Unit 4: Introduction to Crime and Punishment and Law-Making Processes

Learning Outcome 1: The Criminal Justice System in England and Wales

AC1.1 focuses on describing the processes used for law making, including both Government processes and Judicial processes. It links campaigns from Unit 1 and the review of verdicts from Unit 3.

The Governmental Law-Making Process: Campaigns and Change

Case Study: Protection Against Stalking (PAS)

• Background and Problem:

  • In $1997$, anti-harassment laws did not explicitly refer to stalking.

  • There were only $70$ prosecutions in $10$ years, despite an estimated $120,000$ stalking victims per year.

  • Stalking consequences included physical attacks and death.

  • Police response was haphazard, and victims were often not taken seriously due to a lack of clear policy.

• The Campaign Process:

  • Inquiry: PAS aimed to make stalking a specific offence. Supported by the probation officers' union (Napo), they set up an independent parliamentary inquiry.

  • Advocacy: They persuaded MPs and peers from all political parties to serve on the inquiry, which lasted several months and heard evidence from victims, families, academics, lawyers, and frontline practitioners (police and probation officers).

  • Support: The inquiry's report ($2012$) was supported by $60$ MPs and peers, the Police Federation, and the Magistrates’ Association.

• Outcome:

  • MPs supported an amendment to a bill in Parliament.

  • This resulted in the Protection of Freedoms Act 2012, making stalking a criminal offence.

• Factors for Success:

  • Giving a voice to victims and practitioners.

  • Gaining support from influential organizations and all political parties.

  • Directly lobbying MPs and peers with the power to change the law.

Formal Parliamentary Process (Governmental Law Making)

England and Wales have two main sources of law. The first is through the Government and Parliament, producing "statutes" or "legislation."

The Structure of Parliament

Parliament is comprised of three main parts:

1. The House of Commons: Consists of elective Members of Parliament (MPs).

2. The House of Lords: Approximately $800$ peers who provide expertise and review legislation.

3. The Monarch: Provides Royal Assent to finalize bills.

Stages of a Bill in Parliament

A proposed law is called a Bill. Before it is presented, there is a consultation stage:

• Green Paper: An initial report produced by the government to consult the public and interested parties for responses.

• White Paper: A document outlining detailed, firm proposals for a new law.

Sequence of a Bill passing through both the House of Commons and House of Lords:

1. First Reading: Formal introduction where the title of the Bill is read out.

2. Second Reading: The first main debate on the Bill's principles; a vote is taken to decide if it proceeds.

3. Committee Stage: A small group of MPs (in the Commons) or the whole House (in the Lords) examines the Bill line-by-line and proposes amendments.

4. Report Stage: The committee reports back to the House; further amendments are debated and voted upon.

5. Third Reading: The final debate on the amended Bill; a final vote is taken.

6. Ping-Pong: If the Lords make changes, the Bill must go back to the Commons to be agreed upon. Both Houses must agree on the final wording.

7. Royal Assent: The Monarch signs the Bill. By convention, the Monarch always agrees to a Bill passed by Parliament. Once signed, it becomes an Act of Parliament.

Notable Criminal Statutes

• The Criminal Justice Act 2003: Notable for changing the "double jeopardy" rule. This change followed Ann Ming's campaign and the Macpherson report on the murder of Stephen Lawrence.

• The Crime (Sentences) Act 1997: Introduced mandatory minimum sentences, such as an automatic life sentence for a second serious sexual or violent offence.

• The Dangerous Dogs Act 1991: Rushed emergency legislation following media reports of dog attacks. It criminalized owning, breeding, or selling specific breeds (e.g., pit bull terriers). It is often criticized as "blaming the breed, not the deed."

Judicial Law-Making Processes

The second source of law is through judges in the courts. This occurs in two primary ways: Judicial Precedent and Statutory Interpretation.

A. Judicial Precedent

This involves judges following the decisions made in similar previous cases (the doctrine of stare decisis). This ensures certainty, consistency, and fairness.

• Mechanism: A decision in a higher court creates a binding precedent for lower courts.

  • Donoghue v. Stevenson (1932): Established the "duty of care" after a woman found a snail in her ginger beer.

  • Daniels v. White (1938): Precedent from the snail case was applied when a claimant was injured by corrosive metal in a bottle of lemonade.

• Exceptions and Overruling:

  • Distinguishing: A judge may decline to follow precedent if the facts of the current case are sufficiently different from the previous one.

  • Overruling: A higher court can decide a lower court’s previous decision was wrong.

  • R v. R (1992): The court overruled the ancient precedent that a husband could not rape his wife, ruling that "irrevocable consent" within marriage is no longer acceptable in modern law.

B. Statutory Interpretation

Statutes (Acts of Parliament) can sometimes be unclear. Judges must interpret the meaning of the words to apply law to real-world cases using three main rules:

1. The Literal Rule: Words are given their ordinary, dictionary meaning.

   • R v. Maginnis (1987): Judges debated the literal meaning of "supply" regarding the return of drugs to an owner.

2. The Golden Rule: Used to avoid an "absurd result" that a literal interpretation would cause.

   • Adler v. George (1964): The statute forbade obstructing HM Forces "in the vicinity of" a prohibited place. The defendant was inside the place. Literally, "vicinity" means near, not inside, but the court ruled "in the vicinity of" included being "in" the place to avoid the absurdity of the law only applying to people outside the base.

3. The Mischief Rule: Judges look at the "mischief" (the problem) the law was originally intended to fix.

   • Corkery v. Carpenter (1951): The defendant was drunk on a bicycle. The Licensing Act $1872$ mentioned "carriages." The court ruled a bike was a carriage for the purpose of the Act because the "mischief" was public danger from intoxicated people in charge of transport.

Questions & Discussion

• What is the role of Parliament? Making law through the legislative process and holding the Government to account.

• What are the three parts of Parliament? The House of Commons, the House of Lords, and the Monarch.

• Who sits in the House of Commons? $650$ elected Members of Parliament (MPs).

• How does the House of Lords differ from the House of Commons? Lords are unelected peers (approx. $800$), whereas the Commons is an elected body with the mandate of the public.

• What is the difference between a Green Paper and a White Paper? A Green Paper is for consultation/public response; a White Paper is a firm plan for legislation.

• Which Bill is more likely to pass? A Government Bill is much more likely to pass than a Private Members Bill because the government Controls most of the parliamentary schedule and has a majority in the Commons.

• What was the result of Cheeseman? Cheeseman was "let off" because the police were stationary, whereas the literal rule required them to be "passengers" in the location to meet the specific legal definitions at the time.

• What is the Purposive Approach? A broader interpretation rule where the court looks at the overall purpose of the law (e.g., used in cases regarding the DHSS or natural parents' access in the Smith case).