Comparative Law Spring 2002 Class 39

1. Comparative Law Spring 2002Class 39 Columbus School of Law The Catholic University of America Professor Fischer April 24, 2002 ENGLISH CRIMINAL PROCEDURE EUROPEAN UNION LAW

2. Today’s Class • English Criminal Procedure

3. Crown Prosecution Service • What is the Crown Prosecution Service?

4. Crown Prosecution Service • What is the Crown Prosecution Service? Created in 1985, it is a government prosecution service independent of police • Advise police on prosecutions, review prosecutions started by police, prepare cases for court, prosecute cases in magistrates courts and sometimes Crown Court, instructs barristers to appear in Crown Court • Must they prosecute all offenses?

5. Prosecutorial Discretion • The CPS does not have to prosecute al offenses, though the decision can be challenged and reasons must be given • Many complain that the CPS is underfunded and overworked, drops too many cases, and is institutionally racist and sexist.

6. Plea Bargaining • Is plea bargaining permitted in the English legal system?

7. Right to Silence • To what extent is there a right to silence in English law?

8. Preventing Miscarriages of Justice • What is the Criminal Cases Review Commmission, and what does it do?

9. Some Suggested Reforms • Lord Justice Auld’s Report (Sept. 2001) • This slide and the next 2 slides contain some of Auld’s suggestions for reform. • One unified criminal court to replace Crown and magistrates court with 3 Divisions to try 3 types of offenses (Crown Divison: indictable; District Division: more serious either-way; Magistrates Division: summary and less serious either-way • Centrally funded executive agency responsible for administration of all courts (civil and criminal)

10. Some Suggested Reforms • Defendant should no longer have an elective right to trial by judge and jury in “either way” cases; this should be the responsibility of the magistrates’ court (or division) alone • Defendants in the Crown Court should be able to opt for trial by judge alone • In complex fraud cases judge should have the power to try case by judge alone with 2 lay people • In youth cases, judge should have the power to try cases by judge alone with 2 youth panel magistrates

11. Some Suggested Reforms • No extension of justices’ clerks case management jurisdiction • Juries should be more representative of national/local communities and no one should be ineligible (though there would be a discretionary power of deferral/excusal). Where race is likely to be relevant to an issue in the case, there should be provison to enable ethnic minority representation on juries

12. European Union Law and English Law • EU law has limited traditional English doctrine of parliamentary sovereignty – see especially Factortame No. 4 • English courts must interpret and apply EU law: • 1. EU Treaties and regulations are directly applicable, but EU statute comes into UK law through delegated legislation • 2. ECJ judgments are also a source of EU law

13. EU Members • How many Member States? • Which are they?

14. EU Members • How many Member States? 15: Belgium, Netherlands, Luxembourg, France, Germany, United Kingdom, Ireland, Spain, Portugal, Sweden, Greece, Italy, Denmark, Finland, Austria • 13 countries have applied to join. There could be 27 members from 2010

15. Major EU Treaties • Treaty of Rome (one of original treaties) • Single European Act (creates single European market) • Maastricht (economic & monetary union) • Treaty of Amsterdam (power shifts; shift policy from Justice & Home Affairs to EC in areas of immigration & passport control)

16. Main EC Institutions • What are the main EC Institutions?

17. Main EC Institutions • What are the main EC Institutions? • 1. Parliament directly elected members. Not the legislature though has some legislative role. • 2. Council – 1 minister from each Member State; function: to ensure Treaty goals are carried out • 3. Commission- 20 members. EC executive/watchdog • 4. Court of Justice – EC judicial branch - 15 judges and 8 Advocates-General. Also a Court of First Instance. Uses very French procedure and mix of substantive law. Wide powers of interpretation.

18. Preliminary Rulings • ECJ gives preliminary rulings when requested by national court or tribunal (Art. 234 (originally 177). • Court must think ruling of ECJ is necessary to make decision or the EU issue must arise in proceedings in courts of last resort • English courts should refer if they are not completely confident as to how the issues can be resolved, but sometimes decline to refer

19. Types of EC Legislation • Regulations, Directive and decisions are binding. • Recommendations and opinions are not. • Recommendations have general application and direct effect. Directives are binding on MS to whom addressed. MS must implement through national law. Decision binding on whom it is addressed to.

20. Direct Effect • Question is whether individual can directly enforce obligations before national courts • Some treaty provisions are directly effective, some horizontally (between citizens), some vertically (between citizen and state) • Regulations are directively effective • Directives can be vertically directly effective, but probably are not horizonally directly effective. However, national courts are supposed to interpret implementing national legislation and other national legislation in conformity with EU law – even if national law is prior to directive.

21. Damages for Non-Implementation • ECJ has held that in some situations a citizen of a MS may be able to obtain damages in national courts from a MS which has failed to implement a directive (Frankovich) • ECJ has also held that a claim for damages can be brought in some situations in national courts against a MS where national legislature has passed a law that violates EC law (Factortame 4). Later cases make it unclear how grave the violation must be