REPORT ON THE EXCHANGE AND SUMMARY TRAINERS

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY TRAINERS Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: BRITISH Country of exchange: SPAIN Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2

3 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: BRITISH Functions: CIRCUIT JUDGE Length of service: 5 YEARS Identification of the exchange Hosting jurisdiction/institution: SPAIN City: VALENCIA Country: SPAIN Dates of the exchange: to Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT The exchange programme lasted 2 working weeks. I was assigned to the Audiencia Provincia de Valencia which is in the city of Valencia but covers the whole of the province of Valencia. My trainer was a magistrate of the criminal courts who deals with criminal cases with a maximum potential sentence of at least 5 years. This covers all serious criminal cases such as theft, fraud, burglary, assault, drugs and sexual violence. Its jurisdiction broadly equates to that of the crown court in the UK. The Audience Provincial also had jurisdiction over civil matters and within the same building there were: a. Criminal courts of first instance covering minor offences b. Social/labour courts concerned with labour/employment disputes c. Civil courts concerned with civil disputes between individuals and companies/instituions d. Minor courts concerned with criminal responsibilities of minors/juveniles aged between 14 and 18 years old e. Womens courts concerned with offences against women, especially domestic violence f. Overnight courts (Guardia de Incidencies) gave directions in respect of bail/custody, further investigations and new hearing dates, motoring matters dealt with and sentenced immediately In summary a. Guardia Criminales

4 b. Guardia Labores c. Guardia Civiles d. Guardia Minores e. Guardia Majeures During the exchange it had been arranged that initially during the first 4 days, I would discuss the functions, jurisdiction and practice of the criminal hall presided over by the magistrate that I would prepare and discuss with him other court members (the court sits as tribunals of 3) cases that they were to hear and deliberate upon in the forthcoming week, that I would sit in upon at least one trial and thereafter the deliberations of the Tribunal and the preparation of their decision. The decision was also supported by written reasons and I would be given input into the drafting of those decisions On the Friday of the first week I was introduced to a senior judge in the Audencia who was voted in by the other judges of all jurisdictions to represent them in the administration of the Courts. The Judiciary appeared to have a major and hands on role in the Audencia's administration and were in a more senior position than the civil servant administrators. At lunchtime and in the afternoon of that first Friday I was taken to the 19th century Palace of Justice in the centre of Valencia for the formal opening of the court year for the autonomus region of Valencia. This was a very grand occasion in a wonderful, historic building and involved all the senior judiciary, selected lawyers, administrators, politicians, the regions chief of police, various military representatives and students. There was an award to and a retirement speech by the head of the judiciary. The speech was erudite and reasoned and from a very respected and well regarded member of the Judicial establishment. The speech comprised a direct attack on the national government and the cuts in ministerial funding brought about by the financial crisis in Spain. The speech was widely reported and televised. It delay solely with matters concerning the administration of justice from an informed source but in a neutral and non-political way. Something I believe our own senior judiciary could take on board. The second week of the exchange involved visits to various other courts and departments involved in the administration of justice in Valencia. a. I visited civil courts and sat with a judge who presided over civil claims. These hearings had the appearence, form and substance of claims in District Judges Court in the UK save that there appeared to be no financial limit (either higher or lower) on the Courts jurisdiction. During the court sitting a number of cases were heard of a type that would be perfectly normal in an English D'J.s court for example a car damage only (no personal injury) road traffic accident, a tenant claiming return of a flat deposit and a counterclaim for damages to a property - circa EURO 200, an insurance company who were underwriters for claims in respect of Valencias hospitals and doctors were claiming unpaid contractual fees from the Valencia Regional Authority in the sum of EURO 2,400,000. Such sum was admitted on the day (although listed for trial) and the case resolved around a claim for interest. b. I sat in for a morning with the Guardia Incidencies - a judge in the overnight court. The arrests were brought in and dispensed of by way of directions, bail/custody and sentencing. c. I visited the office of the Chief Fiscal, that is the Chief Prosecutor for Valencia. She was in charge of 85 prosecuting lawyers. Those lawyers were broken down into specialist departments and only dealt with cases within their own individual specialist fields. Examples of such specialisms were murder, violence, drugs, fraud, government corruption, computer offences, juveniles d. I went with a Fiscal in the Juvenile Court (Guardia Jovenes) to observe the production of a 14 year old on charges of theft, robbery and assault (including an assault on his mother). His father was present, he pleaded guilty to specimen charges - an agreement which had been offered/made by the Fiscal and Defence prior to production. Immediatley thereafter he was taken to another part of the Court building which housed the probation team. There were present within the office a permanent staff of probation

5 officers, social workers, psychologists and educational experts. He was interviewed and assessed and within 1/2 hours a recommendation was made as to his future detention and in what conditons and he was sent to a secure childrens home pending the preparation of a full report and sentence. e. As the criminal justice system in Spain is "investigatory" as opposed to "adversarial" the Judiciary can and do interview witnesses, take statements and direct police investigations and the obtaining of expert forensic evidence. In respect of that latter matter there was a substantial Forensic Science Department within the court building. This was well equipped and professionally staffed. The Forensic experts complete their professional training and qualify in their own discipline (eg Doctors) before embarking upon post qualification forensic medicine courses and qualifications. The Department comprised labororatories, investgation rooms, pathology theatres, environmental analysis departments etc. If a judge required a forensic report into an aspect of the case it could be requested directly, obtained "in house" and queries or follow ups made immediatley or directly by word of mouth. I was particularly interested in the obligation and duty of the judge in the Spanish Criminal Justice System to direct the investigation and obtaining of evidence. Despite the UK Criminal Justice System being adversarial there is more and more emphasis on Judicial Case Management. As the standard and quality of advocates in the UK Criminal System diminishes and as the austerity programme bites deeper into police, probation, forensic science and legal aid resources there is more and more pressure on the judiciary to get involved in the trial process at an early stage and this is now devolving from timetabling and administrative work into hand on control of the prosecution and defence process. It is highly regrettable and I do not condone it in any way, but in order to make sure that justice is being done, it is necessary for the Judge to intervene at an early stage (eg Preliminary Hearing/Plea and Case Management hearing) and interfere effectively in the investigatory process. For example, to ask why he has no fingerprint evidence been sought when it may either a) strengthen the crowns case or alternatively b) strengthen the Defence case The ability and the resources available to the Spanish courts to order and access such inquirers quickly and with expertise was refreshing. It highlighted to me many of the difficulties that are inherent in the fragmentation and privatisation of the Criminal Justice System. The Spanish system is solely under the control of the Government or province. They employ the judges, the police, the fiscal, the probation service, the forensic science service, the prison officers and all the ancillary administrative staff, The system appears integrated and resourced and thus quicker, more efficient and more cost effective than that which this UK government and their predecessors have introduced and continue to promote. The Spanish seemed more concerned with delivering a criminal justice system to the community directly and practically. They did not appear to be hidebound by targets, protocols, agendas, guidelines, budgets, finance etc. They had not been overtaken by the spurious allusions to business practice that have been brought in the UK criminal justice system. They did not have "clients" and "customers", they did not have business plans for the future. Their system seemed purer and more old fashioned and I have to say the better for that. As to the European aspect of the exchange I was aware although not surprised by their attitude generally to Europe. They seem to accept, far more readily than their UK counterparts that they are part of the European Union and in particular have regard and respect for European decisions. Much needs to be done with the UK jurisdiction to engender and develop a European spirit and connectivity. It seems to me that, that is one of the great benefits of the exchange programme. The difficulty with the programme however is that it is likely to attract those whose outlook is already pro-european whereas those whose eyes need opening and would perhaps learn most from the exchange are those least likely to volunteer. It is my view that the Exchange Programme was of considerable benefit to me and to the limited community of Judges and legal professionals with whom I can share the experience. An improvement that I would suggest, although it may be fraught impracticalities would be to make the exchanges mandatory not voluntary and make it part of a judges employment contract that he has to embark upon such an exchange. Until then, I suspect with regard to the UK you will only be getting Europhiles whereas it may

6 be better to see and attempt to convert the Eurosceptics. There is, with the UKJsutic System a latent air of superiority. Our system has developed over many hundreds of years into the very sophisticated and admired system of an adversarial process which now prevails. There is a tendency to assume that our system is the best and that we have nothing to learn from others who have adopted a different criminal justice process. One of the things that surprised me most (although it shoud not have done) was that each jurisdiction faces exactly the same factual situations which need to be addressed and to be resolved. The crimes may have different names, elements, statutory/common law provence etc but at the end of the day people assault or murder each other in whichever jurisdiction we live, adults sexually abuse minors, one person will defraud another or an instituion etc. They are all the product of human misbehaviour wheresoever we live and each society or country wants punishment, rehabilitation, deterrance and justice to prevail. A sharing of our processes and procedures and a cross fertilisatipn is essential in a modern and intergrated Europe. It is thus regrettable that the UK continues, often narrow-mindedly in pursuing its own arrogant path. SUMMARY

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Description of the exchange Institutions you have visited, hearings, training activities, seminars/conferences you have attended or in which you participated The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its training role in the host country, how it functions III- The training system of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s training system that you were particularly interested in. IV- The comparative training aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation of training? Which organisational method, educational tools, etc did you find particularly interesting and should, in your opinion, be disseminated more widely in Europe? V- The European training aspect of your exchange a) Did you take part in training activities related to comparative or European law/case law? b) Did you observe training methods or practices which in your view represents a more effective way of: - enhancing the knowledge and good use of Community instruments, EU law/case law, cooperation mechanisms? - improving the implementation of the core principles of the European Convention for the protection of Human Rights and Fundamental Freedoms? VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your training practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?