Delay in the Administration of Criminal Justice

Delay in the Administration of Criminal Justice

Commonwealth Developments and Experience You do not have access to this content

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Judith A. Osborne
01 Nov 1980
9781848593145 (PDF)
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  • Preface

    This study was undertaken at the request of the Commonwealth Secretariat. I would like to thank the staff of the Legal Division for their invaluable help in tracking down materials and for their enthusiastic support of this project. Individual Commonwealth countries also provided information and assistance, for which I am very grateful.

  • Introduction

    [The] Law Ministers expressed their grave concern about increasing delays in the administration of justice - a problem faced by almost all Commonwealth jurisdictions. They agreed that it was one which called for positive and urgent action; and pledged themselves to providing remedies which in no way jeopardised the quality of justice and which respected the fundamental rights of all persons under the law.

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  • Expand / Collapse Hide / Show all Abstracts Delay in the Administration of Criminal Justice

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    • The Consequences of Delay

      Elucidating the effects which delay has on the criminal justice system is not as enlightening an exercise as it should be. There is an assumption that delay is an unmitigated evil that must be eliminated, but far too little effort has been devoted to actually documenting delay's consequences. It is assumed, for example, that unnecessary delays cause undue suffering to those detained in custody pending trial and that pressures to dispose of cases quickly result in procedural corners being cut.

    • The Causes of Delay

      Restrictions on the prolonged questioning of suspects and detention without being formally charged have prevented real delays occurring between arrest and first appearance in court; but serious delay is occurring where summons are issued instead of arrests being made and between first appearance in court and final disposition of the case, either at first instance or on appeal. To an increasing extent, total trial time can be measured in months or years rather than in weeks.

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  • Expand / Collapse Hide / Show all Abstracts Dealing with Delay

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    • Dealing with Delay

      The preceding discussion of the causes and effects of delays in the criminal justice system will at least have given some indication of the nature and size of the problem we are currently being confronted with and what the consequences are likely to be if we fail to act to eradicate or prevent this retardation of justice. Just as there is no simple cause of delay, there is no simple, nor single, solution. Combative measures can be pursued on various levels: those which will regulate the intake of the courts and those which will speed up a case's progress through the system.

    • Preliminary Procedure

      Where an accused person and his counsel go into court with little more in their possession than the facts contained in an indictment or summons, it is to be expected that a substantial amount of court time will be taken up not with actual adjudication but with the drawing out of information and issues from the prosecution's case. In the absence of any depth of knowledge about the strength of the case against him, the defendant will be unlikely to plead guilty at first appearance, and if the option is available, he may elect to have a preliminary inquiry in order to discover more of the nature of the case against him. If either party is ignorant of the details of a case before appearing in court, court appearances will be characterised by surprise and a confusion of the issues which will have to be clarified before the trial proper can proceed.

    • Curtailing Committal Proceedings

      Committal proceedings or preliminary inquiries occur between an accused's first appearance in court charged with an indictable offence and the actual trial of the case against him, and can often represent a full scale dress rehearsal of at least the prosecution's case. The time taken to dispose of serious criminal charges could be curtailed if this repetition were eliminated.

    • The Guilty Pleas and Plea Bargaining

      The hearing of the oral evidence of witnesses and cross-examination is a time-consuming process not only in committal proceedings, but also, naturally, at the trial of a criminal case. At trial, the prosecution may produce additional witnesses; witnesses for the defence will also be heard whereas they are generally absent from committal and both sides may conduct vigorous and lengthy cross-examinations. In the following chapter there will be an examination of the inroads that have been made into the viva voce evidence rule; the present section, however, is concerned with the elimination of the need for proof by means of a straightforward or negotiated guilty plea.

    • Expediting the Hearing of the Evidence

      Although an accused may admit his guilt in toto thereby waiving his right to have the case against him proved beyond a reasonable doubt, in many common law jurisdictions he is not allowed to admit certain of the facts alleged by the prosecution, which would obviate the need to introduce evidence to prove those particular facts. In consequence, court time is often wasted on proving facts which the defence or the prosecution do not dispute. As far as the accused is concerned, the rule is based on the principle that once a plea of not guilty is entered, it is incumbent on the prosecution to prove every fact and circumstance constituting the offence(s) charged, there being no mid-point between a plea of guilty which admits the truth of everything charged and a plea of not guilty which puts everything in issue.

    • Jury Trial

      Until relatively recently in the history of the common law, an accused's right to trial by jury was virtually unassailable. Jury trial was the normal method of dealing with all those offences which make up the central core of the criminal law, including those of a fairly trivial nature. Summary trial was limited to minor assaults, offences against the Vagrancy Acts and Game laws and infringements of the small amount of regulatory legislation of the time.

    • Speeding Up the Appellate Process

      Appeals illustrate, as nothing else could that speed of disposal of court business and the requirements of justice may point in opposite directions. An appeal always involves delay yet rights of appeal are generally regarded as desirable in principle.

    • Courts Administration

      Running a criminal court in the days of small caseloads presented relatively few difficulties. The judge, on his own or with the aid of a clerk of court, could arrange a rough schedule according to which cases could be heard; both sides would appear in court on the allocated day and the case would proceed. Nowadays, the picture is substantially different: in urban centres, several courts and judges are operating at the same time; lawyers may have prior commitments in other courts and have to seek an adjournment in any other cases in which they are scheduled to appear; heavy workloads may prevent counsel from being prepared to proceed with a case on the scheduled date, forcing them to seek an adjournment.

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  • Expand / Collapse Hide / Show all Abstracts The Use of Alternative Procedures and Specialised Courts

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    • The Use of Alternative Procedures and Specialised Courts

      From the previous section it can be seen that a great deal of activity is currently taking place in Commonwealth jurisdictions to modify the rules of evidence and procedure and to modernise court practices in order to expedite the hearing of cases in the criminal courts. These measures are being applied to those offences for which it is felt that a traditional court hearing is essential. Developments on another plane, however, proceed on the basis that some types of criminal cases may not require a full court hearing or may benefit from having a specialised hearing with procedures relevant to the features of a particular class of cases.

    • Dispensin g with the Presence of the Defendant at a Court Hearing

      For the more serious criminal offences, the presence of the defendant in court, with or without counsel, is seen as being a necessary prerequisite for the proper administration of justice. “Justice” cannot be done in his absence; he must be given the opportunity to participate in the proceedings. By contrast, with very minor offences, where the penalties are concomitantly small, the presence of the accused at the hearing is not seen as being so essential.

    • Fixed Penalty Notices

      Dispensing with the attendance of the defendant at a summary hearing does result in some saving of time, but the case must still go before a magistrate for his consideration. The paperwork involved can be quite considerable and, because the defendant is at most given an indication of the upper and lower limits of the possible penalty, he may wish to defend the case. Fixed penalty procedures, as the name implies, carry a fixed monetary penalty which the defendant is informed of in the summons, and unless he decides to challenge the charge or fails to pay the fine, the case is dealt with administratively and does not appear before a magistrate or justice of the peace.

    • Special Sittings of the Courts

      Another method of expediting normal court business which has been experimented with to a limited extent in the Commonwealth is that of having special sittings of the lower courts usually to deal with minor traffic offences. These sittings are generally ‘special’ in terms of time - the courts convene outside of regular court hours - but they may also be ‘special’ in terms of location. In Nigeria, for example, Mobile Court Edicts have set up peripatetic courts to try traffic offences throughout the states of the Federation.

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  • Expand / Collapse Hide / Show all Abstracts Keeping Cases Out of Court

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    • Special Courts and Tribunals

      A step beyond having special sittings of the courts to deal with certain classes of cases is the creation of totally separate courts or tribunals for hearing them. It is suggested from time to time that traffic offences, with which the lower courts are deluged, should be wholly removed from criminal courts and be dealt with by a completely separate system of traffic courts. Apart from relieving the criminal courts of a huge burden, two main advantages are said to flow from such reform.

    • Keeping Cases Out of Court

      The danger has already been mentioned that the judicial system will founder under the sheer weight of matters coming before it. Good administration and management and improved procedures can do much to mitigate this danger but are unlikely to remove it. The question is whether the courts should be reserved for matters that are of some importance to the well being of society.

    • Decriminalisation

      “Decriminalisation” will be used here in its most limited sense, that is, the legislative process of making acts lawful that were previously sanctioned by the criminal law. After repeal of the crime, the behaviour in question is left free of legal control and apparently also of any other organised social reaction. This contrasts with depenalisation, discussed in the following chapter along with diversion, where the criminal sanction is abandoned, but the conduct in question is then controlled by means of some other legal sanction.

    • Depenalisation and Diversion

      Depenalisation is a close relation of decriminalisation in that the criminal behaviour is no longer handled by the criminal justice system, instead another agency steps in to take over the responsibility. We have seen, for example, that in the Canadian province of Ontario, minor offences are now mainly an administrative concern; they are being weaned away from the criminal courts. Another prime example of depenalisation is the replacement of the criminal justice model with the medical model in dealing with alcohol and drug-related offences.

    • Conciliation

      “Diversion”, besides being an updated version of the long-standing practice of police and prosecutorial screening, also represents a formalisation of conciliation and mediation processes which exist in some Commonwealth countries as a means of avoiding court hearings. As we have seen, a general practice in diversion schemes is that where there is an identifiable victim, the diversion agency may mediate between the offender and the victim to promote a reconciliation, often by way of some form of restitution to the victim. Mediation not only has the cathartic effect of enabling the disputing parties to sort out their own grievances, but it also helps to reduce the workload of the criminal courts.

    • Conclusions and Appendix
    • Bibliography
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