English for social workers I session 4, 28 oct 2013

1. English for social workers Isession 4, 28 oct 2013 Miljen Matijašević E-mail: miljen.matijasevic@gmail.com Office: G10, room 6 (1st floor) Tue, 11:30-12:30

2. Today’s session • Revision of the last session • Criminal Procedure in the UK • TheSignificanceof a Constitution / TheConstitutionoftheRepublicof Croatia

3. Revision of the last session Legal Aid – Civil Procedure in the UK

4. Revision – Legal Aid What do the following terms refer to? What are their Croatian equivalents? Litigation Income Query Assets Defamation Eligible

5. Revision – Legal Aid Answers Litigation – parničenje Income – dohodak Query – upit Hire-purchase – kupnja na otplatu Assets – imovina Defamation – kleveta Eligible – kvalificiran, pogodan

6. Revision – Legal Aid What two types of legal aid do people usually need? What are themeansandmerittests? What are some tasksofthe Legal ServicesCommission? What types of cases (do not) usuallyqualify for free legal aid?

7. Revision – Civil Procedure What is the civil procedure? Who are the parties? Is the state involved? What are the possible remedies in civil cases? What is a summons? 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?

8. Criminal Procedure in the UK Unit 10

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

10. 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

11. 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

12. 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

13. 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

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

15. 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

16. 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.

17. 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

18. 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

19. 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

20. 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)

21. 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

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 • ‘No case to answer’ also available

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

28. Vocabulary practice

29. Vocabulary practice 1 Explain and translate the following legal terms • INDICTABLE OFFENCE • OFFENDER • RE-OFFEND • LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE • WARRANT OF ARREST • UNLAWFUL ARREST • DEPRIVE sbd OF LIBERTY

30. Vocabulary practice 1 Explain and translate the following legal terms • INDICTABLE OFFENCE – teško kazneno djelo • OFFENDER – počinitelj kaznenog djela • RE-OFFEND – ponovno počiniti kazneno djelo • LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE – pravno prihvatljivi i pouzdani dokazi • WARRANT OF ARREST – uhidbeni nalog, nalog za uhićenje • UNLAWFUL ARREST – protupravno uhićenje • DEPRIVE sbd OF LIBERTY – lišiti nekoga slobode

31. Vocabulary practice 2 Explain and translate the following legal terms • SUMMARY OFFENCE • TRAFFIC VIOLATION • ACQUITTAL • INITIATE A CRIMINAL PROCEEDING • PROVE GUILT BEYOND REASONABLE DOUBT • ALLEGED CRIMINAL

32. Vocabulary practice 2 Explain and translate the following legal terms • SUMMARY OFFENCE – lakše kazneno djelo • TRAFFIC VIOLATION – prometni prekršaj • ACQUITTAL – oslobođenje optužbe • INITIATE A CRIMINAL PROCEEDING – pokrenuti kazneni postupak • PROVE GUILT BEYOND REASONABLE DOUBT – dokazati krivnju izvan svake sumnje • ALLEGED CRIMINAL – navodni počinitelj kaznenog djela

33. Translationpractice

34. 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.

35. 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.

36. TheSignificanceofConstitutionandConstitutionalityin a DemocraticSociety TheConstitutionoftheRepublicof Croatia Unit 12

37. What is a constitution? • the supreme legal act, to which legislation and other regulations must conform • the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it • a written instrument embodying the rules of a political or social organization

38. Importanceofconstitutions • Laysdownthekeyprinciples on which a society, politicaland legal system are built • Setsouttheorganisationofgovernment • Guaranteesrightsandfreedomsofitscitizens • Strategicpoliticalactof a state andof a people • Legitimizes a democratic state beforetheinternationalcommunity • Facilitatesstability

39. Typesofconstitution federal (multilayered) * written * rigid unitary * unwritten * flexible

40. TheConstitutionofthe UK • Not a singledocument • Unwritten – containedinmaypiecesoflegislation (statutes), caselawandconvention (!) • Monarchy BUT Parliamentarysupremacy • Parliament – makeslaws, appointstheexecutive, thejudiciary

41. The Constitution of the Republic of Croatia • Promulgated on 22 December 1990, amended in 1997, 2000, 2001 and 2010 • Contains the following sections: • Historical foundations • Basic provisions • Protection of human rights and fundamental freedoms • Organization of government • The Constitutional Court of the Republic of Croatia • Local and regional self-government • International relations • Amending the Constitution • Final provisions

42. The Constitution of the RC • Historical foundations • Outlines the history of the Croatian state, i.e. the political idea of Croatia as an independent state from the 7th century onwards • Draws upon the legacy of the rejection of communism and the political changes in the late 1980s and of the Homeland War “Respecting the will of the Croatian nation and all citizens, resolutely expressed in the free elections, the Republic of Croatia is hereby founded and shall develop as a sovereign and democratic state in which equality, freedoms and human rights are guaranteed and ensured, and their economic and cultural progress and social welfare promoted. “

43. The Constitution of the RC • Basic provisions • Define the Republic of Croatia as a unitary and indivisible, sovereign democratic and social state • Lay down the most fundamental features of the state: organisation of government, democratic principles, separation of powers, political parties, armed forces, the national flag, coat of arms, anthem, language and script, and the capital city

44. The Constitution of the RC • Protection of human rights and fundamental freedoms • Set out the fundamental rights and freedoms of Croatian citizens • Transpose the provisions of the UN Convention of Human Rights • equality before the law, presumption of innocence, right to a fair trial, right to appeal court and administrative decisions, etc.

45. The Constitution of the RC • Protection of human rights and fundamental freedoms • the right to life (prohibits the death penalty), freedom, freedom of movement, private life, communication, religion, beliefs, etc. • economic and social rights (work, property, social security, strike, family relations, education, etc.)

46. The Constitution of the RC • Organization of government • These provisions lay down the organisation, rights, duties and powers of: • the Croatian Parliament, • the President of the Republic of Croatia, • the Government of the Republic of Croatia, • the Judiciary, and • the State Attorney’s Office

47. The Constitution of the RC • The Constitutional Court of the RC • Consists of 13 judges, appointed by the Croatian Parliament for an 8-year mandate • Selected from the ranks of reputable jurists, judges, state attorneys and attorneys • Not an actual court within the RC court system

48. The Constitution of the RC • The Constitutional Court of the RC • The Court’s main tasks are as follows: • to decide on the conformity of laws with the Constitution, and of other regulations with the law and the Constitution • to decide on constitutional complaints against individual court or administrative decisions (e.g. If the violate human rights and fundamental freedoms, etc.) • to decide on jurisdictional disputes between the 3 branches of government • to decide on the impeachment of the President of the RC • to supervise the constitutionality and legality of elections and referenda

49. The Constitution of the RC • Local and regional self-government • This section regulates the right to local and regional self-government, the division into local administrative units (counties, municipalities, cities), local elections • Lays down the scope of competence of local self-government units, such as the organization of housing and urban planning, public utilities, child care, social welfare, primary health services, education and elementary schools, culture, physical education and sports, etc.

50. The Constitution of the RC • International relations • Concerns the areas of international agreements and association and secession • IA – regulates competence over and the ratification of international agreements, according to their content • Association and secession – regulates the procedure of acceding to alliances with other states – who can initiate the procedure and the number of votes in Parliament, i.e. on the referendum are necessary for such a decision to be passed