Discuss and critically consider the advantages and disadvantages of criminal trials from the views of younger offender, their families, victims, families of victims and the general public

eTMA 05

Open University - Law

Gary S Humphrey, X6434901

The purpose of this essay is to explain, discuss and critically consider the advantages and disadvantages of criminal trials from the views of younger offender, their families, victims, families of victims and the general public.

There are three categories of offences. Summary, either way and indictable. Summary being tried by magistrates', indictable by Crown and either way by magistrates' or Crown.

When an offender has been charged with an offence, they must know what the accusation is. This is normally given though a written notice though a summons or indictment. At this point, they are still presumed innocent until proven otherwise. They then attend court where the evidence is heard against them. There are strict rules regarding identifying evidence. The standard of proof in criminal cases is 'beyond reasonable doubt'. Meaning that it is more than likely that the offender did commit the said crime. What follow are some miscarriages of justice.

Matten was wrongly convicted of a murder and was sentenced to death in 1952. In, 1998 the appeal stood. However, the life could not be returned. (R v Mattan (1998)).

X, a young school boy was wrongly convinced and sentenced. Although he matched none of the descriptions given by the victim. On appeal, the conviction was quashed. However, the 6 month sentence was already served. (R v X (2003)).

R v Turnull (1977) developed the mnemonic ADVOKATE, providing investigating police officers guidelines when taking statements. Detailing some very important guidelines that will prevent cases of R v Mattan and R v X (2003) happening again. However, it is clear there are still misfortunes in justice.

Evidence can take forms of written evidence though statements, oral accounts and expert witnesses. Although it has been upheld in court that expert witness may sometime be wrong. The case of R v Cannings (2004) describes this. The expert witness and his testimonial was critical to the conviction of Cannings. However, in light of new evidence, her conviction was quashed.

In 2002, the government issued a white paper entitled 'Justice for All', proposing to 'rebalance the criminal justice system in favour of the victim...' (para 1.17). In 2006, the Code of practice for Victims of Crime was launched given the victims the right to be informed of progress on cases, given cretin support at court and the intervention of the victim personal statements. An advantage for victims of crime.

The criminal justice system ensures offenders are brought to justice. In doing this, the body now responsible for prosecuting is the Criminal Prosecuting Service (CPS). Independent from the courts and police, the CPS review, advise and prosecute for criminal offences.

Magistrates' and jury are also an independent party, they are regarded as the decision makers and make this decision without pressure from either side. The reason courts are open to the public is it encourages society to view justice being done in an open and fair way. In the case R v Sussex Justice ex p McCarthy (1924), Lord Hewart CJ explains,

''justice should not only be done, but manifestly and undoubtedly be seen to be done''.

In Crown Court, a judge and jury will be present. This form of trial is know as trial by jury. However, this is trial by judge and jury. A judge will address questions of law, procedure and admissibility of evidence. A jury, selected from the electoral registers consists of 12 members of society. They listen to evidence, decide questions of fact and deliberate on a verdict. A vote of at least 10 to 12 is required to pass a verdict. (s.17 Juries Act 1974). If found guilty, the judge will pass sentence.

A disadvantage of trail by jury is the risk of jury intimidation. As suggested in the Tony Martin case, this could cause controversy and lead to an influenced verdict. If no compliant if received, it is not investigated, possible leaving an innocent people incarcerated. Surely this threats the democratic system of trial by jury if in fact, the jury were influenced to make a decision not based on the case evidence and facts but by the fear of not following though a request.

An advantage for younger defendants is the possibility of a 'sympathy vote'. As seen is cases ...

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An advantage for younger defendants is the possibility of a 'sympathy vote'. As seen is cases such as Little (1861) in County Durham and in West London (1961). The jury delivered a verdict of not guilty for the charge of murder, primarily because the defendants were very young. Certainly age and moral innocence may influence final decision or outcome. (Open University, Unit 15, Part F, pp. 138). Furthermore, prejudice of a juror can be quashed by others members of the jury. Whereas magistrates' only requires a 2 to 3 decision. Clearly this identifies an advantage of trial by jury over magistrates'.

In a magistrates', 3 magistrates' or 1 district judge will trial cases. A lay magistrate in a community volunteer, not legally qualified. However, qualified clerk are present to assist on questions of law. The role of the magistrates' is to listen to evidence, deliberate on a verdict and pass appropriate sentence, if found guilty or the defendant pleads guilty. Here, the magistrates' plays the role of both the judge and jury. Not all cases remain with the magistrates'. Either way offences in magistrates' can be passed to Crown Court at pre-trial stages, usually if the crime is so serious or after hearing the case, the magistrates' decides their restricted sentencing powers can not reflect the crime committed, thus enabling Crown Courts to impose a more robust sentence. Guidelines are set out in s.19 Magistrate Court Act (1980). In addition, a defendant can also choose for trial by jury for either way offences. A disadvantage here is that if the defendant is in fact guilty, this may take up valuable court time that may have been utilised to trial more serious matters and crimes.

Around 98% of all criminal trials are head though magistrates'. (Open University, Block 4, pp79). It has been argued that some magistrates' become case hared and are more cynical and likely to pass sentence than trial by jury. However, in an average sitting of 40 cases in a year. A magistrates' may only trial around 8!. This is due to the majority of guilty pleas and dealing with non payment of fines and bail applications. (Grove (2002)).

The judiciary in Youth Courts consists of 2 or 3 magistrates', all specially selected for their experience or expertises in their area and specially facilitated to trail young offenders. The court process in Youth Courts are less formal than adult magistrates', enabling the young defendant to participate in the proceedings and also to protect the welfare of the young person. For these reasons, the public are not permitted to observe in youth courts. Not the approach taken with the Bulger case.

When magistrates', judges or members of the jury listens to evidence in any court, there is a mixture of statutes and decision of judges that govern what can and cannot be used as evidence. (Criminal Evidence Act 1989 and Criminal Justice Act 2003). Evidence can be ruled inadmissible and therefore, the full facts not presented to the jury. This is questionable whether a person receives a fair trail if substitutional evidence to either support or defend a prosecution or verdict is left out. (McNamara 1986). A good example here is the case of Sparks v R (1964) where a white male, being accused of indecent assault against a young girl was in fact, not the perpetrator. The victim did not give evidence her attacked was 'coloured' and the courts denied the victims mother to give this evidence. Clearly a disadvantage to criminal trials and the innocent defendant and their families. In addition, if the real offender was not convicted, this resulted in a innocent person being convicted while the real perpetrator is still at large. This would be detrimental and a disadvantage to the victim and the victims families if later this transpired.

Lord Steyn in his decision in R v CC of Yorkshire Police regarded the use of forensic and technological developments as considerably important in relation to usable, admissible evidence. The ability to place someone at a scene of a crime is inevitable and can assist the investigation and secure the prosecution of the offender. However, this goes with out saying that the use of forensics can be misleading. This only placing the person at the scene of the crime, not necessarily associating them to the offence or in fact detailing when the person was there.

In both Crown and Magistrate court, a defendant can be represented by a qualified legal representative or themselves, this is known as litigation in person. It is fair to say that litigation in person could, in some cases, not amount to a fair trial. Notion of fair trails backdated to the Magna Carta (1215).

In the Bulger case, the advantages of criminal trails in England and Wales extent to receiving a fair trial. In the UK, a murder trial is assessed by both a judge and jury in a Crown Court. They jury, impartial to the investigate will decide on fact and the verdict. All trials are structured so that the jury are completely independent from the defendant. Unlike 800 years ago where the jury had to know the person concerned.

Disadvantages may include the child's inability to understand or comprehend what is happening and what they are being accused of. As previously stated, defendants must by fully aware what they are being accused off in order to lawfully convict a defendant.

Cases involving young offenders have seen varied outcomes. London, 1961. A boy aged 12 killed his mother following an argument. There was no trial and the accused was placed into care. Near Stockport, 1861. Two boys, aged 8 murdered a 2 years old. Questioned by police and charged. However, later found not guilty as they were unaware of what they were doing. Here clearly demonstrate discretion being used.

The Bailey case used alternative dispute resolution. Mediation can be used in certain circumstances. This process highlights with the correct support, participation from both the offender and aggrieved and input from external agencies, alternatives to prosecution can bring a positive outcome and alternative to prosecution. Although this process may not be suitable for all young offenders, it clearly demonstrates the varied approach available to the youth justice system and offers alternatives to prosecution. This goes without saying that some offence are more serious in nature and this discretion should be used wisely and after careful consideration.

Family members of young offenders are often tense throughout the trial. Not being able to be close to the defendant while they are in the dock can is surely a stressful experience for the family members.

Now turning to a similar case of Silge Raedergard in the Norwegian approach. In Norway, the authorities have a progressive welfare policy not to prosecute people under 15. One marked different is the intergeneration back into the community and attempts to rehabilitate the person, this is the main principles within the Norway approach that is different to the UK. Norway officials feels this will prevent further re offending.

Disadvantages for the family of victims may include the absence of justice. However, it is clear from that the approach is accepted within Norway and even families of victims, may sometimes even support the progressive welfare approach. As we can see from the UK, justice often is sought from the criminal justice system. We can clearly review media coverage of victims families fighting for guilty verdicts, justice and long, harsh custodial sentences. In addition, families may need forms of police protection though secret address's in high profile cases, as seen in the Bulger case. Mainly due to threats to the family, they had to move to a secure location.

Unlike the case in Norway, there was no public hatred at all. Not a single reprisal toward the family of the victim or offenders. The community worked together, along with professionals to bring the two accused back into society.

It is clear though media coverage and press articles that the public react strongly to serious crimes, as such, over 300 hundred people gathered outside the magistrates' court when Thompson and Venables first appeared. There was a large gathering of public hatred, some people even attempted to attack the transport vans. Spectators were chanting and public disorder broke out. The public was thirsty for justice. It is also fair to say that in order to report the news in an interesting and excitable way, some important information or controversy facts may be left out of the report, not amount to a fair review of the case.

In conclusion, it is likely that criminal offenders in the UK will receive an unbiased, fair trail. However, this goes without saying that the UK legal system could develop or adopt other approaches that allow the flexibility of rehabilitation as other countries have, such as Norway. Clearly the public and media also plays a part with regards to high profile cases and should be encouraged to review the whole facts before making a quick decision regarding cases. As such, they current system of dealing with younger offenders could stipulate more guidelines regarding what cases to trail and what cases where. It is also clear that prison sentencing is not always effective and alternative dispute resolution may transpire to be more effective and prevent further offending with the correct support systems in operation. Younger offender should be treated differently to adults and support networks in place to see this though.

Bibliography

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