Comparative Criminal Law and Enforcement: England and Wales

In the United Kingdom there are three separate criminal justice systems, one each for Scotland, Northern Ireland, and England and Wales. This entry will focus on the system in England and Wales, a jurisdiction with a population of fifty-two million people.

In many jurisdictions the criminal laws or penal code can be traced to a key constitutional date when a new system of government was introduced bringing changes to the role of government in general and to criminal procedures in particular. Reforms in the field of criminal law tend to establish new obligations on citizens in the form of the criminalization of an activity, and new constraints on officials in the form of procedures that should be followed when dealing with those accused of crime. In the United Kingdom there have been key constitutional events but no one defining moment has set the foundations of the modern system of criminal justice. In contrast to many modern republics the system has evolved over a very long period of time. One key modern participant in the criminal justice system, the Justices of the Peace, can be traced back to the Justices of the Peace Act 1361. Working alongside the Justices of the Peace, usually referred to in the modern era as magistrates, is the Crown Prosecution Service, an agency established as recently as 1985. Despite the gradual evolution of the key constitutional foundations to the criminal justice system—the rule of law, parliamentary democracy, and freedoms of the individual—since the 1980s there has been a new pace of change as matters of crime, justice, law and order have dominated the political headlines and the actions of both government and citizens.

The history of legislative reform in the field helps to illustrate the growing interest in criminal justice in England and Wales. In the first eighty years of the twentieth century there were only four statutes entitled Criminal Justice Acts, enacted in 1925, 1948, 1967, and 1972. The rate of change increased with Criminal Justice Acts in 1982, 1988, 1991, 1993, and 1994 and a major piece of criminal legislation in each year since 1994: Criminal Appeal Act 1995, Criminal Procedure Act and Investigations Act 1996, Crime (Sentences) Act 1997, Crime and Disorder Act 1998, and the Youth Justice and Criminal Evidence Act 1999.

In the busy parliamentary session 1999/2000 the following laws were enacted: Powers of the Criminal Courts (Sentencing) Act, Crown Prosecution Service Inspectorate Act, Regulation of Investigatory Powers Act, and the Criminal Justice and Court Services Act.

Such reforms are in part a response to internal pressures for more effective crime control, a desire to protect citizens from bias and unfair procedures, the pursuit of greater administrative efficiency, and technological change. Pressure for reform also results from Britain's membership in the European Union, which has brought greater cross-jurisdictional cooperation and coordination in an attempt to control cross-European organized crime and to incorporate reforms such as the European Convention on Human Rights (adopted by the United Kingdom in the Human Rights Act 1998). In October 2000 the Convention comes into effect in the United Kingdom and some of the legislation in the 1999/2000 parliamentary session was to ensure compliance with the European Convention especially with regard to the surveillance powers of the police (Regulation of Investigatory Powers Act 2000). Heralded as the most significant constitutional changes in recent British history, it is likely to have a widespread impact, especially on aspects of policing, bail, and prison procedures.

The criminal justice system in England and Wales has evolved over a considerable period of time and is a unique mix of traditional and modern institutions, agencies, and procedures. The main features of this system will be outlined briefly, followed by more detailed descriptions of policing and prosecution, criminal courts, sentencing and the penal system, and the governmental and administrative context of criminal justice.

The system of government in the United Kingdom, despite some devolution in recent years, is based primarily in London. The importance of central government funding for the criminal justice agencies and courts means that there is considerable cooperation and uniformity of approach found in the three criminal justice systems in the United Kingdom. The process of harmonization is further enhanced by the increasingly important effect the European Union is having on matters such as cooperation between police forces across Europe to combat transnational crimes (particularly organized crime, money laundering, and drugs).

In the United Kingdom there is no penal code. The sources and interpretation of the criminal laws are to be found in individual Acts of Parliament (statutory sources) and decisions by judicial bodies, in particular the Court of Appeal (case law). Increasingly, decisions of the European Court of Justice have an influence on the operation of the criminal law in all member states of the European Union, including the United Kingdom.

The definition of many criminal offenses can be found in statutes. New laws introduced as bills need to pass through both the House of Commons and the House of Lords before they become Acts of Parliament. Thus the definition of burglary and the maximum punishment for it is defined in the Theft Act 1968. The other principal source of criminal law is common law, which derives not from legislation but from what originally were the customs of the people; these were subsequently used as the basis of decisions made by judges in individual cases. There are some criminal offenses that exist only in the rulings of judges. Murder and manslaughter, for instance, are common law offenses. However, the punishments and partial defenses for these two offenses are set out in statutes—Homicide Act 1957, Murder (Abolition of the Death Penalty) Act 1965, and the Criminal Justice Act 1991.

In any criminal justice system it is important to understand the origins of the definitions of criminal conduct, be it through statutory or common law sources. However, it is equally important to appreciate that laws do not enforce themselves; it is therefore necessary to understand the influences on those agencies and participants in the system who interpret and implement the law.

The "law in practice" depends on the activities and decisions of the police, prosecutors, probation and prison officers, professionals (lawyers), and lay participants (magistrates). They do not work from a single document but an array of regulations, requirements, and guidelines as to how they should undertake the task of implementing the criminal law. Thus they will have to refer to specific statutes that relate to their activity and a number of policy documents from central and local government. Furthermore, an agency's approach to making the law work in practice will be determined by the available resources, as well as the organizational culture that has developed over time regarding the appropriate way of doing business.

Although there are many factors that affect the way the criminal law is enforced in England and Wales it is particularly important to understand the influence of "adversarial justice" and the "rule of law" and how these principles shape the way that criminal justice is defined and implemented.

The defining logic determining the nature of the criminal law and its operation in England and Wales is provided by the adversarial principle. This means that a person is not considered to be guilty of a crime simply on the word of a government official. Conviction in a court requires presentation of admissible evidence that convinces the fact finder—a jury, in the case of serious crimes; for less serious crime, a stipendiary (professional and salaried) magistrate (renamed District Judges in 2000), or a panel of lay magistrates—that the evidence demonstrates the guilt of the defendant "beyond reasonable doubt." This test of the evidence is in contrast to the much lower standard of proof used in the civil courts, where facts are determined by a judge on the balance of probability ("more likely than not").

The nonconviction of a defendant following a trial or an appeal does not mean that the defendant is innocent in the common-sense meaning of the word, that is, he or she had nothing to do with the crime. The adversarial system in England and Wales does not ask whether a defendant is innocent or guilty but only whether they are "guilty" or "not guilty."

The adversarial nature of criminal justice in England and Wales means that in many respects the process of conviction for crime is the same as in the United States. The burden is on the prosecutor to establish that a crime has been committed and that they have sufficient evidence to be able to persuade a jury, beyond reasonable doubt, that the person accused both carried out the act alleged in the crime and was responsible in the sense of being considered blameworthy for the crime. This distinction between committing an illegal act and being blameworthy or culpable, reflects the distinction in English law, as in the United States, between the principles of actus reus and mens rea. Actus reus refers to the events that took place; for example, a named person, on a specified time, date, and place inflicted a knife wound on a named victim. The mens rea refers to the culpability, responsibility, or blameworthiness of the act. If the wound was inflicted by accident and without fault the defendant is not regarded as criminally responsible for the injury.

The principle of adversarial justice has been developed over many centuries, and is designed to protect the liberty and freedom of citizens. Although in any system there is a difference between the principles of a system and the way it operates in practice, government officials are answerable to the law; under this system, known as the "rule of law," police, prosecutors, courts, and prisons may only make decisions and exercise powers that are permitted through the law.

Although most criminals are convicted through their own admission of guilt and therefore a contested trial about the guilt of a defendant is not necessary, the possibility of a trial is the main safeguard of a citizen who has been wrongly accused of a crime. A citizen who becomes a suspect will normally cooperate to help establish his innocence but should he choose not to the onus is on the police to collect sufficient evidence about the crime and to pass this on to the prosecuting body to make a decision on whether or not to prosecute. The citizen accused of a crime has a number of safeguards that start at the point of questioning and arrest for a crime.

Finally as part of this introduction to the criminal justice system in England and Wales it is important to understand the different classifications of crime. The significance of the classification system is, firstly, symbolic—to indicate society's distinction between minor and more serious crimes; secondly, to determine the powers of arrest and detention of suspects; and thirdly, for procedural purposes such as deciding whether the offender is dealt with in the magistrates' court or the Crown Court. The latter deals with more serious crimes.

The Criminal Law Act 1967 abolished the distinction between felony crimes and misdemeanors and introduced the concept of arrestable and non-arrestable offenses. An arrestable offense is defined as any offense for which the sentence is fixed by law (for example, murder, which carries a mandatory sentence of life imprisonment); or for which an offender may be sentenced to imprisonment for a term of five years or more, as well as certain other specified offenses, such as going equipped for stealing. Anyone who is suspected of committing an arrestable offense may be arrested by the police or a member of the public without a warrant. Otherwise, an arrest warrant, signed by a magistrate, is required. Most serious offenses have statutory maxima that exceed five years; for instance, burglary of a dwelling house has a maximum sentence of fourteen years, and the maximum sentence for rape is life imprisonment.

For procedural purposes all criminal offenses are classified into one of three categories: indictable only, triable-either-way, or summary. An indictable-only offense may only be tried in a Crown Court before a jury, and requires an indictment which is a formal document setting out the charges against the person. Offenses in this category include murder, manslaughter, kidnapping, robbery, and rape.

Summary offenses may only be dealt with by summary justice, that is, proceedings in the magistrates' courts that deal with less serious crimes. Summary offenses are generally those that are punishable by no more than six months imprisonment or a fine of £5,000. These are the maximum sentencing powers in the magistrates' courts. Examples of summary offenses include motoring offenses such as driving after consuming alcohol or taking drugs, careless driving, and driving without a license. Non-motoring offenses that are summary include less serious forms of assault, drunkenness, and prostitution offenses.

Triable-either-way refers to the third category of offenses, examples of which include burglary, theft, and handling stolen goods, many offenses involving the possession, use, and supply of illegal drugs, and many types of assault. With this category of offense an individual case may be dealt with either in the magistrates' court or the Crown Court, and hence a pretrial decision becomes necessary, known as the mode of trial decision, which is discussed below in the section on the criminal courts.

But before a case reaches the trial stage there must first be a crime and a suspect. As the case proceeds the suspect becomes the accused and in court the defendant. These pretrial processes are outlined in the following section.

Table 1 gives statistical data for the year 1999, showing case volume at each stage of the criminal process, beginning with estimates of victimization.