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vypracovaná otázka (19kový) č. 16 (q_16.doc)

16)

1. Criminal procedure

Whilst purpose of the civil courts is to adjudicate on disputes between individuals and to provide a remedy for the wronged party, the purpose of the criminal courts is to determine whether the accused person has committed a crime and to punish the wrongdoer. The balance required is between the need to protect society and the need to ensure, as far as possible, that only the guilty are punished. Given the serious consequences which can result from being convicted of a criminal offence, it is necessary: to provide safeguards against wrongful conviction. One way is that the burden of proof is on the prosecution to prove “beyond reasonable doubt” that the accused committed the offence charged.

The general rule is that any private individual can bring a prosecution even if the individual has no particular interest in the case. This is usually referred to as a ’private prosecution’. The greatest number of prosecutions, however, are brought as a result of action instigated by the police. Until recently the police made the final decision to prosecute in the cases they were dealing with. Moreover, the police effectively controlled the prosecution, and in some magistrates’ courts police officers actually appeared as advocates. The system was criticised for its lacks of independence. The police, having investigated the case and brought the prosecution, would have a strong interest to be successful in court – far stronger, it was alleged, than in the normal adversarial relationship found in civil cases.

The police, for example, might be unwilling to reveal to the defence all the information they had obtained while investigating the charge. The pressure group ’Justice’ published a report in 1970 calling for an independent prosecution service which would separate the investigation of crime from its prosecution. The report pointed out that the system in England and Wales was different from that operated in many other countries, and particular reference was made to Scotland. In that country there is a long-established system whereby the police have to report crimes to local officials known as procurators-fiscal who study each case and make the decision to prosecute. In smaller cases they conduct the prosecutions themselves. The matter was considered by the RCCP (the Royal Commission on Criminal Procedure). It concluded that the existing arrangements were unsatisfactory, giving rise to a possible conflict of interest on the part of the police between the collection of evidence and the prosecution of the case in court…

The Crown Prosecution service (CPS) was created by the Prosecution of Offences Act 1985 and came into effect nationally on 1 Oct. 1986. It is under the control of DPP (Director of Public Prosecutions). The police still investigate criminal offences and initially prefer charges but from then on the case is handed over to national prosecution service in an attempt to ensure greater uniformity. The decision to prosecute should now be exercised according to the Code of Practice to Crown Prosecutors issued by the Director of Public Prosecutions. In deciding whether to start a prosecution the following factors should be considered:

1. Is there a realistic prospect of conviction? (This is known as the 51 % rule)
2. Will the public interest be served by bringing a prosecution? Relevant considerations would be the age and physical or mental condition of the offender and the ’staleness’ of the offence
3. Would it be more appropriate to issue a formal warning (so called caution)?

Trial

Magistrates Courts:

1.  
2. A person is brought in front of judges (Magistrates’) and is charged
3. Accused pleads to the charge
4. Prosecution gives brief explanation of a case (outlines a case)
5. Prosecution’s witnesses are called in (give evidence)
6. Defence witnesses give evidence + cross-examination
7. Prosecution and defence make short speeches summarising (summing up) the facts of the case
8. Magistrates’ give their verdict of guilty or not guilty
9.  

1. not guilty = acquitted

1. guilty = Defence makes a speech in mitigation

10. Social and medical inquiry report, case adjourns
11. Pass sentence
12. Appeal against the decision (Crown Court / Divisional Court of Q.B.D. of the High Court of Justice)

Crown Courts:

1.  
2. The defendant is brought in front of judge, a charge is read out (indictment)
3. Defence pleads to the charge
4. If the plead is not guilty = 12-member jury is sworn
5. Prosecution outlines the case to the jury
6. Prosecution calls in witnesses (give evidence), cross-examination
7. Defence’s witnesses give evidence
8. Barristers make final speeches
9. Judge sums up the case to the jury:  (evidence; the judge instructs jury on various points of law)
10. The jury returns a verdict (unanimous / majority decision of 10 / a new jury is sworn – hung jury – the old one is dismissed)
11. Not guilty = acquitted; guilty = Defence makes a speech… (The appellate court: the Court of Appeal)

2.  
3. Family law – children in care

Responsibility for children

Someone has to be legally responsible for a child until it grows up and reaches the age of eighteen. Disputes can arise when as to who is responsible and who has authority over the child. As a last resort, the courts can resolve the argument, but when doing so the court’s first concern will be the welfare of the child and not the feelings of the parents.

Legitimate children

Both mother and father have equal rights and they “shall be equal and exercisable by either without the other”, thus both parents can make major decisions concerning the child without the consent of the other, but the other parent can apply to the court for any dispute to be resolved. The court will decide the matter by deciding what is in the best interests of the child.

If one of the parents dies, then the surviving parent will usually assume sole authority and responsibility for the child. However, if the dead parent left a will, which appointed someone as a child’s guardian, then the survivor will share the parental rights and responsibilities with that person.

If the child’s parents divorce, then the authority and responsibility for the child will pass to the parent who is given custody by the court. If neither parent is given custody, then the position continues as before, with custody being shared by both parents.

Illegitimate children

The mother has the sole parental rights and responsibilities. The father generally has no say in how the child is brought up, even if he is paying maintenance towards its unkeep. If the father is worried about the way the child is being brought up he can apply for custody, or apply for the child to be made a ward of court.

Losing parental rights and authority

A parent can lose his/her rights and authority by the child being taken into care or being made a ward of court, or custody is granted to the other parent.

Disputes over children

This is the right to take the long-term decisions that affect the child. A parent with custody (properly called legal custody) has the ultimate legal responsibility for the child, but it does not necessarily main that the child will live with that parent, since legal custody does not always equal physical custody of the child. The sort of decisions that the parent with the custody can make are: choosing the method of education, the choice of religion, administering the child’s property, withholding the consent to the child’s property, withholding the consent to the child’s marriage etc.

Care and control covers the day-to-day care of the child, and the responsibility for looking after it, called actual custody, does not include the right to make the sort of decisions that go with legal custody. Usually, of course, one parent would be given both legal and actual custody of the child.

Access allows the parent who does not have care and control to visit the child. The courts will only rarely refuse to allow access for they are always reluctant to sever a child’s links with its natural parents. Only if the visits are likely to harm the child, will access be refused, for the general rule is that the parent who fails to obtain custody will be granted access.

Children on divorce and separation

Separation:

If parents are married, there is nothing to stop them coming to a voluntary agreement between themselves as to custody, care and control and access. However such agreement will not be binding and it is always possible for one of the parents to apply to the curt for it to vary the terms of the agreement. The court’s main concern is the to act in the best interests of the child considering the general validity of the agreement.

Divorce:

No (final) divorce order can be granted without the court being satisfied as to the arrangements for the children despite the consent of both husband and wife.

Usually the parents can work out some satisfactory arrangement that they can both agree to. If they cannot reach an agreement, this will not make the divorce a ’defended divorce’.

Guardianship

Guardians can be appointed by the parents (under a will or a parental deed) or by the court to look after a child’s interests when the parents of the child do not have parental responsibility for him/her or have died. A guardian has full parental rights as if s/he were the natural parent. A guardian cannot appoint someone else to act as guardian on his/her own death.

Adoption

The process by which a parent’s legal rights and duties are transferred to another person or persons. Adoption defers from fostering in that it affects all the parent’s rights and duties and it is a permanent change.

Fostering

Fostering is usually used when parents are temporarily unable to look after their children, yet do not want the children to be adopted or to go into care. The eventual aim is often for the child to be reunited with his parents.

Foster parents have no legal rights over the children they foster.

Step-parents

If a child’s father or mother remarries, then the parent’s new spouse will be the child’s step-parent. Unless the step-parent acquires some legal status vis-à-vis the child, s/he will have no rights over the child.