CRIMINAL LAW AND PROCEDURE

« CRIMINAL LAW AND PROCEDURE 14/09 Lecture 1: Introduction The origins of the UK governmental system:  Magna Carta (1215) -> foundation of English common law system based on the rule of law and due process / but also represents a first effort towards representative government.  Today the UK has the oldest parliament in the world.

Housed in the palace of Westminster where it was first convened by Baron Simone de Montfort and has functioned continuously (given a few minor intervals) since 1265.  Other major events include the Act of Union 1707 between England and Scotland.

For the most part Scotland and England had been rules by the same monarchs since beginning of 1600s with two separate parliaments. The act of union brought the two together under the name of Great Britain.  1973 UK becomes Member state of the European community (EC)  Before Brexit, EU law was above UK law, it required the country to modify its laws such as the implementation of the equal treatment framework directive 2003  Brexit in 2016 The constitution of the UK is uncodified.

It is formed on the based of acts of parliament, court judgements and conventions such as:       Magna carta 1215 Provisions of oxford 1258 Petition of rights 1628 Bill of rights 1689 Act of settlement 1701 … The constitution government: divides power between the 3 “working” branches of  Legislative -> parliament = house of commons + house of lords -> makes laws  Executive -> prime minister (leader of the majority in house of commons)  Judicial -> supreme court, court of appeal, high court, lower courts The sovereign -> today it is Charles III.

The monarchy is considered a component of parliament.

Functions: participation in traditional ceremonies + appoints ministers, judges, and governors… Role of the monarchy in the judiciary.

As the Fount of justice, the monarch was the establishment and enforcement of the law.

Today just Fount of Honors -> symbolic.

The monarch can with the advice of government, exercise the prerogative of mercy, granted pardons… According to the Crown’s Proceeding Act (1947) the crown can be sued in civil court but not the monarch itself.

Also, he has sovereign immunity and technically cant be arrested and prosecuted (though parliament could repeal that convention). Devolution.

Population of Scotland, Wales and Northern Ireland voted in 1997 for devolution.

It decentralized the UK government transferring certain powers from UK government in London.

However, they can be suspended.

Ex: agriculture, education, health care, social services, housing… It created the Scottish parliament in 1999.

UK government maintains what are referred to as reserved powers having to do with national and international affairs (ex: international relations, foreign affairs, defense, immigration and nationality, energy…). English court system  Constitutional reform act 2005 -> created separate supreme court (now independent to the house of lords) and guarantees the independence of the judiciary in England and Wales and ensures the rule of law.  Adjudication of legal issues and choice of court vary according to whether a case is under criminal of civil law, though the separation is not absolute due to the fact some courts will hear both type of cases.  Structure of English courts o Magistrate courts: less serious criminal offences o Family courts: takes cases regarding family proceedings in private and public law o Tribunals: decide disputes o County court o Crown court o High court: divided into 3 divisions of both original and appellate jurisdiction + also hears civil cases over 100,000£  King’s Bench Division (KBD) -> common law cases (majority tort and contract)  Chancery division -> business law, trust and equity cases  Family division -> adjudicates deals with more complex family case and appeals from lower family court o Court of appeal: highest senior court in England and Wales after supreme court.

Has two division:  Criminal division  Civil division o Supreme court of the UK (UKSC)  Legal aid is provided for those who can’t afford it -> legal aid and advice act 1949.

Less funding since the Legal aid, sentencing and punishment of offenders act of 2012  Civil procedure rules 1999 created the 3-Track system for alternative dispute resolution to simplify access to courts o Mediation -> voluntary process not binding unless parties agree to it (mostly in family) o Conciliation -> used for legal disputes as a way to avoid costly court proceedings such as employment tribunal issue o Arbitration -> arbitration act 1996 / used for more serious disputes with major corporations and employment rights  Costs orders  Part 36 of the civil procedure rules: formal offer to settle out of court use predominantly as a legal tactic due to the fact that making or accepting a part 36 offer will affect the courts costs orders  Personnel: from the 15th to the 19th centuries the legal profession changed into two basic branches (serjeants died out / senior apprentices became known as barristers.

Today there are 2 types: o Barrister = lawyer entitled to plead cases o Solicitor = member of the legal profession qualified to deal with more administrative aspects What is common law.

common law is the body of law derived from judicial decisions, rather than from statues or constitutions as distinguished from law created by the enactment of legislatures, the common law comprises the body of those principals and rules of action relating to the government and security of persons and property.

… Sources of UK Law  Primary sources o Case law: the decisions of the courts setting precedent binding future decisions.

Its understood that judges are not bound to follow precedent of lower courts but those made by superior courts o Parliamentary legislation -> 2 types:  primary legislation = acts or statures enacted directly by parliament  delegated legislation = statutory instruments made under the authority of parliament stating how exactly the acts will function o European law -> still in place until revoked or changed by parliament  Secondary sources = commentaries on the law by authoritative institutions -> those are not law but starting point to research understand the background of a piece of legislation and the larger theoretical discussions pertaining to that area of law.

this allows for the review and recommendation of reforms: o Legal encyclopedias o Parliamentary and non-parliamentary document o Law journals o Textbooks Precedents  Judicial precedent (case law): the comprehensive body of reported court decisions with their accepted articulated rules and principles which are applied to future cases  Doctrine of precedent: in applying judicial precedent judges must treat like cases similarly and given certain factors judges are required to follow the rules and principles set in previous cases  Stare decisis (let the decision stand) Components of a court decision: when a judge makes a decision in a case that decision is broken down into 2 parts:  Ratio decidendi (reason for the decision) -> binding / it is the legal reasoning or principle of law that was applied in reaching the decision  Obiter dictum (things said by the way) -> not binding but can be used as persuasive precedents / remarks by the judge that are pertinent to the decision Crime statistics -> dropped during lockdowns / telephone operated crime arose during lockdowns Brexit  How we got there o lot of talk about immigrations o referendum on 23 of June of 2016, majority for leaving (51,9%) o article 50 was invoked in 2017 to start two-year clock on negotiations o Theresa may’s deal with EU not approved by parliament so Brexit delayed  Current deal -> transition period so UK continue to apply EU law 21/09 Lecture 2: basic principles of UK criminal law Fundamentals of Criminal Law:  Criminal law deals with the government’s obligations to secure the general welfare of the society by dealing with any act that threatens, harms, or endangers the public and establishes proper punishment for such activities  There is a recognized social contract by which it is the duty of the government to protect our larger interests  This contract allows the government to deal with the substance of what is a crime and how it is to be dealt with such as the classification of crimes, chat are the facts in a case, how should they be treated and how one should be charged to a crime  Crime is an injury against society, which as a whole, via its governmental structure, has made a collective judgment that certain behaviors are harmful to its interest  Thus, criminal law carries with it the moral condemnation from the society  This condemnation and the need to prohibit and punish violation is represented by the powers conferred to criminal law by society  What is legal authority? According to Mex Weber (1864-1920) the influential German philosopher and political scientist, identifies three types of legitimate authority: o Traditional authority: based on the sacredness pf tradition.

Normally the right.... »