Unit 4 Flashcards
Formal legislative process
Legislation is made through acts of parliament they’re introduced by government and drafted by lawyers in civil service.
Green paper
On major issues a green paper may be issued by a minister who has responsibility. It is a constitutive document on a topic in which the government’s view is put foward with proposals for law reform
Interested parties are then invited to send comments to the relevant government departments so full consideration of all sides can be made and necessary changes can be made
On major issues a x paper may be issued by a minister who has responsibility. It is a constitutive document on a topic in which the government’s view is put foward with proposals for law reform
Green paper
Interested parties are then invited to send comments to the relevant government departments so full consideration of all sides can be made and necessary changes can be made
White paper
After consultation on a green paper a white paper will be published which is the firm proposal for a new law. Allows for a draft act called the bill to be presented which starts in HOC or HOL
Role of House Of Commons
650 constituencies
A bill will only become an act of parliament if it successfully completes all the necessary steps in parliament. Bills are debated in the HOC, if voted against then it’ll be the end of the bill
During the course of a bill through the HOC, there will be debates on issues of the policy as well as specific details of the bill
Role of the House of Lords
The HOL act as a check on the HOC
All bills go through the HOL as well as the HOC and they can vote against proposed changes to the law.
In some cases, this may alert the HOC to a problem with the proposal and it will be dropped or amended
7 stages of lawmaking
1- Consultation stage
2- first reading
3- second reading
4-committee stage
5- report stage
6- third reading
(Repeat in other house)
7- royal assent
Stage 1 of law making (consultation stage)
The government makes a stage of the bill and asks senior officials to make comments , along with members of the public and pressure groups
The government makes a stage of the bill and asks senior officials to make comments , along with members of the public and pressure groups
Consultation stage (1)
Stage 2 of law making (first reading)
The government announces the bill by reading its title and the main aims. A formal vote is taken
The government announces the bill by reading its title and the main aims. A formal vote is taken
First reading (2)
State 3 of law making (second reading)
This is the main debating stage where MPs can discuss the bill, ask questions and vote on it. It could be voted out at this stage.
The main debating stage where MPs can discuss the bill, ask questions and vote on it. It could be voted out at this stage.
Second reading (3)
Stage 4 of law making (committee stage)
A smaller group of MPs look at the bill in detail. They may make changes called amendments based on their discussions
A smaller group of MPs look at the bill in detail. They may make changes called amendments based on their discussions
Commitee stage (4)
Stage 5 of law making (report stage)
Amendments made during the committee stage are reported to everyone in the HOC. MPs may vote on these amendments
Amendments made during the committee stage are reported to everyone in the HOC. MPs may vote on these amendments
Report stage (5)
Sixth stage of law making (third reading)
Overall consideration of the bill in the House of Commons and final votes are made to decide whether the bill goes any further
Overall consideration of the bill in the House of Commons and final votes are made to decide whether the bill goes any further
Third reading (6)
6.5 stage of law making (other house)
The bill then goes to the other house and the 6 stages are repeated
Any amendments have to passed back to original house to consider and approve.
This can lead to ‘ping pong’ between houses where a bill is passed back and forth until both agree
Seventh stage of law making (royal assent)
The ruling monarch signs off the bill as a new law aka an act of parliament
The ruling monarch signs off the bill as a new law aka an act of parliament
Royal assent (7)
Statutory interpretation
If a word or phrase is unclear a judge must decide its meaning. Judges in higher courts bind (compel to follow) those in lower courts. Such lower courts must follow the interpretation of senior judges
Therefore when there is some ambiguity in the words of a statue, a higher court judge will be called upon to resolve
Judges can use different rules of interpretation and in doing so can establish new laws, for example, the literal, golden and mischief rules and rule of interpretation
If a word or phrase is unclear a judge must decide its meaning. Judges in higher courts bind (compel to follow) those in lower courts. Such lower courts must follow the interpretation of senior judges
Statutory interpretation
Whitely vs Chappell
Chappell was accused of impersonating any person entitled to vote, in which they had pretended to be a person who was on the voters list but who had died
The judge interpreted the statute and found the defendant not guilty since a dead person isn’t entitled to vote
X was accused of impersonating any person entitled to vote, in which they had pretended to be a person who was on the voters list but who had died
Whitley v Chappell
The judge interpreted the statute and found the defendant not guilty since a dead person isn’t entitled to vote
Judicial precedent
If a judge finds that there has been a previous decision by a higher or same level court in a similar case they must follow it
If no precedent has been set then the decision made by that judge sets the original precedent which others should follow in a similar case
If a judge finds that there has been a previous decision by a higher or same level court in a similar case they must follow it
If no precedent has been set then the decision made by that judge sets the original precedent which others should follow in a similar case
Judicial precedent
How does judicial precedent work
The judge will need to look for important similarities between cases
Ie. In a case involving a road accident some features would be unimportant like the colour of the car. However the speed and conditions could all be important factors
If there are no material differences, a previous decision will act as a precedent and if it was made in a higher court it is a binding precedent (one that must be followed)
Binding precedent
If the precedent was made in a higher hours then it is a binding precedent and must be followed by lower courts
Donogue v Stevenson
The plaintiff suffered through finding the remnants of a decomposed snail in a bottle of ginger beer which she was drinking. She sued the manufacturer.
It was held that the manufacturer owed his consumers a duty of case since he and they were ‘neighbours’ in law
This was the original precedent and since 1932 the law of negligence has developed from it and many cases have been bound to follow it
The plaintiff suffered through finding the remnants of a decomposed snail in a bottle of ginger beer which she was drinking. She sued the manufacturer.
Donogue v Stevenson
It was held that the manufacturer owed his consumers a duty of case since he and they were ‘neighbours’ in law
This was the original precedent and since 1932 the law of negligence has developed from it and many cases have been bound to follow it
Daniel’s v white
The claimant bought a bottle of lemonade and when it was drunk he felt a burning reaction in his stomach
The lemonade was found to have corrosive metal in it
The case of Donogue V Stevenson was used when suing for compensation even though the facts were slightly different
It was sufficiently similar to the purpose of the precedent as the manufacturer had let harm come to a customer due to negligence
The claimant bought a bottle of lemonade and when it was drunk he felt a burning reaction in his stomach
The lemonade was found to have corrosive metal in it
Daniel’s v white
The case of Donogue V Stevenson was used when suing for compensation even though the facts were slightly different
It was sufficiently similar to the purpose of the precedent as the manufacturer had let harm come to a customer due to negligence
Hierarchy of courts
1) Supreme
2) Appeal
3) Crown court and High court
4) Magistrates (and youth) and county court
Summary of criminal justice procedure
Law creation
Police enforce the law and investigate breaches
CPS will advise the police
Suspect brought before the court
Defendant released on bail or put in custody
If convicted a formal punishment will be decided
Hm prison service overseas the welfare of prisoners
When released a prisoner is under supervision by NPS
Public bills
Most common type of bill and refers to a law which applies to the general public. Bills are mostly out foward by gov ministers on behalf of their party
Most common type of bill and refers to a law which applies to the general public. Bills are mostly out foward by gov ministers on behalf of their party
Public bills
Private members bill
Public bills introduced by MP’s and Lords who are not gov ministers. As with other public bills their purpose is to change the law as it applies to the general population.
Public bills introduced by MP’s and Lords who are not gov ministers. As with other public bills their purpose is to change the law as it applies to the general population.
Private members bill
Private bills
These are normally put foward by an organisation or a private company. This type of bill will only affect certain groups of people instead of the general public
These are normally put foward by an organisation or a private company. This type of bill will only affect certain groups of people instead of the general public
Private bill
Hybrid bills
These are combination of private and public bills by proposing something that affects the public but will also have a significant impact for specific individuals or groups
These are combination of private and public bills by proposing something that affects the public but will also have a significant impact for specific individuals or groups
Hybrid bills
Role of the ministry of justice
Sets and carries out government policy for the justice systems
Responsible for provision of legal aid, administration of justice through courts and tribunals, detention and rehabilitation of the offenders
(Protect the public and reduce reoffending)
Purpose of the MOJ
•To protect and advance the principles of justice
•To deliver a world class justice system
•To work together with other government departments and agencies to bring the principles of justice to life for everyone in society
•To work to ensure sentences are served and offenders are encouraged to turn their lives around
Role of police
Maintaining law and order, protect members of the public and their property and prevent detect and investigate crime
Key roles carried out by police
• protecting life and property
•preserving order
•preventing the commission of offences
•bringing offenders to justice
Governed by PACE 1984 and The Human Rights Act 1998
How many constabularies in England and Wales
43
Responsibilities of police (markscheme)
•responsible for enforcing the law and taking action against those who break it
•arrest, detain and question suspects in accordance with legal obligations
•investigating who had committed a crime
•provide a policing service to the community
•work in partnership with other organisations
•testifying in court
Role of CPS
•Advising the police on cases for possible prosecution
•reviewing cases submitted by police
•where the decision is to prosecute, determining the charge
•preparing cases for court
•CPS is responsible for prosecuting the offence in court
Role of HM prison service
Keep those sentences to prison in custody helping them lead law-abiding lives both in prison and when they’re released
They run 104 of the 117 prisons
Responsibilities of HM Prison service
•Managing prison and probation services
•supporting effective offender management
Who owns the 14 privately owned prisons
G4S (4)
Sodexo (4)
Servo (5)
Who owns the 13 privately owned prisons
G4S (4)
Sodexo (4)
Serco (5)
Role of NPS
They supervise high risk offenders released into the community
Previously privatised with 21 companies but is fully public since 2020
Priority is to protect the public by the effective rehabilitation of high risk offenders by tackling the causes of offending and enabling them to turn their lives around
Responsibilities of the NPS
•managed by the National offender management scheme and is responsible for commissioning prison and probabtion services
•work with around 30,000 offenders a year
•make sure people serve their sentences
•works with prison service prior to release of a prisoner
•support and liaise with victims
•anyone released from prison after serving between 2 days and 2 years must be supervised by NPS for at least 12 months
Court of first instance
Refers to a court where the case will be tried in full for the first time
(Crown and magistrates court)
Category of offence : court
Indictable = crown
Triable either way = crown or mag
Summary = magistrates
Responsibilities of magistrates court
95% of all criminal cases are dealt with in magistrates court
•Try all summary cases
•Try any truable either way offences
•deal with first hearing of any indictable offences
•deal with side matters including warrants
What can magistrates do
Can pass maximum sentences up to 12 months
Impose fines up to £5,000
Cases heard by volunteer laypersons
Crown court
Established by the crown courts act 1971
Second criminal court of first instance and heard trials in indictment
The youth court
Deals with cases involving 10-17 year olds
Part of magistrates court
Heard by 3 magistrates (one usually female) and is not open to public
Deals with less severe youth cases and may give a range of sentencing including community sentences and detention orders
Responsibilities of the judge
•trial system is adversarial (judge acts as referee)
•the judge has to ensure the jury understands the evidence
•advise jury on how to apply the law
•ensure a fair and human rights compliant trial
•decide sentence
•under criminal justice act 2003 it’s possible for a judge to sit without a jury to determine a verdict
The role of the sentencing council
Promotes greater consistency in sentencing whilst maintaining the Independence of the judiciary
They provide guidelines on sentencing for the judiciary and criminal justice professionals and and to increase public understanding of sentencing
Also compile statistics of crime and justice for the home office
Role of formal punishments
Formal punishments are designed too
•punish the offender
•protect the public
•change the offenders behaviour
•get the offender to make up for their crime
•cut future crime
5 Types of sentences
Conditional discharge
Fine
Community sentence
Suspended sentence
Custodial sentence
Conditional discharge
No further sanction is long as the offender stays out of trouble for the duration of the discharge period
Fine
The level of the fine is usually related to the seriousness of the offence and must be paid within a set period of time
Community sentence
This places them under the supervision of the NPS and there will be a range of requirements that must be completed (eg unpaid work) can last from 6months to 3 years
Suspended sentence
A prison sentence will be imposed but suspended for a defined period of time. As long as the offender stays out of trouble there is no further sanction
Custodial sentence
Magistrates can only impose custodial sentences for up to 12 months. Only judges in the crown court can impose longer sentences including life sentences for very serious offences
Relationship between police and government
Police are funded by the government / ministry of justice also from local governments
Governments are responsible for creating laws which the police then determine
The home office overseas the police force and often create new strategies and initiatives to improve policing and improve public safety like PREVENT
Relationship between police and cps
Police will seek advise from the cps
They’ll work together in prosecuting offenders
Cps will review cases submitted by police and prepare the case
Cps offered cps direct to the police
Relationship between police and courts
Police will work with courts to ensure that defendants are brought before them
In order for police to get certain powers they must make an application to the magistrates court
Can be called to court to provide evidence
May set bail conditions that require police involvement
Relationship between police and NPS
Both work together in management of an offender including attending meetings
Police will arrest a prisoner recalled to prison while on probation
MAPPA: the police work with the probation and prison services to manage violent and sexual offenders to protect the public from harm
Relationship between police and HMP prison service
Ensure those sentenced to custody are taken there
Arrest a prisoner if recalled on license
Search for and return an escaped prisoner
MAPPA
Crime in prison referral agreement: the prison should contact the police immediately if there is a serious incident/crime. Police will investigate and liaise with the prison
Relationship between police and charities
Crimestoppers work with police giving power to ppl encouraging them to speak up. Schemes such as “fearless” which used social media to educate youth about consequences surrounding criminality
Relationship between CPS and government
Cps are funded by government (tax)
And they will charge suspects that break the laws set by the government
Relationship between CPS and courts
They will review cases submitted by police and prepare them for court
They’ll appear in the courts to present the case for prosecution
Cps may assist a judge with information to establish a legitimate reason for withholding bail
Relationship between CPS and NPS
Cps will provide information on the offence to the NPS so they can write the pre sentence report
Cps will be advised by the NPS on the suitability of an offender for bail
Relationship between CPS and prison service
Crime in prison referral agreement- cps will review crimes committed in prison to see whether the prison disciplinary system can deal with the offence or whether it should be referred to police
Relationship between CPS and charities
Victim support also supports the witnesses and victims via the witness care unit who have made evidential statements and who may be called by the prosecution to give evidence at a court hearing
They liaise between the witness, police, courts and the CPS it is the main provider of court and prosecuting based information for the victims once the case enters the CJS
Relationship between courts and government
•The ministry of justice works with the courts to probed legal aid, administer justice and provide detention or rehab
•The government allows legislation to be used in courts as without laws there would not be a court process
•The gov funds the courts with money obtained via tax
•Courts Contributes by the judiciary to law creation through judicial precedent and statutory interpretation
Relationship between courts and NPS
Probation officers will attend the court hearing and provide advice about any breaches.
They may be called upon to prepare a pre-sentence report for the court especially of the court is considering imposing a probation order
The judge or magistrate could order such a probation report
Relationship between courts and prisons
Liaison with the prison/independent security firms and prisons to ensure safe delivery of prisoners to court
Arrangements of video links if a prisoner is not to attend their court hearing and return to prison
It is the judge who sets a the term of imprisonment including the length
Those defendants who have been denied bail by the courts will remain in prison
Relationship between Courts and charities
Victim support provides services to ensure that victims are given the support that they need before during and after court.
They also support witnesses and victims via witness care unit who have made evidential statements and who may be called by prosecution to give evidence in court
They liaise between the witness, police, courts and the cps. It is the main provider of court and prosecution based information for victims once case is in court
Relationship between governmentand NPS
The ministry of justice are in charge of the NOS so they ensure strategies and procedures are in place which enable the probation served the ability to help offenders
NPS is government funded via tax
Relationship between prisons and NPS
Overseeing all prisoners once released if on license or parole
They may liaise with prison when an offender is about to be released.
They attend meetings in prison and provide prison governors with reports that help determine either a prisoner should be released and under what conditions
Overseeing all prisoners who have served a sentence up to 2 years for min of 12 months
MAPPA: police work with NPS sharing information with other agencies to assess and manage violent and sexual offender
Relationship between charities and NPS
Nacro: campaigned for an increase in the discharge payment which is critical for people to buy the basics in the first few days after release. In may 2021, the government increased the discharge payment from £46 to £76
Trailblazers: charity set up to mentor young offenders with the primary objective of helping to reduce their reoffending. This hey provide weekly 1 on 1 mentoring both in prison and after release
Relationship between prisons and government
The ministry of justice would set the responsibilities and policies as they oversee all state prisons
The government oversees the budget for state prisons and will provide some grants to private prisons
The government also ensures that all prison officers have enough power to enforce the law and are able to do so safely while not risking their lives
Relationship between prisons
and charities
The prison reform trust is a charity which works to create a just, humane and effective penal system. According to its websites it aims to improve prison regimes and conditions, defend and promote prisons human rights. Address the needs of prisoners families and promote alternatives to custody
Howard league for penial reform: aims are less crimes safer communities and less people in prison.
They have run many campaigns including their campaign ‘books for prisoners’ the charity won an award for this campaign in 2015
2 models of criminal justice
Crime control model
Due process model
Crime control model of crime
•Reducing crime by prosecuting those who are guilty
• emphasis put on facilitating criminal investigations and pursuit of offenders
•less emphasis placed on suspect rights and that they hamper police work
•therefor can be viewed as a conveyor belt with the conviction of innocent tolerated because of ultimate goal of convicting the guilty overused civil liberties
•removal of double jeopardy rule
•anti terrorism legislation
•stop and search rights
•surveillance
Due process model
Inherited ideas inherited in the rule of law
Emphasised the rights of defended through the principles of the presumption of innocence the defendants right to a fair trial equality before the law and that justice should be seen to be done
Due process can be purified as an obstacle course in that the rights of defendants are emphasised and procedures are in place to ensure the CJS agencies operate to protect the defendants rights.
The protection given to defendants is to ensure the innocent are equitted and the guilty are convicted
•PACE, human rights, CJA, equality act
•free legal aid and pre trial
What model do left realists believe in
They belive that economic issues and social inequality is responsible for crime therefore due process as individuals need to be given appropriate representation and fair investigations
What model do right realists believe in
Focus on individual rather than society and their personal responsibility therefore crime control as ‘if you can’t do the time don’t do the crime’
Individuals should be accountable and the cja should be streamlined and efficient
What model would Lombroso believe in
Criminal behaviour is determined by biological factors so crime controls as society needs to be protected from people with atavistic features so anyone committing a crime needs to be punished asap
What model do Marxists believe in
Emphasised the role of class struggles and the exploitation of the working class by the ruling class
CC- selective law inforcement
DP- if your middle or upper class you get lenient sentencing (Lavinia Woodward)
What model does the Colin stagg case support
Cc- police had too much power and his rights were violated
DP- judge threw out the case because of honey trap
What model does the stephen Lawrence case support
DP- macpherson enquiry into investigation of case which led to changes. Suspects too protected by criminal justice system
Cc- removal of double jeopardy
What model does the London riots case support
Cc- harsh sentences to protect the public and to deter other people from comiting a crime
What model does the Simon Jenkins case support
DP- fair trial, appealed verdict and was equitted so clearly his rights were protected
Cc- convicted for a crime he didn’t commit (presumed guilt)
What is social control
The ways in which people’s thoughts feelings and behaviour are regulated in social systems
Involves forms of pressure to persuade or compel members of society to conform to the rules
Control theory
Being able to understand why People are law abiding will enable us to understand why others aren’t (how their situation has differed)
Control theorists believe crime is result of when the individuals bond to society is weak or broken
Belief that humans suffer weaknesses which make them unable to resist temptation to turn to crime
Social bond theory overview
Hirshi
There are social bonds with other people that encourage them to Excersise self control and restraint them from committing crime
4 social bonds
Attatchment
Commitment
Involvement
Belief
Attachment (social bond)
How much do we care about what others think. We may particularly care about what our friends and family’s may think if we commit crimes. Strong social attatchments encourage conformity and weak ones leave people free to engage in deviance
Commitment (social bond)
What have we got to lose? If we have a good job comiting a crime puts a lot at risk
Involvement (social bond)
Now involved with society are we? If we work and are involved in hobbies would we have time to commit crime. Those with few activities have time and energy for deviance
Belief (social bond)
To what extent do we believe obeying the law is the right thing to do. How strong is our moral code. Strong beliefs and respect for authority restrain tendencies towards deviance.
Containment theory
Reckless
Realised life contained many temptations to commit crime the individual just break through a combination of outer and inner containment. Inner containment is self control and outer is social control
Main focus was on inner containment and that he suggested could control our behaviour even when environment was changing
Parents were seen as most influential factor on control and behaviour
4 factors of containment theory
Self concept
Goal orientation
Frustration tolerance
Norm retention
Self concept (containment)
Where the individual has an image of themselves as either the type of person to adhere to the law or break it
Goal orientation (containment)
In reference to a person having a sense of direction in life, a purpose, an aspiration towards a goal which is realistic and achievable in a legitimate way
Fustration tolerance (containment)
Considers that there must be biophysical desires that urge us towards deviant behaviour that are compounded by society fustrating our success due to different opportunities available to us
Norm retention
This is the adherence and acceptance of laws, codes, norms, customs and so on
If an individual doesn’t engage with outer containment then this can result in norm erosion and lead to crime
3 forms of Internal social control
Rational ideology
Tradition
Internalisation of social rules and morality
3 forms of external social control
Coercion
Fear of punishment
Pressures
Internal social control
The thoughts and views we have regarding crime
During our lives we are influenced by people and situations and as a result we develop morals and behaviours that will influence our reaction to crime
It is our conscice that determines whether we abide by the law or not
Developed during socialisation
We conform to the rules because our sense of self respect demands it
Rational ideology (internal social control)
When people accept the ruling ideology
People used to be controlled through religious codes
These codes replaced by legal frameworks. Written laws are much more formal and more persuasive
Laws standardise what is acceptable for all members of that society no matter your belief
Traditions (internal social control)
A belief or way of acting that people in a particular society have followed for a long time
It may be your own traditions or norms that ensure you conform to the rules. Sometimes religion or culture or upbringing ensures that you don’t break the law
For example Buddhas believe in non violence to all living creatures
Internalisation of social rules and morality (internal social control)
People are able to work out for themselves their social values and what is in society and therefore dont commit
For example most of us don’t steal because we have been taught it is wrong
When we conform to rules it’s because our sense of self respect demands it
External social control
Includes all external factors that pressure coercive and scare us into conforming they are therefor outside influences that make us follow the rules
How other people or groups control our behaviour