Judicial Discretion and Criminal Litigation

Judicial Discretion and Criminal Litigation

Judicial Discretion and Criminal Litigation

Judicial Discretion and Criminal Litigation

Synopsis

Surveying the discretions exercised by criminal trial courts at both the Crown Court and Magistrates Court level and discretion in the criminal appellate process, this book provides a theoretical framework with which to assess discretions, examines the evidential and procedural discretions whose existence is recorded in cases, statutes, and the reports of law reform bodies, and lists the known principles by which these discretions should be exercised.

Excerpt

This book is a much expanded and completely revised and rewritten version of The Judge, Discretion, and the Criminal Trial, which appeared in 1982. the aim of this book is much the same as that of the previous edition, viz. to catalogue the discretions which are regularly exercised by the courts in the course of criminal trials, in so far as they are mentioned in published sources, to discover as many factors that are relevant to the exercise of these discretions as possible, to examine how an erroneous exercise of discretion may be corrected, and to provide a theoretical framework within which to assess and discuss judicial discretion. To include every discretion which a criminal court may exercise, and to create an exhaustive list of all the factors pertaining to the exercise of each discretion, is an impossible task. Infinite variations of the facts upon which discretion is exercised are possible and judges, stipendiary magistrates, and justices of the peace have an inherent power to control proceedings. This inherent power can be utilized in quite unpredictable situations, frequently of a trivial and unrepeatable nature. For example, the first edition of the book recounted (at p. 43) a decision of an Oxford Crown Court judge forbidding the accused to drink beer at lunchtime. He was tired of disruptions to afternoon sessions of the trial when the call of nature became too strong and one by one the accused dis-- appeared from the dock to make use of the Crown Court conveniences. Even discretions which are exercised on a more permanent basis are not always recorded in the standard repositories of legal information. By chance we saw the minutes of a meeting of the Tutorial Representatives of the University of Cambridge in 1985. This document noted that a letter had been received from the Clerk to the Cambridge Magistrates' Court which said that when junior members of the University facing charges came before that court an inquiry would be made as to whether the accused had sought his or her tutor's guidance, and if not, the court would be willing to adjourn a case until this had been done. The Times of 14 January 1978 draws attention to a previously unpublicized discretion which a judge of the Crown Court has to suggest privately to court officials, who make up the lists and allocate courts, that he should not be given a particular kind of case, for example, in the case of a judge inexperienced in financial matters, complicated fraud trials. This article was prompted by an announcement by Judge McKinnon that he did not . . .

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