England and Wales

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LEGAL TRAINING RESOURCE CENTER

Background

In 55 AD, Roman forces conquered what is today known as the United Kingdom of Great Britain and Ireland, signaling the start of a long history of incorporation and development. [1] The Norman conquest in 1066 further characterized the UK and instilled many important legal, political, and cultural institutions. For the next 700 years, the UK created an empire that spanned over one-fourth of the globe and that controlled key economic markets. Both World Wars, however, severely weakened the British Empire and the UK eventually lost control of colonies in Africa, Asia, and the Middle East. Today, those territories that remain under British control are part of the British Commonwealth of Nations, an association that includes countries such as Australia, New Zealand, and Canada. In addition, the current United Kingdom consists of Northern Ireland, Wales, England, and Scotland. The UK is a constitutional monarchy, a system in which the monarch is the head of state and the prime minister is the head of government. The current Conservative party prime minister, David Cameron, faces challenges such as integrating a growing immigrant population and reviving the economy. 92.1% of the UK’s population is of Scottish, English, Welsh, or Northern Irish descent. In recent decades, however, the UK has been experiencing a large influx of immigration from former colonies such as India and Pakistan. [2]

Type of System

The legal system of England and Wales is based on common law. The United Kingdom does not have a formal constitution and the parliament has virtually limitless constitutional sovereignty. Parliament has worked to increase police privileges and decrease protection of accused persons, while the courts have acted to expand their common law powers through the interpretation of statutes. [3]

Source of Defendants’ Rights

Although the United Kingdom does not have a written constitution, defendants’ rights are protected by multiple conventions, such as the European Convention on Human Rights (ECHR). The Human Right Act of 1998, for instance, entered into English law many human rights as detailed by the ECHR. Additionally, the Human Rights Act declares that any act committed by a public authority that violates the ECHR is unlawful. [4] The Human Rights Act prohibits the use of torture or other degrading acts, prohibits discrimination, declares that everyone has a right to life and liberty, the right to a fair trial, the right of respected private home and family communication, and the right to freedom of expression. [5] Additionally, law under the European Union applies to the United Kingdom and in a case of conflict, EU law presides over UK law. [6]

Pre-trial phase

Arrests in England and Wales are divided into two categories: those made with warrants and those made without warrants. Most present day arrests are made without warrants. After arrest, the arresting constable must decide whether there is enough evidence to charge the person or if they should be released. If the accused is not charged, they can only be detained for a maximum of 24 hours. [7] However, arrests made under the Terrorism Acts of 2000 and 2006, detention is permitted to last up to 28 days. [8] Additionally, Article 5 of the Human Rights Act details that every detainee must be informed of the charges brought before them in a timely manner and in a language that they understand and that they must be brought before a judge and awarded a trial within a reasonable time period. [9]

Under British common law, the police must justify each search and entry of a dwelling with either consent or a warrant. [10] Common law also dictates that in instances of interrogation, the person being interrogated is not required to answer questions posed to them by the police.

Court Procedures

At the time of an accused person’s arrest, police officials will complete a charge sheet which will include all of the details of the crime, and this sheet will include all of the necessary information for proceedings in the magistrates’ court. [11] After the arrest, the Crown Prosecution Service will decide whether or not the case should be prosecuted. The decision to prosecute is based on whether or not there is a realistic possibility of conviction and whether or not the case is in the public interest. [12] In England and Wales, there are no preliminary hearings for summary offenses. For trials on indictment, there is a committal hearing before magistrates. There are two kinds of procedures for these committal hearings: the first does not include consideration of the evidence at all and the second includes documentary evidence that is submitted by the prosecution to the magistrates. [13]


Pre-trial motions are generally very rare and are limited to cases such as bail, legal aid for the trial, and orders that restrict pre-trial publicity. After the defendant is charged, he will be allowed to plea either guilty or not guilty. It will then be decided whether or not his case will be heard in a magistrates’ court or the Crown Court. This procedure is known as “plea before venue” and is detailed in Section 49 of the Criminal Procedure and Investigations Act of 1996. [14]


In terms of discovery, requirements concerning prosecution disclosure were recently turned into common law duties. [15] In circumstances of prosecution disclosure, the prosecutor must disclose information to the defense that might jeopardize the prosecution’s case. [16] Trials in England and Wales are adversarial in nature, although the prosecution is required to present the case in a way that is fair and objective towards the defendant. All criminal trials take place in one of three courts: the magistrates’ courts, the Crown Court, or the youth courts. [17]


According to English common law and the European Convention on Human Rights, an accused person is entitled to a fair trial and a number of other rights. These rights include the right not to be subjected to proceedings which are in violation of court procedure, the right to an impartial tribunal, the right to a randomly selected jury [18], the right to counsel, the right to disclosure of materials by the prosecution, and the right to be present at the examination of witnesses. [19] [20]


English common law and Article 6.1 of the European Convention on Human Rights both adhere to the concept of a fair hearing based on the principle of equality between the prosecution and the defense. The defendant is also entitled to appoint their own legal representation, or if need be, the state will bear the cost of the defendant’s legal representation. [21] Both the prosecution and the defense have the right to bring witnesses to the stand. Witnesses who refuse to answer questions without a reasonable excuse will be held in contempt of court. [22] Expert witnesses may be called on behalf of either the prosecution or the defense and their testimony is given more weight than other witnesses due to their professional opinion. Additionally, expert witnesses are exempt from the prohibition on the admissibility of hearsay evidence. [23] Following the publication of the UN’s Declaration of General Principles of Justice for the Victims of Crime and Abuse of Power, England and Wales published the Victim’s Charter. The Charter lays out considerations that the police and other court officials should keep in mind when interacting with victims of crimes. The Charter has even resulted in the retraining of some personnel on issues of sensitivity and dealing with trauma. [24]


In the magistrates’ court, the magistrate presides over the proceedings and issues a sentence after conviction. Magistrates are appointed by commissions that are determined by county and a magistrate’s jurisdiction is limited to that county in which they have been appointed. The two types of magistrates that exist in England and Wales are lay magistrates and district judges (or stipendiary magistrates). Lay magistrates are not legally qualified and are not paid, while district judges are qualified barristers or solicitors and are appointed by the Queen. [25] [26]

References

  1. Country Profile available at www.state.gov/r/pa/ei/bgn
  2. Country Profile available at www.state.gov/r/pa/ei/bgn
  3. Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)
  5. www.legislation.gov.uk
  6. Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)
  7. PACE section 41
  8. Craig M. Bradley, Criminal Procedure A Worldwide Study 157 ( 2d ed., Carolina Academic Press 2007)
  9. www.legislation.gov.uk
  10. Craig M. Bradley, Criminal Procedure A Worldwide Study 158 ( 2d ed., Carolina Academic Press 2007)
  11. Craig M. Bradley, Criminal Procedure A Worldwide Study 175 ( 2d ed., Carolina Academic Press 2007)
  12. Craig M. Bradley, Criminal Procedure A Worldwide Study 173 ( 2d ed., Carolina Academic Press 2007)
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)
  14. Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)
  15. Craig M. Bradley, Criminal Procedure A Worldwide Study 177 ( 2d ed., Carolina Academic Press 2007)
  16. Criminal Procedure and Investigation Act 1996, section 3
  17. Craig M. Bradley, Criminal Procedure A Worldwide Study 180 ( 2d ed., Carolina Academic Press 2007)
  18. Juries Act 1974
  19. Magistrates’ Courts Act 1980, section 4(3)
  20. Craig M. Bradley, Criminal Procedure A Worldwide Study 180-182 ( 2d ed., Carolina Academic Press 2007)
  21. Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)
  22. Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)
  23. Craig M. Bradley, Criminal Procedure A Worldwide Study 186 ( 2d ed., Carolina Academic Press 2007)
  24. Craig M. Bradley, Criminal Procedure A Worldwide Study 190 ( 2d ed., Carolina Academic Press 2007)
  25. Justice of the Peace Act 1997, s section 11,16
  26. Craig M. Bradley, Criminal Procedure A Worldwide Study 187-188 ( 2d ed., Carolina Academic Press 2007)

QUICK FACTS


  • England and Wales has a total prison population of 84,145, with every 152 per 100,000 people in prison.
  • About 14.9% of England and Wales’ prison population consists of pre-trial detainees and about 1.9% is made up of juvenile prisoners.
  • England and Wales has 140 prison institutions with an official occupancy of 77,466 prisoners. The current prison occupancy level is at 107.2%.
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