What is an indictable offence and how is it brought to trial?
Tutor-marked Assignment C
. What is an indictable offence and how is it brought to trial?
An indictable offence is an offence that may be tried on indictment, i.e.- by a jury in the Crown Court. Most serious offences i.e. murder and rape are indictable offences. A judge and jury in the Crown Court try indictable offences, and the magistrates sit only as examining justices to decide whether the prosecution has sufficient evidence to justify a trial.
In a Practice Direction issued in May 1995, Lord Taylor CJ defined the four classes of offence triable on indictment as follows:
> Class 1: Offences carrying the death penalty, misprision of treason, treason felony, murder, genocide, offences under s.1 of the Official Secrets Act 1911, and incitement, attempt or conspiracy to commit any of these.
> Class 2: Manslaughter, infanticide, child destruction, abortion, rape, sexual intercourse or incest with a girl under 13, sedition, offences against s.1 of the Geneva Conventions Act 1957, mutiny, piracy, and incitement, attempt or conspiracy to commit any of these.
> Class 3: All offences triable only on indictment except as listed in Class 1, 2 or 4.
> Class 4: Wounding or causing grievous bodily harm with intent, robbery or assault with intent to rob, incitement or attempt to commit any of these, common law conspiracy, or conspiracy to commit any offence in Class 3 or 4, and all offences triable either way.
Class 1 offences are normally tried by a High Court judge, Class 2 offences by a High Court judge or Circuit judge, Class 3 offences by a High Court judge, Circuit judge or Recorder, and Class 4 offences by a Circuit judge, Recorder or Assistant Recorder, though in each case there are provisions for cases to be tried by other named judges with the approval of the presiding judge of the circuit and/or the Lord Chief Justice. A Circuit judge or an experienced Recorder normally hears appeals from magistrates' courts.
After committal, there is a "plea and directions hearing" before a judge alone, at which the defendant is arraigned, the indictment is read, and the defendant pleads guilty or not guilty. This should take place within six weeks of committal where the defendant is remanded on bail, and within four weeks if he is held in custody. If the defendant pleads guilty (as 70% do) the judge goes directly to sentencing.
In fact the Defendant has several options.
> He may simply plead guilty, admitting the facts alleged, the relevant mens rea, and any points of law involved.
> He may plead guilty to a lesser offence (manslaughter when charged with murder, for example), in which case the prosecution and the judge must decide whether or not to accept this plea and drop the greater charge.
> He may plead guilty to some counts and not guilty to others, when again the prosecution must decide whether to accept the plea.
> He may plead autrefois acquit or autrefois convict if he has already been tried for this offence; if this is established he cannot be tried again.
> He may enter a demurrer, if he admits the facts and intention but denies that they constitute in law the offence charged.
> He may move to quash a faulty indictment, though where the fault is minor the court can amend the indictment so that the trial can proceed.
> He may plead not guilty, which does not necessarily assert innocence but challenges the prosecution to prove its case. This is also the appropriate plea if he admits the facts but claims some justification such as self-defence.
> If the defendant refuses to plead at all, a special trial is held at which a jury decides whether he is unwilling to do so (in which case a plea of not guilty is entered on his behalf and the trial goes ahead) or unable (in which case he may be sent to a mental hospital until, if ever, he is fit to stand trial).
If the defendant pleads not guilty the judge (with help from both sides) tries to identify
> Which alleged facts are admitted and which are denied;
> Whether the defendant's mental state is an issue in the trial;
> What witnesses are to be called, and what documents or other exhibits produced;
> What legal points are to be raised; and
> Any other matters affecting the proper trial of the case.
The judge then gives any necessary directions and sets a date for the trial proper. If only legal issues are in dispute this will be a trial before a judge alone, but disputed facts (other than details relevant only to sentencing) must go before a jury.
The Plea and Direction's Hearing represents a small move towards greater openness on the part of the defence: as the law stands, the prosecution must disclose virtually all its evidence to the defence in advance of the main trial, while the defence need disclose nothing except (if it is appropriate) an intention to raise a defence of alibi. The Royal Commission proposed that all defendants who intend to contest the charges against them should be obliged to disclose the substance of their defence in advance of the trial, or alternatively to indicate that they will not be calling any evidence but will simply be arguing that the prosecution has failed to make out its case. Moreover, if the defendant discloses at this stage a number of mutually exclusive alternative defences, the prosecution should be able to invite the jury to draw adverse inferences. These proposals have not yet been put into effect.
At the start of the trial, a jury is empanelled and sworn. The prosecution or defence can object to a particular juror for good cause, but there is no voir dire and no peremptory challenge. The prosecuting barrister then outlines the prosecution's case and calls witnesses. Each witness is examined "in chief" by the prosecutor, cross-examined by the defence, and re-examined if necessary to clear up any ambiguities: the judge may also ask relevant questions of his own, but must not adopt the role of an advocate. Where a witness has purely formal evidence to give, which is ...
This is a preview of the whole essay
At the start of the trial, a jury is empanelled and sworn. The prosecution or defence can object to a particular juror for good cause, but there is no voir dire and no peremptory challenge. The prosecuting barrister then outlines the prosecution's case and calls witnesses. Each witness is examined "in chief" by the prosecutor, cross-examined by the defence, and re-examined if necessary to clear up any ambiguities: the judge may also ask relevant questions of his own, but must not adopt the role of an advocate. Where a witness has purely formal evidence to give, which is not disputed by the defence, his deposition from the committal hearing may be accepted in lieu of oral evidence.
At the end of the prosecution's case, the defence may submit there is "no case to answer"; if the judge agrees, he directs the jury to return a verdict of "not guilty" and the case comes to an end. If the defence does not make a submission, or if the submission is rejected, the defence may call witnesses who are examined in chief and cross-examined by the prosecutor. The defendant may give evidence on his own behalf. He is not obliged to do so, but if he does not do so the jury can draw inferences from that refusal, just as the magistrates can in a summary trial.
At the end of the evidence, counsel may argue any remaining legal points before the judge (arguments as to the admissibility of evidence having been dealt with as they arose) and then (prosecution first) make their closing speeches to the jury. The judge then sums up the case for the benefit of the jury: he summarises the evidence, explains the points of law involved and the possible verdicts, and reminds them that it is up to the prosecution to prove its case beyond reasonable doubt.
The jury then retire, and return in due course with a verdict announced by the foreman. Until recently, the rule was that once the jury had begun their deliberations, they should be sequestered and kept away from any outside influences, but s.43 of the Criminal Justice and Public Order Act 1994 gives the judge discretion to let the jury separate (e.g. to go home overnight) during their deliberations as well as during the earlier part of the trial. The jury's verdict (guilty or not guilty) must normally be unanimous, but if after two hours they are still unable to agree the judge may accept a majority verdict (11-1 or 10-2, or 10-1 or 9-1 if some jurors have been discharged). About 20% of convictions are by a majority; the percentage of majority acquittals is unknown.
If the jury are unable to reach a verdict, they may be discharged and the case retried before a new jury; if two juries fail to agree, the prosecution does not usually offer any evidence at the third trial, so that the defendant is formally acquitted.
Occasionally, if the jury convict on the main charge but disagree on a lesser one (or if the counts of the indictment are severed so that D is initially tried only on the most serious), the judge may direct that the remaining charges lie on the file, not to be proceeded with without the consent of the court. This is technically an adjournment sine die; only very rarely does a further trial take place in such a case, but it protects the Crown's position if the defendant successfully appeals against his conviction on the main charge.
If the defendant pleads guilty, or is convicted after trial, the judge decides a sentence; the jury have no part to play in this. The prosecutor outlines the facts (if there was no trial) and lists the defendant's previous convictions, but does not argue for any particular sentence. The defence may offer a plea in mitigation, arguing for a light sentence. The judge may postpone sentence to obtain social or medical reports, particularly if he is considering custody.
A convicted defendant may be ordered to pay the costs of the prosecution: this is particularly common in motoring cases and other minor cases tried summarily, but may happen in the Crown Court too. An acquitted defendant often has his costs paid by the state, but this is not automatic: in R v Grobbelaar & others (1997 unreported), where three footballers and a businessman were acquitted of conspiracy to defraud by "fixing" football matches, McCullough J refused applications for costs by two of the defendants. John Fashanu, he said, had brought suspicion on himself by receiving £1/4m from abroad, paying it into bank accounts in three different names, and then refusing to give any explanation when questioned. Hans Segers had also brought suspicion on himself by telling "lie upon lie to the police" about the source of £100k in a Swiss bank account. The judge therefore exercised his discretion to refuse their applications for costs, leaving them to pay their own bills of over £1/2m and £30k respectively.
Tutor-marked Assignment C
2. a) What are the distinctions between Regulations, Directives and Decisions in the Law of the European Union?
There are many distinctions between European union Regulations, Directives and Decisions. Here are the main distinctions:
Regulations-
Regulations are made by the Council of Ministers (with the consent of Parliament) or the Commission (within its delegated powers) and they have general effect, in that they apply to the whole EU. They are binding in their entirety and are directly applicable to all Members States; this removes the necessity for Member States to enact legislation covering the same area.
Regulations may deal with matters of minor detail or with fundamental issues. Council Regulation 1612/68, for example, sets out principles for promoting the free movement of workers by abolishing discrimination with regards to, employment, remuneration, trade union rights etc.
An individual can rely on the provisions of a Regulation before a domestic court, either against his government or against another individual. Similarly, an individual may be prosecuted for violating a Regulation, without the need for separate domestic legislation.
Directives-
Directives are issued by the Council of Ministers with the consent of the Parliament, or occasionally by the Commission under delegated powers. They are binding as to the result to be achieved, but leave the choice of form and method to the individual Member State. For example, the Product Liability Directive 85/374 was implemented in the UK by the Consumer Protection Act 1986, and the Unfair Contract Terms Directive 93/13 was put into effect (six months after the deadline) by the Unfair Terms in Contracts Regulations 1994.
Directives are binding on Member States but not individuals, and cannot generally be relied upon in domestic courts. A Member State, which fails to implement, a Directive by the required date is in breach of its obligations and can be called to account by the Commission before the European Court of Justice.
Where a Member State persistently fails to comply with a Directive, or with any other Community obligation, the European Court of Justice has power to impose a financial penalty. The process is a long one:
> A formal letter from the Commission asking for an explanation of the breach,
> A 'reasoned opinion' from the Commission rejecting the State's explanation (if any)
> Proceedings before the European Court of Justice to establish liability for the breach,
> A reasonable amount of time to comply with the courts decision,
> A further formal letter asking for an explanation of non-compliance
> A further 'reasoned opinion' and finally
> A further proceeding before the European Court of Justice
The amount of any penalty imposed depends on three factors:
> The seriousness of the breach, including its effects on private and public interests and the urgency of the remedial action;
> The Member State's ability to pay, as shown in a published table based on population and economic health; and
> The duration of the infringement which is taken into account by setting the penalty at a fixed rate per day until compliance is secured.
The first such penalty was imposed on Greece in July 2000; there are two other cases pending.
Decisions-
Decisions differ from Regulations in that they generally concern specific people or institutions rather than applying to people or institutions in an abstract sense. They can be addressed to Member States, to corporations or to individual citizens.
2. b) Examine the extent to which membership of the European Union has affected the sovereignty of Parliament, and how does the European Court of Justice seek to enforce its powers?
A major influence on English law and on the English legal system has been our membership of the European Community. In spite of the rhetoric of politicians there is no doubt that by joining the EC the United Kingdom gave up some of its sovereignty. Not only is there now an external body competent to make laws affecting the United Kingdom, which will be applied by the English courts regardless of the wishes of Parliament, but Parliament is no longer free to legislate without limits in areas governed by Community law, and Acts of Parliament can be declared ineffective insofar as they transgress any directly applicable rules of European law.
The traditional view expressed by Dicey and others is that Parliament is sovereign and can make or unmake any law on any subject whatsoever, without legal constraints. The powers of Parliament are undoubtedly considerable, as we have already seen, and there are many people (including some lawyers) who still hold to Dicey's views.
The idea of parliamentary sovereignty is that Parliament (or strictly, the Queen in Parliament) can make or unmake any law on any subject whatever, without any legal restriction. This idea was generally accepted as reality a hundred years ago, or even fifty years ago, but there must now be some doubt as to its truth. Parliament is certainly restricted by the UK's membership of the European Union, and other international treaties such as the European Convention on Human Rights may also have put some limits on its freedom to legislate.
Without any doubt, the greatest limitations on Parliamentary sovereignty now arise from membership of the European Union. There is room for debate as to whether this is a good or a bad thing, and/or whether the advantages of membership outweigh the perceived disadvantage of lost sovereignty, but any sensible person must surely admit that Parliamentary sovereignty has been curtailed. There are three main ways in which this is evident.
First, there is now an external body (or bodies, perhaps) competent to make laws affecting the United Kingdom, which are applied by the English courts irrespective of the wishes of Parliament.
Second, the United Kingdom is obliged to legislate to implement obligations arising from EU membership.
Council Directive 93/104 requires all member states to introduce legislation restricting the working week to no more than 48 hours except in certain types of work or where the employee works additional hours voluntarily. Both the previous (Conservative) government and the present (Labour) one has been very reluctant to implement this Directive; although legislation has now been introduced it contains so many exceptions and loopholes that it is unlikely to have any effect where it is most needed. It is too early to know whether the UK legislation is in fact sufficient to meet the requirements of the Directive.
Similarly, Council Directive 76/160 required Member States to take effective action to ensure the satisfactory quality of water at all bathing beaches. The UK complied very reluctantly, initially designating only 27 "bathing beaches" in the whole country, and has still not fully complied 25 years later. (About 95 per cent of British beaches currently satisfy the criteria, which are about the same as the figure for other member states.)
Section 2(2) of the European Communities Act 1972 allows the government to legislate by Order in Council or by Statutory Instrument to implement European obligations; such secondary legislation (subject to certain limited safeguards) can even amend or repeal Acts of Parliament.
Third, and perhaps most important, parliament is no longer free to legislate without restriction in areas governed by Community law. An Act of Parliament incompatible with any requirement of European law can and must be declared invalid and ineffective to the extent of that incompatibility. This is highlighted by the case below.
R v Secretary of State for Transport ex p Factortame (No.2) [1991] 1 All ER 70, HL
Spanish fishermen AA claimed the UK fisheries policy (as effected by the Merchant Shipping Act 1988) was contrary to Community Law, and sought an interim order directing the Secretary of State not to enforce the Act pending a full trial of the issue. The Divisional Court referred the substantive question to the Court of Justice, but ordered by way of interim relief that the Regulations should not be applied as against PP. The Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament, but the Court of Justice disagreed. A national court, which, in a case before it concerning Community law, considers that the sole obstacle, which precludes it from granting interim relief, is a rule of national law, must set aside that rule. The House of Lords thereupon granted an order restraining the Secretary of State from enforcing the legislation in question against PP.
The European Court of Justice is in no doubt that Community law overrides any national law that conflicts with it. The European Court of Justice has two separate functions: a judicial role, deciding cases of dispute and a supervisory role.
The judicial role, the European Court of Justice hears cases of dispute between parties, which fall into two categories: proceedings against member states, and proceedings against EU institutions.
Proceedings against member states may be brought by the commission, or by other member states, and involve alleged breaches of community law by the country in question.
Proceedings against EU institutions may be brought by member states, other EU institutions and in certain circumstances, by individual citizens or organisations. The procedure can be used to review the legality of EU regulations, directives or decisions, on the grounds that proper procedures have not been followed, the provisions infringe the treaty or any rule relating to its application, or powers have been misused.
The supervisory role of the European Court of Justice, Article 234 of the Treaty of Rome provides that any court or tribunal in a member state may refer a question on EU law to the European Court of Justice, if it considers that 'a decision on that question is necessary to enable it to give judgement'. The object of this referral system is to make sure that the law is interpreted in the same way throughout the community.
The European Court of Justice is vitally important, within the English Legal System, due to the supremacy of European law over our own domestic law.
Under Article 234, the decisions of the courts in these cases provide precedents which the English courts must follow, effectively this means the House of Lords is no longer the highest court in the land and does not have the final say on areas of law the European Union is involved with.
It should be clearly stated though that the European Court of Justice is not an appellate court, as the European Court of Justice does not decide cases referred to it under Article 234, but explains the law so the national courts can do so. It is important to note that Article 234 has important implications for national Governments. As a result of Article 234, Governments have often had to change statute law.
Tutor-marked Assignment C
3. Briefly explain the key differences between the three types of Alternative Dispute Resolution and explain why they are preferable to the ordinary civil courts.
There are key differences between the three types of alternative dispute resolution.
Tribunals-
Tribunals should perhaps be regarded as a 'half-way house' between litigation and alternative dispute resolution, since they have many of the attributes of the courts. The Employment Appeals Tribunal, for example, is officially 'a superior Court of Record'.
In the volume of business they conduct, Tribunals are actually much more important than courts. In a typical year, about 750,000 cases are decided in Tribunals, compared with about 150,000 in the High Court and County Court (including Small Claims) put together.
A Tribunal usually consists of three people (a legally qualified Chairman and two lay members with expert knowledge of the subject), but may be more or fewer.
Each Tribunal has a limited area of competence, but disputes within that area are heard exclusively by the Tribunal and not by the ordinary courts. There maybe about a hundred different kinds of Tribunal; some sit very rarely, but among the more important are:
> Appeals Tribunals under the Social Security Act 1998.
300,000 appeals against benefits refusal, child support payments etc
> Employment Tribunals
25,000 claims of unfair dismissal, discrimination etc
Hearings are generally semi-formal: each side is expected to put its case (and perhaps call witnesses) in turn, but wigs and gowns are not usually worn and the strict rules of evidence are not applied. There are no court fees to pay, but each side must bear its own costs no matter who wins. Legal aid is not available except in Mental Health Review Tribunals.
Each Tribunal has certain specified powers appropriate to its responsibilities; the ordinary powers of a court (such as the award of damages or the issue of an injunction) are not generally available. Most of the major Tribunals have a statutory duty to give (brief) reasons for their decisions, and others may sometimes have to do so as a matter of fairness.
Arbitration-
Arbitration is a step further away from formal litigation, but shares with it an essentially adversarial process and the fact that the ultimate decision (made by a third party) is binding. It has a distinction, which is that the parties in dispute agree to accept as binding the decision of an independent third party, and to waive other rights of action.
The parties may include an Arbitration clause in their original contract, committing themselves to accept Arbitration should the need arise and specifying the Arbitrator or the process of appointment. Alternatively, parties already in dispute may voluntarily agree at that stage to refer the matter to Arbitration rather than pursue other remedies. The cost of Arbitration (including Arbitrator's fee) is paid by the parties in whatever proportions they may agree.
The parties and the Arbitrator agree the actual procedure together; there is no power to compel (e.g. disclose) as in litigation. The process is still essentially adversarial, with each side putting forwards its own arguments and evidence, there maybe oral hearings, but often the arguments are submitted in writing. An Arbitrator has discretion over the awarding of costs, but normally awards reasonable costs to the winner,
The Arbitrator's decision is binding on the parties, and can be enforced as if it were a court judgement. There is no right of appeal, except to the High Court against 'serious irregularity' such as an excess of jurisdiction, a violation of natural justice, or a visible error of law.
Mediation or Conciliation-
Meditation is widespread in domestic disputes (e.g. divorce and custody cases), but operates in other fields too. An impartial third party acts as Mediator, not imposing any decision but encouraging the parties to discuss their differences and to reach their own agreed solution. Meditation is often much quicker than litigation and judges often encourage the parties to try Meditation before going to court as a last resort.
Procedures vary, but typically there is an initial meeting at which each party puts forwards its position, followed by private meetings between the Mediator and each side in turn, followed by a second plenary meeting in which the Mediator helps the parties negotiate face-to-face. The whole process is confidential. The Mediator is a facilitator rather than a participant in the debate; the ultimate decision (which may be enforceable as an ordinary contract once it is reached) is the responsibility of the parties themselves.
Conciliation is similar to mediation the main difference being that a conciliator takes a more pro-active role than a mediator.
Alternative dispute resolution is preferable to ordinary court proceedings, as:
> If the ordinary courts were used then there would be an increase in expense for everyone involved
> Alternative dispute resolution is a lot quicker than the process of ordinary court proceedings
> Cases can be decided on their individual merit as tribunals especially, are not bound by strict rules of precedent and of evidence as Courts are
> Expertise can be used in particular problems
Claire Spencer Page 1 09/05/2007