Aspects of the Criminal Process (week 7)

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Aims of the criminal court system
“Ensuring that there is a just and effective outcome to criminal investigations; dealing with cases with appropriate speed
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Models of Criminal Justice: Crime control
says the law should be about repression of criminal conduct. e.g. catch & convict high % of offenders, efficiency, guilty until otherwise proven. against most appeals
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Models of Criminal Justice: Due Process
fairness for D: recognition of dangers of error, formal processes v important, Equality of arms, appeals possible where there may be error, moral integrity of system important, abuse of power must be corrected, infringement of rights should lead to
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quashed conviction
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These two models are at opposite ends of the spectrum, what do each strive for?
Crime control: more convictions, more errors. Due Process: Fewer convictions, fewer errors
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What is in a crown court trial?
deals with serious criminal cases e.g. murder, ****. Has a judge and a jury (one of the only courts to have both)
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Why do we have juries?
Many other countries don't use juries, but Britain does simply because we always have. They are there to determine facts and give a true verdict according to the evidence. A juror cannot refuse to decide
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What does the Judge do?
explain the LAW. 'direct and acquittal' but can't make a conviction
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The criminal appeal process
Court of Appeal is there to ensure a just and effective outcome – mistakes from here …. It says something about the priorities in the system. Factual guilt v due process?
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What is an example of the Due process and crime control models?
The Birmingham six: Six men convicted of 21 accounts of murder in 1975, after 3 appeals they were freed after serving 16 years
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Role of the Court of Appeal
If a case is being appealed, there needs to be new evidence, not just something different but something new that has been discovered
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How is this shows?
Dougherty (1972) tried to prove alibi by using his gf and a friend with a conviction for dishonesty as witnesses. He had been on the bus, but didn't think to use any of the other passengers of witnesses, therefore it wasn't new evidence
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Fresh evidence allows the CA to look at a new scenario
Process model would say people in prison need help to find new evidence or get a lawyer, there should be good reason for not having used the evidence so far
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Disposition of Appeals: History
Criminal Appeal Act 1968 s.2- allow appeal if (a) conviction of jury should be set aside on the ground that it is unsafe ans unsatisfactory; (b) wrong decision of law (c) material irregularity in course of trial
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How was this interpreted?
the 'lurking doubt'' Diplock is saying the case may be unsafe or unsatisfactory (R v Cooper 1969)
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The 'proviso'
Crime Appeal Act 1968 s.2 ends with: court may, notwithstanding that they are of opinion that point raised in appeal might be decided in favour of appellant, dismiss the appeal if they consider no miscarriage of justice occured
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Lurking Doubt v Proviso- Proviso is used more freuqently, Lurking Doubt used rarely
This shows the preferences for factual guilt v due process
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There were miscarriages of justice in 1970 and 1980s, e.g. Maguire seven, Birmingham six, Cardiff three, what had to change?
Why were mistakes happening? How could we identify them? How could we put them right?
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Government response- Criminal Appeal 1995 replaced above with new section 2, what does it read?
CA shall (a) allow appeal against conviction if they think conviction is unsafe and (b) shall dismiss such an appeal in any other case
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What is the problem with this?
'unsafe' does not offer clarity, allows for interpretation so there is no set rule. Statutory interpretation problem and also judicial precedent issue: what SC say is 'unsafe' sets precdecent
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Evolution of s.2
R v Chalkley and Jeffries [1998] suspected of drug offences, police invited them to the station, while men were away, police planted listening devices. But at court, evidence was illegal, yet judge said evidence was good bc was effectively confession
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men had to plead guilty to get lighter sentence. Then they tried to appeal bc illegal evidence. Should they be allowed to appeal?
judge must interpret word 'unsafe', he said he didn't think conviction was unsafe, but that he wasn't satisfied with what went on at trial- thought was problematic. Therfore, factual guilt matters. precedent is set
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What does this suggest?
Illegal practise is alright as long as it leads to conviction- where is the integrity in the system?
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R v Mullen [1999]
he was suspected terrorist who escaped to Zimbabwe, rather than seeking permission to send him back to UK for trial, some officials tricked him into returning; 'executive kidnapping' several years into conviction he discovers he's been tricked:
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He appeals to CA because even though he was guilty, he was brought to trial against protocol
Court are aware of the problems. Chalkley case sets the precedent. in Mullen they say 'unsafe' has broader interpretation
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so what does 'unsafe' mean?
Doubts about factual guilt always unsafe – this must always be true. BUT what about when… Guilt is clear but the process has been wrong? When, if at all, is the line crossed?
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A new consideration
Article 6 of the ECHR provides everyone with the right to a fair trial. If a trial is deemed to be unfair must it therefore be considered unsafe? Thompson and Venables v UK (2000)
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What was this trial?
two child murderers were tried as adults, which is wrong. But is this unsafe? it is up to us to interpret when unfairness equals unsafety
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Absolute approach
unfairness=unsafety. R v Forbes [2001] If it is concluded that a defendant’s right to a fair trial has been infringed, a conviction will be held to be unsafe
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What is another case?
R v A [2001] It is well established that a guarantee of a fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand.
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What is the Quasi-absolutist approach?
R v Togher [2001] If a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.
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What is the problem with this?
If it is almost inevitable, what fills the gap?
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What is the contingent approach?
R v Davis, Rowe and Johnson [2001] [we don’t think] it would be helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree
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What is the referral success rate of appeal applications?
70%
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Other cards in this set

Card 2

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Models of Criminal Justice: Crime control

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says the law should be about repression of criminal conduct. e.g. catch & convict high % of offenders, efficiency, guilty until otherwise proven. against most appeals

Card 3

Front

Models of Criminal Justice: Due Process

Back

Preview of the front of card 3

Card 4

Front

quashed conviction

Back

Preview of the front of card 4

Card 5

Front

These two models are at opposite ends of the spectrum, what do each strive for?

Back

Preview of the front of card 5
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