The Right to a Fair Trial in England and Wales

by Bruce Dickson*

Introduction(1)

The law on this matter in England and Wales is similar, but by no means identical, to the law in Northern Ireland.(2) Salient differences will be alluded to in this paper. The law in Scotland, however, is not covered. By and large the law in England and Wales seems to comply with the fair trial standards laid down in the United Nations' and Council of Europe's documents. But one or two areas of concern remain.

A. The Criminal Court System

There are, in effect, two sets of criminal courts -- one for the trial of "summary" (i.e. minor) offences and another for the trial of "indictable" (i.e. major) offences. Some offences are always summary and others are always indictable, but a large number are triable either way (sometimes called hybrid): these will lead to a trial on indictment unless the defendant and a magistrates' court consent to a summary trial.(3)

A summary trial takes place before a magistrates' court. In some large towns these courts comprise one "stipendiary" (i.e. professionally qualified and salaried) magistrate(4) but everywhere else the court comprises three "lay justices of the peace" who will have received some training for the role but will not otherwise be legally qualified.(5) The justices' lack of legal training does not mean that they do not have the degree of independence and impartiality required by international human rights law, though the system for appointing justices remains shrouded in secrecy. Lay magistrates are assisted by a legally qualified clerk to the court, who will advise the magistrates on both procedural and legal points, including those affecting sentencing. Under the Police and Magistrates' Courts Act 1994, a Magistrates' Courts Service Inspectorate has been set up and must report each year to the Lord Chancellor.(6)

If a defendant in a summary trial is dissatisfied with the way in which the trial has been conducted he or she can demand (within two weeks) a complete rehearing of the case before a Crown Court, which will be staffed by a circuit judge or a recorder (i.e. a part-time circuit judge), assisted by two new lay magistrates. At the moment about one in twelve defendants who plead not guilty in the magistrates' court appeal in this way, and between one-quarter and one-third of the appeals result in convictions being quashed.(7) There can be a further appeal, on a point of law only, to the Court of Appeal and from there to the House of Lords. If either side in a summary trial is dissatisfied merely with the application of the law by the magistrates' court, or by the Crown Court during a rehearing, it can appeal (by way of "case stated") to the Divisional Court of the Queen's Bench Division (a branch of the High Court), where there will be no further examination of witnesses or consideration of the facts, only argument as to the correct state of the law. The Divisional Court will not hear an appeal against sentence but there can be another appeal from the Divisional Court on points of law to the House of Lords.(8) A third way in which the magistrates' court hearing can be challenged is through an application for judicial review, initiated by prosecution or defendant, taken in the Divisional Court of the Queen's Bench Division of the High Court. This procedure is used whenever the hearing in the magistrates' court has allegedly been tainted by a breach of natural justice which may have resulted in an unjust decision, such as where the prosecution omitted to disclose the evidence of witnesses which was helpful to the defendant.(9)

A trial on indictment takes place before a Crown Court, of which there are about 90 throughout England and Wales.(10) Prior to 1994 all such defendants had to appear first before a magistrates' court for a decision as to whether he or she should be "committed for trial" to a Crown Court. The Criminal Justice and Public Order Act 1994 provided instead for a preliminary hearing in a magistrates' court (known as "transfer for trial" proceedings) only if the defendant wishes to assert that the prosecution case discloses insufficient evidence to justify a trial taking place.(11) However these provisions were never brought into force and they have since been repealed by the Criminal Procedure and Investigations Act 1996.(12) The pre-existing law has been reinstated.

Crown Court trials are conducted by a single judge sitting with a jury of 12 people. The judge will have had at least 10 years' experience as a practising barrister or solicitor but the type of case he or she can hear depends on his or her seniority within the judicial profession. The most serious cases are heard by judges belonging to the Queen's Bench Division of the High Court (where they would otherwise deal only with civil cases, with the small number of appeals from summary trials in magistrates' courts or with applications for judicial review); the other cases are heard by circuit judges (who also deal with some civil cases in the county courts). The division of labour between High Court and circuit judges depends on a Practice Direction issued by the Lord Chief Justice; currently this divides offences into four classes according to their seriousness.(13) In turn the various venues available for Crown Court trials are divided into three tiers depending on which kind of judge is hearing the case. Part-time circuit judges are known as recorders. Some lawyers are also appointed on a temporary basis as circuit judges or recorders.(14) There is always the risk, of course, that part-time and temporary judges will not be as independent and impartial as their full-time colleagues, but in fact no hard evidence of bias has yet come to light.(15)

A defendant may, within four weeks, lodge an appeal from the Crown Court, against conviction or sentence, to the Criminal Division of the Court of Appeal, which sits in London.(16) The defendant must first acquire the leave of the Court of Appeal, though if the appeal is based on a question of law alone (the facts not being in dispute) leave is not required so long as the trial judge certifies that the case is fit for appeal.(17) The Court of Appeal cannot increase the sentence imposed by the Crown Court.

The prosecution cannot appeal from the Crown Court against a defendant's acquittal but the Attorney-General may refer an "unduly lenient sentence" to the Court of Appeal and the Court of Appeal can then increase the sentence if it so wishes.(18) This referral power also applies to some triable-either-way offences tried in a magistrates' court.(19) After an acquittal the Attorney-General may also refer to the Court of Appeal a point of law which has arisen during the trial, but the Court of Appeal's determination of the point does not then affect the defendant's acquittal.(20) Once a person has been acquitted he or she cannot be tried again for the same offence (the common law defence of autrefois acquit, known in some jurisdictions as the ne bis in idem rule).(21)

From the Court of Appeal there can be a further appeal in indictable cases to the House of Lords, by the defendant or the prosecution, provided not only that the Court of Appeal certifies that a point of general public importance is at issue but also that the Court of Appeal or the House of Lords gives leave for the appeal.

At the time of writing (October 1996), whether or not there is an appeal from the Court of Appeal to the House of Lords, the Home Secretary has power to refer a case back to the Court of Appeal.(22) The grounds upon which this can be done are, however, rather narrow and have led to the prolongation of several prominent miscarriages of justice in recent years. The Criminal Appeal Act 1995, when it is fully in force, will abolish the Home Secretary's referral power and set up a Criminal Cases Review Commission to investigate and, where appropriate, refer to the courts cases of possible wrongful conviction or sentence.(23) Between 1989 and 1994, 70 people had their convictions referred to the Court of Appeal by the Home Secretary; 53 of these had their appeal allowed and more than 6 million was paid to victims of miscarriages of justice.(24)

Offences against military law can be tried by courts-martial but these have no jurisdiction over civilians. Otherwise there are no military courts in the United Kingdom, nor are there any courts dealing only with "administrative" offences. The fairness of procedures in courts-martial is currently under consideration by the European Court of Human Rights.(25) Persons in Northern Ireland accused of offences often committed by members of unlawful paramilitary organisations are tried by a judge in a Crown Court sitting without a jury, though they have an automatic right of appeal, against conviction and/or sentence, to the Court of Appeal, where three judges sit. There have been many calls for reform in this area, especially from human rights organisations, but no change is expected in the short term.(26)

B. The Rights of Detainees

1. When is detention lawful?

A person can be lawfully detained only if he or she has first been arrested or if he or she is present voluntarily at a police station and grounds for lawful detention have since emerged. An arrest is legally justified if a warrant for arrest (which can be for any offence) has been issued by a justice of the peace(27) or stipendiary magistrate or if the police validly exercise their power to arrest without using a warrant. In the main the latter power exists only if the officer in question has a reasonable suspicion that an "arrestable offence" has been, is being or is about to be committed.(28) An arrestable offence is in effect an offence for which a person aged 21 or over, with no criminal record, could be sent to prison for five years or more.(29) A power to arrest also exists (1) where "general arrest conditions" apply, e.g. where it is inappropriate or impracticable to issue a summons directing the person to appear in court, (2) where a police officer reasonably suspects that a breach of the peace has been, is being or is about to be committed and (3) where legislation specifically justifies the arrest.(30)

Under anti-terrorist laws, in force throughout the United Kingdom, a person can be arrested if he or she is reasonably suspected of being concerned in the commission, preparation or investigation of acts of terrorism, even though those offences do not exist per se.(31)

An arrest is unlawful if the power to arrest has been wrongly exercised. It is also unlawful in two other situations: if the person arrested is not informed immediately or as soon as practicable of both the fact of the arrest and the grounds for the arrest and if more than reasonable force is used in the carrying out of the arrest. An unlawful arrest justifies the arrested person in taking civil proceedings for compensation (for the tort of false imprisonment), but it does not necessarily mean that the person is entitled to be released from custody. Only if the unlawfulness is deemed to vitiate the subsequent detention of the suspect will he or she be entitled to release.

The lawfulness of detention may in theory be tested at any time by proceedings for a writ of habeas corpus. The issue of such a writ compels the authorities holding a person in detention to show cause why such person should not be released. Of course if the authorities can point to one or more legislative provisions justifying the detention then that is usually a complete answer to the writ, but often it is in the application of the legislative provisions to the facts of a given case that doubts can arise. In practice the police must be able to show either that the grounds which justified the initial arrest still persist or that there are new grounds which now justify continued detention.

2. How long can detention last?

Once a person has been arrested he or she should not, as a general rule, be kept in police custody for more than 24 hours without being charged. But a police officer of superintendent rank or above can authorise an extension to the detention of up to 12 hours if he or she has reasonable grounds for believing (a) that detention is necessary to secure or preserve evidence, (b) that the offence in question is serious and (c) that the investigation is being conducted "diligently and expeditiously".(32) An offence is "serious" for this purpose if, for instance, it has led or is likely to lead to serious injury or death, substantial financial gain or serious harm to public order.(33) The maximum period of detention without charge which can be authorised by the police alone is therefore 36 hours.

Detention without charge beyond 36 hours is allowed only if authorised by a magistrates' court.(34) That court can initially extend detention for up to a further 36 hours. After this first period of extended detention a magistrates' court can be asked to extend it again, and perhaps again after that, but in no case can the period of detention without charge exceed 96 hours in total. Throughout the period of detention the position of the arrested person must be reviewed by a police officer who has at least the rank of inspector and who has not been involved in the investigation in question up to that point. The first review must be carried out six hours after the detention begins and later reviews must be conducted at least every nine hours.(35)

For the duration of the period of detention a detainee is the responsibility of the station's "custody officer", who must have at least the rank of sergeant. It is this officer who must authorise the initial detention and any charge or release. As soon as the grounds for detention cease to exist, the arrested person must be charged or released. Moreover, once charged the detainee must be released on police bail or brought before a magistrates' court on that or the following day.

Strictly speaking, Article 9(3) of the International Covenant on Civil and Political Rights (hereinafter the ICCPR) applies only to persons who have already been charged with an offence. If it were interpreted as applying also to persons who have been detained but not yet charged, a magistrates' court is clearly "a judge or other officer authorized by law to exercise judicial power". A custody officer in a police station, on the other hand, is probably not such an officer. His or her function is of the executive rather than the judicial variety and in practice a custody officer invariably authorises detention for as long as his or her senior police colleagues so wish. However only about 1 per cent of all detainees are in fact held for a period longer than 24 hours.(36) In turn, fewer than 20% of these individuals are subsequently released without being charged. In 1993, some 94,000 people were arrested in England and Wales and held in police custody until brought before a court.

Article 9(4) of the ICCPR requires all persons arrested or detained to be entitled to take proceedings before a court in order to obtain a decision without delay as to the lawfulness of the detention and to obtain release if the detention is not lawful. In England and Wales the hearing before a magistrates' court for a warrant of further detention (to extend detention beyond the initial 36 hour period) is doubtless a compliance with this requirement, although the question to be addressed in such hearings is actually whether there is a justification for further detention and not whether the detention to date has been lawful or not. In any event the United Kingdom has not signed the Optional Protocol to the ICCPR, so no right of individual petition to the Human Rights Committee exists.

During an emergency the rights of detainees can be altered, especially their right to be brought without delay before a court. The legal system of England and Wales allows such "emergency" laws to be made in the same way as "ordinary" laws (there is no need, for instance, for a prior declaration of emergency, unlike in situations of natural disaster or industrial action(37)) and, because there is no constitutional guarantee of rights, the remedies of habeas corpus and judicial review can be diminished accordingly. Throughout the United Kingdom it is possible for terrorist suspects to be held for up to seven days without being brought before a magistrate: after 48 hours any extension to the detention requires the authorisation of a Secretary of State.(38) The European Court of Human Rights has held that, on account of the terrorist threat in Northern Ireland, the United Kingdom is justified in derogating from Article 5 of the European Convention in this regard.(39)

Generally speaking all prosecutions of summary offences must be initiated within six months of the date of the offence, but there is no limitation period for more serious offences. It is within the power of a court to dismiss charges if it believes that too long a period has elapsed to make a fair trial likely. This has occurred in cases where miscarriages of justice have been unearthed many years after police or forensic science malpractice.(40)

3. Treatment of detainees

There is limited authority for saying that the unlawful use of force against a person in custody means that that person is entitled to be released forthwith.(41) Otherwise the English and Welsh criminal justice system adheres to the view that a denial of rights to detainees should be sanctioned through procedures aimed at punishing the persons responsible or at compensating the detainee rather than through procedures leading to the exoneration of the detainee from any criminal charge. English law explicitly recognizes the crime of torture.

Amongst the crimes for which a person can be charged if he or she mistreats a person in custody are torture,(42) assault causing grievous bodily harm and assault causing actual bodily harm. Threats of harm are also criminal. Police officers responsible for such actions can also be subjected to internal police discipline, a system triggered either by a complaint from an affected member of the public or by a referral from a fellow officer. All complaints against the police are investigated by the police themselves, although investigations of the more serious allegations are supervised by independent persons who are members of the Police Complaints Authority.(43) The victim of such behaviour can seek compensation through suing for the torts of (inter alia) trespass to the person, negligence or conspiracy.

Any person arrested has the right to have someone informed of the arrest, although in certain circumstances this right can be denied for up to 36 hours (e.g. if the person is in detention for a serious arrestable offence and a senior police officer thinks there are reasonable grounds for believing that the exercise of the right will lead to interference with evidence or witnesses). A failure to allow this right to be properly exercised would probably not make the detention unlawful but may still give rise to compensation for the tort of false imprisonment or to disciplinary action against the police officers concerned.

Detainees are to be treated in accordance with the Code of Practice on Detention, Treatment and Questioning of Suspects, issued under the Police and Criminal Evidence Act 1984. But a failure to comply with this Code does not automatically mean that the detainee is entitled to be released or compensated.

4. Access to legal advice

A person who is held in police custody has a statutory right to consult a solicitor privately at any time if he or she so requests. Under the Code of Practice on Detention, etc. referred to above, the person should be made aware of this right. As with the right to have someone informed of the arrest, it can be denied for 36 hours if certain conditions are fulfilled, but as this is a decision affecting "public" rights it can be challenged through judicial review proceedings. Research shows that only about one-third of all suspects request legal representation, though the figure rises to two-thirds for persons facing serious charges.(44)

Although access to legal advice has been described in one case as "one of the most important and fundamental rights of a citizen,"(45) a confession made in the absence of such advice will be declared inadmissible as evidence only if the prosecution fail to show that the confession was not made as a result of the absence of advice. However the courts have so far tended to assume a causal connection, thereby rendering the confession inadmissible provided the breach of the right is significant.(46) On the other hand, information obtained from conversations with the accused prior to being arrested, or being formally interviewed, are admissible. Communications passing between solicitor and client are protected by "legal professional privilege" and so cannot be adduced in evidence against the client.

Persons detained under the Prevention of Terrorism (Temporary Provisions) Act 1989 can be denied access to a solicitor for up to 48 hours after their arrest. The European Court of Human Rights has recently held that such denial, when coupled with the qualifications on the right to remain silent (explained next), is a breach of Article 6 of the European Convention on Human Rights.(47)

5. The right to remain silent

Whether or not a person has been arrested, he or she is generally under no legal obligation to answer questions put by the police or anyone else, although inspectors from the Department of Trade and Industry are entitled to demand answers when they make inquiries about company fraud, etc.(48) But since the coming into force of sections 34-37 of the Criminal Justice and Public Order Act 1994 an accused person may suffer certain disadvantages if remaining silent. These provisions are modelled on comparable provisions introduced into the law of Northern Ireland in 1988.(49) The European Court of Human Rights has held that they contain enough safeguards to avoid breaching Article 6 of the European Convention.(50)

First, a court can now "draw such inferences as appear proper" if the accused (a) relies on a fact at the trial which he or she could reasonably have mentioned, but did not, during police questioning, or (b) refuses to testify at the trial after being warned by the judge as to the potential consequences of such refusal. In each such situation inferences can be drawn only if the prosecution has otherwise provided substantial evidence linking the accused with the offence, but of course unless this requirement has been satisfied the prosecution is unlikely to have been brought in the first place.

Second, a court can again "draw such inferences as appear proper" if the accused refuses to account for (a) the presence of any object, substance or mark in his or her possession or in any place where he or she was at the time of being arrested, or (b) his or her own presence at a particular time and place. The inferences can be drawn only if the accused has been asked to give such an account by a police officer who reasonably believes that the presence of the object, etc. may be attributable to the accused's participation in an offence specified by the officer.

These new provisions apply to all criminal trials, whether in a magistrates' court or the Crown Court, and, subject to what action the United Kingdom might take in response to the judgment of the European Court of Human Rights in Murray v. UK,(51) regardless of whether the accused has had the benefit of advice from a lawyer at the time of police questioning. However they expressly leave intact all statutory enactments of the right not to incriminate oneself, whether in criminal or civil proceedings. The Court of Appeal has recently given guidance on how a judge should sum up to the jury about the defendant's silence,(52) and in an appeal from Northern Ireland the House of Lords has confirmed that, if there is strong evidence against a defendant and he or she refuses to assert his or her innocence under oath, it is only common sense to infer that this is because the defendant is guilty.(53)

An interrogator may continue to question the accused after the latter has asserted his or her right to silence, but a Code of Practice on questioning requires no further questions to be put once the police have sufficient evidence to charge the accused with an offence. When charged, the accused must again be cautioned about the effect of remaining silent, even though no further questions relating to the offence should be put to him or her unless they are necessary to prevent harm to someone or to clarify an earlier ambiguous reply.

All interviews in police stations with accused persons (except those arrested under anti-terrorist laws) must be tape-recorded and there is a Code of Practice stipulating how the recordings must be conducted. Nevertheless, evidence obtained outside the police station, whether from interviews or by other means, is still admissible. Video-taping of interviews has been piloted in some areas, but the experiment has not been without controversy.

6. Confessions

A person can be convicted on his or her confession alone, even if this was supplied in the absence of legal advice.(54) If the accused contests the admissibility in evidence of the confession the prosecution must prove beyond a reasonable doubt that the confession was neither obtained by oppression nor in circumstances likely to render it unreliable.(55) The legislation defines "oppression" as including "torture, inhuman or degrading treatment, or the use or threat of violence", and these are the only grounds upon which confessions made by persons being tried in Northern Ireland's Diplock Courts can be excluded from evidence.(56) On the whole judges have interpreted the term oppression so as to exclude questionable confessions, but some terrible practices occasionally slip through the net.(57) There is also a general judicial power to exclude any kind of evidence if it appears to the court that its admission would have an adverse effect on the fairness of the proceedings ("such that the court ought not to admit it")(58) and the common law discretion to exclude continues to exist.(59) It is not a prerequisite to the admissibility of a confession that the accused must first know what the consequences of confessing could be.

Evidence that a fact was discovered as a result of an excluded confession made by the defendant is not admissible against the defendant,(60) but otherwise the "fruit of the poisoned tree" is good evidence in English law.(61) Likewise evidence which is illegally obtained is not ipso facto inadmissible,(62) though the manner in which evidence has been obtained is a factor which a court can take into account when deciding whether to exercise a discretion to exclude.

In theory plea-bargaining, either between defence and prosecution or between defence and judge, does not exist, although in practice it is known to occur very frequently. If a confession is made as the result of an agreement with the prosecutor (perhaps in exchange for a lesser charge) there appears to be no legal mechanism for enforcing the agreement.

7. The rights of remand prisoners

Once a person has been charged he or she is entitled to be released on bail unless a magistrate decides to order a remand in custody. A release on bail, whether by the police(63) or by a court,(64) may be made conditional upon the accused doing certain things (e.g. reporting weekly to the police station) and failing to meet bail conditions is itself an offence.(65) A magistrates' court must grant bail unless the accused is deemed likely to abscond, commit a further offence, interfere with witnesses or otherwise obstruct the course of justice. If the court decides to remand the accused in custody (preventive detention) the period cannot exceed 8 days, but thereafter the court can impose up to a 28 day remand period whether or not the accused is present in the court for the hearing. A fresh bail application is permitted if new considerations have arisen for the court to look at and there is a right of appeal against the refusal of bail to the Crown Court or the High Court. Since 1993 the prosecution has been able to appeal to the Crown Court against the granting of bail in a magistrates' court if the offence in question carries a maximum sentence of five years' imprisonment or more.(66) In 1993 approximately 75,000 people were tried in magistrates' courts and 16,000 in the Crown Court without having received bail prior to their appearance for trial; this represents about 3.8 per cent and 19.3 per cent respectively of all defendants tried in these courts.

Under the Prison Rules 1964, as amended,(67) prisoners held on remand in custody ("unconvicted prisoners") are kept in separate accommodation from convicted prisoners and are not subject to the same prison régime. They do not have to undertake prison work or wear a prison uniform. They are allowed more frequent visits and greater rights of correspondence.

8. The Right to a Speedy Trial

Article 9(3) of the ICCPR also stipulates that anyone arrested or detained on a criminal charge is entitled to trial within a reasonable time or to release. In the law of England and Wales(68) there is not yet an overall time limit on the length of time that can elapse between charge and trial, but for a summary trial there is a limit of 56 days from the date of first appearance in the magistrates' court to the opening day of the trial and for a trial on indictment a limit of 70 days from the date of first appearance in the magistrates' court to the date of committal to the Crown Court and a limit of 112 days from the latter date to the opening day of the Crown Court trial (known as arraignment -- when the clerk to the court asks the defendant whether he or she is pleading guilty or not guilty).(69) If these time limits are not adhered to the case against the defendant is not dismissed but the defendant is entitled to be released on bail unless the court agrees to an extension of the period in custody. In 1995 the average time elapsing between an accused person's committal for trial and the start of his or her Crown Court hearing was 16.1 weeks, though of course the average was higher for persons on bail than for those in custody and for those pleading guilty than for those pleading not guilty.(70) The average time from the date of the offence to the completion of contested proceedings in the magistrates' court, in 1994, was 132 days.(71)

C. Trial Procedures

1. Financial assistance

There is no mandatory requirement that an accused person be legally represented at all stages of the trial. There is a means-tested legal aid scheme,(72) according to which the accused must be given financial help with the cost of legal representation. The accused applies directly to the court for this aid, not to a solicitor or any other organisation. The court must grant legal aid if this appears to be desirable in the interests of justice and the sorts of factors the court will take into account in applying this merits test are the seriousness of the charges, the accused's ability to present his or her own case and the nature of the accused's defence arguments. Any doubts over the accused's eligibility must be resolved in the accused's favour, even if the accused intends to plead guilty to the charges. Legal aid must be offered if one of the charges is murder or if the court might sentence the accused to imprisonment or (if the accused is a juvenile) to detention in a young offenders' centre or a period at a training school.

If the case deserves it, legal aid can be granted for senior counsel as well as junior counsel and it is invariably available for an appeal in a criminal case if it was available for the original trial. It may not be so readily available for any incidental civil proceedings, such as applications for judicial review challenging the police's refusal to allow access to a solicitor.

In 1995 there were 114,504 applications in the magistrates' courts in England and Wales for representation in the Crown Court, and a further 12,393 applications in the Crown Court itself. Only 19 of the former and 220 of the latter were refused.(73)

2. Advance disclosure of evidence

The law on this topic has been radically altered as from 4 July 1996, the date on which the Criminal Procedure and Investigations Act 1996 came into force. Prior to that Act the matter was governed by guidelines issued by the Attorney-General in 1981, significantly supplemented by a series of court decisions in the early 1990s.(74) The prosecution had to disclose any material information. By "material" the judges meant (a) anything which was possibly relevant to an issue in the case, (b) anything which possibly raised a new issue not already apparent and (c) anything which held out a real prospect of providing a lead on evidence concerning the material in (a) or (b). It was up to the prosecution to determine what was relevant, though the defence could ask the court to rule on this if there was a dispute. Clearly the prosecution was required to disclose evidence that, to its knowledge, was in favour of the accused, and the names of prosecution witnesses, except where security considerations were in play, had to be revealed to the defence in advance.

Under the 1996 Act, the prosecution is required to disclose to the defence "any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused" ("primary disclosure").(75) The defence, for its part, must give a "defence statement" to both the court and the prosecutor setting out in general terms the nature of the accused's defence and indicating why he or she takes issue with the prosecution.(76) In response to the defence statement the prosecutor must disclose to the defence any prosecution material which has not previously been disclosed and which might be reasonably expected to assist the accused's defence ("secondary disclosure").(77) Thereafter the prosecutor must keep under review whether at any time there is prosecution material which ought to be disclosed. These new rules are intended to make prosecutions more efficient but no less fair; they have, however, been roundly condemned, even by a former senior state prosecutor.(78) The fact that forensic science laboratories are still completely unregulated by the law makes a defendant's position even more precarious.(79)

If the prosecutor believes that disclosure would not be in the public interest he or she can apply to the court for an order to that effect.(80) The court will consider the issue by balancing the public interest in non-disclosure against the interests of justice as far as the defendant is concerned. After making an order of non-disclosure the court must keep under review whether it remains contrary to the public interest to disclose the material.(81) If, after a conviction (even one based on a plea of guilty), it becomes clear that material does exist which, if disclosed, would have influenced the way in which the defence was run, then the non-disclosure by the prosecution amounts to a material irregularity which entitles an appeal against conviction to succeed.(82)

Where an accused intends to rely upon an alibi (i.e. a claim that he or she was not at the scene of the crime at the time it was committed), he or she must give particulars in the defence statement, including the name and address of supportive witnesses where known.(83) The accused must also give prior notice when intending to rely on the opinion of an expert(84) and in cases of serious or complex fraud.(85)

3. The right to be tried in public

As a general principle of common law all criminal trials are held in public, though cameras and recording equipment are not permitted.(86) A judge can order a trial to be held in private if there are issues of national security at stake(87) and the public, but not the press, can be excluded whenever a juvenile is testifying in a case of alleged indecency.(88) Moreover the prosecution can apply to the judge to have a witness give testimony behind a screen, so that only the judge, jury and lawyers have sight of the individual, not the defendant or members of the public. This ploy has been used on several occasions in Northern Ireland in order to protect the anonymity of members of the security forces. To date challenges to the practice have failed.(89) A judge's sentence is always announced in open court.

Accused persons are protected against prejudicial media coverage through laws on reporting restrictions and contempt of court. The former are quite severe, limiting the reporting of pre-trial hearings to the bare essentials.(90) The law on contempt used to be very wide, so much so that it was found to be in breach of the European Convention on Human Rights.(91) After the introduction of the Contempt of Court Act 1981 it is a crime to publish something which creates "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." If the proceedings are criminal they are protected in this way from the moment an arrest is made or an arrest warrant is issued. There are three main defences: (a) innocent publication, (b) fair and accurate reports published contemporaneously and in good faith and (c) incidental discussion of matters of general public interest.(92) Complainants in rape cases are entitled to anonymity(93) but persons accused of rape are not, unless identifying them would reveal the identity of the complainant.(94)

It is an offence at common law to publish material tending to prejudice proceedings which, although not yet active, may be forthcoming(95) and judges have an inherent common law power to punish people who within a courtroom interfere with the administration of justice, e.g. by using a tape-recorder or camera, or drawing a sketch.(96) Magistrates can send someone to prison for up to one month for contempt; higher courts can send someone to prison for up to two years. The matter can be dealt with without giving the accused person a chance to prepare a defence.

Normally a person will be tried in the court sitting for the area where the offence was committed but a magistrate or judge can order the venue to be changed if this is in the interests of justice (e.g. because of local outrage at the crime which might risk a biased jury). A trial in absentia is permissible in the case of minor offences where the defendant pleads guilty by post, otherwise an accused person must be present in court to hear the prosecution's case, although if a person escapes from custody pending trial, or is too ill to attend,(97) or has behaved in a very unruly manner in court, the trial can nevertheless proceed and sentencing can take place in his or her absence. Legal representatives must be present in cases where the accused is personally absent.

4. The rights of mentally incompetent accused persons(98)

Persons who are mentally handicapped or disordered are given special rights when arrested and detained. In particular the police must inform a "responsible adult" of the detention and ask that person to attend the police station. No interviews can take place with the mentally handicapped person unless the responsible adult is present also. If the mentally handicapped person makes a confession when there is no independent person present the magistrate or jury must consider the "special need for caution" before convicting.(99)

Mentally handicapped persons tried for criminal offences can claim that they are unfit to plead.(100) If this is accepted, perhaps after a trial by jury of that particular issue, such persons will be dealt with by the mental health system rather than the criminal justice system. In cases of alleged murder such persons can plead "diminished responsibility", i.e. that they were suffering "from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired [their] mental responsibility for [their] acts and omissions in doing or being a party to the killing".(101) This defence, if successful, reduces the crime to manslaughter. Persons found to be insane are entitled to a verdict of guilty but insane and are then usually made the subject of a detention order issued by the court.(102)

5. The position of juveniles

Children aged under 10 are irrebuttably presumed not to be capable of having a mens rea, so they cannot be charged with a criminal offence. Children aged 10 to 13 are rebuttably presumed not to know the difference between right and wrong and so are also not usually charged.(103) Anyone aged 17 or under who is charged with a criminal offence appears before a youth court as a child (if aged 10 to 13) or as a young person (if aged 14 to 17). The youth court is the magistrates' court by another name; it usually consists of three justices, including at least one man and one woman, but a stipendiary magistrate(104) can sit alone. In cases of alleged murder or manslaughter, or other particularly grave crimes, juveniles will be tried in the Crown Court.(105)

Children aged 10 to 13 can be fined up to 250; young persons aged 14 to 17 can be fined up to 1,000. If aged at least 15 a young person can be sentenced to detention in a young offenders' institution, for a maximum of two years,(106) though if sentenced to custody for life the young person will remain in the young offenders' institution until the Home Secretary otherwise directs. Parents or guardians can be ordered to pay a fine on behalf of the child or young person and can even be "bound over" for something which the child or young person has done. No-one aged under 21 can be sentenced to imprisonment; loss of liberty is instead referred to as youth custody. If ordered to be held in custody pending trial juveniles are kept not in prisons but in other secure accommodation.

6. The examination of witnesses

Accused persons have the right to call witnesses on their own behalf and to cross-examine witnesses called by the prosecution. By and large witnesses cannot testify about statements made by persons who are not subject to questioning in court -- this is the rule against hearsay evidence, which is currently under review by the Law Commission.(107) A person can submit written evidence rather than oral testimony in court if, having already made a statement to an investigating officer, he or she is now afraid to give oral evidence.(108) No actual evidence of the witness's fear needs to be put before the court -- the court can deduce the fear from the witness's demeanour.

The victim of an offence in question has no right to participate at any stage of the trial, although of course he or she will often be called as a witness.

7. The burden of proof(109)

The burden of proof always rests on the prosecution(110) and the required standard is proof "beyond a reasonable doubt" (as opposed to proof "on the balance of probabilities", or "on the preponderance of the evidence", in civil cases). But the burden of proving that the defendant's conduct is exempted from the criminal legislation in question is, generally speaking, placed on the defendant(111) and in recent years there has been a legislative trend towards imposing even the legal (as opposed to the mere evidential) burden on the accused, as well as towards creating offences of strict liability.(112)

Unlike in some European jurisdictions, defendants are permitted to plead guilty to charges laid against them at the so-called "arraignment" stage. In such instances, before a verdict and sentence are officially pronounced the prosecution will still outline the facts and any mitigating factors for the benefit of the magistrate or judge (no jury will be empanelled in Crown Court cases). If the decision to plead guilty is unequivocal and voluntary then a judge is entitled to deny the defendant's request at a later stage to change the plea to one of not guilty.(113)

8. Judges

The most senior judges (those in the House of Lords and the Court of Appeal) are appointed, in the name of the Queen, by the Prime Minister on the advice of the Lord Chancellor (the government's chief law minister, with a seat in the Cabinet). All other judges are appointed directly by the Lord Chancellor, again in the name of the Queen. Judges cannot be members of Parliament and their salaries cannot be reduced by Parliament. However the Lord Chancellor is entitled to sit as a judge in the House of Lords, the highest court in the land, as well as acting as Speaker of that House in its legislative capacity. By convention he or she does not sit in cases which involve the government, although recently this convention was broken in a case involving the interpretation of legislation on personal taxation.(114)

Persons can be appointed as judges only if they have first served as barristers or solicitors. They are all immune from being sued for whatever they say in court but a litigant can apply to have the judge "recused" if the litigant believes that the judge may be biased (perhaps because of an earlier involvement in the case). Senior judges hold office "during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament".(115)

Judges cannot examine the proceedings of Parliament(116) or, subject to the overriding duty to comply with the European Communities Act 1972, strike down any part of an Act of Parliament.(117) They can, however, take into account, when interpreting an ambiguous legislative provision, statements made by government Ministers when speaking in Parliament.(118)

In civil cases judges determine the facts and the law, issuing a judgment and awarding remedies, including compensation, if appropriate. Juries are usually involved only in cases of alleged defamation or false imprisonment; recently jury awards in such cases have been exorbitant and have been reduced on appeal(119) or on application to Strasbourg.(120) In criminal cases only Crown Court trials are heard by a jury as well as a judge, although, as already noted, in Northern Ireland trials of alleged terrorists are conducted without a jury. The main function of a judge in a jury trial is to ensure that the jury has regard only to the evidence adduced in court. The jury has no role to play in the sentencing process. Appeals from magistrates' courts in cases involving defendants aged 17 or under are heard by judges sitting with lay assessors.

When jurors are selected, whether for civil cases, criminal cases, or inquests, they are chosen at random from the electoral register and usually consist of 12 people.(121) Every registered elector aged between 18 and 70 is qualified for selection, provided he or she has resided in the United Kingdom for at least five years since the age of 13, but certain individuals (e.g. persons given a prison sentence in the last 10 years, or placed on probation in the past 5 years) are disqualified from serving and others (by reason of their jobs, for example, lawyers, ministers of religion, doctors, nurses and chemists) are exempt.(122) The defence can object to the selection of a prospective juror if it can show to the satisfaction of the judge that there is a risk of bias. The prosecution can, without giving any reasons, require a prospective juror to "stand by", in which event he or she will serve on the jury only if enough jurors cannot be selected from the rest of the panel.(123) A juror can later be dismissed from the jury panel if there is evidence of bias, including racial bias, but this needs to be strong before the judge is under a legal obligation to discharge the whole jury.(124) A jury is selected to serve not just for one particular trial but for all the hearings in a particular court or place over a prescribed period of time (e.g. one month).

9. Decision-making

The overall acquittal rate for those dealt with by the Crown Court in 1995 was just 17 per cent, largely because 64 per cent of all those charged pleaded guilty. Of those acquitted, 36 per cent were found not guilty by a jury, the rest being acquitted on the order of a judge during the trial.(125) Juries do not give reasons for their verdicts and it is a criminal offence to seek information from a juror about what went on during the jury's deliberations.(126) Nor is there any legal obligation on magistrates to give reasons for their decisions. In Northern Ireland judges in Diplock trials in Crown Courts are obliged to give reasons, though not necessarily in writing.(127) Judgments in all Crown Court and High Court cases are available in transcript form, though a charge may be made for the preparation of this.

There is a common law presumption, which is rebuttable, that a person cannot be convicted under an ex post facto law. However many exceptions to this principle exist under statute law(128) and the essence of judge-made law is that it applies retrospectively to the case in hand as well as prospectively to all future cases. When the House of Lords recently changed the law on marital rape(129) the accused made an application to Strasbourg relying on Article 7 of the European Convention on Human Rights, which outlaws retrospective laws. The European Court of Human Rights, however, has since found no inconsistency between the English method of judicial law-making and Article 7.(130)

A person cannot be sent to prison for owing a civil debt, although non-payment of taxes or maintenance is still so punishable. Vicarious liability for criminal activity is in general not permitted: there must always be an actus reus and a mens rea on the part of the person (legal or natural) who is being punished. Companies, for instance, can be held guilty of manslaughter. The death penalty has been abolished(131) except for some offences which have not been prosecuted for many years, including treason, although the Bill of Rights 1689 still protects people against "cruel and unusual punishments".(132) When sentencing a person a court may well take into account the way in which he or she defended him- or herself and the way in which he or she co-operated with the prosecution; in particular the defendant's willingness to plead guilty is relevant.(133) But the prosecution is not permitted to suggest to the court what the sentence for the alleged offender should be. A convicted person may at any time seek a pardon,(134) and recently the Crown's prerogative of mercy in this regard has been held liable to judicial review,(135) but while a pardon secures a person's release from prison the conviction still stands until (if ever) quashed by the Court of Appeal. No other general provisions for amnesty exist, but under the Rehabilitation of Offenders Act 1974 prison sentences of up to 30 months can become "spent" after a period of time has elapsed (viz. 7 years for sentences up to six months, 10 years for longer sentences). A person whose conviction has been quashed after a long period in prison, or who has been pardoned, is usually made an ex gratia payment of compensation.

1. For useful discussions of this topic see Geoffrey Roberston, Freedom, the Individual and the Law, 6th ed., 1989, chap.8; Vaughan Bevan and Ken Lidstone, The Investigation of Crime: A Guide to Police Powers, 1991; Jenny McEwan, Evidence and the Adversarial Process: The Modern Law, 1992; John Wadham (ed.), Your Rights: The Liberty Guide, 5th ed., 1994, chaps.6-8; Andrew Sanders and Richard Young, Criminal Justice, 1994; Richard Card and Richard Ward, The Criminal Justice and Public Order Act 1994, 1994; Steve Uglow, Criminal Justice, 1995; Conor Foley, Human Rights, Human Wrongs: The Alternative Report to the United Nations Human Rights Committee, 1995; Richard Card, Criminal Law, 13th ed., 1995, chaps. 2, 4 and 5; Richard May, Criminal Evidence, 3rd ed., 1995. The writer of the present paper had the benefit of reading a similar paper prepared by Professor Leonard Leigh of the London School of Economics and Political Science; it must be emphasised, however, that Professor Leigh bears no responsibility for any errors remaining in the present paper.

2. For further details see Brice Dickson, The Legal System of Northern Ireland, 3rd ed., 1993.

3. For details see the Lord Chief Justice's Practice Note (Mode of Trial Guidelines) [1990] 1 W.L.R. 1439.

4. On 1 January 1996 there were 92 of these in post in England and Wales: Judicial Statistics: Annual Report 1995, Cm 3290, p.91. In Northern Ireland all magistrates' courts are presided over by professionally qualified Resident Magistrates, of whom there are 15.

5. On 1 January 1996 there were 30,326 justices of the peace in England and Wales: Id. Table 9.4.

6. The latest Report covers 1994-95: House of Commons Paper 750.

7. Sanders and Young (note 1), p.431. In 1995 there were 26,079 appeals disposed of; 8,064 of these were allowed (Judicial Statistics: Annual Report 1995, Cm 3290, Table 6.14).

8. In 1995 there were just three of these appeals. In Northern Ireland appeals from magistrates' courts are heard by county courts, although it is still possible to appeal instead by way of "case stated", on a point of law only, to the Court of Appeal. A further appeal to the House of Lords is also possible.

9. See generally John Spencer, "Judicial Review of Criminal Proceedings," 1991, Crim. L.R. 259.

10. In 1995, 94,705 defendants were dealt with: Judicial Statistics: Annual Report 1995, Cm 3290, Table 6.9.

11. Criminal Justice and Public Order Act 1994, s.44 and Sched.4. This provision was not extended to Northern Ireland and on 6 August 1996 the government announced that committal proceedings would be retained there.

12. ss.44-47 and Sch.1.

13. [1987] 1 W.L.R. 1671. In Northern Ireland there are no circuit judges and the allocation of criminal business between High Court and county court judges is differently based.

14. They are respectively known as deputy circuit judges and assistant recorders.

15. For a discussion of the phenomenon in Northern Ireland, see Kenny Mullan, "The Use of Deputy Judges in Northern Ireland", Annual Report for 1994-95 of the Standing Advisory Commission on Human Rights, HC 506, pp.149-183.

16. In Northern Ireland there is a unitary Court of Appeal.

17. Criminal Appeal Act 1968, s.1(2) as amended by the Criminal Appeal Act 1995, s.1.

18. Criminal Justice Act 1988, ss.35-36.

19. E.g. indecent assault on a woman or a man, threats to kill or cruelty to a person under 16. See the Criminal Justice Act 1988 (Reviews of Sentencing) Order 1994. By Sch.9, para.34, of the Criminal Justice and Public Order Act 1994 the Home Secretary can extend the Attorney-General's referral power to cover cases of a particular description (rather than particular offences).

20. Criminal Justice Act 1972, s.36.

21. Connolly v. D.P.P. [1964] A.C. 1254.

22. Criminal Appeal Act 1968, s.2.

23. The Commission will have jurisdiction in England, Wales and Northern Ireland, but not Scotland.

24. Hansard, Vol. 256, cols. 306 and 308 (written answer), 9 March 1995.

25. In Findlay v. UK, heard before the Court on 25 September 1996. For the Commission decision see E.H.R.R., vol. 21, 1996, CD7.

26. The juryless courts (colloquially referred to as Diplock Courts because they were created on the recommendation of a Commission chaired by Lord Diplock in 1972) now exist by virtue of the Northern Ireland (Emergency Provisions) Act 1996, s.10. A review of this Act and other "emergency" laws is currently being conducted by Lord Lloyd and is due for publication before the end of 1996. For the latest full-scale analysis of the operation of the Diplock Courts see J. Jackson and S. Doran, Judge Without Jury, 1995.

27. As most JPs are not legally qualified, doubts persist over their complete independence and impartiality.

28. Police and Criminal Evidence Act 1984, s.24.

29. The category also includes some specific offences which have a lesser maximum penalty.

30. Police and Criminal Evidence Act 1984, ss.25-26.

31. Prevention of Terrorism (Temporary Provisions) Act 1989, s.14.

32. Id. s.42(1).

33. Police and Criminal Evidence Act 1984, s.116 and Sch.5.

34. Id. s.43.

35. Id. s.40.

36. Report of the Royal Commission on Criminal Procedure, Cm.2263, 1993, para.20.

37. Emergency Powers Act 1920, as amended by Emergency Powers Act 1964.

38. Prevention of Terrorism (Temporary Provisions) Act 1989, s.14.

39. Brannigan and McBride v. UK, E.H.R.R., vol. 17, 1993, 539.

40. E.g. no-one faced charges in relation to the wrongful conviction of Stefan Kiszko, who was released in 1992 after serving 15 years for a child murder he did not commit, because of the death of the detective who had headed the original inquiry.

41. Ex parte Gillen [1980] N.I. 40.

42. Criminal Justice Act 1988, s.134.

43. Police and Criminal Evidence Act 1984, ss.83-100. A similar system operates in Northern Ireland, where the equivalent supervisory body is called the Independent Commission for Police Complaints (see the Police (NI) Order 1987, as amended by the Police (Amendment) (NI) Order 1995); an official review of the police complaints system in Northern Ireland is currently being conducted by Dr. Maurice Hayes.

44. Andrew Ashworth, The Criminal Process: An Evaluative Study, 1994, pp.101-103.

45. R v. Samuel [1988] Q.B. 615. It apparently exists at common law as well as under statute: R v. Chief Constable of South Wales, ex parte Merrick [1994] 1 W.L.R. 663.

46. For instance in R v. Absolam (1988) 88 Cr.App.R. 332.

47. Murray v UK, E.H.R.R., vol. 22, 1996, 29.

48. See the Companies Act 1985, ss.434 and 436. In Saunders v. UK the European Commission of Human Rights decided that a trial had been unfair because Saunders had been compelled to answer questions or risk imprisonment for contempt of court: E.H.R.R., vol. 18, 1994, CD 23. The Court hearing in this case took place in February 1996.

49. Criminal Evidence (NI) Order 1988, arts.3-6. See John Jackson, [1990] Crim.L.R. 404 and [1995] Crim.L.R. 587; Rosemary Pattenden, [1995] Crim.L.R. 602; Peter Mirfield, [1995] Crim.L.R. 612.

50. Murray v. UK (note 47); Roderick Munday [1996] Crim.L.R. 370.

51. See note 47.

52. R v. Cowan [1995] 3 W.L.R. 818.

53. Murray v. D.P.P. [1994] 1 W.L.R. 1.

54. The law on confessions is different in Scotland, where corroboration is normally required.

55. Police and Criminal Evidence Act 1984, s.76(2).

56. Northern Ireland (Emergency Provisions) Act 1996, s.12; judges also retain a common law discretion to exclude evidence.

57. In R v. Miller, Paris and Abdullahi, (1992) 97 Cr.App.R. 99 (the so-called Cardiff Three case), the Court of Appeal quashed a conviction of a young man with learning difficulties after hearing that he had been subjected to 14 hours of interrogation, spread over 19 separate sessions in a four-day period. He had eventually "confessed" after making 300 denials.

58. Police and Criminal Evidence (NI) Order 1984, s.78(1).

59. Id. s.82(3).

60. Id. s.76(5).

61. R v. Smith [1959] 2 Q.B. 35; see Peter Mirfield, "Successive Confessions and the Poisonous Tree," 1996, Crim.L.R. 554.

62. Kuruma v. R [1955] A.C. 197.

63. Criminal Justice and Public Order Act 1994, s.27.

64. Bail Act 1976, s.3(6).

65. Bail Act 1976, s.6 (the offence of absconding).

66. Bail (Amendment) Act 1993.

67. For Northern Ireland see the Prison Rules (NI) 1995.

68. Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended. In Northern Ireland there are as yet no time limits laid down by legislation -- only by administrative guidelines.

69. There is also a non-mandatory requirement that charges must be officially preferred against a person committed for trial within 28 days of the committal proceedings ending: Indictments (Procedure) Rules 1971, rule 5.

70. Judicial Statistics: Annual Report 1995, Cm 3290, Table 6.15. No statistics are published on the average time elapsing between first appearance in court and committal.

71. "Time of Trial Statistics" (1995) 159 J.P. 581.

72. In Northern Ireland an accused person cannot be asked to make contributions towards the cost of criminal legal aid granted, but aid may still be denied entirely.

73. Judicial Statistics: Annual Report 1995, Cm 3290, Tables 10.2 and 10.3.

74. Especially R v. Saunders and others (20 September 1989, unreported), R v. Ward [1993] 1 W.L.R. 619 and R v. Keane [1994] 1 W.L.R. 746.

75. s.3(1)(a).

76. s.5(6).

77. s.7(2).

78. Roy Amlot QC, as reported in The Times, 30 September 1996.

79. Id., reporting the views of Dr. Angela Gallop.

80. s.3(6). Under the common law, in highly exceptional cases, where even disclosure of the existence of the application for a court ruling would be contrary to the public interest, an application can be made without any notice: R v. Davis and others [1993] 1 W.L.R. 613.

81. ss.14-15.

82. R v. Blackledge (No.2), The Times, 8 November 1995 (Court of Appeal).

83. Criminal Procedure and Investigations Act 1996, s.5(7).

84. Crown Court Rules made under the Police and Criminal Evidence Act 1984, s.81.

85. Criminal Justice Act 1987, s.9.

86. Attorney-General v. Leveller Magazine [1980] A.C. 440.

87. Official Secrets Act 1920, s.8.

88. Children and Young Persons Act 1933, s.37.

89. Ex parte McNeill (17 June 1994, unreported) and Doherty v. Ministry of Defence [1991] 1 N.I.J.B. 68.

90. Magistrates' Courts Act 1980, s.8; see David Cocker and Michael Levi, "Pre-Trial Publicity and its Treatment in the English Courts," 1996, Crim.L.R. 622.

91. Sunday Times v. UK, E.H.R.R., vol. 2, 1979, 245.

92. In Attorney-General v. English [1983] 1 A.C. 116 the House of Lords held that an article on mercy killing published during the trial of a doctor for killing a disabled child was not in contempt.

93. Sexual Offences (Amendment) Act 1976, s.4.

94. Criminal Justice Act 1988 (repealing the Sexual Offences (Amendment) Act 1976, s.6).

95. Attorney-General v. News Group Newspapers plc [1989] Q.B. 110.

96. The taking of photographs and the making of sketches with a view to publication are also prohibited by the Criminal Justice Act 1925, s.41.

97. There can be no trial of a person who has died.

98. Judith Laing, "The Mentally Disordered Suspect at the Police Station," 1995, Crim.L.R. 371.

99. Police and Criminal Evidence Act 1984, s.77.

100. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. For the position in Northern Ireland, see the Mental Health (NI) Order 1986, art.49.

101. Homicide Act 1957, s.2(1). There is no comparable provision in Northern Ireland.

102. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991; Mental Health (NI) Order 1986, art.50.

103. This has recently been confirmed by the House of Lords: C (A Minor) v. D.P.P. [1996] 1 A.C. 1.

104. See text at note 4 above.

105. Magistrates' Courts Act 1980, s.24.

106. Criminal Justice and Public Order 1994, s.17.

107. This is the official body which considers items of law reform. See its Consultation Paper No.138 and John Spencer, "Hearsay Reform: A Bridge Not Far Enough?" 1996, Crim.L.R.

108. Criminal Justice Act 1988, s.23(3).

109. Paul Roberts, "Taking the Burden of Proof Seriously," 1995, Crim.L.R. 783.

110. Woolmington v. DPP [1935] A.C. 462.

111. R v. Flood, 1992, Crim. L.R. 509.

112. Andrew Ashworth and Meredith Blake, "The Presumption of Innocence in English Criminal Law," 1996, Crim.L.R. 306.

113. In R.O. v. UK, E.H.R.R., vol. 18, 1994, CD 212, the European Commission of Human Rights declared inadmissible an application concerning a rejected request to change a plea to not guilty that had been made nine months after the initial plea of guilty.

114. Pepper (Inspector of Taxes) v. Hart [1993] A.C. 593.

115. Supreme Court Act 1981, s.11(3). By s.11(8) the Lord Chancellor may also declare a judge's office to have been vacated on medical grounds.

116. The Bill of Rights 1689, Art.9, provides: "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This was recently applied in Prebble v. Television New Zealand Ltd [1995] 1 A.C. 321 (Privy Council).

117. R v. Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 A.C. 1.

118. Pepper (Inspector of Taxes) v. Hart [1993] A.C. 593.

119. Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] Q.B. 670 (Court of Appeal).

120. Tolstoy Miloslavsky v. UK, E.H.R.R., vol. 20, 1995, 442. A 1.5 million award was held to be not "necessary in a democratic society" within the meaning of Art. 10(2) of the European

Convention on Human Rights.

121. In Northern Ireland juries in civil cases consist of 7 people. Juries in inquests (before coroners) consist of between 7 and 11 people.

122. Juries Act 1974, as amended by the Juries (Disqualification) Act 1984. For the position in Northern Ireland, see the Juries (NI) Order 1996.

123. There are no legal rules on this, only guidelines issued by the Attorney-General.

124. In Gregory v. UK, E.H.R.R., vol. 19, 1995, CD 82, the European Commission of Human Rights declared inadmissible an application concerning breach of the fair trial provisions in Article 6 of the European Convention because the trial judge had acted properly to suggestions that racial bias had manifested itself during the jury's deliberations.

125. Judicial Statistics: Annual Report 1995, Cm 3290, Table 6.9.

126. Contempt of Court Act 1981, s.8.

127. Northern Ireland (Emergency Provisions) Act 1996, s.11(5).

128. E.g. War Crimes Act 1991.

129. R v. R [1992] 1 A.C. 599.

130. S.W. v. UK and C.R. v. UK, 22 November 1995 Series A, Vols. 335-B and 335-C.

131. Murder (Abolition of Death Penalty) Act 1965. It was abolished in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973, s.1.

132. R v. Secretary of State for the Home Department, ex parte Herbage (No. 2) [1987] Q.B. 1077 (Court of Appeal).

133. Criminal Justice and Public Order Act 1994, s.48.

134. Hansard, Vol. 256, col. 306 (written answer), 9 March 1995.

135. R v. Secretary of State for the Home Department, ex parte Bentley [1994] Q.B. 349 (Divisional Court). The court held that the Home Secretary had failed to recognise that the prerogative of mercy could be exercised by the grant of a conditional pardon as well as by the grant of a full pardon.