Criminal justice system (Research Paper Sample)
The paper WAS About criminal justice system whereby JUDGES CAN CREATE LAWS WHERE THERE IS LEGISLATURE GAPS SUCH THAT THERE ARE NO PROPER EXISTING LAWS ON CERTAIN AREAS. ALSO, JUDGES CAN CREATE A LAW WHEREBY THE EXISTING LAWS DO NOT PROTECT THE MORALITY IN SOCIETY OR SAFEGUARD THE LEGAL RIGHT AND INTERESTS OF THE PUBLIC OR INDIVIDUALS. IN THESE INSTANCES, IT IS REASONABLY ENOUGH TO CREATE NEW LAWS BUT SHOULD BE APPLICABLE UNTIL LEGISLATIVE BODY ENACTS THEM AS LAWS. THEREFORE, COURT SHOULD NOT HAVE MANDATE TO CHANGE EXISTING LAWS OR CREATING LAWS AS IT WISHES BECAUSE THAT WOULD UNDERMINE THE POWER OF PARLIAMENT WHICH IS CONSTITUTIONALLY RESPONSIBLE FOR CREATING LAWS. ALSO, JUDGES ARE LIKELY TO BE UNACCOUNTABLE THUS UNDERMINING FAIRNESS AND JUSTICE IN CRIMINAL JUSTICE SYSTEM. THEREFORE, JUDGES SHOULD NOT CREATE LAWS UNLESS IN VERY CONVINCING AND REASONABLE INSTANCES AND LAWS CREATED SHOULD BE TEMPORAL BECAUSE IT IS NOT A CONSTITUTIONAL FUNCTION OF COURTS TO CREATE Lsource..
Criminal Justice System
Reflection on my trip to magistrate court
My trip to magistrate court was on a Monday December 2018 at 8 o’clock in the at Southport magistrate court. Before, arriving, I was expecting that the court would start immediately at 8 o’clock and it is judges who open the sessions. But it was opened at 9 o’clock and prosecutor presented the opening speech. Criminal case involving Steve versus Justus whereby Steve was accused of physically assaulting Justus began. I was expecting he would be convicted right away but prosecutor’s lawyers cross examined the defendant and defendant’s witnesses. Similarly, defendant lawyers cross examined prosecution witness and plaintiff witnesses were questioned by both defendants and prosecution lawyers and this session end. Judges gave a date to give their verdict. From this case, I learnt that, in criminal justice system, the function of judicial system is to ensure that there is justice and fairness to individuals who break the law. The accused has to be tried before convicting him or her. If I were to prepare for the event again, I would book an appointment and establish kind of cases that would be in court on that particular day.
R v R  UKHL 12;  1 AC 599
R v R is a decision reached by House of Lords in the year 1991 in England which ruled that, under criminal law marital rape exists. The court maintained that English law did not exempt marital rape and therefore a man can be prosecuted for raping his wife. This case involved a man who was accused of attempting to rape his wife, who was living with her parents and caused her bodily harms. The defense lawyer argued that there was not offence committed by defendant. When the conviction was made, the lawyers appealed it purporting that common law can exempt marital rape but conviction was upheld by House of lord and Court of Appeal (Vallithan, 2017). This resulted to new a criminal law creation by the courts.
Arguments for judicial creativity
The judicial creativity is important in the cases whereby the statues made by the parliament are not meeting all legal system demands such as defining clearly some words used in the law. In such cases, judges create a new law by interpreting the words in law in order to create sense in those words and conviction is delivered to achieve certain goals instead of considering the words used in the law. For example, in R v R, the term unlawful that is used in 1956 Act and in Part XII of the Crime Ordinances section 117(1A) was interpreted by, court of appeal of appeal to mean it was just a surplusage whereby the immunity of the marriage was abolished. The judges termed the word unlawful as common law fiction and in their ruling, marital raping became a criminal offence. Interpretation of unlawful under common law was that women could give implied consent to sexual intercourse. Thus, her husband was immune against prosecution for raping his wife (Emerton, 2002). Moreover, judicial creativity is also important to fill legislative gaps created when enacting laws. In case the legislature did not foresee future problems and it is unable or reluctant to make new laws, the judges can create a law that would be applicable until the parliament enacts a new law. For example, courts have dealt with various cases involving environmental issues where there were no existing laws or laws were not providing a redress to the affected parties. Judiciary recommended several guidelines’ to the relevant bodies. Also, court can make laws that can protect the morality of the public whereby judges can create laws to protect the legal rights and interests of the individuals from being infringed (Rahman and Badhon, 2018). In case of R v R, judges made law to protect the rights of the women. It is very immoral and unlawful to rape a women whether in marriage or outside the marriage and therefore there should be no law protecting rapists. So, it was very right for the judges to create a criminal law to prevent men from raping their wives. Subsequently, this law would up hold morality in the society since the rights of would be respected by punishing those husbands who commit violence against their wives through sexual assaults.
Arguments against judicial creativity
On the hand it is wrong for judges to make laws because, in criminal justice system, there should be consistency in the convictions and all offenders have to be treated equally. Creating new laws the offenders may not treated equally which can result to injustices and bring doubts about justice administration. Therefore, courts have to maintain the confidence that there would fairness and justice while convicting the offenders (Mallett, 2015). For example, between 1736 and 1992 the common law had exemptions whereby marital rape was not a crime but thereafter it became a crime. This can be seen as unjust because the law could not be applied equally. Additionally, by creating a new law, court breaches the constitutional principles whereby it is the parliament alone which makes laws. The work of judges is to interpreting the law instead of adding or subtracting laws. Also, by making laws, the concept of foreseeability interpretation is contrived and this circumvents the principle of law’s fundamentals which are supposed to protect the citizens. This is likely to create unaccountability among judges because they may abuse their powers while administering justice to the offender or the victim. Transparency and accountability are very important for any democratic regime. For example, the court of Appeal upheld the judgment made on the case of R versus Crook in 2004 whereby th
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