English Legal System

1. English Legal System Criminal Litigation Introductory concepts Pre-trial investigation of crime Funding in Criminal cases

2. Aims • The aims of this lecture are: • To revise the differences between criminal and civil litigation; • To revise the basic court structure for criminal courts in England and Wales and the classification of offences which determines where the case will be tried; • To look at the structure of criminal investigations and prosecutions and in particular the provisions in the Police and Criminal Evidence Act (PACE 1984); • To examine the role of the Crown Prosecution Service and the tests that Crown Prosecutors apply in deciding whether to prosecute; • To examine legal funding for criminal procedure and recent reforms.

3. Outcomes • By the end of this lecture you should be able to: • State the differences between criminal and civil litigation and the terminology employed in both; • Describe the basic court structure and how cases are allocated between courts in criminal proceedings; • Describe the conduct of criminal investigation and how matters get before the courts; • Describe the tests which are applied by the Crown Prosecution Service in deciding whether to prosecute an offence; • Describe and critically consider the changes that have been made to the funding of legal assistance in criminal proceedings.

4. Criminal and Civil Litigation Distinguished • Different terminology • Different objectives • Different procedures

5. Review of the Criminal Courts Courts of first instance in Criminal Proceedings: • The Magistrates’ Courts – summary only/either way offences – the information - lay bench with a court clerk or District Judge • The Crown Court – indictable offences/either way offences – the indictment - professional judge and a jury

6. Introduction to PACE 1984 • The Police have great powers in the investigation of crime • Those powers may be open to abuse • The courts regulated themselves for many years by the Judges’ Rules, a code developed by the judges of the Queen’s Bench Division of the High Court • Following the Philips Royal Commission on Criminal Procedure (1981, Cmnd 8092) The Police and Criminal Evidence Act was introduced • There are also Codes of Practice which supplement the Act

7. Codes of Practice • Code A – powers of stop and search • Code B – searching of premises • Code C – detention, treatment and questioning of suspects • Code D – identification of persons by police officers • Code E – tape recording

8. Status of the codes • The Codes are not a source of law – they are issued as guidelines to be followed in the investigation of crime • A breach of a code cannot found a claim for damages or the prosecution of a police officer (s.67 (10) PACE 1984) • Originally breach of a code was an automatic offence against the police disciplinary code – subsequently abolished • A judge has the discretion to exclude evidence which has been obtained in breach of the codes of practice

9. Interviewing • Obviously a major part of what the police do • Home Office Research by Professor John Baldwin: • 64% of interviews conducted competently; • 25% not conducted very well; • 11% conducted poorly. • See Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9th edition)

10. What was wrong with police interviewing? • Baldwin’s research highlighted the following problems with police interviewing techniques: • Lack of preparation; • A general ineptitude; • Poor technique; • An assumption of guilt; • Unduly repetitive; • Persistent or laboured questioning; • Failure to establish relevant facts; • Exertion of too much pressure.

11. Legal advice • Before PACE was brought into force the percentage of suspects who saw a lawyer was very small • Philips Commission recommended that a suspect should be given the right to be informed that they may have a solicitor present • Some circumstances in which it was thought undesirable for the suspect to have a solicitor • This was enacted in s.58 (1) of PACE 1984

12. s.58 (1) PACE 1984 • ‘A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time’ • There has been much litigation on this subject and delay in particular in allowing the suspect to consult a solicitor – see the case of Samuel [1988] QB 615 • See later in the lecture for provisions as to the funding of legal services at the police station and in particular the provision of a duty solicitor

13. The Right to Silence • Do you have to answer police questions? General answer is no – Rice v Connolly [1966] 2 QB 414 Professor Zander lists 4 exceptions to the rule: • Motorists; • Under the Official Secrets Act 1911; • Powers under the Companies Act 1985; • In relation to terrorism and drug-trafficking. The judge could not suggest to the jury at trial that the silence was evidence that the accused was guilty of the offence charged – abolished by the Criminal Justice and Public Order Act 1994 Essentially now the Prosecution and the Judge can comment upon a failure to give evidence

14. Other rights during detention • The right to inform someone that you have been arrested – s.56 PACE • The right to read the record of any interview and sign it as correct or point out what is incorrect – under Code C • Requirements as to the treatment of the detainee – limits on occupancy of cell, toilet and wash facilities available, three meals a day and exercise as required, a change of clothing should also be made available

15. Who can prosecute offences? • The Crown Prosecution Service – the State • Public Bodies • Private prosecutions

16. The Crown Prosecution Service • Traditionally no centrally organised ministry of justice in England and Wales • CPS established by s. 1 of the Crown Prosecution Act 1985 • Reasons behind its introduction: • Prosecutions to be independent; • Objective Assessment of Evidence; • Cases presented to find ‘the truth’, not based on winning and losing.

17. Structure of the CPS • Director of Public Prosecutions • Chief Crown Prosecutors • 6,000 other staff – qualified lawyers and case workers

18. Problems in the CPS The Glidewell Report 1998 • Little co-ordination with the police • Little control over its case-load • Morale low (see Zander pp.201-209 on the above) • Bias

19. Solutions put forward The report went on to suggest reforms: • CPS to be more involved in listing cases; • Devolution of responsibility within the service linked to the move from 13 to 42 areas; • A ‘showcase for the Legal Profession’.

20. The Discretion to Discontinue • CPS discretion and the police discretion to prosecute • How do they decide? • Where does the test come from? • Formal cautions and fixed penalty notices

21. Lord Shawcross, AG • Speaking in the House of Commons in 1951: ‘It has never been the rule of this Country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should prosecute ‘wherever it appears that the offence or the circumstances of its commission are of such a character that a prosecution in respect thereof is required in the public interest.’’

22. The Evidential Test • A realistic prospect of conviction • Admissibility of evidence • Reliability or weight of evidence

23. The Public Interest Test • Whether the public interest factors in favour of a prosecution outweigh those against a prosecution • Factors in favour of prosecution • Factors against prosecuting

24. Bringing Someone Before the Court 2 Basic Means of bringing someone before a criminal court: • Laying of information and the issue of Summons or warrant for arrest • Arrest without warrant and charge

25. Arrestable offences • PACE s.24 • The Police Officer may arrest a person whom he has reasonable grounds to suspect has committed, is committing, or is about to commit an arrestable offence • An arrestable offence is one punishable with five years imprisonment or more, plus a few specific offences • A private citizen may make an arrest if he has reasonable suspicion that a person is committing an arrestable offence • Differentiates between a serious and non-serious arrestable offence – this determines how long the suspect may be detained at the police station

26. How is someone arrested? • 2 possibilities • Words which are clear to the fact that the suspect is under arrest; • Physical contact followed by words which are clear as to the fact that the suspect is under arrest. The use of the caution: ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned anything which you later rely on in court. Anything you do say may be given in evidence.’

27. Funding Criminal Cases • The problem in context - £2 billion budget set by the government – old legal aid arrangements were uncapped, new arrangements are capped • ‘Legal Aid’ – Legal Aid and Advice Act 1949 • The Access to Justice Act 1999 – created the Legal Services Commission replacing the old Legal Aid Board for both criminal and civil funding • Legal Aid is still a term used by lawyers, although public funding is technically more correct

28. Test for the grant of public funding in criminal litigation The different type of legal work involved must be differentiated: • Advice and assistance – see Criminal Defence Service (General) (No.2) Regulations 2001 (SI 2001/1437) • Advice and assistance to all individuals arrested and held in custody; • Advocacy assistance before a Magistrates’ or Crown Court; • Advice and assistance by the Duty Solicitor; • Advice and assistance provided to a volunteer; • Advice and assistance provided to an individual interviewed in connection with a serious service offence. All of the above are provided free and without a merits test of the case

29. The Criminal Defence Service (CDS) 2000-2001 Government published a series of consultation documents on the CDS April 2001 the CDS was launched Employed prosecutors and defenders Are the firms independent enough to conduct the defence? • The Code of Conduct approved by Parliament in March 2001

30. Legal Assistance at the Police Station • Free Legal Advice at the Police Station 1. Not means tested; 2. No merits test; 3. Advice by solicitor of their choice; 4. Importance of Representation at the police station.

31. The Duty Solicitor • Aimed at representing defendants on their first appearance at court • Not means-tested – i.e. is free to the accused • Can make applications for bail or adjournments • Pleas in mitigation – where the case is dealt with at first attendance

32. Summary of lecture • You should now be able to: • Describe the basic structure of criminal courts of first instance in England and Wales and state how cases are allocated between them by the classification of offences; • Outline the procedure for the investigation of crime in this country and the role played by the police and other public bodies in prosecution; • Describe the tests by which the Crown Prosecution Service decides whether to prosecute an offence; • Critically consider the current funding arrangements for legal funding in criminal proceedings and in particular reforms made in this area.

33. Further reading • Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9th edition), chapter 3 to p. 254 • Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition), chapter 9 and chapter 12, pp.592-597 only • Ingman, T., ‘The English Legal Process’ (Oxford: Oxford University Press, 2004, 10th edition), pp. 80 – 90 on the funding of criminal litigation