in the police custody until he or she is released on bail or charges are withdrawn. The suspect is taken before the law court within a period of 48 hours21. When making arrest in the United Kingdom, the first thing the police have to do is to identify him or her self. The police have to then to tell the suspect of his or her arrest and the law they think the suspect broken. The arresting officer will proceed to tell the suspect why it is vital to arrest him or her and explain to the suspect why he or she is not free to liver. In the United Kingdom criminal justice system, the arresting officer has the power grant the suspect a bail immediately after the arrest without taking the suspect to the police station. All the arresting officer has to do is to take the details of the suspect and give him or her notice that will require him to visit the station at a later time or date. The senior officer has the mandate to review the case of the suspect within the first six hours from the time the suspect arrived at the police station. The review of the case by the senior officer is to determine if there are grounds for the further detention of the suspect. If there are reasons, the suspect will be held for another nine hours before another review is carried out. Detention of the suspect will continue for a total of 24 hours if the case was miner and could be handled by the Magistrate court. If the offense is a serious one, the suspect can be detained for a maximum of 36 hours. The suspect must be released or charged within 24 or 36 hours. If the police need to detain the suspect further without charges, an application must be made to the magistrate22. Juvenile Justice System of the Three Countries In the three countries, many similarities can be seen in the Juvenile Justice system. In France, for minors to be sentenced, the court has to conform that they are criminally responsible. Their criminal responsibility is defined by their understanding or capability. In France, the age for a Juvenile to be judged is 8 and 10. The age of the offense determines the penalty to be adopted. Basically, the minor before the age of 10 years are reorganized as not responsible at law and are not to be penalized. The available step that should be implemented is assistance, protection, education and supervision of the minor. A minor from the age of 10 years to 13 can undergo educational penalties this may include for instance, seizing of an abject. The minor dose not meet the terms of the penalties, the minor may be taken to a special center made for juvenile offenders or a foster care. The minor at the age of 13 to 16 years are liable top sentencing. However, they are prescribed half the sentence recommended for an adult person with the same offense. Minors falling at the age group of sixteen years to eighteen years can be remanded in custody depending on the type of crime they committed. The judge has the responsibility to provide special provision for handling with the minor23. In South Africa the number of juvenile crime that are un- sentenced of the age of 14 to 18 years is 13641. This number was record in the year 2001. In the same year, 13047 juvenile of between the ages of 16 to 18 were sentenced and the total amount of juveniles who are in conflict with the law totals to 26688. This is an indication of the rise in the juvenile crime in the country. In South Africa, the crime justice system of the country requires the assistance from the probation officer to help on the determination of the correct option of sentencing. However, the court is not bound to work or accept the recommendation by the probation officer. The key duty of the probation officer is to recommend or guide the court in making the correct decision of issues falling within the probation officer field of specialization. The average time taken by the juvenile as he or she waits for trial is 48 days. However, there are many children in South Africa who spend a year or longer in jail before their cases are decided by the judge. Juveniles found with crimes that are aggressive spend a longer period in detention with juveniles charged with other crimes. The criminal justice system is determined to change the minimum age to be from seven to ten years. However, the countries act retains the presumption that children between ten to fourteen years lack responsibility in criminal. This means that at the age of 10 years and below, children are alleged to have no ability to commit an offense. The state also presumes that a child lacks criminal capacity mat the age between 10 and 14 years. The presumption made by the criminal capacity of the children of under10 years and those between ten to fourteen years is rebuttable if the state can provide evidence beyond reasonable doubt that the child has criminal capacity24. In The United Kingdom, the umbrella established for holding young people and children in custody is known as the secure estate for young people and children. These estates include secure training center (STCs), young offender institution (YOIs), and secure children’s home (SCHs). Most of the young people and children in custody are detained in young offender institution. In secure training center and secure children home are used for more vulnerable and younger children. The secure estate for young people and children detains from the age of 10 to 17 years old. 18 years old are also found in the estate. This is only possible if the young person is near the end of their sentence25. Prison and the Punishment In both the three countries, South Africa, United Kingdom and France, there is similarity in the punishment provided to the persons found guilty. Some difference are also identified which are mainly on the structures of the prisons and the prisons population (already covered in the subtopic of “policing in the three countries”) and the population of the wardens in these three countries prison. In the three countries, wardens form the highest number of the total staffs in the prisons with France with relatively the highest number of prison wardens compared with the two countries26. The ratio of the wardens per detainee is law in all the three countries with South Africa recording the lowest because of the highest number of prisoners as compared to France and United Kingdom. The main aim for all the three countries is to return the criminals back into the society in a better condition will biding by the human right rules in the society and in the prisons27. Serving of the sentence outside the prison can only be applied to those who are put on probation. People who can also be put outside prison are those with sentence of public service or those released on parole. In all the three countries, there is use electronic tagging. Electronic tagging is the attachment of an electronic device to a person and allows his monitoring. If the electronic device is out of range or disconnected, the authorities are immediately alerted automatically. Arrest of Foreigners In all the three countries, foreigners face a lot of difficulties when they are arrested. These difficulties are majorly brought by the language barrier. This is to mean they find it hard to communicate with their fellow mates as they do not understand the language the mates are speaking28. Conclusion Comparison of the three countries is very important. This information is used by various people in different field. The government in a given country can use the information to understand how its criminal judicial system of its country is working. This information will enable the country to know why the criminal rate is high in its country and various methods or ideas that it can apply to combat the high rate. The government will have to inquire from the other countries on how they have managed to reduce the number of criminal cases in there system. Through this, the country can decide either to change its civil system to enjoy the changes the other country is enjoying. The information on the comparison of the different criminal justice system of various countries is used by various investments organization. This is to mean the economist can determine the perfect place for business establishment by using the police criminal recording of various regions to understand the criminal rate. The expert will try to avoid places with high recordings of criminal. 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