Comparative Law Spring 2002
Class 39
Columbus School of Law
The Catholic University of
America
Professor Fischer
April 24, 2002
ENGLISH CRIMINAL
PROCEDURE
EUROPEAN UNION LAW
Today’s Class
• English Criminal Procedure
Crown Prosecution Service
• What is the Crown Prosecution Service?
Crown Prosecution Service
• What is the Crown Prosecution Service? Created
in 1985, it is a government prosecution service
independent of police
• Advise police on prosecutions, review
prosecutions started by police, prepare cases for
court, prosecute cases in magistrates courts and
sometimes Crown Court, instructs barristers to
appear in Crown Court
• Must they prosecute all offenses?
Prosecutorial Discretion
• The CPS does not have to prosecute al
offenses, though the decision can be
challenged and reasons must be given
• Many complain that the CPS is underfunded
and overworked, drops too many cases, and
is institutionally racist and sexist.
Plea Bargaining
• Is plea bargaining permitted in the English
legal system?
Right to Silence
• To what extent is there a right to silence in
English law?
Preventing Miscarriages of
Justice
• What is the Criminal Cases Review
Commmission, and what does it do?
Some Suggested Reforms
• Lord Justice Auld’s Report (Sept. 2001)
• This slide and the next 2 slides contain some of
Auld’s suggestions for reform.
• One unified criminal court to replace Crown and
magistrates court with 3 Divisions to try 3 types of
offenses (Crown Divison: indictable; District
Division: more serious either-way; Magistrates
Division: summary and less serious either-way
• Centrally funded executive agency responsible for
administration of all courts (civil and criminal)
Some Suggested Reforms
• Defendant should no longer have an elective right
to trial by judge and jury in “either way” cases;
this should be the responsibility of the magistrates’
court (or division) alone
• Defendants in the Crown Court should be able to
opt for trial by judge alone
• In complex fraud cases judge should have the
power to try case by judge alone with 2 lay people
• In youth cases, judge should have the power to try
cases by judge alone with 2 youth panel
magistrates
Some Suggested Reforms
• No extension of justices’ clerks case management
jurisdiction
• Juries should be more representative of
national/local communities and no one should be
ineligible (though there would be a discretionary
power of deferral/excusal). Where race is likely to
be relevant to an issue in the case, there should be
provison to enable ethnic minority representation
on juries
European Union Law and
English Law
• EU law has limited traditional English doctrine of
parliamentary sovereignty – see especially
Factortame No. 4
• English courts must interpret and apply EU law:
• 1. EU Treaties and regulations are directly
applicable, but EU statute comes into UK law
through delegated legislation
• 2. ECJ judgments are also a source of EU law
EU Members
• How many Member States?
• Which are they?
EU Members
• How many Member States? 15: Belgium,
Netherlands, Luxembourg, France,
Germany, United Kingdom, Ireland, Spain,
Portugal, Sweden, Greece, Italy, Denmark,
Finland, Austria
• 13 countries have applied to join. There
could be 27 members from 2010
Major EU Treaties
• Treaty of Rome (one of original treaties)
• Single European Act (creates single
European market)
• Maastricht (economic & monetary union)
• Treaty of Amsterdam (power shifts; shift
policy from Justice & Home Affairs to EC
in areas of immigration & passport control)
Main EC Institutions
• What are the main EC Institutions?
Main EC Institutions
• What are the main EC Institutions?
• 1. Parliament directly elected members. Not the
legislature though has some legislative role.
• 2. Council – 1 minister from each Member State;
function: to ensure Treaty goals are carried out
• 3. Commission- 20 members. EC
executive/watchdog
• 4. Court of Justice – EC judicial branch - 15
judges and 8 Advocates-General. Also a Court of
First Instance. Uses very French procedure and
mix of substantive law. Wide powers of
interpretation.
Preliminary Rulings
• ECJ gives preliminary rulings when requested by
national court or tribunal (Art. 234 (originally
177).
• Court must think ruling of ECJ is necessary to
make decision or the EU issue must arise in
proceedings in courts of last resort
• English courts should refer if they are not
completely confident as to how the issues can be
resolved, but sometimes decline to refer
Types of EC Legislation
• Regulations, Directive and decisions are
binding.
• Recommendations and opinions are not.
• Recommendations have general application
and direct effect. Directives are binding on
MS to whom addressed. MS must
implement through national law. Decision
binding on whom it is addressed to.
Direct Effect
• Question is whether individual can directly
enforce obligations before national courts
• Some treaty provisions are directly effective, some
horizontally (between citizens), some vertically
(between citizen and state)
• Regulations are directively effective
• Directives can be vertically directly effective, but
probably are not horizonally directly effective.
However, national courts are supposed to interpret
implementing national legislation and other
national legislation in conformity with EU law –
even if national law is prior to directive.
Damages for NonImplementation
• ECJ has held that in some situations a citizen of a
MS may be able to obtain damages in national
courts from a MS which has failed to implement a
directive (Frankovich)
• ECJ has also held that a claim for damages can be
brought in some situations in national courts
against a MS where national legislature has passed
a law that violates EC law (Factortame 4). Later
cases make it unclear how grave the violation
must be