When, following the law enforcement actions described in the previous section (5.2.5), someone has been apprehended for breaking the law, it is necessary to determine whether the person is truly guilty or not. The law enforcement agencies may be keen to apprehend a culprit, so that they appear to be efficient, but they should not usurp the functions of a court system; if they do so, the resulting 'police state' would breach people's rights to a fair trial – in contravention of the Universal Declaration of Human Rights (Articles 10 and 11).
It is desirable to have courts which are independent of both the law enforcement agencies and the lawmakers, as required by the Separation of Powers that is described later (5.2.8). The following sub-sections examine some of the issues to be considered:
· Law-courts can be in different formats (5.2.6.1): they can be adversarial or inquisitorial; some are specialist; juries might feature.
· The appointment of judges is a sensitive issue (5.2.6.2); they might be selected or elected; impartiality is essential.
· Sentencing policy, within politically imposed guidelines, is best left to judges (5.2.6.3). Mandatory sentences are a political statement rather than a quest for justice.
· There is a need for an appeals process (5.2.6.4); it can sometimes go beyond a country's Supreme Court to international courts.
(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books. The latest versions are at book contents).