The Criminal Process in the UK - Essay Example

The Criminal Process in the UK In Britain, virtually all cases start in the magistrate courts. Most of the less serious offences are entirely given to magistrates and nearly 95% of the cases are solved in this way. So the procedure of justice begins with the magistrate courts that form the smallest unit of criminal justice system. Only the more serious offences are sent to the Crown Court to be dealt by a judge and jury. Rights of the defendants are kept in mind at every step of the criminal procedure and the defendant is given various rights and opportunities to prove his innocence. The first right of the defendant starts when the court says that defendant’s presence in the court for any indictable offence is necessary. There are cases where the defendants are intimidated, threatened, kidnapped or sometimes even eliminated so that they cannot attend the court. Under such circumstances, these courts order a decree of Habeus Corpus. Unless there are extraordinary circumstances, a defendant cannot be tried without being present. “No matter how serious the charge, the defendant has to appear first before the Magistrates, where he confirms his name and address and the legal adviser reads out the charge,” Smartt (2006, p. 78). Magistrate courts deal with summary offences, which are less serious cases like minor assaults or driving offences and these offences are not eligible to be tried by the jury being rather legally insignificant. They also deal with Either-way offences and they are called so, because they could either be dealt by judge and jury or by a magistrate, which is usually the case. Offences here include theft, handling of stolen goods, etc. Here the right of the defendant is upheld by making the defendant to ask for either a Crown trial or a Magistrate trial and the choice belongs not to the court, but to the defendant. In case if the offence is of a more serious kind, magistrate himself might commit the defendant to a trial by the jury and under those circumstances, defendant’s rights are not considered. Magistrate courts cannot try Indictable-only offences, and these are of a more serious kind like murder, manslaughter, rape and robbery. Even though magistrate courts do not have the right to hold the entire trial, they have a brief commitment in these cases too. There is a distinction between summary and indictable offences. Jurisdiction and procedure usually are affected by this distinction because the distinction is fundamental. “Summary offences can be tried only in magistrate’s courts, while indictable offences are triable on indictment before a jury. Summary offences are all creatures of statute, and the particular statute lays down the mode of trial and the appropriate penalty,” Arguile (1969, p.41). The decision on bail and other connected legal issues like reporting restrictions are usually conducted by magistrate courts before the case goes to the Crown court. Again there is an option for the defendant. He could opt for a trial at the magistrate court and such a plea could be considered. If the defendant is found guilty, at that stage, or at any other stage, magistrates can impose a sentence up to six months imprisonment along with a fine up to £5000 and if the defendant is acquitted, and if there are no other connected or unconnected cases pending against him the magistrates can set him free as a legally innocent person. There are diverse kinds of legal presence in magistrate courts. There could be three lay magistrates or one District Judge and both the situations are perfectly acceptable to law. The lay magistrates are called Justices of the Peace and are usually the local people who volunteer their services. Despite not having any formal legal qualifications, the legal history says that these magistrates have functioned very well over the years. They are given legal and procedural training and advice by the qualified clerks though. This prompts a question: Do such magistrates command the same respect from clerks, defendants and other legal fraternity? Well, this is a different legal matter, though a worth-pondering question. As opposed to this, District Judges are formally qualified and are full-time legal professionals. But the drawback here is that they are based only in larger cities and not in rural areas or small towns, which creates a drawback in the legal system. Crown courts deal with the trials according to its seriousness. All the more serious trials get passed on to the crown court by the magistrate court and Crown courts have trial judge with the jury. They deal with Indictable-only offences such as murder, manslaughter, rape and robbery. They also deal with Either-way offences that are transferred from the magistrate courts on magistrate’s discretion of finding the case more suitable and serious enough to be dealt by the Crown court. There are also sentencing decisions that could be passed on to Crown court by magistrate’s court. Sometimes, the lay magistrates might disagree on a particular judgement. Or after hearing the case, magistrates might change their minds about the seriousness of the offence and send it to Crown court so that the defendant could get the opportunity of being tried by a judge and jury. They can also do so if they think that the case is complicated enough to attract a judge and jury trial. They also might decide so because according to them, the case might need trained legal brains to arrive at a judgement. If the defendants in Crown Courts are acquitted, they go free as legally found innocent. Both courts are part of the Criminal Justice System, which has the responsibility to deliver justice to all. It is the system’s duty to punish the guilty and protect the innocent. Legal system is part of any civilised society as societies do not want to live in anarchy, but in a well-managed, well-governed legal atmosphere. Criminal Justice System has a responsibility in bringing more and more guilty under legal jurisdiction, while improving the timeliness of both Crown and Magistrate courts. It also tries the control the amount of ineffective trials in both the courts, so that justice could be quicker, more effective and that keeps these courts monitored. It also reduces the possibility of a person languishing in prison, or being out on bail, but on tenterhooks not knowing the outcome of the trial resulting in deep mental breakdown combined with financial, employmental and familial problems. While sentencing magistrates and judges take into consideration the evidences, facts, half truths, circumstantial evidences and sometimes even hearsays into account. Most of them would be eliminated and only the absolutely connected facts mostly based on pure evidences are taken into consideration. This does not mean that circumstantial evidences do not have influence at all. They do, but as secondary evidences. Primary evidences are always supported by facts, figures, documents, and firm witnesses. No defendant is punished on the basis of pure hearsay circumstantial evidences without any proper proof, however enchanting the evidence could be. Here defendant is fighting against definite evidence and not hazy assumptions and this makes his task easier. Courts have the responsibility of protecting the public from the wrong doers, punishing the offenders, but appropriately, fairly and in a balanced way where crime and judgement are compatible with one another. Courts also have to encourage the offender to make amends and try to improve in future. Courts are not simply judgemental and corporeal; but they try to be carers of the society and defendant is part of the society. These courts are aware that an unrepentant offender will be a permanent thorn on the side of the society and will offend again and again. Instead, they balance the judgement so that, the offender will get a chance to reflect on the crime, its repercussions, its effect on the victim, his family and friends, and make amends in his life by reforming himself. In the welfare state, even this responsibility is given to these courts and defendant will be helped in many ways even though he could not get an acquittal. Courts try to impress upon the defendant that mending his ways is absolutely necessary so that he would not re-offend and become a responsible citizen. While this part of judgement is considered to be the caring duty of the courts, it helps the defendant enormously. He is being punished for his crime fairly, but he is not discriminated or persecuted, but is given a suitable opportunity to start life all over again. These two courts can impose four levels of sentencing that includes discharges, fines, community sentences and imprisonment and all the judgements are based on the crime in question. Fines are the most usual decisions, especially of magistrate courts and this allows the defendant to get off lightly. It would warn the person enough to stay away from crime due to humiliation and money loss. Community sentences are considered to be restorative justice, because they usually are directly connected with the victims of the crime thus giving an opportunity for the defendant to make amends and atone the offence. Imprisonment in today’s Britain remains the most severe of all the punishments after the capital punishment is removed from legal judgements. Only the most serious of offences warrant imprisonment and even here, defendant is given a fair trial and fair life in the prison, which is much more than the unfortunate victim who might have lost his life or limb, would get. With the evidence based judgements of modern society, there are very few wrongful convictions, though they cannot be ruled out. When it happens it is not only a blot on legal history, but an inhuman crime against the defendant due to either wrong system or misrepresentation or sometimes even due to the misunderstanding by the judges due to some undisclosed facts. The old dictum of ‘hundred criminals could go unpunished instead of punishing a wrong man’ still prevails in the conscience of judges and public and nothing is more shameful for the entire society and legal system when such a wrongful conviction is discovered. A wrongful execution could be of an everlasting shame to the entire country. Hence, every safeguarding is considered against such an unfortunate possibility. Some of them are compensations, appeals, reopening of cases, pardons, parliament decisions and ultimately a review of the case by House of Lords. Usually wrong judgements depend on the flaws in the system or sometimes on the over-exuberance of the policemen, not to mention the wily prosecution suppressing the available facts. “The simplified sketch of several complex cases suffices to expose some recurrent problems. The most common pre-trial faults lay in the construction or falsification of evidence by the police officers, in non-disclosure of forensic scientists, and more generally in non-disclosure by the prosecution to the defence, Ashworth (1995, p.13). – Some of the famous cases we could remind ourselves are: Tottenham three, M62 bombing, Birmingham six, Maguire Seven, Guildford four etc. Magistrate courts even though are the smallest link of the chain, still remain the most important courts where majority offences are decided. The main reason here is that these courts could deal with not only criminal offences, but also with family matters, liquor licensing, betting, lotteries, gaming, punishing law breakers of any kind, resolving local disputes and there is no doubt that in the last 600 years since their inception into the British legal system, they have maintained law and order in the society and are still doing commendable work. Defendants of all hues and shapes find their true reward here. They can plead their own cases or hire lawyers to do so. It is necessary for the defendants to know their legal rights. They are only accused of a certain crime and have a right to defend themselves legally because they are yet to be convicted for the said crime. They are innocent till proven guilty. Their work is only defending themselves and it is the job of the prosecution ot prove them guilty beyond doubt. According to European Human rights convention, they have the right to hear the case in their own language, right to have an interpreter free of charge depending on the circumstances, right to have facilities and time to prepare their defence, right to defence themselves at all costs, right for free legal representative if it is in the interests of justice and the right to ensure that prosecution witnesses attend the proceedings, cross-examined by the court and also the right to call defence witnesses under similar terms. Both Crown and magistrate courts ensure these proceedings to the hilt. If the defendant has opted for silence either in the police station or at the trial, judges do not have the right to be biased against the defendant under most of the circumstances. In fraud cases, defendants can opt for jury or no-jury and courts will consider the plea. At all times, defendants’ constitutional rights are upheld by these courts. The strict rules of generations govern the courts and it is very unlikely that the defendant’s rights are encroached in any way due to any kind of discrimination. Magistrate’s courts have their own advantages as far as the defendant is concerned. If he hopes to plead guilty, it is necessary to remain in magistrate courts because of the possibility of getting lower penalty. Case will be heard sooner in these courts and procedures are simple. If convicted, sentence could not be beyond six months, and not beyond 12 months in constructive cases. It is homely atmosphere for defendant as it is usually in the same city and he could defend himself without being intimidated. Defendant has certain advantages in Crown courts too because of higher acquittal rate, learned judge, jury that could accept a political defence and might not believe the police beyond a certain point and furthermore, acquittal cannot be overturned by CPS appeals. Defendant need not make a decision in tearing hurry, because he is entitled to get a summary of the prosecution case against him which is called advance disclosure and this will benefit the defendant enormously and helps him to plan his own defence against the charges of prosecution. Accordingly defendant might fight back without pleading guilty or might plead guilty looking at the hopelessness of the case. Either way, he gets helped by advance disclosures. Defendant can get an adjournment with suitable and acceptable reasons especially if there is insufficient time to prepare the case. If pleading not guilty, defendant will be entitled for a pre-trial. While doing so, defendant should be careful and it is better if he is legally advised. “An adjournment for a long period can constitute a declining of jurisdiction so as to permit judicial review1. So too a refusal to issue a distress warrant because the magistrate considers excessive is susceptible to challenge under Order 532” Gordon (1996, p.172). Defendant can also plead guilty and get sentenced on the spot. It is left to the legal advice and defendant’s own decision to do so. He cannot be coerced or pressurised either by police, or any other outside party. If he wants to do so and decides that he stands a better chance of getting a lesser conviction, court allows him to plead guilty. Defendant can opt for it to save time from attending courts again and again, but this is not without legal implications, though he has the provision against all odds. “That the overwhelming mass of defendants plead guilty at trial has far-reaching legal and sociological implications in making the sense of the criminal system,” says McConville (1981, p.7). This enables the defendant to a certain ‘plea before venue’ where he could request the court to give him an indication of the sentence if he pleads guilty. This right is given to the defendant, so that a legally untrained defendant who cannot see the implications, could hear the judgement and then make up his mind on the tricky question of whether to plead guilty or not. This is highly advantageous for a defendant who is unsure of the outcome. If it is an Either way offence, defendant is entitled for ‘plea before venue’ when court hears all pleas, submissions and decides if a decision should be taken at magistrates or Crowns. Defendant has the right to ask for either of them. If the current bill becomes a law, defendants also get the right to ask for an indication as to sentence in the event of pleading guilty. Magistrate might indicate a non-custodial sentence and that guarantee will help defendant to make up his mind. Defendants, under certain circumstances can ask for a pre-trial review. They can ask for copies of papers produced by prosecution, and can ask for special facilities. Like a video recorder or a slide projector. He can also ask for adjournments, fresh dates, express problems because of date’s close proximity, explain personal circumstances that makes it absolutely inconvenient etc. he can ask for a convenient date for himself and for his witnesses. During trial, if defendant is defending himself, he can protest against leading questions from prosecution to witnesses. He or his legal representative can cross examine the prosecution witnesses. Unlike the prosecution, defendant is allowed to ask leading questions. After re-examination of witnesses, defendants have the right to submit that there is no case to answer. If magistrate accepts the submission, there is a chance that the case could be dismissed and the defendant is entitled to ask for the costs. Usually this dismissal is very unlikely, unless the case is crystal clear about the defendant’s innocence. Still defendant should be prepared to ask for a chance of submission, which, naturally, the prosecution will resist. “The Defendant’s advocate is entitled when all the evidence has been called for the prosecution, to submit to the court that there is no case to answer. If such a submission is upheld, that is the end of the matter; but if the magistrates consider there is a case to answer, the hearing will proceed as indicated above,” Shoolbred (1966, p.8). If defendant wants to say anything before or after the witnesses are brought in, he is usually allowed to do so. Defendant can give evidence or need not do so and it is left to his discretion or that of his lawyer’s. If there is a chance of defendant discriminating himself, he can always opt out of giving evidence. This also applies is the defendant could be brow-beaten by prosecution, or if he is of nervous disposition. His not doing so would not bias the court while he always might lose a chance of personally impressing the magistrate, jury or the judge. Defendant can ask for Section 9 if his witnesses cannot come to the court in person, but can disagree for the same facility to prosecution witnesses. It is the right of the defendant to have all prosecution witnesses present in the court. Defendant can complain against any kind of abuse of his witnesses by prosecution. If acquitted, he can ask for expenses to be met including travelling, legal advice etc. and the expenses are usually granted. If convicted, defendant is given the change of making a statement of mitigation and tell the court why he should be treated leniently. He can detail the personal, employmental and circumstantial pressures under which he was labouring when the offence was committed. If a fine is imposed, defendant can ask for time, and he need not provide all the information then and there. If community service is awarded, defendant still has the right to opt for a shorter prison sentence. If defendant had not been in prison earlier, usually there is a period before he is imprisoned. Mostly under such circumstances, defendants are asked to pay the court costs and compensation and the defendant has the right to appeal against the entire judgement within the stipulated time of 21 days of the conviction. appeal will be a entire retrial. In joint trials defendant has the right of bringing in only a fraction of evidence and co-defendants the rest or he can adopt the defences of all the other defendants. He can appeal to be told the days of his being required by the court. Unrepresented defendants have the right to have a ‘McKenzie friend’3 in court with them, who can sit with them, take the notes, Courts also have the power to prevent any kind of abuse of process at common law to prevent the defendant from being abused, if he expresses the fear of its happening. “The House of Lords has confirmed 1 that the court has a general and inherent power to prevent abuse of process. This power includes a power to safeguard an accused person from oppression or prejudice” http://www.hse.gov.uk/enforce/enforcementguide/court/reporting/abuse.htm If any such abuse is apparent in the system, judges have the power to stay the proceedings, if it is directly harming the accused and the trial in any way. This power is used with high discretion. They can also stay the proceedings to safeguard the defendant from being oppressed or prejudiced. Prejudice could be anything like manipulation or misuse of the process of court by the prosecution, so that defendant could be deprived of the protection given by law, or take undue technical advantage of the situation, or prejudice the defendant in preparation or conduct of his defence, or delay the prosecution, or part of it. It could be anything and is not limited to certain situations, but any situation that could prevent the defendant from receiving a fair trial4. This can include even the pre-trial abnormal publicity that could prejudice the jury. (Article 6 (1) of the ECHR). Court could decide on publicity, or change the jury, or give them special instructions or absent them from certain proceedings. It can hold the trial on camera, and can prevent media from entering the courtroom. It can prevent the proceedings from being televised or reported and it could impose security measures so that defendant’s life is not in peril5. In spite of all these procedural rights of defendants combined with many safeguards against conviction a disturbing number of innocents are in jail and perhaps an in-depth study could benefit them. “Nobody knows how many people are sent to prison every day for a crime which they did not commit. Justice, the organisation which is most likely to deal with such cases, receives three or four letters a weak from people in prison, complaining that they shouldn’t be there, Baldwin (1978, p.182). Legal experts have opined frequently that the defendant’s right to hear the prosecution case in advance gives a particular edge in his own defence. Some of them even feel that it is a kind of discrimination against prosecution and favouring the defendant. Whatever is the case, defendant has a distinctly favourable right of self-gratification there. “Along with the development of advance disclosure as the dominent purpose of the committal proceeding, additional rules requiring disclosure of the prosecution case have developed in the Crown Court requiring proceedings and evidence to be used as trial, but not brought forward at the committal proceedings (cf: Royal Commission on Criminal Procedure, 1981)” Moxon (1985, p.78). To sum up, we can say that the main rights of all the defendants are: 1. Right to an Attorney, 2. Right to a Jury trial 3. Right to confront witnesses 4. Right against self-incrimination 5. Right to produce evidences. Both Magistrate and Crown courts give all the above rights along with the connected rights as detailed above to any defendant without bias or prejudice and it is necessary to reiterate that the defendant rights provisions available in Britain are impressive. They hardly leave anything wanted and defendants themselves have spoken in appreciation of the rights available to them. BIBLIOGRAPHY: 1. Ashworth, Andrew (1995), The Criminal Process, Clarendon Press, Oxford. 1. Baldwin, John and Bottomley, A. Keith (1972), Criminal Justice, Selected Readings, Martin Robertson, London. 2. Gordon, Richard (1996), Judicial Review, Law and Procedure, Sweet and Maxwell, London. 3. Landau, Norma (1994), The Justices of the Peace, 1679 – 1760, University of California Press. 4. McConville, Michael and Baldwin, John (1981), Courts, Prosecution, and Conviction, Clarendon Press, Oxford 5. Moxon, David (1985), Managing Criminal Justice, Her Majesty’s Stationery office, London. 6. Shoolbred, C.F. (1996), The Administration of Criminal Justice in England and Wales, Pergamon Press, Oxford. 7. Smartt, Ursula (2006), Criminal Justice, Sage Publications, London. ONLINE SOURCES: 1. http://www.hse.gov.uk/enforce/enforcementguide/court/reporting/abuse.htm 2. http://www.dca.gov.uk/criminal/auldcom/mcs/mcs24.htm 3. http://www.dca.gov.uk/civil/procrules_fin/contents/protocols/prot_ced.htm 4. http://www.criminalattorney.com/pages/defendants_rights.htm 5. http://www.indygov.org/eGov/Courts/Superior/CourtInfo/Listings/Community/Defendants/procedures.htm 6. Read More