The criminal justice system is a maze that even the smartest defendant cannot escape from. His rights are curtailed; his freedom is restricted and the process works against him.

Critically discuss this statement in light of the functions of the criminal justice system and the process to which the criminal justice system operates.

This question is very much based in the procedure a defendant will go through when suspected, charged, convicted and sentenced in the criminal justice system. At first sight, this may appear an easy question allowing students to delve into a multitude of arguments across the entire spectrum of the criminal process; however, that in itself bears a problem. Too often students believe that they must write all that they know on a subject in the hope that what they write is correct. Although that is a style often adopted, it is not the preferred approach. Rather, a student’s job in tackling a question such as this is to narrow the scope of the question and focus their answer according to the direction they wish to take. This may mean that student A spends the majority of the essay speaking of pre-trial procedures such as the rights of a suspect whilst being questioned at a police station or the suspect’s right to bail; whilst another student may spend the majority of their answer discussing the sentencing and appeals process. The point is to ensure that once you have identified the direction you wish your essay to take, you stick with that idea and do not delve into other details for which you don’t have the time or space to cover. Further to this, as students are informing the examiner as to what they are dealing with in their essay, it may be an idea to equally inform the examiner as to the matters which shall not be considered. For example, a student may introduce their work by stating: 

“The criminal justice system operates in such a fashion that the rights of a defendant are not offered the due regard they desire. Through the methods of questioning adopted by the police, the forms of evidence that may be admitted against them and the weight of importance laid at ensuring justice for the victim sets the defendant in a difficult and troubling position. Although faults may be found throughout the criminal justice system which may ‘curtail’ the rights or ‘restrict’ the freedom of the defendant, this essay shall focus on the pre-trial process and the effects such has on suspects before the criminal justice system. As such, the trial process itself and the post-trial process remain outside the scope of this work….”

A simple yet good introduction which sets out the stall of the student’s answer will be stronger than attempting to answer the question within your first sentence.

Be sure that you focus on the wording of the question. It asks you to discuss the statement SPECIFICALLY in relation to the functions of the CJS and the process it operates under. In this regard, you must ensure that the arguments you make are reasoned to include the functions and/or process of the CJS. E.g. a student may argue that the sentencing options available to a court are focused too heavily on the punishment of offenders. Students can relate this to one of the functions or objectives of sentencing which is in the punishment of offenders. Better students will consider whether the courts are ignoring other functions – such as rehabilitation – when sentencing. By doing this, the student is engaging with the statement and with the specific analysis requested.

With the introduction out of the way, students can focus on the arguments they may wish to raise. This could include:

a)  Discussion of a defendant’s right to remain silent and the possible inferences that may be drawn where the defendant later relies on a matter in court that they previously had not mentioned.

b)  Discussion of a defendant’s “right” to bail and whether the law is situated to ensuring that the least number of defendants are eligible for bail.

c)  Discussion of the charging process and whether the “full code test” is satisfactory for defendants.

d)  Discussion as to whether a defendant is properly able to engage and participate in the criminal process.

e)  Discussion of the fairness of allowing juries to determine the guilt or innocence of a defendant (in the Crown Court, of course). Particular regard may be had to allowing the jury to reach a majority verdict – is that entirely fair? (No doubt a defendant who has been convicted would feel that a majority verdict is unfair; then again, an acquitted defendant would be perfectly happy that a majority found him/her not guilty).

f)  Discussion of the sentencing powers and sentencing factors open to the court and whether enough emphasis is placed on rehabilitation as opposed to punishment.

g)  Discussion of the appeal process and whether the sole test for appealing against a conviction (on the ground that the conviction is “unsafe”) is satisfactory.

What we hope this list (which is by no-means exhaustive) demonstrates is that there is TOO MUCH information to discuss everything in an essay. It is for this reason we advise above that you are selective in your answer.

As always, offer a rationalised conclusion using the wording of the question to assist you.

You have been asked to provide advice to an individual at your pro bono clinic. The individual requires advice on the following matter:

“I need your help.

The police are thinking about prosecuting me for a Rape I didn’t commit. I didn’t do it. I’m panicking that I will be put in prison and need your advice. Could you please advise me on:

(a) The powers of the police in relation to this process;

(b) The trial process and in which court my case will be heard in;

(c) The evidence that may be submitted against me; and

(d) Whether I can appeal if I am found guilty.

Please help me.

Mark McGourlay”

This question involves an overview of the criminal justice system and its application to a specific individual. Given that the question is set out into separate distinct elements, it is best advised to follow this process.

(a)  students should note that police powers are far and wide-reaching. Police powers are detailed in the Police and Criminal Evidence Act (PACE) Codes of Practices (Codes A-F). The most notable codes in respect of this individual will be the power to interview under Code C and the power to detain under Code D.

(b)  Students should note that all cases must start in the magistrates’ courts. Students should consider what kind of offence Mark is charged with. Students should explain the difference between summary-only; either-way and indictable offences and apply to this case. Rape is an indictable-only offence and can be tried only in the Crown Court. As a result, the magistrates’ must send the defendant to the Crown Court for trial. The defendant has no choice in this matter and must be tried before a judge and jury.

(c)  Students should give an overview of the various forms of evidence that may be admitted at trial. Students will recall that evidence includes live testimony, potentially from witnesses or the victim in the case, documentary evidence and real evidence. In order to be admitted, evidence must be relevant and lawfully obtained – both terms which should be defined.

(d)  Students should give an overview of the right to appeal. There is a general right to appeal in the Criminal Appeals Act. The right to appeal against conviction is on the ground that the conviction is unsafe – that is the only ground. If convicted, Mark may also appeal against sentence on the ground that the sentence is wrong in law.

You have been asked to provide advice to an individual at your pro bono clinic. The individual requires advice on the following matter:

“I need your help.

The police are thinking about prosecuting me for a rape. I didn’t commit. I didn’t do it. I’m panicking that I will be put in prison and need your advice. Could you please advise me on:

(a) The powers of the police in relation to this process;

(b) The trial process and in which court my case will be heard in;

(c) The evidence that may be submitted against me; and

(d) Whether I can appeal if I am found guilty.

Please help me.

Mark McGourlay”

This question involves an overview of the criminal justice system and its application to a specific individual. Given that the question is set out into separate distinct elements, it is best advised to follow this process.

(e)  students should note that police powers are far and wide-reaching. Police powers are detailed in the Police and Criminal Evidence Act (PACE) Codes of Practices (Codes A-F). The most notable codes in respect of this individual will be the power to interview under Code C and the power to detain under Code D.

(f)  Students should note that all cases must start in the magistrates’ courts. Students should consider what kind of offence Mark is charged with. Students should explain the difference between summary-only; either-way and indictable offences and apply to this case. Rape is an indictable-only offence and can be tried only in the Crown Court. As a result, the magistrates’ must send the defendant to the Crown Court for trial. The defendant has no choice in this matter and must be tried before a judge and jury.

(g)  Students should give an overview of the various forms of evidence that may be admitted at trial. Students will recall that evidence includes live testimony, potentially from witnesses or the victim in the case, documentary evidence and real evidence. In order to be admitted, evidence must be relevant and lawfully obtained – both terms which should be defined.

(h)  Students should give an overview of the right to appeal. There is a general right to appeal in the Criminal Appeals Act. The right to appeal against conviction is on the ground that the conviction is unsafe – that is the only ground. If convicted, Mark may also appeal against sentence on the ground that the sentence is wrong in law.