Добавил:
ivanov666
Опубликованный материал нарушает ваши авторские права? Сообщите нам.
Вуз:
Предмет:
Файл:Техника юридического перевода (английский язык). Учебно-практическое пособие
.pdf
guish from; established; regulations; exhaustive; extraordinary
courts; a whole of federal courts; to administer justice.
7. Переведите письменно текст о судебной системе Россий-
ской Федерации на английский язык:
ПОНЯТИЕ СУДЕБНОЙ СИСТЕМЫ
РОССИЙСКОЙ ФЕДЕРАЦИИ
Представление о судебной системе Российской Федерации и
ее понимание основывается на ряде основных признаков, выделяющих суды из системы других государственных органов. Судебную систему составляют не все виды судов, а только те, которые действуют от имени государства или субъекта Российской
Федерации и являются государственными органами. Создаются
такие суды на основе установленных предписаний федеральных
конституционных законов и федеральных законов.
Судебная система Российской Федерации устанавливается
Конституцией Российской Федерации (ч. 3 ст. 118, ст.ст. 125—
127), Федеральными конституционными законами «О судебной
системе Российской Федерации» и «О Верховном Суде Российской Федерации». Перечень судов, указанных в Федеральном
конституционном законе «О судебной системе Российской Федерации», является исчерпывающим. Создание чрезвычайных судов
не допускается.
В судебную систему России входят только те суды, которые
относятся к федеральным судам или судам субъектов Российской
Федерации, названным в законе. Финансирование этих судов
осуществляется либо из государственного бюджета Российской
Федерации, либо из бюджетов субъектов Российской Федерации.
Располагаются эти суды на всей территории Российской Федерации в соответствии с ее административно-территориальным делением и территориальным делением субъектов Российской Федерации, на которые распространяется их юрисдикция согласно
судебным округам, судебным районам или судебным участкам.
Включаемые в судебную систему Российской Федерации суды
реализуют судебную власть на соответствующей территории и
осуществляют правосудие в установленной законом процессуальной форме. Виды судопроизводств предусматриваются Конституцией Российской Федерации и закрепляются, как правило, в
процессуальных кодексах: Арбитражном процессуальном, Гражданском процессуальном и Уголовно-процессуальном.
Таким образом, судебная система Российской Федерации —
это совокупность всех предусмотренных федеральными консти-
51
туционными и федеральными законами федеральных судов и судов субъектов Российской Федерации, действующих на территории Российской Федерации в соответствии с ее административнотерриториальным делением и осуществляющих правосудие в
установленных процессуальных формах судопроизводств.
ДОПОЛНИТЕЛЬНЫЕ ТЕКСТЫ ДЛЯ ПЕРЕВОДА
В КАЧЕСТВЕ САМОСТОЯТЕЛЬНОЙ РАБОТЫ
СТУДЕНТОВ
THE POLICE AND CRIMINAL EVIDENCE ACT 1984
On 1 January 1986 the Police and Criminal Evidence Act came into force. Police powers for the investigation of crime have been significantly increased. The police were, for instance, given a new power to
stop and search persons in the street for offensive weapons, housebreaking implements and anything that can be used for taking a motor
vehicle. The power to stop and search for stolen goods, previously
available only to the police in London, was extended nationwide. New
general powers were given to the police to get a search warrant to look
for evidence of serious offences. Virtually anything found during the
course of a lawful search may now be seized by the police and used in
evidence — whether or not it was what they were looking for. The
power of arrest was extended to cover a variety of new situations, notably where the police officer regards an arrest as necessary to ascertain the apparent offender's name and address or to stop him causing
injury to persons, damage to property, an obstruction of the highway
or an offence against public decency. A suspect can be held without
charges for questioning for up to 96 hours. The police can take fingerprints for criminal investigation purposes (rather than having to get
authority from the justices for them to be taken).
At the same time, the new powers were qualified by a variety of restrictions and qualifications. Thus before exercising the power of stop
and search the police officer must identify himself and the station
from which he comes; he must tell the person searched the grounds
and the reason for the search; he must have reasonable suspicion genuinely related to the individual at the time (as opposed to a stereotype
impression because he is young, scruffy, black, a person with previous
convictions etc.); he must also normally make a record of the event
and inform the person concerned of his right to a copy of the record.
Unless the power existed under the old law, the new right to get a
search warrant does not normally apply to certain types of exempt ma-
52
terial — such as the records of doctors, Citizens' Advice Bureaux, and
other advisory agencies, school authorities, social workers and probation officers, the contents of a journalist's notebook and any material
held by a journalist in confidence.
If the police want access to material held as a result of a confidential relationship which is not included in the category of exempt material, they must ask a judge rather than the magistrates. Unless he is in
some way implicated in the crime, the person holding such material
must be given an opportunity of being there to contest the application.
If the judge grants the police access to the material, it will be by way
of an order to produce rather than a search warrant. Where the police
enter premises with the householder's consent (which is much more
common than after obtaining a search warrant), they must now tell the
citizen that he is not obliged to give consent and, if he does agree,
such consent must be in writing.
All persons in custody in a police station are now the specific responsibility of a custody officer whose functions include seeing that
the suspect is informed about his rights both orally and in writing. He
must be told of his right of silence, of his right of access to a solicitor,
of his right to have someone outside the station informed of his
whereabouts, and to have a copy of the custody record form on which
all the details of what transpires in the police station are recorded. The
custody officer must also ensure that this record is in fact maintained
and he is personally responsible for the well-being of the prisoner. Noone may be detained without charges for longer than 24 hours, unless
it is a serious offence and unless an officer of the rank of superintendent has approved. No-one can be held for longer than 36 hours unless
a magistrates' court has approved and then only after a hearing at
which the suspect and, if he wishes, his lawyer must be present. The
lawyer in such hearings is provided free of charge regardless of
means. The lawyer who comes to advise an arrested person in the police station will normally also be available free of charge without regard to means — but access to a lawyer can be delayed for up to
36 hours if the offence is serious and if a superintendent reasonably
believes that bringing in the lawyer may lead to criminal associates
being alerted or the destruction of evidence or concealment of the proceeds of the crime. At each stage there is therefore a tension between
the new powers and the restrictions or safeguards.
One vital aspect of the new regime is the system of Codes of Practice accompanying the 1984 Act — on Stop and Search, Search of
Premises, Questioning of Suspects in the Police Station and Identification. (When tape recording is introduced generally, there will be a fifth
code on that subject.) It is true that, technically, the Codes are not law
53
and a breach of the Codes therefore cannot in itself give rise either to a
criminal prosecution of a police officer or a civil action for damages
against the police. Some argue that this makes the Codes virtually useless as a control of the police. But a breach of the Codes does automatically constitute an offence against police discipline — and although
one does not expect many such proceedings, police officers plainly
regard the threat as a real one. More important than the theoretical
threat of disciplinary proceedings is the fact that the police are treating
the Codes as the Bible — to be followed basically to the letter. Every
police officer had extended training over several days on the new Act;
each has his own copy of the Codes, which are extremely detailed and
lengthy. The fact that they are so detailed may help to establish their
authority and importance in the mind of the police officer, who tends
by nature to be rule-oriented. Certainly it has been made abundantly
clear by senior and middle-aged police management that officers are
expected to play it according to the book and, if anything, in the early
stages the problem may have been a tendency on the part of officers to
stick slavishly to the rules, even to the point of absurdity, rather than
the opposite problem of ignoring them too readily, as in the bad old
days of the Judges' Rules prior to the 1984 Act.
The police were at first euphoric about the proposals in the Royal
Commission's report. By the time it came to implementation of the
new Act, however, they viewed them with considerably less enthusiasm. Satisfaction at the extension of their powers was tempered by
anxiety about the requirements of record keeping, greater information to be given to suspects, better access to lawyers, controls on
the length of detention and other new protections for the suspect.
The civil libertarians, for their part, were not hugely impressed by
the new controls and safeguards, believing that many would turn out
to be on paper only.
MERITS AND DEMERITS OF THE P.A.C.E.
The debate about the Police and Criminal Evidence Act started
long before it was even a gleam in the eye of the draftsman, with the
publication of the Royal Commission's Report. It continued furiously
throughout the passage of the Bill through Parliament and the lead
period of more than a year before the Act came into force. Now that
the Act is actually in force the debate rages on — though how it is
working is a matter of controversy. The police view that the Act is
creating serious problems for the service was given some support in an
article published in March 1987 in Policing by Ian McKenzie, a former police officer working with the Director of the Police Foundation,
54
and Barrie Irving on research into how interrogation techniques have
been affected by the new Act. Barrie Irving had conducted research on
interrogation in Brighton for the Royal Commission; now he had gone
back to study the impact of the Act. The first report by his co-worker,
Mr McKenzie, focussed on the effect of the new requirement in the
Code of Practice that officers make a contemporaneous note of the
exchanges in the interrogation process. Mr McKenzie reported that
this requirement was making it more difficult for police to break down
a suspect's story. Suspects, he suggested, had plenty of time to weigh
their answers and could stop the process of note-taking by demanding
to have a note read back to them. A CID* officer was quoted as saying
'The flow is gone. You can't test what people say because all the time
they're one step ahead of you. With the determined criminal, the one
who has really got something to hide, you'll never get near him.
Ian McKenzie's report suggested that the whole style of questioning of suspects by the police had changed. Officers, for instance, no
longer had a short preliminary meeting with the suspect to have a first
look at him to size up the best way of handling him. Intensive questioning under pressure and close observation had given way to the tediously long-winded questioning required by the obligation to keep a
full note, which meant that the suspect was in a better position to
study the officers than they him. Almost half of every interview was
silence, whilst the officer was writing. It was the officer rather than
the suspect who was likely to display signs of stress such as heavy
sighing or rubbing of the hand he was writing with. The scope of interviews was tighter and the information sought and obtained more
restricted. Officers, for instance, hardly went beyond the narrow confines of the offence under investigation. Mr McKenzie admitted that
all this might change when tape recorders were introduced in police
stations, but in the meanwhile the police might have lost their skill in
interrogation.
The Home Office produces regular statistics on a quarterly basis
regarding certain police powers under the Act. These show that in
1986 the police recorded 109,800 stops and searches of persons and
vehicles. Of these, 44 per cent were in regard to stolen goods, 29 per
cent for drugs, 9 per cent for going equipped to commit burglary or
housebreaking, and 10 per cent for miscellaneous other categories.
Stops and searches for offensive weapons — which gave rise to most
of the fuss both in the deliberations of the Royal Commission itself
and in the debates that led up to the enactment of the legislation —
accounted for only 6 per cent of the total. (The figures relate only to
stops and searches, not to stops for the purpose of questioning. Most
forces used to record stops for questioning, but no longer do so be-
55
cause it is not required by the Act. The difference is enormous. Thus
the Metropolitan Force recorded 607,000 stops in 1984, but between
April and December 1985 when the force adopted the procedures required under PACE there were only 24,600 recorded stops and searches.)
The 'hit rate' in the form of arrests for an offence following a stop
and search varied from 15 per cent in the case of stolen goods and going equipped to 19 per cent for drugs and offensive weapons. Overall
it was 17 per cent. This was slightly better than the comparable figures
for arrests following use of stop and search powers before the Act —
which ran at a rate of a little over 10 per cent.
There were 377 recorded road blocks under the Act in 1986 involving the blocking of some 1,280 roads and the stopping of an estimated
61,100 or so vehicles. The result was a total of 34 arrests arising out of
the road blocks and 30 arrests for completely different matters.
The statistics also deal (very confusingly) with the problem of detention for questioning. Under the Act the police have to get permission from a magistrates' court to hold a suspect for questioning beyond
36 hours. The figures show that in 1986 there were only 696 persons
in respect of whom an application for a warrant of further detention
was made — and that the application succeeded in all but 12 cases.
(About three-quarters of those so held were ultimately charged.) But
many of these were cases where in the event the suspect was not in the
end held for more than 36 hours. The Act unfortunately does not require that the numbers of arrests be recorded nor that records be kept
of the numbers held for up to 24 hours or up to 36 hours. These highly
important statistics are therefore not available. Moreover, the data regarding length of detention under warrants of detention are meaningless, because police forces interpret the start of the period in different
ways. But the statistics do show that 1,008 persons held for under 36
hours were released without charges, and there were another 179 cases
of persons released without charges in respect of whom a warrant of
further detention had been obtained.
The much discussed and much criticised power to conduct an intimate search of body orifices was used in relation to 104 persons during 1986. In only three of these cases was the search conducted by a
police officer. Sixty of the searches were for drugs — and drugs were
found in seven instances; 45 intimate searches were for weapons and
in five cases a weapon was found. There are also some (rather poor)
statistics on the use made by suspects of the right to see a solicitor,
over which the police expressed great anxiety before, during and after
the enactment of the new legislation. The Act requires that all suspects
be informed of the right to see a solicitor, though access can be de-
56
layed in certain circumstances where the offence is a serious one. The
solicitor is free of charge regardless of means. Figures published by
the Law Society showed that in the period January to November 1986
over 130,000 suspects were assisted under the scheme, and that projections suggested that this figure would be over 200,000 annually
once the scheme had become properly established. Unfortunately,
again the statistics are less helpful than they should be because there is
no record of the proportion of cases in which the scheme is used. But
it is safe to assert that the numbers receiving the help of solicitors under the Act is distinctly higher than before it was passed, so that it has
had some impact.
The debate about the merits or otherwise of the new system introduced by the Police and Criminal Justice Act and the Codes of Practice will obviously continue for many years. The system was the product of about as careful a process of debate as can be expected in a
modern democracy. A Royal Commission investigated the problems
over several years. It commissioned its own research and received a
mass of evidence from all interested parties. Its Report was commented on extensively. The legislation, which broadly put into effect the
ideas of the Royal Commission, was exhaustively debated in Parliament and the Codes were drafted and re-drafted in the light of comments from all quarters.
The first official assessment of the overall impact of the new Act
by the Home Secretary suggested that 'while some minor changes of
practice might be needed there was no need to question the fundamental balance struck in the Act'.
IMPACT OF P.A.C.E. ON DETECTION OF CRIME
It is, of course, an open question whether all the new powers under
PACE have much to do with reducing the level of crime, or catching
or even convicting more criminals. Curiously, alterations in police
powers do not necessarily enable the police to make any more 'good
arrests'. This is because, contrary to what is widely supposed, the police are only rarely in a position to make progress in a criminal investigation through use of the powers bestowed by the law. In the overwhelming majority of instances where someone is arrested for a criminal offence it is because the crime has been reported to the police by a
member of the public and the report of the crime includes sufficient
information to enable the police also to identify the culprit. A study of
how crimes come to be detected conducted for the Royal Commission
on Criminal Procedure showed that out of a random sample of nearly
1,000 cases, 82 per cent were reported to the police — mostly by the
victim. In an additional sample of 174 serious cases the proportion
57
reported to the police, again usually by the victim, was 94 per cent.
The author's conclusion was that police officers play only a small role
in discovery of offences, and certainly a much smaller part than the
sociological tradition of the police in the discovery of crime might
appear to suggest. In the same study the author concluded that 'more
often than not crimes are detected because the identity of the suspect
is relatively clear from the outset'. Unless the police get assistance in
cracking the case they rarely have enough leads to discover the culprit.
In real life the kind of sleuthing engaged in by mythical heroes from
Sherlock Holmes to Kojak is relatively rare. Whether police powers
are somewhat greater or somewhat less may therefore not make as
much difference to the capacity of the police to catch criminals as one
might think.
For one thing, the great majority of crimes are not reported at all.
The British Crime Survey conducted by the Home Office and published in 1983 showed, for instance, that at most only one half of all
burglaries, a quarter of sexual offences and a very small proportion of
vandalism cases are reported to the police. The second British Crime
Survey published in 1985 produced broadly similar data. Overall,
62 per cent of all crimes were not reported. Only thefts of cars were
almost always reported. Of those crimes that are reported, an arrest is
normally only possible if the citizen can identify the criminal or at
least provide the basis for such an identification. The whole paraphernalia of police powers is somewhat marginal to this process. In a
few situations it will be of great practical relevance but in the majority
of cases it will make little, if any, difference one way or the other. David Steer in his study for the Royal Commission on Criminal Procedure on how crimes are detected concluded that 'there [were] no obvious powers which police might be given that would greatly enhance
their effectiveness in the detection of crime'.
Moreover, the precise extent of police powers does not necessarily
indicate what the police will actually do in practice on the ground. For
instance, changing the rules about search warrants makes only a marginal impact if most searches of premises are made without a search
warrant. Also the police may behave illegally — and when they do
and evidence results, the traditional approach of the English courts is
normally to admit even illegally obtained evidence. (Under the English rule the judges distinguished traditionally between confessions,
which were inadmissible if they followed a threat or promise made by
a person in authority such as a police officer, and other evidence
which was only inadmissible in the discretion of the court. But in recent years, the courts narrowed the situation in which a confession
would be held inadmissible and the extent of the discretion to exclude
58
other evidence illegally or improperly obtained. In the United States
by contrast the courts have always taken a much stronger line in excluding the 'fruit from the poisoned tree'.) The Police and Criminal
Evidence Act gives the judge discretion to exclude evidence obtained
by improper means if in his view admission of the evidence would
render the proceedings unfair — but it is highly probable that the basic
philosophy of English judges will continue to be that relevant evidence should generally be admitted even if it has been obtained by
reprehensible methods. The discretion to exclude the evidence will
probably be reserved only for the worst cases of police misconduct —
though the rules on the admissibility of confessions remain stricter
than for other evidence.
This is not to say that the drawing and re-drawing of the extent of
police powers is unimportant, only that it makes less difference to the
success of the police in criminal investigation than is generally supposed and that to some extent its importance may be mainly symbolic.
It is important to get the balance in the structure of police powers
right, because it is plainly unsatisfactory if it is felt to be wrong. The
balance should so far as possible be fair as between the interests of the
suspect and the interests of the police. But one should not be lulled
into a false sense that by re-ordering the rules regarding police powers
one has necessarily made any great contribution to improving, let
alone solving, the problem of crime. It is right to do it for its own sake
and because here and there it will actually make a difference on the
ground. But re-shaping the rules probably does little that results in
more, or for that matter fewer, criminals being brought to justice.
Notes:
P.A.C.E. = Police and Criminal Evidence Act, 1984
CID = Criminal Investigation Department
CODE OF CROWN PROSECUTION
The Crown Prosecution Service is a public service for England and
Wales headed by the Director of Public Prosecutions. It is answerable
to Parliament through the Attorney General.
The Crown Prosecution Service is a national organisation consisting of 42 Areas. Each Area is headed by a Chief Crown Prosecutor,
and corresponds to a single police force area, with one for London. It
was set up in 1986 to prosecute cases instituted by the police. The
police are responsible for the investigation of crime. Although the
Crown Prosecution Service works closely with the police, it is independent of them.
59
The Director of Public Prosecutions is responsible for issuing a
Code for Crown Prosecutors under section 10 of the Prosecution of
Offences Act 1985, giving guidance on the general principles to be
applied when making decisions about prosecutions. This is the fourth
edition of the Code and replaces all earlier versions. For the purposes
of this Code, ‘Crown Prosecutor’ includes members of staff in the
Crown Prosecution Service who are designated by the Director of
Public Prosecutions under section 7A of the Act and are exercising
powers under that section.
1. Introduction
1.1. The decision to prosecute an individual is a serious step. Fair
and effective prosecution is essential to the maintenance of law and
order. Even in a small case a prosecution has serious implications for
all involved – victims, witnesses and defendants. The Crown Prosecution Service applies the Code for Crown Prosecutors so that it can
make fair and consistent decisions about prosecutions.
1.2. The Code helps the Crown Prosecution Service to play its part
in making sure that justice is done. It contains information that is important to police officers and others who work in the criminal justice
system and to the general public. Police officers should take account
of the Code when they are deciding whether to charge a person with
an offence.
1.3. The Code is also designed to make sure that everyone knows
the principles that the Crown Prosecution Service applies when carrying out its work. By applying the same principles, everyone involved
in the system is helping to treat victims fairly and to prosecute fairly
but effectively.
2. General Principles
2.1. Each case is unique and must be considered on its own facts
and merits. However, there are general principles that apply to the way
in which Crown Prosecutors must approach every case.
2.2. Crown Prosecutors must be fair, independent and objective.
They must not let any personal views about ethnic or national origin,
sex, religious beliefs, political views or the sexual orientation of the
suspect, victim or witness influence their decisions. They must not be
affected by improper or undue pressure from any source.
2.3. It is the duty of Crown Prosecutors to make sure that the right
person is prosecuted for the right offence. In doing so, Crown Prosecutors must always act in the interests of justice and not solely for the
purpose of obtaining a conviction.
60
Соседние файлы в предмете [НЕСОРТИРОВАННОЕ]