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Pierre MET

Professeur au Dpartement des Formations Linguistiques Facult Jean Monnet

Ignorance of the law is no defence Everyone is presumed to know the law

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Section 1: Some Legal Concepts 1) English law and continental law 2) The Common law 3) Legislation 4) The doctrine of the precedent 5) The concept of natural justice Section 2: The Courts Today 1) Function of courts 2) The different courts a) the Civil courts b) the Criminal courts c) the Appellate courts Section 3: Civil Courts 1) The House of Lords 2) The Court of Appeal (Civil Division) 3) The High Court of Justice 4) The County Courts 5) The Magistrates Courts Section 4: Criminal Courts 1) Principles of English criminal law 2) Court structure and organisation a) Magistrates Courts b) the Crown Court c) the Appellate Courts d) other Criminal Courts e) Tribunals Section 5: Definition of a Crime 1) The concept of crime 2) Criminal liability 3) Classification 4) Homicides 5) Non-fatal offences against the person
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3 Section 6: Criminal Proceedings 1) Investigation by the police 2) Warrants and Summons 3) Bail and Plea bargaining 4) Prosecutions 5) Legal aid Section 7: Procedure 1) The trial of summary offences 2) Trial on indictment 3) Appeals Section 8: The judiciary,law officers,the jury 1) The government 2) The law officers of the Crown 3) Magistrates 4) Judges 5) The Jury Section 9: The Legal profession 1) Solicitors 2) Barristers 3) Queens Counsel (QC) Section 10: The Administration of Justice: punishment 1) Discipline and Punish (Michel Foucault) 2) Legal foundation for penal corrections 3) Sentences 4) Prisons 5) Transportation 6) The hulks -------------

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4 My purpose here is concerned only with England and Wales. The law affects every aspect of our lives. We live in a society which has developed a complex body of rules to control the activities of its members. In the world two legal systems predominate : those based on the laws of ancient Rome,those based on the common law of England. In order to understand the English society we are going to examine some basic features of the English legal system. It is important to remember that English law refers to the law as it applies to England and Wales. Scotland and Northern Ireland have their own distinct legal system (distinctive courts and laws). The administration to criminal justice involves not only the judiciary,but also the legislature and the executive. the Parliament prescribes what actions are to be classified as criminal and attaches maximum penalties to each of these. The Executive authorities manage the prisons,the probation service and give effect to the judgements of the courts. -------------

Section 1: Some Legal Concepts

1) English law and continental law
Before the arrival of the Norman in 1066 there was not really English law. The Anglo-Saxon system was based on the local community. Assemblies of free men called county courts or hundred courts applied local customs. The law was not uniform throughout the country. The Norman gradually replaced these courts by feudal courts. They created a uniform system of law for the whole country. Cases were settled by baronial courts or manorial courts. During this period Ecclesiastical courts were also created and settled cases by canon law. William the Conqueror sent out itinerant justices to deal with civil and criminal matters. Later England was divided into circuits. The Norman kings instituted a body known as the Curia Regis1

The Curia Regis was the central government of the kingdom, performing legislative, executive and judicial

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5 which exercised certain judicial powers. In the 13th century it gave birth to courts known as the Courts of Common Law which sat at Westminster2. The Common law of England was created by selecting certain customs and applying them in all future similar cases. Thus Common law became a very rigid system. The disappointed litigants petitioned the king who was fountain of justice . Generally the king passed the petitions to the Curia Regis . By the 15th century was established the Court Chancery ( hearings by the chancellor). The body of rules applied by the court was called Equity. As the result of the Judicature Act of 1873 the old courts of common law and the Court of Chancery were abolished and replaced by a single Supreme Court of Judicature each branch of which had full power to administer both law and equity. In case of a conflict between the rules of equity and the rules of common law the rule of Equity should prevail.

2) The Common Law (loi traditionelle ou coutumire)

Definition (Encyclopaedia Britannica) English common law or the body of customary law based on judicial decisions and embodied in report of decided cases,originated in the early Middle Ages in decision of local courts which applied custom and reason to every day disputes with the aid of but few formal enactments. English common law continued to be developed by judges as opposed to legislators and their case law continues today to decide the meaning of legislative enactments and fill in gaps in the law by declaring (in effect extending and developing) the common law. There are two elements within the English legal system itself :

functions without distinction. 2 The Common Law courts were staffed by royal judges. They developed in the following order: 1) The Court of the Exchequer (Barons of the exchequer): primarily a government department concerned with national revenue ; They dealt with dispute over taxation; 2) The Court of Common Pleas claimed jurisdiction over disputes between persons (civil disputes), e.g. in relation to land; 3) The Court of Kings Bench: the king himself used to sit at a bench with the judges to decide disputes (criminal and civil cases). Pierre MET 2002 All Rights Reserved

6 equity (the separate body of rules developed by the courts of equity) ; statute law (law enacted by the legislation).

Separation of the English legal system into two distinct departments of Common law and Equity (justice civile) is peculiar to England. Common Law is a system of national law administered by a central body of national courts. Common Law is used to refer to the law made by the judges as opposed to the law made by Parliament (case law / statute law). Equity (civil law) means what is fair and just,moral and ethical. It is a body of rules which evolved (15th,16th) to remedy the defects of the Common Law system. It was possible to appeal to the Kings conscience (equity) who could intervene as a sovereign justiciar. The King had delegated his power to the Chancellor and Equity was administered by the Court of Chancery. The intervention of the king which was made in the name of morality did not create new rules of law . The problem for the plaintiffs was that to obtain the remedies they were entitled to they had to bring two successive actions. One in damage before a common law court and another in Chancery to obtain an equitable injunction. As a result of the Judicature Acts (1873-75) the Courts of common law and the Court of Chancery were abolished and replaced by one Supreme Court Judicature3. In case of conflicts between the rules of common law and the rule of equity the rules of equity should prevail. Englishmen fully share the incomprehension mixed with aversion as far as the alien jungle of the Code Civil is concerned . Why is the Common Law so different from the law of the European continent ? The Common Law is the oldest national law in Europe (12th century,1066) and is common to a whole kingdom administered by a central court with a nation-wide competence in first instance. Continental law is more abstract and based on the laws of ancient

In English law Equity means that body of rules originally enforced only by the Court of Chancery. Petitions from persons unable to obtain justice in the common law courts were sent to the king as a fountain of justice. The two systems of law did not fused. Equity is still distinct from common law. Both are now open to a plaintiff in one action before the same court.

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7 Rome. English law prefers precedent as a basis for judgements and moves empirically from case to case from one reality to another. Judges gave reasoned explanation to justify the judgement delivered.

3) Legislation (statute law : loi crite)

The basis of English law is the common law,the principles of which are to be found in the case law built up by judges ever since the Norman conquest. To keep order and peace,the king amended or altered existing law by issuing ordinances,provisions,charters,these ordinances were in effect statutes. The rise of Parliament turned the UK into a constitutional monarchy. Many areas of the common law (civil or criminal) have been revoked or reformed by the representatives of the people. The main sources of law today is legislation which may take the form of : a) Statutes or Acts of Parliament; b) delegated legislation,mainly in the form of what are called Statutory instruments. In England unwritten law is predominant and more of English law derives from the judicial precedent than from legislative enactment. Some statutes have played a more important part in the development of the country.

Magna Carta ( 1215)

It was the first constitutional document which recognised the rights of the people of England. It guaranteed four main rights : 1) justice should not be delayed or refused to anyone ; 2) no person should be imprisoned or deprived of his property except by the lawful judgement of his equals ; 4) no person should be fined to his ruin ; 5) no person should be deprived of his means of livelihood.
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The Petition of Right (1628) :

It dealt with the main grievances of the day against Charles I (1625-1649). The abuses which were abolished were : 1) the exaction of taxes,gifts,or loans without the consent of Parliament ; 2) the imprisonment of Englishmen without due legal proceedings ; clause eight provides : that no freeman in any such manner as before mentioned be imprisoned or detained. 3) the billeting of soldiers in private houses ; 4) the proclamation of martial law in time of peace.

The Bill of Rights (1688)

It is a protest against taxation without the consent of Parliament and against arbitrary imprisonment. It excluded any Catholic from succession to the Crown and declared that the crown had no power to grant exemptions from any act of Parliament. ;

The Act of Settlement (1701)

This Act settled the question of succession to the throne and removed judges from the control of the Executive. The Act provided : 1) the king must be a member of the Church of England ; 2) he must not leave Britain without the consent of Parliament ; 3) he must not make England to go to war to defend his possessions abroad ; 4) Members of Parliament,Government officials,and grantees of Crown lands,must be native-born English men. 5) judges should be appointed not merely during the pleasure of the Crown,but for

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9 life,unless Parliament should ask the Crown to remove them for misconduct.

The Habeas Corpus Act (1679)

At his early stage this word was not connected with the idea of liberty (Habeas Corpus = que tu sois matre de ton corps). It minored the refusal of the courts to decide a matter without having the defendant present. When Parliament finally met again in 1640 it set out to curtail the prerogative claim for the power of detention. This Act guaranteed by statute Common law rights against arbitrary and wrongful imprisonment.

4) The doctrine of precedent

In English law substantive rules of law derive their authority from the following: judicial precedents,legislation,certain ancient text books and,to a very limited extent,local customs. They are called the legal sources. The doctrine of precedent is enforced in English law by the rule of stare decisis (keep to what has been decided previously).This principle requires judges to follow the ruling contained in previous judicial decisions or leading cases and to follow the decisions of higher courts. Thus a judge is confronted with a binding precedent4. These decisions,therefore make the law unless they are overturned by Parliament or by a higher court or the court itself in one of the exceptional cases in which it is free to do so. The Divisional Court of the Queens Bench Division,the Court of Appeal,the House of Lords5 consider themselves bound with some exceptions by their own decisions. This system of Case laws means that a judge decision in a particular case constitutes a precedent . This doctrine for its application requires that judges and lawyers be able to consult the relevant previous decisions.

This doctrine depends on the principle that the courts form a hierarchy. A court inferior in authority is obliged to follow a court of superior authority. 5 The House of Lords is the highest court in the country and the ultimate appeal court. Since 1972 the House of Lords is bound by some decisions of the Court of Justice of the Europeans Communities. Pierre MET 2002 All Rights Reserved

10 From the beginning all these decisions were accurately reported and readily accessible. The Years Books were the first available law reports6. They were written in law French ,a language consisting in Norman French,English and Latin. In 1865 law reporting was placed on different basis. The four Inns of Courts created the Council of Law Reporting. The report of recent cases treated as the official Law Reports are divided into four series : Appeal Cases (A.C.) ; Queens Bench (Q.B.) ; Chancery (Ch.) ; Family (Fam.) ; Since 1953 the Council has also published the Weekly Law Reports (W.L.R.). There are also private reports published by firm of law publishers,for example All England Law Reports. Some newspapers,The Times,The Independent,publish report of cases of legal and general interest. We may also quote some periodicals such as The New Law Journal,Current Law,The Solicitors Journal and Databanks (Lexis,Eurolex). For students law publishing firms publish case books on peculiar cases e.g. casebooks on criminal law etc... A distinction must be made between courts records and law reports. Court records contains some basic details whereas a law report is a fuller analysis of a case. The general principles of criminal liability are nearly all to be found in Common Law,not in an Act of Parliament. Now the great majority of crimes are defined by statutes,but some important crimes such as murder or manslaughter are not. The doctrine of precedent provides a basis on which the law may develop.

A distinction must be made between courts records and law reports. The court records contains the name of the parties, the pleadings, the decision of the court. A law report is a full analysis of a case (relevant facts, legal principle aiming the judges, speech in which he (they) deliver(s) his (their) judgement(s) - explanation of his (their) decision(s)). It must be certified

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5) The concept of natural justice a) the right to be heard by an unbiased tribunal

The right of one accused of crime to be tried by a jury is deeply rooted in English Law and practice

b) the right to have notice of charges and misconduct c) the right to be heard in answer to those charges. d) Right to counsel :
In 1800 men accused had opportunity to defend themselves at their examination and were allowed to engage a lawyer to help them present their case at their trial if they could afford it. The accused always has a right to confer with his lawyer. Legal aid provides free legal representation. (The Poor Prisoners Defence Act,1903,1930)

e) Double jeopardy :
It forbids the trial or punishment of a person twice for the same offence. Nemo Debet bis vexari pro una et aedem causa.

f) The burden of proof :

The burden of proof is on the party making the allegation and not on the party who denied it. incumbit probatio qui dicit,non qui negat. (ancient maxim in the Roman Law).

g) The Right of Audience (legal aid in criminal courts)

An accused person has complete discretion about whether to conduct his own case or to be represented. The court may advise but not force representation upon him against his will. There are many offences for which there is no need for legal advice. Only a barrister or a solicitor may

by a barrister who was present in the court throughout the hearings. Pierre MET 2002 All Rights Reserved

12 represent the accused. The defendant who is able to pay for a solicitor will usually consults with him before the case is heard. Barristers have the right of audience in all criminal courts. Solicitors are limited to appearing before Magistratescourts. The Court Act 1971 enables solicitors to appear in the Crown Court on an appeal from a Magistrates court,provided he or a partner appeared on behalf of the defendant in the Magistrates court.

Section 2: The Courts Today

1) Functions of courts
The main functions of courts are7 : keeping peace (to prevent the law to be taken into private hands). pleading controversies (to determine guilt ; to punish). judicial law making (development of rules for future cases). Law is not only by legislation but by courts. It is one aspect of the doctrine of the precedent ( stare decisis = to stand by decided matters).

2) The different courts:

The courts were reorganised by the Judicature Acts,1873-75. It ensued that the rule of common law and the principle of Equity should be administered in the same courts. Now the Supreme court Act,1981 has replaced earlier legislation.

Court of general jurisdiction are vested with both civil and criminal jurisdiction. Courts of limited jurisdiction are specialised tribunal. Pierre MET 2002 All Rights Reserved


a) the Civil courts:

They deal with private controversies. The objective is not punishment but to restore the parties so far as possible to previous positions.

b) the Criminal courts:

Criminal courts deal with persons accused of crime,decide whether they are guilty and if so determine the consequences they shall suffer. Prosecution is held on behalf of the public. Criminal law is the representation of underlying principles of political morality in a liberal society. The function of criminal courts is controlling misbehaviours and enforcing ethical conducts. They deal with persons accused of crimes and if the defendant denies committing the acts charged against him,the court must choose between his version of the facts and the prosecutions. But now most person arrested and charged with crime plead guilty. There is no need to determine guilt. The remaining question is whether the defendant should go to jail,pay a fine or be subjected to other corrective treatments.

c) the Appellate courts:

The Appellate courts review the work and correct the errors of the courts of first instance.

Section 3: Civil Courts

The civil courts8 are : the House of Lords,the judicial committee of the Privy council9,the Court of Appeal,the High Court of Justice,the County Courts and the Magistrates' Courts.

A plaintiff sues a defendant in the civil courts. If the plaintiff wins his action the defendant is said to be liable and the court will order an appropriate remedy (financial compensation) or an injunction (order to do or not to do something). If the plaintiff is not successful, the defendant is found not liable. 9 It hears appeals from those Commonwealth countries which have retained the right of appeal and from colonial territories. Pierre MET 2002 All Rights Reserved


1) The House of Lords

At the top of the hierarchy of the courts stands the House of Lords. It is the ultimate court of appeal in civil and criminal matters. It is composed of the Lord Chancellor,the Lords of Appeal in Ordinary (or Law Lords) and other Lords who have exercised judicial functions in the past. For the court to sit a quorum of three is necessary. In civil matters,the House of Lords hears appeal from the Court of Session in Scotland,the Court of Appeal in Northern Ireland,and the Court of Appeal (Civil Division) in England. There is no right of appeal : to appeal to the House of Lards,one must get leave of the Court of Appeal or the House of Lords itself. The Administration of Justice Act 1969 created a new form of appeal in civil actions,direct from the High Court to the House of Lords,"leap-frogging" the Court of Appeal. This "Leap-frog" procedure is possible only if: the trial judge grants a certificate of appeal; the decision involves a point of taw of general public importance; this point of law is related to the construction of a statute or statutory instrument or is one for which the judge is bound by a precedent from the Court of Appeal or the House of Lords.

2) The Court of Appeal (Civil Division)

It is composed of the Lord Chancellor,the Lord Chief Justice,the Master of the Rolls and the President of the Family Division,and of 28 Lords Justices of Appeal. Normally,in civil cases,only the Master of the Rolls (acting as President) and the Lords Justices of Appeal sit. The quorum is three. The Court of Appeal may,uphold,amend,or reverse any decision of a lower court,or it may order a new trial. It hears civil appeals from the High Court,the County Courts,and various tribunals.
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3) The High Court of Justice

It consists of three divisions : the Queen's Bench Division,- the Family Division,the Chancery Division. The three divisions can try any civil action; but,for convenience,each division is allocated specific matters: Apart from the presidents of each division,the High Court includes 85 puisne judges,who may sit in any division.

The Queens Bench Division

The Queen's Bench Division is composed of the Lord Chief Justice and some 44 puisne judges. It is primarily an original jurisdiction. The Administration of Justice Act 1970 has added to the traditional jurisdiction of the Queen's Bench Division (mainly concerned with crimes affecting the peace of the kingdom) the jurisdiction of the former Admiralty Court and of the Commercial Court. In practice,the Queen's Bench Division is competent for all cases which are not explicitly allocated to another division of the High Court: these include tort cases,breaches of contracts,and actions for the recovery of land; commercial cases and admiralty cases {collisions of ships,prizes,salvage and towage at sea). There is no limit to the amount of damages which may be claimed in the Queens Bench Division. The Queen's Bench Division may also sit as an appellate jurisdiction (with two or three judges sitting) to hear appeals from the Solicitors' Disciplinary Tribunal or appeals under the: Rent Acts. The Queen's Bench Division also exercises supervisory jurisdiction over inferior courts,tribunals and administrative authorities having judicial functions.

The Family Division:

The Family Division is composed of a President and 16 puisne judges. It deals mainly with divorces,separation maintenance problems,guardianship of minors,adoption problems of

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16 legitimacy,and non-contentious probate. It is normally an original jurisdiction and judges usually sit alone. It may sometimes hear appeals on family matters from the magistrates' courts and county courts: in such cases,two more judges sit.

The Chancery Division:

The Chancery Division is composed of the Lord Chancellor,who usually delegates his chairmanship to the Vice Chancellor,and at least 4 other puisne judges. It deals mainly with the administration of estates of deceased persons,dissolutions of

partnerships,mortgages,trusts,dissolution and winding up of companies,taxation,partition and sale of real estates,rectification and setting aside of contracts by deed specific performance of contracts,bankruptcy matters and contentious probate matters. It is normally an original jurisdiction (with a judge sitting alone),but it may hear appeals from lower courts on problems of trusts or bankruptcy.

4) The County Courts

The County Courts were established to relieve the High Court of much of its work and to provide the plaintiffs with cheaper and faster local justice. The Courts and Legal Services Act 1990 has redistributed the allocation of business between the High Court and the County Courts There are some 337 County Courts in England and Wales,with about 125 circuit judges,who have charge of two or more courts each. Judges sit alone,as the County Courts are original jurisdictions. The jurisdiction of the County Courts includes : actions on contract and tort (except defamation),equity matters (trusts,mortgages,etc.),actions for the recovery of land,bankruptcy matters,probate matters,and winding up of companies,when the sums of money involved do not exceed a certain amount fixed by statute; as well as supervision of the adoption of infants,and

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17 problems of rent-restriction,hire-purchase,landlord and tenant,etc. To relieve the Family Division of the High Court,the Matrimonial Causes Act 1967 has given the County Courts a limited divorce jurisdiction,for instance in undefended matrimonial causes. Appeals from the County Courts lie to the Court of Appeal.

5) The Magistrates' Courts

The Magistrates' Courts have a limited civil jurisdiction for licensing,non-litigious divorces and separations,non-litigious guardianship of minors,orders in regard of children and young persons in need of protection,and orders under the Mental Health Act 1959.

Section 4: Criminal Courts

1) Principles of English criminal law
In England and Wales the administration of justice is a function of government to be exercised by the state. The English express this in term of the Sovereign and speak of the Kings or Queens judges,courts,and HM Prisons. Unlike most jurisdictions,England and Wales has no criminal code. From very early times Parliament has created criminal offences but these have always taken effect in the context of the common law of crime,that is,the law made by the judges in decided cases. In civilised law,there are two main system of trial : the accusatorial system : the parties came before the court in equal footing ; the inquisitorial system : interrogation of the defendant. In England and Wales the judge is thought of as an umpire who must see fair play between two contesting parties.

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18 The present system of courts of law in England and Wales depends almost entirely on legislation passed during the last hundred years : the Judicature Acts,1873,75 ; the Courts Acts,1971.

2) Court structure and organisation

The structure of the criminal courts is ascending as follows : MagistratesCourts ; the Crown Court ; Divisional Court of The Queens Bench Division; the Court of Appeal : Criminal Division ; the House of Lords.

There are two methods of trying persons accused of criminal offences : summary by a magistrates court without a jury (the formality is reduced) or by judge and jury in the Crown Courts ; A great majority of criminal cases are tried before magistrates,and therefore without a jury ; The process of sentencing must be distinguished from the process of a trial. The verdict is that of a jury (the burden of proof must be satisfied) ; the sentence is given by a judge.

a) Magistrates courts : 1) composition :

Magistratescourts consist of a stipendary magistrate or by a Bench comprising between two and seven lay magistrates. Magistrates are appointed by the Lord Chancellor in the name of the Queen (an advisory committee makes recommendation to the Chancellor).

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19 The country justices are public-spirited laymen who are not required to possess any legal qualifications. For legal advice they rely on their clerk who is usually a solicitor or a barrister and is legally qualified.

2) functions :
They have three functions : Court of trial As court of trial,the Magistratescourt is a court of summary jurisdiction which hears and determines cases without a jury. They try summary offences which are of minor importance (minor theft,drunkenness,Road Traffic offences). The maximum punishment they may impose for any one offence is six months imprisonment and / or a fine of 2,000. They may also hear certain offences which are triable either way 10. Their decisions are subject to appeal11. Court of preliminary investigation A person accused of an indictable offence cannot be tried before the Crown court unless it has first been brought before magistrates. This stage is known as committal proceedings. The examining magistrates have to decide whether a prima facie case can be made out against the accused (acts as a filter). This stage also enable the accused to learn and be supplied with a copy of the evidence for the prosecution. Juvenile courts Certain magistrates are especially qualified to deal with offences committed by children (under 14 of age) or young persons (between 14 and 17).

The Criminal Law Act (1977) established that some offences theoretically indictable and coming under the jurisdiction of the Crown court may be tried either summarily, with the accused consent, in the Magistratescourts or on indictment before the Crown court. 11 Only the accused may appeal to the Crown Court. There is a complete rehearsal of the case Prosecution and defence may however appeal to the Divisional court of the Queens Bench Division (an appeal on a point of law). Pierre MET 2002 All Rights Reserved



b) The Crown court : 1) composition :

The Crown court in England and Wales was created in 1972 and is under the direct control of the Lord Chancellor. It is divided in six circuits. Judges of the High court are appointed by the Queen on the recommendation of the Lord Chancellor. Sitting are held regularly at major towns throughout England and Wales. It comprises judges of the Queens Bench Division of the High Court,circuit judges and recorders (part-time judges).They sit with juries. The criminal court known as the Old Bailey,is a sitting of the Crown Court having only criminal jurisdiction only over indictable offences committed in Greater London or on the high seas.

2) functions :
The Crown court is a unitary court. There is only one Crown court which sits at around 90 centres in England and Wales. Three types of judges sit in the Crown court : High Court judges,Circuit judges,Recorders. Indictable offences are divided into four classes12 for the purpose of trial in the Crown Court. In all these cases the judges are assisted by a jury of twelve citizen whenever a plea not guilty is entered. The central Criminal court in London created in 1834 is known as Old Bailey. Appeal from the Crown Court are made to the Criminal Division of the Court of Appeal.

c) Appellate courts : 1) Division Court of the Queens Bench Division of the High


There are four classes of indictable offences : Class I : the most serious offences tried by a High Court judge (treason, murder, breaches of official secrets legislation). Class II : offences tried by a High Court judge or a Circuit judge (manslaughter, rape, infanticide, sexual offences against children). Class III : offences tried by a High Court judge, a circuit judge, a recorder or an Assistant Recorder (affray, aggravated burglary, kidnapping). Class IV : offences normally tried by a Circuit judge, Recorder, Assistant Recorder (grievous bodily arm, robbery, conspiracy, burglary, forgery).

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Court :
It consists of 3 judges of the Division. It is a court of appeal only on points of law or jurisdiction from Magistratescourts and from the Crown court.

2) the Criminal division of the Court of Appeal :

This court hears appeals against conviction and sentences from the Crown Court (Criminal Appeal Act 1968). It consists of the Lord Chief Justice of England,the Lords Justices of Appeal,and a number of Queens Bench Division judges nominated by the Lord Chancellor. Three judges sit for the hearing of an appeal. Only one judgement is delivered except when the presiding judge permits separate verdicts to be pronounced on a question of law.

3) the House of Lords :

Further appeal may be made from the Appellate courts to the House of Lords which is the highest court in England and Wales. The Appellate Jurisdiction Act 1876 created a group of salaried life peers,the Lords of Appeal in Ordinary or Law Lords . The criminal jurisdiction of the House of Lords is made up of five Lords of Appeal in Ordinary. An appeal must at least be heard by three Lords of Appeal in Ordinary. Each Lord delivers a separate opinion but the judgement is that of the majority.

4) Court of justice of the European Communities :

This court is the ultimate court. The House of Lords is no longer the supreme court of appeal.

d) Other Criminal courts : 1) courts-martial :

They are courts staffed by officers dealing with serious offences committed by persons subject to the discipline of the Armed Forces.

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2) Coroners Courts :
The coroners courts are the oldest English courts (1194) (Coroners Acts - 1887 -1988). It carries enquiries called an inquest into sudden,unexplained and violent deaths of persons. Procedure is entirely inquisitorial. The verdict of a jury of between seven and eleven members is recorded in a document known as an inquisition and cannot be appealed (the proceedings are subject to judicial review).

e) Tribunals :
Tribunals are bodies with judicial functions set up by statutes. The form what is now called Administrative Law. They act as bodies at first instance and any appeal must be made to the normal courts of Law13.

Section 5: Definition of a Crime

1) The concept of crime
In a given culture the definition of crime depends on the legal and moral codes prevailing within that culture. Professor Macintosh in his book Controlling Misbehaviour in England,13701600,demonstrates that in an attempt to maintain good order and enforce ethical conducts,local leaders prosecuted people who slandered or quarrelled with their neighbours,engaged in sexual misdeeds,operated unruly alehouses or refused to work. In legal terms,a crime is an act of human behaviour banned by criminal law14. From the 12th to the 14th century serious offences came to be known as felonies . Friedrich Engels,in The Condition of the Working Class in England

English law, unlike French law does not know a separate system of courts which alone is competent to deal with administrative decisions. 14 The term crime is used to refer to adult behaviour. The term delinquency is used to refer to criminal or precriminal behaviour by a juvenile. Pierre MET 2002 All Rights Reserved

23 (1845),interpreted crime as a rational reaction to relative deprivation,a consequence of the unequal distribution of the material rewards of the industrial revolution. Traditional Marxist theory attributes crime to the frustration of the working class resulting from the constant exploitation by the upper class. The definition of crime and criminals must depend ultimately on the criminal law which is culture-specific and varies over space and in time. There should be no conviction of an accused person unless the latter can be proved to have had a guilty mind and intended to commit the subsequent wrongful act. This principle is embodied in the maximum : actus non facit reum,nisi mens sit rea ( the mere doing of an act - the actus reus - will not constitute guilt unless there be a guilty intend - the mens rea15 - ). The principle of legality is recognised as the key stone of the Criminal law. a) there can be no crime without a rule of a law. The only source of criminal law is Common Law,Textbooks,Statutes and Subordinate legislation : nullum crimen sine lege (no crime without a law) ; b) criminal statute must be interpreted strictly and they must not be applied by analogical extension ; c) the principle of legality forbids the application of law retroactively ; d) the language of criminal statutes must be as clear and unambiguous as possible.

2) Criminal liability
In England and Wales there is no general statute of limitation applicable to criminal action although statutes for specific crimes frequently have included time limits. Actus reus and mens rea are terms used to describe the elements of a criminal offence. The true homicides are murder,manslaughter,infanticide and causing death by reckless driving. Suicide

Some penal offences do not require the demonstration of a culpable mind on the part of the accused (statutory

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24 was an offence until the Suicide Act of 1961.

a) age of criminal responsibility

The defendant is not denying that he committed the actus reus with mens rea. It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence. (Children and Young Persons Act,1933,S 50).

b) causation
Where the definition of crime includes a result,it must be proved that Smith caused that result. A result may have more than one cause. Murder and manslaughter (common law offences) both require that the defendant should have killed but both may be committed by omission. An act is merely a muscular movement,but reference to an act includes some of the circumstances surrounding the movement and its consequences. There is a moral basis for the notions of faults and degrees of fault in the criminal law. A crime involves a mental element. The defendant has caused some result which is forbidden by the criminal law,but the fault is generally the state of mind with which that result was caused.

c) incitement
When Iago said to Othello : Do it with poison,strangle her in her bed he was undoubtedly guilty of incitement to murder. For example it is an offence for a woman of 16 or over to permit her father to have intercourses with her but a girl of 15 cannot commit incest. (Sexual offences Act 1956).

rape ; bigamy ; public warfare offences). Ignorance of law is generally held not to excuse the actor. Pierre MET 2002 All Rights Reserved


d) the presumption of innocence

An accused person is presumed innocent until proved guilty. Many offences are committed by persons who are intoxicated by alcohol or other drugs. Alcohol weakens the restraints and inhibitions which normally govern a persons conduct. It also impairs perception and judgement. The person who does the forbidden act is not necessarily the only one who is liable to be convicted of the crime thereby committed. In the case of a contract killer Smith and Wesson are all equally liable to be convicted of murder and liable to the same punishment which for murder must be life imprisonment. Smith who actually did the deeds is called the principal ; the others (Wesson) are described as secondary parties or accessories.

e) The burden of proof

If the burden of proof is shifted any doubt must be resolved in favour of the prosecution.

3) Classification
Offences may be classified according to their source,the harm done,whether their commission makes the offender liable to arrest without warrant,the criminal proceedings and the method of trial employed (summary offences,indictable offences. Criminal Statistics in England and Wales is published six months after the close of the year. It presents a very detailed classification of offences. The English legal system divide criminal offences into different categories (The Criminal Law Act,1992): 1) indictable offences: more serious offences which will be tried on indictment in the Crown court before a judge and a jury. by a jury. Police are given a power of arrest. 2) summery offences: minor crimes ( minor theft) are tried in Magistrates Courts

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26 by Justices of the peace lay or Stipendary Magistrates sitting without a jury (maximum penalty by offence of six months imprisonment or a fine of 2,000) 3) offences triable either way16 (theft etc); 4) treason,arrestable offences,other offences.

4) Homicides
The actus reus of murder and manslaughter is generally the same. It is unlawful killing of any person under the Queens Peace ,the death following within a year and a day of the infliction of the fatal injury. It must be proved that the defendant caused the death of the deceased person. The victim of homicide must be a person in being The victim must have been born and not have died before the defendants act took effect.

a) Murder
Importance of the mental element required for the crime of murder (Homicide Act 1957,section1). -intention to kill ; -intention to cause grievous bodily harm constructive malice . The penalty for murder in the old days was a mandatory death sentence. Now it is a mandatory life sentence. Capital punishment was abolished by the Murder Act 1965 (abolition of the death penalty).

b) Manslaughter
It is killing without premeditation. It is a complex crime. The defendant kills with the fault


offences triable either way may be tried with the accused consent, either in the Crown Court or the Magistrates Courts.

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27 required for murder but because of the presence of an extenuating circumstance recognised by law the offence is reduced to manslaughter. According to the Homicide Act (1957) a person is guilty of manslaughter when he acted : -under diminished responsibility ; -under provocation ; -in pursuance of a suicide pact ; -because of voluntary intoxication ; by an unlawful and dangerous act.

c) Infanticide
It is the killing of a baby at or very soon after birth. Between 1660 and 1800 a married woman would be presumed innocent until evidence proved her guilty (had the child born alive ?). A Woman not married would be presumed to have killed her baby unless she could prove by testimony of at least one witness that the child had in fact been born dead. The penalty was death. It sought to discourage fornication by making it more difficult for unmarried women to escape the result of their immorality.

5) Non-fatal offences against the person a) Assault and battery (Criminal Justice Act 1988,S39)
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale to imprisonment for a term not exceeding six months,or to both. -assaulting a police officer acting in the execution of his duty ; -assault occasioning actual bodily arm ; -malicious wounding and causing grievous bodily harm
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28 (Offences against the Person Act) ; -administering poison.

b) sexual offences (Sexual offence Act 1956) 1) Rape

It is an offence for a man to rape a woman or another man. A man has committed a rape if he has sexual intercourse (whether vaginal or anal) with a person who at the time of the intercourse does not consent to it and at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. A man also commits rape if he induces a named woman to have sexual intercourse with him by impersonating her husband. On the trial under this act it is necessary to prove sexual intercourse. It is not necessary to prove the completion of the intercourse by the emission of seed. The intercourse shall be deemed complete upon proof of penetration only (cross examination of the complainant).

2) Indecent assault and indecency with children

-on a woman : Sexual offence Act 1956,S.14 -on a man : Sexual offence Act 1956,S. 15 -indecency with children : Sexual offence Act 1960,S.1

c) Theft and Robbery 1) Theft (Theft Acts 1968,1978)

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanent depriving the other of it ; and thief and steal shall be constituted accordingly. It is unmaterial whether the appropriation is made with a view to gain,or is made for the thiefs own benefit. Property may belong to a corporation just as much as an individual and

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29 may be stolen from the corporation.

2) Robbery (Theft Act 1968,S.8)

A person is guilty of robbery if he steals,and immediately before or at the time of doing so,and in order to do so,he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. A person guilty of robbery,or of an assault with intend to rob,shall on conviction on indictment be liable to imprisonment for life.

3) Deception by words or conducts 4) Making off without payment (Theft Act 1978,S.3) d) Blackmail
A person is guilty of blackmail if with a view to gain for himself or another or with intend to cause loss to another,he makes any unwarranted demand with menaces. A person guilty of blackmail shall on conviction be liable to imprisonment for a term not exceeding 14 years.

e) Burglary and related offences (Burglary Theft Act 1968,S.9) 1) Burglary

A person is guilty of burglary if he enters building or part of a building as a tress passer and with intent to commit any such offence as is mentioned in subsection below : -he steals or attempt to steal any thing in the building ; -inflicts or attempts to inflict on any person therein any grievous bodily harm (raping,doing an harmful damage to the building).
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2) Aggravated burglary (Theft Act 1968,S.10)

A person is guilty of aggravated burglary if he commits any burglary and at the time has with him firearms or imitation of firearms,any weapon of offence,or any explosive. He shall on conviction on indictment be liable to imprisonment for life.

3) Handling stolen goods (Theft Act 1968,S.22) (recel)

Stolen goods are money and every other description of property except land. A person handles stolen goods if knowing or believing then to be stolen goods he dishonestly receives the goods,or dishonestly undertakes or assists in their retention,removal,disposal or realisation by or for the benefit of another person,or if he arranges to do so. He shall on conviction on indictment liable to imprisonment up to fourteen years.

f) Offences of damage to property (Criminal damage Act 1971,S.1)

A person without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property,or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

g) arson
It is a damage to property caused by fire.

Section 6: Criminal Proceedings

The criminal procedure relates the mode of apprehending,charging and trying suspected

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31 offenders17. In England and Wales most prosecutions are undertaken by the police which is responsible for the arrest of suspects,the execution of warrants,the questioning of witnesses. The Director of Public Prosecutions undertakes only the most difficult cases.

1) Investigation by the police 18

The material elements of the crime (the corpus delicti) are examined by the police,officers of the court or the prosecuting attorney. In fact most of the investigation of crime fall to the police which try to obtain all possible information regarding offences which have been committed. Police have not general power to compel a person to answer,but a witness may be compelled to attend court and there give evidence.

a) arrest without a warrant

Arrest means loss of liberty ; being subject to restraint as to ones movements. The Police have powers of arrest without a warrant under the terms of the Police and Criminal Evidence Act (1984) and of the Public Order Act (1986). An arrest by the Police is lawful if the arrested person is informed that he or (she) is under arrest and told the grounds for the arrest under these Acts. The Police have the power to arrest a person in four different sets of circumstances : If they suspect that an arrestable offence has been committed,is being committed,or is about to be committed. The police have certain additional powers in the cases of serious arrestable offences ; If they have a statutory power of arrest (most statutory powers of arrest without

The duty of the state is detection, prosecution, and punishment of offenders. A prosecutor prosecutes a defendant in the criminal courts. 18 The investigating phase in the 19th century : in the past victims could give chase and get others to join them in tracking down a robber or a burglar. In the 17th century in London the shadowy group of men known as the ThiefTakers were at least in part of the business of detecting and apprehending offenders whose conviction would pay a reward. Pierre MET 2002 All Rights Reserved


32 warrant were repealed by the Act) ; If one of the general arrest conditions is satisfied ; If they wish to finger print a convicted person.

b) the three stages of police investigation

First stage : the police officer has not got evidence that the person interrogated has committed an offence. Questioning may continue without any caution be administered ; Second stage : the police officer has evidence that the person interrogated has committed an offence. The Judges Rules require a caution worded as follow : You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. Questioning may then continue. Third stage : the person interrogated is formally charged,told that he will be charged or informed that he may be prosecuted. A further caution must be administered worded as follow : Do you wish to say anything ? You are not obliged to say anything unless you wish to do so but whatever you say may be taken down in writing and may be given in evidence. Once there is sufficient evidence against a man he must be charged.

2) Warrants and Summons a) warrants

A warrant is a document empowering a police officer to search the premises or to arrest a

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33 suspected criminal and bring him before a court. It is issued by a magistrate.

b) summons
A summon is issued and signed by a magistrate and is addressed to the accused. The summon must be served on the accused personally or by leaving for him with some person,by sending it by post in a registered letter.

3) Bail and Plea bargaining a) bail

Except in very serious cases a senior police officer may release the person on bail either for him to return to the police station or to attend before the justices. When a justice issues a warrant he may endorse it for bail. The man is arrested then released. The justice may remand a person in custody or give him bail. If the remand is in custody the accused goes to prison where he can be visited by his lawyer. Under the Bail Act,1976 there is a presumption that an offender should be bailed unless the police can show he will commit new offences flee from justice or tamper with the case against him.

b) plea bargaining
A plea bargaining is an informal agreement that the defendant will plead guilty to a particular offence in return for a promise he will not be prosecuted for a more serious offence. But the police are not in a position to make any promises about the conduct of the trial.

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4) Prosecutions a) laying the information

Criminal proceedings are begun either by an arrest of the person to be charged without a warrant or by laying an information before a magistrate. A magistrate is informed of a suspected offence. The informant ( a police officer or someone else) fills up a form giving a short account of the alleged offence. He may give the account orally (laid within six months from the time when the offence was committed).

b) prosecution for an offence :

In England and Wales there is no national prosecution service. A minority of prosecution are instituted by the Director of Public Prosecutions (D.P.P.)19. Most prosecutions are undertaken by the police. The English criminal system is offender orientated. Crimes are regarded as offences against the State rather than individual victims. Therefore all criminal proceedings are in theory instituted on behalf of the Crown,(Prosecution and offences Act 1985) but in general there is nothing to prevent a private citizen from initiating criminal proceedings. The name of the actual prosecutor appears in summary proceeding e.g. : Smith v. Jones. Smith may be a private individual,a police officer,the representative of a government department or local authority. The interest of the State in the prosecution of crime is reflected in the way in which indictments are headed. For example : The Queen v. Thomas Brown R. v. Brown ( R. stands for Rex or Regina

The Crown prosecution service, headed by the Director of Public Prosecution headed by the Director of Public prosecutions was created in 1986 under the Prosecution of Offences Act (1985). 31 chief Crown prosecutors under the superintendence of the Attorney General and assisted by Crown prosecutors deal with the vast majority of cases in consultation with the police.

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35 At common law a prosecution for an offence can be began at any time after its commission (many years ago ; c.f. time limits for bringing civil actions). The prosecution has the burden of proving the actus reus and mens rea beyond reasonable doubt. A cardinal principle of criminal law is embodied in the maxim : actus non facit reum,nisi mens sit rea An act does not make a person legally guilty unless the mind is legally blameworthy. The Queen and foreign sovereign and Head of State are immune from the criminal as well as the civil jurisdiction of the English courts. Foreign diplomats enjoy a similar privilege (Fugitive Offender Act (1967) -extradition- ; State Immunity Act (1978) -Sovereign and Diplomatic Immunity-).

5) Legal aid
Legal aid ensures access to justice for those who cannot afford to use the courts.

Section 6: Procedure
Courts are concerned with conduct which is an offence against English law. The place of trial may be determined according to where the crime was committed,the defendants place of residence,the place at which he was apprehended etc...Public trial is recognised as an important human right,and a trail must be in open court (it means that the public is admitted).

1) The trial of summary offences

The defendant appears in person or is represented by a solicitor during criminal proceedings (MagistratesCourt Act 1980) if he pleads guilty. Otherwise,if he pleads not guilty he must appear in court. If there is a possibility of a sentence of imprisonment being passed he must

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36 appear in court. When he appears in court for the hearing of the charge the accused will be asked if he pleads guilty or not guilty. If he pleads guilty he may be convicted and sentenced. After the evidence and speeches have been heard the Magistrates retire to decide whether to acquit or convict. The decision is reached by a majority. If the accused is convicted of two or more offences warranting a sentence which exceed the statutory 12 months maximum sentence which Magistratescourts are allowed to impose,the accused may be sent to the Crown court for sentencing and be remanded in custody. An appeal in a summary case will take one of two forms : an appeal to the Crown court : there is a complete rehearing of the case ; an appeal on a point of law by way of case stated to the Divisional court of the Queens Bench Division. A further appeal may be made to the House of Lords.

2) Trial on indictment a) preparation of charges

The criminal proceedings begin with a formal accusation made to the court. In England and Wales the system provides for pre trial hearings. The pre trial hearing is before a judge in order to show the accused the nature of the charge and to determine whether or not the evidence presented by the prosecutor is sufficient to justify the action. The defence counsel is of the highest importance during the pre trial proceedings.

b) indictment (inculpation)
An indictment is a written accusation of crime to be tried by a jury (Indictment Act
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37 1915,Indictment Rules,1971).

c) arraignment (acte daccusation)

After the indictment has been signed and provided there has been no successful motion to quash it the next step of the trial is the Arraignment of the accused which means he is called to the bar (i.e. in front of the dock) by name : each count of the indictment has been read out ; the accused is asked by the clerk of the court whether he pleads guilty or not guilty.

If the defendant admits the truth and pleads guilty and his plea is accepted by the court,no jury verdict is called for. The court hears a statement of the circumstances of the offence and evidence of his character and circumstances (Police officer,governor of the person,medical or psychiatric reports,witnesses). If the accused denies the charges,he pleads not guilty and the case proceeds.

d) the jury
If the accused pleads not guilty,jurors are called from the panel (name given to the list of persons summoned to serve as jurors). The jury consists generally of 12 laymen who decide the question of guilt. To be eligible for jury service you should be between 18 and 65 and included on the electoral register. The Lord Chancellor is responsible for summing jurors in the Crown Courts. As the name of each juror is called the prosecution and the defence have the right to challenge a limited number of jurors without giving a reason (peremptory challenge)20. They have an unlimited right of challenge for cause (a prospective jurors is biased because of his religion,race,language,etc.).

The prosecution has the right to challenge without a cause to an unlimited extend by saying : Stand by for the

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38 Then the jury is sworn. The number of the jury must not be reduced below nine. The presiding judge who controls the admission of evidence instructs the jury as to the applicability of the law.

e) the conduct of the case

The judge appears in his red robe and wears his wig. It is the personification of impartial justice. The defendant is in the dock facing the court. The jury is called and sworn in. The accused has been given in charge to the jury21. The counsel for the prosecution makes his opening speech. The presentation of evidence is left to the parties themselves. The witnesses for the prosecution are then each called They are examined in chief,cross-examined and re-examined by counsel,not by the court. It is a tradition to the bar that the counsel for the prosecution should conduct his case moderately. He states the facts as objectively as possible and confines himself to matters which he intends to prove. During the hearing of the case the prosecution is generally not allowed to give evidence of bad character concerning the accused,nor it may refer to any previous conviction. After this opening speech is concluded each witness is called. The accused is called to give evidence (cross-examined). He may testify as witness if he chooses. When the accused and his witnesses,if any,have given their evidence the closing speeches follow. The defence always has the right to the last word to the jury.

f) the summing up
After the closing speeches for the prosecution and the defence the judge sums up. He summarises the evidence which has been given on both sides. Guilt must be established beyond a reasonable
Crown . 21 No jury is called if the defendant enters a plea of guilty. Pierre MET 2002 All Rights Reserved

39 doubt ; It is the judge duty to direct the jury on the law and its application to each of the charges before the court.

g) verdict and sentence

After the judge has summed up,the jury retire to consider their verdict. They choose a foreman to speak for them and retire under the supervision of a jury bailiff. The verdict is announced by the foreman in open court. One of guilty or not guilty on the whole indictment. Where the verdict of a jury is clear and unambiguous the judge ought not to question the foreman of the jury about the grounds upon which it was reached. The verdict of the jury need not be unanimous. A majority verdict may be accepted (11 jurors : 10 of them agree ; 10 jurors : 9 of them agree). If the jury is unable to agree they will be discharged and a new jury is called to try the case (new trial etc...). If the prosecution is successful the defendant is found guilty (convicted) and may be punished by the courts. After it will be inquired into the accused persons record. These elements are only brought to notice of the court as a guide to sentencing once a conviction has been secured. The punishment available to the court includes imprisonment,fines,probation,or community service. A guilty verdict does not necessary mean that the defendant will be sentenced to prison. His character or background can justify placing him on probation. The sentence of a person on probation is conditionally suspended. If the prosecution is unsuccessful the defendant is found not guilty (acquitted).

3) Appeals
After a verdict of guilty has been given accepted and recorded a plea in mitigation of sentence may be made by the accused or his counsel (mental condition of the time : Mental health Act,1959).

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40 The Criminal Appeal Act,1907 established an elaborate system of appellate procedure. In England and Wales the legality of the conviction may also be challenged by appeal to higher courts : from Summary jurisdiction to the Crown Court ; from Magistrates courts to the Queens bench division ; from the Crown court to the Queens bench division ; from the Crown Court from the Court of Appeal,criminal division ; from the Court of appeal or the Divisional court to the House of Lords ; from the House of Lords to the European Court of Justice.

The prerogative of Mercy is vested in the Crown. It takes the form of the grant of a free pardon which permits to suspend,commute or remit any sentence.

Section 8: The Judiciary,Law Officers,The Jury

A court comprehends many people (parties,lawyers - solicitors,barristers,Queens Counsel (QC) witnesses,clerks and jurors),but the judge is the central figure of the court). The legal profession is divided into : Magistrates,judges,members of the government,the law officers of the Crown

1) The Government a) The Prime Minister

The Prime minister is more than first among equals . He is a legislator,a judge,and the head of the judicial administration.

b) The Lord chancellor :

He is the supreme judge of England. He is chosen by the Prime Minister and serves at his
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41 pleasure. He appoints most of the judges and assigns Law Lords to sit in case in the House of Lords. The Lord chancellor is a political executive. He is a member of the Cabinet and the Speaker (legislative) of the House of Lords (to take the woolsack).

2) The law officers of the Crown a) the Attorney general

He is a member of the House of Commons and represent the Crown in court.

b) the Solicitor general

He is deputy to the Attorney.

c) the Masters
They are salaried officials attached to the High Court (Queens Bench Division,Chancery Division).

Masters of the Queens Bench:

they adjudicate on all matters preliminary to a trail.

Chancery Division Masters:

they adjudicate on all matters preliminary to a trial.

Taxing Masters:
checking,determining levying of costs to be paid by parties to the trials.

d) Director of Public Prosecutions

He is the head of the service and responsible for all criminal proceedings on behalf of the police.

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e) The clerk to the Justices :

Professional qualified lawyers,they advise the Justices on points of law and procedure. they make a record of evidence and prepare depositions.

f) Other judicial officials

Courts clerks are responsible for case records and documents. Bailiffs are in charge of keeping order.

3) Magistrates
There are two types of magistrates in England and Wales.

a) the Lay-Magistrates :
The lay magistrates (since the 14th century) known as lay justices who have the title of justice of the peace (JP) They have not any real legal training. Justices of the Peace are chosen by the Lord Chancellor on the advice furnished by Advisory Boards. They are assisted by clerks to the justices,solicitors or barristers who advise them on points of law and procedure. They serve intermittently in panels on a rotary basis for short sessions. They sometimes sit with professional judges.

b) the Stipendary Magistrates :

The stipendary magistrates (since the 18th century). It is a body of lawyers called on to pass judgements. They both exercise their powers in a court known as the Magistrates Courts. They deal with 95/ of all cases. In the United Kingdom judges are irremovable and appointed. The Bench is recruited from practising lawyers. In the 20s,recommendations of candidates to serve as justices used to be

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43 invited from local political parties (Justice of the peace,JP). In Britain judicial education is administered by the judicial studies board. It is established with the object of providing a range of education services to the judiciary,magistracy and lay magistracy.

4) Judges :
Judges are independent and the source of authority for the criminal law was the judges. The Lord Chief Justice of England is the head of the Queens (or Kings) Bench division of the High Court of justice and next in rank to the Lord Chancellor. He presides over the Court of Criminal Appeal. A man spends about 25 years in the practice of law (law teaching or governmental legal office) then at 50 he becomes a judge. He takes no competition examination but is appointed to the office. These appointments are made under the control of the Lord Chancellor who is a member of the Cabinet and the highest judge in the UK. The candidate does not look forward to any regular pattern of promotion. At the conclusion of his term he must be reappointed if he is to continue.

a) the Lord chief Justice

He is the head of the Court of Appeal (Criminal Division) and of the Queens bench Division.

b) the Master of the Rolls

He is the head of the Court of Appeal (Civil division). He supervises the administration of solicitors to the Roles of the Supreme Court.

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c) the President of the Family Division d) the Lords of Appeal in Ordinary ( Law Lords)
They adjudicate in appeal cases heard in the House of Lords. they are members of the Judicial Committee of the Privy Council.

e) the Lords Justice of Appeal (23)

They are the judges of the Court of Appeal.

f) The judges of the High Court (puisne judges)

Chancery Division (12); Queens Bench Division (45); Family Division (16)

g) Circuit judges
They sit in Crown Courts and County Courts.

h) Recorders
They are part-time judges of the Crown court

5) The jury
The principle that No free man shall be ... imprisoned ... but by the lawful judgement of his peers was signed in 1215 and the right of an accused to trial by jury is one of the great traditional safeguard of democracy. Introduced as late as 1855 the right to trial by jury enhances public confidence in courts. It can be seen as another form of lay participation in the judicial process. It recruits lay men at random from the population. The criminal jury consist of 1 persons of either sex. Its duty is to faithfully try the defendant and give a true verdict according to the

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45 evidence. It was required to reach its decision with unanimity. Since the Criminal Justice Act,1967 a majority verdict may be allowed. In the 1960s juries gave their verdicts within a matter of minutes or hours at the most decisions had to be unanimous . Then came the majority verdict and deliberations took longer.

Section 9: The Legal Profession

The practising lawyer advises his client or conducts his case in court. His job is to make the best of his client case both on the facts and on the law. Certainty - the adage says - is the mother of justice. Men want to know from their legal advisers exactly what the law is on given point. But at the same time they want the law to correspond with their idea of what is just in any particular set of circumstances. The profession is devised into Solicitors and Barristers. In the ancient times,barristers practically constituted the whole profession (1831 Incorporated Law Society). Solicitors and barristers are required to dress formally when appearing in court. A solicitor wears a gown,a barrister must be fully robbed and bewigged.

1) Solicitors
Solicitors are normally graduates of British universities (LL.B) Now law-graduates are required to spend a year at one of the centres provided by the Law Society and pass a professional examination (Postgraduate Diploma in Law). This is followed by the final professional stage of two years training with a firm of solicitors. This period is known as articles. Then the student applies to the Law Society to be admitted. This process is effected by the Master of the Rolls admitting the new solicitor to the Roll of Officers of the Supreme Court. He has several career

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46 options. A solicitor may seek salaried employment,or enter into practice as a sole practitioner or in a partnership. He may take up a judicial appointment22. The work of a solicitor covers a wide field (cf. French notaire,avocat,conseil juridique). Solicitors do the basic work before a case can go to trial. They interview client and witnesses,prepare pleading for lawsuit. The 1991 Solicitors Act : made compulsory for all practising solicitors. membership of the Law Society (the national professional organisation). A solicitor can employ an assistant and is consulted directly by its clients. They must at least present the appearance of being ready and able to conduct any ordinary kind of legal work. They are highly skilled in a more routine process and they work all their lives in the same office. Solicitors have a nearly monopoly on the legal business which does not involve litigation. They prepare contracts,draft deeds,conduct most proceedings,give general legal advice. Solicitors have a right of audience as advocates solely in the lower courts. In the High court a solicitor must retain a barrister or plead the case. Solicitors rights of audience in the Magistrates Courts and County courts and limited rights of audience in the Crown Court and the Supreme court have now been extended by the Courts and Legal Services Act,1990.

2) Barristers
Barristers may take instructions only from a Solicitor,not from a lay-client direct. The client must go to a solicitor who will then select a barrister to be briefed in the case. They are known collectively as the Bar as counsel. They have the exclusive right of the Bar to act as advocates in the superior courts. A judge can allow a solicitor to conduct a case but by convention this is not done. A person becomes a barrister by the act of the bar to which he belongs. Barristers may not work in partnership but several barristers may group together to form chambers. Every

Crown prosecutor, Circuit judge, District judge, Recorder, Stipendary Magistrate and Clerk to the Justices.

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47 barrister is a member of one of the four Inns of Courts ( Grays Inn,Lincolns Inn,Middle Temple,Inner Temple,) which since the 14th century have enjoyed the sole right to train and admit barristers. Each Inn is an autonomous body owned and controlled by its senior members,the Masters of the Bench (Benchers). The Senate of the Inns of Courts and the Bar formed in 1974 can be regarded as the governing body of the Bar today. To be admitted to an Inn a student should held a qualifying Degree in law. Vocational training for aspiring barristers is given exclusively in London; It lasts one year when the student has successfully. completed his vocational stage or passed his Bar Examination. He will be called to the Bar in the hall of his Inn. Then he embarks on a one year period of practical apprenticeship known as pupillage. After he must look for and obtain a tenancy. that is a set of chambers willing to accept him as a tenant. A barrister intending to practise must choose in which part of the law he or she intends to specialise. A barrister is self employed and has the monopoly of pleading in superior courts.

3) Queens Counsel (QC)

The QC is a Barrister who has acquired a substantial practice. Successful barristers of at least ten years may consider applying for silk and become Queen Counsel. Their appointment is made by the Lord Chancellor. The QC is given the position of a superior grade barrister. This is commonly known as taking silk. As a traditional privilege a QC may wear a gown of silk instead of a stuff gown. He sits on the front row in the High Court and has numerous material advantages. He will expect to attract more important cases and to command higher fees.

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Section 10: The Administration of Justice : Punishment

The purpose of criminal sanctions was to make the offender give retribution for harm done and expiate his moral guilt. Montesquieu and Voltaire in France and Von Feuerbach in Germany considered the main purpose of criminal law to be the prevention of crime. Then new concepts arrived such as the protection of the public and the reform of the offender.

1) Discipline and punish (Michel Foucault)

Problem : how criminal law and punishment are justified. What problems are related to these justifications.

a) the spectacle of the scaffold :

In the 19th century the people claimed the right to observe the execution and to see who was being executed. Justice quietly did its work. The art of punishing,then,must rest on a whole technology of representation (the chaingang ; the scaffold ritual : the fixing of iron collars and chains in the courtyard of the prison. Torture and execution are a whole ceremony of triumph. The crime and the punishment were related.

b) the function of punishment as an example 1) the rule of minimum quantity

A crime is committed because it procures certain advantages.

2) The rule of sufficient ideality

If the motive of a crime is the advantage expected of it,the effectiveness of the penalty is the disadvantage expected of it

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3) the rule of lateral effects

The penalty must have its most intense effects on those who have not committed the crime. The art of punishing,then,must rest on a whole technology of representation. Punishment is directed above all at others,at all the potentially guilty. From the point of view of the law detention may be mere a deprivation of liberty. The prison cannot fail to produce delinquents,throwing the inmates family into destruction.

2) Legal foundation for penal corrections

Imprisonment originated during the 16th century. The penal system in the middle Ages rather employed corporal punishment and death penalty. In Medieval England prison had three main uses : provided safe custody of suspects ; provided for the coercion of debtors and contumacious ; it was a punishment in itself. The legal framework is contained mainly in the Prison Act,1952 ; see also the Criminal justice Act 1948 ; Criminal justice Acts 1961,67,72 ; Borstal Rules,1954. Since 1963 The Prison Department in England and Wales has been administered by the Home Office. The goal of training and treatment is to encourage and support prisoners to lead good and useful lives (Prison Rules of 1964).

3) Sentences
A custodial sentence implies a loss of liberty. Non-custodial sentences : payment of a fine is in a sense a method of buying the right to commit an offence.

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a) the enforcement of judgements and orders b) imprisonment for judgement debts

In the 19th century the majority of judgements were for the payment of sums of money. If the defendant fails to pay the plaintiff may resort to "execution . In Dickens times imprisonment for judgement debts was the standard remedy. Debtors Act ( 1869) severely curtailed imprisonment for debt : - introduced a principle that remained in English law until 1970 : 1) a man should not be imprisoned for debt unless his default is wilful ; 2) committal to prison did not extinguish the debt ; 3) one man could not be imprisoned again in respect of the same debt.

c) whipping :
Abolished by the 1948 Act

d) death
Hanging for murder was abolished in 1965. Suspended for murder in 1965 it became permanent in 1970,but remains a possible penalty for treason,and setting fire to Royal ships and other Crown properties.

4) Prisons a) type of institutions :

Male institutions ; Remand centre (local prison for young under 21 of age ;

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51 Local prison ( connected to a particular court to confine adults during interrogations and short term sentences ; Open prison ; Closed Training prisons ; Open or Closed borstals (young prisoners between 14 and 21) ; Senior detention centres ; Junior detention centres ; Female institutions ;

b) Prison life :
In 1660-1880 a prisoner committed for trial was held in jail or allowed bail according to the offence he was charged with. (County jail). Overcrowding made discomfort inside the prison. Gaolers had fear that prisoners might break out en masse from a prison. They put fetters on their prisoners and loaded them in other way with iron (leg iron). The weakness of the internal security in most jails entailed attempts to escape. The weakness of internal controls encouraged plans and attempts to escape. Men who escaped were put into the collar,handcuffed,well loaded with iron.

c) Hard labour :
The prisoners were to be kept in chains to be distinguished from the ordinary worker by special dress. Convicts were chained in gangs and marked out by their uniforms.

5) Transportation (1660-1750)
Transportation was greatly expanded under the early Stuarts and Commonwealth. In the 18th century most of the transported went to the American colonies of Maryland and Virginia.

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a) The origins of transportation :

Transportation : getting rid of people who had put themselves outside the bound of society. Banishment for a terms of years also emerged again as the most common condition for a pardon from capital punishment. In 1718 the Parliament established transportation to the American colonies. The Empire provided the opportunity for the development of a sanction that would ensure domestic tranquillity. It provided a relatively simple way of ensuing that convicted men who were not entirely corrupted but who had committed offences that made them a danger to the community could be disposed of without being hanged. The Act also laid that returning to England before the expiation of the full term of transportation was itself a capital offence.

b) The re-establishment of transportation :

The hulks were a temporary solution during the War with America but did not provide a permanent solution. The inadequacy of the hulks was plain on every ground : heavy mortality rate ; men closely chained and forced to live in such proximity ; the problem of security ; the fear that a large group of desperate men would escape and go on a rampage ; the men were too dangerous to remain in this country ; the hulks were not cheap to run. Discontent with transportation mounted through the 1830s. Transportation was seen rather a benefit and an improvement of situation than a punishment. I saw a letter from a convict stating that : now he was the owner of a considerable estate ; that he had a great stock of cattle

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53 that he served upon grand juries that he was in every respect comfortable ; that he had not any intentions of returning to England.

6) The Hulks and imprisonment at hard labour a) The Hulks

Many sentenced to be transported were kept at home. It was also the case of convicts in the interval between sentence and transportation. The idea was to put the convicts to had labour holding them in floating prisons or hulks moored on the Thames. Hard labour consisted of various public works to improve the navigation on the river. A number of mutinies and spectacular escape attempts led to considerable public discontent within the first few years. Despite these appalling mortality figures the hulk system was continued.

b) Punishment by hard labour of offenders who were liable to transportation.

In August 1776 (Act of 1776) a merchant was authorised to anchor two ships in the river near Woolwich and to fit them out to receive something on the order of five hundred prisoners who would be taken every morning on lighters in chains to work at various tasks along the Thames. The 1776 Hulks and House of Correction Act established practises to manage and punish the convicts on board the ships. The convicts working on the river were to be punished and humiliated. They were given bad food. Their overseer was authorised to punish misbehaviour by whipping. They could earn early release by their industry and other good behaviour In 1843 The Hulks held over 70 percent of home-based convicts. The establishment consisted in several vessels which shifted their moorings between Woolwich,Chatham,Devonport and
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54 Portsmouth. Supervision was difficult. The nature of the dockyard work made trafficking between prisoners,staffs and civilians impossible to prevent. The convicts slept in wards on boards and were employed in the dockyard on Admiralty and ordinance work. There were hulks in Bermuda and Gibraltar The Act of 1784 allowed convicts under sentence of transportation to be sent to the hulks. In June 1849 Western Australia was designed as a suitable area for a penal establishment (at the colonists request). Free immigrants were sent equal in number to the transported convicts. 1850 : discovery of gold in New South Wales.

Pierre MET 2002 All Rights Reserved