Bangladesh is part of the common law jurisdiction. It is a member of the Commonwealth of Nations. The legal system of Bangladesh has its roots in the laws of British India. Since independence in 1971, statutory law enacted by the Parliament of Bangladesh has been the primary form of legislation. Judge made law continues to be significant in areas such as constitutional law. Unlike in other common law countries, the Supreme Court of Bangladesh has the power to not only interpret laws made by the parliament, but to also declare them null and void and to enforce fundamental rights of the citizens. The Bangladesh Code includes a compilation of all laws since 1836. The vast majority of Bangladeshi laws are in English. But most laws adopted after 1987 are in Bengali. Family law is intertwined with religious law. Bangladesh has significant international law obligations.
During periods of martial law in the 1970s and 1980s, proclamations and ordinances were issued as laws. In 2010, the Supreme Court declared that martial law was illegal, which led to a re-enactment of some laws by parliament. A Right to Information Act has been enacted. Several of Bangladesh's laws are controversial, archaic or in violation of the country's own constitution. They include the country's special powers act, blasphemy law, sedition law, internet regulation law, NGO law, media regulation law, military justice and aspects of its property law. Many colonial laws require modernization.
According to the World Justice Project, Bangladesh ranked 103rd out of 113 countries in an index of the rule of law in 2016.
Fundamental rights in Bangladesh
Part III of the Constitution of Bangladesh includes the articles of fundamental rights.
- Laws inconsistent with fundamental rights to be void (Article-26)
- Equality before law (Article-27)
- Discrimination on grounds of religion, etc. (Article-28)
- Equality of opportunity in public employment (Article-29)
- Prohibition of foreign titles, etc. (Article-30)
- Right to protection of law (Article-31)
- Protection of right to life and personal liberty (Article-32)
- Safeguards as to arrest and detention (Article-33)
- Prohibition of forced labour (Article-34)
- Protection in respect of trial and punishment (Article-35)
- Freedom of movement (Article-36)
- Freedom of assembly (Article-37)
- Freedom of association (Article-38)
- Freedom of thought and conscience, and of speech (Article-39)
- Freedom of profession or occupation (Article-40)
- Freedom of religion (Article-41)
- Rights of property (Article-42)
- Protection of home and correspondence (Article-43)
- Enforcement of fundamental rights (Article-44)
- Modification of rights in respect of disciplinary law (Article-45)
- Power to provide indemnity (Article-46)
- Saving for certain laws (Article-47)
- Inapplicability of certain articles (Article-47A)
Judicial precedent is enshrined under Article 111 of the Constitution of Bangladesh.
Bangladeshi courts have provided vital judicial precedent in areas like constitutional law, such as in Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh, which declared martial law illegal. The judgement of Secretary, Ministry of Finance v Masdar Hossain asserted the separation of powers and judicial independence.
In Aruna Sen v. Government of Bangladesh, the Supreme Court set a precedent against unlawful detention and torture. The court affirmed the principle of natural justice in the judgement of Abdul Latif Mirza v. Government of Bangladesh. The two verdicts were precedents for invalidating most detentions under the Special Powers Act, 1974.
The doctrine of legitimate expectation in Bangladeshi law has developed through judicial precedent.
Codification and language
The Bangladesh Code has been published since 1977. Most of its laws, dating between 1836 and 1987, are in English. Following a government circular in 1987, the code has been published primarily in Bengali. The language of the Supreme Court and High Court is English. However, most magistrates courts and district courts use Bengali. The lack of a uniform language has been a cause of concern, with arguments in favor of both English and Bengali. The country's financial sector depends on English, whereas cultural nationalists prefer Bengali.
Freedom of information
The Right to Information Act 2009 passed by the Jatiyo Sangshad was hailed as a major reform. The law allows information requests to most government departments, except the military. Hence, security agreements with foreign countries are not under its purview.
As of 2016, 76,043 requests have been made to the Chief Information Commissioner by citizens and organizations.
The main criminal laws are The Penal Code, 1860, the Code of Criminal Procedure, The Cattle Trespass Act 1871, The Explosive Substances Act 1908, The Prevention of Corruption Act 1947, The Anti-Corruption Act 1957, The Special Powers Act 1947, The Dowry Prohibition Act 1980, The Narcotics (Control) Act 1990, The Women and Children Oppression Act 1995 and The Anti-Terrorism Act 2013.
Bangladesh's company law has its roots in the Joint Stock Companies Act 1844 enacted by the Parliament of the United Kingdom. It was later influenced by the Companies Act 1857, Companies Act 1913 and Companies Act 1929. The Securities and Exchange Ordinance, 1969 was the most important piece of legislation incorporating corporate activities during the Pakistan period. After the independence of Bangladesh, post partition Indian company law served as a model for reforms. The Company Law Reforms Committee was set up in 1979 with leading civil servants, chartered accountants and lawyers. The committee's recommendations were not implemented until 1994, when the Companies Act (Bangladesh) 1994 was passed by the Jatiyo Sangshad. The Securities and Exchange Commission Act of 1993 created the Bangladesh Securities and Exchange Commission to oversee the country's two stock markets.
Bangladeshi contract law is based on the Contract Act 1872 and the Sale of Goods Act 1930.
According to the World Bank's 2016 Ease of Doing Business Index, Bangladesh ranks 189th in enforcing contracts.
Islamic law applies to Bangladeshi Muslims in family law and inheritance laws. Hindu personal law applies to Bangladeshi Hindus in family law. Bangladeshi Buddhists also follow Hindu personal law. The Christian Marriage Act, 1872 applies to Bangladeshi Christians.
Main article: Taxation in Bangladesh
The Customs Act 1969 is the basis of customs law. The Income Tax Rules were promulgated by ordinance in 1984.Value Added Tax was revised with the Value Added Tax (VAT) and Supplementary Duty (SD) Act 2012.
The Municipal Taxation Act 1881 governs municipal taxes.
The Bangladesh Labour Act 2006 was amended with the Bangladesh Labour (Amendment) Bill, 2013 to improve worker rights, including greater but limited freedom to form trade unions, and improving occupational health and safety condition in factories. In 2017, the government pledged to remove the ban on trade unions in export processing zones.
The constitution guarantees the right to private property. The Transfer of Property Act, 1882 is the basic property law. However, some government agencies like RAJUK restrict property transfers in urban areas through foreign direct investment. The Vested Property Act allows the government to confiscate property from entities or individuals deemed as enemies of the state.
Intellectual property law
The Patent and Designs Act 1911 is the country's oldest copyright law. The Patent and Design Rules were introduced in 1933. The Copyright Act 2000, Copyright Rules 2006 and Trademarks Act 2009 are the other main laws.
Main article: Judiciary of Bangladesh
The general hierarchy includes both civil and criminal courts. At the top hierarchy is the Supreme Court of Bangladesh.
Judicial review in Bangladesh is performed by a system of writ petitions to the High Court Division under Article 102 of the constitution.
Alternative dispute resolution
The Bangladesh International Arbitration Center is the sole court of commercial arbitration in the country. It is the country's first center for alternative dispute resolution.
A Bangladeshi lawyer is termed an advocate when he or she enters the Bar. Law students can train abroad, including as barristers in the United Kingdom; as well as in other countries; and return to enroll as advocates in the Bangladeshi bar.
The Bangladesh Bar Council and the Bangladesh Supreme Court Bar Association are the leading lawyers' societies in the country. Many of Asia's leading lawyers. such as former Amnesty International chief Irene Khan, have been Bangladeshi.
Criminal Justice System refers to judicial process or procedure of adjudicating criminal issues of which depends on vast knowledge in the Criminal matter and its practice. Easily it may be said Criminal Justice in concerned with the punishment of the wrong other than civil wrong which in Criminal Proceeding is know as crime.
The main objective of the Criminal Proceeding is to punish wrongdoer. Criminal Justice brought only for rendering punishment of the accused for the allegation alleged against him subject to the proof that the offence or crime has been committed by him or not.
In this research the following words and expressions have the following meanings:
- Bangladesh is a unitary, independent, sovereign Republic to be known as the People’s Republic of Bangladesh.
- Advocate used with reference to any proceeding in any Court means an advocate or a mukhtar authorized under any law for the time being in force to practice in any such Court and includes any other person appointed with the permission of the Court to act in such proceeding.
- bailable offence means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.
- charge includes any head of charge when the charge contains more heads than one.
- Clerk or Staffs of the State includes any officer specially appointed by the Chief Justice to discharge the functions given by this Code to the Clerk of the State.
- Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer.
- High Court Division” means the High Court Division for criminal appeal or revision.
- Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.
- Investigation includes all the proceedings under this Code for the Collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by Magistrate in this behalf.
- Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.
- Offence means any act or omission made punishable by any law for the time being in force.
- officer in charge of a police-station includes, when the officer in charge of the police-station is absent from the station-house or unable from illness or other cause to perform his duties, the police-officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Government so directs, any other police-officer so present.
- Place includes also a house, building, tent and vessel.
- Police-station means any post or place declared, generally or specially, by the Government to be a police-station, and includes any local area specified by the Government in this behalf.
- Public Prosecutor means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor.
- Special law is a law applicable to a particular subject.
- Section denotes one of those portions of a chapter of this Code which are distinguished by prefixed numeral figures.
- act denotes as well a series of acts as a single act: the word
- Omission” denotes as well a series of omissions as a single omission.
- Dishonestly -whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
- Moveable properties are intended to include corporeal property of every description, except land and thing attached to the earth or permanently fastened to any thing which is attached to the earth.
- Court of Justice denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
- Judge” denotes not only every person who is officially designed as a Judge, but also every person,-
who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
- Government” denotes the person or persons authorized by law to administer executive Government in Bangladesh, or in any part thereof.
- Public includes any class of the public or any community.
- Person includes any Company or Association, or body of persons, whether incorporated or not.
- Man denotes a male human being of any age: the word “woman” denotes a female human being of any age.
Rational of the study:
Everyman has a criminal mentality. Whenever he gets chance or needs to take benefit he just use that and as a result crime committed and which tends criminal justice to be adjudicated.
Bangladesh is a development country which because of its economic, political and geographical position is full of crime but does not seek justice properly.
Criminal Justice System of the country is only showing uniformed theoretically but practically it suffers much disability. Criminal violation to a person is much painful and non-bearable. The rational of the study is to bring out reason behinds failure to seek justice and the steps which may reasonably be able to suppress its disabilities.
Objectives of the study:
The main objective of the Criminal Justice is to punish the wrong door with penalty which intent to deter peoples to not engaged in crime and suppress crime. The main objective of the study is to find out the reason why Criminal Justice is not ensured yet after having all the body of enforcing and almost uniformed judicial system.
We have the law, administrative body, legislative body, Executive Authorities and Judiciary everything to suppress crime and to ensure justice if it committed but hence there are lots of cases where no justice is ensured and moreover crime is increasing day by day .So the study objects to find out reason of such incapability and to find out some practical doings which may reasonably reduce crime.
Following are the main objective of the study:
- Find out the problems behind failure to justice, and
- Point out suggestions to reform the failure.
Scope of the study:
The fieldwork on which this thesis is based was carried out from 01st April 2013 to 1st September 2013.
In order to gain a broad perspective on and nuanced understanding of the criminal justice system my original aim was to find out the present condition of the criminal justice system of the country by considering the origin of the laws of the country. And on that’s reason I spend about 5 months on gathering information from the cases pending or adjudicated in various criminal court within the territory and from the communication with jurists, lawyers, staffs, police, plaintiff and accused also.
Methodology of the study:
The methodology of the present research work include- Review of related literature and examination of important principle document, law Book and Based, Journals, law ripcord DLR, ILR, Periodicals and Judicial precedence concern with Criminal Justice System.
The work also includes- Case study, data collection, concerning cases instituted in and disposed of every year and interviewing of litigant, Lawyers, Law officers and Judges. Where necessary and expending data would be collected from primary sources litigants, Lawyers and Judges would be selected for interview. On the basic of convenience and expedience, in cases of need other related work such as using web side, on visiting library could also be carried out. Basically the work would be a combination of description and anilities. Further the work also is a work of theoretical or operational research.
In final, as regards approach the work would be blend of to approaches-
- Historical Approaches
- Analytical Approaches
Limitation of the study:
Every good work is restricted by certain restriction. Research on criminal justice system is also a good work because the criminal justice system of the country are suffering from much disabilities and through this research problem behind the criminal justice system shall be definitely specify as well as reasonable remedial measures may be drawn from critical analysis on such disabilities and from the suggestion proposed by the jurists, lawyer, judges etc.
Besides the research was subjected to some others technical limitation also. For example while working on this research I had to go through various limitations those are termed in this research as limitation of the study.
As a researcher I had to go through following limitations namely,
- Analysis or research on criminal justice system is a vast and wide doings. It is hard to complete the research within this short period of time granted by the 6 months.
- The research is subjected to the vast knowledge in the criminal justice system and as a researcher I had to suffer from the reference of book,
- It was hard to communicate or have the appointment of the jurists on criminal justice system,
- The criminal justice system of Bangladesh is a vast matter which can not be exactly or completely analyzed with in 200 pages,
- Finally, due to time constraint many of the aspects could not be discussed and presented in the assigned report.
Crime, Criminal Justice System and Cause of Crime:
Literally crime means an act or omission that constitutes an offense that may be prosecuted by the state and is punishable by law.
Crime is “an action or an instance of negligence that is deemed injurious to the public welfare or morals or to the interests of the state and that is legally prohibited”
The term crime does not, in modern times, have any simple and universally accepted definition, but one definition is that a crime, also called an offence or a criminal offence, is an act harmful not only to some individual, but also to the community or the state (a public wrong). Such acts are forbidden and punishable by law.
The idea that acts like murder, rape and theft are prohibited exists all around the world, and probably has universal moral basis. What precisely is a criminal offence is defined by criminal law of each country. While many have a catalogue of crimes called the criminal code, in some common law countries no such a comprehensive statute exists.
The state (government) has the power to severely restrict one’s liberty for committing a crime. Therefore, in modern societies, a criminal procedure must be adhered to during the investigation and trial. Only if found guilty, the offender may be sentenced to punishment such as community sentence, imprisonment, life imprisonment or, in some jurisdictions, even death.
To be classified as a crime, the act of doing something bad (actus reus) must be usually accompanied by the intention to do something bad (mens rea), with certain exceptions (strict liability).
While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the state, but can be enforced through civil procedure.
Whether a given act or omission constitutes a crime does not depend on the nature of that act or omission. It depends on the nature of the legal consequences that may follow it. An act or omission is a crime if it is capable of being followed by what are called criminal proceedings.
Thus crime is an unlawful act or omission from doing an act which he is bound to do or under the obligation to do so but acted or omitted.
The word criminal was used first in the 15th century and derived from Late Latin word criminalis .The word literally means A person who has committed a crime.
A criminal is a person who has acted or omitted himself from doing an act for which he was bound to do or omit him from doing under obligation imposed by any law or whose duty it was to do or omit himself from doing.
Thus criminal means a person who committed a crime is the criminal himself for such act.
Criminal Justice System:
Criminal justice system is a generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and punishment carried out.
It also means the system of law enforcement, the bar, the judiciary, corrections, and probation that is directly involved in the apprehension, prosecution, defense, sentencing, incarceration, and supervision of those suspected of or charged with criminal offenses.
The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) adjudication (courts); and (3) corrections (jails, prisons, probation and parole). In the criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society.
The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.
Most criminal justice systems have five components-law enforcement, prosecution, defense attorneys, courts, and corrections, each playing a key role in the criminal justice process. The system of law enforcement, the bar, the judiciary, corrections, and probation that is directly involved in the apprehension, prosecution, defense, sentencing, incarceration, and supervision of those suspected of or charged with criminal offenses.
Law Enforcement: Law enforcement officers take reports for crimes that happen in their areas. Officers investigate crimes and gather and protect evidence. Law enforcement officers may arrest offenders, give testimony during the court process, and conduct follow-up investigations if needed.
Prosecution: Prosecutors are lawyers who represent the state or federal government (not the victim) throughout the court process-from the first appearance of the accused in court until the accused is acquitted or sentenced. Prosecutors review the evidence brought to them by law enforcement to decide whether to file charges or drop the case. Prosecutors present evidence in court, question witnesses, and decide (at any point after charges have been filed) whether to negotiate plea bargains with defendants. They have great discretion, or freedom, to make choices about how to prosecute the case. Victims may contact the prosecutor’s office to find out which prosecutor is in charge of their case, to inform the prosecutor if the defense attorney has contacted the victim2, and to seek other information about the case.
Defense Attorneys: Defense attorneys defend the accused against the government’s case. They are ether hired by the defendant or (for defendants who cannot afford an attorney) they are assigned by the court. While the prosecutor represents the state, the defense attorney represents the defendant.
Courts: Courts are run by judges, whose role is to make sure the law is followed and oversee what happens in court. They decide whether to release offenders before the trial. Judges accept or reject plea agreements, oversee trials, and sentence convicted offenders.
Corrections: Correction officers supervise convicted offenders when they are in jail, in prison, or in the community on probation or parole. In some communities, corrections officers prepare pre-sentencing reports with extensive background information about the offender to help judges decide sentences. The job of corrections officers is to make sure the facilities that hold offenders are secure and safe. They oversee the day-to-day custody of inmates. They also oversee the release processes for inmates and sometimes notify victims of changes in the offender’s status.
Causes of Crimes:
Cause found in scientific method:
People are not bad by nature, but sometimes simply too timid to resist the vicious demons that play on their weaknesses and cut their bond with the source of their Power. Humans are good by default, but not everyone is made of steel so as to defend themselves against the demonic forces – destructive emotions and detrimental attitudes: fear, ignorance, hatred, worry, revenge, envy, attachment, greed, lust, selfishness, doubt, prejudice, pride, vanity, impatience, sloth, discrimination, arrogance, ambition, addiction, gluttony, criticism, blame, anxiety, frustration and so on. We all get attacked by those faulty ethereal goblins of our minds and hearts, but most of us succeed to resist them. It’s easy to act on anger, greed, revenge or any of highlighted above, but it takes courage and strength to determine that there is something more important than that.
There are two core reasons why weakness prevails with some:
1) lack of faith, not believing enough in the power of one’s own internal weapons (against inner demons), such as: courage, tolerance, understanding, forgiveness, mercy, honesty, sincerity, integrity, honor, modesty, humbleness, generosity, love, compassion, kindness, detachment, patience, self-discipline, temperance, etc. As a result of not trusting inner resources, there is no enough motivation to develop them and use them. Art Solutions – get the free crime cure; watch inspirational films and read inspirational stories of good qualities conquering the bad ones.
2) Imbalance – most criminals are simply too strong physically, pumping up the body muscles, but not enough the mental and emotional muscles. The reason why their strength becomes weakness is because they are not balanced.
Art Therapy Solutions – get the free artistic crime cure; watch the movie trilogy ‘Samurai’ by legendary Japanese director Hiroshi Inagaki. It tells the story of the greatest Samurai warrior in Japan – Musashi Miyamoto, his journey from being just a tough warrior to a true hero, equally strong on all three accounts: physical skills, mental calmness and emotional state. Watch all three films online here for free. (Titles: Samurai One, Samurai Two, Samurai Three)
Underneath all the weaknesses is a genuine human desire to do well. When we decline ourselves from our source (Higher Power), we find ourselves either in a wrong relationship or in a wrong job, or simply in a wrong place at wrong time, but also in a wrong state of mind – causing us to do the wrong things, on the wrong side of tracks.
Lack of proper education and great role-models causes many to fail to distinguish right from wrong. In most cases offenders don’t think they are doing something wrong, it seems right from their point of view. Poor judgment is also reflected in knowing its wrong, but thinking they could get away with it, not getting caught. Art Therapy Solutions – get the free crime cure.
Lack of love being raised in a dysfunctional family, or coming from a disadvantaged background, or feeling discriminated; none of it alone can cause crime. There are so many others in the world with such conditions, but nevertheless don’t turn to crime. However they cause the lack of love and respect for others. That, endorsed with some other factors, can be a major issue related to crime.
Poverty is often blamed for leading to crime, however underneath is something more vital – society bombards us with commercial values, making us want more and more material things, to the point when some would do anything (including criminal acts) to get them. Unemployment is another factor in this category that contributes to crime through looking ways to earn money by any means possible. Art Therapy Solutions – get the free crime cure; – find the best powerbroker (presented also here in the top of the right column) to help you out of poverty into wealth.
Deprived neighborhoods economically impoverished neighborhoods breed criminal minds Solution: if moving out is out of the question, then keep away from the guys in the hood by making yourself busy with putting your new show on the road. Do you have the strength to distance yourself from the harmful influences of your neighbors? If not, find the strength from the power behind your new thing, which you can discover in the illustrated guide ‘Jump’.
Being a victim in a chain of events sometimes individuals don’t mean to cause harm, but are drawn into it by a chain of events that are beyond their control or influence.
Poor parenting skills erratic or harsh discipline, lack of parental control, supervision and monitoring, parental conflict, family dysfunction/breakdown, criminal, anti-social and or alcoholic parent/s Read more about it from BBC indoor. The Independent Father lessens is also one of underestimated cause of crime. Read more about it by clicking here. Consider these facts:
- 85% of all children that exhibit behavioral disorders come from fatherless homes (U.S. Center for Disease Control);
- 90% of all homeless and runaway children are from fatherless homes (U.S. Bureau of the Census);
- 80% of rapists motivated with displaced anger come from fatherless homes (Criminal Justice & Behavior, Vol 14, p. 403-26, 1978);
- 70% of juveniles in state-operated institutions come from fatherless homes (U.S. Dept. of Justice, Special Report, Sept 1988);
- 85% of all youths sitting in prisons grew up in a fatherless home (Texas Dept. of Corrections 1992).
Ecological it has long been known by police officers that cold winter nights keep criminals off the streets and crime levels down. Crime scientists speculate that one of the hidden consequences of global warming will be an increase in street crime during mild winters. Studies have suggested that warmer temperatures boost aggression hormones such as epinephrine and testosterone.
Fraudulent Supreme Court rulings Defective court rulings are one cause of the extra crimes.
American FBI has devised a list of the factors which contribute to crime. Source: Bureau’s “Uniform Crime Report”:
- Population density and degree of urbanization.
- Variations in composition of the population, particularly youth concentration.
- Stability of population with respect to residents’ mobility, commuting patterns and transient factors.
- Modes of transportation and highway systems.
- Economic conditions, including median income, poverty level and job availability.
- Cultural factors and educational, recreational and religious characteristics.
- Family conditions with respect to divorce and family cohesiveness.
- Effective strength of law enforcement agencies.
10. Administrative and investigative emphases of law enforcement.
Origin & Development of Criminal Justice System in the United Kingdom
The law of United Kingdom is uniform and specific compare to others country of the world. They are the most law abiding country of the world and that’s the reason to foot them to highest step of success.
Though it is most law abiding country but in past there was no uniform law to regulate them but they adopt it in need of time.
Origin and nature of Laws of United Kingdom:
The main source and origin of laws of United Kingdom is Common law. Thus common law is the foundation of laws of UK as common law was the only system of adjudicating dispute among peoples of the country. Afterwards Equity and Statue law developed and make revolutionary changes in judicial system.
Considering from origin and nature of laws the law of United Kingdom are of three types:
- Common Law
- Equity and
- Statute law
A. Common Law:
The Common Law is therefore, a body of rules which had never been ordained by any Monarch or enacted by any legislative body. It grew by decision and in the British system. In particular, it covers the general principles of the law of contracts and civil wrongs. The criminal law, too, was the Common Law. Though most of it has now been put into statutory form.
So Englishmen one of the most-abiding nations in the world and the Common Law was in origin a judge-made lad. The Common Law is a body of rules which had never been ordained by any Monarch, or enacted by any legislative body the criminal law, too, was the Common Law.
Common Law, arising from ancient customs, finds its origin to about eight hundred years back, Before the Norman conquest there was no uniform legal system. The courts were local bodies and the laws had varied a great deal in different places.
The Norman and Angevin Kings were determined to unite the nation and “to make the strength of Monarchy felt, or, in the legal phrase, to make the King’s writ run,” throughout the length and breadth of the land. They found that their judicial power was the most effective instrument for this purpose, and their practice was to send their judges to tour the country and to see that it was being properly governed. In the beginning, the traveling judges listened to cases in the local courts and applied the customs which they found in different places.
Gradually, they began to iron out the differences and applied the same principles every where much regarded for particular local custom. By the process of unification the judges built a system of rules which was the same or “common” for the whole of the realm.
With the lapse of time, however, the Common Law became sufficiently inflexible as to give rise to serious complaints. Judges ceased to adapt it to the changing needs of British society. There were many cases in which the Common Law provided no remedy and sometimes there were manifest injustices because of rigid adherence to precedence.
Feudalism was disappearing and money was taking its place about the fifteenth century. The country at that time was passing through a period of social, economic and political instability in which justice often required a procedure less technical and dilatory and method of enforcement more summary, than those that the Common Law was providing.
The development of Equity, the second strand in English Law, provided remedies for deficiencies in to Common Law and saved the situation
The law had always regarded the Kings as the fountain of justice, and the court were his courts. If his courts failed to give justice an aggrieved subject was entitle to the King and to pray him to grant a remedy out to deal with each petition on merit, giving the matter his personal attention and sometimes discussing it with his Council. But he soon found that if he kept on dealing with the entire petition himself, he would have time for nothing else
Equity was rooted not in custom but in conscience. “It was based on the belief that law should correspond to the moral standard of the community” Since Equity provided remedies where the Common Law could only impose penalties, and as it recognized the existence of new problems to which the law had not been adapted, much business came to the Chancellors was framed a body of rules knows as an addition to it. Equity included such principles as following:
“Equity will not suffer a wrong to be
Without a remedy.
He who seeks equity must do equity
Delay defects equity.
Equality is equity.
Equity looks to the intent, rather than
To the form.”
So, Equity consists of a miscellaneous collection of principles, “not systematically related to one another, but each tending to make this or that of the Common Law more equitable than would otherwise be”. Equity simply added to the rules of the Common Law in order to make it more equitable and thereby to remove the rigidity or inadequacy of law
C Statute Law:
The Statute Law is composed of Acts passed by Parliament and this is by far the largest source of law in modern time .Until the nineteenth century almost all civil and criminal law was Common Law and Equity. Even when the civil and criminal law had been embodied in the Acts of Parliament their basis still remained Common Law. It must, however, be noted that Statute Law overrides the Common Law. This is unlike Equity, because it does not contradict Common Law. It simply mitigates Common Law or meets its deficiencies.
In case of a conflict between Statute and Common Law , the former is always upheld. For the Statute Law has final voice, whatever the Common Law , or past Statutes, or, decisions based on them may have prescribed, that can be altered by a new Statute.
In fact the need for Statutory Law was felt to remove the anomalies by the precedents which did not fulfill changing needs of society and were in conflict with the new standards.
When we turn from the sources to the contents of law, the most important distinction is the one between civil and criminal law. The object of civil proceedings, which is called “action”, is give redress, usually, in the form of pecuniary damages, to some private party whose rights another has infringed, on the other hand, in criminal proceedings or “prosecutions” the law does not regard the wrong act as directed to a particular person only. It considers that there is a public interest at stake and its aim is to protect society against such acts by punishing the offender.
Some criminal Laws enforceable In United Kingdom:
Every judicial system is directed and administered through some rule, procedure and Act. United Kingdom for administering criminal judicial system has enacted different criminal rules and Act besides they follow common laws and hardly believe in equity.
For example for the purpose of fixing specific procedure of appeal they have enacted “Criminal Appeal Act, 1968”.
Some of the criminal law enforceable in United Kingdom are mentioned bellow:
- Juries Act 1974
- Road Traffic Act 1988
- Theft Act 1968
- Offences against the Person Act 1861
- Suicide Act 1961
- Prison Security Act 1992
- Criminal Justice Act 1991
- Misuse of Drugs Act 1971
- Drug Trafficking Act 1994
- Terrorism Act 2000
- Criminal Damage Act 1971
- Firearms Act 1968
- Child Abduction Act 1984
- Sexual Offences Act 1956
Classification of criminal courts:
United Kingdom has adopted and moderate their court system or structure of the court time to time as it demands.
Classification of criminal courts may be made in considering two period of time. they are:
- The structure of courts in the Ancient legal system
- The structure of courts in the contemporary legal system
A The structure of courts in the Ancient legal system:
Following courts were existing during ancient United Kingdom judicial system:
Petty cases courts:
Acting single, Justices of Peace and Magistrates have jurisdiction over petty cases.
Punishment by a fine of not more than twenty shillings or by imprisonment for not more than fourteen days.
Petty Session Court:
More serious cases than petty cases are tried by a Benches of two or more Justices or a Magistrate, its called a Court of Petty Session .The courts have summary jurisdiction.
Punishment may impose maximum fines ranging from ₤50 to ₤100 or even ₤500 in certain specified cases, or By imprisonment may impose a sentence up to six months or in a very few cases, a year.
If the offence is punishable by imprisonment for more than three months, the accused may be tried by Jury.
Quarter Sessions Court:
The Court of Quarter Sessions composed of two or more of the Justices from the whole of county. In the larger towns it is presided over by a single paid Magistrate, the Recorder, appointed by the Home Secretary. All indictable offences, save the most serious, can be tried here, and appeals from the Courts of Summary Jurisdiction are heard. In fact, it is the court in which majority of grave crimes are tried.
Court of Assizes:
Court of Assizes is branches of the High Court of Justice. They are held in the country towns and in certain big cities three times a year. A Queen’s Benches judge is the presiding officer of the court assisted by a jury.
The Assistant Judges work on circuits covering England and Wales, and travel from one country to another in the course of their duties and try any indictable offence committed in the country.
The Judge at a criminal trial, in English law it is not the function of a judge to discover the truth. He observed the rules and both sides to the cases have fair play.
The truth will be known when the jury gives their verdict. If the jury returns the verdict of not guilty, the accused is forthwith discharged. If on the other hand, it finds him guilty, the judge pronounces judgment. If the jury cannot agree , there may be a new trial with a different set of juries.
The House of Lords:
The House of Lords is the highest Court, as stated previously, both in civil and criminal cases. But its criminal business is quite exceptional. Since 1948 the House of Lords has voted away the historic rights of its members to tried for treason or felony by a jury of Peers of their owe or higher rank. The House no longer exercises any original jurisdiction.
B. The structure of courts in the contemporary legal system
A working knowledge of the court structure is required for the understanding of the location of adjudication, the types of dispute handled and the interaction of culture and personnel. You should learn the jurisdiction of each type of court (i.e. what kinds of case it can deal with), how it fits into the hierarchy of courts, how it compares with other courts in terms of workload and how it is organized (e.g. where it sits; who the judges are). The relevant courts are, beginning with the lowest:
the Crown Court
the High Court
the Court of Appeal
the Supreme Court
the Judicial Committee of the Privy Council
the European Court of Justice.
Magistrates’ Courts have a wide and varied jurisdiction. They are involved in some way in virtually all criminal prosecutions; magistrates hear cases concerning young persons (when constituted as a Youth Court), family or ‘domestic’ proceedings, as well as enforcement of income tax or local tax. Magistrates’ Courts are therefore of enormous importance in the criminal justice decision-making process. They also grant (or refuse) licensees for the sale of alcoholic liquor, betting, etc. Aside from their breadth of jurisdiction, the most important feature of Magistrates’ Courts is the extensive involvement of lay people (non-professionals) as judges.
There are approximately 26,000 magistrates who sit as unpaid, part-time lay judges; in inner London, by contrast, there are professional ‘stipendiary magistrates’ (recently renamed District Judges, Magistrates’ Court), advised by a professionally qualified clerk. The fact that professional judges sit in Magistrates’ Courts in inner London is largely an accident of history.
There are almost 250 County Courts in England and Wales. As a result most medium sized and large towns contain this court of first instance in the civil justice process. As of January 1999, the County Court will normally hear cases on contract and tort to a limit of £25,000, and certain property and other matters to a limit of £30,000. Claims in contract or tort between £25,000 and £50,000 can either be heard in the County Court or High Court, while claims over £50,000 will be heard in the High Court
The Crown Court
Although predominantly a court of first instance for the trial of the more serious criminal offences, the Crown Court also has significant appellate and civil business. The most controversial aspect of the Crown Court’s jurisdiction concerns the extent to which an accused person should have the right to insist upon trial by jury. The relationship between the Crown Court and Magistrates’ Courts as higher and lower trial courts for criminal cases raises questions similar to those mentioned above relating to civil courts. But the relationship between the criminal courts is more complex, because jury trial is available in criminal cases only in the Crown Court; any proposal to adjust this relationship will necessarily raise sensitive questions about extending/removing the right to jury trial.
The High Court
The High Court is based in London, with various provincial ‘branches’. Some knowledge of its historical development is essential to understand the modern arrangement of the High Court. Note that the High Court is merely one part of the Supreme Court of England and Wales
The High Court has three branches:
the Chancery (the historic successor to the Chancellor’s Court) dispensing equity. It mainly deals with trust matters, conveyance, mortgages, contested probate, intellectual property other than that covered by the Patents Court (one of the four specialist courts of the High Court) bankruptcy and appeals from decisions of Commissioners of Inland Revenue
the Queen’s Bench, which mainly deals with personal injury, contract and tort claims
The Family Division, which hears divorce cases and ancillary matters, and Children Act cases.
The Court of Appeal
It is only necessary for you to understand what decisions may be the subject of an appeal to the Court of Appeal Civil Division or to the Court of Appeal Criminal Division, and how the Court is constituted to hear them.
The Supreme Court
The Supreme Court came into being in October 2009, replacing the Appellate Committee of the House of Lords, and assuming the devolution jurisdiction of the Judicial Committee of the Privy Council. The Supreme Court is now the highest court in the UK. The court is staffed by 12 ‘independently appointed judges’ – Justices of the Supreme Court. The Court’s jurisdiction extends over appeals on matters of law raising issues of ‘great public importance’ in civil cases from the UK. It also has a similar jurisdiction over criminal law in cases from England, Wales and Northern Ireland. The powers of the court also cover issues in raised by devolution – as specified under the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 2006 (www.supremecourt.gov.uk/about/the-supreme-court.html).
The Judicial Committee of the Privy Council
Primarily a Commonwealth court, the Judicial Committee is of interest mainly in relation to the doctrine of precedent. It has played an important role in drawing together the common law legal family, although the number of common law countries that have it as their highest court is declining.
The European Court of Justice
An important recent feature of the English legal system is the increasing use made of two courts, the first of which − the European Court of Justice (ECJ) − takes its jurisdiction from the United Kingdom’s entry into the European Union, while the second − the European Court of Human Rights (ECtHR) − takes its jurisdiction from the United Kingdom’s signing the European Convention on Human Rights.
The European Court of Justice
This court hears:
Applications from member states’ courts for preliminary rulings under Article 177 EEC [European Economic Convention]
Direct actions against member states or EU institutions
requests for opinions on international law and the European Treaty
Certain action for judicial review.
Appointment of Magistrates and judges:
Following are the methods of appointment of judges and magistrates:
Appointment of Magistrates:
The Stipendiary Magistrates are appointment by the Secretary of state for Home Affairs and barristers of seven years’ standing.
Appointment of Judges:
Justices of the Peace are appointment by the Lord Chancellor [ft- or by the Chancellor of the Duchy of Lancaster] on the recommendations of the Lord-Lieutenants of the counties. The Magistrates have jurisdiction over the same classes of cases as Justices of the Peace and also some additional powers.
Salient features of criminal laws of United Kingdom:
Englishmen one of the most abiding nations in the world. Their laws, their customs and their law abiding mentality brings them to the highest stage of development. Entire laws of that English man has amended and developed time to time because of the changes of the time and for necessity.
However some features of this law made their laws complete and justifiable to seek justice. Following are some basic features which made their laws complete comparison to others country:
A. Rule of law:
Rule of law has a great importance in judicial system of United Kingdom. As there rule of law is ensured no one can escape and also no one is beyond the judicial capacity so possibility of ensuring criminal justice becomes light.
To know how rule of law works in criminal justice system we have to understand what is rule of law and what does it objects?
Rule of law One of the very important features of the British constitution is there cognition of the Rule of Law. It is based on the Common Law of the land and is the product of the centuries of struggles of the people for the recognition of their inherent rights and privileges. It means three things– First—What is supreme in Britain is law. There is no such thing as arbitrary power and every rule by which the government governs must be authorized by law, either Statute Law, passed by Parliament, or by the ancient principles of Common Law, Which have been recognized for many hundreds of years now.
In other words, the “Latin tag populi supreme lax” – cannot be used by the government as an excuse for pursuing its own idea of the public interest without regard for legality.
Second— Everyone is subject to the law and no one can plead that he acted under orders. His business like everyone else is to obey the law. The government and its officials derive such power as they possess from the ordinary law.
Third— The Rule of Law makes the government subject to Parliament and through Parliament to the people. To put it another way, Parliamentary supremacy is, in part, only tolerable because the Rule of Law is recognized.
So, where the Rule of Law prevails no one can suffer any penalty or loss of liberty unless he has been tried and sentenced by a court. At one time it was the practice in periods of emergency in Britain to pass Acts of Parliament suspending the issue of the Writ of Habeas Corpus.
Introduction to juries
The highly distinctive role that the jury has played in the English legal system was noted in earlier chapters. It used to be said that the jury was one of the leading exports of the UK, along with football, cricket, the common law and the parliamentary system. It became enshrined in the US Constitution, where currently in most criminal cases the charge is first considered by a grand jury with between 12 and 23 members. It is of interest to have a basic understanding of the operation of the jury in the US. There the grand jury hears witnesses against the accused, and if 12 jurors believe that there is sufficient evidence to prosecute, an indictment or the like is presented. The jury sitting at the trial proper is called a petit (or petty) jury from its smaller size (usually 12 members). The selection of a trial jury is essentially alike in civil and in criminal cases. The venire, a panel of prospective jurors living in the district where the trial is to be held, is summoned for examination. Counsel for the parties may first challenge the array, that is, object that the venire as a whole was improperly chosen or is for some reason unfit. The challenges to the poll (the members of the venire taken individually) that follow are designed to secure as jurors unbiased persons without special knowledge of the matters in issue. Included are challenges for principal cause. (i.e. some grounds such as relationship to a party that requires dismissal of a member of the venire); challenges to the favor (i.e. suspicion of unfitness on which the judge rules); and a limited number of other challenges. Once selected, the jury (usually with several alternates) takes an oath to act fairly and without preconceptions. At the close of the evidence, and after the summations of counsel, the judge instructs the jury concerning the verdict.
The value of juries in civil trials is disputed both in the US and the UK. Opponents of juries argue that they are ineffective, irrational, and cause delay; proponents argue that juries bring community standards to bear, can moderate the effects of harsh laws, and are a protection against incompetent judges. Although the use of juries is declining for various reasons, common-law countries have a clear symbolic regard for the jury and show great care in the selection of jurors.
Procedure regarding Jury:
One of the basic features of the criminal court of United Kingdom is jury. Jury is the body to administer justice like court but hold some difference in formation. Every jury is formed or consisted of twelve to twenty three presiding judges to deal with any dispute place before them. The fundamental of this jury system is that two or more judges presided over it. The jury system is more successful and the decision of it is more justifiable because there exist co operation between the judges and whenever the judgment is made by twelve to twenty three consciences it becomes justifiable.
The laws of United Kingdom has give it importance and that’s why the decision pronounce by it is more acceptable. The gentle United Kingdom has adopted law to specify its power and function and other procedure. The Act is known as “The Juries Act, 1974”.
A Finding through research in Jury:
Thomas, Professor at the Centre for Empirical Legal Studies at University College London. The survey included more than 1,000 jurors at Crown Courts and a separate study of over 68,000 jury verdicts. In newspaper comments Professor Thomas summarized the findings:
This research shows that juries in England and Wales were found to be fair, effective and efficient – and should lie to rest any lingering concerns that racially-balanced juries are needed to ensure fairness in trials with BME defendants or racial evidence. But it is also clear from the research that jurors want and need better information to perform this crucial role. The study recommends that all sworn jurors be issued with written guidelines explaining what improper conduct is, including use of the Internet, and how and when to report it.
C. Summary trial:
Course of a summary trial
The course of a summary trial is, to a large extent, identical to the course of trial on indictment. As this is not a law of evidence course, we shall be exploring aspects of the course of trial, both summarily and on indictment, so as to highlight some of the key issues for discussion. The key distinction is that in a summary trial the magistrates are tries of both fact and law. By contrast, a trial on indictment will be heard by a jury who decide on questions of fact and before a judge who will advise the jury on issues of law. Following are the steps of a summary trial by the courts of magistrate:
1 The plea:
As the summary trial begins, the clerk of the court will put the information to the accused. The accused must then plead either guilty or not guilty. If the accused stays silent, a not guilty plea will be entered. If the accused pleads guilty, the magistrates move to the process of sentencing, which we shall deal with later.
2. Prosecution case:
If the accused pleads not guilty, the prosecution has to prove that the accused did commit the offence with which he or she is charged. The prosecution can give an opening statement, but given the magistrates’ experience in trying cases this is unlikely to be long. The prosecution will then examine their witnesses in chief, who will then be cross examined by the defense. If any matters are raised during cross-examination, the prosecution has the right to re-examine their witnesses. There may also intermittently be questions from the bench. Written statements can be used under s.9 of the Criminal Justice Act 1967.
3. Submission of no case
Once the prosecution has outlined its case, the defense may decide to make a Submission of no case to answer. This should be upheld if there is no evidence to prove an essential element of the offence charged, or if the evidence presented by the prosecution has been so discredited by the defense that it is manifestly unreliable and no reasonable tribunal would convict on it. If a submission of no case is upheld the accused goes free. If not, the trial continues.
4. Defense case
Under rule 37.1 CrimPR, if there is a case to answer the defense may wish to call evidence, but does not have to. The defendant is a competent witness, and therefore can give evidence, but is never compellable, so cannot be forced to give evidence. Once the defense evidence has been presented the defense can deliver a closing speech. The prosecution does not have the right to deliver a closing speech, but the relative informality does permit them to ask questions when and if they become relevant.
If the summary trial is being presided over by a district judge, the judge will usually announce his or her decision immediately. Lay magistrates tend to retire to consider their verdict. Unlike the jury in a trial on indictment, the judge at summary trial must deliver a verdict based on the offence charged. Under s.142 of the Magistrates’ Courts Act 1980, if the magistrates then have second thoughts they can direct that the case be re-heard by different justices.
A pre-trial review involves the magistrates ordering the steps that need to be taken for Trial. This can include special measures directions for vulnerable witnesses and rules
Committal for sentencing:
Once a defendant has pleaded guilty or has been found guilty by the magistrates’ Court, the magistrates will then proceed to sentence. They will follow a procedure (Described in Chapter 14). In doing this they are limited by the restrictions on their powers of punishment. Under s.154 of the Criminal Justice Act 2003, the maximum prison sentence that the magistrates can impose in respect of any one offence is twelve months. The maximum aggregate term for two or more offences is 65 weeks. All of this is done in line with the new ‘custody plus’ arrangements.
The procedure of appeal in criminal justice system is described and specified in criminal appeal Act, 1968. This is the English man whoenacts laws regarding every navel matters. So it can be said that appeal process of the criminal court is unitary.
Following are the process as to appeal from an inferior court to the higher court in criminal justice system of United Kingdom:
Appeals from the magistrates’ courts
There are three ways in which a decision of a magistrates’ court can be challenged. These are:
- Appeal to the Crown Court
- Appeal to the High Court by way of case stated
- Appeal to the High Court for judicial review.
An appeal to the Crown Court can only take place if a person has been convicted, whereas an appeal to the High Court by way of case stated or for judicial review can be made by anyone who is ‘aggrieved’ by the magistrates’ court decision.
Appeal to the Crown Court
This is the most important process of the three for this course. It is governed by ss.108–110 of the Magistrates’ Courts Act 1980 and Part 63 of the Criminal Procedure Rules 2005. If a person is convicted by a magistrates’ court, they may only appeal in certain prescribed circumstances. If that person pleaded not guilty, they can appeal against their conviction or their sentence. But if they pleaded guilty, they can only appeal against their sentence. This latter process is governed by s.108 (1) of the Magistrates’ Courts Act 1980. Under s.108 (3) an appeal against sentence can be brought in respect Of any order made. There is an express prohibition on appealing an order to pay costs. As has already been indicated, a plea of guilty at trial in the magistrates’ court will Prohibit an appeal against conviction. There are three exceptions to this rule.
Pleas equivocal when made. This is where the defendant says ‘guilty’ but adds things like ‘I did it to defend myself’. The law would normally demand that this accused change their plea to ‘not guilty’ but if they do not, appeal is possible. This will usually result in the case being remitted by the Crown Court for full hearing on a not guilty plea.
Pleas subsequently shown to be equivocal. This is where a plea is made unequivocally but is then rendered equivocal by additional information provided by the defendant before the magistrates pass sentence. A good example would be where the defendant pleads guilty to breaking into someone’s house but then, in mitigation, tells the magistrates that he had broken in by mistake, believing it to be his friend’s house, and that the friend would not have minded him breaking in. This would make the guilty plea inconsistent with the mitigation.
Pleas entered under duress. Even if a plea of guilty was unequivocal when made and this was still the case prior to the passing of sentence, this will not prevent appeal if the plea was subsequently discovered to have been entered under duress. A good example would be where two people are jointly charged with theft and one party would have argued that they were forced to undertake the theft, fearing serious harm to them or their loved ones, and they were likewise forced to enter the plea of guilty because the other party had decided that a guilty plea would result in a lesser sentence.
Finally, the Criminal Cases Review Commission can refer a conviction in the magistrates’ court to the Crown Court even if it is based upon a guilty plea.
Appeal to the High Court by case stated
This process is one where an appeal takes place on a point or points of law. The clerk of the magistrates’ court prepares the document for appeal with the co-operation of the magistrates. This appeal is then filed with the High Court. These appeals are governed by s.111 of the Magistrates’ Courts Act 1980, Part 64 of Criminal Procedure Rules 2005, and Order 56, Rules of the Supreme Court 1965.
Procedure on appeal
An application for appeal on this process must be made within 21 days. It must be in writing and should identify the question of law or jurisdiction on which the High Court’s opinion is sought. The application is then sent to the clerk of the relevant magistrates’ court. If it is felt to be a frivolous appeal, then under s.111(5) of the Magistrates’ Courts Act 1980 a certificate will be issued by the magistrates explaining that the application has been refused. If this happens, the defendant can apply to the High Court for an order which compels the magistrates’ court to state a case.
The magistrates will then draft a letter stating the case by identifying the key facts of the case, but not the evidence that led to these facts being established. The charge or charges heard are then outlined and the contentious issues relating to questions of law or jurisdiction are raised along with any authorities raised or the magistrates’ decision. Once this has happened the letter is sent to the appellant, who then has to lodge it within ten days. If it is not lodged within ten days it will be struck out. If a custodial sentence has been passed, bail may be granted.
Appeals from the Crown Court
Historically, if a person was convicted on indictment there was no general right of appeal. This was changed by the Criminal Appeal Act 1907, which created the Court of Criminal Appeal. The Court of Criminal Appeal was then abolished by the Criminal Appeal Act 1966, which transferred its jurisdiction to the Court of Appeal (Criminal Division). The primary function of the Court of Appeal (Criminal Division) is to hear appeals by the defense against the accuser’s conviction or sentence. Other functions include a procedure whereby the Attorney-General can increase an over-lenient sentence by referring the case to this court. It is also possible for the court to give an opinion on a point of law which arose during the trial that led to an acquittal.
The Lord Chief Justice is President of the Criminal Division. When Considering an appeal, there must be at least three judges sitting. There may be more, but this is rare. This panel can deliver majority decisions.
Besides this the legal system of united kingdom has clear and specific provision as to appeal in different exception .for example Criminal legal system of united kingdom does not exclude following matters of appeal::
- Appeal from the High Court to the House of Lords
- Appeals against conviction(Section 2(1) of the Criminal Appeal Act 1968)
- Appeal in case of Errors in a trial
- Effect of an appeal (Under s.2(2) of the Criminal Appeal Act 1968)
- Appeals against sentence.( Under s.9 of the Criminal Appeal Act 1968)
The Criminal judicial system of United Kingdom has adopted an Act to deal with the sentencing pronunciation procedure. They adopt Powers of Criminal Courts (Sentencing) Act 2000. According the very Act Sentencing in United Kingdom are two forms:
- Custodial sentences
- Others Sentence
1 Custodial Sentence:
If an adult is faced with a custodial sentence, this means that he or she is facing a period of imprisonment. For a sentence of imprisonment to be passed the offender must be aged 21 or over. Offenders under 21 years of age are awarded a sentence of detention rather than imprisonment. Both terms suggest that the offender’s liberty will be limited and they will be allocated to a prison. There are two main types of prison: closed and open prisons. Closed prisons have boundary walls or fences and the parameter is secure. Open prisons, by contrast, enjoy a far more relaxed regime.
Prisons may also be local, which means that they house prisoners who are on remand or long-term prisoners who are being allocated to a training prison. Training prisons are either open or closed and usually provide useful working facilities. They have far better conditions than local prisons.
- When deciding that a custodial penalty is to be imposed, the court has to abide by certain statutory requirements.
These include the following:
- All prisoners have to be legally represented or must have been offered such representation.
- The criteria laid out in s.152 of the Criminal Justice Act 2003 must be met before a custodial sentence is passed.
- A pre-sentence report should be obtained before a custodial sentence is passed (s.156 of the Criminal Justice Act 2003).
- All aggravating and mitigating factors must be considered by the court before a Custodial sentence is passed.
- The court must state its reasons for passing a custodial sentence.
Sentencing for statutory offences
Whilst all common law offences (most notably manslaughter) are prima facie
Punishable with life imprisonment, statute has defined the maximum penalty for a Number of key offences. Prisons are the usual forum for custodial sentences and are classified according to the Level of security imposed. All offenders under the age of 21 are detained, whereas all Offenders over 21 are imprisoned.
If a community sentence is not appropriate and the threshold is not met, a fine may be the appropriate non-custodial sentence. If the offence is an indictable one, there is no maximum limit placed on the Crown Court with regard to the size of the fine. However, fines are by far the most common penalty for summary offences and each offence will be allocated to a level which caps the limit of the fine.
The levels of fine are:
Level 1 £200
Level 2 £500
Level 3 £1,000
Level 4 £2,500
Level 5 or either way offence £5,000.
To impose a fine the magistrates need to consider the seriousness of the offence under s.164 of the Criminal Justice Act 2003. Having considered aggravating and mitigating factors, the court will then decide, on means testing grounds, whether the fine should be level A (assessed on 50% of weekly take home pay), level B (assessed on 100% of weekly take home pay) or level C (assessed on 150% of weekly take home pay). page 246 University of London International Program. At the time of issuing the fine, the court must make clear the term of imprisonment that will be imposed if the offender defaults and does not pay. The court imposing the fine must give the offender time to pay. Fines can be combined with the community sentence if it is appropriate.
3. Other sentences:
Endorsement and disqualification from driving
If a traffic offence is suitably serious, the offending driver may find themselves
Disqualified from driving, under the Road Traffic Act 1988. This is a good example of Incapacitation at work as it demands that the offender be prevented from committing the offence again by rendering them unable to do so. Lesser traffic offences Involve the driver’s license being endorsed with penalty points. When the penalty Points add up to 12, the license is confiscated and the defendant is disqualified for at least six months. If the offender is convicted of:
- causing death by dangerous driving
- careless driving whilst under the influence of alcohol or drugs
- trying to drive whilst under the influence of alcohol or drugs or
- dangerous driving
They will be automatically disqualified. A minimum period of 12 months must pass before they are allowed to hold a driving license again.
Forfeiture and compensation orders
Under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000, a forfeiture order can be made if the court is satisfied that the offender used the property to be confiscated to commit or facilitate the offence. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the order where an offender has to pay compensation to the victim of his offence.
Restitution and confiscation orders
Under s.148 of the Powers of Criminal Courts (Sentencing) Act 2000, goods which have been stolen can be recovered where the court orders anyone having possession or control of the goods to restore them to the original owner. Under the Proceeds of Crime Act 2002 it is now possible for the Crown Court to utilize its power to confiscate the assets of those convicted of criminal offences.
Recommendation for deportation
If a convicted offender is not a British citizen, then under s.3 of the Immigration Act 1971 a recommendation can be made to the Home Secretary that he be returned to his country of origin.
Sections 37–43 of the Mental Health Act 1983 cover the provision of hospital orders where the court decides that an individual should be admitted and detained in Hospital where they can receive treatment for their mental disorder. The effect of the order is to authorize the offender’s move to a hospital where they will be housed for about six months before the review begins.
Anti-social behavior order (ASBO)
An ASBO can be awarded under s.1 of the Crime and Disorder Act 1998. Here the court protects the local community from the anti-social behavior that others have engaged in by preventing the ‘offenders’ from disrupting others’ lives.
Registration under the Sex Offenders Act 1997
As a result of this legislation, some offenders are required to notify the police of their whereabouts so that supervision in the community can take place.
Disqualification from working with children
If an offender has been convicted of an offence involving a child, they can be disqualified by the court from working with children in future.
Bail is the release of a person who is subject to a duty to surrender to custody at an appointed time and place. Bail is the process of getting release from the custody legally. The gentle United Kingdom has adopted a specific Act for determining procedure on bail. the Act is known as the Bail Act 1976.
Some remarkable development on Bail by the Act is pointed out bellow:
- Remand on bail or in custody
- Principles governing the decision to grant or refuse bail
- Custody time limits
- The imposition of conditions for bail(Section 3 of the Bail Act 1976)
- Duty to surrender to custody
- Deposit of security
G. Regulation or procedure regarding police:
Power, function and others procedure regarding police has been specified by several enactments of Acts. Among them Police and Criminal Evidence Act 1984 is the most efficient:
Summery of the Police and Criminal Evidence Act 1984
The majority of police powers involved in the detection of crime are to be found in the Police and Criminal Evidence Act 1984. These statutory provisions are accompanied by extensive Codes of Practice which provide substantial guidance as to the way in which police powers should be exercised. A criminal charge can be brought about in two particular ways. For serious offences an arrest followed by detention in a police cell can take place before a decision to charge is taken. For less serious offences the process of issuing a summons is used.
The Act does not forget to include the followings procedure:
- The power to arrest without warrant(s.24 and s.24A of PACE)
- Detention without charge is dealt with under ss.40–44 of PACE and there is a timetable which the police are expected to follow to reach a resolution as to whether or not to charge.
- The main milestones of detention without charge are as follows:
- Within 6 hours A review takes place to decide whether it is necessary to hold the detainee.
- Within 15 hours Nine hours after the first review a second review takes place.
- Within 24 hours here a detainee must be charged or released unless the continued detention has been authorized by the station superintendent.
- Within 36 hours Here a detainee must be charged or released unless a magistrates’ court has issued a warrant of further detention.
- After 72 hours the magistrates’ court can extend the detention for a further 36 hours after the first 36 hours.
- After 96 hours The magistrates’ court can extend the detention for a further 24 hours after the first two periods of 36 hours. At the end of this period the detainee must
- Right to a solicitor(s.58(1) of PACE)
- Recording what the suspect says
- Powers of stop and search(ss.1–3 of PACE)
- Powers to search premises(Section 8 of PACE)
- Statutory safeguards(ss.15–16 of PACE)
Origin & Development of Criminal Justice System under Hindu Period, Muslim Period, British Period & Pakistan Period
Criminal Judicial system Under Hindu Period:
The subject of Legal History comprises the growth, evolution and development Of the legal system of a country; it sets forth the historical process where by a legal system has come to be what it is over.
Hindu Period: these period extents for nearly 1500 years before and after the beginning of the Christian era. The ancient India was divided into several independent states and the King was the supreme authority of each state. As far as the administration of justice is concerned the King was considered the fountain of justice. He was entrusted with the supreme authority of the administration of justice in his kingdom. The essential features of judicial system of this period were as follows:
A. Organization of Court Structure:
Following courts were exist during the ancient Hindu period:
The King’s Court:
The Kings court was the highest court of appeal in the state. It was also a court of original jurisdiction for cases of vital importance to the state. In Kings Court the King was advised by learned Brahmins, The Chief Justice and other judges, ministers, elders and representatives of the trading community.
The Chief Justice’s Court:
The Chief Justices Court which consisted of the Chief Justice and a board of judges to assist the Chief Justice. All the judges in the board belonged to three upper castes preferable Brahmins.
Sometimes separate tribunals with specified territorial jurisdiction used to be formed from among judges who were members of the board of the Chief Justice’s court.
D. Town or District Court:
In towns and districts courts were run by the government officials to administer justice under the authority of the king.
E. Village Council:
The local village councils or Kulani was constituted at village level .This councils consisted of a board of five or more members for administration of justice to villagers. The councils dealt with civil and criminal matters.
B. Judicial Procedure:
A. Stages of a Suit:-
A suit or trial consisted of four stages the plaint, the reply and investigation and finally the verdict or decision of the court.
B. Bench of more than one Judges:-
The courts were functioning on the principle that justice should not be administered by a single judge. Generally a bench of two or more judges would administer justice. Even the King decided cases in his council.
Appointment of Judges and Judicial Standard:-
In the appointment of the Chief Justice and other judges the question of caste consideration played vital role. The Chief Justice was mandatory appointed from Brahmins. A sudra was forbidden to be appointed as a judge. Appointments were made from among the persons who were highly qualified and learned in law. Women were not allowed to hold the office of a judge. Judges were required to take the office of a judge. Judges were required to take the oath of impartiality when deciding disputes between citizens.
D. Doctrine of Precedent:–
The decisions of the King’s court were binding on all lower courts. The principles of law declared by higher courts were taken into consideration by the lower courts while deciding cases.
During the course of proceeding both the parties were required to prove their case by producing evidence. Ordinarily, evidence was based on any or all the three sources, namely, documents, witnesses, and the possession of incriminating objects. In criminal cases, sometimes circumstantial evidence was sufficient to punish the criminal or acquit him.
C. Trial by Ordeal:
Ordeal which was a kind of custom based on religion and faith in God was a means of proof to determine the guilt of the person. The application of trial by ordeal was limited only to the cases where any concrete evidence on either side was not available. This system ordeal was very painful and dangerous to the accused, and sometimes the person giving ordeal died during the ordeal. Some common ordeals are described below:
Ordeal by Fire: According to the Hindu myth fire is considered to be God and it has purifying qualities. According to the ordeal of fire, the accused was directed to walk through or stand or sit in fire for some specified time. If the accused comes out from the fire without any harm, he was considered to innocent.
Sometime the accused was asked to carry a red hot iron ball in his hand and walk a few paces. If he had no signs of burns after the ordeal, he was considered to be innocent.
Ordeal by water