13. The criminal process: pre-trial and trial

2018 ◽  
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley
Keyword(s):  
Criminal Procedure ◽  
Reasonable Doubt ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process

This chapter explains what happens once a person has been charged with a criminal offence. Whether a case remains in the magistrates’ court or is sent to the Crown Court depends on whether the offence is ‘summary only’, ‘indictable only’, or ‘triable either way’. Summary trial takes place before a district judge or bench of lay justices in the magistrates’ court. Trial on indictment takes place before a jury in the Crown Court. Criminal proceedings are governed by the Criminal Procedure Rules (CrimPR), whose overriding objective is to deal with cases justly, including acquitting the innocent and convicting the guilty. The chapter will consider those parts of the CrimPR that set out the steps to be taken before a trial in both the magistrates’ court and the Crown Court. It also explores key evidential and procedural rules that apply at trial, such as the rule that the prosecution must prove a defendant’s guilt beyond reasonable doubt.

13. The criminal process: pre-trial and trial

2020 ◽  
pp. 485-525
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley ◽  
Birju Kotecha
Keyword(s):  
Criminal Procedure ◽  
Reasonable Doubt ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process

This chapter explains what happens once a person has been charged with a criminal offence. Whether a case remains in the magistrates’ court or is sent to the Crown Court depends on whether the offence is ‘summary only’, ‘indictable only’, or ‘triable either way’. Summary trial takes place before a district judge or bench of lay justices in the magistrates’ court. Trial on indictment takes place before a jury in the Crown Court. An offence that is triable either way may be allocated to the Crown Court or, if it is suitable for summary trial, the defendant may nevertheless choose Crown Court trial. Criminal proceedings are governed by the Criminal Procedure Rules (CrimPR), whose overriding objective is to deal with cases justly, including acquitting the innocent and convicting the guilty. The chapter considers those parts of the CrimPR that set out the steps to be taken before a trial in both the magistrates’ court and the Crown Court, including decisions relating to bail. It also explores key evidential and procedural rules that apply at trial, such as rules governing the disclosure of material in the possession of the prosecution and the rule that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

DEFINITIONS OF CATEGORIES PURPOSE AND TASKS OF CRIMINAL PROCEEDINGS IN THE MODERN CRIMINAL PROCESS

2018 ◽  
Author(s):  
Svitlana Patiuк ◽  
Keyword(s):  
Criminal Procedure ◽  
The State ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Legal Norms ◽  
State Changes ◽  
The Individual ◽  
Goals And Objectives ◽  
Functional Purpose

"Definitions of categories, the goal and objectives of criminal proceedings in modern criminal proceedings" analysed the legal norms and provisions of doctrinal concepts to determine the goals and objectives of criminal proceedings. The author formulated conclusions and generalizations that since criminal proceedings are a sphere of state activity, it depends on the direction of the political course of the state, changes in state policy, which always leads to a change in the ideology of the criminal process as a whole, including the transformation of goals and objectives criminal proceedings. The purpose and objectives of criminal proceedings depend on the historical form of the criminal process, a common feature of which is the ratio of freedom (interests) of the individual and the state, expressed in the procedural position of the main participants in the process. Criminal procedure legislation and doctrine define the resolution of a dispute (conflict) between the state and the accused arising as a result of the commission of a crime as the goal of the criminal process in most countries in which the adversarial nature of criminal proceedings prevails. As the goal of criminal proceedings in the modern theory of criminal procedure, it is proposed to consider the protection of the individual, society and the state from criminal offences in the settlement of criminal-legal conflicts arising as a result of these offences. The goal in the criminal process determines the setting of tasks and represents the ultimate conclusion from the sum of all the tasks being implemented. The task of criminal proceedings should be determined taking into account the functional purpose of the subjects of criminal proceedings, and therefore the task is the fulfilment of his duty by a participant in criminal proceedings, which is determined by his functional purpose, based on the principle of competition of the parties.

scholarly journals Standard of proof «sufficient reason» in the criminal procedure of Ukraine

2019 ◽  
pp. 31-42
Author(s):  
M. Pohoretskiy ◽  
O. Mitskan
Keyword(s):  
Human Rights ◽  
Sufficient Reason ◽  
Criminal Offence ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Wide Range ◽  
Procedural Code ◽  
Reasonable Suspicion ◽  
Procedural Decisions

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

scholarly journals Peculiarities of implementation of the principle of legality in the criminal process of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 253-257
Author(s):  
Oleksiy Skryabin ◽  
Dmytro Sanakoiev
Keyword(s):  
Civil Rights ◽  
Criminal Procedure ◽  
Limiting Factor ◽  
Criminal Proceedings ◽  
Legal Regime ◽  
Criminal Process ◽  
Procedural Law ◽  
Judicial Proceedings ◽  
Principle Of Legality ◽  
Discretionary Powers

The article analyzes the principles of criminal procedure, which are the expression of the prevailing political and legal ideas of the state, relate to the tasks and methods of judicial proceedings in criminal proceedings, are enshrined in law and operate throughout all stages and necessarily in its central stage. Modern theoretical ideas about the system of principles of criminal proceedings are still in the stage of active methodological and ideological rethinking. Discussions continue both on the concept and features of the principles of criminal proceedings, their system, and on the peculiarities of implementation at different stages of the criminal process. Violation of the principles of criminal procedure is a sign of illegality of decisions in the criminal and becomes the basis for the cancellation of these decisions. The principle of legality characterizes the legal regime of strict and mandatory observance of laws in law enforcement practice, which manifests itself in criminal proceedings, limits the discretionary powers of the pre-trial investigation, prosecutor's office and court. The principle of legality becomes an opportunity to transfer criminal proceedings from one procedural stage to another only on the basis of the law and in a strictly defined sequence. Legality is one of the guarantees of establishing the truth in a criminal case, which ensures the protection of human and civil rights and freedoms. The principle of legality is characterized by mandatory observance of laws in criminal proceedings, is a limiting factor in the discretion of the pre-trial investigation, prosecution and court. Due to the implementation of the principle of legality, the shortcomings and gaps in the criminal process that exist in criminal procedural law can be overcome.

Execution of a Sentence in the Structure of Criminal Proceedings: Procedural Stage or Special Court Proceedings?

2020 ◽  
Vol 1 ◽  
pp. 97-106
Author(s):  
V. V. Nikolyuk ◽  
◽  
L. A. Pupysheva ◽  
Keyword(s):  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Self In Relation ◽  
The Supreme Court ◽  
Court Proceedings

The article analyzes the concept of execution of a sentence as an independent stage of the criminal process (the stage of criminal proceedings). Arguments are given that point to its certain illogicality and inconsistency. The authors on the basis of existing legislation and taking into account the positions of Plenum of the Supreme Court additionally reasoned and substantiated the thesis of the existence of the criminal process self in relation to a criminal case of criminal procedure, regulated by Chapter 47 of the Code of criminal procedure.

REVIEW ON THE MONOGRAPH OF OLEKSANDR TORBAS �DISCRETION IN THE CRIMINAL PROCESS OF UKRAINE: THEORETICAL JUSTIFICATION AND PRACTICE OF IMPLEMENTATION�

2020 ◽  
Vol 10 (4) ◽  
pp. 147-150
Author(s):  
Iryna Hloviuk ◽  
Keyword(s):  
Public Relations ◽  
Criminal Procedure ◽  
Scientific Work ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Theoretical Justification ◽  
Criminal Process ◽  
Procedural Law ◽  
Current Period ◽  
Legitimate Interests

Current period of development of the legal system of Ukraine is characterized by variability of legislation that regulates, in particular, organization of judicial system and implementation of criminal proceedings. Unfortunately, criminal procedure legislation is no exception, given how many changes and additions have been made to the Criminal Procedure Code of Ukraine since its entry into force in 2020. Undoubtedly, like any other codified legal act, CPC of Ukraine in modern conditions cannot be unchanged, given the dynamics of public relations, the provisions of international law, decisions of ECtHR and number of attempts to solve identified problems of its application. Difficulties of criminal procedural law enforcement are manifested in such an area as the use of discretion of authorities in criminal proceedings, although without it application of legislation is ineffective. At the same time, lawful discretion in criminal proceedings should not turn into its opposite � arbitrariness, which will already violate rights and legitimate interests of individuals and legal entities. In criminal proceedings, given the imperative method of legal regulation and possibility of various coercive measures, including those related to the restriction of constitutional human rights, this issue is of particular importance, given, inter alia, that prosecution�s discretion applies within non-adversarial procedure, and the CPC of Ukraine does not always provide for the possibility of appealing such decisions in court. The peer-reviewed monograph consists of four chapters, which contain 10 sections. Structuring of the monograph is logical; the author analyse problems of discretion from questions of concept, signs and limits of discretion, and then moves to the characteristic of realization of discretion by judge, prosecutor, investigator, detective. In general, without a doubt, the monograph of Torbas O. O. �Discretion in the criminal process of Ukraine: theoretical justification and practice of implementation� is relevant, complete and fundamental scientific work, has scientific and practical value. Monograph of Torbas O.O. significantly enriches criminal procedure doctrine regarding the subjects of criminal proceedings, criminal procedure decisions and other areas.

Limits of proof in criminal proceedings

2020 ◽  
pp. 82-86
Author(s):  
Aleksei Marochkin ◽  
Viktoriya Slyvnaya
Keyword(s):  
Criminal Procedure ◽  
Reasonable Doubt ◽  
Main Body ◽  
Criminal Proceedings ◽  
Research Activity ◽  
Judicial Practice ◽  
Evidence Collection ◽  
The Subject ◽  
European Standards ◽  
The Moment

Problem setting. Proving in criminal proceedings is evidence collection and research activity of special subjects of criminal proceedings. The specific purpose of prooving is to obtain knowledge that is close to reality. To achieve this purpose, the theory of criminal procedure operates with the concept of “limits of proof”. In view of the above, it is important to study this phenomenon, because, firstly, there is no legislative regulation, and secondly, there is no unity in the theory of criminal procedure on this issue. Target research. The aim of the work is to define the concept of the limits of proof; to find out the moment of reaching the limits of proof and cases of narrowing and expanding the limits of proof; to analyze case law on this issue. Analysis of recent research and publication. The question of determining the limits of proof, their relationship with the subject of prooving has been the subject of scientific research. In particular, the works of such researchers in the field of criminal procedure as A.R. Belkin, V.V. Vapnarchuk, G.F. Gorsky, Yu.M. Groshev, V.S. Zelenetsky, E.G. Kovalenko, L.D. Kokorev, R.V. Kostenko, R.D. Rakhunov, В.В. Rozhnov, V.G. Tanasovich, F.N. Fatkullin, A.A. Khmirov deserve attention. Article’s main body. The article discusses the concept and significance of the limits of proof in criminal proceedings, analyzes the differences between them and other procedural categories, and analyzes doctrinal developments regarding the criteria for reaching boundaries and judicial practice in cases of expanding or narrowing the limits of proof. Conclusions and prospect of development. Thus, the study allows us to state that the concept of the limits of proof in criminal proceedings is multifaceted and important because it aims to achieve fair trial. The limits of proof are individual for each specific criminal proceeding, and an important criterion for determining it is the standard of proof of guilt “beyond a reasonable doubt”. That is why the future study of this phenomenon in criminal proceedings becomes relevant due to the need to bring national criminal proceedings closer to European standards of justice.

scholarly journals The Doctrine of Erroneous Judgment and the Modern Theory of Miscarriages of Justice in Germany: General Characteristics and Their Significance for Establishing the Truth in German Criminal Proceedings

2021 ◽  
Vol 2 ◽  
pp. 104-110
Author(s):  
A.G. Trofimik ◽  
Keyword(s):  
Criminal Procedure ◽  
Theory And Practice ◽  
Modern Theory ◽  
Criminal Proceedings ◽  
Legal Research ◽  
Criminal Process ◽  
Concept Of Truth ◽  
Definition Of ◽  
Russian Research ◽  
Miscarriage Of Justice

The research of the German criminal process reveals the main theoretical characteristics of theory of miscarriages of justice in German criminal procedure. The essential aspects of the doctrine of erroneous judgment are established. The conclusion about the significance of the doctrine of erroneous judgment for the modern theory of miscarriages of justice in Germany is formulated. Based on a comprehensive research of original German sources, the main provisions of the doctrine of erroneous judgment and the modern theory of miscarriages of justice in Germany are enunciated. The influence of discursive philosophy on theoretical ideas about criminal proceedings is established. The immediate practical applicability of these theories is rather low. In the author’s opinion, their importance, among other things, is that the problematics of miscarriages of justice in Germany are closely related to the concept of truth in criminal proceedings, which is uncharacteristically of Russian research in the designated area. Based on the analysis of German doctrine, the significance of theoretical provisions for establishing the truth in a criminal procedure is determined. A pragmatic, utilitarian German approach to the legislative formulation of truth in criminal proceedings is represented. The legislative recognition and interpretation of the truth in criminal proceedings are expressed. The correlation between the theoretical provisions on material truth and the theory of miscarriages of justice is confirmed. As the result of the research the functional meaning of truth for the theory and practice of criminal proceedings in Germany is enunciated. In addition, the German theoretic definition of the concept of «miscarriage of justice» is given. Characteristic of this concept are identified. The significance of the scientific conclusions of this article consists in determining the fundamental suitability of German dogma and theory for a comparative legal research of miscarriages of justice in Russia and Germany.

scholarly journals The institution of suspicion and the initial stage of the criminal process: interrelated prospects of development

2021 ◽  
Vol 2021 (4) ◽  
pp. 121-131
Author(s):  
Ol'ga Polikarpova
Keyword(s):  
Criminal Procedure ◽  
Radical Change ◽  
Criminal Case ◽  
Initial Moment ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Kyrgyz Republic ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Initial Stage

The article considers the question of the interdependence of the improvement of the institution of suspicion and the transformation of the initial stage of the Russian criminal process. The article highlights the problem of the legislative limitation of the period of the procedural status of a person as a suspect in the event of a criminal case being initiated not against him, but upon the commission of a crime and insufficient evidence of the involvement/non-involvement of such a person in a criminal offence committed at the initial stage of the investigation, which often does not allow avoiding unreasonable restrictions on the constitutional rights and freedoms of this participant in criminal proceedings. The relevant experience of some post-Soviet states that followed the path of a radical change in the criminal procedure model after the collapse of the USSR is analysed. The article compares the provisions of the criminal procedure legislation of the Russian Federation and the Kyrgyz Republic directly related to the institution of suspicion, including the moment of triggering criminal prosecution and the duration of a suspect’s keeping the specified procedural status. The arguments given in the article substantiate the need to reform the initial moment of the emergence of the procedural status of a suspect in Russian criminal proceedings and the associated expediency of abolishing the stage of initiation of a criminal case in order to increase the guarantee of the rights and legitimate interests of the person introduced into the procedural status we are analysing.

Sign in / Sign up

Export Citation Format

Share Document