English for Lawyers 1

1. English for Lawyers 1 Lecturer: Miljen Matijašević G10, room 6/I, Tue 11:30-12:30 e-mail: miljen.matijasevic@gmail.com Session 10, 20 Dec 2013

2. Today’s session • Revision of the last session • Criminal Procedure in the UK

3. Revision of the last session Civil Procedure in the UK

4. Revision Who are the parties in a civil procedure? What is the purpose of civil procedure? What are the possible remedies? What are the defendant's options upon receiving the claim? What do you know about the three regimes of trial? What is the difference between the inquisitorial and adversarial approaches?

5. Criminal Procedure in the UK Unit 10

6. Criminal Law CRIMINAL LAW • deals with certain forms of conduct for which the state reserves punishment, such as murder and theft

7. Criminal Law the parties (UK): • THE CROWN – i.e. the state e.g. R v Collins – the Crown against Collins R stands for ‘Regina’, i.e. ‘Rex’, latin: Queen or King • DEFENDANT – the person being prosecuted, the alleged criminal

8. Criminal Law • the state is the prosecutor • has interest in fighting crime • criminal justice is administered with the help of the police • the police investigate a crime, apprehend suspects and detain them in custody

9. Human Rights Act 1998 • direct impact on the criminal procedure • The Human Rights Act 1998 introduced the rights laid down in the European Convention on Human rights (Art 5 and 6) into English law in 2000 • introduces provisions governing the right to a fair trial, presumption of innocence (Art 6) and the right to liberty and security (Art 5) • all English statute and case law must now be measured against these provisions

10. The Right to a Fair Trial (Art 6) • In the determination of his civil rights and obligations and of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. • Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.

11. The Right to a Fair Trial (Art 6) • Everyone charged with a criminal offence has the following minimum rights: • To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; • To have adequate time and facilities for the preparation of his defence; • To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free if the interests of justice so require; • To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; • To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

12. The Right to Liberty and Security (Art 5 of the ECHR) • governs matters pertaining to unlawful arrest and detention and lays down the conditions under which an individual can be deprived of his or her liberty • Some of these conditions are: • Lawful detention after conviction; • Lawful arrest or detention for non-compliance with a court order; • Lawful detention to prevent spread of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; • Lawful arrest or detention to prevent unauthorised entry into the country, or for extradition or deportation. • It also provides that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article has an enforceable right to compensation.

13. The Prosecutors • Most prosecutions undertaken by: • Crown Prosecution Service (CPS) • Other special prosecution bodies: • Serious Fraud Office (SFO) • Serious Organised Crime Agency (SOCA)

14. Criminal proceedings STANDARD OF PROOF • in criminal trials, the burden of proof is on the prosecution, who, unlike in civil trials, must prove guilt beyond reasonable doubt

15. Starting Proceedings • upon investigation of a criminal act, the police may apprehend suspects and decide whether the offender should be prosecuted • if so, a file is sent to the CPS • CPS then decides whether there is a realistic prospect of conviction • they must be sure that the evidence is legally admissible and reliable, taking account of the witnesses.

16. Starting Proceedings • next they must consider whether a prosecution would be in the public interest • criminal proceedings may be initiated by the serving of a requisition to appear in court (a.k.a. summons), or a warrant of arrest, issued by a Magistrates’ Court • prosecution is not initiated in all cases, but the offender may only be cautioned

17. Caution • in many cases of petty crimes, instead of being prosecuted, offenders receive a police caution • this is an official warning intended to: • deter (first-time) offenders from re-offending, i.e. committing the act another time • remove the necessity of a court appearance • deal quickly with less serious offenders • this is not a conviction, but results in a criminal record – may be considered in future trials as evidence of bad character

18. The Right to Silence • the defendant has a right not to say anything, both in the police station and at trial • since the entry into force of the Criminal Justice and Public Order Act 1994, the silence may be adversely interpreted in the court, i.e. the silence can be taken as an indicator of possible guilt on the part of the defendant

19. Disclosure • the requirement to disclose all evidence and defence/prosecution materials to the other party in the proceedings • “It is a fundamental aspect of the right to a fair trial that criminal proceedings (...) should be adversarial and that there should be equality of arms between the prosecution and defence.“ (Rowe v UK)

20. Disclosure • however, the European Court of Human Rights warned that “entitlement to disclosure of relevant evidence is not an absolute right” • three factors that justify withholding of evidence: • national security • protection of witnesses • preserving secrecy in police investigations

21. Categories of criminal offence • There are three categories of criminal offence in the UK: • Summary offences (or petty crimes) • least serious criminal offences; triable in the Magistrates’ Court; jury trial not available • Indictible offences • most serious offences, triable in the Crown Court; more severe penalties are available: trial by jury • Triable either way • criminal offences triable either in the Magistrates’ Court or in the Crown Court

22. Criminal proceedings • cases are broughtbeforethe Magistrate’s Court • the Court evaluates the case and may • proceed to sentence • decide that the matter is toocomplex or serious for theirjurisdiction • if the case is found to be more complex, it is committed to the Crown Court, where more severe penalties are available, as well as a jury trial

23. Summary offences • 95% of criminal cases are categorized as summary offences and dealt with by the Magistrates’ Court • these offences include: traffic violations, drunk and disorderly behaviour, assaults, minor criminal damage cases, cases prosecuted by government departments or agencies • if the defendant pleads guilty upon being charged, court appearance is avoided

24. Triable either way • these offences include theft, drug offences, some acts of violence against the person • the defendant given the option to select the mode of trial – summary trial or trial on indictment in the Crown Court (before a jury) • they must be well informed of the procedures and possible penalties for each of the modes • the court may, on the other hand, deem the case too complex or serious and refer it to the Crown Court, seeing as more severe penalties are available there

25. Indictable offences • serious offences, such as rape, murder, fraud etc. • trial by indictment – the Crown Court – before a jury • pre-trial legal argument stage – beneficial for the accused because the case can be dismissed before trial due to unreliable evidence or witnesses • the judge has to assess whether the evidence is sufficient for a possible conviction by jury • if a ‘not guilty’ plea is entered, and the evidence is considered reliable, the case proceeds to trial

26. Indictable offences – trial by jury • a jury of 12 is sworn in • after cross-examination, the judge sums up the evidence and the facts of the case to the jury and the jury retires • unanimous verdict – no longer required, but instead a majority of 10 out of 12 jurors • if more than 2 jurors are opposed – ‘hung jury’ – trial abandoned • the prosecution may request a retrial • if the jury convicts, the judge proceeds to sentence

27. Indictable offences (cont.) • upon conviction, the trial judge decides on the leave to appeal • if granted, the convicted person may appeal before the Court of Appeal

28. Triableeitherway – pros • Maximumprison sentence: 6 months for one offence, 12 months total • Juriesfinddefendantsnotguilty more oftenthanmagistrates • Harder to convince 10 jurorsofguiltbeyondreasonabledoubtthan 1-3 magistrates Magistrate’s court Crown court

29. Thank you for your attention!