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MACHINERY OF JUSTICE

The English Legal System is, unlike most other European countries which have an inquisitorial system, adversarial and accusatorial. One limitation of our adversarial system is that, if some facts are not in either party’s interests, they may never be disclosed.

In the early 1990s, after several high-profile miscarriages of justice such as the Guildford Four, there was considerable media interest in the adoption of a more inquisitorial and less adversarial style of system.

The most costly part of the English Legal System is the criminal justice process – at a cost of around £14 billion in public money each year. This figure is comparatively low – areas such as defence, social security and health are much more generously funded. The legal reforms of the past twenty years have largely been focussed on reducing the cost and increasing the efficiency of the system.

In 2001, a total of £14 billion was awarded in damages in the civil courts. Of this £12 billion was against public bodies.

In the last few years the civil justice system has undergone a complete overhaul in light of the reforms proposed by Lord Woolf concerning the speed, fairness and cost of the system.

According to the Judicial Statistics (2001); in 2001 there were 1.74 million claims issued in the civil courts with only 13,500 trials and 58,300 small claims arbitrations.

In criminal cases, the prosecution must satisfy the court that the defendant is guilty ‘beyond reasonable doubt’. In civil cases, the burden of proof is a ‘balance of probabilities’.

Contents 1 The Courts 1.1 Tribunals 1.2 Magistrates’ Courts 1.3 The Crown Court 1.4 The County Court 1.5 The High Court 1.6 The Appellate Committee of the House of Lords 1.7 The European Court of Justice 1.8 EU law and the UK 2 Police Powers 2.1 PACE 1984 2.2 Powers to Stop and Search - SECTIONS 1 TO 7 2.3 Powers to Arrest and Detain – SECTIONS 24 2.4 Rights of Suspects During Detention 2.5 Questioning 2.6 The Right to Silence 2.7 Photos, Fingerprints and Samples 3 The Criminal Justice System 4 Sentencing 4.1 The Effects of Sentencing 4.2 Consistency in Sentencing is achieved by= 4.3 The Sentencing Advisory Panel 4.4 Sentencing and Reoffending Statistics 4.5 The Halliday Report on Sentencing 5 Powers of the Courts 6 Sentencing Young Offenders 7 The Civil Justice Process 7.1 Alternative Dispute Resolution 7.2 Mediation 7.3 Conciliation 7.4 Arbitration 8 The Woolf Reforms to Civil Justice 8.1 The Civil Procedure Rules 8.2 The Effect of the CP Rules 9 The Trial Process 9.1 Evidence 9.2 Young Defendants 9.3 Plea Bargaining 9.4 Bail 9.5 The Criminal Cases Review Commission 9.5.1 Functions 10 Comments

The Courts

Almost all of the work carried out by the courts takes place in the lowest tiers – the Magistrates’ Courts, the County Court and the Tribunals. Permission for a case to be heard by the House of Lords, the most senior national court, is only granted in cases involving points of law of ‘general public importance’.

Tribunals

Although not formally part of the court system, Tribunals were set up to provide a cheaper, faster and less formal procedure for challenging official administrative decisions such as tax and employment-related issues. Many Tribunals were introduced in the early 1900s in order to ease the workload of the courts.

Since the 1950s, the Tribunal system has expanded significantly – there are now over 100 different Tribunals. Some have an appellate level body which is chaired by a judge, and can make decisions which affect people’s liberty and livelihood. An example is the Immigration Appeal Tribunal, which decides whether asylum seekers should be deported back to their country.

Tribunals usually consist of a legally trained chairperson assisted by two lay members. The lay members normally have some professional expertise which is relevant to the particular subject matter of the Tribunal. The most significant Tribunals are chaired by High Court judges.

Some of the advantages of Tribunals are also problems. The main reasons for creating Tribunals were flexibility, speed and low cost – but these features have also resulted in Tribunals being criticised for inconsistency, rushed decision-making and poor quality representation due to the absence of legal aid.

• Set up by the Government
• Cover 75 areas
• Over 2000 panels
• All decisions may be judicially reviewed
• Apart from Employment Tribunals, precedent does not have to be followed
• Cases heard in private – benefits companies
• Often little explanation for decisions reached
• No funding for cases
• Reviewed by the Legatt Report (2001)
• Revealed that 70 tribunals hear more than one million cases per year
• Recommended better access to information and service, a Customer *Charter, improved procedures and more use of I.T.

Magistrates’ Courts

• Over 700 courts and 30,000 magistrates (lay people who sit part-time)
• Date back to the 1200s
• ‘Local’ justice
• Mostly criminal work
• Civil jurisdiction includes family matters, Council Tax matters, licensing of alcohol, licensing of entertainment venues
• All criminal cases begin here, and 95% end at this level
• Hear approximately 1.9 million cases per year
• Approx 90% of defendants plead guilty
• Of the 10% who plead not guilty, around 70% are convicted
• Max sentencing powers:
  • 6 months custody (12 months for 2 related offences)
    • The Criminal Justice Bill 2002 included a provision for doubling this to 12 months
  • £5,000 fine
    • In 2001, magistrates imposed a total of £385 million in fines

Magistrates sit in panels of three and have a legally-qualified Clerk to advise them on the law and their sentencing powers. An appeal against sentence or conviction on a question of fact goes to the Crown Court. An appeal against conviction on a question of law alone goes to the Divisional Court of the Queen’s Bench Division of the High Court.

The Crown Court

• One body sitting in 78 centres throughout England and Wales
• Deals with approximately 90,000 cases per year - around 5% of all criminal cases
• Most are indictable offences such as murder or arson
• When a defendant pleads not guilty, a judge and a jury of twelve lay people hear the trial. The judge decides on procedure and sentence, the jury decides the verdict
• Approx 70% of defendants plead guilty
• Of those who plead not guilty, approx 60% are acquitted – 40% convicted
• A defendants chance of acquittal is therefore much higher in the Crown Court than the Magistrates’ Courts
• Appeals against conviction or sentence are to the Court of Appeal (Criminal division)
• Hears appeals from the MC
• 3 tiers:
  1. Main centres such as Bristol – High Court and Crown Court centres
     • Can deal with all types of crime triable on indictment
     • Separate judges for criminal and civil
  2. Only a Crown Court – High Court judges regularly sit to hear cases
     • Can deal with all types of crime triable on indictment
  3. Staffed by Circuit Judges and Recorders
     • Very serious cases are not heard because there is no high court judge

The County Court

• Hears the majority of civil cases – disputes over money owed, straightforward divorce cases, custody of children, landlord and tenant disputes, probate, personal injury, matters related to the Race Relations Act (1976)
• Started 1846
• 218 in the UK
• Attached to Crown Courts
• Approx 2.2 million cases are started each year; the vast majority are settled before they come to court
• Many cases are heard in the Small Claims Court
  • Research in 1999 by Prof John Baldwin found that litigants who had used this system were generally much more satisfied than those using the main County Court system
• Appeals against the County Court’s decision on a question or fact of law go to the Court of Appeal (Civil Division) – leave to appeal is almost always required

The High Court

• Hears the most serious civil cases
• Based in the Royal Courts of Justice in London
• 24 regional High Courts
• Cases are also heard around the country by judges who travel ‘on circuit’
• Divided into 3 divisions:
  1. The Queen’s Bench Division – headed by the Lord Chief Justice
     • Hears general civil cases such as claims for breaches of contract, tort
     • Includes the Administrative Court which hears judicial review cases
     • Includes the Divisional Court which hears appeals such as those on a point of law from the Magistrates’ Courts
     • Includes the Commercial Court which hears disputes over company matters
     • Largest division
     • May have a civil jury in defamation cases
     • 70 judges
  2. The Chancery Division – headed by the Lord Chancellor
     • Hears cases such as trusts, wills, intellectual property and bankruptcy
     • 18 High Court judges
  3. The Family Division – headed by the President
     • Hears matters concerning children and families such as adoption and divorce. Also hears sensitive cases relating to medical treatment (euthanasia etc)
     • Created in 1970
     • 17 judges

'SUPREME COURT = Crown Court, Court of Appeal and High Court combined

The Appellate Committee of the House of Lords

• Part of the upper chamber of the legislature
• The most senior national court
• 24 Law Lords – Lords of Appeal
  • 12 Lords of Appeal in Ordinary – salaried, hold office until age 70
  • 12 other peers – drawn from high judicial ranks – retired Lords of Appeal, Lords Chancellor etc – hold office until age 75, and can then remain as members of the House
• Decides appeals on questions of law of general public importance which usually have been heard in the Court of Appeal
• All cases must be granted permission to appeal by the Committee or by the Court of Appeal
• There are approx 250 applications for permission each year (decided by panel of 3 judges)
• Approx 60 cases per year heard – usually by a panel of 5 Lords (very serious cases – 7)
• Most cases are civil appeals – e.g. in 2001 only 11 criminal appeals were heard
• Law Lords have the same rights as other members of the House to debate and vote; but in practice most of them only contribute on matters relevant to the justice system
• Since 2000, the Committee has heard more politically and socially sensitive cases as a result of The Human Rights Act 1998 which incorporated the European Convention of Human Rights into domestic law
• This increased politicisation of the Committee has led to debate about whether it should remain as a member of the legislature; which breaches the concept of the separation of powers
• It is argued that the Law Lords contribute a valuable pool of expertise to the legislature – the Wakeham Report (2000) recommended that the Law Lords should remain in the House of Lords
• On the other hand it is argued, by people such as Lord Bingham, that the presence of the Law Lords in the legislature undermines their legitimacy
• The retired Law Lords often participate in the legislative process in the House of Lords, despite the fact that they regularly sit as members of the Appellate Committee

The European Court of Justice

• Court of the EU
• 15 judges – one from each member state (now 25 after integration?)
• 8 legal experts – Advocates General – advise judges
• Judges usually remain anonymous in judgements – impartial and no national bias
• UK joined the EU on Jan 1st 1973
• ECJ has 2 main aims outlined in the TREATY OF ROME (1957)
  • Efficient interpretation of European law
  • Fair and effective application of that law
• ECJ is not bound by its own decisions
• Article 234 referrals – interprets cases that need a qualification of EU law
• 1989 – Court of First Instance set up to take pressure off the ECJ
• Levi v Tesco (2001) – ECJ ordered Tesco to stop selling Levi jeans at cut prices

EU law and the UK

• UK signed the European Communities Act 1972 which means EU law is supreme to domestic law
• Where there is conflict, EU law takes priority over domestic law

Police Powers

1. 1. CRE REPORT ## 14th June 2004 – claims of racism within the police, not yet published

• Key statute – the Police and Criminal Evidence Act 1984 (implemented in 1986 to allow time for Police training)
• Before 1984, police powers throughout the UK were non-uniform and derived from a variety of sources. This led to inconsistency and potential injustice due to the absence of clear rules
• The provisions of PACE 1984 were based on the recommendations of the Royal Commission on Criminal Procedure (1981) which aimed to produce police powers which were ‘fair, workable and open’
• The Act also includes codes of practice which give guidance to the police on how the main provisions of the Act should be implemented – but are not law. The codes are periodically reviewed by the Home Secretary
• Potential impacts on police powers come from the HRA 1998 such as:
  • Article 6 – The right to a fair trial
  • Article 5 – Freedom from arbitrary detention
  • Article 3 – Freedom from inhumane and degrading treatment
  • Article 8 – The right to privacy
• Under s.6 of the HRA 1998, the police as a public body, have a duty to comply with the Human Rights legislation
• The MacPherson Report (1999) criticised the police for being institutionally racist

PACE 1984

• S.76 – requires a judge to exclude a confession which has been obtained through oppressive or unreliable circumstances
• S.78 – the judge should exclude evidence which would adversely affect the fairness of the proceedings

Powers to Stop and Search - SECTIONS 1 TO 7

• Also included in legislation such as the Misuse of Drugs Act 1971
• The Police Studies Institute found that on average 8% of stops and searches result in arrest
• S.1(2) – the police have the power to search any person or vehicle in a public place for which they have reasonable grounds to believe are carrying stolen or prohibited articles
  • Everyone searched has a right to be informed of the reason
  • The Police Officer must record the search
  • Those searched may request a copy of that record
  • Code A Para 1.7 sets out guidance on what ‘reasonable grounds’ is. It states that suspicion can never be based on personal factors alone
    • “It is important to ensure that powers of stop and search are used responsibly and sparingly and only where reasonable grounds for suspicion genuinely exist'
• Rules do not apply where the search was voluntary
  • SPICER v HOLT (1997) – “Whether an arrest is lawful depends on whether the conditions for lawful arrest have been satisfied.”
• The suspect has the right to see police ID if the officer is in plain clothes
• S.2 - The officer must state his/her name, police station and the reason for the search
  • Emphasised in Osman v DPP (1999)
• S.3 – a written record of the search must be made and the arrestee can ask for a copy
• S.4 – permission for road checks when it is suspected a person has committed a serious arrestable offence

Powers to Arrest and Detain – SECTIONS 24

• Can arrest with a warrant from the MC (s.1 Magistrates Court Act 1980)
• S.24 - The Police have the power to arrest anyone without a warrant who they reasonably suspect to be committing, have committing or to be about to commit an arrestable offence. Once arrested, the premises of an arrested person may be searched for evidence relating to the offence
• S. 26 – arrest for breach of the peace
• The Public Order Act 1986 – wide powers of arrest for public demonstrations etc
• An arrested person can be detained if there are reasonable grounds for believing it is necessary to preserve evidence relating to the offence or to obtain evidence through questioning – the objective test
• S.28 – the suspect must be told the reason for his/her arrest
• S.30 – the suspect must be taken to a police station as soon as possible
• Once the police have sufficient evidence to charge the suspect, they must charge or release them
• Rules do not apply where a person has attended a police station voluntarily
  • Code C states that persons who are ‘helping police with their enquiries’ should be informed that they are not under arrest and are entitled to leave and have legal advice
• Each station where suspects are detained must have a custody officer on duty who must be a sergeant or higher in rank. They supervise the detention process and keep detailed records
• Suspects must be brought before the custody officer, who will decide whether there is sufficient evidence to charge them. The officer has a duty to order the immediate release of a suspect if there are no longer grounds for their detention
• There must be a review by another officer within 6 hours of the suspect being brought to the station and every 9 hours thereafter
• S.41 – must be released within 24 hours under normal circumstances
• S42, S43, S44 - A senior officer can authorise the detention of a suspect arrested for a serious arrestable offence to be extended to 36 hours rather than 24
• Police may then apply for further extensions from Magistrates for periods of 36 hours to a total of 96 hours
• S.27 of the Criminal Justice and Public Order Act 1994 allows for conditions to be attached to police bail
• Only 1% of suspects are detained by more than 24 hours, and the average detention is a further 4 hours
• S.117 – Police may use reasonable force when making an arrest

Rights of Suspects During Detention

• Code C - 8 hours rest in every 24
• S.29 – a volunteer can leave at any time
• Regular meals
• Adequate lighting and heating
• S.41 can detain for 24 hours
• S.42 can be extended by 12 hours for a serious arrestable offence
• S.43 can be extended to total of 96 hours by a Magistrate
• S.56 - Right to have someone informed of their whereabouts
• Vulnerable or young persons are entitled to have an ‘appropriate adult’ present when questioned
• Code C – suspect should not be questioned for more than 2 hours without a break, tell defendant they can make one phone call
• S.58 - Right to consult a solicitor in private
  • The Duty Solicitor Scheme, set up in 1984, provides a list of local solicitors available free of charge 24 hours a day
  • PACE 1984 requires that suspects are informed of their right to use this scheme and the fact that it is free
    • Only about 40% of detainees ask for legal advice
    • Research suggests that police discourage suspects from taking up legal advice by reading their rights very quickly and stressing that it would delay their release
  • This right can be delayed in the case of a serious arrestable offence by a Superintendent or higher who has reasonable grounds to believe it is necessary to protect against interference with evidence, harm to persons, hindering the recovery of property
  • In Murray v UK (1996) the ECtHR held that there was a breach of Article 6 when a terrorist suspect was denied access to a solicitor for 48 hours when questioned

Questioning

• PACE introduced tape-recorded interviews – 2 tapes are recorded – one sealed for court hearings, one used to make a summary for the defendant
• S.60 - The defendant may request access to the full tape
• S.76 – The Court shall not allow statements which have been obtained through oppressive techniques to be used in evidence
• In the case of the Cardiff Three (1993) the Court of Appeal quashed a murder conviction after hearing the tape of an interview in which the defendants denied involvement over 300 times before confessing

The Right to Silence

• Until the Criminal Justice and Public Order Act 1994 a person was under no legal obligation to answer police questions
• Now, if suspects do not answer questions in police interviews, an ‘adverse influence’ as to their guilt can be drawn in their trial if their defence relies on facts which they could have been reasonably expected to reveal to the police
• Supporters of the right to silence argue that it is for the prosecution to prove beyond reasonable doubt that the defendant is guilty and that the ‘innocent until proven guilty’ principle means suspects should not be required to cooperate with police in any way
• The Royal Commission on Criminal Justice 1992 – between 5% and 15% of suspects remain completely or partially silent when questioned by police. It also found that they were no less likely to be charged or convicted than those who fully cooperate with the police
• The ECtHR has held that the right to a fair trial under Article 6 does not require an absolute right to silence

Photos, Fingerprints and Samples

• Can be checked against data held on a national DNA database
• S.62 - Intimate samples – blood, semen, urine – require consent and normally are taken by a doctor
• S.55 – Intimate searches
  • Failure to consent can lead to an adverse inference being drawn in court – same as refusal to answer police questions
  • Can only be conducted with the authorisation of a senior officer who believes class A drugs or items used to create physical injury could be concealed
  • S.117 – samples may be taken with reasonable force if the defendant refuses
• S.54 - Non-intimate samples – hair, saliva, nails, mouth swabs – can be taken without consent
• S.61 – can take fingerprints without consent
• Routine search of suspects on arrest not permitted – can only be searched if they may have weapons, prohibited articles or items which could assist an escape
• The Codes of Practice in PACE allow strip searches – remove outer layer of clothing – must be in private and sensitive

The Criminal Justice System

• Runciman Royal Commission on Criminal Justice (1993) – wide ranging review of the system after 2 years of research – many proposals implemented
• The Auld Review
• The Narey Review (1997)
• The Glidewell Report (1998/9)
• All time high prison population
  • November 2003 - 72,522
  • June 2004 – 74,850 (approx 70,300 male and 4,500 female) + 3600 Home Detention Curfew
• Many more women in prison
  • 1993 – 1580
  • March 2004 - 4589
• General trend of shifting away from the rights of the defendant to those of the victim (The tension over the miscarriages of justice in the early1990s such as the Guildford Four has now evaporated)
  • Supported by 2002 White Paper – Justice for All – proposed to increase the circumstances in which the previous convictions of a defendant could be revealed in court
• The CJS is required to fulfil a number of different aims – it promotes and upholds moral and social standards, exacts retribution, prevents future harm, and compensates the victim
  • The wide range of available sentences reflect these aims
• 2003 research – one third of witnesses in the Crown Court and one quarter in the magistrates’ court felt their treatment had been unfair
• The Audit Commission 2002 – found that over £80 million is lost each year through adjournments and cancellations
• The murder of Stephen Lawrence in 1993 and the subsequent MacPhearson Report has had a profound effect on the system – it identified ‘institutional racism’ in the police
• In 2001, the United Nations Human Rights Committee highlighted the racial bias within the U.K. Criminal Justice System
  • The courts have powers to increase sentences where the offence is racially motivated under s.153 Powers of Criminal Courts (Sentencing) Act 2000
  • Guidelines for sentencing racially-aggravated offences were set down by the Court of Appeal in Kelly and Donnelly (2001):
    • Adult offenders are 85% more likely to receive a custodial sentence
    • The average fine is 50% higher than for the same offence under non-racial circumstances

Sentencing

• Lord Bingham in Roche (1999): “It is a cardinal principle of sentencing that it is for the court to pass what it judges to be the appropriate sentence… but the court is not swayed by demands for vengeance.”
• Magistrates – max 6 months custody, £5000 fine (most common is a fine)
  • 2002 White Paper proposed independent body set up to deal with TV licensing etc – less work for MC
• In CC sentences are only limited by maxima and Court of Appeal guidelines
• In 1990, the Conservative Government produced a White Paper called Crime, Justice and Protecting the Public – it called for ‘just deserts’ – the punishment should fit the crime – Labour and Conservatives both want to appear tough on crime
  • Tony Blair: “Tough on crime and the causes of crime”
  • Michael Howard: “Prison works”
• Aims of sentencing:
  • Retribution – punishment for wrongdoing – revenge on behalf of the victim and society – ‘an eye for an eye’ – the more serious the crime, the more serious the punishment should be – hoped that the defendant would not reoffend in order to avoid future punishment
• Rehabilitation – punishment fulfils a useful purpose for the individual and hopefully for the community – tries to make the individual a more useful member of society – reduced chance of reoffending – aims to change the behaviour of offenders for the benefit of society
  • • Offenders can see the pain and damage they have caused through their anti-social behaviour
    • Offenders are shown an alternative path through training and education (important for young offenders)
    • Problems with this approach: It assumes the problem lies with the offender, can lead to inconsistent treatment of offenders depending on class, it lacks privacy and can be embarrassingly public
    • The National Association for Care and Rehabilitation of Offenders – national organisation which supports prisoners and their families, especially after release from custody – helps to find employment and accommodation
    • R v PRICE (1971)
  • Deterrence – believes retribution is too harsh – some crimes are ‘one offs’ – there is evidence that the deterrent effect becomes less effective for habitual criminals – the cycle can be broken early with young defendants
    • Some argue that a ‘short, sharp shock’ is all that’s needed – supported by the boot camps for young offenders brought in by the Criminal Justice Act 1982 – abandoned by Criminal Justice Act 1988
    • To prevent the offender reoffending = specific deterrence
    • To prevent others reoffending = general deterrence
    • R v TOOR (2003)
  • Protection of Society / Incapacitation – usually by administering long prison sentences (murder, rape etc)
    • If a defendant commits two violent or sexual offences, a life sentence is automatically given (Crime (Sentences) Act 1997)
    • Expensive – costs society £25,000 per year per prisoner
      • A prisoner of 15 years will cost taxpayers approx £375,000
    • R v HINDLEY (protection)
    • R v WHITTAKER (1996) (incapacitation)
  • Reparation – victims are compensated – should discourage potential criminals
    • Either to the victim or society in general
    • Reinforced by the Victim’s Charter (1990)
  • Denunciation – society expresses its disapproval of criminal activity – justice is seen to be done
    • R v WOOLLEY & CAMPBELL (2003)

The Effects of Sentencing

• Long custodial sentences may educate defendants in the ‘university of crime’
• Increased risk of suicide among imprisoned young offenders
  • Often bullied or intimidated, removed from security of family and friends
  • Some Y.O. institutions have been criticised for unsupportive regimes
• Employment may be difficult to secure – offenders pay for crime long after they have fulfilled their sentence
  • Increases the likelihood of reoffending
  • Some feel they have no prospects and with no stable income crime becomes a way out
• Puts pressure on partners, families, children – financial and emotional strain
  • 28% rise in women imprisoned between 2000 and 2001

Consistency in Sentencing is achieved by=

• Limiting powers of magistrates
• Guidelines issued by the Magistrates’ Association
• Court of Appeal guidelines
• Attorney General’s power to make a reference to the Court of Appeal in the case of an unduly lenient sentence
• The Sentencing Advisory Panel – set up by the Crime and Disorder Act 1998 – persuasive effect on the Court of Appeal’s guidelines
• Case law

The Sentencing Advisory Panel

• Independent public body
• Aims to encourage consistency
• Can propose the Court of Appeal should issue or revise guidelines
• Since 1999
• Crime and Disorder Act 1998
• 14 members appointed by the Lord Chancellor

Sentencing and Reoffending Statistics

• 70% of all offenders released in 1996 reoffended within 5 years
  • Reconviction rates were higher for those who had served short prison sentences
  • 60% of those who served up to 12 months were reconvicted
  • 29% of those who served over 10 years were reconvicted
  • 85% of 14-16 year olds reoffended within 2 years
  • 74% of 17-20 year olds reoffended within 2 years
  • 76% of 20+ year olds reoffended within 2 years
  • 76% of burglars reoffend
  • 19% of sexual offenders reoffend

The Halliday Report on Sentencing

• Major review carried out into the effects of punishment in July 2001
• Investigated the effectiveness of the sentencing framework
• 55 major recommendations, including:
  • Targeting persistent offenders
  • Research the relationship between sentencing and crime reduction
  • Increase the severity of the sentence where the offender has recent convictions
  • Imprisonment as a last resort
  • Review of mandatory minimum sentences to give judges more flexibility
• Conclusion = the present overuse of short custodial sentences is not effective – the problem of persistent offenders is not tackled

Powers of the Courts

OUTLINED IN THE POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000.

• Custodial sentences – deprives individuals of their liberty and freedom (64% in CC)
  • Most severe punishment
  • Major impact on the defendant and their family
  • Used with care – a last resort
  • Only used when no other sentence is appropriate – the offence must be serious enough to warrant a custodial sentence
  • Used when an offence was violent or sexual and the public need protection
  • Length of custody can be affected by what the current Government’s policy is
  • Some offences, such as murder, carry mandatory custodial sentences
  • Can have a suspended sentence – if reoffend within a period of up to 2 years will be resentenced, otherwise free to go
• Community Sentences – interfere with the offender’s day to day life (approx 30%)
  • Required to fulfil duties / carry out certain tasks
  • Only applicable where the offence could warrant a custodial sentence
  • Many different types:
    • S.41 Community Rehabilitation Order – offender sees a probation officer regularly for between 6 months and 3 years. Probation officer guides the offender and monitors their progress
      • Can attach conditions such as living at a particular address, going for counselling, avoiding certain persons
      • Hoped to reform the offender
      • Seen by some as a soft option
      • 60% reoffend within 2 years
    • S.46 Community Punishment Order – combination of punishment and rehabilitation. Offender does tasks such as decorating the homes of the elderly, environmental projects
      • Total time between 40 and 240 hours
      • 8 hour sessions often at weekend
      • Lowest reoffending rate for a community sentence
    • S.51 Community Punishment and Rehabilitation Order – combination of the above two – probation interviews and community work
      • Up to 100 hours work (minimum 40)
      • Rehab for 1 – 3 years
    • Curfew Order – often 7am – 7pm
      • S.37 – can be tagged
      • For between 2 and 12 hours in every 24
      • For up to 6 months
    • S.40 Exclusion Order – up to 2 years for over 16s, up to 3 months for under 16s
    • Anti-Social Behaviour Order – The Crime and Disorder Act 1998 – intended for young offenders over 10 years old, for offences such as petty vandalism and yobbish behaviour. They are rarely used as are hard to enforce
    • S.56 Drug Abstinence Order – applies to class A drugs such as heroin – banned from taking drugs for between 6 months and 3 years (it is always illegal of course, but these orders emphasise the will of the court)
    • S.52 Drug Treatment Order – for over 16s, residential or non residential, for between 6 months and 3 years
• Fines – paid to the court or to the victim as a Compensation Order. Hard to decide what level of fine to impose – have to take into account financial circumstances of the individual
  • Levels are set out in legislation
  • Go to the state not the victim
• Discharges – absolute or conditional
  • Absolute Discharge – the court is satisfied that no punishment is appropriate – the offender is free to go with no attached conditions – given where the defendant has pled guilty or been found guilty. The court records the offence, and no further action is taken. A rare sentence
  • Conditional Discharge – Released without formal punishment but are ‘bound over’ – if they reoffend between a set period (up to 3 years) they will be brought to court to face the original and the subsequent charge(s)
• Compensation – fines and compensation
  • Fines go to the state, not the victim. Compensation goes to the victim.
    • S.130 Compensation Order – instead of or in addition to a custodial or community sentence (average £998 in the CC)
    • Reparation
    • E.g. Magistrates’ Court guidelines for 20-35 year olds: £100 for a black eye, up to £1000 for the loss of a tooth
      • Can be increased for those over 35
• Other sentencing powers
  • The mentally ill: treatment rather than punishment
    • Treatment Orders
    • Hospital Orders
    • S.41 Mental Health Act 1983 – Secure Hospital Order
      • If the courts believe the offender is a danger to the public
      • Can be made only by the Crown Court
      • For a set period or an indefinite period
  • Awards from public funds
    • Courts can award small amounts to people who have acted in a particularly heroic or community-spirited way – usually £50 or £100

PCC(S)A 2000:

s.109 – 2nd violent or sexual offence = life custody unless exceptional circumstances

s.111 – a third domestic burglary = at least 3 years in custody

s.79 – the court should not impose a custodial sentence for non-violent offences unless it is so serious that nothing else is sufficient

Sentencing Young Offenders

• Under 10s – not formally punished – put under supervision of a social worker or a member of the youth offending team, or given a curfew
• Aged 10 – 17
• Important that custody is an extreme last resort
  • S.63 Supervision Orders – defendant can be out into a local secure unit. Given education and training, normally have single rooms, can be very intimidating
  • S.69 Action Plan – Young Offender becomes involved in a certain set of activities or locations
  • Referral – may have to meet with a youth offender team to get advice and guidance
  • S.150 Parental Order – order for parents to take full responsibility for up to 3 years and attend counselling sessions
  • Fines – between £250 and £1000 is possible, but very rare
• Aged 18-20 can be sent to a Y.O Institute – if turns 21 will be sent to an adult prison

The Civil Justice Process

The civil court structure, like the criminal, is pyramid-shaped. The vast majority of cases are dealt with in the lower courts – the county courts and tribunals – with very few ever reaching the higher courts. Cases, which traditionally would have been heard by a High Court judge, are now routinely dealt with by a Circuit judge or, occasionally, a District Judge, in the county court.

The work of the Queens Bench Division of the High Court declined significantly throughout the 1990s by over 60%; while the number of cases dealt with in the small claims court has grown. The threshold for hearing cases (other than personal injury) was been raised from £1000 to £3000 and then £5000.

There has also been a reduction in the right to appeal to the higher courts against a decision in the lower courts. As a result of the Bowman Report (1996), which concluded that the Court of Appeal was dealing with too many less serious cases, the civil appeals process was streamlined and reformed in the Access to Justice Act 1999. Almost all cases now need permission to appeal and no longer have an automatic right to do so.

Cases in the Court of Appeal can now be heard by one or two judges rather than three; and the length of proceedings has been reduced by the substitution of written representation for long oral argument.

In addition to the penalties they can impose, civil courts can also award punitive damages to express disapproval and provide deterrence

• In 2002 the NHS had outstanding claims of £4.4 billion in medical negligence against it
• The LCD’s review of civil court judgements in 2000 identified enforcement as a main problem – approx £600 million per year is lost to creditors through unpaid civil judgement debts
• 1998’s Enforcement Review found that only 35% of all warrants of execution are paid
• A study of small claims judgements found that 35% of successful claimants had received no part of the sum awarded to them several months after judgement
• In 2003 the Government produced a White Paper which set out significant changes to the enforcement process such as regulations for bailiffs

County Court	High Court
Hears all contract and tort claims	3 divisions
Hears all cases for the recovery of land	-
Disputes over partnerships	-
Trusts, inheritance (up to £30,000)	-
Small claims, fast track, multi track	-
Some hear matters under the Race Relations Act 1976	-

Alternative Dispute Resolution

• Increasing emphasis on the development of ADR methods which reduce time, cost, speed, stress and publicity of formal court hearings
• Most common forms are mediation, conciliation and arbitration
• ADR commonly involves the use of a neutral third party who imposes a decision to which the parties are contractually bound or helps them reach agreement
• ADR can be cheaper because of the decreased use of lawyers
• ADR can be more flexible than litigation because solutions can be tailor-made
• The techniques used are less adversarial than court
• ADR methods aim to produce a resolution which is proportionate to the scale of the dispute – courts can often result in costs which are wildly disproportionate with the amount being claimed
• An advantage is the private nature of the process – particularly attractive to companies and businesses
• Currently only a small fraction of cases are solved using ADR despite the support of the Government and interest groups
• In 1999, 468 disputes were referred to the Centre for Effective Dispute Resolution – this dropped to 338 in 2001
• Less than 10% of divorcing couples chose to use the pilot ADR scheme and a high percentage of those that did use ADR also employed a lawyer – therefore the proposal for compulsory mediation in divorce processes has been abandoned
• A problem with ADR is that the courts have no power to enforce the settlements. In the small claims court which uses an arbitration-style system, the process is compulsory and binding but the losing side does not have to pay the winner’s costs
  • This often leaves individuals at a disadvantage when sued by large companies, which is the case for a high proportion of cases in the small claims court. It also deters people from bringing cases against well-resourced defendants

ADVANTAGES	DISADVANTAGES
Courts can be expensive, disproportionate, time-consuming and ineffective	Not suitable for every dispute – often ineffective when it is not totally voluntary
Less adversarial and antagonistic than court	Insufficient information provided
All parties satisfied	No guarantee a settlement will be reached (except arbitration)
Litigation benefits the wealthier side (businesses)	Limited rights of appeal after arbitration
Better placed to decide technical issues	In acrimonious situations ADR can be ineffective and pointless
Less destructive to personal and business relationships than litigation	Some parties will prefer to use the traditional, clarified, tested court system – with better rights of appeal generally
Resolutions can be completed within days, courts can take years	Many forms of ADR are non-binding and so can often lead to lengthy processes which are not necessarily more efficient than court
Saves on court costs, legal fees and expert fees	Hiring experts can be extremely costly
Greater participation for the parties	Confusing array of ADR can be misleading
Use of a neutral third party promotes fairness and encourages cooperation	-
Flexibility of approach	-
Held at times convenient to the parties	-
Less stressful	-
Tailor-made dispute resolution	-
Parties can decide their own timetabling and procedural matters – no strict court timetables and penalties	-
Disputes often within businesses – potentially less working time will be wasted as ADR is generally quicker than litigation	-
Broader range of ‘sentences’	-
If parties play a direct and continuous part in the settlement process, research has shown that they are more likely to abide by the result	-
Confidentiality – ADR is entirely private	-
Issues are defined more clearly and each party has a clear view of the others’ opinions	-
Supports Government policy and the Civil Procedure Rules which promote ADR and argue that settlements should be more proportionate to the amount at stake than they often are in the courts	-
Of the total referrals for ADR by judges, 77% are settled within one day. The average value of a case is £150,000	-
80% of disputes where mediation is used are settled	-

Mediation

• A third party attempts to help those in dispute to reach a settlement by acting as a go-between who explains the views of each party to each other (e.g. Relate)
• The mediator fulfils an intermediary role rather than that of an active participant
• Will only be effective if the parties are willing to cooperate on some level

Conciliation

• The conciliator actively seeks to promote settlement by suggesting possibilities
• Neither party is bound by the decision
• Process is quick and cheap
• Proceedings may be broken off by either party at any time – more cost may ensue

Arbitration

• Governed by the Arbitration Act 1996
• Role of the arbitrator is most similar to that of the judge
• The arbitrator hears both sides and then imposes a settlement, to which both parties have previously agreed to abide by
  • This agreement is known as a Scott Avery Clause after the 1855 case
• This has been extremely successful in large commercial contracts – solicitors firm Baker McKenzie in 1999 said its global arbitration cases were worth £6 billion
• Industrial arbitration – Arbitration and Conciliation Advisory Service (ACAS) – Government funded – often resolves disputes between trade unions and employees – respected for being impartial and effective
• Consumer arbitration – e.g. travel agents ABTA

Advantages	Disadvantages
Knowledgeable arbitrator who is more likely to be an expert in the field than a judge who hears many different types of case	No public airing of the wrong done – some claimants want this
The cases are kept private – companies may prefer this	May involve difficult technical points which the parties may not comprehend
Claimants and defendants can choose times when it is convenient for them	Awards can be challenged by either party – may not be so quick
It is normally quicker and cheaper than formal court procedures	Individuals may be disadvantages when facing an organisation

The Woolf Reforms to Civil Justice

• In 1994 Lord Woolf was asked to conduct an inquiry into the civil justice system and make proposals for its modernisation
• Lord Woolf consulted civil justice system workers and reviewed other international systems
• His report Access to Justice was published in 1996
• He identified that the main problems with the civil justice system were cost, delay, complexity and uncertainty of outcome
• He said the overriding objective of the system is to deal with cases fairly and justly
• He said that it is imperative to ensure that, as far as is possible, the parties in a case are on an equal footing and that the time and cost of a case is proportionate to the amount of the claim and the complexity of the issues
• He found that the current system deterred claimants with sound cases from litigation because of extreme costs, and the uncertainty attached to them

His proposals, almost all of which were accepted by the Government, included:

• Dealing with cases differently according to the amount of the claim and its complexity
• Stricter timetables imposed by the courts
• Active case management by judges from the point a claim is made
  • Aims to encourage parties to settle or use ADR, early identification of issues and fixed dates means cases are dealt with efficiently
• Unified and simpler procedural rules for the High Court and county court
• Reducing the use of adversarial techniques – e.g. full disclosure of evidence by both sides, agreement of one expert witness (if parties cannot agree, the court can limit the number of witnesses, usually to one for each side)
  • It is expected that expert evidence will normally be submitted in writing, and oral presentation requires the permission of the judge
• Developing IT to manage and track cases
• The appointment of one senior judge to head the civil justice system
• The language of all rules and procedures should be simplified – many Latin phrases replaced by Plain English (e.g. Plaintiff – Claimant)

The Civil Procedure Rules

• Key change
• Implemented through the Civil Procedure Act 1999
• Supplemented by detailed practice directions drawn up by senior judges to help lawyers and judges interpret and apply the rules
• Apply equally to the county court and the High Court
• Restrict personal injury claims in the High Court to those worth more than £50,000, and other money claims to a value of more than £15,000
• Each case is now allocated to one of three tracks:
• DECIDED BY DISTRICT JUDGE IN THE COUNTY COURT
  • Up to £5000 - small claims process (county court) – hearing based on arbitration – relatively informal – limited rights of appeal – limit on total cost – winning side cannot claim costs – heard by District Judge
  • £5000 - £15000 – fast-track procedure (county court) – speedier and less costly due to the use of standard directions and time limits (Trial date must be set within 30 weeks and hearing should be completed within one day – cost penalties can be imposed for breaching this) – both sides see information before the hearing. Trials last 3-24 hours
  • £15000+ and complex cases – multi-track procedure (county court) – greater scope for judges to intervene and impose directions – aims are fairness and efficiency

Both parties sent an allocation questionnaire to help judge allocate it to a track.

The Effect of the CP Rules

• Criticism for lack of consistency in the approach of judges
• The use of more comprehensible language is good; but currently the overlap is confusing and intimidating
• The number of actions started in the courts dropped significantly after the reforms
• Mediation has been used more often
• 2002 – Public Accounts Committee of the House of Commons reported that the legal costs of 65% of medical negligence settlements below £50,000 exceed the sums paid to claimants

The Trial Process

Summary offences – motoring offences, common assault, criminal damage less than £5000

• Offences divided into levels with appropriate fines, e.g. Level one max £200
• For certain matters, such as breaches of health and safety legislation, the MC can fine businesses/companies up to £20,000

Either way offences – theft, ABH, obtaining property by deception

Indictable offences – murder, rape, arson

• Approx 15 million crimes committed per year
• Approx 1.4 million crimes are tried per year – (1.3 million MC, 100k CC)
• All criminal cases start in Magistrates’ Court – Early Administrative Hearing – bail, legal funding and reports considered
• Cases classified as summary (MC), either way (MC/CC), and indictable (CC)
• CPS advises whether they think an either way case should be tried in the MC or CC –

  Under s.19 Magistrates Court Act 1980

  Magistrates then decide taking into account their sentencing powers - MODE OF TRIAL AND COMMITTAL PROCEEDINGS

  • If they decide not to try it, goes to CC
  • If they decide they will try it, defendant chooses between MC and CC
  • There is a jury for most cases in the CC where the plea is not guilty
  • Trial by jury is a democratic foundation which dates back to Magna Carta in 1215
  • Government proposes to increase Magistrates’ sentencing powers to save money
    • S.6 (1) Magistrates Court Act 1980 – all prosecution evidence must be read by the magistrates before they consider mode of trial
    • S.6 (2) Magistrates Court Act 1980 – defendant is automatically referred to the CC with the permission of the defence lawyer
• In MC, approx 90% of defendants plead guilty

Most trials last from one hour to a day (average just over 1hour)

• In CC, proceedings are more formal and ritualised
  • Legal aid is more commonly available than in the MC, rare for a defendant to be unrepresented
  • Jury verdicts must initially be unanimous, after hours a judge can accept a majority agreement of 11:1 or 10:2 – anything less is a ‘hung jury’ and it would be discharged
• Indictable offences in the CC – first hearing is a PLEA AND DIRECTIONS HEARING

Evidence

• Must be relevant to the issues
• Can be excluded by the judge (e.g. previous convictions, hearsay)
  • S.78 PACE 1984 – the judge can exclude evidence which would have an adverse effect on the fairness of proceedings
• Trend to allow more evidence in recent years – less adversarial, more inquisitorial

Young Defendants

• Young persons = under 17s
• For most offences the defendant will be tried summarily in the MC sitting as the Youth Court
  • These hearings are private – identity of the defendant cannot be made public without the court’s consent
  • Intended to be less intimidating
  • Specially trained magistrates hear cases
• In very serious cases may be tried in the CC – Practice Directions issued by Lord Woolf in 1999 make the CC more relaxed for young defendants

Plea Bargaining

• Defendant agrees to plead guilty in return for a reduced sentence, or to a less serious charge
• Defendants who pleas guilty can expect their sentence to be reduced by between one quarter and one third (s.48 CJPOA 1994)

Bail

• Approx 5/6 suspects are bailed
• Accused can apply any time after arrest
• Bail granted by the Police under s.37 and s.38 of PACE 1984
• The Bail Act 1976 – general presumption to bail under s.4 – innocent until proven guilty. May be denied if there is: (under Schedule 1)
  • Suspicion that the accused would not return when stated
  • Suspicion that the accused would reoffend whilst on bail
  • Suspicion that the accused would interfere with the course of justice or intimidate potential witnesses
  • Fear that the accused may be intimidated, injured or killed if released
  • No secure address for the accused – bail hostels can be used
• Can be conditional or unconditional
• Under the Criminal Justice Act 1988 – Magistrates must provide reasons if granting bail for those accused of murder, manslaughter or rape
• S.3 - Conditions e.g. a surety, reporting
  • S.7 – breaking conditions renders the suspect liable to arrest without warrant
• The prosecution may use the Bail Amendment Act (1993) to appeal against the award of bail if they fear one of the above reasons
• PROBLEM OF BALANCING 2 SIDES

The Criminal Cases Review Commission

• Set up by s.35 Criminal Appeals Act 1995
• Came into force in 1997
• Will only consider new evidence / points of law with good reasons for its late disclosure
• Cannot investigate private organisations or individuals
• Can instruct the preservation of any material held by a public authority such as the police
• Government established it to consider possible miscarriages of justice
• After high profile cases such as the GF4 and BHAM6
• Free from governmental pressure – better than the Home Secretary
• Can refer cases back to court and query convictions
• At least 11 members – appointed by the Monarch on the PM’s recommendation
• One third of members are legally qualified
• Two thirds must have knowledge of the criminal justice system
• 60+ support staff
• Has a huge workload
• Insufficiently resourced
• Non-political and independent
• Established to replace the s.17 procedure of the Criminal Appeals Act 1968

Functions

1. Consider suspected miscarriages of justice
2. Arrange investigations
3. Refer cases to the Court of Appeal if there are grounds to do so
4. Settle outstanding issues on request of the Court of Appeal
5. Give advice when the Home Sec is considering a Royal Pardon
6. Refer cases to the Home Sec for consideration of a Royal Pardon
7. Promote public understanding of its role and enhance confidence in the CJS

• Approx 2.5% of cases are referred
• Of these around 33% are upheld, 66% successful
• Total of 1.7% of cases are altered by the CCRC
  • This low rate helps with the aim of promoting public confidence in the system
• Before the CCRC only 1.5% of cases were referred, so now around 1% more are referred
• Average waiting time 24 months
• Long backlog of cases
• Some argue that the CCRC should have the power to decide cases itself

Comments

• Suitable for: AS Level Law, OCR board (mainly unit 1)
• Written by: Lauren18
• From this thread.