What is Crime?
- The definition of a crime usually has two parts to it: The actus reus and the mens rea. The actus reus is the guilty act and the mens rea is the guilty mind. Actus Reas and Mens Rea = Crime.
- Actus Reas - The Actus Reus is the voluntary, deliberate act of the defendant. Involuntary acts (things you can’t help doing) are not classed as Actus Reus. eg. driving into a pedestrian
- Mens Rea - A person cannot be guilty of the offence for their actions alone. There must also be an appropriate intention, recklessness or criminal neglegence at the appropriate time. Must also have a guilty mind. eg. Cunningham (1957) In this case the defendant had broken a pre-pay gas meter to steal money in it, with the result that the gas escaped into the next-door house. The victim became ill and her life was endangered. The court decided he had the mens rea for the crime ‘administering a noxious substance’ as he had been reckless.
- Ommisions - An omission (a failure to do something) is not a guilty act (actus reus), so you are not committing a crime. However if you had a duty (a responsibility) to do something, an omission can be a crime (e.g. there is actus reus)
The Criminal Justice and Public Order Act 1994
- changed the right to silence of an accused person, allowing for inferences to be drawn from their silence.
- gave the police greater rights to take and retain intimate body samples.
- increased police powers of unsupervised "stop and search".
- allowed for trespassing to become a criminal offence.
Anti-terrorism, Crime and Security Act 2001
- Grants the police and security Enables the home secretary to indefinitely detain, without charge or trial, foreign nationals who are suspected of terrorism.
- services, including foreign agencies, the power to ask public bodies, including schools, hospitals, customs and inland revenue to disclose personal records during terrorism and criminal investigations.
- Control orders imposing indefinite house arrest for up to 16 hours a day without charge, let alone conviction;
Pre-charge detention in terrorism cases, currently allowing for 28 days detention without charge, more than seven times the normal criminal period and the longest period of any comparable democracy;
Section 44 of the Terrorism Act 2000 allowing stop and search without suspicion which has been disproportionately used against peaceful protesters and ethnic minority groups;
Serious Organized Crime Act 2005
• Restricts right to demonstrate within an exclusion zone of up to one kilometer from any point in Parliament Square.
• Creates new offence of trespassing on a designated site. The site can be Crown Land (land that belongs to the monarch or heir to the throne or land a secretary of state believes is appropriate for designation in the interests of national security.)
• Makes all offences arrestable. Previously a police officer had to determine whether he suspected a person of committing a non-arrestable, arrestable or serious arrestable offence.
• Extends previous legislation so that DNA retention on the National DNA Database is permitted even where a suspect has been cleared.
Police and Criminal Evidence Act 1984 (PACE)
- The Act aims to combat crime, as well as providing codes of practice for the exercise of those police powers.
- PACE Code A: deals with the exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest. It also deals with the need for a police officer to make a record of such a stop or encounter. On 1 January 2009, Code A was amended to remove lengthy stop and account recording procedures, requiring police to only record a subject's ethnicity and to issue them with a receipt.
- PACE Code B: deals with police powers to search premises and to seize and retain property found on premises and persons.
Power of police to search premises without a warra
Powers of entry
In general the police do not have the right to enter a person’s house or other private premises without their permission. However, they can enter without a warrant:-
- when in close pursuit of someone who has committed, or attempted to commit, a serious crime; or
- to quell a disturbance; or
- if they hear cries for help or of distress; or
- To enforce an arrest warrant.
The Crown Prosecution Service - What?
- A non-ministerial department of the government = responsible for prosecutions of people charged with criminal offences. Responsible for criminal cases. Preparing, presenting cases for court in magistrates and crown court.
- Decide on what offence should be charged
- Review all cases passed by polic and see if there is sufficient evidence for it to proceed and whether it has public interest
- Being responsible for a case after it has been passed to them from the police
- Conducting the prosection of cases in magistrates' court
- Conduction cases in Crown Court
How does the CPS decide if a case should be tried?
The Evidential Test
- Must consider whether the evidence can be used as is reliable.
- Must also consider defence case and how it could affect it
- Must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction'
- If the case does not pass the evidential test, it must not go ahead
The Public Interest Test
- Crown Prosecutors must decide whether a prosecution is needed in the public interest.
- Will usually take place however, unless there are public factors tending against prosecution which clearly outweigh those tending in favour.
- Will only continue if it has passed both tests
The CPS - Bail
- Bail can be granted by police,magistrates or crown court
- Bail Act 1976 - gives accused person right to bail. However it doesnt have to be granted if 1. If they could be likely to fail to surrender custody, 2. Commit an offence whilst on bail or 3. interfere with witnesses or otherwise obstruct the course of justice.
- The court can refuse bail also if it is for the defendants own protection
- The court will take into account - nature and seriousness of offence, character, previous record, strength of evidence, and previous bail conditions.
- Some bail conditions can include things such as grounding passports.
- Problem with balancing right of accused against the need to protect public.
The CPS - The prosecution process
- Summary Offence - Also known as a petty crime. Prosecuted in magistrates court eg. drunkenness, prostitution etc.
- 'Either-way' offences - Including theft, drug offences and some involving violence against another. Can be tried in magistrates or crown
- Indictable Offences - Serious crimes that are tried befire a jury unless the defendent waivs this right. Eg. Murder, **** and robbery. Tried at Crown Court
- Summary = most number of cases
- Judges work to... Conduct the trial and keep it in order, decide all issues of law, sum up the facts of the case, explain the relevant law to the jury and to pass the sentences.
- Supreme Court Judges - Hears appeals on arguable points of law of general public importance.
- Court of Appeal Judge - Civil division and Criminal division - wide range of cases covering civil, family and criminal justice. Final court of appeal for the great majority of cases.
- High Court Judges - Deals with the more complex and difficult cases. They try serious criminal cases and important civil cases
- Circuit Judges - Deals with more serious criminal cases such as **** and murder. Must be heard in the Crown Court
- Magistrate Judge - Unpaid/non-legal. The court deals with summary offences like motoring offences and either way offences.
Are Judges Representative of Society?
- The judiciary are largely male
- Only 8% are women
- Ethnicity figures range from two to four %, compared to around 8% in the population as a whole
- The 28,000 magistrates in England and Wales are more representative of the population they serve
- Slightly more women than men
- Perhaps because they are volunteers and do not need to achieve legal qualifications
How Judges are Appointed and Their Qualities
How are Judges appointed?
- Selected by Judicial Appointments Commission
- 15 members of this including 5 judges, 6 ordinary people, a barrister, a solicitor, a magistrate and 1 tribunal memeber.
- This aimed to make appointment of judges fairer - based on merit. Hoped it would lead to a more representative judiciary
Qualities that make a good Judge
- Intellectal capacity
- Integrity, Sound judgement, decisiveness, objectivity etc.
- To understand and deal fairly. Treat all with respect
- Authority and communication skills
- Must not have criminal convictions
- Must also show they have financial correctness
The Role of the Jury
- Under 18 and over 70, those not on the electoral roll those who have lived in the UK less than 5 years are not eligible for Jury Service. Also those who have been convicted of certain crimes and those with mental health problems are not eligible.
- If an individual does not respond to a jury service request they can be prosecuted or fined.
- Unpaid and done at random off the electoral register
- Jury has to be vetted. 3 concerns need to be considered - Jurors may be corrupt or biased, national security, the government may use jury vetting to ensure a politically attractive verdict in the trial.
- Jury decide on the outcome, the verdict should be unanimous between the 12 jurors.
- Kept apart from other people involved in the trial
- They listen to evidence, see exhibits and take notes (destroyed at end of trial)
- Jurors do not have access to phones or any other from of comminication
The Criminal Justice Act 2003
Requires judges and magistrates dealing with an offender in repect of his offences to have regard for the following purposes of sentencing:
- Punishment of offenders
- The reduction of crime
- The reform and rehabilitation of offenders
- Protection of the public
- Reperation by offenders
Considerations when sentencing
- Report is prepared by the probation service
- Look at the reasons why the person has committed the offence, their attitude towards it and the victims.
Aggravating Factors = Harsher Sentence
- Previous convictions
- Using a weapon during the crime
- Consequences of the crime
- Whether it was racially motivated
Mitigating Factors = Lenient sentence
- No previous convictions
- Pleading guilty at the first opportunity
Types of Sentencing
Custodial Sentences - Prison
Community Sentences - Aim is to combine punishment with changing offenders behavious:
- Compulsory and Unpaid work up to 300 hours
- Curfew tags and exclusions from certain areas
- Residence requirements eg. an approved hostel
- Drug treatment and testing. Alcohol treatment
- Supervision or Attendence
Financial Penalties - A fine or compensation orders paid to the victim
- Absolute discharge - the court takes no action but the discharge will appear on their criminal record
- Conditional Discharge - The defendant is convicted without sentence on condition that he does not re-offence within a specific time period
Custodial Sentences for Young Offenders
Detention and Training Order (DTO) = main sentence for those aged 12-17. Served partly in custody and partly under supervision in the communition for rehabilitation.
Court can give someone a DTO if:
- The offence is punishable with imprisonment in the case of a person aged 21 or over
- And the court decides only a custodial sentence reflects the seriousness of the offence and
- Where the person is aged 12-15 at the time of the conviction, he or she is a persistent offender
Young peopole under the age of 18 who are found guilty of the most serious crimes eg. murder or serious assualts can be detained for longer periods.
Community Sentences for Young Offenders
Youth Rehabilitation Order (YRO) - Were introduced in 2009 and are the standard community sentence used for the majority of young offenders. When they are given the court decides which are the most appropriate requirements to attach to it depending on the case.
- Treatment for mental health and drug misuse
- Unpaid work
- electronic monitoring
- Reparing any damage that you may have caused
Direct Democracy - All citizens vote on every issue. MPs do not make the decisions on the people's behalf. This would be impractical in modern Britain. It would be very time consuming and too expensive. However governments sometimes do this on certain issues by holding a referendum.
Representative Democracy - A few individuals are elected to represent the whole population. These representatives have to make decisions themselves. Representatices are accountable to the people through elections
Who Speaks for Us?
Member of Parliament - They sit in the House of Commons where they debate and vote on legislation. Mps get the opportunity to suggest ideas for laws. Work to keep a check on the power of the government. Can belong to select committees which investigate behaviour of government. Should represent their local consistuency. Must be an election at least every 5 years.
MEPs - UK elects 78 MEPs who sit in the European Parliament in Strasbourg. They are there to represent citizens as European legislation is debated, amended, rejected or approved. Keeps a check on the unelected European Commission. All 736 members are elected every 5 years.
Local Councillors - Should represent the area that elected them - their ward. Make decisions for their local community on key issues such as: leisure, housing, refuse collection, local roads, education. Elected every 4 years.
Other Elected Representatives - The Mayor of London, Member of the London Assembly and Welsh Assembly, Members of the Scottish Parliament
How are those elected held to account?
Elections - MPs will be judged by the people who voted for them. If people are not happy with the decisions they have made, they will not be re-elected. E.g in the 2015 election Nick Clegg was not re-elected because of the tuition fees scandal.
By Their Fellow Elected Representative - Some are held to account by the body they belong to eg. the Prime Minister and their Government are held to acoount by Parliament. The House of Commons can vote to remove a Government and call a General Election = Vote of No Confidence.
By the Media - The media can expose elected representatives eg. The Daily Telegraph first exposed MPs for their misuse of expenses.
The Courts - They are not above the law and can be held to account by the Courts.
Pressure Groups - They can expose the wrong doing of elected representatives
Direct Democracy in the UK Today
Not used much in the UK today, The only one we use is referendums.
- It is very democratic - people get exactly what they want
- Modern Technology makes holding elections easier
- The population are educated - they should be trusted
- It is expensive
- Votes are sometimes won by a very small majority - is this democratic?
- Are the people best to decide? Most people in Britain would favour the death penalty - should this be put to a referendum?
- You can't hold referendums for every issue, nothing would get done
- First Past the Post - Country is divided into constituencies which elect an MP. Winner takes all in each seat - MP can get a majority with 100 or 100,000 votes. It is the convervatives' preferred system for Westminster elections. Voting Reform - The majority (62%) backed Nick Clegg's plan for Proportional Representation, the public mostly wants a change
- Alternative Vote - Voters are grouped in the same consituencies. Rather than putting a cross by their preffered candidate's name voters rank by number. If no one gets more than 50% of first choice the second preferences of voters are distributed until someone gets majority.
- Single Transferable Vote - Constituencies elect between 3 and 5 MPs. Voters rank by preference when a first choice gets too few votes or enough, the vote is passed to the next choice. Fewer votes are wasted but the link between and individual MP and their constituency is broken. Narrows the gap between main parties. This is Lib Dem's preferred option
How Representative of the popul. are those we elec
Parliament doesn't look exactly like society as a whole.
eg. 2010 UK Parliament
- Gender - 506 Male MPs and 143 Female MPs (and this was a record no of females)
- Age - Average age of an MP ws 50
- Ethnicity - 27 MPs from an Ethnic minority (4.2%)
- Religion - In 2010 the number of Muslim MPs doubled and saw the first 3 muslim women - all labour - elected.
MEPs -European Parliament is better but not truly representative - 69% are men. 2007 - Of their 785 MEPs just 9 are not white
Local Councillors - Most councilors are male - 68.4%. Average age is 58.8. 96.6% were white.
Why and Does it matter?
Why are Certain Groups Under-represented?
- Women have family committments and are not able to work long hours
- Feminists would say that this is evidence of male domination of society. Women are excluded.
- Men are seen as more electable?
- Girls are brought up to be passive and not seeking power/influence
Does it matter?
Yes - All groups need a voice. Certain groups can get ignored leading to laws discriminating. eg. VAT was payable on Tampons until recently. Certain groups can feel alienated and a detatchment from the democratic process.
No - It would be impossible for any parliament to be a microcosm. One MP represents thousands of people they have to represent diverse groups. You don't have to be a woman etc. to represent that group
How is it becoming more Representative?
- All women short lists are now being used by Labour and Conservatives. Lib Dems do not. When a political part tells their members in a certain constituency that they have to pick a women candidate to stand for election
- Advantages - Other methods have not worked such as setting up a house of commons creche and making hours more sociable. Female candidates were forced to 'jump barriers far higher than men'. Increasing the number of women will improve representation and democracy.
- Disadvantages - They are unfair and discriminatory to men. It isn't democratic if they are forced to have a woman candidate. Insulting to women to suggest they neeed special help to get selected. It brings women into politics that are not up to it.
Others are Emily's List (pressure group to raise money to help women members of Labour Party). and Operation Black Vote (Pressure group that works to encourage representation of ethnic minority.)
How Can Citizens Ensure Their Voices Are Heard?
- Voting in elections - Good because results of elections can't be ignored and it is not time consuming, however elections aren't that frequent and your preferred party may not get in.
- Standing for election - Good = if successful uoi can have a direct say in how the country is run, however it requires considerable time commitment
- Being a member of a party - Get to vote in party leadership elections and possibly attend conferences however, people are often party memebers in name only, only have a limited say and your party may not win the election.
- Member of pressure group - Show opinion/ can be high profile, however not obligated to listen.
- Voting in referendum - Gov usually act on result however, Gov can choose to ignore result
- 'E' democracy - Signing at setting up E petitions however a response doesn't mean your demands will be met.
- Contacting your MP etc. - Direct communication however, your opinions may not be taken on board and they might not be involved in decision making process.
- Local Council Forums - Anyone can attend, however they don't have to listen to your suggestions.
- Responding to Gov requests for feedback - They are likely to listen but don't have to.