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Critically discuss whether the criminal courts of England and Wales require substantial reform. Firstly I am going to focus on the criminal process and the different divisions of the courts within the practice. I will then describe the extent to which app
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Critically discuss whether the criminal courts of England and Wales require substantial reform?
In this essay I am going to research the different options and routes available through the courts in the English legal system and whether they require considerable improvement. Firstly I am going to focus on the criminal process and the different divisions of the courts within the practice.I will then describe the extent to which applications of modern technology are now being used in the courts of England and Wales, the substantial modernisation plans that are currently being implemented in some of the courts, how they can improve it and something of a vision of the future.
This essay is concerned with the criminal courts, and I am directing my attention only to courts and the court process, not to the police, to investigators, to prosecutors, nor or to those who act for defendants nor to those who keep them in custody or supervise them after conviction. But I want to lay down this important marker. None of us works in isolation. Decisions by the police and prosecuting authorities affect the way in which the courts do their work, just as decisions by the courts affect prison numbers. All are independent of each other, but all operate within the criminal justice system. The process of critical re-examination and re evaluation of the system should be constant, but we should not embrace change merely for the sake of current temporary fashion nor enforce it on the grounds of political correctness. I will use various concepts, facts and strategies and also progress by concluding the argument with how it can be improved. I will try to discuss how a decision taken at one point of criminal justice system may affect what occurs at another.
The term criminal law refers to any of various bodies of rules in different jurisdictions whose common feature is the potential for unique and often severe impositions as punishment for failure to fulfil. Criminal punishment, depending on the offence and authority, may include execution, loss of liberty, government supervision, or fines. There are some distinctive crimes, like murder, but the acts that are prohibited are not completely reliable between different criminal codes, and even within a particular code lines may be ambiguous as civil infractions may give rise also to criminal consequences. Criminal law in general is enforced by the government. (Ashworth, 1998)
Therefore, this is usually decided by reference to the main sources of law which are statue law and common law. If a conduct can be defined as a criminal conduct by an Act of Parliament then it is a criminal conduct. For example, stealing something as stated in the Theft Act 1968. Also if the conduct can be defined as a criminal conduct in common law then it is criminal conduct, e.g. murder is a common law.
So in conclusion when talking about the nature of a crime; it basically means that the offence breaks an important legal rule in the society and the rule may also be moral but is not so therefore society punishes the person who has committed the offence. In criminal cases it is up to the prosecution to prove the offence beyond all reasonable doubt. In other words if there is a doubt in the minds of any of the Magistrates or Jury in the crown court the defendant must be found not guilty. However, they can only be punished if they are found guilty and once this has happened then he/she is a criminal.
Also serious and less serious offences are reflected in the mode trial of each offence. An offender can be brought to trial in a magistrate’s court or a crown court. This depends if the offence is a summary offence, indictable offence or an either way offence. Summary offences are minor offences examples including drunk and disorderly and resisting arrest and breach of the peace which is tried in Magistrates Court. Indictable offences are serious offences such as murder and manslaughter and can be tried in the Crown Court. Either way offences are indictable offences which can be tried in the Magistrates Court or Crown Court depending on the nature of seriousness of the case. Examples include theft, assault causing actually bodily harm and counterfeiting offences.
All criminal cases start in the magistrates' court. Some cases begin in the magistrates' court and then automatically go to the Crown Court for trial by jury. Other cases are started and finished in the magistrates' court. These are where the defendant is not entitled to trial by jury. They are known as summary offences. Summary offences involve a maximum penalty of six months imprisonment and or a fine of up to £5,000 Magistrates also deal with offences where the defendant can choose trial by jury but decides to have their case heard in the magistrates' court. If the defendant chooses trial by jury, the case will be passed on to the Crown Court.
The High Court is presided over by the Lord Justice General and the Lord Justice Clerk. They usually sit as chairpersons in the courts of criminal appeal. The other full time judges, who are also Senators of the College of Justice, are known as Lords Commissioners of Justiciary when sitting in the High Court. Additionally, retired judges, and also temporary judges, who are usually senior Advocates or Sheriffs, are sometimes employed to assist in ensuring that the court can accommodate all the business with which it may have to deal.
The Court of Appeal deals with civil and criminal appeals in England and Wales.
Criminal appeals include appeals against convictions in the Crown Court, and points of law referred by the legal representative following conviction in the Crown Court or where the sentence imposed was unjustifiably lenient. The Criminal Division is presided over by the Lord Chief Justice and has jurisdiction over the following matters including Appeals by the defendant against conviction or sentence given at a trial on indictment in the Crown Court and References by the Attorney-General under Section 36 of the Criminal Justice Act 1972 on a point of law after a discharge on the accusation.
The House of Lords is the final court of appeal on points of law for the whole of the United Kingdom and Wales in criminal cases. In criminal cases, the House of Lords may hear appeals from the Court of Appeal of England and Wales, the High Court of England and Wales, the Court of Appeal in Northern Ireland and the Courts-Martial Appeal Court.
In criminal courts of England and Wales schemes like Electronic presentation of evidence, video-conferencing and electronic delivery of information about the progress of the court trial would be useful and increasingly be a hit for links with police, prisons, court procedure and many more. Theinstallation of modern IT infrastructure in the courts is an essential early stage of any court modernisation programme.
In my opinion there should be a scheme called e-filing in pilot schemes. There has been a lot of American experience with this. The essence of this is that anyone will be able to issue a money claim from his home or business computer. He will pay the fee and send the claim off electronically to the Court Service at any time of the day or night. The Court Service will then authenticate and issue the claim, so that many more people and businesses will have the benefits not only the court systems. This will take quite a load off court staff. At present courts rely on paper filing systems. It is not always easy to retain and motivate staff when files go missing, or get into a muddle quite so often. Nowadays court users have every reason to complain about some of the delays and inefficiencies that occur. Once modern software is in place, court staff and judges with case-management responsibilities will be able to handle cases far more efficiently before trial than is possible today. A modern electronic diary and listing system will enable trial dates to be fixed more quickly and judges time to be more effectively used.
Another way for courts to be modernised is to use a web-based system which depends on someone keeping a log of events in the courtroom. These events are then transmitted immediately to the web screen. By way of example they may include: prosecution opening speech, prosecution lay evidence, police evidence, defence evidence, closing submissions by the prosecution, judge's summing up, jury in retirement, judgment and sentencing. The information on the web service should be accessible on monitor screens in the public parts of the court building and in the jury assembly area, and also on the website of the Crown Court. Text messages can also be sent to people who need to be warned when to attend court.
The extent to which judges in England and Wales are now making use of computers is increasingly rising. We are at present at something of a transition stage. Towards the end of 2002 a grant was obtained for the provision of 1,000 modern laptop computers to judges. This helped them understand the system better and work more efficiently and quickly. What I am motivating at is that changes in the criminal justice system are regular, and so they should be. Magistrates, some 30,000 or more, received no training of any kind. That after all was their purpose. They were simply decent citizens, offering their services as volunteers, offering common sense and a healthy amount of reality, but certainly they were not lawyers. Nowadays training is regarded as essential.
Concerning the years gone by, the courts and its process used to be different. The defendant could make a statement from the dock, instead of giving evidence and being cross examined. What is more the jury was directed to take account of such a statement. That entitlement has gone. The jury is directed to take account of the fact that he remains silent when he had an opportunity to give evidence on his own behalf. We now have a much better process in which the defendant is entitled to seek and the judge entitled to give an indication of the sentence he has in mind in the particular case. The Criminal Justice System is a living instrument. It must be relevant and kept relevant to the changing needs of the community it serves.
That court was built long before the typewriter. There was no electric light, no telephone. All these, when introduced, were “modern technology”. We have current modern technology, but a great deal of it has contributed to the increasing length of trials with its endless paper. File after file, folder after folder, this problem is not confined to the legal system.
This has contributed to a dramatic change in the role of the trial judge. Looking back at the years gone by virtually every judge believed that his or her role was to act as a referee, fairly keeping the balance between the prosecution and the defence, and occasionally blowing the whistle if one side or the other went offside or infringed the rules. Many judges would not read the papers before they went into court, genuinely believing that this would influence them to one side or other. The process worked on the basis that there was sufficient time for the advocates to be able to inform the judge of all the details of the case in the course of their arguments. That is no longer true. There is no time. Judges have a far more proactive role. Well in advance of the trial, it is their responsibility to get a firm grip of the case, seek to identify the issues, and give directions for the conduct of the trial. So in my opinion all this evidence bought forward is a very good form of reform in the courts of England and Wales.
Using modern technology, and without the need for the parties to come to court and time provided for them, the judge deals with these matters administratively, before he resumes the ongoing trial. Not everyone will agree with these changes but then, as with every proposal for improvement or reform, not everyone does, and when opposition is expressed on principal grounds, it requires careful attention. These new functions have been described as “all stylish and modern but…revolutionary of the adversarial process. Well, I respectfully disagree. This is an area where modern technology has been hugely beneficial.
The problem has some implications for the way in which our media have to address the problem of pre-trial publicity. It is legitimate for it to be pointed out that however measured our own media may be, the basis for requiring media silence is undermined if and when the citizen, not yet called to serve on the jury and seeking further information than that already published, can access it through the internet. That too is another problem. To my mind, however, there is a further connection, but longer term problem, which I have mentioned in the past, but which we have not yet addressed, but should anticipate having to face. Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the essential ingredient of the adversarial system. Witness speaks and answer questions, Counsel speak and address the jury and Judges speak and give directions.
Being realistic and addressing the access jurors have to the internet. Nowadays, judges at the outset of the trial among other directions to the jury direct them not to look at the internet in connection with the trial. We assume that the direction is accepted and obeyed, although unavoidably, from time to time an individual juror will disregard the direction and make his own private enquiries.
When I look back over the last five years, it is obvious that courts have made huge advances. There is still, however, a lot of work to do. Once all the remainder of private copyright entitlements have disappeared, the way will be open to publish to everyone electronically all the judgments of courts and appeal tribunals which are yet to be published. It is interesting to see how courts are changing rapidly but there is still a lot of substantial reform required to the courts of England and Wales. They have still got a long way to go I will be very fascinated to watch the future.
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The criminal process - an evaluative study, A Ashworth, (2nd edition), Oxford, 1998
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