Miljen Matijašević
E-mail: miljen.matijasevic@gmail.com
Office: G10, room 6 (1st floor)
Tue, 11:30-12:30
Today’s session
1.
Revision of the last session
2. Criminal Procedure in the UK
Legal Aid – Civil Procedure in the UK
Revision – Legal Aid
What two types of legal aid do people usually need?
2. What are the means and merit tests?
3. What are some tasks of the Legal Services
Commission?
4. What types of cases (do not) usually qualify for free
legal aid?
1.
Revision – Civil Procedure
1.
2.
3.
4.
5.
6.
7.
What is the civil procedure?
Who are the parties? Is the state involved?
What are the possible remedies in civil cases?
What is a summons?
What are the defendant's options upon receiving the
claim?
What do you know about the three regimes of trial?
What is the difference between the inquisitorial and
adversarial approaches?
Unit 10
Criminal Law
CRIMINAL LAW
 deals with certain forms of conduct for
which the state reserves punishment, such
as murder and theft
Criminal Law
the parties (UK):
 THE CROWN – i.e. the state
e.g. R v Collins – the Crown against Collins
R stands for ‘Regina’, i.e. ‘Rex’, latin: Queen or King
 DEFENDANT – the person being prosecuted, the
alleged criminal
Criminal Law
 the state is the prosecutor
 has interest in fighting crime
 criminal justice is administered with the help of
the police
 the police investigate a crime, apprehend
suspects and detain them in custody
Human Rights Act 1998
 direct impact on the criminal procedure
 The Human Rights Act 1998 introduced the rights
laid down in the European Convention on Human
rights (Art 5 and 6) into English law in 2000
 introduces provisions governing the right to a fair trial,
presumption of innocence (Art 6) and the right to
liberty and security (Art 5)
 all English statute and case law must now be measured
against these provisions
The Right to a Fair Trial (Art 6)
1.
In the determination of his civil rights and obligations and of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall
be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where
the interests of juveniles or the private life of the parties so
require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice
the interests of justice.
2.
Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to the law.
The Right to Liberty and Security
(Art 5 of the ECHR)

governs matters pertaining to unlawful arrest and detention and
lays down the conditions under which an individual can be
deprived of his or her liberty

Some of these conditions are:





Lawful detention after conviction;
Lawful arrest or detention for non-compliance with a court order;
Lawful detention to prevent spread of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
etc.
It also provides that everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article has an
enforceable right to compensation.
The Prosecutors
 Most prosecutions undertaken by:

Crown Prosecution Service (CPS)
 Other special prosecution bodies:

Serious Fraud Office (SFO)

Serious Organised Crime Agency (SOCA)
Criminal proceedings
STANDARD OF PROOF
 in criminal trials, the burden of proof is
on the prosecution, who, unlike in civil
trials, must prove guilt beyond
reasonable doubt
Starting Proceedings
 upon investigation of a criminal act, the police
may apprehend suspects and decide whether
the offender should be prosecuted
 if so, a file is sent to the CPS
 CPS then decides whether there is a realistic
prospect of conviction
 they must be sure that the evidence is legally
admissible and reliable.
Starting Proceedings
 next they must consider whether a prosecution
would be in the public interest
 criminal proceedings may be initiated by the
serving of a requisition to appear in court
(a.k.a. summons), or a warrant of arrest, issued
by a Magistrates’ Court
 prosecution is not initiated in all cases, but the
offender may only be cautioned
Caution
 in many cases of petty crimes, instead of being
prosecuted, offenders receive a police caution
 this is an official warning intended to:
 deter (first-time) offenders from re-offending, i.e.
committing the act another time
 remove the necessity of a court appearance
 deal quickly with less serious offenders
 this is not a conviction, but results in a criminal record
– may be considered in future trials as evidence of bad
character
The Right to Silence
 the defendant has a right not to say anything,
both in the police station and at trial
 since the entry into force of the Criminal Justice
and Public Order Act 1994, the silence may be
adversely interpreted in the court, i.e. the
silence can be taken as an indicator of possible
guilt on the part of the defendant
Disclosure
 the requirement to disclose all evidence and
defence/prosecution materials to the other party
in the proceedings
 “It is a fundamental aspect of the right to a fair
trial that criminal proceedings (...) should be
adversarial and that there should be equality of
arms between the prosecution and defence.“
(Rowe v UK)
Disclosure
 however, the European Court of Human Rights
warned that “entitlement to disclosure of
relevant evidence is not an absolute right”
 three factors that justify withholding of
evidence:

national security

protection of witnesses

preserving secrecy in police investigations
Categories of criminal offence
 There are three categories of criminal offence in the UK:
1. Summary offences (or petty crimes)

least serious criminal offences; triable in the Magistrates’ Court;
jury trial not available
2. Indictible offences

most serious offences, triable in the Crown Court; more severe
penalties are available: trial by jury
3. Triable either way

criminal offences triable either in the Magistrates’ Court or in the
Crown Court
Criminal proceedings
 cases are brought before the Magistrate’s Court
 the Court evaluates the case and may

proceed to sentence

decide that the matter is too complex or serious for their
jurisdiction
 if the case is found to be more complex, it is
committed to the Crown Court, where more
severe penalties are available, as well as a jury
trial
Summary offences
 95% of criminal cases are categorized as summary
offences and dealt with by the Magistrates’ Court
 these offences include: traffic violations, drunk
and disorderly behaviour, assaults, minor
criminal damage cases, cases prosecuted by
government departments or agencies
 if the defendant pleads guilty upon being charged,
court appearance is avoided
 ‘No case to answer’ also available
Triable either way
 these offences include theft, drug offences, some acts of
violence against the person
 the defendant given the option to select the mode of
trial – summary trial or trial on indictment in the
Crown Court (before a jury)
 they must be well informed of the procedures and possible
penalties for each of the modes
 the court may, on the other hand, deem the case too
complex or serious and refer it to the Crown Court,
seeing as more severe penalties are available there
Indictable offences
 serious offences, such as rape, murder, fraud etc.
 trial by indictment – the Crown Court – before a jury
 pre-trial legal argument stage – beneficial for the
accused because the case can be dismissed before trial due
to unreliable evidence or witnesses
 the judge has to assess whether the evidence is sufficient
for a possible conviction by jury
 if a ‘not guilty’ plea is entered, and the evidence is
considered reliable, the case proceeds to trial
Indictable offences – trial by jury





a jury of 12 is sworn in
after cross-examination, the judge sums up the
evidence and the facts of the case to the jury and the
jury retires
unanimous verdict – no longer required, but instead a
majority of 10 out of 12 jurors
if more than 2 jurors are opposed – ‘hung jury’ – trial
abandoned
if the jury convicts, the judge proceeds to sentence
Triable either way – pros
Magistrate’s court
Crown court
 Juries find defendants not
 Maximum prison sentence: 6
months for one offence, 12
months total
guilty more often than
magistrates
 Harder to convince 10 jurors
of guilt beyond reasonable
doubt than 1-3 magistrates
Possible punishment
 a fine
 a prison sentence
 a community service order
 probation - a conditional sentence (prison sentence
activated only if the convict reoffends within a certain
period of time)
Vocabulary practice 1
Explain and translate the following legal terms:
1.
INDICTABLE OFFENCE
2.
OFFENDER
3.
RE-OFFEND
4.
REALISTIC PROSPECT OF CONVICTION
5.
LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE
6.
WARRANT OF ARREST
7.
UNLAWFUL ARREST
8.
DEPRIVE sbd OF LIBERTY
Vocabulary practice 1
Explain and translate the following legal terms:
1.
INDICTABLE OFFENCE – teško kazneno djelo
2.
OFFENDER – počinitelj kaznenog djela
3.
RE-OFFEND – ponovno počiniti kazneno djelo
4.
REALISTIC PROSPECT OF CONVICTION – realne šanse za osudu
5.
LEGALLY ADMISSIBLE AND REALIABLE EVIDENCE – pravno
prihvatljivi i pouzdani dokazi
6.
WARRANT OF ARREST – uhidbeni nalog, nalog za uhićenje
7.
UNLAWFUL ARREST – protupravno uhićenje
8.
DEPRIVE sbd OF LIBERTY – lišiti nekoga slobode
Vocabulary practice 2
Explain and translate the following legal terms
1.
SUMMARY OFFENCE
2.
TRAFFIC VIOLATION
3.
PLEA
4.
CROSS-EXAMINATION
5.
ACQUITTAL
6.
INITIATE A CRIMINAL PROCEEDING
7.
PROVE GUILT BEYOND REASONABLE DOUBT
8.
ALLEGED CRIMINAL
Vocabulary practice 2
Explain and translate the following legal terms
1.
SUMMARY OFFENCE – lakše kazneno djelo
2.
TRAFFIC VIOLATION – prometni prekršaj
3.
PLEA – izjašnjavanje o krivnji
4.
CROSS-EXAMINATION – unakrsno ispitivanje
5.
ACQUITTAL – oslobođenje optužbe
6.
INITIATE A CRIMINAL PROCEEDING – pokrenuti kazneni postupak
7.
PROVE GUILT BEYOND REASONABLE DOUBT – dokazati krivnju
izvan svake sumnje
8.
ALLEGED CRIMINAL – navodni počinitelj kaznenog djela
Unit 12
What is a constitution?

the supreme legal act, to which legislation and other regulations must
conform

the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee
certain rights to the people in it

a written instrument embodying the rules of a political or social
organization
Importance of constitutions

Lays down the key principles on which a society, political and legal system are
built

Sets out the organisation of government

Guarantees rights and freedoms of its citizens

Strategic political act of a state and of a people

Legitimizes a democratic state before the international community

Facilitates stability
Types of constitution
federal (multilayered)
*
written
*
rigid
unitary
*
unwritten
*
flexible
The Constitution of the Republic of Croatia

Promulgated on 22 December 1990, amended in 1997, 2000, 2001 and 2010

Contains the following sections:
1.
Historical foundations
2.
Basic provisions
3.
Protection of human rights and fundamental freedoms
4.
Organization of government
5.
The Constitutional Court of the Republic of Croatia
6.
Local and regional self-government
7.
International relations
8.
Amending the Constitution
9.
Final provisions
The Constitution of the RC
1. Historical foundations
 Outlines the history of the Croatian state, i.e. the political idea
of Croatia as an independent state from the 7th century onwards
 Draws upon the legacy of the rejection of communism and the
political changes in the late 1980s and of the Homeland War
“Respecting the will of the Croatian nation and all citizens, resolutely expressed
in the free elections, the Republic of Croatia is hereby founded and shall
develop as a sovereign and democratic state in which equality, freedoms
and human rights are guaranteed and ensured, and their economic and
cultural progress and social welfare promoted. “
The Constitution of the RC
2. Basic provisions
 Define the Republic of Croatia as a unitary and
indivisible, sovereign democratic and social state
 Lay down the most fundamental features of the state:
organisation of government, democratic
principles, separation of powers, political parties,
armed forces, the national flag, coat of arms,
anthem, language and script, and the capital city
The Constitution of the RC
3.
Protection of human rights and fundamental
freedoms
 Set out the fundamental rights and freedoms of
Croatian citizens
 Transpose the provisions of the UN Convention of
Human Rights
 equality before the law, presumption of innocence,
right to a fair trial, right to appeal court and
administrative decisions, etc.
The Constitution of the RC
3.
Protection of human rights and fundamental
freedoms
 the right to life (prohibits the death penalty), freedom,
freedom of movement, private life, communication,
religion, beliefs, etc.
 economic and social rights (work, property, social
security, strike, family relations, education, etc.)
The Constitution of the RC
4.
Organization of government
 These provisions lay down the organisation, rights,
duties and powers of:
 the Croatian Parliament,
 the President of the Republic of Croatia,
 the Government of the Republic of Croatia,
 the Judiciary, and
 the State Attorney’s Office
The Constitution of the RC
5.
The Constitutional Court of the RC
 Consists of 13 judges, appointed by the Croatian
Parliament for an 8-year mandate
 Selected from the ranks of reputable jurists, judges,
state attorneys and attorneys
 Not an actual court within the RC court system
The Constitution of the RC
5.
The Constitutional Court of the RC
 The Court’s main tasks are as follows:
 to decide on the conformity of laws with the Constitution, and of
other regulations with the law and the Constitution
 to decide on constitutional complaints against individual court or
administrative decisions (e.g. If the violate human rights and
fundamental freedoms, etc.)
 to decide on jurisdictional disputes between the 3 branches of
government
 to decide on the impeachment of the President of the RC
 to supervise the constitutionality and legality of elections and
referenda
The Constitution of the RC
6.
Local and regional self-government
 This section regulates the right to local and regional
self-government, the division into local administrative
units (counties, municipalities, cities), local elections
 Lays down the scope of competence of local self-
government units, such as the organization of housing
and urban planning, public utilities, child care, social
welfare, primary health services, education and
elementary schools, culture, physical education and
sports, etc.
The Constitution of the RC
7.
International relations
 Concerns the areas of international agreements and
association and secession
 IA – regulates competence over and the ratification of
international agreements, according to their content
 Association and secession – regulates the procedure
of acceding to alliances with other states – who can
initiate the procedure and the number of votes in
Parliament, i.e. on the referendum are necessary for
such a decision to be passed
The Constitution of the RC
8.
Amending the Constitution
 This section regulates the procedure of amending the
Constitution
 Amendments may be proposed by one fifth of
representatives in the CP, the President and the
Government of the RC
 The decision to amend must be approved by the majority
of representatives
 Amendments may be adopted only if a two-thirds majority
of all representatives vote in favour
The Constitution of the RC
9.
Final provisions
 These provisions rescind the former House of the
Counties of the Croatian Parliament and confers to the
CP the obligation to enact a Constitutional Act
implementing the Constitution
Thank you for your attention!