criminology unit 4- LO1

What are the two different processes used for law making?

Government law making

Judicial precedent

What are the parliamentary stages of a bill?

First reading- just a formal announcement of the bill and it is followed by a vote to allow it to move to its next stage

Second reading- the main debate takes place in the House of Commons and a vote is taken

The committee stage- the bill is scrutinized by a small committee made up of MPs, ammendments are proposed

The report stage

Third reading- final chance for the commons to debate the bills contents. The house votes either to pass or reject the bill

The lords- the bill goes to the House of Lords where it goes through the exact same stages. If ammendments are made it must return to the commons so mps could decide whether to accept or reject the lords ammendments. This is sometimes referred to as parliamentary ping pong.

Royal assent- the monarch signs the bill

What is judicial precedent?

This is where the judgement made by a judge during a case forms the law as this legally binding decision is then used in other cases of similar circumstances by all lower courts

What is an example of judicial precedent?

Donoghue v Stevenson case formed an original precedent on negligence. This original precedent was then followed in the Daniels v White case as the circumstance was very similar. In both cases the victims received compensation.

What are the two exceptions to the rule of judicial precedent?

Distinguishing - when the judge finds the facts in the present case are different enough from the earlier one to allow them to reach a different decision and not have to follow the precedent

Overruling- where a court higher up the hierarchy states that a legal decision in an earlier case is wrong and overturns it. For example, the Supreme Court can overrule a lower courts decision when it hears an appeal

What is a case example of overruling of a judicial precedent?

R v R 1992 case where a husband had been convicted of attempting to rape his wife. He appealed on the grounds that there was a previous precedent that a husband could not be guilty of raping his wife due to the marriage contract which was seen as consent. The appeal court overruled this on the grounds that the idea of irrevocable consent was unacceptable today.

What is statutory interpretation?

Judges can make law by the way they interpret the words or phrases in statutes. The lower courts then have to follow the interpretations of senior judges.

What are the three rules of interpretation?

Literal rule, golden rule and mischief rule

Describe literal rule and give a case example.

Under the literal rule the words in a statute are given their ordinary and literal meaning. They will be read literally and do not need to be analysed further for different meanings. This however can lead to a harsh result.

E.g. Berriman case 1946- a railway worker was killed whilst oiling a railway line where there was no lookout point. The judge would not grant the deceased’s family any compensation as the relevant act only stated that lookout points had to be issued for workers relaying or repairing the line and not oiling. This result was clearly harsh and unjust.

Describe the golden rule and give an example.

Used to prevent inconsistency and absurdity when interpreting an act literally. The judge can modify the literal meaning to avoid any unjust result.

E.g. Re Sigsworth 1935 the defendant had murdered his mother. He was her next of kin and the relevant act stated that the next of kin would inherit the deceased’s estate. This would produce an unjust result and so the golden rule was applied so that the next of kin would not inherit the estate where they had killed the deceased

Describe the mischief rule and give an example.

Applied where there is ambiguity. This allows the courts to deal with unforeseen loopholes which may stop parliaments original intention being honored.

E.g. the licensing act 1872 makes it an offence to be drunks in charge of a carriage on the highway. In Corkery v Carpenter 1951 Corkery claimed that he was not guilty under this law as he was not in charge of a carriage but a bike. He was found guilty.

Crime control model main assumptions

There is a presumption of guilt as it is believed the fact finding of police and prosecutors is highly reliable

The biggest threat to society is crime. therefore, crime must be repressed to achieve order and a free society

The CJS operates like a conveyor belt and so moves cases swiftly along

Focuses on the rights of the victim rather than the defendants

Police powers should be expanded to make it easier to catch criminals

A few innocent people going to prison is a price to pay for convicting the majority

example of an area of our law that supports the crime control model

the abolition of the double jeopardy rule which ensures that those who are guilty are punished for all criminal offences they commit

how does right realism link to the crime control model

Belives offenders make rational choices to commit crime and so are a threat to society aligning with the crime control model

crime is committed by a small number of repeat offenders - needs to be repressed

Therefore, zero tolerance approach is taken which is like a conveyor belt ensuring offenders are dealt with swiftly

Main assumptions of the due process model

There is a presumption of innocence as the rights of the defendant are prioritised

the state is the biggest threat to our freedom so goal is to protect individuals from oppressions. this also means police powers should be limited

the CJS process is like an obstacle course as investigations need to be thorough - it should not be easy to convict a defendant

it is important that only the guilty are convicted and punished and that the innocent are acquitted - justice is served

area of our law that supports the due process model

requirements of the CPS e.g. full code test

rights of the suspect found in PACE 1984

Human rights act 1998

how does left realism link with the due process model

believes crime is caused by inequality in society so crime impacts marginalised groups therefore policing should not be oppressive and instead emphasise fair treatment

Police relationship with courts

after the initial court hearing those who are denied bail return to the police cells pending their removal into custody at a prison

the police and the courts liaise with regard to the date of the accused’s court appearance

police often attend and give evidence in court as a prosecution witness

the court can grant a warrant of search or arrest to the police if the police provide sufficient evidence

police relationship with the CPS

CPS advises police in early stages of investigation

advise police on charges

apply full code test on evidence collected by the police

CPS direct - 24/7 online CPS service used by police to gain advice from the CPS

police relationship with probation services

work with probation in the management of an offender they will also arrest offenders who have been recalled to prison for breaking their license

police relationship with prison services

prisoners are held locally in police cells once arrested

the police arrest a prisoner recalled whilst on probation and ensure return to prison

facilitate interviews with prisoners involved in ongoing investigations

CPS relationship with the courts

prepare and present the prosecution case against offenders in the magistrates or crown court.

Courts relationship with the prison service

Only in serious high profile cases the police and the prison service ensure safe delivery of prisoners to court. Otherwise transportation is often carried out by private companies. However, are still responsible over the presence of prisoner in court e.g. may set up video link

Carries out custodial sentences that the court had imposed

supervises defendants remanded in custody by the court

facilitate visits from defence lawyers to their client in prison

Courts relationship with the sentencing council for England and Wales

the courts follow the sentencing guidelines produced by the sentencing council

prison relationship with the probation service

probation oversee prisoners once released on license/probation

all prisoners sentenced up to 2 years are released at the halfway point on license for the rest of the sentence. they will also be subject to an additional 12 months supervision by the probation service

liaison between the two if there is any issues and recall to prison is appropriate.

the probation service may liaise with the prison when an offender is about to be released. they attend meetings in prison and provide reports to prison governors that help determine whether a prisoner should be released and under what conditions

probation service relationship with the courts

probation service may provide a pre sentence report to the court for guidance providing an expert assessment of a convicted offenders background behaviour and risk to help judges decide on the most appropriate sentence

supervise offenders given a community sentence by the court

probation officers will attend the court and provide advice about any breaches of conditions

supervise drug testing

What is a MAPPA meeting?

The process through which various agencies such as the police prison service and probation work together to protect the public by managing the risks posed by violent and sexual offender who are just about to be released.

the various agencies share info about offenders under MAPPA in order to assess the level of risk they pose to the public, level of monitoring and conditions.