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Summary Criminal Law Part B summaries
Comprehensive notes on Part B of the year 1 criminal law course. Summary of the book by Mack and condensed case notes that can be used to study for the exam.
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Notes(Week 1)
Procedural law – rules governing the ‘machinery’ of substantive law with the aim of
protecting defendant’s rights and ensure the execution of sentences.
I. Comparison between adversarial and inquisitorial
Criteria Inquisitorial Adversarial
Practiced Mostly practiced in civil legal systems (European Mostly practiced in common legal
continent) systems.
Countries Germany, the Netherlands, France United States
Position of the judge Judge PPS The public prosecutor and the Two equal
Judge
compared to PPS and defendant are not equal (vertical parties
accused relationship) (horizontal
Accused
PPS Accused relationship)
The role of the judge The judge is an inquisitor (active role) The judge acts like a referee (passive
neutral role).
Aim of the procedure Find the substantive truth Find the formal truth (whatever is found
as fact by the legal fact-finder –judge)
Emphasis of the Pre-trial stage (all evidence is collected in advance Trial stage (the presenting of evidence
procedure and put in case file, the judge has access in has extensive role on the verdict)
advance)
Burden of proof Public prosecution Public prosecution
Collection of evidence Evidence is collected prior to the trial in a case file Evidence is presented orally in court
(dossier) (principle of orality). Important because
the jury does not study the case file
beforehand.
Immediacy principle – In a formal manner where all evidence is placed in In a substantive manner – evidence is
evidence should be the case file which is then discussed in court. brought in to the court-room (including
discussed throughout witnesses).
the trial.
,Public prosecution Mandatory prosecution, public prosecutors see Follows the opportunity principle,
themselves as ‘justice fighters’ , PPS has monopoly the PPS has more discretion. Private
over prosecution (decided both the charges and prosecution is possible.
whether it’s in society’s best interest to prosecute)
Victim participation May participate Limited participation
Basis of conviction The accused is an instrument of his own conviction The guilt of the accused must be proved
(investigation vs. (the interrogation plays an important role in the through evidence secured in skilful
interrogation) decision of the guilt of the defendant ) investigation. The interrogation of the
suspect plays a lesser role in the decision
upon conviction.
Police role Investigation under the supervision of Defendants do not have access to the
investigating judge. Defendant can often inspect files collected by the police until the
files collected by the police. arraignment (formal reading of criminal
charging documents – in the beginning
of the trial)
II. Development of adversarial system:
Trial of Socrates - the adversarial model can be exemplified by the trial of Socrates (he was accused for advocating against
the principles of democracy) who was brought before a jury trial of 500 men. The jury would vote on the guilt of the defendant,
the citizen participation in the trial emphasized the importance democracy. The objective of such trial is that even when the
absolute truth is ascertainable there’s a value in presenting competing truths to a jury which can dispense equity and justice.
There were three methods for resolving conflicts in medieval times that contain traces of the adversarial system:
1. Oath taking process → the accused is acquitted if he takes oath in trial declaring his innocence and has to produce a
certain number of witnesses (usually family members which caused bias) to testify to his innocence by also taking an
oath. At that point defendants were not responsible to the state, rather to the injured party.
2. Judicial duel → trial by combat, a physical trial -in a form of a competition- where competing parties fight one another
in a judicially sanctioned manner. Whoever prevailed was believed to be the innocent party, decided by a higher power
(god’s will).
3. Trial by ordeal → the ordeal was a process where an accused was tutored by water/ fire and the progress of healing
determined his innocence or guilt (whether god was on the accused's side).
There are several differences between a trial in the medieval times and the current adversarial system:
1. The accused is allowed to contest the charges
2. The burden of proof is on the PPS
3. The judiciary is separated from the church.
4. Within a criminal trial in the medieval times the defendant’s responsibility was towards the victim whereas today the
responsibility is towards the state.
III. Historical background of the English legal system establishing the adversarial system:
1215 Magna
Carta: charter
1066 -under 1164 Assize of of rights. In
the control of Clarendon – addition the
William the act by Henry religious
conqueror the the II component of
1829: 1985 crown
fist court and established the criminal
professional prosecution
laws was criminal proceedings
police services
established. it proceedings was removed
organization established
included similar to (the Pope had
customary law today's grand forbade the
and kings jury clergy from
courts proceedings. participating
in trial by
(Feudal System) ordeal).
, IV. Development of inquisitorial system
Trial of Galileo – in the 17th century Galileo had manifested ideas that went against the Christian religious
ideology (due to his scientific beliefs). He was interrogated by the Papal inquisition because such beliefs were
prohibited. The trial was similar to the inquisitorial trial because he was demanded to tell the truth otherwise he
would be punished (seeking the truth is the first priority). In addition, great deal of evidence was collected before
they convened to the trial. Lastly, the inquisitor knows prior to the trial of the accused’s guilt and throughout
interrogation (during the trial) compels him to admit the truth by any means necessary.
1600/1700 pure inquisitorial
procedure – the determination of
one's innocence was based on the
evidence collected by inquisitors.
The Spanish inquisition was based
1100: Papal revolution – on a traveling court with the aim of
the pope established the punishing heretic behavior. The
Papal inquisition to accused was unable to access a
interrogate and punish counsel in the initial interrogation, 1789 French revolution:
heretics. They proceeded however they were represented separation of state
firmly until people would later on. There were two issues powers/ modern
confess their wrongs. By with the assigned advocates: inquisitorial procedure
this creating the first •They were employed by the holy
inquisitorial coherent office (bias)
justice systems.
•The evidence presented did not
contain names of any witnesses,
so it couldn’t be challenged. The
trial was mainly based on
witnesses’ testimonies.
V. Development of ECHR
After the second world war it was established for the very first time that individuals have human rights that can be
invoked against state action on an international level.
This was through the establishment of the council of Europe in 1949 to promote cooperation between
member states (prevent another war).
VI. Criminal investigation (Week 2)
An initial inquiry by officers to establish the facts and circumstances of the suspected crime and to
identify and preserve any evidence related to the crime. Mainly conducted by the police under the
supervision of the public prosecution (mostly in the inquisitorial system). With the aim of finding the
truth.
Search process → Intrusion to a place where an individual has a reasonable expectation for privacy - occurs during the early
stages of criminal investigation, supported by some degree of suspicion that evidence of criminality will be
discovered. Regulations are in place in order to minimize the interference with privacy expectation.
United States as an example of an adversarial system France as an example of an inquisitorial
system
,Regulation Regulation is in place to protect individuals’ rights The French system has little
protected by the 4th amendment. regulation on the elements required
This is a provision that restricts the power of police to conduct a search. This can be
to stop and search individuals and protects their attributed to its inquisitorial
privacy elements, as the goal is finding the
truth by any means necessary.
In the US a magistrate or a judge must issue a Regulated according to the type of
search warrant for a law enforcement officer to investigation being undertaken. Ex.
lawfully conduct a search in a place where an Flagrant offence (felony in the
individual as an expectation of privacy (must be course of being committed or right
both objective and subjective expectation, was after commission) permits authority
determined in Katz v. United States). to search persons or places, without
There are two requirements for a valid warrant: any judicial authorization, only
1. Probable cause notification of the district prosecutor.
The Gates Test established the flexibility of the Another form of investigation is
concept of ‘probable cause’, establishing the basis 'formal judicial investigation' which
for a warrant using informant’s tips. Most warrants is conducted by an investigating
survive judicial scrutiny today because courts are judge. In both, law enforcement
lenient in recognizing evidence obtained in officers have broad authority.
objectively in ‘good faith.’
2. Must include a particular place or person to
be searched and the evidence to be seized.
Usually this is easy to establish as it is a ‘fill in the
blank’ form – even if there’s an error as long as
officers act in ‘good faith’ it is reasonable.
Searches under special I. Search prior to arrest Even though the French system
circumstances a. A warrantless search s permitted prior to an permits broad authority regarding
arrest of the suspect and his surroundings searches, there are special
to protect the officer and prevent circumstances.
destruction of evidence. When the offence at hand involves
b. When a pre-arrest search is conducted drug trafficking or organized crime a
outside a vehicle that the officer is warrant must be issued (by
empowered to search the entire vehicle. investigating judge/ public
II. Automobile exception prosecutor) including the address of
the premises and the qualification of
the specific offence, the search is
, Searching an automobile only requires a probable then limited to evidence collected for
cause – because vehicles are all subjected to the conviction of the specific crime
government regulation. for which the search has been
III. Searches under exigent authorized. The search is supervised
circumstances by the judge who authorized it.
a. When an officer is in a pursuit of a suspect
he may enter locations and search in areas
the suspect might reasonably be found in .
b. If a health or safety emergency exist, an
officer may enter any location where a
victim is likely to be found.
c. When an officer is lawfully in a premises
and views a clearly prohibited item, he may
search and seize it – this is done to prevent
inefficient procedure.
d. When an officer is lawfully in a premises
he may search every person that might pose
a threat to his safety.
e. Consent searches – consent waives the
protections of the 4th amendment.
Seizure – stops detentions and arrests by law enforcement officers represent invasions into individual privacy
interest, even if only momentarily.
Stops Terry v. Ohio empowered law enforcement A judicial police officer may ask any
officers to undertake a proactive approach and person to justify his identity by any
intervene before a suspected crime occurs. means necessary under the following
Requirements for a Terry stops: circumstances.
1. Reasonable articulable suspicion – less The person:
than the criteria of a probable cause but 1. committed/ attempted to
more than just a hunch. (Objective commit an offence
suspicion only) 2. Preparing to commit an
2. The seizure cannot continue for an offence
excessive period of time or resemble an 3. Able to give information
arrest. useful regarding an offence
An officer is empowered to demand a person to 4. Object of inquiry by a
identify and disclose his name during a terry stop. judicial authority.
The officer may take fingerprints/
NB the officer is not required to inform the suspect photograph of one who fails to prove
of his right to remain silent during a terry stop. his identity with the authorization of
the district prosecutor/ investigating
judge.
,Lineup In the United States, a part of identity There is no formal procedure of
establishment in early stages of investigation. No lineups, thus, can be conducted at
right to counsel if occurs prior to indictment. In the any stage of the investigation and
adversarial approach the commitment to initiate cannot be challenged.
criminal proceedings is only established after the
indictment.
Main issue of the lineup process is
misidentification, this occurs due to:
a. Unnecessary suggestiveness- the line-up
itself is highly suggestive (E.g. when a
witness states that the suspect is tall, the
line-up contains one tall person and the rest
are short, encouraging the witness to
identify.)
b. Internal perceptions which impact the
manner in which the identifier records the
event.
In order to invalidate the lineup procedure factor
such as the time of day and the amount of time the
witness saw the suspect are taken into account.
Arrests An officer may arrest a suspect if: An officer may arrest an individual
1. The officer observes a suspect committing and detention period is up to 24
a crime; or hours, however, it can be extended to
2. Gathers probable cause (objective test) that 48 hours with authorization of the
a crime was committed prosecutor (the arrest and detention
A warrant is not required for offences for which an are under the supervision of the
arrest is an option (authorized by a statute). PPS). Within detention one may
The issue with arrests and stops is ‘pre-textual request to be assisted by a lawyer or
arrests’ in which officers may stop individuals for be examined by a doctor appointed
the commission of minor offences in order to gain by the office/ prosecutor.
the ability to search a vehicle and its occupants
upon arrest. (E.g. an officer may stop a person for
ignoring a traffic light, by that gaining the ability
to search the car and find incriminating evidence
for more serious offences with no need of a search
warrant.) Case law tackled this issue using the
‘reasonable test’.
Pre-trial release → The typical procedure involves posting a bond A suspect, presumed innocent
released pending trial ensuring the suspect's appearance in future remains at liberty except for
proceedings. The amount of the bond is exceptional cases.
determined by several factors: (governed by the 8th Pre-trial detention may be ordered
amendment) under if the suspect is accused of a
1. Risk of fleeing
, 2. Level of threat to the community/ victim serious crime/ misdemeanour of at
3. Risk that the suspect will intimidate least 3 years imprisonment.
witnesses.
Should achieve one of the following
objectives:
1. Preserve evidence
2. Prevent pressure on
witnesses
3. Prevent collusion with co-
perpetrators.
4. Protect the suspect
5. Make sure the suspect does
not flee
6. End offence/ repetition.
7. Prevent disturbance to public
order.
The pre-trial detention should not be
excessive.
Art. 5 ECHR
Art. 5(1)
1) The national law must be clear and accessible.
2) The national law must not allow for arbitrary or excessive detention.
Lawful arrest/ detention:
Suspicion of committing a crime; or
To prevent the commission of a crime; or
To prevent them from fleeing
Art. 5(2) The right to be informed the reasons of the arrest and charges.
Art. 5(3) 1) Procedural requirements: the detainee has two rights:
a. Right to be brought promptly before a judicial officer
Case law Brogan and Others v UK → established that after an arrest within four days
one should be brought before a judge. Any detention period over 4 days does not
qualify as 'promptly' under art. 5(3) ECHR.
b. Right to be released within reasonable time
c. Right for trial within reasonable trial
2) Substantive requirements → the judicial officer must review and consider the
merits of detention including the ability to determine:
o Lawfulness of detention
o Whether there's reasonable suspicion
, The objective element of the suspicion is considered – ECtHR defined this as
"presupposes the existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence.")
o Whether detention is justified
Art. 5(4) The right to initiate proceedings challenging the lawfulness of the detention (habeas
corpus proceedings)
VII. Defendant’s rights during criminal investigation (Week 3)
United States (as an example of an adversarial France (as an example of an
system) inquisitorial system)
Right for an attorney • The 6th amendment state the right to • Defendant have the right to a
“assistance of counsel of his defense’ counsel of his choosing or
during trial proceedings, over time, the have one assigned to him.
Supreme Court has interpreted this to mean
that the government must provide counsel • Defendant may only be
to criminal defendants without the interrogated in the presence
financial resources. of their lawyer (unless he
• Through case law it was established that waived his right)
the right to counsel is granted from the
moment criminal proceedings are initiated.
• The right to counsel during custodial
investigation was established in the
Miranda v. Arizona (which comes from the
5th amendment)
NB As the focus of the adversarial legal system is
the equality between the state (PPS) and the
defendant during the trial, defendant must be
provided with a counsel with sufficient legal
knowledge and skills to establish his innocence.
(As the PPS is composed of attorneys with the
same skills and knowledge)
Disclosure of evidence In order to establish strong defence the attorney The investigating government, on
– a copy of the evidence (and the defendant) must be supplied with behalf of the government controls the
the PPS had collected evidences collected by the PPS, at the request of disclosure of the case file
against the defendant. the defendant. He must disclose the case file at the
This includes: minimum four days before each
- Any oral statements made by the defendant interrogation or hearing to the
that may be used in trial. (At any stage of attorney.
the investigation) After the first appearance or hearing
- Defendant’s written or recorded statement. the case file is put permanently
- Defendant’s prior criminal records before the attorney.
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