Уголовный процесс и правоприменение норм в Великобритании и России

Ionova N.A.,
Student at the Russian State University of Justice

Scientific consultant Salmina E.A.,
Senior Teacher at the Foreign Languages Department,
Russian State University of Justice

Criminal Procedure and Law Enforcement in the UK and Russia

Abstract. The criminal procedure is an activity carried out in accordance with the procedure established by law for the investigation, trial and resolution of criminal cases by the court to ensure the protection of the rights and freedoms of man and citizen, public order and public safety. The article reveals the history of the formation of the criminal procedure in England since the XII century. Moreover, it was mentioned what rules are used by lawyers in order to administer justice and to resolute issues prior to the trial. The authors of the article have formulated the basic concepts and features of the criminal procedure in England. Furthermore, the article highlights the ways to regulate criminal activity in the country and shows the principles that help in the application of the law at the time of sentencing. An attempt was also made to structure the system of organs that helps in solving crimes, up to the point of bringing the case to court for hearing. With the help of a comparative analysis and the study of legal literature, the distinctive features as well as advantages and disadvantages of the criminal procedure of England and Russia were identified.

Keywords: criminal law, jurisprudence, criminal procedure, court, law enforcement, code, law.

In modern England the main sources of law are statutes (i.e., parliamentary legislation) and judicial precedents. Criminal law in the UK is thought to be disclosed only in England and Wales, because that is the evolution of this legal procedure. From the history of the creation of criminal procedure, it can be disclosed that judicial practice is the main and most ancient source of law. It should be mentioned that since the XII century, many judges created rules while sentencing; for example, judges of the Court of the Royal Family in the XII and XIII centuries created a set of rules in which the most serious crimes were punished by felony, and from the XV century, misdemeanors were assigned for less serious crimes. Also the Star Chamber Court was involved in the formation of criminal law and criminal procedure, whose decisions formed the basis of the modern doctrine of conspiracy and attempt. These rules formed the basis of the law, which is used in modern England and Wales. The relevance of this topic is that criminal procedure in the modern world is the way to protect the rights and freedom of relationships, as well as the identification of criminals who must be punished for their actions.

Criminal procedure in England and Wales is a process of justice by means of regulations, which aims to protect people by preventing and suppressing crime, implementing the principles of the rule of law and respect for it by ensuring equal treatment of suspects and defendants, detainees (arrested) and prisoners on remand; maintaining order; punishing criminals and helping victims of crime.

The Criminal Procedure Rules refer to each person accused of a crime as “the accused”. The authority who is responsible for prosecuting the case in court is called the “prosecutor”. In most cases this responsibility lies on the Crown Prosecution Service.

In general, there is no universal statutory act governing the criminal process, instead there are structural acts that answer a number of questions when adjudicating in court. Having studied the regulatory framework, we tried to identify the main documents:

1. Judicial decisions, precedents, which constitute the system of common law (Common Law) in total and the beginning of the development of which goes back to the XII century.

2. Laws (Statutes): legislative acts of Parliament (Statute Law). (Example: Criminal Justice Act 1991, Criminal Justice and Court Services Act 2000, Regulation of Investigatory Powers Act 2000, Youth Justice and Criminal Evidence Act 1999, Criminal Procedure and Investigations Act 1996).

3. Delegated legislation. On behalf of Parliament, Cabinet Ministers may issue “Statutory Instruments” to give effect to laws passed by Parliament such as Home Office Statutory Instrument 1261.

4. The Acts of the European Communities. These acts are used by English courts to determine the application of European law.

5. The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. Although the Convention is not the part of the English legal system, judges are obliged to interpret current English law in the spirit of the Convention.

6. The writings of eminent jurists, for example, Blexton’s Commentary on the Laws of England (1765).

The most important of such principles embodied in the Criminal law, specifically, are the following:

1. First of all, the principle of legality requires that prosecutions and punishments for crimes should be strictly in accordance with a pre-existing legal provision.

2. Another important principle that is discussed under this unit is the principle of equalitywhich requires that all those who violate the law should be dealt equally in terms of trial and punishment. There should not be any discrimination in the application of Criminal Law.

3. Individual autonomy is placed at a premium with the individual given as much freedom of choice as possible. The criminal law should therefore be confined only to censuring those activities that definitely harm the values and interests fundamental to proper social functioning.

Because of the many bodies involved in the administration of justice in England, an extensive structure can be built up, viz:

1. The police (which collects information that can later serve as evidence. This body can formally charge a suspect and conduct a police investigation as well);

2. The Crown Prosecution Service (its power is to advise the police on possible criminal proceedings, to check criminal cases initiated by the police, to prepare files for the court, to prosecute in the courts);

3. The Attorney General (appointed directly by the Queen and is the chief legal adviser to the Queen and the Government with overall responsibility for the Crown Prosecution Service);

4. Coroners (are used to verify the circumstances surrounding the death of a person whose body is found within the coroner’s precinct);

5. Courts(their system includes the Court of the House of Lords, the Court of Appeal, the High Court, the Crown Court that together constitute the Supreme Court; Magistrates’ Courts).

Almost all criminal cases begin before justices of the peace. Some cases may be heard at the first hearing, for example when the defendant pleads guilty to a crime. More serious cases are heard in the Crown Court, such as murder and rape. Magistrates’ courts will usually have one to three magistrates. They may be assisted by a solicitor. In the Crown Court, there is one judge. But more often there is still a jury at the trial.

At the first trial, many cases are adjourned (“postponed”) to another date. If the defendant does not plead guilty to the crime, the court needs to set up a trial to get evidence of what happened. At the first hearing, the court requests information about the case, sets a trial date and issues court orders (“directions”) to prepare the case for trial. At trial, if the defendant does not plead guilty, the court will hear testimony from prosecution witnesses and may receive written evidence. Witnesses for the prosecution may be questioned by the defendant or the defendant’s lawyer.

Speaking of the criminal processes of England, Wales and Russia, it is possible to highlight both possible to highlight both similarities and differences. Differences can be identified already at the stage of pre-trial proceedings:

1. In the Russian law there is an investigator who performs search, inspection and interrogation. In England and Wales these functions are performed by a police officer.

2. Unlike the Russian police officer, an officer in England and Wales can make independent responsible procedural decisions when investigating a criminal case, but he is guided in his activities not by laws, but mainly by sets of practical rules.

3. In Russia the defender is a lawyer, while in England and Wales the defenders are barristers and solicitors. The main difference in their status is that barristers have the right to participate on the side of the defense in court proceedings, and solicitors, not having this right, carry out preparatory work connected to the collection of exculpatory evidence.

4. During a criminal trial in Russia an appeal may be heard not only by the same court, but also by an appellate panel, whereas in England and Wales the court remits the case to the Crown Court.

5. Also, the trial with the help of jury in England and Wales is of great importance while in Russia no jury trial is used in most of the cases.

Thus, it can be concluded that the criminal procedure in England and Wales has a complex structure administering fair and impartial justice. A feature of this system is the ever-increasing role of statutes in legislation. That is why, the problem of codification still remains in modern England and Wales. It is believed that this proceeding is an indicator for the identification of new rules for the Russian criminal process. But at the same time there are certain aspects that would be worth changing under modern rules and regulations.

Литература

1. Criminal Justice Act 1991. URL: https://www.legislation.gov.uk/ukpga/1991/53/contents

2. Criminal Justice and Court Services Act 2000. URL: https://www.legislation.gov.uk/ukpga/2000/43/contents

3. Regulation of Investigatory Powers Act 2000. URL: https://www.legislation.gov.uk/ukpga/2000/23/contents

4. Youth Justice and Criminal Evidence Act 1999. URL: https://www.legislation.gov.uk/ukpga/1999/23/contents

5. Criminal Procedure and Investigations Act 1996. URL: https://www.legislation.gov.uk/uksi/1997/1504/contents/made

6. Golovanova, N. A. Criminal Law of England: textbook for universities. Moscow: Urait Publishing House, 2022. 188 p.

7. John K. Criminal Procedure. International Legal Research. URL: https://lawin.org/criminal-procedure/#Criminal_Procedure (accessed 20.10.2022)

8. University of Minnesota: Libraries. URL: https://open.lib.umn.edu/criminallaw/chapter/1-2-criminal-law-and-criminal-procedure/ (accessed 20.10.2022)

9. Encyclopedia: Comparative Criminal Law And Enforcement: England And Wales. URL: https://www.encyclopedia.com/law/legal-and-political-magazines/comparative-criminal-law-and-enforcement-england-and-wales (accessed 10.04.2015)