Procedure in the criminal courts and the doctrine of precedent

1. 14th December, 2011 Procedure inthecriminalcourtsandthedoctrineofprecedent

2. Find the words in the text that mean the following: accusation, attack, entrust, postpone, proof, punishment Three cases are mentioned in the text. Find the following information: a) who are the accused b) what are the facts of the case c) what is the final decision of the court

3. the procedure ofthecriminalcourts is governedbytheCriminal Procedure Ruleswhich: • laydowntheoverridingobjectivewhicheveryone must follow to dealwithcasesjustly • givecourtsexplicitpowers to activelymanagethepreparationofcasestopreventunfairdelaysandpromotecertainty Criminal procedure

4. consistof 10 principal subjectdivisions: • overridingobjectiveandcase management • preliminaryproceedings • custodyandbail • disclosureofevidence • thetrial • thesentencing • contemptof court • appeals • costs Criminal procedure rules

5. Prosecutionmaybebroughtby: • theCrownPorsecution Service (the state) • establishedin 1985 • theyreviewthecasespassed to thembythe police to seeifthere is enoughevidence for a realisticchance for convictionandifthere is public interest • privateindividuals or businesses • anindividualhas to present a writenaccountoftheallegedoffence to a magistrate • the magistrate issues a summons on thedefendant • thecase is heard at theMagistrates’ Court

6. indictable offences • can be tried only after an indictment after a preliminary hearing to determine if there is a prima facie case to answer or by a grand jury • the first hearing is held at the Magistrates’ Court • the trial is held at the Crown Court • in the USA it is called a felony Categoriesofoffences

7. triableeitherwayoffences • canbetriedeither on indictment or summarily • thetrialtakes place either at theMagistrates’ Court or theCrown Court after a Mode ofTrialhearing at which a magistrate decidesifthecase is suitable to beheard at theMagistrates’ Court • ifyesthedefendantcanagree or ask for a trialbyjury (iftheplea is notguilty) • ifno (thecase is tooserious or complex) thecase is sent to theCrown Court

8. summary offences • can be tried without an indictment or a jury • always tried at the Magistrates’ Court • may be sent to the Crown Court for sentencing • involve a maximum penalty of six months in prison or a fine of up to £5000 • in the USA: amisdemeanor

9. indictableoffences (298) • murder, manslaughter, rape, incest, robbery, burglary (alsoattemptedoffencesandconspiracy) • treason, assassination, espionage • blackmail, extortion, arsonwithintent to endanger life • causingdeathbydangerousdriving • possessionof a firearm or imitationfirearm • wilfulmisconductinjudicial/public office • pervertingthecauseofjustice • escapefromprison, aidingandabbettingescapefromprison, prisonmutiny Examples

10. summaryoffences • commonassault • motoringoffences (drinkdriving, unlicenseddriving) • shoplifting, propertydamage • drunkanddisorderly • bigamy • bribery

11. triableeitherwayoffences • assaultcausingbodilyharm, assaulting a prisonofficer • theft, taking a vehiclewithoutconsent • drivingwhiledisqualified • obtainingpropertybydeception • drugsoffences • embezzlement

12. also called stare decisis (stand by the decision) • policy of courts to abide by the principles established in earlier cases • judicial precedent • a judicial decision that serves as a rule for future decisions in similar cases • can be made only by superior courts Thedoctrineofprecedent

13. A judgementconsistof: 1. ratiodecidendi • thecoreoftheessential legal principle • legal reasonsofpreviousdecisions must beknown • binding 2. obiterdicta • observationsmadebythejudge • non-binding Judicialprecedent

14. original precedent - when there are no similar past cases, the judge will look at those closest in principle binding precedent - precedent form an earlier case which must be followed persuasive precedent - non-binding on the court but the judge may consider it and apply it Typesofprecedent

15. rigidity • circumstances are changing faster than the law • complexity • difficult to find a relevant case and distinguish between ratio decidendi and obiter dicta • distinction • very difficult to find differences or similarities between the cases disadvantages

16. Point of law - decided by a judge as it involves the interpretation and application of legal principles or statutes Point of fact - decided by a jury as it involves the interpretation of circumstances surrounding the facts of the case What is to bedecided on?

17. Thankyou!