English for social workers I session 1, 5 oct 2009

English for social workers Isession 4, 28 oct 2013Miljen MatijaeviE-mail: miljen.matijasevic@gmail.comOffice: G10, room 6 (1st floor)Tue, 11:30-12:30

Todays sessionRevision of the last session

Criminal Procedure in the UK

The Significance of a Constitution / The Constitution of the Republic of CroatiaRevision of the last sessionLegal Aid Civil Procedure in the UKRevision Legal AidWhat do the following terms refer to? What are their Croatian equivalents?

LitigationIncomeQueryAssetsDefamationEligibleRevision Legal AidAnswers

Litigation parnienjeIncome dohodakQuery upitHire-purchase kupnja na otplatuAssets imovinaDefamation klevetaEligible kvalificiran, pogodanRevision Legal AidWhat two types of legal aid do people usually need?What are the means and merit tests?What are some tasks of the Legal Services Commission?What types of cases (do not) usually qualify for free legal aid?

Revision Civil ProcedureWhat is the civil procedure?Who are the parties? Is the state involved?What are the possible remedies in civil cases?What is a summons?What are the defendant's options upon receiving the claim?What do you know about the three regimes of trial?What is the difference between the inquisitorial and adversarial approaches?

Criminal Procedure in the UKUnit 10CRIMINAL LAW deals with certain forms of conduct for which the state reserves punishment, such as murder and theft

Criminal Lawthe parties (UK):

THE CROWN i.e. the statee.g. R v Collins the Crown against CollinsR stands for Regina, i.e. Rex, latin: Queen or King

DEFENDANT the person being prosecuted, the alleged criminalCriminal Lawthe state is the prosecutor has interest in fighting crimecriminal justice is administered with the help of the policethe police investigate a crime, apprehend suspects and detain them in custodyCriminal Lawdirect impact on the criminal procedureThe Human Rights Act 1998 introduced the rights laid down in the European Convention on Human rights (Art 5 and 6) into English law in 2000introduces provisions governing the right to a fair trial, presumption of innocence (Art 6) and the right to liberty and security (Art 5)all English statute and case law must now be measured against these provisionsHuman Rights Act 1998There are three categories of criminal offence in the UK:Summary offences (or petty crimes)least serious criminal offences; triable in the Magistrates Court; jury trial not availableIndictible offencesmost serious offences, triable in the Crown Court; more severe penalties are available: trial by juryTriable either waycriminal offences triable either in the Magistrates Court or in the Crown CourtCategories of criminal offenceMost prosecutions undertaken by:Crown Prosecution Service (CPS)

Other special prosecution bodies:Serious Fraud Office (SFO)Serious Organised Crime Agency (SOCA)The ProsecutorsSTANDARD OF PROOF

in criminal trials, the burden of proof is on the prosecution, who, unlike in civil trials, must prove guilt beyond reasonable doubt

Criminal proceedingsupon investigation of a criminal act, the police may apprehend suspects and decide whether the offender should be prosecutedif so, a file is sent to the CPSCPS then decides whether there is a realistic prospect of convictionthey must be sure that the evidence is legally admissible and reliable, taking account of the witnesses.Starting Proceedingsnext they must consider whether a prosecution would be in the public interestcriminal proceedings may be initiated by the serving of a requisition to appear in court (a.k.a. summons), or a warrant of arrest, issued by a Magistrates Courtprosecution is not initiated in all cases, but the offender may only be cautionedStarting Proceedingsin many cases of petty crimes, instead of being prosecuted, offenders receive a police cautionthis is an official warning intended to:deter (first-time) offenders from re-offending, i.e. committing the act another timeremove the necessity of a court appearancedeal quickly with less serious offendersthis is not a conviction, but results in a criminal record may be considered in future trials as evidence of bad characterCautionthe defendant has a right not to say anything, both in the police station and at trialsince the entry into force of the Criminal Justice and Public Order Act 1994, the silence may be adversely interpreted in the court, i.e. the silence can be taken as an indicator of possible guilt on the part of the defendant

The Right to Silencethe requirement to disclose all evidence and defence/prosecution materials to the other party in the proceedingsIt is a fundamental aspect of the right to a fair trial that criminal proceedings (...) should be adversarial and that there should be equality of arms between the prosecution and defence. (Rowe v UK)Disclosurehowever, the European Court of Human Rights warned that entitlement to disclosure of relevant evidence is not an absolute rightthree factors that justify withholding of evidence:national securityprotection of witnessespreserving secrecy in police investigationsDisclosurecases are brought before the Magistrates Courtthe Court evaluates the case and may proceed to sentencedecide that the matter is too complex or serious for their jurisdictionif the case is found to be more complex, it is committed to the Crown Court, where more severe penalties are available, as well as a jury trialCriminal proceedings95% of criminal cases are categorized as summary offences and dealt with by the Magistrates Courtthese offences include: traffic violations, drunk and disorderly behaviour, assaults, minor criminal damage cases, cases prosecuted by government departments or agenciesif the defendant pleads guilty upon being charged, court appearance is avoidedNo case to answer also available

Summary offencesthese offences include theft, drug offences, some acts of violence against the personthe defendant given the option to select the mode of trial summary trial or trial on indictment in the Crown Court (before a jury)they must be well informed of the procedures and possible penalties for each of the modesthe court may, on the other hand, deem the case too complex or serious and refer it to the Crown Court, seeing as more severe penalties are available thereTriable either wayserious offences, such as rape, murder, fraud etc.trial by indictment the Crown Court before a jurypre-trial legal argument stage beneficial for the accused because the case can be dismissed before trial due to unreliable evidence or witnessesthe judge has to assess whether the evidence is sufficient for a possible conviction by juryif a not guilty plea is entered, and the evidence is considered reliable, the case proceeds to trialIndictable offencesa jury of 12 is sworn inafter cross-examination, the judge sums up the evidence and the facts of the case to the jury and the jury retiresunanimous verdict no longer required, but instead a majority of 10 out of 12 jurorsif more than 2 jurors are opposed hung jury trial abandonedthe prosecution may request a retrialif the jury convicts, the judge proceeds to sentenceIndictable offences trial by juryTriable either way prosMagistrates courtCrown courtMaximum prison sentence: 6 months for one offence, 12 months totalJuries find defendants not guilty more often than magistrates

Harder to convince 10 jurors of guilt beyond reasonable doubt than 1-3 magistratesVocabulary practiceExplain and translate the following legal termsINDICTABLE OFFENCEOFFENDERRE-OFFENDLEGALLY ADMISSIBLE AND REALIABLE EVIDENCEWARRANT OF ARRESTUNLAWFUL ARRESTDEPRIVE sbd OF LIBERTYVocabulary practice 1Explain and translate the following legal termsINDICTABLE OFFENCE teko kazneno djeloOFFENDER poinitelj kaznenog djelaRE-OFFEND ponovno poiniti kazneno djeloLEGALLY ADMISSIBLE AND REALIABLE EVIDENCE pravno prihvatljivi i pouzdani dokaziWARRANT OF ARREST uhidbeni nalog, nalog za uhienjeUNLAWFUL ARREST protupravno uhienjeDEPRIVE sbd OF LIBERTY liiti nekoga slobodeVocabulary practice 1Explain and translate the following legal termsSUMMARY OFFENCETRAFFIC VIOLATIONACQUITTALINITIATE A CRIMINAL PROCEEDINGPROVE GUILT BEYOND REASONABLE DOUBTALLEGED CRIMINALVocabulary practice 2Explain and translate the following legal termsSUMMARY OFFENCE lake kazneno djeloTRAFFIC VIOLATION prometni prekrajACQUITTAL osloboenje optubeINITIATE A CRIMINAL PROCEEDING pokrenuti kazneni postupakPROVE GUILT BEYOND REASONABLE DOUBT dokazati krivnju izvan svake sumnjeALLEGED CRIMINAL navodni poinitelj kaznenog djelaVocabulary practice 2Translation practiceIn the determination of his civil rights and obligations and of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.The Right to a Fair Trial (Art 6)Everyone charged with a criminal offence has the following minimum rights:To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;To have adequate time and facilities for the preparation of his defence;To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free if the interests of justice so require;To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;To have the free assistance of an interpreter if he cannot understand or speak the language used in court.The Right to a Fair Trial (Art 6)The Significance of Constitution and Constitutionality in a Democratic SocietyThe Constitution of the Republic of CroatiaUnit 12the supreme legal act, to which legislation and other regulations must conformthe basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it a written instrument embodying the rules of a political or social organization

What is a constitution?Lays down the key principles on which a society, political and legal system are builtSets out the organisation of governmentGuarantees rights and freedoms of its citizensStrategic political act of a state and of a peopleLegitimizes a democratic state before the international communityFacilitates stability

Importance of constitutionsTypes of constitutionfederal (multilayered)*written*rigidunitary*unwritten*flexibleThe Constitution of the UKNot a single document

Unwritten contained in may pieces of legislation (statutes), case law and convention (!)

Monarchy BUT Parliamentary supremacyParliament makes laws, appoints the executive, the judiciary

Promulgated on 22 December 1990, amended in 1997, 2000, 2001 and 2010Contains the following sections:Historical foundationsBasic provisionsProtection of human rights and fundamental freedomsOrganization of governmentThe Constitutional Court of the Republic of CroatiaLocal and regional self-governmentInternational relationsAmending the ConstitutionFinal provisionsThe Constitution of the Republic of CroatiaHistorical foundationsOutlines the history of the Croatian state, i.e. the political idea of Croatia as an independent state from the 7th century onwardsDraws upon the legacy of the rejection of communism and the political changes in the late 1980s and of the Homeland War

Respecting the will of the Croatian nation and all citizens, resolutely expressed in the free elections, the Republic of Croatia is hereby founded and shall develop as a sovereign and democratic state in which equality, freedoms and human rights are guaranteed and ensured, and their economic and cultural progress and social welfare promoted. The Constitution of the RCBasic provisions

Define the Republic of Croatia as a unitary and indivisible, sovereign democratic and social stateLay down the most fundamental features of the state: organisation of government, democratic principles, separation of powers, political parties, armed forces, the national flag, coat of arms, anthem, language and script, and the capital cityThe Constitution of the RCProtection of human rights and fundamental freedoms

Set out the fundamental rights and freedoms of Croatian citizensTranspose the provisions of the UN Convention of Human Rightsequality before the law, presumption of innocence, right to a fair trial, right to appeal court and administrative decisions, etc.The Constitution of the RCProtection of human rights and fundamental freedoms

the right to life (prohibits the death penalty), freedom, freedom of movement, private life, communication, religion, beliefs, etc.economic and social rights (work, property, social security, strike, family relations, education, etc.)The Constitution of the RCOrganization of government

These provisions lay down the organisation, rights, duties and powers of:the Croatian Parliament, the President of the Republic of Croatia, the Government of the Republic of Croatia, the Judiciary, and the State Attorneys OfficeThe Constitution of the RCThe Constitutional Court of the RC

Consists of 13 judges, appointed by the Croatian Parliament for an 8-year mandateSelected from the ranks of reputable jurists, judges, state attorneys and attorneysNot an actual court within the RC court system

The Constitution of the RCThe Constitutional Court of the RC

The Courts main tasks are as follows:to decide on the conformity of laws with the Constitution, and of other regulations with the law and the Constitutionto decide on constitutional complaints against individual court or administrative decisions (e.g. If the violate human rights and fundamental freedoms, etc.)to decide on jurisdictional disputes between the 3 branches of governmentto decide on the impeachment of the President of the RCto supervise the constitutionality and legality of elections and referendaThe Constitution of the RCLocal and regional self-government

This section regulates the right to local and regional self-government, the division into local administrative units (counties, municipalities, cities), local electionsLays down the scope of competence of local self-government units, such as the organization of housing and urban planning, public utilities, child care, social welfare, primary health services, education and elementary schools, culture, physical education and sports, etc. The Constitution of the RCInternational relations

Concerns the areas of international agreements and association and secessionIA regulates competence over and the ratification of international agreements, according to their contentAssociation and secession regulates the procedure of acceding to alliances with other states who can initiate the procedure and the number of votes in Parliament, i.e. on the referendum are necessary for such a decision to be passedThe Constitution of the RCAmending the Constitution

This section regulates the procedure of amending the ConstitutionAmendments may be proposed by one fifth of representatives in the CP, the President and the Government of the RCThe decision to amend must be approved by the majority of representativesAmendments may be adopted only if a two-thirds majority of all representatives vote in favourThe Constitution of the RCTranslation practiceTranslate the following excerpts from the Constitution of the RCFrom the Constitution of the RCArticle 1The Republic of Croatia is a unitary and indivisible democratic welfare state.Power in the Republic of Croatia derives from the people and rests with the people as a community of free and equal citizens.The people exercise this power through the election of representatives and through direct decision-making.The Constitution of the RCArticle 4In the Republic of Croatia government shall be organized on the principle of separation of powers into the legislative, executive and judicial branches, but also limited by the constitutionally-guaranteed right to local and regional self-government.The principle of separation of powers encompasses forms of mutual cooperation and reciprocal checks and balances as stipulated by the Constitution and law.The Constitution of the RCArticle 5In the Republic of Croatia, laws shall comply with the Constitution. Other regulations shall comply with the Constitution and law.All persons shall be obliged to abide by the Constitution and law and respect the legal order of the Republic of Croatia.The Constitution of the RCArticle 6The right to establish political parties shall be unrestricted.The internal structure of political parties shall comply with fundamental constitutional democratic principles.Political parties shall publicly disclose the sources of their finances and assets.Political parties which, in their platforms or by violent action, intend to undermine the free democratic order or threaten the existence of the Republic of Croatia shall be deemed unconstitutional. The Constitutional Court of the Republic of Croatia shall decide on such unconstitutionality.The status and financing of political parties shall be regulated by law.The Constitution of the RC