Introduction Flashcards
- The criminal justice system
What’s the difference between criminal law and the criminal justice system?
Substantive criminal law is concerned with learning to identify criminal offences and how to apply
the law to the facts.
Criminal Justice Process
The criminal justice process involves litigation, evidence and sentencing from the initial allegation
right up to trial and possible conviction. It commences when a person is alleged to have
committed a prohibited act
This will generally result in the defendant being arrested, taken to a
police station and detained. Following a police interview, should the evidence allow, the defendant
will be charged and appear before a magistrates’ court.
Entering a plea
(a) If they plead guilty, the court moves to sentence.
(b) If they plead not guilty, there is a trial and the court comes to a verdict.
(i) If the verdict is guilty, the defendant must be sentenced.
(ii) If they are not guilty, the defendant is acquitted of the charge and is free to go. A person who is sentenced following either a guilty plea or verdict may appeal.
1.2 What types of offences are there?
Different ways to categorise criminal offences such as fatal and non-fatal offences against the person along with property offences.
However, there three classifications of offences which impacts where trial and sentencing take place: summary, indictable-only and
either way offences.
Summary Offenses (Least Serious Crimes)
Summary offences are the least serious crimes. These include offences such as assault and
criminal damage (subject to the value of damage caused). They can only be tried in the Magistrates’ Court, and the punishment that can be imposed is subject to the maximum that the Magistrates have the power to impose, currently six months’ imprisonment or up to 12 months’ imprisonment (for sentences running consecutively on two or more offences triable either way) and a £5,000 fine
Indictable-only offences
Indictable-only offences are the most serious crimes and can only be tried by a judge and jury in the Crown Court. The maximum penalty is that imposed by the statute creating or regulating the
offence. Examples include murder, manslaughter, causing grievous bodily harm with intent and
robbery.
Either-way offenses/Indictable Offenses
Offences which are ‘either way’ can be tried either in the Magistrates’ Court or the Crown Court
(also known as ‘indictable’ offences, in other words capable of being tried on indictment). The decision as to which court should try the offence is initially made by the Magistrates, in whose court all criminal cases commence.
Magistrate’s Decision
If the Magistrates decide that, on the facts of the allegation,
their powers of sentence are sufficient to deal with the matter, they will offer summary trial,
although the defendant has the right to choose trial by jury.
However, if the Magistrates conclude that the facts indicate an offence that would attract a penalty in excess of their powers, they will
decline jurisdiction. In this case the defendant loses the right to choose, and the case will go to the Crown Court. Examples of either way offences are assault occasioning actual bodily harm and
theft.
Youth v Adults Sentencing
The classification of offences is only relevant to adults. With youths, the potential sentence determines where their trial is held. Classification of offences will be something that will be more
relevant to you later in your legal studies, on criminal litigation or practice modules.
1.3 Where do the Police and Crown Prosecution Service come in?
If the harm caused is of a serious nature, we have decided that action should be taken by society rather than by the victim of that harm. While it might be reasonable to ask a person to sue to obtain money owed on a contract, it would not be reasonable to ask a victim of grievous bodily harm to fund and bring a prosecution against the perpetrator
Why not system of self-persecution?
A system of self-prosecution would
not have the efficiency that can be achieved by allowing the state to use the collective resources of society to prosecute such cases, through the Crown Prosecution Service. The state machinery, such as the police, is equipped for investigating such matters and for collecting evidence.
2.1 What is a crime?
From the earliest of times, society has regulated certain behaviour carried out by its subjects. This
regulation takes the form of offences/crimes created to check and protect society as a whole, as
well as individual interests and certain property rights.
It is not easy to define a crime but, as a starting point, we could say that a crime represents society’s interpretation of the difference
between right and wrong. It is for this reason that a crime can be thought of as a ‘public wrong’.
2.2 What are the purposes of sentencing?
Section 57(2) Sentencing Act 2020 which sets out the purposes of sentencing adults.
(2) The court must have regard to the following purposes of sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
2.3 What are the similarities and differences between criminal law and morality?
Not all unacceptable behaviour will be criminalised.
Certainly, general morality can inform the legislature on what
behaviour to outlaw: for example, it is not morally acceptable to act in such a way that results in the ‘infliction of grievous bodily harm’ on another, and there is a corresponding criminal offence
that reflects this
Example of Extramarital Sex (Morality v Criminality)
Certainly, general morality can inform the legislature on what
behaviour to outlaw: for example, it is not morally acceptable to act in such a way that results in
the ‘infliction of grievous bodily harm’ on another, and there is a corresponding criminal offence
that reflects this
Buying alcohol
In addition, there is some behaviour that will only become unacceptable in certain circumstances,
or if the person goes beyond certain limits, for example, buying alcohol under the age of 18, or
excessive consumption of alcohol in a public place
2.4 How does criminal law evolve?
- This occurs in a number of ways: the courts continue to provide guidance on how they interpret the current laws through case law
- Attitudes in our
society change, which can result in a corresponding change in the law - Government continually updates the law through amendments, repeals of existing laws, as well as the creation of new offences
Examples of the law evolving
To give you some examples of the evolving nature of criminal law, marital rape was recognised as a crime for the first time in 1991 by the courts and homosexuality was finally decriminalised in 1967 by an Act of Parliament.
Criminal Law as a Reflection of the wider context
The Macpherson report which came out of the inquiry into
the murder of the black teenager Stephen Lawrence labelled London Metropolitan Police as
institutionally racist in 1999 and yet in 2020 a House of Commons Library briefing into police
powers of stop and search suggested that Black, Minority and Ethnic people (the terminology
used in their briefing) were four times more likely to be searched by the police than white people in
2019/20.
Equality and Human Rights Commission in 2011
Counter-terrorism law and policy in the wake of 9/11 had been perceived by Muslims in Britain as targeting them ‘on the basis of their religion, rather than any form of immediate threat or suspicion’
Hillsborough disaster in 1989,
A third and final example is that despite over 30 years of the families and survivors campaigning for justice and criminal accountability for the deaths of the 96 football fans that died at the Hillsborough disaster in 1989, no one has been held criminally accountable
Steps to establish criminal liability = IDEA
- Identify
- Define
- Explain
- Apply
Identify
You establish criminal liability through legal analysis. From your study of substantive criminal law
you will use learn to identify behaviour which could give rise to criminal liability, the relevant
offence(s), and the rules which govern such offences. For example, for the lawyer, it is never enough to simply call someone a thief. It must be proved, beyond reasonable doubt, that, in accordance with s 1(1) Theft Act 1968, the defendant dishonestly appropriated property
belonging to another with an intention to permanently deprive the other of it.
Define
You must know how crimes are defined, in terms of what guilty action or omission the defendant
needs to have committed and what guilty mind the defendant is required to have.
Explain
You need to be able to explain what is required by case law or statute for each element of the offence in order to determine this.
Apply
You must then be able to apply this knowledge to your given facts so that you may assess and advise your particular client on the strengths and weaknesses of the allegation(s)
Determine Availability
You must also be able to determine the availability of any particular defence which could be used to justify or excuse what would otherwise be criminal behaviour. An example would be a defendant who hits someone, but does so in self-defence. You might need more information in order to provide more definitive advice.
Job of the lawyer
It is not the lawyer’s job, whether acting for the prosecution or the defence, to simply endorse an
allegation made against the defendant. The job of the lawyer requires that we are able to analyse
and test the accusation against the requisite law.
3.2 Summary
- Identify:
- The defendant
- The defendant’s act or omission
- The offence
- Define the law: The actus reus (guilty act/omission) and mens rea (guilty mind) of the offence.
- Explain the law with the help of statute and/or case law.
- Apply the law to the facts of the case.
Make such conclusions that you are able to and indicate any additional information you might
need to provide more definitive advice on criminal liability.
3.3 What is the difference between civil and criminal law
Civil and Criminal are two distinct areas
Why is it not easy to distinguish?
This is not always easy, partially because there is a significant overlap between the two. The same action
can be both a civil wrong (often a tort) and a criminal offence. If Fred punches Jim, Fred can be
prosecuted for the offence of battery, and can also be sued for the tort of trespass to the person.
Despite this, it is possible to set out some principal differences.
Key differences
- Crime is seen as a public wrong (in the example above, the public interest lies in the prevention of
such actions), whereas a civil wrong is a private matter to be resolved between the parties. - Any member of the public could
prosecute Fred for the offence of battery (although in practice this will be conducted by the state in the form of the Crown Prosecution Service). However, only Jim, as the person who has suffered the trespass, could sue Fred in tort. - The commission and successful conviction for a crime will result in punishment, such as a fine
payable to the state, imprisonment, or sometimes both. By contrast the defendant in an action for
tort or breach of contract will be liable to pay damages to the injured party or be required to
comply with the terms of an injunction.
3.4 To what standard do crimes need to be proved?
Beyond Reasonable Doubt
It is for the prosecution to prove every element of the crime ‘beyond reasonable doubt’
(Woolmington v DPP [1935] AC 462). This is true even in relation to most defences such as selfdefence. Here, the only requirement placed on the defendant would be to raise the possibility that self-defence applies; thereafter it is up to the prosecution to prove that the defence does not
apply.
Defendant has the burden of proof
In those rare situations where the defendant has the burden of proof, such as the defence of
diminished responsibility in murder, the standard of proof which the defence must meet is loweron the balance of probabilities.
The standard direction given to juries on the standard of proof does not in fact refer to the phrase
‘beyond reasonable doubt’.
What do Juries ask?
How does the prosecution succeed in proving the defendant’s guilt?
Answer
The answer is – by making
you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of ‘Guilty’. If you are not sure, your verdict must be ‘Not Guilty’. (Judicial Studies Board Guidelines)
