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Administration of justice


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Administration of justice

  1. 1. Assignment on : Administration of Justice. Submitted by : MD. Hasan Milu LL.B Dept. ID NO.055 09130. Submitted to : Jeaul Hasan Assistant Professor, Department of Law, SUB. Department of Law STAMFORD UNIVERSITY BANGLADESH
  2. 2. Criminal justice Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers, though the effectiveness of these rights have varied. Definition 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. For the purposes of section 8(6) of the Criminal Appeal Act 1995 and section 194A(6) of the Criminal Procedure (Scotland) Act 1995, the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders. Administration of justice In England, the administration of justice is a prerogative of the Crown. It may be exercised only through duly-appointed judges and courts.[4] The following matters and things pertain to the administration of justice: the organisation of the courts; the prerogative of justice, the prerogative of mercy, and any prerogative power to create new courts; nolle prosequi; the appointment, tenure and immunity of judges; the immunity of other participants in legal proceedings; contempt of court; the composition and availability of juries, any requirement that their verdict be unanimous, and the allowances they receive; the branches of the legal profession; and the provision oflegal aid and advice.[5] The administration of justice is an act which is normally associated with the carrying on of the business of government. When a government does that act, it is thereby exercising its sovereignty. It would accordingly be a violation of British sovereignty for a foreign government to do that act in British territory without authorisation.[6] Section 2 of the Visiting Forces Act 1952 authorises foreign service courts to exercise their jurisdiction in the United Kingdom. There are offences against the administration of justice.[7][8] For the purpose of section 54 of the Criminal Procedure and Investigations Act 1996, the following are administration of justice offences:
  3. 3.  The offence of perverting the course of justice  The offence under section 51(1) of the Criminal Justice and Public Order Act 1994  An offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911.[9] The offence of perverting the course of justice has been referred to as "interfering with the administration of justice" and as "obstructing the administration of justice".[10] Section 6(c) of the Contempt of Court Act 1981 provides that nothing in the foregoing provisions of that Act restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice. An arrestable offence, other than one specified in Schedule 5 to the Police and Criminal Evidence Act 1984, was serious for the purposes of that Act if it led to, or was intended or likely to lead to, amongst other things, serious interference with the administration of justice. An arrestable offence which consisted of making a threat was serious for the purposes of that Act if carrying out the threat would be likely to lead to, amongst other things, serious interference with the administration of justice.[11] In any legal proceedings held in public, the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.[12] Information which is not exempt information by virtue of section 30 of the Freedom of Information Act 2000 is exempt information if its disclosure under that Act would, or would be likely to, prejudice the administration of justice. Center for Public Justice It is rooted in the European Christian-political tradition of such Dutch figures as Guillaume Groen van Prinsterer, Abraham Kuyper, and Herman Dooyeweerd. James W. Skillen, who served as the organization's first Executive Director (1981-2000) and later President (2000-2008) has had an important influence on the organization.[1] Since July 2011 the organization has been headed by CEO Stephanie Summers.[2] Gideon Strauss, a former interpreter with South Africa's Truth and Reconciliation Commission and adviser to the group that drafted the 1996 Constitution of the Republic of South Africa, was CEO prior to Summers and presently is a Senior Fellow.
  4. 4. Work The Center for Public Justice has been involved in the promotion of the Charitable choice provisions of the Welfare Reform Act of 1996 since 1994[1] and, particularly through the efforts of former senior fellow Stanley W. Carlson-Thies, was any early advocate for the ideas that eventually led to the creation of the White House Office of Faith-Based and Neighborhood Partnerships.[5][6][7] In 2010 the Center for Public Justice sponsored a panel series on Immigration Reform in partnership with Nyack College’s Institute for Public Service & Policy Development, the Institute for Global Engagement, the National Association of Evangelicals, and the National Hispanic Christian Leadership Conference.[8] They have publicly advocated a just model of immigration reform.[9] In response to the 2011 budget crisis, the Center for Public Justice released a "A Call for Intergenerational Justice: A Christian Proposal for the American Debt Crisis" in conjunction with the group Evangelicals for Social Action.[10] Signers of the document included Michael Gerson, Richard Mouw, Ron Sider, and Stepanie Summers.[11] Since 1996, the Center for Public Justice has published a weekly online journal, Capital Commentary. Justice According to Law A generation ago, when the law schools of our state universities were first founded, the dominion of law appeared to be complete. Almost every phase of public and of individual activity was subject to judicial review. It was taken to be an axiom that the people themselves were subject to certain fundamental limitations, running back of all constitutions and inherent in the very nature of free government, and it was assumed without serious question that the scope and the extent of these limitations were questions of law. Administration was subjected to strict judicial control, and almost every measure of police encountered an injunction as a matter of course. We were proud to have achieved a government of laws and not of men, and we looked down complacently upon the bureau-ridden peoples of Europe without a suspicion of being law-ridden ourselves. So important was the role of law in connection with every aspect of social and governmental activity that one need not wonder that in the West the state itself undertook to provide for public instruction in law as a part of its broad programme of popular education In the interval a great change has gone forward. While the generation that established state universities was proud of the American doctrine of the judicial power over unconstitutional legislation, the present generation seems eager to reject the idea of a fundamental law; and proposals to transform constitutionality from a question of pure law into a question of pure politics find support even in the legal profession. Where the generation that founded the state universities of the West conceived it a postulate of liberty that administration must be confined to the inevitable minimum and sought through judicial review complete elimination of the personal equation in all matters affecting the life, liberty, or fortune of the citizen; the present generation is eager to unshackle administration, to take away judicial review of administrative action wherever possible, and to cut it down to the minimum where it cannot be avoided. Where yesterday we relied upon courts, to-day we rely upon boards and commissions. Even in criminal causes, which the lawyer regards, before all things, as the domain of the common law, Juvenile Courts, probation commissions, and other attempts to individualise the treatment of off enders— these, as well as the desire of the medical profession to take questions of expert opinion out of the forum and commit them to a sort of medical referee, bid fair to introduce an administrative element into punitive justice which our fathers would have abhorred. Yesterday, when the project of state colleges of law was first announced, the courts and the law played the chief role in the practical conduct of affairs. To-day, when the execution of that project is complete, it might seem that there is danger that nothing of real moment will much longer be committed to them.
  5. 5. The most significant feature of twentieth century thought is faith in the efficacy of conscious social effort and of intelligently directed social control. For it is not physical nature alone that may be harnessed to man’s use. The laws by which mind combines its work with mind and with the non-sentient factors of human conditions are no less a part of nature and are no less to be learned and put to use. Not the least part of these laws consists of those determining the standards of conduct in the relations of man with man and of man with society which will advance civilisation and will make for the best and noblest society. And the administration of justice as far as reason and principle may insure conformity to such standards, not arbitrarily or in the conscious interest of any man or any class—-this is the justice according to law of our Germanic, our Anglo-American tradition, the sighing of the creature for the justice and truth of his creator, which marked the German law of the Middle Ages, the rule of the king under God, and the law of which Bracton spoke, and the fundamental law running back of all states and constitutions which our fathers sought to express in bills of rights. Civil justice In a rule of law society, ordinary people should be able to resolve their grievances and obtain remedies in conformity with fundamental rights through formal institutions of justice in a peaceful and effective manner, rather than resorting to violence or self-help. Civil justice requires that the system be accessible, affordable, effective, impartial, and culturally competent. Accessibility includes general awareness of available remedies; availability and affordability of legal advice and representation; and absence of excessive or unreasonable fees and hurdles. Impartiality includes absence of arbitrary distinctions, such as social and economic status, as well as decisions that are free of improper influence by public officials or private interests. Effective civil justice also implies that court proceedings are conducted in a timely manner and judgments are enforced without unreasonable delay. Finally, in a rule of law society, it is essential that alternative dispute mechanisms provide effective access to justice, while refraining from binding persons who have not consented to be bound by the mechanism. This factor also measures if the system provides for fair and effective enforcement. It consists of 57 variables combined to form the following seven sub-factors . Advantages and Disadvantages of Legal Justice Administration of Justice is a function of the State. Law is the instrument of justice. Court generally deal in accordance to the legal justice of justice according to law. Legal Justice has both advantages and disadvantages. Advantages of Legal Justice Sir John Salmond said that administering justice according to fixed legal principles has three advantages:  Ensures uniformity and certainty in the administration of justice  A body of law is a normal requirement for any society.
  6. 6.  Judges know what rules are and hence can enforce them uniformly.  Citizens of the society will know the rules and shape their conduct accordingly.  Guarantees / Secures impartiality in administration of justice  Judges could get influenced by improper motive if they are left to adjudicate matters according to what they feel.  Pre-determined legal provisions will force judges not to go for improper motives  Law is not made keeping in mind any specific case or to suit the convenience of any particular person.  Rules of Law represent collective wisdom of the community  Rules of law are formulated after thought-out opinion.  By applying the rules, Judges are applying the collective wisdom of the community.  Lord Coke: The wisdom of the law is wiser than any man's wisdom. Disadvantages of Legal Justice  Being rigid is the usual defect of any legal system because law fails to conform itself to the requirements of unforeseen classes of cases.  Complex conditions of the society does not allow law to be framed to conform to all the sections all the times. The purpose of the criminal justice system 'The purpose of the Criminal Justice System... is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.' Or consider the following, from Working Together to Cut Crime and Deliver Justice, the criminal justice strategic plan published in November 2007: 'The central purpose of the Criminal Justice System is to deliver an efficient, effective, accountable and fair justice process for the public.' A similar tone was set by the 'Policy Green Paper' published in early March 2008 by the Conservative Party, entitled 'Prisons with a purpose'. Replete with crime control aspirations, the paper observed, in relation to prisons: 'Prisons should reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders.'
  7. 7. The main challenge was that of making the prisons system and the processes associated with dealing with prisoners more effective and efficient. With their appeal to a utilitarian efficiency and an instrumental logic - protecting the innocent and punishing the guilty - these statements offer a picture of criminal justice as being in the business of crime control. The challenge is one of effectiveness. A rather different note was struck by Jack Straw in his first major speech as Lord Chancellor in July 2007. What was 'fundamental to the welfare and happiness' of citizens, he argued, was strong public institutions, properly managed, 'and above all whether all... citizens, poor or rich, low or high got justice against the powerful, and the state.' He went on to draw out the implications for the justice system: 'We are blessed in the United Kingdom by a judiciary whose integrity, independence, professionalism and skill are not in question. But we take such a condition for granted at our peril. Justice is a delicate plant. It has to be nurtured, protected, cared for.' The justice system on this account presents a bulwark against the potentially overweening power of the state and other vested interests. A concern for due process, checks and balances, core values and an underlying institutional strength inform this perspective, rather than the pragmatic appeal to the effective and efficient control of crime. It was the American legal scholar Herbert Packer who first proposed that the competing logics of 'crime control' and 'due process' exercised varying influence on the operations of the US criminal justice process. Under the crime control model, the underlying logic of the criminal justice is to contain and repress criminal behaviour. Successful criminal detection, prosecution and conviction are hallmarks of an effective criminal justice model. The due process model, on the other hand, places at least as much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation of the due process model. Packer's contrast between crime control and due process was developed in the context of the US criminal justice process. Yet it is possible to consider recent debates on criminal justice in England and Wales in the categories he developed. Of course crime control and due process logics are not pristine and mutually exclusive. The very fact that Jack Straw can both express due process concerns, while also being a senior minister responsible for the implementation of the government's criminal justice strategy suggests as much.
  8. 8. But disputes between crime control and due process considerations tend also to boil down to questions of degree and emphasis. Crime control advocates might argue that a misguided attachment to certain protections historically afforded to suspects hampers convictions. But the principle of appropriate protections is not, generally, denied. Due process advocates might champion enhanced protections for suspects in police custody. But one would have to search hard to find someone who would oppose any questioning of suspects in police custody. The debate over the appropriate balance between due process protections and the crime control imperative, in other words, tends to be dominated by disagreements of a largely procedural kind. Such procedural debates are obviously vitally important. A society that shows indifference to the processes by which those deemed to have breached the laws of the land are dealt with is unlikely to be a society in which the rights of individuals are respected. But on their own, procedural debates offer little insight into the social context and political-economic structures within which the criminal justice process operates. In order to explore this question, consider the following definition of criminal justice, taken from Andrew Sanders and Richard Young's standard textbook on the subject. Criminal Justice, they write: 'is... a complex social institution which regulates potential, alleged and actual criminal activity within procedural limits supposed to protect people from wrongful treatment and wrongful conviction'. Criminal justice practices, they go on to note, 'are inherently coercive'. This focus on criminal justice as a set of often coercive social regulatory institutions, and not merely a collection of 'crime fighting' agencies, throws a spotlight on the broader social purpose of criminal justice, rather than merely considering its operations within the framework of a fight against crime versus the protections afforded suspects. But then criminal justice, as a social regulatory set of institutions, operates within a society characterised by notable inequalities in wealth and power. What is the implication of this for the operations of criminal justice? For Sanders and Young they are very clear. '[I]n a society in which power, status and wealth are unequally distributed along lines such as age, gender, race, and class, much criminal justice activity will compound wider social divisions,' they write. They go on to argue that the 'enforcement of the criminal law... reinforces a hierarchical social order which benefits some while disadvantaging others.' Now Sanders and Young are hardly red in tooth and claw revolutionaries. Their scholarship sits squarely within the parameters of liberal critique. But while liberal scholarship has many strengths, it also has its limitations. Take, for instance, the
  9. 9. perspective set out by the Marxist political scientist Ralph Miliband over thirty years ago, on the differences between a liberal and a Marxist view on the nature of social conflict and its resolution: 'In the liberal view of politics, conflict exists in terms of "problems" which need to be "solved". The hidden assumption is that conflict does not, or need not, run very deep; that it can be "managed" by the exercise of reason and good will, and the readiness to compromise and agree... The Marxist approach to conflict is very different. It is not a matter of "problems" to be "solved" but of a state of domination and subjection... Ultimately, stability is not a matter of reason but of force... and the notion of genuine harmony is a deception or a delusion.' The reason for quoting Miliband's analysis is that it implies a rather different take on the purpose and nature of criminal justice. From a Marxist perspective - at least if we take Miliband as the reference point - the purpose of criminal justice might be characterised as the ongoing maintenance of class domination by means of coercive force, legitimated by legal norms. Thus, of the four functions of the capitalist state identified by Miliband the first of them is the maintenance of law and order; what he dubs 'the repressive function'. The 'state is always involved' in the processes of criminal justice, Miliband argues, if only because it defines the nature of `legal norms and sanctions'. It is not necessary to subscribe to Miliband's politics, nor Sanders and Young's liberalism, to acknowledge the critical purchase they offer to an understanding of criminal justice. In different ways they pose the challenge to take seriously the relationship between social structures and social processes on the one hand, and normative principles in relation to criminal justice on the other. A concern with the appropriate principles and priorities that guide the operations of the criminal justice process remains an important and necessary task. But a theory of criminal justice that does not take seriously the ways in which criminal justice might both regulate and manage underlying social antagonisms is likely ultimately to lead to bad policy and dubious outcomes. References 1. Brown, Louis M. "The Role of the Law Office in the Administration of Justice" (1981) 67 ABA Journal 1127 Digitized copy from Google Books. 2. Whicker v Hume (1858) 7 HL 124 3. Attorney General for New South Wales v Love [1898] AC 679 at 685, PC 4. O. Hood Phillips. A First Book of English Law. Fourth Edition. Sweet & Maxwell. 1960. Page 19. 5. O. Hood Phillips. A First Book of English Law. Fourth Edition. Sweet & Maxwell. 1960. Chapter 2. (These matters and things are discussed by the author in a chapter titled "The Administration of Justice").
  10. 10. 6. McNair, Sir Arnold Duncan. Legal Effects of War. Second Edition. Cambridge University Press. 1944. Page 356. 7. Card, Richard. Card, Cross and Jones: Criminal Law. Twelfth Edition. Butterworths. 1992. ISBN 0 406 00086 7. Chapter 16. 8. Blackstone's Statutes on Criminal Law: 2004-2005. Fourteenth Edition. Part XIII. 9. The Criminal Procedure and Investigations Act 1996, section 54(6) 10. The Law Commission. Offences relating to the Administration of Justice. Working Paper No 62. HMSO. 1975. Paragraph 10 at page 6. 11. The Police and Criminal Evidence Act 1984, sections 116(1) to (4) and (6)(b) 12. The Contempt of Court Act 1981, section 4(2). Where in proceedings for any offence which is an administration of justice offence for the purposes of section 54 of the Criminal Procedure and Investigations Act 1996 it appears to the court that there is a possibility that (by virtue of that section) proceedings may be taken against a person for an offence of which he has been acquitted, section 4(2) of the Contempt of Court Act 1981 applies as if those proceedings were pending or imminent: The Contempt of Court Act 1981, section 4(2A). The Freedom of Information Act 2000, section 31(1)(c)