Case Study Criminal Justice System Practice Case Study created on 260322

Questions

You must answer all three questions.

Q1. Bob asked his lawyer if he could face the death penalty in Scotland for the murder of George.
Discuss in detail whether this still has a legal basis in Scotland, include reform steps, legislation, what
factors triggered a change and any other relevant information.

The beginning of reform was in 1938 as the criminal justice Bill sought a complete ban on Capital
Punishment: this was suspended due to the outbreak of War. The stages of reform where the first
stage was Scotland did punish people for certain crimes such as murder by way of the death penalty.
Stage 2 is in January 1949, the Prime Minister, set up a Royal Commission on Capital Punishment.
Stage 3 this was overseen by Sir Ernest Gowers. The question was whether capital punishment
should be limited or modified, no mention at this stage of complete abolishment. The final stage was
in 1953 – the “Gowers Report” was published and recommended retention unless there was
overwhelming support for its abolition. Followed soon after by the introduction of reducing capital
punishment to certain categories of crimes. These were murder during theft, shooting, explosion,
murder of a Police Officer; otherwise, the remainder would be life imprisonment. Finally, we saw the
introduction of the Murder Act 1965, received Royal assent on 8 November 1965, abolished capital
punishment, all were life imprisonment. Section 1 “No person shall suffer death for murder, and a
person convicted of murder shall, subject to subsection, be sentenced to imprisonment for life. The
factors for abolishing capital punishment are the last person to be executed in Scotland was Henry
John Burnett aged 21 on 15 August 63 in Craiginches Prison, Aberdeen. He was convicted of the
murder of his lover’s husband.

Q2. Bob insists that his lawyer should get him off with the murder of George as this would release
him from any further or future legal process. Discuss, again cover old law, reform, new law and
exceptions. Finally factors that triggered a change in the law.

Traditionally, Scots law provided that an accused who had been acquitted of a charge after trail could
not be prosecuted again in relation to the same charges. Commonly known as the Double Jeopardy
rule. The subject came under scrutiny and into the public light following the trail for the “World’s
End” murders, when a “no case to answer” submission was upheld. Defense argued successfully that
there was not sufficient evidence to convict. Angus Sinclair acquitted in 2007. Justice had not been
done that was the feeling, the double jeopardy rule was then under the microscope, it was going to
be scrutinised. The traditional Scots term for the rule against double jeopardy was “Tholed Assize,”
which prevents a further trial following acquittal. The new law is Double Jeopardy Act 2011, the act
creates a statutory basis for the rule against trying a person twice for the same crime. The Act also
creates three narrow exceptions to this rule. S2 – tainted acquittals, S3 – admission made or
becoming known after acquittal, S4- new evidence, S11 eventual death of an injured person.

Q3. Arrest to sentence of Bob:

a). Identify each stage that Bob will face and explain each of them.

Stage 1 of the arrest is arrest, charge or released. Criminal Justice Act 2016. S1 is a police constable
may arrest without warrant if they have reasonable grounds for suspecting that a person has
committed or is committing an offence. Which bob was arrested under. Then under S3 once arrested
accused must be told they are under arrest, nature and reason. That they are under no obligation to
say anything except for example name, address and dob. Bob must also be informed that he has
intimation sent to a solicitor and access to one. Then under S5 once Bob arrives at the police station,
he again entitled to rights such as intimation sent and access to a solicitor. After that under S7 the
police must seek authorization to keep someone in custody if not charged. Bob must be told that he
will be kept in custody for a period of 12 hours under S9 and a further 12 hours under S11 again need
authorization, if a test under S14 is met. Continuation of Stage 1 is police interview and section 50.
S32 is before an interview that Bob has a right to have a solicitor present. That the right can be
waived with consent per S.33. Section 50 is a police constable must take every precaution to ensure
that Bob is not unreasonably or unnecessarily held in police custody. Police then will have to charge
or released Bob.

Stage 2 is collation of evidence. Police will have to gather in evidence including CCTV, photos, mobile
phone examination, laptop/computers/social media inquiries and statements. Results of examination
of the body and crime scene and Bob’s clothing. Recovery of any weapons used. Interview outcome.
Also, in stage 2 the COPFS will be involved from the very start. The PF from the homicide unit would
have been called out to the scene and a death report submitted to COPFS. Two pathologists mat also
have attended the scene. The PF working in deaths would liaise with the homicide unit who would
have instructed a two doctor PM. This would have included the taking of samples during the PM. The
PF may instruct further inquiries by the police acting as their agent. A police report for the crime of
murder would also have been submitted to the PF who would instruct a first appearance of accused
on petition next lawful day following arrest. Normally bail would be opposed and Bob held in
custody. Bob will normally have a solicitor who will gather in their own evidence however under
disclosure rules the Crown must disclose all their evidence, generally speaking. As a result, before any
trial process there will be three types of potential witnesses

Stage 3 as bobs facing murder therefore procedure is solemn, and the trail will take place in the
highest criminal court in Scotland the High Court of Justiciary. The accused will enter a plea, and the
trail will take place before a jury of 15 men and women. Unlike other criminal jurisdictions and
systems there are no opening speeches. The indictment is read out and the judge will address the
jury and explain their role namely “master of Facts” and the judge’s role as “master of law”. That will
include at some point that the crown must prove their case beyond reasonable doubt and that the
burden proof rests with the Crown. The PF does not have right of audience to present a case in the
High court, this will be undertaken by an Advocate Depute (AD) on behalf of the Lord Advocate and
the accused will be represented by an Advocate. The crown opens its case by calling their first
witness. The AD will take evidence from this witness, known as examination in chief, on completion
the defense will cross examine the witness. This will continue until the Crown has completed its case
and state that the Crown case is closed. The defense can at this stage make a no case to answer. A no
case to answer can be submitted by the defense on the grounds that there is insufficient evidence to
prove the case. Or that the Crown cannot prove their case beyond reasonable doubt is another way
saying that. If upheld Bob is acquitted. If not upheld the trial continues. If the trial progresses the
defense call their first witness and follow the process the Crown did with their witness’s examination
in chief then cross examination by the Crown, until they also close their case. Now both the Crown
and defense will make speeches to the jury to persuade them one-way pr other, finally the judge will
address the jury on the evidence and law. The jury will then retire to consider their decision. The jury
will eventually return with a verdict of guilty, not guilty or not proven. This may be by a majority 8 or
more or unanimous.

Stage 4 after the Trial is complete and if the accused is found not guilty or not proven they are
acquitted and free to go. However nowadays be aware of the double jeopardy rule under the Double
Jeopardy Act 2011. If found guilty the court will require a social inquiry report before sentencing. This
could take a few weeks so likely to be remanded in custody until the report is ready then sentenced
to unlimited fine and/or life imprisonment. If a person is sentenced to life imprisonment, the judge
must, by law, set a punishment part of the sentence. This is the minimum time the person must
spend in prison before they can be considered for release into the community by the Parole Board
for Scotland.

Bob’s insistence is referring to Article 6 in the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and public hearing, within a reasonable
time and by an independent and impartial tribunal established by law. Everyone charged with a
criminal offence shall be presumed innocent until proven guilty according to law. Everyone charged
with a criminal offence has the minimum right to be informed promptly, in a language they
understand, the nature and cause of the accusation. They also have adequate time and facilities for
the preparation of their defense. Also to defend themselves in person or through legal assistance, if
don’t have enough money to be given free when the interests of justice so required. They have free
assistance from an interpreter. They have the right to fairness rather than justice.

Article 8 is the right to respect for private and family life. Everyone has the right to respect for his
private and family life, his home and correspondence. There shall be no interference by a public
authority with the exercise of this right except as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety, or the economic well-being of
the country. For the prevention of disorder or crime, for the protection of health or morals and for
the protection of the rights and freedoms of others.