Criminal Procedure in United Kingdom

History

A system of procedure, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power or by custom and the action of the courts. Both at Rome and in England it was through usage and by the courts themselves that the earlier system was slowly moulded: both at Rome and in England it was direct legislation that established the later system. (See Bryce, Studies in History and Jurisprudence, 1901, ii. 334.)

The characteristics of English criminal procedure which most distinguish it from the procedure of other countries are as follows:—

1. It is litigious or accusatory and not inquisitorial (Stephen, Prel. View Cr. Law). It is for the prosecutor to prove by evidence the commission of the alleged offence. No power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. The right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried.

2. The forms of criminal pleading still in use are in substance framed on the lines of the old system of pleading at common law in civil cases, which was swept away by the judicature acts. Criminal pleadings have, however, one peculiarity. Indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (See Indictment.)

3. Criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. There is not in England, as in Scotland and all European countries, a public department concerned to deal with all prosecutions for crime. The result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices’ clerk.

The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. Under these acts the director of public prosecutions (up to 1908 an office conjoint with that of solicitor to the Treasury) acts under the attorney-general, but unless specially directed he only undertakes a limited number of prosecutions, e.g. for murder, coining and serious crimes affecting the government.

4. Where an indictable offence is supposed to have been committed the accused is arrested, with or without the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. On his appearance a preliminary inquiry is held for the purpose of ascertaining whether there is a prima facie case against him. The procedure is regulated by the Indictable Offences Act 1848, and is entirely different from the procedure for summary offences. It may be, though usually it is not, held in private; it is an inquiry and not a trial; the justices have to consider not whether the man is guilty, but whether there is such a prima facie case against him that he ought to be tried. If they think that there is, they commit him to prison to wait his trial, or require him to give security, with or without sureties, to the amount named by them, for appearing to take his trial. If they think the charge unsubstantial they discharge the accused at once. The prosecutor in cases of felony may if he likes go before the grand jury whether the case has or has not been the subject of a preliminary inquiry, but in the case of many misdemeanours it is obligatory first to have a preliminary inquiry, as a protection against vexatious indictments.

Source: Encyclopedia Britannica (1911)