Last year I had the opportunity to travel to London, England to observe their criminal justice system for a week. This trip was organized by the California State Bar Association. As a criminal defense attorney practicing in the United States, it was a wonderful experience to observe three or four different English criminal courts. After several hours of observation, our group had the opportunity to visit the judge and attorneys for that session. Below you will find a comparison between the two systems.
1. What standard of proof is required before a formal charge is issued to a citizen??
Very similar to the United States, the English standard for issuing a formal charge is “reasonable suspicion” that a crime or criminal offense has occurred.
two. Generally speaking, how is a formal charge document issued??
Again, in a procedure very similar to that in the United States, the police and/or the Crown Prosecution Service draw up and issue a formal charging document.
3. Does the accused have the right to an attorney??
In both countries, yes.
Four. When is the accused informed of his right to an attorney, and at what stage of the process is an attorney available to him?
An English citizen is informed at the time of his arrest and before being questioned by the police that he has the right to a solicitor. Basically, this procedure is virtually identical to the procedure in the United States for a “Miranda” warning.
5. Does a defendant in England have the right to examine the prosecution’s case file (reports, witness statements, forensic examination results, etc.)??
Yes, and long before the trial.
6. Does a defendant in England have the right to a jury trial??
Yes, but not as liberally as in the United States. For a first offence, the maximum sentence an English citizen may face should be at least six (6) months in prison before being entitled to a jury trial. For a second offense, at least twelve (12) months in prison. Generally speaking, all 30-day and misdemeanor offenses (such as misdemeanor DUIs, etc.), do not grant or offer the defendant the right to a jury trial. All of these types of crimes are handled as trials before the judge.
7. Is a defendant in England presumed innocent during the course of the trial??
Yes.
8. What is the general composition and conduct of a jury trial in England??
Generally, the jury is made up of twelve (12) members; however, during the course of the trial, the number of active jurors may be reduced to nine (9) and the case will continue until a verdict is rendered. English law allows for a 10-2 or “supermajority” verdict, a unanimous verdict is not required. By contrast, most criminal courts in the United States require a unanimous verdict.
9. Does the respondent have the right to appeal??
Yes, but only because of an alleged legal error.
Some interesting information about the appellate courts in England: Previously, all criminal appeals were referred to a specific sub-committee of the “House of Lords” for decision. Only recently have specific appellate courts been created to handle criminal appeals. An appellate court does not have the power to repeal or annul a law, it can only interpret a law or recommend to Parliament that a law be rewritten. England’s highest court of appeal hears appeals from England, Wales and Northern Ireland in both civil and criminal matters. Scotland has retained its own court of appeal for criminal appeals. The “Privy Council” is the last available court of appeal for all British republics (example: Jamaica, Trinidad and Tobago, etc.). The “Privy Council” is made up of the same judges who make up the appellate courts. English courts of appeal rarely sit “en banc”. Depending on the perceived importance of the matter to the general public, panels of five (5), seven (7), or nine (9) judges will hear oral arguments and decide the case. For the most part it is a panel of three judges who hear and decide the cases. The average oral argument is about eight (8) hours per part.
10 What is the standard of proof required for a conviction in criminal court??
“Clear” is the current standard in England. Previously it was “beyond a reasonable doubt” (as is the standard in America); but it was recently changed to “secure”.
Some generally interesting points of the English criminal justice system are:
- “Prior misdeeds/prior convictions are admissible as evidence of the current offense charged (example: an English defendant on trial for shoplifting for a second offense would have the first theft conviction announced or published to the jury)
- The English judiciary embraces the concept of “full and shared responsibility” between multiple defendants. Similar to the concept in America of “the hand of one is the hand of all”. For the most part, English judges hand out similar sentences to any and all actors/conspirators and even those with a relatively minor role.
- The trial judge accuses the jury of the law Y facts with the jury and before deliberation. Clearly, this is a major departure from, and difference from, US courts. The English judges’ charge to the jury of the facts is supposed to be a well-balanced and general summary of both sides and a review of the key testimonies in a long trial.
- English jurors individually receive an evidence book for trial.
- English defendants generally sit together and “in the doc” and not with their lawyers at the table during the trial.
- All barristers, judges and court clerks wear a wig and gown during proceedings in England.
- Trial judges generally withhold their rulings on evidentiary objections until after the attorneys meet and see if they can resolve the objections among themselves. Once again, this is a major change in the way objections are handled in the United States. In general, judges in England rule on evidentiary matters much less frequently than their counterparts in the United States.
- Jury selection is random and neither party may question a jury except “for cause.” Basically, at the English court they just “turn the wheel” and draw the names. Jurors only excuse themselves if there is a direct conflict and/or a very high level of “cause.” English jurors may ask questions at various intervals during the trial when recognized by the court.
- An “unwritten” rule is that English employers pay the standard wage to employees while on jury duty.
- Mandatory sentencing guidelines are present for most crimes in England, and the judge sentences the defendant with a guilty verdict.
- An “attorney” generally has all the contact with the client, does all the legal research, and prepares memorandums and legal motions. All preparation for the trial is usually handled by the “attorney”. An “attorney” is the attorney who actually appears as lead counsel in court for the client. The “lawyer” is hired or retained by the “lawyer” and the “lawyer” must pay the “lawyer” for her services regardless of whether the client pays the “lawyer” or not.
- In England it is very common for private lawyers to continually change roles within the system. Again, this is a major departure from US practice. The government can hire private attorneys and attorneys on a case-by-case basis to act as prosecutors. It is very common for private solicitors in England to serve as a judge for one or two years and then return to private practice as a solicitor or barrister.
- Finally, at the conclusion of the discovery process in England, both the prosecution and the defense are mandated and required to file a joint “statement of the case” in court. This document is presented to the jury and contains all the points of agreement and stipulations that are present in the case. The “case statement” also specifically outlines the points that are in dispute between the government and the defense. Neither party may vary from the agreed upon “statement of the case” submitted to the court prior to the commencement of trial.