PEOPLE WORKING WITH THE SYSTEM

Katarzyna Gromek Broc

The Jury History The jury system is known in Britain after the

Norman Conquest Function: the first jurors acted as witnesses

providing the information on local matters and were used for administrative purposes gathering information, e.g. collecting data

Under Henry the II, the jury started to exercise the judicial role

The jury moved from reporting the events to deliberating on evidence provided by the parties

Jury History Bushell’s case 1670 reiterated in the House of

Lords’ decision R v Wang 2005 Before Bushell’s decision, a well-known practice

where judges exercised pressure on the jury to convict the defendant mainly for the political reasons.

Bushell established that the jury were the sole judges of fact, having the right to give a verdict according to their conscience and should not be penalised for the views on the facts even if opposed to the judge’ views.

Jury The Bushell’s case established the principle that

the juries may acquit the defendant even if the law demands a guilty verdict

In R v Wang, 2005 House of Lords confirmed that the judge cannot pressurise the jury to convict

Today the jury is seen as fundamental part of English Legal System although only a small number of cases is tried by jury

It is in place to ensure that criminal justice system works for the benefit of the public and not for the benefit of the politicians or other leaders.

The function of the jury The jury is weighing up the evidence in order to

decide the true facts of the case The jury’s role is to find out what has actually

happened The judge should inform the jury what is relevant

law, the jury then has to apply the law to the facts they have found in order to reach the verdict

In criminal matters if the jury found the defendant guilty, the judge decides on the sentence

Jury can only consider evidence presented in the court R v Marshall and Crump (2007)

When the jury is used Criminal cases Symbolic role of the jury in criminal cases Jury’s role in the Crown Court only However, the role of the jury has been reduced (criminal offences: summary offences tried in the

magistrate’s courts, indictable offences are tried in Crown Court.)

Criminal Justice Act 2003 increased the power of the magistrates and reduced the power of the jury.

Summary offences (road traffic offences) still for the jury.

Where the jury is used Criminal Justice Act 2003 allows trial by

judge only in two situations When a serious risk of jury tempering

exists (s.44) Where the case involves complex or

lengthy financial and commercial arrangements (s.43)

Where the jury is used Civil cases Very limited cases, less than 1% middle of 19th century: judges were given right to

refuse case be heard before a jury Jury trial is accepted in cases involving malicious

prosecution, false imprisonment and fraud There are also exceptions to this rule In case of prolonged examination of documents or

accounts or any scientific or local investigations or defamation cases

In other cases trial by jury is at the discretion of the court.

Qualifications for jury Before 1972: only those who owned the house

of certain value were eligible 95% of women were excluded Ineligibility 1) the judiciary 2) those who deliver justice: barristers,

solicitors, prison officers, police, staff working in the Crown Prosecution

3) the clergy 4) mentally-ill people 5)People on bail in criminal proceedings

Qualifications for jury Criminal Justice Act 2003 Potential jury members should be Aged 18-70 On electoral register Resident in the UK for at least 5 years Not a mentally disordered person Not disqualified from the jury service

Summoning the jury ½ million people are summoned every year Computerised system is used to send the letters

to people from the electoral lists Jury is compulsory and non attendance can result

in fine The jury for a particular case are chosen by

random ballot in open court The clerk has each panel member’s name on the

card, the cards are shuffled and the first 12 names are called out. 12 people are sworn in

never fewer than 9 jurors in criminal cases, never less than 8 in county courts.

The secrecy of the jury Jurors are not allowed to communicate with

anyone (apart from the judge and the court official) before the verdict is reached.

The arguments in favour of the secrecy It ensures freedom of discussion in the jury

room Protects from outside influence and from

harassment The public should not know how the verdict was

reached, they might respect the decision less. Protects citizens acting as jurors Protects their opinion and unpopular verdicts

Arguments in favour of the Jury System

1. Public participation: ordinary citizen takes part in the administration of justice, respects tradition judgment by peers

Lord Denning : jury service “giving an ordinary folk their finest lesson of citizenship”

2. Certainty : criminal law: verdict guilty or not guilty decision is not open to discussion

3. Judging according to Conscience: protection from political pressure

Arguments against the jury system

Lack of competence The ‘perverse verdicts’ problem Bias Representation of ethnic minorities Jury nobbing

Crown Prosecution ServiceCrown Prosecution Service and models of criminal

justice.

The first thing that you could think about are the purposes for which the Crown Prosecution Service was established for:

What do you think is its main role? Where can we situate it in our system of ‘applying law and doing justice’?

In terms of procedural orthodoxy we can see that the CPS can be placed ‘in the middle’ between the investigation by the police and the adjudication by the courts

CPS The CPS was created in 1985 It was a response to criticisms made by

the Royal Commission on Criminal Procedure. The expectations were that the CPS would make the criminal process fairer;

and would address some concerns about the quality of police investigations

and introduce some accountability.

CPS The key role of the Crown Prosecution

Service (CPS) is prosecuting.

It sits between the police and the courts

CPS: Would it fulfil its promise To what extent do you think that the CPS has

delivered on these aims?  Will look at some issues raised by the Royal

Commission on Criminal Procedure prepared in 1981. Some criticisms raised included the lack of objectivity of the investigation process relative to prosecution (police used to be responsible both for investigating and prosecuting); and that there was a lack of accountability in the process and in some extreme cases a misuse of power.

Other criticisms referred to lack of uniformity in application of the law and the poor filtering of weak cases.

Response to the problems with the system

  The CPS provided an independent

prosecution body that has been in operation for the last twenty five years.

Do you think that the process has been fairer since? Could you reflect upon the role of the CPS and what criminal justice system is for?

In doing so, you could reflect on the different purposes of criminal justice. Can you think about some? What models of criminal justice could be identified? Are they contradictory?

CPS For example could you identify the advantages of the

Due Process model, the Crime Control Model and the Bureaucratic model? You will need to think what the CPS actually does?

In the light of the current debate could you consider the issue of efficiency of criminal justice system? Furthermore, could you reflect upon the increasing attention and centrality of the victims of crime? More importantly could you look at the extent to which the CPS protects victims? Could you balance the interest of victims with the public interest?

 

Procedural orthodoxy ... Police

CPS

Courts

Investigate

Prosecute

Adjudicate

Concerns about the role of the police in prosecuting ...

Lack of objectivity ... Variations in application from place to

place ... Not filtering out weak cases ...

CPS created to provide an independent prosecution body ...

Role of the CPS makes us think about what criminal justice is for

CPS Models of criminal justice are devices for

thinking about what is important in criminal justice ...

The best known models were devised by Herbert Packer in The Limits of the Criminal Sanction (1968) ...

CPS The Due Process

model

Acknowledges the importance of suspects’ rights ...

Processes have an intrinsic value, independent of the guilt of the suspect ...

Models The Crime Control

model

Emphasises the need to secure convictions

Focuses on needs of victims and public

CPS An administrative /

bureaucratic model ...

Focuses on efficiency and cost ...

CPS The models can help us to understand

what the CPS does ...

Two fairly recent developments ...

Consider the extent to which ‘efficiency’ is now driving the criminal justice debate

Consider the increased priority given to the interests of victims of crime in policy discussions around criminal justice

Efficiency ... Who could argue against it ... ? Has always been there as an issue ...

The tests in the Code for Crown Prosecutors reflect a variety of concerns, including efficiency Evidential sufficiency (‘realistic prospect of

conviction’) Public Interest

Efficiency ... Who could argue against it ... ? A sensible move –

CPS aligns geographically with police areas in 1999 following the Glidewell review

Efficiency ... Who could argue against it ... ? A more problematic moves –

CPS start to work closely with police on charging decisions following White Paper Justice for All (2002) and Criminal Justice Act 2003

CPS now responsible for most charging decisions other than in minor cases

Victims and witnesses ... Clearly, the interests of victims and

witnesses are important, but ... ... to what extent, and in what ways, is it

the job of the CPS to protect them?

CPS Recognising the interests of victims and

witnesses will often be consistent with good outcomes for prosecutors, but, for example, victims’ interests are not necessarily the same as the public interest

2. People working with the system: Magistrates

Magistrates: 1361 Peace Act: gave judicial power to appoint lay people

Till the 19th century administration of local government was entrusted to them

Today, there are over 28.000 lay magistrates (justice of peace) hearing over 1000 criminal cases a year. (they do not receive salary but travel, subsistence and financial loss of allowance)

magistrates’ court Usual criminal, but some civil cases eg

Family Proceedings Court Licensing

Who does the judging: Three lay magistrates (unpaid, not

professional), + Court Clerk,or District Judge

Appeals High Court

magistrates’ courts Summary offences – minor

offences eg road traffic, common assault, minor criminal damage

Either way offences tried summarily eg theft. Accused can insist on a trial ON

INDICTMENT at Crown Court (with jury) or the magistrates may refer the case to Crown Court.

2 or 3 Lay Magistrates (Justices of the Peace) or a legally qualified District Judge (previously Stipendiary Magistrate).

Legal representation by solicitor or barrister.

Committal proceedings: Either way offences

to be tried on indictment

Major offences known as indictable offences

Is there a prima facie case against the defendant? not guilt or

innocence Is there evidence

upon which a reasonable jury could convict?

Should be ‘on remand’ in custody or given bail?

Crown Court

Trial court More serious

offences Trial before a judge

(to decide the law and direct the jury) and jury (to decide the facts and apply the law as directed by the judge).

Sentencing Court Some ‘either way’

cases, tried by magistrates are sent to Crown Court for sentencing as Crown Court has greater powers of sentencing.

Appeal Court Appeals from

magistrates court Magistrates + judge.

Youth Court For children (10 – 13) and young persons (14 –

17) Special part of magistrates court.

Divisional Court of the Queen’s Bench Division of the High Court

2, often 3 judges, usually including a Lord Justice of Appeal, often Lord Chief Justice.

2 main functions: Appeals from magistrates courts on a point of

law ‘by way of case stated’ Appeals from the Crown Court by way of case

stated when the Crown Court has heard an appeal from the Magistrates Court.

Summary offences or either way offences tried summarily.

If an appeal is lodged against an indictable offence (or an either way offence which has been tried on indictment) then appeal to Court of Appeal Criminal Division

Court of Appeal Criminal Division

Appeals against conviction and sentence from Crown Court

Consists of LCJ, Lord Justices of Appeal and QB Judges

Usually 3 judges sit (eg LCJ, LJ of Appeal and QBD), exceptionally 2 judges may hear appeals against sentence.

3. People working with the system: Judges

Judges The judges are in the centre of the English Legal

System, deciding the cases and creating precedenceThe Constitutional Reform Act created as a head of

judiciary: the President of the Court of England and Wales replacing the Lord Chancellor

The president (Lord Chief Justice) is a president o the Court of Appeal, the High Court, the Crown court the county courts and magistrates’ courts and can hear cases in any of them. He would likely sit in the Court of Appeal

Function: to represent the views of judiciary to Parliament and the government ministers

Judges Appointment of judges: Constitutional

Reform Act 2005 changed the procedure:

Old system: Lords of Appeal and Lord Justices of Appeal

appointed by the Queen on the advice of the Prime Minister who was advised by the Lord Chancellor

High Court Judges, Circuit Judges were appointed by the Queen on the advice of the Lord Chancellor

Judges: Appointment: New System Constitutional Reform Act 2005 established a

Judicial Appointments Commission responsible for new appointments:

Purpose? To reinforce judicial independence Commission : 14 members, 5 lay members, 5

judges, two legal professionals, a tribunal member and a lay magistrate.

Appointments of the Lord Justice will continue to be made by the Queen on the recommendation of Prime Minister after the Commission had made recommendation

Judges Appointments: The new Appointment Commission is not

involved in appointment of judges in Supreme Court

Instead a minister would appoint a temporary Commission ( in case of vacancy)

Termination: Judges of High Court and above are covered by

the Act of Settlement 1700, which provides that they can only be removed from office by the Queen on the petition of both Houses of Parliament. This happened only once.

Judges Dismissal: Under the Courts Act 1971, Circuit

Judges and district judges can be dismissed for inability and misbehaviour by the Lord Chancellor after the Lord Chief Justice had agreed. (It happened only once)

4. People working with the system: The Legal Profession

Two separate branches solicitors and barristers

They do similar job, drafting, giving written advice advocacy, representing a client

Barristers spend more time in court Solicitors are more concentrated on the paper

work Barristers are hired by solicitors if there is

such a need (recent relaxation of this rule) These two branches are quite free to regulate

their own matters

Legal Profession Solicitors, 98.000 solicitors since 1970 tripled in

size Work: paper work, conveyancing, wills and

contracts, giving written and oral advice Advocacy work in the lower courts, county courts

and magistrates’ courts, In the past Solicitors were eligible for the judiciary

but only to become Circuit Judges, Legal Service Act 1990, opened it up to become a judge of a higher court

Qualifications: Law degree is not necessary, instead CPE, then LPC and two years training.

Barristers Self-employed,14 000, their number is

diminishing Work: advocacy, but also some paper work,

sometimes employed by the government departments or by law centres

they cannot form partnership Qualification: Bar Vocational Training 1 Year

(expensive) Called to the Bar, he/she needs to find a

place in Chamber for a one year apprentenship –pupillage after tenancy

Queen’s Council 10 years of practice as a barrister Work higher profile cases, better pay

£270 000 a year Appointment: in the past similar to the

senior judges, now government is not longer involved

It is a task of Bar Council and Law Society

Legal Education Law Students

Part of the system? - No compulsory link between a

university legal education and the legal profession or the legal system.

- for solicitors: no need for an university education

- barristers: university education but need not be law

Contemporary Situation: - law schools central to legal

training for solicitors - 192 non-graduate - 220 formerly barrister - 3907 law degree - 1185 other degree

Law Students England & Wales (2004)

61% female 29% ethnic minorities 18% working class 26% father has degree 18% has close relative in legal

profession

Law Students Perception of legal studies:

vocational with strong academic content

72% pragmatic choice (enter legal profession)

24% interest in the subject

Different Schools of Law - blackletter (doctrinal) - socio-legal - Jurisprudential:

critical (CLS) realist other

Black-letter Law School traditional approach ‘although law may appear to be

irrational, chaotic and particularistic, if one digs deep enough and knows what one is looking for, then it will become evident that law is an internally coherent and unified body of rules’ (Sugarman)

Black-letter Law School ‘[i]t is for law professors to set forth

the law as a coherent whole – to analyse and define legal conceptions – to reduce the mass of legal rules to an orderly series of principles’ (A.V.Dicey)

Jurisprudential Law School - emphasis on legal philosophy - can take a variety of perspectives

including realist, critical legal studies, positivist,..

Jurisprudential Law School: Critical Legal Studies

- interprets law from the point of view of power relationships.

- Marxist inspired E.g. Birkbeck College School of Law

(University of London)

Socio-Legal Law School - Promotes interdisciplinary legal studies - aims to be relevant for the society in

which it operates E.g. Kent Law School (University of

Canterbury)