Lecture 8 - CJS FINAL (LEJ).pdf

Law, Experts & Justice
Lecture 8:
Criminal Justice & Expert Evidence

Law, Experts & Justice:
Lecture Overview
• What is criminal justice?
• The Criminal Justice System: an abridged
step-by-step summary !
➢ Arrest
➢ Police Detention and Charge
➢ Criminal Court proceedings and sentencing
➢ Theory: Crime Control and Due Process
➢ Resourcing of criminal justice

What is ‘criminal justice?’
• Open www.menti.com
• Code 31 61 507 or
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What is criminal justice?
• Imagine the following scenario…
“You are walking home, when you hear a shout for
help; rounding the corner, you find a man (John)
confronting a woman (Jane) with a knife. John pushes
Jane, snatches a bag from her, and runs away.”
• What do you think has happened?
• What could be done next?
• What sort of consequences might follow?

• The process by which we, as a society:
“regulate potential, alleged, and actual criminal activity within limits
designed to protect people from wrongful treatment and wrongful
conviction.” (Sanders, Young and Burton)
• Criminal: behaviour which is particularly harmful or socially undesirable
and can therefore be punished by the state
• Justice: enforcement of Criminal Law? Conviction of the guilty and
acquittal of the innocent? Fair and legitimate procedures?
• The Criminal Justice System (CJS) therefore involves:
➢ Detection and prevention of criminal behaviour
➢ Investigation and fact-finding regarding such behaviour
➢ Punishment and rehabilitation of those convicted of crime
➢ Protection of society as a whole from criminal behaviour

Law, Experts & Justice: What is
criminal justice?
• Why do we need a system of criminal justice?
➢ Crime can be extremely harmful, with a serious impact on victims
and wider society; BUT accusations may not be accurate or genuine
➢ A well-regulated system is needed to examine allegations of crime
and, if necessary, punish offenders
• Who are the major actors/institutions?
➢ Parties (Defendants and Complainants/Witnesses)
➢ Investigators (Police & other agencies)
➢ Lawyers (Prosecution and Defence)
➢ Courts (Magistrates, Judges and Juries)
➢ Penal Institutions (Prisons and Probation Service)

How is the CJS regulated?
• The main purpose of the CJS is to determine whether someone
has breached Criminal Law and therefore committed an offence
➢ This is a matter of substantive law (e.g. actus reus, mens rea, etc.)
• The regulation of the CJS relates to the way in which such
decisions are made (i.e. what procedures should be followed)
➢ A matter of procedural law - a mixture of statute & case law (e.g.
Criminal Procedure Rules; Police & Criminal Evidence Act (PACE)
1984)
➢ It is important to regulate the process to ensure the CJS makes
decisions accurately and fairly

• Some key principles:
➢ Presumption of innocence: ‘innocent until proven guilty’
All defendants have this right – other rights are founded on this (e.g. the right
to silence)
➢ Standard of proof: ‘beyond all reasonable doubt’
A high standard – much more than ‘probably’ or ‘likely’ but not defined
➢ Right to a fair trial: Art. 6, ECHR
All defendants have the opportunity to put their case, to test the evidence
against them, and be judged impartially
➢ Burden of proof: for the prosecution to prove guilt
Tied to the presumption of innocence; the accuser must show that someone is
guilty to the required standard

• Some key principles:
➢ Right of citizens to be protected from crime
For example, see the ‘black-cab rapist’ case
➢ Ability of the police to pursue reasonable lines of inquiry
Police should pursue investigative paths which are justified and proportionate
➢ Ability of the state to suspend liberties and rights to prevent
crime
For example, the right to liberty/privacy is suspended when someone is in
prison; this can be justified in certain circumstances

Law, Experts & Justice: An Overview
Penal Stage
Court Stage
Investigative
Stage
Stop & Search → Arrest → Detention →
Charge → Bail
Not Guilty Plea → Trial
Guilty =
Conviction
Sentence →
Punishment
(custody, fine,
community
order, etc.)
Not guilty =
Acquittal
(no
punishment)
Guilty Plea
Conviction
Sentence →
Punishment
(custody,
fine,
community
order, etc.)

Law, Experts & Justice: Arrest
“A police constable finds a knife in John’s pocket. He
confiscates it and arrests John, on the grounds that he
suspects he robbed Jane earlier that day.”
• Police have the power to arrest any person, for any
offence - Section 24, PACE 1984
• Clearly, a major interference with the right to liberty
(Article 5, ECHR)
• BUT can do so “for the purpose of bringing [a person]
before the competent legal authority on a reasonable
suspicion of having committed an offence...’

Law, Experts & Justice: Arrest
When can the police arrest someone?
• Must have reasonable grounds for suspecting someone is committing,
will commit, or has committed an offence (‘reasonable suspicion’)
➢ A limit on police power (they must have good reasons to arrest
someone, which can be explained and justified)
➢ BUT it is vague and open to interpretation
• Police must have reasonable grounds for believing it is necessary to
arrest someone (‘necessity’)
➢ Reasons making arrest necessary are listed under s.24(5)
➢ They include obtaining a suspect’s name, preventing harm to people,
preventing a suspect disappearing
➢ Also, can arrest to allow ‘prompt and effective investigation’ – this is
a particularly broad reason – it could mean anything !
• Must tell a suspect they are under arrest and the grounds
• A suspect should be taken to a police station once arrested

Law, Experts & Justice: Police Detention
What happens next?
“John is taken to a police station, and detained. After a
few hours, the police interview him. Later that day he is
charged with robbery and remanded in custody.”
• The normal process after arrest is as follows:
1. A suspect is taken to a police station and is seen by a Custody Officer
2. If a suspect is not charged (formally accused of an offence), they will
be detained or released (with or without bail)
3. If the suspect is detained, they are normally interviewed
4. If the suspect is then charged, they can be detained or released on
bail until they appear at court
5. If the suspect is still not charged after an interview, they must be
released once the time limit on detention expires (normally 24 hrs)

Charging & Alternatives to Prosecution
• Police or Crown Prosecution Service (CPS) will decide whether to charge
the suspect with an offence (or offences)
➢ Based on tests in Director’s Guidance on Charging and Code for Crown
Prosecutors
• They can only do this when there is:
➢ Sufficient evidence to ‘provide a realistic prospect of conviction’; and
➢ It is in the public interest to prosecute
• At this stage, there are a few options:
➢ If the offence is not serious, the police may use an an out-of-court disposal
– a conviction without going to court
➢ Includes (for adults): cannabis warning; simple/conditional caution; penalty
notice for disorder; fixed penalty notice (e.g. driving offences)
➢ Can be more proportionate and cheaper
➢ Otherwise, the case will proceed to court for a hearing

Criminal Courts
“John appears at the local Magistrates’ Court the next
day. He is asked to enter a plea relating to the charge
of robbery. He pleads not guilty. The Magistrates’
Court sends the case to the Crown Court for trial.”
• Once the investigation concludes, a case proceeds to a
criminal court for initial hearings and trials
• There are two types of criminal court in England and Wales –
Magistrates’ Courts (MC) and the Crown Court (CrC)
• ALL CASES (no matter how serious the offence) must start in
MC, but only some cases can be fully dealt with there
Which cases end up in which court?

Criminal Courts
Summary Offences
Non-serious: the majority of offences, only adjudicated in MC
Either-way Offences
Moderately serious: dealt with in either court; a defendant can choose to
be tried in CrC
Indictable Offences
Most serious: the minority of offences, only adjudicated in CrC
• MC deal with over 90% of criminal cases; cases judged by Magistrates
(volunteers who are not legally qualified)
• CrC deals with a small number of cases, which are judged by juries (a panel of
12 members of the public), guided by a professional judge
• If a case is too serious for MC, it will be ‘sent’ to the CrC – but MC will ask a
defendant to enter a plea before doing so

Court – 1st Appearance
• Detained suspects normally appear in MC the next working day – for those
released on bail, it may be longer
• At the court stage they become a ‘defendant’
• The first appearance at court will normally involve:
➢ Confirming information about a defendant (e.g. name, DoB, address)
➢ The offence(s) they are charged with
➢ A defendant entering a plea to the charge(s)
➢ The court making decisions about a trial, if necessary
➢ Sentencing a defendant for an offence, if necessary
• When a defendant is asked to enter a plea, there are three choices:
➢ Guilty – the defendant accepts that they committed the offence(s)
➢ Not guilty – the defendant rejects that they committed the offence(s)
➢ No plea – a defendant can choose not to enter a plea; MC will then decide whether it can
deal with the case and proceed to trial or send it to CrC

GUILTY PLEA
• Courts generally accept guilty pleas without question or hearing
evidence (although a prosecutor normally summarises the case)
• MC must determine whether it can sentence the defendant, as it has
limited powers
➢ Maximum 6 months custody for a single summary offence
➢ 12 months custody for multiple either way offences
➢ If MC can’t sentence, case will be sent to the CrC
• If MC can sentence, it may do so at the same hearing or adjourn for
reports which may help it decide on an appropriate sentence

NOT GUILTY PLEA/NO PLEA
• The prosecutor summarises the case against the defendant, and the
defence lawyer provides basic information about the defendant’s case
• MC must determine whether it can try the defendant:
➢ For an indictable offence; or an EW offence where defendant chooses jury trial,
the case will be sent to the CrC
• If it’s a summary offence, MC can try the defendant and will set a date for
this
➢ The first appearance must end with a decision about bail (unless it’s a
guilty plea & sentence, which ends the case)
➢ A defendant must either be released on bail or detained in custody until
the next hearing (normally, the trial)

Court – Trials
A trial is a hearing in which arguments supporting and disputing a defendant’s guilt are
presented (with evidence); a verdict on guilt is then delivered by an adjudicator
• Trials in both types of criminal court have common features:
➢ Adversarialism - two opposing sides ‘battling’ each other
➢ Burden of proof - prosecution must prove the case against the defendant
➢ Presumption of innocence - defendant is innocent until proven otherwise
➢ Standard of proof - the case must be proven ‘beyond all reasonable doubt’
➢ A neutral adjudicator determines whether a defendant is guilty or not
➢ Lawyers appear for both sides (though this is not guaranteed for the defence)
➢ Cross-examination of witnesses and defendant (if s/he gives evidence)
➢ Final delivery of a verdict by the adjudicator in open court
• Proceedings in both courts have a similar order:
➢ Prosecution summary followed by prosecution case
➢ Defence summary followed by defence case
➢ Closing speech/remarks, followed by verdict

Court - Trials
But they also have some significant differences…
Magistrates’ Court trials are:
• normally shorter and less complex
• normally adjudicated by magistrates, supported by a legal adviser (or ‘clerk’)
• District Judges (legally trained) can also hear trials – juries do not sit in MC
• Advocacy (oral presentation of the case in court) is conducted by solicitors
Crown Court trials are:
• are often lengthy, complex and more serious
• adjudicated by juries (with some exceptions), guided by a judge
• advocacy is conducted by barristers

Verdict and Sentencing
“The jury finds John guilty of robbery. The judge
proceeds to sentence.”
“The prosecution state that John has a number of
previous convictions for theft. The defence argue that
John has a serious drug addiction, and he offends to
feed this habit.”
“The court adjourns for a report to be prepared. At
the next hearing, the judge sentences John to four
years in prison.”

Sentencing
• Defendants are sentenced by Magistrates (MC) or a Judge (CrC)
• Upper and lower limits on sentences, depending on the offence
➢ This is set by legislation
• Guidelines help determine appropriate sentence within these limits
• There are a variety of sentence types, the primary ones being:
➢ Financial penalties (fines)
➢ Community Orders
➢ Prison (custody) – immediate or suspended
• Overall, it appears that sentencing has:
➢ Gotten tougher – greater use of custody for longer periods
➢ There are issues of inconsistencies across E&W – discretion v. certainty?
• If a defendant is acquitted (found not guilty), they are released
➢ Note: whilst this is not a finding of innocence, the defendant is presumed innocent
throughout – so should continue to benefit from this presumption

Theories of Criminal Justice
• Two ‘models’ which present contrasting ways of ‘doing’ criminal
justice, characterised by different values
• Developed by Herbert Packer in 1964 – assists in understanding
and analysing CJS
• Crime Control – repression of criminal conduct is #1 priority
➢ High rates of detection/conviction; wide police powers; fast and low
cost; investigation is more important than a fair trial
➢ Mistakes will be made – but a price worth paying for low crime
• Due Process – preventing unfairness & mistakes #1 priority
➢ Authorities makes errors and abuse their power; innocent people
will suffer as a result
➢ Individual rights are vital and need to be protected
➢ Some guilty will go free – but a price worth paying for fairness

Crime Control & Due Process
Examples of Crime Control in CJS:
➢ Wide ranging powers of arrest
➢ Lack of supervision of police detention
➢ High numbers of guilty pleas (which are encouraged !)
Examples of Due Process in CJS:
➢ Right to a lawyer
➢ Right to silence
➢ Right to appeal
• It should be remembered that these are ‘in theory’
• There is often a gap between the law and practice
• Example: case of the Cardiff Three (1992)

Experts in Criminal Justice
Which model does the use of ‘experts’ support?
• Miscarriages of justice will inevitably occur under either model
• For crime control, this is accepted as a price worth paying
• For due process, this should minimised as much as possible
• How do experts fit into this?
➢ Arguably, either
➢ Experts can help ensure convictions with specialised evidence which
might otherwise frustrate justice
➢ Experts can protect individual rights by ensuring accurate and
legitimate examination of evidence from independent perspective
➢ How experts are used can position them as part of either model

Resourcing and Legal Aid
• Long-running agenda to make criminal proceedings more efficient and lower cost
• In 2001, the Auld Review of criminal courts suggested proceedings should not be a
‘game’ where defendants were given a ‘sporting chance’
• The Leveson Review (2015) focused in improving efficiency in criminal proceedings
• Various initiatives (such as Better Case Management and Transforming Summary
Justice) have sought to do the same
• The CrimPR place great emphasis on early identification of issues; and managing
cases to be efficient
• In 2010, the Government reviewed its spending, so that:
➢ Home Office (responsible for policing)
➢ Ministry of Justice (responsible for legal aid, courts, prisons & probation)
➢ Crown Prosecution Service (CPS)
…had to cut approx. 25% from their budgets over 4 years; reductions have
continued since then

• Police numbers have fallen significantly
➢ In 2009, approx. 144K police officers (a peak)
➢ In 2018, approx. 122K (14% drop, lowest number in 20 years)
• Since 2014, over 40 criminal courts have been closed (all Mags Courts),
with 18 kept open after opposition
• Courts under continuing pressure to reduce costs and be more efficient:
fewer hearings, shorter in length
• Prison budget down by 22% since 2010; 25% fewer prison officers;
prison conditions scandals (e.g. HMP Liverpool – Jan 2018)
• The Forensic Science Service (FSS) was closed in 2012, after reportedly
losing £2m a month (some consideration of replacing this in 2016)
• Subsequent reliance on police labs (also subject to funding cuts) and
private providers

• Significant cuts to criminal legal aid; 8.75% cut in 2014 and Government
now cutting fees in legally aided Crown Court cases
• Fees for criminal legal aid work have not risen since the mid-1990s
• Government argued:
‘the cost of the [legal aid] system [has] spiralled out of control, and… [is] one of the
most costly in the world’
• Since mid-2000s, spending on criminal legal aid has dropped every year –
since 2013, it has reduced by £200m
• E&W does spend more on criminal legal aid than other countries
• BUT it has a different system to other countries (lawyer-led as opposed to
judge-led); E&W Spending on judges is much lower
• So spending is higher but legal aid is not necessarily more expensive

Potential impact of cuts and resourcing issues?
➢ Numbers of legal aid lawyers/providers has declined; may be impacting
access to justice (e.g. evidence of more unrepresented defendants)
➢ Focus on efficiency, speed and convictions – at the cost of accuracy and
fairness?
➢ Hard to say – increased applications to CCRC; evidence of miscarriages of
justice (are there more undiscovered?)
➢ Stricter controls on use of experts across the board – does less use mean
worse or better justice?
➢ Randox Testing Scandal (2016)
➢ Disclosure and handling of digital forensic evidence by police
➢ Inability to pay for or obtain expert evidence (e.g. restricted legal aid
makes it harder to access experts for defence)

Some Conclusions
• Inefficiency is not necessarily acceptable – but is there too much
focus on this at the expense of fairness/accuracy?
• There is a balance to be struck between unnecessary delay, cost,
etc. and ensuring criminal justice is fair and effective
• Cuts in resources may impact on defendants; lawyers; judges;
witnesses; victims/complainants
• ‘False economies’: cutting funds up front creates cost later on
• The poorest may be denied access to expertise (both lawyers and
expert witnesses) in court
• A tension between crime control and due process?

Acknowledgment
This slides adopted from Matt Hall work.

Lecture 8 - CJS FINAL (LEJ).pdf

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