How merciful are English Courts to Offenders?

Barrister Aiman R. Khan:

The English Criminal Justice System is a role model of fairness and equality.It treats an offender with mercy and acknowledges their rights as human beings, no matter how grave their crimes are or how dangerous they are as persons. It opens up multiple avenues for any offender to help them get justicewith the eyes of compassion. The rules and procedures are designed in such a way that their rights are upheldthereby eliminating any scope for injustice. Below are few of the situations where the courts can be seen to favour the Defendant’s rights.

Right from the Arrest

It starts from the police station where a detained person is told about his rights such as right to free and independent legal advice, consultation with a solicitor privately, having someone informed of their arrest and consulting the Codes of Practice.

Defendants who are children or mentally vulnerable must have an appropriate adult present with them when they are being interviewed by the police so that they can observe whether the police are acting fairly or not.

The evidence collected by the police can be rendered inadmissible if it was wrongly obtained from the accused. For example, searching without proper authority, interviewing without caution, denying access to solicitor, oppression, or tricks at the interview. This is governed by the Police and Criminal Evidence Act 1984 (PACE).

When brought to the court

The prosecution must provide the defendant with initial details of his case. This will include a summary of circumstances of the offence, accused’s criminal record, any account given by the accused in an interview, any written statements or exhibits and victim impact statement. Failing to disclose this would result in the court ordering the prosecution to pay costs to the Defendant.

If the Magistrate court decides to keep the trial of Defendant to itself given that they have sufficient powers, then the Defendant will be given an opportunity to ask for an indication from the court of what the sentence might be if he pleads guilty. He can even change his plea after that.

The Defendant who is charged with an either way offence is then given an option to choose where he wants his trial to be at, whether Magistrates court or the Crown Court. He is also advised on the pros and cons of both the courts.

From the start of the trial

At the investigation stage, the prosecution must disclose any material to the Defendant which will support his case. This has been granted by s.3 of the Criminal Procedure and Investigation Act 1996 (CPIA). The prosecutor must also give him a written statement that there is no material like that if there isn’t any.

Unused Materials of evidence which support Prosecution case need not be disclosed. The Attorney General’s Guidelines on Disclosure further adds to s.3 of CPIA that the prosecutors also have a duty regarding disclosure to consider the material can support submissions leading to exclusion of evidence, stay of proceedings or whether a court finding that proves any public authority acting against Defendant’s rights under the ECHR.

The common law imposes a duty on the prosecutor to recognize the need for advance disclosure of material which he thinks will assist in Defendant’s case preparation.

Throughout the case

The prosecution has a continuing duty to observe the defence statement to identify those unused materials that might be in support of the Defendant’s case. If the prosecution fails to disclose the consequences can be that the conviction may be quashed as it will be an abuse of the process to continue the case.

If there is some evidential material relevant to the prosecution case held by a third party, the prosecution must take steps to obtain it. This is especially if the material can support Defendant’s case and undermines prosecution case.

At a ‘submission of no case to answer’ by the Defendant, the jury won’t be informed about it if it’s unsuccessful but will be informed if it is successful to enter a Not Guilty verdict.

The defendant can seek to exclude a piece of prosecution evidence under s.78 of PACE but a prosecution cannot do so against a Defendant. S.78 talks about evidence obtained unlawfully which could have an adverse effect on the fairness of the proceedings.

The Defendant can apply for a stay in the proceedings on the grounds of abuse of process. This is when the Defendant has been tricked into committing an offence which he otherwise wouldn’t have committed or where he is prosecuted despite the promise made by the prosecution that he won’t be. Even the prosecution deliberately delaying the proceedings to gain a tactical advantage is an abuse of process. If the defence cannot prove it but delay has caused prejudice to Defendant, then the court may hear the application for an abuse of process.

In the Higher Court

The prosecution at the Crown Court will often add lesser serious offences to an indictment. This is done because the Defendant does not want to plead guilty to the offence, he is charged with but would accept some lesser degree of offence available to him. For example, for a charge of Murder, Defendant will usually plead to Manslaughter, for a section18 charge, he would plead to s.20 and similarly for a charge of Burglary, he will plead to handling of stolen goods.

At the end of the case

When the Defendant pleads guilty to multiple serious offences, the prosecution will simply ask the judge to strike out his minor offences from the indictment. This way these counts will be put on hold, usually permanently. This is called ‘Lying the count on file’

Where Defence counsel withdraws/ dismissed from the Defendant’s case, he may receive legal and the judge will adjourn upon application of Defendant to get a new counsel.

Sometimes a court can defer its sentence for up to 6 months to allow the Defendant to prove to the court that he has either changed himself or that the offence he committed is his first and last time. This enablesthe Defendant to present himself to the court at the end of the deferred period as a better person and often receiving a lighter sentence as a result.

Regarding Sentences, in a determinate custodial sentence, the court orders Defendant to serve half sentence in prison and the other half in the community. The custodial sentence part is kept for the shortest possible period to serve the purpose of the sentence. If Defendant has been in custody for any period before the sentence, that period is counted with the sentence.

Also, there is a provision of ‘Suspended Sentence’ where the Defendant is told to fulfil a certain criterion to avoid prison entirely. For example, Defendant has a 1-year imprisonment that has been suspended by the court for a period of 2 years. In these 2 years, Defendant has to be under supervision and do unpaid work for a number of hours. If he completes his required task in the given period, he will not have to serve a single day in prison.

If the Defendant is unhappy with the Magistrate Court’s decision and the Magistrate considered that they made a mistake, then they can vary or set aside the conviction under s.142 of the Magistrate’s Courts Act 1980.

As it is usual that the Defendant can sometimes lie at the police interview. And the obvious inference that the Jury may draw is that the Defendant is guilty of the offence. But the judge would intervene and say that this is not the case. It might be that the Defendant lied because he was doing something not illegal but what can for example ruin his marriage. By giving a Lucas Direction to the jury, the judge would warn that they must be satisfied beyond reasonable doubt that the lie was deliberate and relates to the material issue before they can hold it against the Defendant.

The combined effect of all the criminal laws ensures fairness in the system. Allowing them the opportunity to enjoy their rights even when they committed a crime, creates a sense of remorse in the offenders. This in turn helps them to reintegrate into society and live crime-free. It is truly remarkable how the country keeps its society in a check and balance method by appropriately structuring its laws. The Criminal procedure of England is undoubtedly a paradigm of an ideal justice system in the world and other countries have a lot to learn from it.

Barrister Aiman R. Khan: Associate at Rahman Law Associates and Company