Navigating through the effects of ‘Cracked Trials’

2018 ◽  
Vol 47 (2) ◽  
pp. 136-149
Author(s):  
Kevin Kwok-yin Cheng
Keyword(s):  
Hong Kong ◽  
Criminal Justice ◽  
Adverse Effects ◽  
Common Law ◽  
Criminal Procedure ◽  
England And Wales ◽  
Sliding Scale ◽  
Justice Process ◽  
Criminal Justice Process

‘Cracked trials’ have been identified as a major problem in the criminal justice process, causing wastage of resources and time for all parties involved. The sliding scale of sentence discounts was implemented in England and Wales to tackle the problem of ‘cracked trials’ through providing the greatest amount of sentence reduction for earlier guilty pleas and thereby discouraging defendants from entering late guilty pleas. The sliding scale has been recently implemented or is being considered by other common law jurisdictions. This article examines how legal practitioners in Hong Kong have navigated around the adverse effects of cracked trials prior to the implementation of the sliding scale and argues how the sliding scale of sentence discounts is problematic. The findings offer insights regarding strategies and reforms on other aspects of the criminal procedure in responding to late guilty pleas.

scholarly journals REKONSEPTUALISASI TAFSIR ASAS PRADUGA TAK BERSALAH

2018 ◽  
Vol 4 (1) ◽  
Author(s):  
A. Saiful Aziz
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Procedure ◽  
Presumption Of Innocence ◽  
Legal Basis ◽  
Preventive Effort ◽  
Procedure Code ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Basic Philosophy

ABSTRAK            Asas praduga tak bersalah dianggap  hanya  untuk  dan  berlaku bagi kegiatan yang berkaitan  dengan  proses  peradilan pidana. Sehingga terjadi ketidakpedulian masyarakat terhadap asas tersebut. Asas  praduga tak bersalah  di  Indonesia  dulu terdapat  di  dalam  Pasal 8 Undang-Undang No. 14 Tahun 1970 tentang Ketentuan-Ketentuan Pokok Kekuasaan Kehakiman. Meskipun tidak secara eksplisit menyatakan hal yang sama, asas tersebut  diutarakan  di  dalam  Pasal 66 Undang-Undang No.8 Tahun 1981 tentang Kitab Undang-Undang Hukum Acara Pidana (KUHAP).Penegakkan hukum merupakan salah satu upaya untuk menciptakan tata tertib, keamanan dan ketentraman dalam masyarakat, baik itu merupakan usaha pencegahan maupun merupakan pemberantasan atau penindakan setelah terjadinya pelanggaran hukum. Untuk mencapai sasaran tersebut maka peraturan perundang-undangan menjadi dasar hukum bagi langkah dan tindakan dari penegak hukum harus sesuai dengan dasar falsafah negara dan pandangan hidup Bangsa Indonesia yaitu Pancasila dan Undang-Undang Dasar 1945 (UUD 1945). Dengan demikian, Perlunya rekonseptualisasi atas tafsir asas praduga tidak bersalah (presumption of innocence) yang selama ini dianut KUHAP.        Kata kunci: Tafsir, Asas, Praduga tidak Bersalah.                                               AbstractThe principle of innocence presumption is presumed only for and applicable to activities relating to the criminal justice process. So there is a lack of concern for the community towards the principle. The principle of innocence presumption in Indonesia was previously contained in Article 8 of Law no. 14 of 1970 on the Basic Provisions of Judicial Power. Although it does not explicitly state the same, the principle was articulated in Article 66 of Law No.8 Year 1981 on the Criminal Procedure Code (KUHAP).Law enforcement is one of the efforts to create order, security and peace in society, whether it is a preventive effort or is the eradication or repression after the violation of law. To achieve these targets, the legislation should be the legal basis for the actions and actions of law enforcers to be in accordance with the basic philosophy of the state and the Indonesian life view of Pancasila and the 1945 Constitution (1945 Constitution). Thus, the need for a reconceptualization of the interpretation of the presumption of innocence principle adopted by the Criminal Procedure Code.Keywords: Tafsir, Principle, Presumption Presumption of Innocence

scholarly journals Institute of Returning a Criminal Case to the Prosecutor in the System of Criminally-Remedial Means, Ensuring the Victim's Right to Protection from Crime and Access to Justice

2020 ◽  
Vol 14 (3) ◽  
pp. 512-526
Author(s):  
Tatyana Ryabinina
Keyword(s):  
Criminal Justice ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Access To Justice ◽  
Judicial Reform ◽  
Main Function ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Justice Process ◽  
Criminal Justice Process

The article deals with current and controversial issue in the criminal science, specifically the need for the Russian criminal justice process to have an institute to return a criminal case to the procurator at the stage of appointment and preparation of the court hearing. The author emphasizes that during the continuance of RSFSR Code of Criminal Procedure, a special emphasis was put on it as a guarantee of the delivery of justice and the rights of the participants in the proceedings, that put in place the arrangements necessary for an effective court trial. The goal of modern judicial reform is to establish an independent judiciary whose main function is the delivery of justice which can be implemented in criminal proceedings only in adversary criminal proceedings. Since the beginning of its implementation, attitudes towards the institution of returning a criminal case by a court to a procurator to correct lacunae, loopholes, contradictions, irregularities or flaws in pre-trial proceedings have changed dramatically. It is perceived as an attribute of the courts prosecutorial activities, which is inconsistent with its new role as an independent body to resolve legal disputes between a state and an individual awaiting for a founded and equitable decision from the court. Despite critical rhetoric towards the institution of returning the criminal case to the prosecutor, the author argues that it is necessary due to specific status of the first judicial phase in a staged system of Russian criminal justice process. This institute creates conditions for monitoring and verification activities of judges at this stage, and the corresponding authority of judges to determine the future course of criminal cases brought before the courts. However, the author concludes that the task of rectifying the shortcomings of the prosecution can be addressed at the preliminary hearing introduced by the Code of Criminal Procedure of the Russian Federation to resolve various contentious issues. When it is impossible to remove the obstacles that prevent the court from conducting a trial, the judge may, taking into account the views of the parties, decide to return the case to the prosecutor.

International and Comparative Legal Perspectives on Victim Participation in Criminal Justice

2020 ◽  
Author(s):  
Marie Manikis
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Legal Process ◽  
Legal Traditions ◽  
Criminal Justice Systems ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Common ◽  
Victim Participation ◽  
Historical Developments

Victim participation in common law has evolved across history and jurisdictions. Historical developments within conceptions of crime, harms, and victims in common law as well as the different victims’ movements provide an understanding of the ways that victim participation has been shaped in more-recent common law criminal justice systems. Victim participation in the criminal legal process has also given rise to various debates, which suggests that providing active forms of engagement to victims remains controversial. The forms of victim participation are also diverse, and the literature has provided typologies of victim participation. Forms of participation also vary across jurisdictions and the different stages of the criminal justice process, including prosecutorial decisions, pretrial and trial proceedings, sentencing, parole, and clemency. Finally, research that focuses on victim participation in legal traditions beyond the common law would provide an additional and important contribution to the field.

scholarly journals IMPLEMENTASI ASAS LEX SPECIALIS DEROGAT LEGI GENERALI DALAM SISTEM PERADILAN PIDANA

2015 ◽  
Vol 44 (4) ◽  
pp. 503
Author(s):  
Shinta Agustina
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Penal Code ◽  
Criminal Cases ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Cumulative Model

This study aims to assess and analyze the application of the principle of lex specialis the derogat legi generali in the Criminal Justice System related to the stages in the criminal justice process, and the form of the indictment in applying the principle of lex specialis the derogat legi generali. The method used is empirical juridical with descriptive analytical. The result shows that this principle is applied in criminal cases that violating the general and special criminal provisions in the Penal Code, the general criminal provisions in the Penal Code and special criminal provisions outside the Penal Code, as well as criminal cases that violating two special criminal acts outside the Penal Code. Regarding the fase of criminal procedure in handling the case under this principle, it is implemented in the adjudication process, using the subsidiarity or cumulative model of chargingPenelitian ini bertujuan untuk mengkaji dan menganalisis penerapan asas lex specialis derogat legi generali dalam Sistem Peradilan Pidana terkait dengan tahapan dalam proses peradilan pidana, dan bentuk surat dakwaan dalam menerapkan asas lex xpecialis derogat legi generali tersebut. Metode penelitian yang digunakan adalah metode  yuridis empiris yang bersifat deskriptif analitis. Hasil penelitian memperlihatkan bahwa asas lex specialis derogat legi generali diterapkan dalam perkara pidana yang mempertemukan ketentuan pidana umum dan khusus dalam KUHP, ketentuan pidana umum dalam KUHP dan ketentuan pidana khusus di luar KUHP, serta perkara pidana yang mempertemukan dua atau lebih ketentuan pidana khusus di luar KUHP. Berkenaan dengan tahapan dalam sistem peradilan pidana, asas ini diterapkan dalam tahap adjudication, yang mengharuskan surat dakwaan dibuat dalam model subsidiaritas atau kumulatif

scholarly journals Why Do Criminal Trials ‘Crack’? An Empirical Investigation of Late Guilty Pleas in Hong Kong

2018 ◽  
Vol 13 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Kevin Kwok-yin CHENG ◽  
Wing Hong CHUI ◽  
Simon N M YOUNG ◽  
Rebecca ONG
Keyword(s):  
Hong Kong ◽  
Criminal Justice ◽  
Empirical Investigation ◽  
Publicly Funded ◽  
Criminal Trials ◽  
Mixed Methods Approach ◽  
Public Resources ◽  
Societal Problem ◽  
Justice Process ◽  
Criminal Justice Process

Abstract‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

scholarly journals Still Standing: Innocence work in England and Wales

2021 ◽  
Vol 2 (3) ◽  
pp. 226-239
Author(s):  
Louise Hewitt ◽  
Claire McGourlay
Keyword(s):  
Criminal Justice ◽  
England And Wales ◽  
Similar Work ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Innocence Project

This article examines the two categories that have evolved in the literature concerning Innocence Projects; the pedagogical value of innocence work and the problems with associating the term innocence with the English criminal justice process. This research draws upon a study undertaken in 2017 by the Innocence Project London (unpublished) and another in 2020. Both studies sought to understand the extent to which organisations are undertaking innocence work in England and Wales.  This research is written from the perspective of the Directors of both the Innocence Project London and Manchester Innocence Project, and as a result, the projects are discussed at length in various sections. An effort has been made however, to discuss other organisations that undertake similar work in various parts of this article.

The Criminal Process

2019 ◽  
Author(s):  
Liz Campbell ◽  
Andrew Ashworth ◽  
Mike Redmayne
Keyword(s):  
Criminal Justice ◽  
Research Policy ◽  
Criminal Trials ◽  
Criminal Process ◽  
England And Wales ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Law ◽  
Normative Issues ◽  
Area Of Study

The Criminal Process continues to provides a reflective, contextualized consideration of doctrinal, practical, and normative issues in criminal processes and procedures. The text draws on arguments from the law, research, policy, and principle, to present an overview of this area of study. It focuses on England and Wales, with occasional comparative references. The book includes new coverage of contemporary issues, such as the disclosure of evidence in criminal trials and the treatment of victims, and on diversity and discrimination within the criminal justice process. Further reading suggestions and discussion questions are included at the end of each chapter.

scholarly journals Truth and procedural fairness in Chinese criminal procedure law

2019 ◽  
Vol 23 (3) ◽  
pp. 299-315
Author(s):  
Alexander Shytov ◽  
Peter Duff
Keyword(s):  
Criminal Justice ◽  
Criminal Procedure ◽  
Active Role ◽  
Procedural Fairness ◽  
Criminal Process ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Rapid Transformation

Chinese criminal procedural law has recently been undergoing rapid transformation. While the search for ‘truth’, embodied in a confession by the accused, has traditionally dominated the criminal process, efforts are now being made to secure more procedural fairness. This is exemplified by the introduction of rules to render inadmissible at trial confessions extorted from suspects by ill treatment. Unsurprisingly, it has proved difficult to shift the mindsets of the players in the criminal justice process. The new rules have not been fully implemented in many respects and there is still confusion over the criteria to be used by the courts in making decisions about inadmissibility. Further, it has proved difficult to enable defence lawyers to play a more active role in defending their clients and to render it normal for witnesses to testify at trial. This handicaps the drive to secure a better balance between the search for truth and procedural fairness in the Chinese criminal trial.

Fitness to be interviewed: decision-making in the mental health in-patient setting

2020 ◽  
pp. 1-11
Author(s):  
Allison Edwards ◽  
Simon Jackson ◽  
Keith J. B. Rix ◽  
Faisil Sethi
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Criminal Justice ◽  
Legal System ◽  
England And Wales ◽  
Psychiatric Setting ◽  
Police Interviews ◽  
Justice Process ◽  
Criminal Justice Process

SUMMARY When a patient in an in-patient psychiatric setting allegedly commits a crime, psychiatrists are sometimes asked to assess their fitness to be interviewed by the police. This article describes how to conduct this assessment, outlines the criminal justice process leading to police interviews (with particular reference to the legal system in England and Wales) and highlights practical issues to consider when assessing fitness to be interviewed in this context.

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