Miljen Matijašević
E-mail: [email protected]
Office: G10, room 6 (1st floor)
Tue, 11:30-12:30
Today’s session
1.
Revision of the last session
2. Criminal Procedure in the UK
3. Legal Aid
Legislative Procedure – Civil Procedure in the UK
Revision questions – Legislative procedure
Describe the legislative procedure in the British
Parliament.
2. What is the Queen's role in Parliament?
3. What is a Bill? What types do you know?
1.
Revision – Civil Procedure
1.
2.
3.
4.
5.
6.
What is the civil procedure?
Who are the parties?
What are the possible remedies in civil cases?
What is a summons?
What are the defendant's options upon receiving the
claim?
What is the difference between the inquisitorial and
adversarial approaches?
Unit 10
Criminal Law
CRIMINAL LAW
 deals with certain forms of conduct for
which the state reserves punishment, such
as murder and theft
Criminal Law
the parties (UK):
 THE CROWN – i.e. the state
e.g. R v Collins – the Crown against Collins
R stands for ‘Regina’, i.e. ‘Rex’, latin: Queen or King
 DEFENDANT – the person being prosecuted, the
alleged criminal
Criminal Law
 the state is the prosecutor
 has interest in fighting crime
 criminal justice is administered with the help of
the police
 the police investigate a crime, apprehend
suspects and detain them in custody
Human Rights Act 1998
 direct impact on the criminal procedure
 The Human Rights Act 1998 introduced the rights
laid down in the European Convention on Human
rights (Art 5 and 6) into English law in 2000
 introduces provisions governing the right to a fair trial,
presumption of innocence (Art 6) and the right to
liberty and security (Art 5)
 all English statute and case law must now be measured
against these provisions
The Right to a Fair Trial (Art 6)
1.
In the determination of his civil rights and obligations and of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall
be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where
the interests of juveniles or the private life of the parties so
require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice
the interests of justice.
2.
Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to the law.
The Right to Liberty and Security
(Art 5 of the ECHR)

governs matters pertaining to unlawful arrest and detention and
lays down the conditions under which an individual can be
deprived of his or her liberty

It also provides that everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article has an
enforceable right to compensation.
The Prosecutors
 Most prosecutions undertaken by:

Crown Prosecution Service (CPS)
Criminal proceedings
STANDARD OF PROOF
 in criminal trials, the burden of proof is
on the prosecution, who, unlike in civil
trials, must prove guilt beyond
reasonable doubt
Starting Proceedings
 upon investigation of a criminal act, the police
may apprehend suspects and decide whether
the offender should be prosecuted
 if so, a file is sent to the CPS
 CPS then decides whether there is a realistic
prospect of conviction
 they must be sure that the evidence is legally
admissible and reliable.
Starting Proceedings
 next they must consider whether a prosecution
would be in the public interest
 criminal proceedings may be initiated by the
serving of a requisition to appear in court
(a.k.a. summons), or a warrant of arrest, issued
by a magistrates’ court
 prosecution is not initiated in all cases, but the
offender may only be cautioned
Caution
 in many cases of petty crimes, instead of being
prosecuted, offenders receive a police caution
 this is an official warning intended to:
 deter first-time offenders from re-offending, i.e.
committing the act another time
 remove the necessity of a court appearance
 deal quickly with less serious offenders
 this is not a conviction, but results in a criminal record
– may be considered in future trials as evidence of bad
character
The Right to Silence
 the defendant has a right not to say anything,
both in the police station and at trial
 since the entry into force of the Criminal Justice
and Public Order Act 1994, using the right to
silence may be brought up in the court, i.e.
the silence can be taken as an indicator of
possible guilt on the part of the defendant
Disclosure
 the requirement to disclose all evidence and
defence/prosecution materials to the other party
in the proceedings
 “It is a fundamental aspect of the right to a fair
trial that criminal proceedings (...) should be
adversarial and that there should be equality of
arms between the prosecution and defence.“
(Rowe v UK)
Disclosure
 however, the European Court of Human Rights
warned that “entitlement to disclosure of
relevant evidence is not an absolute right”
 three factors that justify withholding of
evidence:

national security

protection of witnesses

preserving secrecy in police investigations
Categories of criminal offence
 There are three categories of criminal offence in the UK:
1. Summary offences (or petty crimes)

least serious criminal offences; triable in magistrates’ courts;
jury trial not available
2. Indictible offences

most serious offences, triable in the Crown Court; more severe
penalties are available: trial by jury
3. Triable either way

criminal offences triable either in magistrates’ court or in the
Crown Court
Criminal proceedings
 cases are brought before a magistrate’s court
 The defendant enters a plea
 If he pleads not guilty the court evaluates the
case and may

proceed to trial and sentence

decide that the matter is too complex or serious for their
jurisdiction
Criminal proceedings
 if the case is found to be more serious, it is
committed to the Crown Court, where more
severe penalties are available, as well as a jury
trial
 A case can be committed to the Crown Court:

for trial

only for sentencing after a conviction in the
magistrates’ court
Summary offences
 95% of criminal cases are categorized as
summary offences and dealt with by magistrates’
courts
 these offences include: traffic violations,
drunk and disorderly behaviour, assaults,
minor criminal damage cases, cases
prosecuted by government departments or
agencies
 if the defendant pleads guilty upon being
charged, court appearance is avoided
Triable either way
 these offences include theft, drug offences, some acts of
violence against the person
 the defendant given the option to select the mode of
trial – summary trial or trial on indictment in the
Crown Court (before a jury)
 they must be well informed of the procedures and possible
penalties for each of the modes
 the court may, on the other hand, deem the case too
complex or serious and refer it to the Crown Court,
seeing as more severe penalties are available there
Indictable offences
 serious offences, such as rape, murder, fraud etc.
 trial by indictment – the Crown Court – before a jury
 before the jury is sworn in the judge has to assess whether
the evidence is sufficient for a possible conviction by jury
 it is possible that the judge dismisses the case due to
insufficient or inadmissible evidence
 if a ‘not guilty’ plea is entered, and the evidence is
considered reliable, the case proceeds to trial
Indictable offences – trial by jury




a jury of 12 is sworn in
after cross-examination, the judge sums up the
evidence and the facts of the case to the jury and the
jury retires
unanimous verdict – no longer required, but instead a
majority of 10 out of 12 jurors
if the jury convicts, the judge proceeds to sentence
Reaching a verdict
 Possible verdicts:
 conviction (v. to convict)

finding the defendant guilty
 acquittal (v. to acquit)

finding the defendant not guilty
Available sentences
1.
a discharge (conviction without punishment)
2. a fine
3. a community service order (doing unpaid work, receiving
treatment for addictions, rehabilitation programmes, supervision)
4. a custodial (prison) sentence
5. a suspended prison sentence (probation) - prison
sentence activated only if the convict reoffends within a certain period of
time
Triable either way – pros
Magistrate’s court
Crown Court
 Juries find defendants not
 Maximum prison sentence: 6
months for one offence, 12
months total
guilty more often than
magistrates
 Harder to convince 10 jurors
 Maximum fine: £5,000
of guilt beyond reasonable
doubt than 1-3 magistrates
Vocabulary practice 1
Explain and translate the following legal terms:
1.
INDICTABLE OFFENCE
2.
OFFENDER
3.
RE-OFFEND
4.
REALISTIC PROSPECT OF CONVICTION
5.
LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE
6.
WARRANT OF ARREST
7.
UNLAWFUL ARREST
8.
DEPRIVE sbd OF LIBERTY
Vocabulary practice 1
Explain and translate the following legal terms:
1.
INDICTABLE OFFENCE – teško kazneno djelo
2.
OFFENDER – počinitelj kaznenog djela
3.
RE-OFFEND – ponovno počiniti kazneno djelo
4.
REALISTIC PROSPECT OF CONVICTION – realne šanse za osudu
5.
LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE – pravno
prihvatljivi i pouzdani dokazi
6.
WARRANT OF ARREST – uhidbeni nalog, nalog za uhićenje
7.
UNLAWFUL ARREST – protupravno uhićenje
8.
DEPRIVE sbd OF LIBERTY – lišiti nekoga slobode
Vocabulary practice 2
Explain and translate the following legal terms
1.
SUMMARY OFFENCE
2.
TRAFFIC VIOLATION
3.
PLEA
4.
CROSS-EXAMINATION
5.
ACQUITTAL
6.
INITIATE A CRIMINAL PROCEEDING
7.
PROVE GUILT BEYOND REASONABLE DOUBT
8.
CONVICTION
Vocabulary practice 2
Explain and translate the following legal terms
1.
SUMMARY OFFENCE – lakše kazneno djelo
2.
TRAFFIC VIOLATION – prometni prekršaj
3.
PLEA – izjašnjavanje o krivnji
4.
CROSS-EXAMINATION – unakrsno ispitivanje
5.
ACQUITTAL – oslobađujuća presuda
6.
INITIATE A CRIMINAL PROCEEDING – pokrenuti kazneni postupak
7.
PROVE GUILT BEYOND REASONABLE DOUBT – dokazati krivnju
izvan svake sumnje
8.
CONVICTION – osuđujuća presuda
Unit 8
Legal Aid
Answer the question with your partner:

Equality before the law is a requirement laid down
in the European Convention on Human Rights. Is
that really the case in practice? Why (not)?
Access to Justice
 EQUALITY BEFORE THE LAW - implications:
 Everyone knows the law
 Everyone will be able to afford the same quality representation
 Two main needs:
1.
obtaining good quality LEGAL ADVICE
2.
being represented in a court of law
(LEGAL REPRESENTATION)
Access to Justice

Legal Aid Act 1988 – brings together various systematic schemes of
legal aid

Candidates for legal aid were put through a means test, and the case
itself through a merit test
(means – sredstva; merit – zasluga)
Access to Justice

MEANS TEST – aimed at establishing whether the candidate is
sufficiently financially disadvantaged to be eligible for legal aid

MERIT TEST – the case is evaluated in order to establish whether it
was relevant enough to receive public funding
financially disadvantaged, adj. – poor
eligible (for sth), adj. – meeting the criteria for sth
Access to Justice

This system did not function very well - a lot of money
was being spent and a very low percentage of the
disadvantaged was actually getting free legal aid

As a consequence alternative voluntary services
developed to deal with the ‘unmet legal need’

The legal aid system radically reformed by the Access to
Justice Act 1999
Access to Justice Act 1999

Introduces new criteria and selection mechanisms

Establishes the main authority for the organisation and
provision of free legal aid:
the Legal

Services Commission (LSC)
Set up as an executive non-departmental public body of
the Ministry of Justice
Legal Services Commission (LSC)
CONTRACTING
 In the earlier systems, any solicitor could provide legal
assistance and then claim fees from the State
 Within the new system, only those legal professionals who
meet certain quality criteria and then conclude a contract
with the LSC can provide free legal aid.
 Contracted firms undergo regular quality audits, but are
also provided training in areas of the law where free legal
aid is regularly sought (homelessness, repossession of
property, human rights, immigration and asylum, etc.)
The Funding Code
 Funding for legal advice and representation available
for:
very expensive cases, judicial review (sudsko preispitivanje
odluke), claims against public authorities (tužbe protiv upravnih
tijela), clinical negligence (liječnički nemar), housing, family,
mental health, immigration and asylum
 means test may apply
The Funding Code
 Funding for legal advice and representation NOT
available for:
personal injury claims, boundary disputes (sporovi oko međe),
wills, defamation (kleveta), company law, etc.
Criminal Defence Service (CDS)
 CDS provides legal advice and representation to people
under police investigation or facing criminal charges
 Run by the LSC in partnership with criminal defense
lawyers and representatives
 Makes contracts and employs attorneys directly to provide
legal advice and assistance (Public Defenders)
 Defendants have the right to choose another legal
representative, other than the public defender
Conditional Fee Agreements (CFAs)
 “No Win No Fee”
 Defined as “an agreement with a person providing
advocacy or litigation services which provides for his fee
and expenses, or any part of them, to be payable only in
specified circumstances”, i.e. only if the lawyer wins the
client’s case
 Available only for civil cases, prohibited in criminal
proceedings and virtually all family proceedings.
Legal Aid Agency 2013
 Legal Aid, Sentencing and Punishment of Offenders Act
2012 abolished the LSC
 instead, the Legal Aid Agency set up as of 2013
 carries out similar work but no longer part of the Ministry
of Justice
 greater independence in funding-related decision making
Key vocabulary
equality before the law
legal advice
legal representation
means test
merit test
eligible
Legal Services Commission
Legal Aid Agency
contracting
Conditional Fee Agreement ("no win no fee")
Vocabulary practice
provider – defamation – assets – eligible – judicial – claim
1.
If it is established that a defendant in a criminal proceeding has substantial .............. , he or
she is not .............. for free legal aid.
2.
Unhappy with the court’s decision, Mr. Caulfield filed for .............. review.
3.
The Legal Services Commission concludes contracts with various .............. of legal assistance
and representation, ranging from voluntary organisations to large law firms.
4.
Marion Kirby thought the article published about her contained information damaging to
her reputation, so she decided to file a .............. lawsuit against the author of the article.
5.
In the past, legal aid could be obtained from any solicitor, who would then .............. their
fees from the State.
Vocabulary practice
provider – defamation – assets – eligible – judicial – claim
1.
If it is established that a defendant in a criminal proceeding has substantial ASSETS, he or
she is not ELIGIBLE for free legal aid.
2.
Unhappy with the court’s decision, Mr. Caulfield filed for JUDICIAL review.
3.
The Legal Services Commission concludes contracts with various PROVIDERS of legal
assistance and representation, ranging from voluntary organisations to large law firms.
4.
Marion Kirby thought the article published about her contained information damaging to
her reputation, so she decided to file a DEFAMATION lawsuit against the author of the
article.
5.
In the past, legal aid could be obtained from any solicitor, who would then CLAIM their fees
from the State.
Thank you for your attention!