People working with the system

1. People working with the system Katarzyna Gromek Broc

2. 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

3. 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.

4. 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.

5. 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)

6. 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.

7. 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)

8. 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.

9. 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

10. 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

11. 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.

12. 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

13. 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

14. Arguments against the jury system • Lack of competence • The ‘perverse verdicts’ problem • Bias • Representation of ethnic minorities • Jury nobbing

15. Crown Prosecution Service Crown 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

16. 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.

17. CPS • The key role of the Crown Prosecution Service (CPS) is prosecuting. • It sits between the police and the courts

18. 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.

19. 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?

20. 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?

21. Procedural orthodoxy ... • Police • CPS • Courts • Investigate • Prosecute • Adjudicate

22. 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

23. 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) ...

24. CPS • The Due Process model • Acknowledges the importance of suspects’ rights ... • Processes have an intrinsic value, independent of the guilt of the suspect ...

25. Models • The Crime Control model • Emphasises the need to secure convictions • Focuses on needs of victims and public

26. CPS • An administrative / bureaucratic model ... • Focuses on efficiency and cost ...

27. CPS • The models can help us to understand what the CPS does ...

28. 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

29. 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

30. Efficiency ... • Who could argue against it ... ? • A sensible move – • CPS aligns geographically with police areas in 1999 following the Glidewell review

31. 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

32. 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?

33. 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

34. 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)

35. 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

36. 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) ora 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?

37. 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.

38. Youth Court • For children (10 – 13) and young persons (14 – 17) • Special part of magistrates court.

39. 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

40. 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.

41. 3. People working with the system: Judges • Judges The judges are in the centre of the English Legal System, deciding the cases and creating precedence The 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

42. 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

43. 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

44. 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.

45. 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)

46. 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

47. 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.

48. 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

49. 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

50. Legal Education • Law Students