Machinery of Justice

MACHINERY OF JUSTICE

The English Legal System is, unlike most other European

countries which have an inquisitorial system, adversarial and
accusatorial. One limitation of our adversarial system is that, if
some facts are not in either partys interests, they may never
be disclosed.
In the early 1990s, after several high-profile miscarriages of
justice such as the Guildford Four, there was considerable
media interest in the adoption of a more inquisitorial and less
adversarial style of system.
The most costly part of the English Legal System is the criminal
justice process at a cost of around 14 billion in public money
each year. This figure is comparatively low areas such as
defence, social security and health are much more generously
funded. The legal reforms of the past twenty years have largely
been focussed on reducing the cost and increasing the
efficiency of the system.
In 2001, a total of 14 billion was awarded in damages in the
civil courts. Of this 12 billion was against public bodies.
In the last few years the civil justice system has undergone a
complete overhaul in light of the reforms proposed by Lord
Woolf concerning the speed, fairness and cost of the system.
According to the Judicial Statistics (2001); in 2001 there were
1.74 million claims issued in the civil courts with only 13,500
trials and 58,300 small claims arbitrations.
In criminal cases, the prosecution must satisfy the court that
the defendant is guilty beyond reasonable doubt. In civil
cases, the burden of proof is a balance of probabilities.

Contents
[hide]
1 The Courts
o 1.1 Tribunals
o 1.2 Magistrates Courts
o 1.3 The Crown Court
o 1.4 The County Court
o 1.5 The High Court
o 1.6 The Appellate Committee of the House of Lords
o 1.7 The European Court of Justice
o 1.8 EU law and the UK
2 Police Powers
o 2.1 PACE 1984
o 2.2 Powers to Stop and Search - SECTIONS 1 TO 7
o 2.3 Powers to Arrest and Detain SECTIONS 24
o 2.4 Rights of Suspects During Detention
o 2.5 Questioning
o 2.6 The Right to Silence
o 2.7 Photos, Fingerprints and Samples
3 The Criminal Justice System
4 Sentencing
o 4.1 The Effects of Sentencing
o 4.2 Consistency in Sentencing is achieved by=
o 4.3 The Sentencing Advisory Panel
o 4.4 Sentencing and Reoffending Statistics
o 4.5 The Halliday Report on Sentencing
5 Powers of the Courts
6 Sentencing Young Offenders
7 The Civil Justice Process
o 7.1 Alternative Dispute Resolution
o 7.2 Mediation
o 7.3 Conciliation
o 7.4 Arbitration
8 The Woolf Reforms to Civil Justice
o 8.1 The Civil Procedure Rules
o 8.2 The Effect of the CP Rules
9 The Trial Process
o 9.1 Evidence
o 9.2 Young Defendants
o 9.3 Plea Bargaining
o 9.4 Bail
o 9.5 The Criminal Cases Review Commission
9.5.1 Functions
10 Comments
[edit]The Courts
Almost all of the work carried out by the courts takes place in
the lowest tiers the Magistrates Courts, the County Court
and the Tribunals. Permission for a case to be heard by the
House of Lords, the most senior national court, is only granted
in cases involving points of law of general public importance.

[edit]Tribunals
Although not formally part of the court system, Tribunals were
set up to provide a cheaper, faster and less formal procedure
for challenging official administrative decisions such as tax and
employment-related issues. Many Tribunals were introduced in
the early 1900s in order to ease the workload of the courts.
Since the 1950s, the Tribunal system has expanded
significantly there are now over 100 different Tribunals. Some
have an appellate level body which is chaired by a judge, and
can make decisions which affect peoples liberty and livelihood.
An example is the Immigration Appeal Tribunal, which decides
whether asylum seekers should be deported back to their
country.
Tribunals usually consist of a legally trained chairperson
assisted by two lay members. The lay members normally have
some professional expertise which is relevant to the particular
subject matter of the Tribunal. The most significant Tribunals
are chaired by High Court judges.
Some of the advantages of Tribunals are also problems. The
main reasons for creating Tribunals were flexibility, speed and
low cost but these features have also resulted in Tribunals
being criticised for inconsistency, rushed decision-making and
poor quality representation due to the absence of legal aid.
 Set up by the Government
Cover 75 areas
Over 2000 panels
All decisions may be judicially reviewed
Apart from Employment Tribunals, precedent does not
have to be followed
Cases heard in private benefits companies
Often little explanation for decisions reached
No funding for cases
Reviewed by the Legatt Report (2001)
Revealed that 70 tribunals hear more than one million
cases per year
Recommended better access to information and service, a
Customer *Charter, improved procedures and more use of
I.T.

[edit]Magistrates Courts
Over 700 courts and 30,000 magistrates (lay people who
sit part-time)
Date back to the 1200s
Local justice
Mostly criminal work
Civil jurisdiction includes family matters, Council Tax
matters, licensing of alcohol, licensing of entertainment
venues
All criminal cases begin here, and 95% end at this level
Hear approximately 1.9 million cases per year
Approx 90% of defendants plead guilty
Of the 10% who plead not guilty, around 70% are
convicted
Max sentencing powers:
o 6 months custody (12 months for 2 related offences)
The Criminal Justice Bill 2002 included a
provision for doubling this to 12 months
5,000 fine
 In 2001, magistrates imposed a total of 385
million in fines
Magistrates sit in panels of three and have a legally-qualified
Clerk to advise them on the law and their sentencing powers.
An appeal against sentence or conviction on a question of fact
goes to the Crown Court. An appeal against conviction on a
question of law alone goes to the Divisional Court of the
Queens Bench Division of the High Court.

[edit]The Crown Court

One body sitting in 78 centres throughout England and
Wales
Deals with approximately 90,000 cases per year - around
5% of all criminal cases
Most are indictable offences such as murder or arson
When a defendant pleads not guilty, a judge and a jury of
twelve lay people hear the trial. The judge decides on
procedure and sentence, the jury decides the verdict
Approx 70% of defendants plead guilty
Of those who plead not guilty, approx 60% are acquitted
40% convicted
A defendants chance of acquittal is therefore much higher
in the Crown Court than the Magistrates Courts
Appeals against conviction or sentence are to the Court of
Appeal (Criminal division)
Hears appeals from the MC
3 tiers:
1. Main centres such as Bristol High Court and Crown
Court centres
Can deal with all types of crime triable on
indictment
Separate judges for criminal and civil
Only a Crown Court High Court judges
regularly sit to hear cases
Can deal with all types of crime triable on
indictment
 Staffed by Circuit Judges and Recorders
Very serious cases are not heard because there
is no high court judge

[edit]The County Court

Hears the majority of civil cases disputes over money
owed, straightforward divorce cases, custody of children,
landlord and tenant disputes, probate, personal injury,
matters related to the Race Relations Act (1976)
Started 1846
218 in the UK
Attached to Crown Courts
Approx 2.2 million cases are started each year; the vast
majority are settled before they come to court
Many cases are heard in the Small Claims Court
o Research in 1999 by Prof John Baldwin found that
litigants who had used this system were generally much
more satisfied than those using the main County Court
system
Appeals against the County Courts decision on a
question or fact of law go to the Court of Appeal (Civil
Division) leave to appeal is almost always required

[edit]The High Court

Hears the most serious civil cases
Based in the Royal Courts of Justice in London
24 regional High Courts
Cases are also heard around the country by judges who
travel on circuit
Divided into 3 divisions:
1. The Queens Bench Division headed by the Lord
Chief Justice
Hears general civil cases such as claims for
breaches of contract, tort
 Includes the Administrative Court which hears
judicial review cases
Includes the Divisional Court which hears
appeals such as those on a point of law from the
Magistrates Courts
Includes the Commercial Court which hears
disputes over company matters
Largest division
May have a civil jury in defamation cases
70 judges
The Chancery Division headed by the Lord
Chancellor
Hears cases such as trusts, wills, intellectual
property and bankruptcy
18 High Court judges
The Family Division headed by the President
Hears matters concerning children and families
such as adoption and divorce. Also hears sensitive
cases relating to medical treatment (euthanasia etc)
Created in 1970
17 judges

'SUPREME COURT = Crown Court, Court of Appeal and High

Court combined

[edit]The Appellate Committee of the House of Lords

Part of the upper chamber of the legislature
The most senior national court
24 Law Lords Lords of Appeal
o 12 Lords of Appeal in Ordinary salaried, hold office
until age 70
o 12 other peers drawn from high judicial ranks
retired Lords of Appeal, Lords Chancellor etc hold office
until age 75, and can then remain as members of the
House
 Decides appeals on questions of law of general public
importance which usually have been heard in the Court of
Appeal
All cases must be granted permission to appeal by
the Committee or by the Court of Appeal
There are approx 250 applications for permission
each year (decided by panel of 3 judges)
Approx 60 cases per year heard usually by a panel
of 5 Lords (very serious cases 7)
Most cases are civil appeals e.g. in 2001 only 11
criminal appeals were heard
Law Lords have the same rights as other members of
the House to debate and vote; but in practice most of them
only contribute on matters relevant to the justice system
Since 2000, the Committee has heard more
politically and socially sensitive cases as a result of The
Human Rights Act 1998 which incorporated the European
Convention of Human Rights into domestic law
This increased politicisation of the Committee has led
to debate about whether it should remain as a member of
the legislature; which breaches the concept of the separation
of powers
It is argued that the Law Lords contribute a valuable
pool of expertise to the legislature the Wakeham Report
(2000) recommended that the Law Lords should remain in
the House of Lords
On the other hand it is argued, by people such as
Lord Bingham, that the presence of the Law Lords in the
legislature undermines their legitimacy
The retired Law Lords often participate in the
legislative process in the House of Lords, despite the fact
that they regularly sit as members of the Appellate
Committee

[edit]The European Court of Justice

Court of the EU
 15 judges one from each member state (now 25 after
integration?)
8 legal experts Advocates General advise judges
Judges usually remain anonymous in judgements
impartial and no national bias
UK joined the EU on Jan 1st 1973
ECJ has 2 main aims outlined in the TREATY OF ROME
(1957)
o Efficient interpretation of European law
o Fair and effective application of that law
ECJ is not bound by its own decisions
Article 234 referrals interprets cases that need a
qualification of EU law
1989 Court of First Instance set up to take
pressure off the ECJ
Levi v Tesco (2001) ECJ ordered Tesco to stop
selling Levi jeans at cut prices

[edit]EU law and the UK

UK signed the European Communities Act 1972 which
means EU law is supreme to domestic law
Where there is conflict, EU law takes priority over
domestic law

[edit]Police Powers

CRE REPORT ## 14th June 2004 claims of racism
within the police, not yet published

Key statute the Police and Criminal Evidence Act 1984

(implemented in 1986 to allow time for Police training)
Before 1984, police powers throughout the UK were non-
uniform and derived from a variety of sources. This led to
inconsistency and potential injustice due to the absence of
clear rules
 The provisions of PACE 1984 were based on the
recommendations of the Royal Commission on Criminal
Procedure (1981) which aimed to produce police powers
which were fair, workable and open
The Act also includes codes of practice which give
guidance to the police on how the main provisions of the Act
should be implemented but are not law. The codes are
periodically reviewed by the Home Secretary
Potential impacts on police powers come from the HRA
1998 such as:
o Article 6 The right to a fair trial
o Article 5 Freedom from arbitrary detention
o Article 3 Freedom from inhumane and degrading
treatment
o Article 8 The right to privacy
Under s.6 of the HRA 1998, the police as a public
body, have a duty to comply with the Human Rights
legislation
The MacPherson Report (1999) criticised the police
for being institutionally racist

[edit]PACE 1984
S.76 requires a judge to exclude a confession which has
been obtained through oppressive or unreliable
circumstances
S.78 the judge should exclude evidence which would
adversely affect the fairness of the proceedings

[edit]Powers to Stop and Search - SECTIONS 1 TO 7

Also included in legislation such as the Misuse of Drugs
Act 1971
The Police Studies Institute found that on average 8% of
stops and searches result in arrest
S.1(2) the police have the power to search any person
or vehicle in a public place for which they have reasonable
grounds to believe are carrying stolen or prohibited articles
 o Everyone searched has a right to be informed of the
reason
o The Police Officer must record the search
o Those searched may request a copy of that record
o Code A Para 1.7 sets out guidance on what
reasonable grounds is. It states that suspicion can never
be based on personal factors alone
It is important to ensure that powers of stop
and search are used responsibly and sparingly and only
where reasonable grounds for suspicion genuinely exist'
Rules do not apply where the search was voluntary
SPICER v HOLT (1997) Whether an arrest is
lawful depends on whether the conditions for lawful arrest
have been satisfied.
The suspect has the right to see police ID if the
officer is in plain clothes
S.2 - The officer must state his/her name, police
station and the reason for the search
Emphasised in Osman v DPP (1999)
S.3 a written record of the search must be made
and the arrestee can ask for a copy
S.4 permission for road checks when it is
suspected a person has committed a serious arrestable
offence

[edit]Powers to Arrest and Detain SECTIONS 24

Can arrest with a warrant from the MC (s.1 Magistrates
Court Act 1980)
S.24 - The Police have the power to arrest anyone without
a warrant who they reasonably suspect to be committing,
have committing or to be about to commit an arrestable
offence. Once arrested, the premises of an arrested person
may be searched for evidence relating to the offence
S. 26 arrest for breach of the peace
The Public Order Act 1986 wide powers of arrest for
public demonstrations etc
 An arrested person can be detained if there are
reasonable grounds for believing it is necessary to preserve
evidence relating to the offence or to obtain evidence
through questioning the objective test
S.28 the suspect must be told the reason for his/her
arrest
S.30 the suspect must be taken to a police station as
soon as possible
Once the police have sufficient evidence to charge the
suspect, they must charge or release them
Rules do not apply where a person has attended a police
station voluntarily
o Code C states that persons who are helping police
with their enquiries should be informed that they are not
under arrest and are entitled to leave and have legal
advice
Each station where suspects are detained must have
a custody officer on duty who must be a sergeant or higher
in rank. They supervise the detention process and keep
detailed records
Suspects must be brought before the custody officer,
who will decide whether there is sufficient evidence to
charge them. The officer has a duty to order the immediate
release of a suspect if there are no longer grounds for their
detention
There must be a review by another officer within 6
hours of the suspect being brought to the station and every
9 hours thereafter
S.41 must be released within 24 hours under
normal circumstances
S42, S43, S44 - A senior officer can authorise the
detention of a suspect arrested for a serious arrestable
offence to be extended to 36 hours rather than 24
Police may then apply for further extensions from
Magistrates for periods of 36 hours to a total of 96 hours
S.27 of the Criminal Justice and Public Order Act
1994 allows for conditions to be attached to police bail
 Only 1% of suspects are detained by more than 24
hours, and the average detention is a further 4 hours
S.117 Police may use reasonable force when
making an arrest

[edit]Rights of Suspects During Detention

Code C - 8 hours rest in every 24
S.29 a volunteer can leave at any time
Regular meals
Adequate lighting and heating
S.41 can detain for 24 hours
S.42 can be extended by 12 hours for a serious arrestable
offence
S.43 can be extended to total of 96 hours by a Magistrate
S.56 - Right to have someone informed of their
whereabouts
Vulnerable or young persons are entitled to have an
appropriate adult present when questioned
Code C suspect should not be questioned for more than
2 hours without a break, tell defendant they can make one
phone call
S.58 - Right to consult a solicitor in private
o The Duty Solicitor Scheme, set up in 1984, provides
a list of local solicitors available free of charge 24 hours a
day
o PACE 1984 requires that suspects are informed of
their right to use this scheme and the fact that it is free
Only about 40% of detainees ask for legal
advice
Research suggests that police discourage
suspects from taking up legal advice by reading their
rights very quickly and stressing that it would delay
their release
This right can be delayed in the case of a
serious arrestable offence by a Superintendent or higher
who has reasonable grounds to believe it is necessary to
 protect against interference with evidence, harm to
persons, hindering the recovery of property
In Murray v UK (1996) the ECtHR held that
there was a breach of Article 6 when a terrorist suspect
was denied access to a solicitor for 48 hours when
questioned

[edit]Questioning
PACE introduced tape-recorded interviews 2 tapes are
recorded one sealed for court hearings, one used to make
a summary for the defendant
S.60 - The defendant may request access to the full tape
S.76 The Court shall not allow statements which have
been obtained through oppressive techniques to be used in
evidence
In the case of the Cardiff Three (1993) the Court of
Appeal quashed a murder conviction after hearing the tape
of an interview in which the defendants denied involvement
over 300 times before confessing

[edit]The Right to Silence

Until the Criminal Justice and Public Order Act 1994 a
person was under no legal obligation to answer police
questions
Now, if suspects do not answer questions in police
interviews, an adverse influence as to their guilt can be
drawn in their trial if their defence relies on facts which they
could have been reasonably expected to reveal to the police
Supporters of the right to silence argue that it is for the
prosecution to prove beyond reasonable doubt that the
defendant is guilty and that the innocent until proven guilty
principle means suspects should not be required to
cooperate with police in any way
The Royal Commission on Criminal Justice 1992
between 5% and 15% of suspects remain completely or
partially silent when questioned by police. It also found that
 they were no less likely to be charged or convicted than
those who fully cooperate with the police
The ECtHR has held that the right to a fair trial under
Article 6 does not require an absolute right to silence

[edit]Photos, Fingerprints and Samples

Can be checked against data held on a national DNA
database
S.62 - Intimate samples blood, semen, urine require
consent and normally are taken by a doctor
S.55 Intimate searches
o Failure to consent can lead to an adverse inference
being drawn in court same as refusal to answer police
questions
o Can only be conducted with the authorisation of a
senior officer who believes class A drugs or items used to
create physical injury could be concealed
o S.117 samples may be taken with reasonable force
if the defendant refuses
S.54 - Non-intimate samples hair, saliva, nails,
mouth swabs can be taken without consent
S.61 can take fingerprints without consent
Routine search of suspects on arrest not permitted
can only be searched if they may have weapons, prohibited
articles or items which could assist an escape
The Codes of Practice in PACE allow strip searches
remove outer layer of clothing must be in private and
sensitive

[edit]The Criminal Justice System

Runciman Royal Commission on Criminal Justice (1993)
wide ranging review of the system after 2 years of research
many proposals implemented
The Auld Review
The Narey Review (1997)
 The Glidewell Report (1998/9)
All time high prison population
o November 2003 - 72,522
o June 2004 74,850 (approx 70,300 male and 4,500
female) + 3600 Home Detention Curfew
Many more women in prison
o 1993 1580
o March 2004 - 4589
General trend of shifting away from the rights of the
defendant to those of the victim (The tension over the
miscarriages of justice in the early1990s such as the
Guildford Four has now evaporated)
o Supported by 2002 White Paper Justice for All
proposed to increase the circumstances in which the
previous convictions of a defendant could be revealed in
court
The CJS is required to fulfil a number of different
aims it promotes and upholds moral and social standards,
exacts retribution, prevents future harm, and compensates
the victim
o The wide range of available sentences reflect these
aims
2003 research one third of witnesses in the Crown
Court and one quarter in the magistrates court felt their
treatment had been unfair
The Audit Commission 2002 found that over 80
million is lost each year through adjournments and
cancellations
The murder of Stephen Lawrence in 1993 and the
subsequent MacPhearson Report has had a profound effect
on the system it identified institutional racism in the
police
In 2001, the United Nations Human Rights
Committee highlighted the racial bias within the U.K.
Criminal Justice System
 o The courts have powers to increase sentences where
the offence is racially motivated under s.153 Powers of
Criminal Courts (Sentencing) Act 2000
o Guidelines for sentencing racially-aggravated
offences were set down by the Court of Appeal in Kelly
and Donnelly (2001):
Adult offenders are 85% more likely to receive a
custodial sentence
The average fine is 50% higher than for the
same offence under non-racial circumstances

[edit]Sentencing
Lord Bingham in Roche (1999): It is a cardinal principle
of sentencing that it is for the court to pass what it judges to
be the appropriate sentence but the court is not swayed by
demands for vengeance.
Magistrates max 6 months custody, 5000 fine (most
common is a fine)
o 2002 White Paper proposed independent body set up
to deal with TV licensing etc less work for MC
In CC sentences are only limited by maxima and
Court of Appeal guidelines
In 1990, the Conservative Government produced a
White Paper called Crime, Justice and Protecting the Public
it called for just deserts the punishment should fit the
crime Labour and Conservatives both want to appear
tough on crime
o Tony Blair: Tough on crime and the causes of crime
o Michael Howard: Prison works
Aims of sentencing:
o Retribution punishment for wrongdoing revenge
on behalf of the victim and society an eye for an eye
the more serious the crime, the more serious the
punishment should be hoped that the defendant would
not reoffend in order to avoid future punishment
 Rehabilitation punishment fulfils a useful purpose
for the individual and hopefully for the community tries to
make the individual a more useful member of society
reduced chance of reoffending aims to change the
behaviour of offenders for the benefit of society
o
Offenders can see the pain and damage they
have caused through their anti-social behaviour
Offenders are shown an alternative path
through training and education (important for young
offenders)
Problems with this approach: It assumes the
problem lies with the offender, can lead to inconsistent
treatment of offenders depending on class, it lacks
privacy and can be embarrassingly public
The National Association for Care and
Rehabilitation of Offenders national organisation
which supports prisoners and their families, especially
after release from custody helps to find employment
and accommodation
R v PRICE (1971)
Deterrence believes retribution is too harsh
some crimes are one offs there is evidence that the
deterrent effect becomes less effective for habitual
criminals the cycle can be broken early with young
defendants
Some argue that a short, sharp shock is all
thats needed supported by the boot camps for young
offenders brought in by the Criminal Justice Act 1982
abandoned by Criminal Justice Act 1988
To prevent the offender reoffending = specific
deterrence
To prevent others reoffending = general
deterrence
R v TOOR (2003)
 Protection of Society / Incapacitation
usually by administering long prison sentences (murder,
rape etc)
If a defendant commits two violent or sexual
offences, a life sentence is automatically given (Crime
(Sentences) Act 1997)
Expensive costs society 25,000 per year per
prisoner
A prisoner of 15 years will cost taxpayers
approx 375,000
R v HINDLEY (protection)
R v WHITTAKER (1996)
(incapacitation)
Reparation victims are compensated
should discourage potential criminals
Either to the victim or society in general
Reinforced by the Victims Charter (1990)
Denunciation society expresses its
disapproval of criminal activity justice is seen to be done
R v WOOLLEY & CAMPBELL (2003)

[edit]The Effects of Sentencing

Long custodial sentences may educate defendants in the
university of crime
Increased risk of suicide among imprisoned young
offenders
o Often bullied or intimidated, removed from security
of family and friends
o Some Y.O. institutions have been criticised for
unsupportive regimes
Employment may be difficult to secure offenders
pay for crime long after they have fulfilled their sentence
o Increases the likelihood of reoffending
o Some feel they have no prospects and with no stable
income crime becomes a way out
 Puts pressure on partners, families, children
financial and emotional strain
o 28% rise in women imprisoned between 2000 and
2001

[edit]Consistency in Sentencing is achieved by=

Limiting powers of magistrates
Guidelines issued by the Magistrates Association
Court of Appeal guidelines
Attorney Generals power to make a reference to the
Court of Appeal in the case of an unduly lenient sentence
The Sentencing Advisory Panel set up by the Crime and
Disorder Act 1998 persuasive effect on the Court of
Appeals guidelines
Case law

[edit]The Sentencing Advisory Panel

Independent public body
Aims to encourage consistency
Can propose the Court of Appeal should issue or revise
guidelines
Since 1999
Crime and Disorder Act 1998
14 members appointed by the Lord Chancellor

[edit]Sentencing and Reoffending Statistics

70% of all offenders released in 1996 reoffended within 5
years
o Reconviction rates were higher for those who had
served short prison sentences
o 60% of those who served up to 12 months were
reconvicted
o 29% of those who served over 10 years were
reconvicted
o 85% of 14-16 year olds reoffended within 2 years
 o 74% of 17-20 year olds reoffended within 2 years
o 76% of 20+ year olds reoffended within 2 years
o 76% of burglars reoffend
o 19% of sexual offenders reoffend

[edit]The Halliday Report on Sentencing

Major review carried out into the effects of punishment in
July 2001
Investigated the effectiveness of the sentencing
framework
55 major recommendations, including:
o Targeting persistent offenders
o Research the relationship between sentencing and
crime reduction
o Increase the severity of the sentence where the
offender has recent convictions
o Imprisonment as a last resort
o Review of mandatory minimum sentences to give
judges more flexibility
Conclusion = the present overuse of short custodial
sentences is not effective the problem of persistent
offenders is not tackled

[edit]Powers of the Courts

OUTLINED IN THE POWERS OF CRIMINAL COURTS
(SENTENCING) ACT 2000.

Custodial sentences deprives individuals of their

liberty and freedom (64% in CC)
o Most severe punishment
o Major impact on the defendant and their family
o Used with care a last resort
 o Only used when no other sentence is appropriate
the offence must be serious enough to warrant a custodial
sentence
o Used when an offence was violent or sexual and the
public need protection
o Length of custody can be affected by what the
current Governments policy is
o Some offences, such as murder, carry mandatory
custodial sentences
o Can have a suspended sentence if reoffend within a
period of up to 2 years will be resentenced, otherwise free
to go
Community Sentences interfere with the
offenders day to day life (approx 30%)
o Required to fulfil duties / carry out certain tasks
o Only applicable where the offence could warrant a
custodial sentence
o Many different types:
S.41 Community Rehabilitation Order offender
sees a probation officer regularly for between 6 months
and 3 years. Probation officer guides the offender and
monitors their progress
Can attach conditions such as living at a
particular address, going for counselling, avoiding
certain persons
Hoped to reform the offender
Seen by some as a soft option
60% reoffend within 2 years
S.46 Community Punishment Order
combination of punishment and rehabilitation. Offender
does tasks such as decorating the homes of the elderly,
environmental projects
Total time between 40 and 240 hours
8 hour sessions often at weekend
Lowest reoffending rate for a community
sentence
 S.51 Community Punishment and
Rehabilitation Order combination of the above two
probation interviews and community work
Up to 100 hours work (minimum 40)
Rehab for 1 3 years
Curfew Order often 7am 7pm
S.37 can be tagged
For between 2 and 12 hours in every 24
For up to 6 months
S.40 Exclusion Order up to 2 years for
over 16s, up to 3 months for under 16s
Anti-Social Behaviour Order The Crime
and Disorder Act 1998 intended for young offenders
over 10 years old, for offences such as petty vandalism
and yobbish behaviour. They are rarely used as are
hard to enforce
S.56 Drug Abstinence Order applies to
class A drugs such as heroin banned from taking
drugs for between 6 months and 3 years (it is always
illegal of course, but these orders emphasise the will of
the court)
S.52 Drug Treatment Order for over 16s,
residential or non residential, for between 6 months
and 3 years
Fines paid to the court or to the victim as a
Compensation Order. Hard to decide what level of fine to
impose have to take into account financial circumstances
of the individual
Levels are set out in legislation
Go to the state not the victim
Discharges absolute or conditional
Absolute Discharge the court is satisfied that
no punishment is appropriate the offender is free to go
with no attached conditions given where the defendant
has pled guilty or been found guilty. The court records the
offence, and no further action is taken. A rare sentence
 Conditional Discharge Released without formal
punishment but are bound over if they reoffend
between a set period (up to 3 years) they will be brought
to court to face the original and the subsequent charge(s)
Compensation fines and compensation
Fines go to the state, not the victim.
Compensation goes to the victim.
S.130 Compensation Order instead of or
in addition to a custodial or community sentence
(average 998 in the CC)
Reparation
E.g. Magistrates Court guidelines for 20-
35 year olds: 100 for a black eye, up to 1000 for the
loss of a tooth
Can be increased for those over 35
Other sentencing powers
The mentally ill: treatment rather than
punishment
Treatment Orders
Hospital Orders
S.41 Mental Health Act 1983 Secure
Hospital Order
If the courts believe the offender is a
danger to the public
Can be made only by the Crown Court
For a set period or an indefinite period
Awards from public funds
Courts can award small amounts to people
who have acted in a particularly heroic or community-
spirited way usually 50 or 100

PCC(S)A 2000:
s.109 2nd violent or sexual offence = life custody unless
exceptional circumstances
s.111 a third domestic burglary = at least 3 years in
custody
 s.79 the court should not impose a custodial sentence
for non-violent offences unless it is so serious that nothing
else is sufficient

[edit]Sentencing Young Offenders

Under 10s not formally punished put under
supervision of a social worker or a member of the youth
offending team, or given a curfew
Aged 10 17
Important that custody is an extreme last resort
o S.63 Supervision Orders defendant can be out into
a local secure unit. Given education and training, normally
have single rooms, can be very intimidating
o S.69 Action Plan Young Offender becomes involved
in a certain set of activities or locations
o Referral may have to meet with a youth offender
team to get advice and guidance
o S.150 Parental Order order for parents to take full
responsibility for up to 3 years and attend counselling
sessions
o Fines between 250 and 1000 is possible, but
very rare
Aged 18-20 can be sent to a Y.O Institute if turns
21 will be sent to an adult prison

[edit]The Civil Justice Process

The civil court structure, like the criminal, is pyramid-shaped.
The vast majority of cases are dealt with in the lower courts
the county courts and tribunals with very few ever reaching
the higher courts. Cases, which traditionally would have been
heard by a High Court judge, are now routinely dealt with by a
Circuit judge or, occasionally, a District Judge, in the county
court.
The work of the Queens Bench Division of the High Court
declined significantly throughout the 1990s by over 60%; while
the number of cases dealt with in the small claims court has
grown. The threshold for hearing cases (other than personal
injury) was been raised from 1000 to 3000 and then 5000.
There has also been a reduction in the right to appeal to the
higher courts against a decision in the lower courts. As a result
of the Bowman Report (1996), which concluded that the Court
of Appeal was dealing with too many less serious cases, the
civil appeals process was streamlined and reformed in the
Access to Justice Act 1999. Almost all cases now need
permission to appeal and no longer have an automatic right to
do so.
Cases in the Court of Appeal can now be heard by one or two
judges rather than three; and the length of proceedings has
been reduced by the substitution of written representation for
long oral argument.
In addition to the penalties they can impose, civil courts can
also award punitive damages to express disapproval and
provide deterrence
In 2002 the NHS had outstanding claims of 4.4 billion in
medical negligence against it
The LCDs review of civil court judgements in 2000
identified enforcement as a main problem approx 600
million per year is lost to creditors through unpaid civil
judgement debts
1998s Enforcement Review found that only 35% of all
warrants of execution are paid
A study of small claims judgements found that 35% of
successful claimants had received no part of the sum
awarded to them several months after judgement
In 2003 the Government produced a White Paper which
set out significant changes to the enforcement process such
as regulations for bailiffs

County Court High Court

Hears all contract and tort claims 3 divisions
Hears all cases for the recovery of land -
Disputes over partnerships -
Trusts, inheritance (up to 30,000) -
Small claims, fast track, multi track -
Some hear matters under the Race Relations Act 1976 -

[edit]Alternative Dispute Resolution

Increasing emphasis on the development of ADR methods
which reduce time, cost, speed, stress and publicity of
formal court hearings
Most common forms are mediation, conciliation and
arbitration
ADR commonly involves the use of a neutral third party
who imposes a decision to which the parties are
contractually bound or helps them reach agreement
ADR can be cheaper because of the decreased use of
lawyers
ADR can be more flexible than litigation because solutions
can be tailor-made
The techniques used are less adversarial than court
ADR methods aim to produce a resolution which is
proportionate to the scale of the dispute courts can often
result in costs which are wildly disproportionate with the
amount being claimed
An advantage is the private nature of the process
particularly attractive to companies and businesses
Currently only a small fraction of cases are solved using
ADR despite the support of the Government and interest
groups
In 1999, 468 disputes were referred to the Centre for
Effective Dispute Resolution this dropped to 338 in 2001
Less than 10% of divorcing couples chose to use the pilot
ADR scheme and a high percentage of those that did use
ADR also employed a lawyer therefore the proposal for
compulsory mediation in divorce processes has been
abandoned
 A problem with ADR is that the courts have no power to
enforce the settlements. In the small claims court which
uses an arbitration-style system, the process is compulsory
and binding but the losing side does not have to pay the
winners costs
o This often leaves individuals at a disadvantage when
sued by large companies, which is the case for a high
proportion of cases in the small claims court. It also
deters people from bringing cases against well-resourced
defendants
ADVANTAGES DISADVANTAGES
Not suitable for every dispute often
Courts can be expensive, disproportionate,
ineffective when it is not totally
time-consuming and ineffective
voluntary
Less adversarial and antagonistic than
Insufficient information provided
court
No guarantee a settlement will be
All parties satisfied
reached (except arbitration)
Litigation benefits the wealthier side Limited rights of appeal after
(businesses) arbitration
In acrimonious situations ADR can
Better placed to decide technical issues
be ineffective and pointless
Some parties will prefer to use the
Less destructive to personal and business traditional, clarified, tested court
relationships than litigation system with better rights of appeal
generally
Many forms of ADR are non-binding
Resolutions can be completed within days, and so can often lead to lengthy
courts can take years processes which are not necessarily
more efficient than court
Saves on court costs, legal fees and expert Hiring experts can be extremely
fees costly
Confusing array of ADR can be
Greater participation for the parties
misleading
Use of a neutral third party promotes
-
fairness and encourages cooperation
Flexibility of approach -
Held at times convenient to the parties -
Less stressful -
Tailor-made dispute resolution -
Parties can decide their own timetabling
and procedural matters no strict court -
timetables and penalties
Disputes often within businesses
potentially less working time will be
-
wasted as ADR is generally quicker than
litigation
Broader range of sentences -
If parties play a direct and continuous part
in the settlement process, research has
-
shown that they are more likely to abide
by the result
Confidentiality ADR is entirely private -
Issues are defined more clearly and each
party has a clear view of the others -
opinions
Supports Government policy and the Civil
Procedure Rules which promote ADR and
argue that settlements should be more -
proportionate to the amount at stake than
they often are in the courts
Of the total referrals for ADR by judges,
77% are settled within one day. The -
average value of a case is 150,000
80% of disputes where mediation is used
-
are settled

[edit]Mediation
A third party attempts to help those in dispute to reach a
settlement by acting as a go-between who explains the
views of each party to each other (e.g. Relate)
The mediator fulfils an intermediary role rather than that
of an active participant
Will only be effective if the parties are willing to cooperate
on some level

[edit]Conciliation
 The conciliator actively seeks to promote settlement by
suggesting possibilities
Neither party is bound by the decision
Process is quick and cheap
Proceedings may be broken off by either party at any time
more cost may ensue

[edit]Arbitration
Governed by the Arbitration Act 1996
Role of the arbitrator is most similar to that of the judge
The arbitrator hears both sides and then imposes a
settlement, to which both parties have previously agreed to
abide by
o This agreement is known as a Scott Avery Clause
after the 1855 case
This has been extremely successful in large
commercial contracts solicitors firm Baker McKenzie in
1999 said its global arbitration cases were worth 6 billion
Industrial arbitration Arbitration and Conciliation
Advisory Service (ACAS) Government funded often
resolves disputes between trade unions and employees
respected for being impartial and effective
Consumer arbitration e.g. travel agents ABTA
Advantages Disadvantages
Knowledgeable arbitrator who is more likely
No public airing of the wrong
to be an expert in the field than a judge who
done some claimants want this
hears many different types of case
May involve difficult technical
The cases are kept private companies may
points which the parties may not
prefer this
comprehend
Awards can be challenged by
Claimants and defendants can choose times
either party may not be so
when it is convenient for them
quick
Individuals may be
It is normally quicker and cheaper than formal
disadvantages when facing an
court procedures
organisation
[edit]The Woolf Reforms to Civil Justice
In 1994 Lord Woolf was asked to conduct an inquiry into
the civil justice system and make proposals for its
modernisation
Lord Woolf consulted civil justice system workers and
reviewed other international systems
His report Access to Justice was published in 1996
He identified that the main problems with the civil justice
system were cost, delay, complexity and uncertainty of
outcome
He said the overriding objective of the system is to deal
with cases fairly and justly
He said that it is imperative to ensure that, as far as is
possible, the parties in a case are on an equal footing and
that the time and cost of a case is proportionate to the
amount of the claim and the complexity of the issues
He found that the current system deterred claimants with
sound cases from litigation because of extreme costs, and
the uncertainty attached to them

His proposals, almost all of which were accepted by the

Government, included:
Dealing with cases differently according to the amount of
the claim and its complexity
Stricter timetables imposed by the courts
Active case management by judges from the point a claim
is made
o Aims to encourage parties to settle or use ADR, early
identification of issues and fixed dates means cases are
dealt with efficiently
Unified and simpler procedural rules for the High
Court and county court
Reducing the use of adversarial techniques e.g. full
disclosure of evidence by both sides, agreement of one
expert witness (if parties cannot agree, the court can limit
the number of witnesses, usually to one for each side)
 o It is expected that expert evidence will normally be
submitted in writing, and oral presentation requires the
permission of the judge
Developing IT to manage and track cases
The appointment of one senior judge to head the civil
justice system
The language of all rules and procedures should be
simplified many Latin phrases replaced by Plain English
(e.g. Plaintiff Claimant)

[edit]The Civil Procedure Rules

Key change
Implemented through the Civil Procedure Act 1999
Supplemented by detailed practice directions drawn up by
senior judges to help lawyers and judges interpret and apply
the rules
Apply equally to the county court and the High Court
Restrict personal injury claims in the High Court to those
worth more than 50,000, and other money claims to a
value of more than 15,000
Each case is now allocated to one of three tracks:
DECIDED BY DISTRICT JUDGE IN THE COUNTY COURT
o Up to 5000 - small claims process (county court)
hearing based on arbitration relatively informal limited
rights of appeal limit on total cost winning side cannot
claim costs heard by District Judge
o 5000 - 15000 fast-track procedure (county
court) speedier and less costly due to the use of
standard directions and time limits (Trial date must be set
within 30 weeks and hearing should be completed within
one day cost penalties can be imposed for breaching
this) both sides see information before the hearing.
Trials last 3-24 hours
o 15000+ and complex cases multi-track procedure
(county court) greater scope for judges to intervene and
impose directions aims are fairness and efficiency
Both parties sent an allocation questionnaire to help
judge allocate it to a track.

[edit]The Effect of the CP Rules

Criticism for lack of consistency in the approach of judges
The use of more comprehensible language is good; but
currently the overlap is confusing and intimidating
The number of actions started in the courts dropped
significantly after the reforms
Mediation has been used more often
2002 Public Accounts Committee of the House of
Commons reported that the legal costs of 65% of medical
negligence settlements below 50,000 exceed the sums paid
to claimants

[edit]The Trial Process

Summary offences motoring offences, common assault,
criminal damage less than 5000
Offences divided into levels with appropriate fines, e.g.
Level one max 200
For certain matters, such as breaches of health and safety
legislation, the MC can fine businesses/companies up to
20,000
Either way offences theft, ABH, obtaining property by
deception
Indictable offences murder, rape, arson
Approx 15 million crimes committed per year
Approx 1.4 million crimes are tried per year (1.3 million
MC, 100k CC)
All criminal cases start in Magistrates Court Early
Administrative Hearing bail, legal funding and reports
considered
Cases classified as summary (MC), either way (MC/CC),
and indictable (CC)
 CPS advises whether they think an either way case should
be tried in the MC or CC
Under s.19 Magistrates Court Act 1980
Magistrates then decide taking into account their
sentencing powers - MODE OF TRIAL AND COMMITTAL
PROCEEDINGS
o If they decide not to try it, goes to CC
o If they decide they will try it, defendant chooses
between MC and CC
o There is a jury for most cases in the CC where the
plea is not guilty
o Trial by jury is a democratic foundation which dates
back to Magna Carta in 1215
o Government proposes to increase Magistrates
sentencing powers to save money
S.6 (1) Magistrates Court Act 1980 all
prosecution evidence must be read by the magistrates
before they consider mode of trial
S.6 (2) Magistrates Court Act 1980 defendant
is automatically referred to the CC with the permission
of the defence lawyer
In MC, approx 90% of defendants plead guilty
Most trials last from one hour to a day (average just over
1hour)
In CC, proceedings are more formal and ritualised
o Legal aid is more commonly available than in the MC,
rare for a defendant to be unrepresented
o Jury verdicts must initially be unanimous, after hours
a judge can accept a majority agreement of 11:1 or 10:2
anything less is a hung jury and it would be discharged
Indictable offences in the CC first hearing is a PLEA
AND DIRECTIONS HEARING

[edit]Evidence
Must be relevant to the issues
 Can be excluded by the judge (e.g. previous convictions,
hearsay)
o S.78 PACE 1984 the judge can exclude evidence
which would have an adverse effect on the fairness of
proceedings
Trend to allow more evidence in recent years less
adversarial, more inquisitorial

[edit]Young Defendants
Young persons = under 17s
For most offences the defendant will be tried summarily in
the MC sitting as the Youth Court
o These hearings are private identity of the
defendant cannot be made public without the courts
consent
o Intended to be less intimidating
o Specially trained magistrates hear cases
In very serious cases may be tried in the CC
Practice Directions issued by Lord Woolf in 1999 make the
CC more relaxed for young defendants

[edit]Plea Bargaining
Defendant agrees to plead guilty in return for a reduced
sentence, or to a less serious charge
Defendants who pleas guilty can expect their sentence to
be reduced by between one quarter and one third (s.48
CJPOA 1994)

[edit]Bail
Approx 5/6 suspects are bailed
Accused can apply any time after arrest
Bail granted by the Police under s.37 and s.38 of PACE
1984
 The Bail Act 1976 general presumption to bail under s.4
innocent until proven guilty. May be denied if there is:
(under Schedule 1)
o Suspicion that the accused would not return when
stated
o Suspicion that the accused would reoffend whilst on
bail
o Suspicion that the accused would interfere with the
course of justice or intimidate potential witnesses
o Fear that the accused may be intimidated, injured or
killed if released
o No secure address for the accused bail hostels can
be used
Can be conditional or unconditional
Under the Criminal Justice Act 1988 Magistrates
must provide reasons if granting bail for those accused of
murder, manslaughter or rape
S.3 - Conditions e.g. a surety, reporting
o S.7 breaking conditions renders the suspect liable
to arrest without warrant
The prosecution may use the Bail Amendment Act
(1993) to appeal against the award of bail if they fear one of
the above reasons
PROBLEM OF BALANCING 2 SIDES

[edit]The Criminal Cases Review Commission

Set up by s.35 Criminal Appeals Act 1995
Came into force in 1997
Will only consider new evidence / points of law with good
reasons for its late disclosure
Cannot investigate private organisations or individuals
Can instruct the preservation of any material held by a
public authority such as the police
Government established it to consider possible
miscarriages of justice
After high profile cases such as the GF4 and BHAM6
 Free from governmental pressure better than the Home
Secretary
Can refer cases back to court and query convictions
At least 11 members appointed by the Monarch on the
PMs recommendation
One third of members are legally qualified
Two thirds must have knowledge of the criminal justice
system
60+ support staff
Has a huge workload
Insufficiently resourced
Non-political and independent
Established to replace the s.17 procedure of the Criminal
Appeals Act 1968

[edit]Functions
Consider suspected miscarriages of justice
Arrange investigations
Refer cases to the Court of Appeal if there are grounds to
do so
Settle outstanding issues on request of the Court of
Appeal
Give advice when the Home Sec is considering a Royal
Pardon
Refer cases to the Home Sec for consideration of a Royal
Pardon
Promote public understanding of its role and enhance
confidence in the CJS

Approx 2.5% of cases are referred

Of these around 33% are upheld, 66% successful
Total of 1.7% of cases are altered by the CCRC
o This low rate helps with the aim of promoting public
confidence in the system
 Before the CCRC only 1.5% of cases were referred,
so now around 1% more are referred
Average waiting time 24 months
Long backlog of cases
Some argue that the CCRC should have the power to
decide cases itself