In our readings on Law this week we see that other nations approach the law much differently than the United States. Many other nations, Japan for instance, do not allow and make illegal the process we know of called “plea bargaining.” It is estimated that in the United States about 90-95 % of all adjudicated cases are settled through plea bargaining. Argue one of the following stands.
Plea bargaining is wrong and should be done away with. Why is it wrong? Is justice not served through the process? What will happen to the case load in courts if all cases had to go to trial?
Plea bargaining is right and proper and should be continued. Why is it right? How is justice served with plea bargaining with convicted persons serving much less time that the original crime they committed calls for?
Plea bargaining can be used, but it is used too much. I believe the following changes need to be made in the process
membership in an ethnic minority for 2013–2014, there were 32 applicants and 13 appointments. During the 2012–2013 period, 21 had applied and three were appointed. Of those who claimed a disability for the 2013–2014 period, there were eight applicants and five appointments. During the 2012–2013 period, there was just one applicant and no appointments.
LAW One of the basic distinctions made in law is the difference between civil justice and criminal justice. Civil litigation involves a resolution of private wrongs between two individuals. Criminal litigation is concerned with a public wrong, a crime in which someone has transgressed the public order of the state by inflicting some kind of harm, usually on a private individual. In criminal litigation, it is the state rather than the individual harmed that seeks a just treatment for the offender. This is to assure that public order is maintained and that the wronged individual’s desire for revenge or retribution is satisfied.
The distinction between these two forms of justice has been present for so long that there is a tendency to assume that they have always existed. That assumption is false, however. In order for criminal law to exist in the aforementioned format, the state must be a strong and viable instrument of authority. The Norman Conquest in 1066 has often been identified as an important date in the history of England, and reference has already been made to it. The period after the conquest is often attributed with initiating the gradual merger of local legal customs into a law that was common throughout England. It was from this development that the term “common law” emerged.
Before the arrival of the Normans, the Anglo-Saxons had developed an extensive body of written law called dooms. Early dooms identified many of the more obvious forms of criminal conduct, such as murder, rape, robbery, and theft. Dooms also explained the procedures utilized to determine guilt or innocence and methods for sanctioning offenders.
Outlawry was one of the early methods for punishing those who repeatedly refused to observe the community’s laws. Limited to the more serious offenders, under this system a person simply was placed outside the law. The individual was ordered to leave the community and was threatened with death upon return. Once the authority of the king increased, outlawry ceased as a method of punishment and instead became a form of assuring that a person would submit to a hearing in a judicial tribunal.
The blood feud was another primitive procedural approach that was explicitly based on a desire for revenge. A victim was often dependent on their kindred to seek retribution, and kindreds were based on blood relationships. Regulated by a system of rules, a blood feud sought an exact compensation that often followed literally the principle of “an eye for an eye and a tooth for a tooth.”
Gradually, a monetary compensation plan was introduced to replace the blood feud. By the ninth century, a schedule of tariffs was established and recorded. With the creation of this scheme, the king was not only beginning to assert his authority in judicial matters but was also recognized in theory as a victim of crime. When a crime was committed, the victim was compensated by a monetary payment called a wer. The wer was the value placed
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on an individual, determined by the individual’s rank in society. The king was considered a victim of the criminal act because the crime disrupted the general or public peace of the kingdom. He, therefore, was compensated by a monetary payment called a wite.
The monetary compensation scheme illustrates a method for sanctioning. The procedure devised by local Anglo-Saxon courts to determine liability was referred to as compurgation. Usually, a victim went to the local court and made an oath that the accusation was being made in good faith. The accusation was supported by offering material evidence and securing oaths of affirmation from oath-helpers. It was not uncommon to secure oath-helpers from one’s tithing, that early form of Anglo-Saxon law enforcement. Both the quality of evidence and the number of oath-helpers necessary was dependent on the gravity of the accusation and the social rank of the plaintiff.
The defendant was then permitted to make an oath of denial. The defendant also had to secure oath-helpers. The number of oath-helpers was determined by the nature of the charge and the accused’s social rank. Severe fines were levied against all parties concerned who falsely swore an oath.
Some defendants were not permitted to use compurgation. Instead, they had to submit to an ordeal, which was another form of proof. Defendants who were required to submit to an ordeal included those who were unable to secure a sufficient number of oath-helpers to comply with the compurgation scheme, those who had an extensive record of accusations brought against them and were no longer considered oath-worthy, and those caught in the act of committing a crime or in possession of stolen property. Proof by ordeal was based on a belief that the gods or a god would intervene with a sign that would determine guilt or innocence. While ordeals had their origins in primitive societies, the practice was transformed into a Christian ritual by the Roman Catholic Church.
There were three types of ordeals that were frequently utilized. The plaintiff in a case usually determined which ordeal would be employed. The ordeal of cold water involved placing the defendant into a pool of blessed water. If the person sank, they were innocent; if they splashed about, they were considered guilty. The ordeal of hot iron and hot water were similar to one another. The ordeal of hot iron required the defendant to carry a hot iron bar nine feet, while the ordeal of hot water involved removing a stone from a cauldron of boiling water. All the instruments in these ordeals had been blessed by a priest. In these instances, the defendant’s hand was bandaged and three days later the bandages were removed. If the skin was healing, the person was considered innocent; if the skin was infected, the person was obviously guilty. Thus, the Christian application of the ordeals was based on a belief that God would provide a sign as to the truth of the matter for the court. Although ordeals may appear to be a form of punishment, they were simply a method of determining guilt or innocence. People found guilty by an ordeal would then have to submit to a prescribed sanction, frequently involving monetary compensation.
By the time of the Norman Conquest, the Anglo-Saxons had developed an extensive body of written law. Their system was superior to that of their Norman invaders, who relied upon oral tradition rather than written custom. This may be the reason why the Normans did not tamper with Anglo-Saxon law following their conquest. If change was not in the offing as a result of the Conquest, why is the event considered such an important date in the development of English law? Norman kings were interested in centralizing their
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political control over their English kingdom. It was through the enhancement of their political position that the law was gradually transformed into a unified system, a common law for the whole kingdom.
The emergence during the medieval period of centralized royal courts, circuit courts, royal writs, and the jury has already been discussed in a previous section of this chapter. This period also experienced changes in the principles of criminal liability and in criminal procedure. For example, Anglo-Saxon law had not developed the notion that a crime requires a finding of mens rea or criminal intent. People were liable for all their actions. By the thirteenth century, however, a distinction was made between a crime and a tort. Although the term mens rea was not in use, there was a recognition of criminal intent. For example, people were granted pardons for death by misadventure. This would not have occurred during the Anglo-Saxon period. In addition to differentiating between a crime and a tort, a distinction was made between felonies and misdemeanors. The term felony was used in statutes on a limited basis as early as the twelfth century; by the thirteenth century, serious crimes such as murder, robbery, rape, theft, and arson were classified as felonies.
Another significant procedural change occurred in 1215 as a result of the meeting of the Fourth Lateran Council. At this meeting, Pope Innocent III (1160/1161–1216) declared that clergy were to cease participating in trials involving bloodshed. With the clergy removed from the administration of ordeals, the procedure lost its significance. Before the Pope’s declaration, the grand jury of indictment was utilized in England, and even the petty jury was employed in some cases to determine guilt or innocence. As a result of the Lateran Council’s pronouncement, the use of juries gained in popularity and became a standard component of the English criminal trial.
The emergence of a unified legal system common throughout the kingdom was another significant factor in the development of English law following the Conquest. Despite the fact the Anglo-Saxon dooms had standardized some law and procedure, a good deal of regional custom remained prevalent in the local courts. The advent of royal courts— especially the use of circuit judges—changed that. Royal courts were superior to local courts, and thus, their decisions were binding on local courts. As royal court decisions became systematized, there gradually emerged a unified or common interpretation of the law. The roots of the common law are found in the decisions of the justices of the royal courts, in some of the Anglo-Saxon dooms, and in statutes passed after the Norman Conquest.
The primary sources of English law are (1) common law, (2) legislation, and (3) equity, but only the first two are considered the basis of criminal law. The earliest common law offenses were felonies, and they were punishable by death or mutilation and by forfeiture of property. Murder, robbery, rape, arson, and larceny are examples of these early common law felonies. As other less serious offenses were identified by the judiciary, they were called misdemeanors. By the nineteenth century, the legislature became the principal source for identifying new forms of criminal behavior. Today, most common law crimes have been codified and are contained in statutes.
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Until 1967, the English classified crimes by the traditional categories of treason, felonies, and misdemeanors. With the passage of the Criminal Law Act (1967), this old distinction was abolished, largely because it had become obsolete. As a result of this act, a dual system of categorization was created based upon substantive and procedural classification schemes.
Offenses are now referred to as arrestable or nonarrestable. Arrestable offenses are defined in the Act as “offences for which the sentence is fixed by law or for which a person (not previously convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence.” Thus, the most serious crimes are arrestable offenses; all others are deemed nonarrestable offenses.
The major significance of this legislation involved the power of arrest without a warrant. Under common law, this power was limited to treason, felonies, and breaches of the peace. Under the new substantive scheme, the power to arrest without a warrant was extended to all arrestable offenses.
It is the act’s procedural classification scheme that determines how a case is handled. All offenses are tried either summarily in a magistrates’ court or on indictment in a Crown court. Offenses are procedurally classified into one of the following categories: (1) Most serious offenses are triable on indictment before a judge and a jury in a Crown court. These include murder, manslaughter, rape, burglary, and assault with intent to rob. (2) Some indictable offenses may be tried summarily in a magistrates’ court. Among the offenses that fall under this category are malicious wounding, assault, many thefts, some burglaries, and arson. The accused must give consent to the summary proceedings, however. (3) Statute law has created a small number of offenses that may be tried either summarily or on indictment. These offenses are commonly referred to as “hybrid” offenses. These cases are tried on indictment, unless the prosecutor applies to a magistrates’ court for the case to be heard summarily. Examples of these offenses include driving under the influence, carrying a weapon, and cruelty to children. (4) Some summary offenses may be tried on indictment. These include those summary offenses in which the accused can claim a right to a jury trial, such as selling liquor without a license and illegal entry by immigrants. (5) Some summary offenses are tried in a magistrates’ court without a jury. The vast majority of offenses in English law are summary in nature; they include drunk and disorderly conduct, loitering and soliciting, and most traffic offenses.
As previously mentioned, by the thirteenth century, the English recognized the principle of criminal intent. Today, there are two general principles establishing criminal liability. One is the actus reus, that is, the act of commission or omission forbidden by the criminal law. Each crime contains specific elements that define a particular crime and thus establish the actus reus. For example, the Theft Act (1968) defines robbery as “[a] person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.” The elements of stealing and using force or fear indicate the actus reus.
The other general principle is the mens rea, that is, the accused possessed the necessary intent to commit the crime. Like the actus reus, the mens rea of each crime is different.
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For example, theft requires the intent to permanently deprive the owner, while a forgery case requires the intent to defraud or deceive. Obviously, the mens rea is complex and at times difficult to prove because the accused’s state of mind is being scrutinized. In order to prove that a crime was committed, it is the responsibility of the prosecutor to prove that both actus reus and mens rea existed in each particular case.
The examination of English criminal procedure is divided into two categories: the pretrial process, which includes police powers and procedures, bail, and the preliminary hearing; and the trial process, which explains the procedures for trials on indictment, summary proceedings, and appellate reviews.
The English criminal justice system in general, and criminal procedural issues in particular, have often received significant attention. The issue of police powers was the subject of a massive and extensive examination by the Royal Commission on Criminal Procedure (1981). The commission’s report focused on (among other things) police powers of arrest, search, and questioning.
Because police powers were scattered throughout common law, case law, and statute law, critics were of the opinion that police authority should be reviewed and systematized in a coherent fashion. The Royal Commission on Criminal Procedure agreed with this position and offered a general recommendation that police powers be codified. The rationale was based on two objectives. First, the police argued that they preferred to have a clear understanding of the limits of their authority and that framing these powers in a statute would assist in eliminating existing ambiguities. Second, the citizenry had a right to be apprised of these powers, for this is a basic tenet of any country that claims to be founded on democratic principles. An even more pragmatic reason centered on the need for the citizen’s willingness to cooperate with police when such powers were exercised. The assumption was that if the citizenry had a clear understanding of the extent of police powers, they would be more apt to cooperate.
The commission specifically suggested that the power to arrest without a warrant be more consistent. Arrests without a warrant were acceptable if the alleged violation was an arrestable offense or if another statute granted such a power. The commission recommended that there be one single power to arrest all accused of an imprisonable offense and that the power to stop and search a person should be based on a statute. The Commission would permit searches of stolen property or prohibited items in the event that an officer has a reasonable suspicion that a person possessed such property or items. Additionally, warrants to enter and search a premise should specifically detail the place to be searched and the items to be seized. General searches would be unacceptable.
In addition, the police power to question a suspect and take testimony was controlled by the Judges’ Rules and the Administrative Directions on Interrogation and the Taking of Statements. Collectively, these rules called for voluntary confessions, enumerated a person’s right to remain silent, enabled private consultations with a solicitor, and required that the person in custody be informed of these rights orally and that the rights be posted and displayed in a prominent place in police stations.
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Although these rules served a similar purpose to that of the Miranda warning in the United States, they were not legally binding. Breaches, therefore, did not lead automatically to the exclusion of evidence at trial. It was the responsibility of the judge to make a determination on the admissibility of evidence. Moreover, it was suggested that people in custody had not been routinely informed of their qualified right to speak to a solicitor or to friends; and when they had been informed, many were denied this right. Compounding the problem was the fact that solicitors were not always willing to come to a police station at all hours of the night.
There emerged a concern among some critics of police procedures that citizens—espe – cially the poor, illiterate, and uninformed—were victims of these and other unnecessary breaches of the rules. Critics contended that all citizens would become potential victims of these breaches if they were allowed to continue. Though in the past police had relied on public trust in their judgments and an almost unquestioned deference to agents of authority, the composition and attitudes of English society had changed considerably since World War II. Distinctions in the various segments of the population were more pronounced, and people were often unwilling to exhibit complete deference to the wishes and practices of police.
The Royal Commission recognized these concerns and offered two recommendations: The treatment of a suspect in custody should be regulated by statute, and the right of access to a solicitor should be improved by the establishment of a duty solicitor scheme. Although a few areas of the country had already developed such a scheme, the commission recom – mended that defendants throughout the country be given access to a solicitor on a 24-hour basis. The likelihood that such a scheme could work would be enhanced by guaranteeing solicitors a remuneration for their services.
As a result of the commission’s work, Parliament passed the Police and Criminal Evidence Act (1984), often referred to as PACE. This act essentially encompasses in a single statutory instrument all the aforementioned procedural issues relating to police. In addition to the act, the home secretary issued Codes of Practice designed to assist police with inter – preting the statute. Like the act, the Codes of Practice were subject to the approval of Parliament.
In 1991, the Royal Commission on Criminal Justice was established after several high- profile convictions were overturned. Although the original convictions in some of these cases predated the passage of PACE, that was not the case with all of them, thus raising questions about PACE. The new Royal Commission was given a broad mandate to consider the effectiveness of the criminal justice system—specifically, how to assure the conviction of the guilty and the acquittal of the innocent. The work of this Commission, along with various other committees, led to the passage of the Criminal Justice and Public Order Act (1994) and the Police and Magistrates’ Courts Act (1994). Unlike the Police and Criminal Evidence Act (1984), which essentially placed all procedural issues related to police under one statutory instrument, the new pieces of legislation deal with a host of issues that involve criminal law, criminal procedure, and the administration of the justice system (Bridges, 1994; Bridges and McConville, 1994; Zander, 1994). Since that time, more recent legis- lation impacts how the police perform their duties as it relates to criminal procedure. This legislation includes the Terrorism Act (2000); Anti-Terrorism, Crime and Security Act (2001); the Anti-Social Behaviour Act (2003); and the Criminal Justice Act (2003).
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Power to Stop and Search
Under PACE, police have the power to stop anyone who is in a place to which the public has access and to speak with them briefly in order to decide if there are grounds to conduct a search. Before a stop occurs, police must have established reasonable suspicion for doing so, based on the probability that stolen goods or prohibited items will be found either on the person or in a vehicle. Prohibited articles consist of offensive weapons and items made or adapted for use in the commission of various offenses (which, for the most part, involve burglary or theft).
In order to carry out a search, an officer is expected to inform the person to be searched about the officer’s name and police station, to identify the object of the proposed search, to explain the grounds for the search, and to inform the person of his or her right to receive a copy of the record of the search. The police also must keep a record of a search as long as it is practical to do so.
PACE also addressed the stopping and searching of vehicles and the issue of road checks. In the case of stopping and searching a vehicle, an officer must have reasonable suspicion that the vehicle contains stolen goods or prohibited articles. A search of an unattended vehicle is permitted as long as reasonable suspicion has been established. Road checks normally should be approved in advance by an officer of the rank of superintendent or above and an explanation given for the purpose of the check. The grounds for establishing a road block are the following: to apprehend a person who committed a serious offense, to secure a witness to a serious offense, to stop a person intending to commit a serious offense, or to apprehend an escaped prisoner.
Power to Enter, Search, and Seize
A key issue in searching premises is whether an officer has secured a search warrant. Usually, a warrant is needed to search a residence, but the statute offers some exceptions to the general rule. For example, a person who occupies a residence may consent to a warrantless search. The Code of Practice, however, states that a person is not obligated to consent to a search. In the event a person does agree, the consent must be in writing and the person must be informed that anything seized may be used as evidence. Warrantless searches also can be used to prevent or stop a breach of the peace that is imminent or taking place, to rescue a person in danger, or to prevent serious property damage. Arresting a person in cases in which an arrest warrant has been issued or arresting a person for an arrestable offense are also acceptable reasons. Upon entering a premise to arrest a person, police must have reasonable grounds to believe that evidence of an offense or similar offenses will be found. Two final reasons for a warrantless search include situations in which the defendant was at a premises immediately before an arrest or in which the intent is to recapture an escaped prisoner.
The application for a search warrant is covered under PACE. Under the act, a magistrate must be satisfied that there are reasonable grounds to suspect that an arrestable offense was committed and that relevant admissible evidence will be found. There are two excep- tions to this rule: legal privilege and excluded material. Legal privilege involves the
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communications between a professional legal advisor and his or her client. Excluded material includes personal records, a journalist’s materials, and human tissue or tissue fluids. Although the last two are fairly self-explanatory, it should be noted that the Criminal Justice and Public Order Act (1994) amended this provision. As such, police powers have been extended to take intimate and nonintimate samples in select circumstances. Personal records include the records of healthcare professionals, clergy, counselors, and agencies dealing with personal welfare issues. Certain materials held on a confidential basis, such as bank records, may be seized following an application for a warrant to a circuit judge. Under normal conditions, this application is sought in the presence of the person on whom the order is being made.
PACE also established a uniform procedure for carrying out a search warrant. The request for a warrant must be made in writing, and an officer must be put under oath to answer questions of a magistrate concerning the request. The warrant can be used only once and must be executed within a period of one month. When executing a warrant, an officer must identify himself or herself and present a copy of the warrant to the occupant of the premises. The search should also occur at a reasonable hour. Police can seize any item covered by the warrant or reasonably believed to be evidence of an offense.
Finally, it is important to note that not all searches are governed only by PACE. Some specific police powers are found in other statutes. A sample of these include the Theft Act (1968), the Misuse of Drugs Act (1971), the Aviation Security Act (1982), the Road Traffic Act (1988), the Offensive Weapons Act (1996), and the Terrorism Act (2000).
Power to Arrest
The power to arrest involves two general sets of circumstances: cases of arrest with a warrant and cases of arrest without a warrant. Various statutes authorize arrest with a warrant. It is the issue of arresting without a warrant that is often complicated and controversial. PACE attempts to clarify the circumstances in which it is permissible. Police can arrest without a warrant if they have reasonable grounds to believe that a suspect has or is about to commit an arrestable offense. They also can arrest people without a warrant for common law offenses carrying a sentence of five or more years’ imprisonment or for specific offenses listed in Section 24 of the statute.
A person must be informed when he or she is under arrest and be provided reasons for the arrest. Once a person is arrested, he or she can be searched. The search must be based on reasonable grounds that the person poses a present danger to himself or herself or others, possesses evidence of a crime, or possesses items that could be used for escape.
Power to Detain
The act and the accompanying code designate certain police stations to receive people for detention. Each of these stations has a custody officer at or above the rank of sergeant. Once a suspect arrives at a police station, the custody officer decides whether there is sufficient evidence to charge the person with a crime. Suspects who have not been charged can be detained if the custody officer believes that it is necessary in order to secure or
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preserve evidence. The custody officer also oversees the treatment of suspects who are being detained. Moreover, PACE requires a periodic review of the detention of suspects who have been charged. A review officer is responsible for this task, and the officer must be at least the rank of inspector and cannot be involved in the case under review. PACE mandates that the first review occur within the first six hours of detention, followed by further reviews at nine-hour intervals.
If police wish to continue to hold a suspect who has not been charged for longer than 24 hours, they must have the detention authorized by a person at the rank of superintendent or higher. If police wish to hold a suspect beyond 36 hours, they must seek the approval of a magistrate. Magistrates cannot authorize the holding of a suspect beyond 96 hours. The suspect or the suspect’s representative must be informed of these continuances so that oral or written statements can be made with regard to the detention.
At least two magistrates and the court clerk must be present at a detention hearing. The suspect must be given a copy of the police application for further detention and be notified of the right to legal representation. Acceptable reasons for a continuance of detention are the necessity to secure or …