A Comparison of England’s Criminal Court System With the United States
Last year, I had the opportunity to travel to London, England to observe their criminal court system for a week. This trip was put together by the California State Bar Association. As a criminal defense attorney practicing in America, it was a wonderful experience to observe three or four different English criminal courts. After several hours of observation, our group had an opportunity to visit with the judge and lawyers from that session. Below find a comparison between the two systems.
1. What standard of proof is required before a formal charge is issued to a citizen?
Very similar to the United States, the English standard for the issuance of a formal charge is “reasonable suspicion” that a crime or criminal offense has occurred.
2. Generally speaking, how is a formal charging document issued?
Again, in a procedure very similar to the United States, the police and/or the Crown’s Prosecution Service are the ones who draw up and issue a formal charging document.
3. Does a defendant have the right to an attorney?
In both countries, yes.
4. When is a defendant advised of their right to an attorney, and at what stage of the proceedings is an attorney available to them?
An English citizen is advised upon their arrest and prior to being questioned by police that they have the right to an attorney. Basically, this procedure is virtually identical to the procedure in the United States as to a “Miranda” warning.
5. Does a defendant in England have the right to examine the prosecution’s case file (reports, witness statements, forensic examination results, etcetera)?
Yes, and well in advance of trial.
6. Does a defendant in England have the right to a jury trial?
Yes, but not as liberally as in the United States. For a first offense, the maximum penalty that an English citizen needs to be facing must be at least six (6) months in prison before they are entitled to a jury trial. For a second offense, at least twelve (12) months in prison. Generally speaking, all misdemeanor and 30-day type offenses (such as misdemeanor DUI, etcetera), does not afford or offer the defendant the right to a jury trial. All of these type offenses are handled as bench trials before the judge.
7. Is a defendant in England presumed innocent during the course of the proceedings?
8. What is the general makeup and conduct of a jury trial in England?
Generally, the jury is made up of twelve (12) members; however, during the course of the trial the number of active jurors can actually go down to nine (9) and the case will continue until a verdict is rendered. English law allows a 10-2 or otherwise “super majority” verdict, a unanimous verdict is not required. By contrast, most criminal courts in the United States require a unanimous verdict.
9. Does the defendant have the right to an appeal?
Yes, but only upon an alleged error of law.
Some interesting information about appellate courts in England: Previously, all criminal appeals were referred to a specific subcommittee of the “House of Lords” for a decision. Only recently have specific appellate courts been created to handle criminal appeals. An appellate court does not have the ability to strike down or nullify a law, they can only interpret a law or make a recommendation to the Parliament that a law be rewritten. The highest appellate court in England hears appeals for England, Wales, and Northern Ireland in both civil and criminal matters. Scotland has retained their own appellate court for criminal appeals. The “Privy Council” is the final appellate court available to all British republics (example: Jamaica, Trinidad and Tobago, etcetera). The “privy council” is made up of the same judges that comprise the appellate courts. The English appellate courts very rarely sit “en banc.” Depending upon the perceived importance of the matter to the general public, panels of either five (5), seven (7) or nine (9) judges will hear oral arguments and decide the case. For the most part it is a panel of three judges who hear and decide the cases. Average oral argument is around eight (8) hours per party.
10. What is the standard of proof required for a conviction in criminal court?
“Sure” is the current standard in England. Formerly it was “beyond a reasonable doubt” (as is the standard in America); but it was recently changed to “sure.”
Some generally interesting points of the English criminal judicial system are:
“Prior bad acts/prior convictions are admissible as proof to the current offense charged (example: an English defendant on trial for shoplifting second offense would have the first shoplifting conviction announced or published to the jury)
The English judiciary embraces the concept of …