Chapter 2: The Courts & Tribunals System Flashcards
- The criminal courts
1.1 What is criminal law?
Criminal law is part of public law, that is to say the law which concerns the relationship between the individual and the State.
Criminal cases are brought by the prosecution, representing the State, against the defendant
(sometimes referred to as ‘the accused’).
Immediate objective of criminal law
The immediate objective is to allow the State to punish people who have committed offences against society. In a wider sense the criminal law is intended to establish standards of behaviour appropriate for a peaceful and productive society and to provide a deterrent against those who
might breach these.
Prosecution brought in the name of the Crown
The prosecution is generally brought in the name of the Crown. For instance, in the case of R v Brown [1970] 1 QBD 105, Mr. Brown was being prosecuted by the State, the ‘R’ standing (then) for Regina – the Queen (now Rex – the King). The correct way to express the case name would be ‘the Crown against Brown’, or it may be referred to merely as ‘Brown’.
1.2 Standard and burden of proof
The standard of proof means the level of certainty to which a party must prove their case in order
to succeed at trial. One of the key differences between criminal and civil law is the standard of proof. In criminal law, the standard of proof is ‘beyond reasonable doubt’.
Prosecutor as the initiator of actions
With some exceptions, which you will cover elsewhere in your materials, the prosecution, as initiator of the action, bears the burden of proof in criminal proceedings. This means that the prosecution must prove its case beyond reasonable doubt; the defendant (with some exceptions)
does not have to prove anything.
1.3 The parties
The parties to a criminal case are the prosecution (the Crown) and the defendant. The body that initiates criminal proceedings in England and Wales is the Crown Prosecution
Service (CPS). This is independent from the police and any other investigative authorities.
Prosecutions can also be started by other governmental agencies in specific situations, for instance the Health and Safety Executive or the Environment Agency. It is also possible for prosecutions to be launched at a local government level, for example for minor environmental
offences such as fly tipping, blocking the highway, or failure to comply with an enforcement notice.
Defendants to legal proceedings
Defendants to criminal proceedings can be individuals, or ‘legal persons’ such as companies.
1.4 Guilty or not guilty
Every defendant has a choice whether to plead guilty (admit the offence) or not guilty (deny the
offence). If the Defendant pleads not guilty, the case will go on to a trial. The court’s decision in criminal
proceedings at first instance (ie at trial) is called a ’verdict’. It will be either ’guilty’ or ’not guilty’.
Defendant found guilty
If the defendant is found guilty, the court will go on to impose a ’sentence’. This might be imprisonment, or a lesser form of punishment, such as a fine. If the Defendant pleads guilty, the court will go on to sentence. Once the Defendant has pleaded guilty, they are treated as being convicted of the offence, and cannot appeal that conviction. They can, however, apply to ‘vacate’ their plea if, for example, they change their minds.
1.5 The Magistrates’ Court
The Magistrates’ Court is the lowest level of court in the hierarchy of criminal courts. Virtually all
criminal cases start in the Magistrates’ Court, and around 95% will end there.
All summary criminal offences
The Court tries all summary criminal offences (minor offences) and some triable either way offences (mid-range offences which can be tried in either a magistrates’ court or Crown Court). The Magistrates also have some civil jurisdiction.
Unlimited fine & maximum imprisonment
The Magistrates have the power to impose an unlimited fine and/or impose a maximum prison
sentence of twelve months for a single offence.
Commit the defendant to the Crown Court either for sentence or trial
Where the Magistrates do not dispose of a case, either because they do not have the power to impose a higher sentence or because the offence is one triable either way and a Crown Court trial is thought more appropriate, they will commit the defendant to the Crown Court either for sentence or trial, as the case may be.
Magistrates’ Court does not create precedent
The Magistrates’ Court does not create precedent, but it is bound by the Administrative Court, the Court of Appeal and the Supreme Court.
1.6 Crown Court
The Crown Court is the senior court of first instance in the criminal law.
It will hear ‘indictable only’ offences. These can only be tried in the Crown Court, because they are too serious for the sentencing powers of the Magistrates.
Either Way Offenses
In addition, the Crown Court will hear ‘either way’ offences, transferred to it from the Magistrates’ Court. Trials in the Crown Court involve juries in almost all cases. The Crown Court is administered by an executive agency of the Ministry of Justice, HM Courts
and Tribunals Service, and it sits in approximately 80 locations in England and Wales. The most
well-known is the Central Criminal Court in London, the ‘Old Bailey’.
1.7 Appeals from the Magistrates’ Court: Trials heard De Novo
A convicted defendant can appeal to the Crown Court against their conviction, or their sentence,
or both. If the defendant appeals against conviction, their trial will be heard ‘de novo’. In other words, it
will be heard afresh, with all the evidence and witnesses examined again. The trial will take place
before a Crown Court Judge flanked by two Magistrates.
Risk of Defendant is that Crown Court Sentencing Powers is higher
The risk the defendant takes is that the sentencing powers of the Crown Court are greater than those of the Magistrates, and so their sentence may be increased if the appeal is unsuccessful.
Appeal ‘by way of case stated’
If either the prosecution or the defence consider that the Magistrates’ decision was legally flawed (as opposed to flawed in its assessment of evidence, or on sentence), it may appeal to the
Administrative Court, a specialist court within the King’s Bench Division of the High Court. This is known as an appeal ‘by way of case stated’.
1.8 Appeals from the Crown Court
(defendant)
A defendant convicted and sentenced in the Crown Court may, with the permission of the Court
of Appeal (Criminal Division), appeal:
* Their conviction
* Their sentence
* Both conviction and sentence
1.8 Appeals from the Crown Court
(prosecution)
The prosecution may also appeal to the Court of Appeal:
- The Criminal Justice Act 2003 enables the prosecution (with the consent of the Director of
Public Prosecutions) to apply to the Court of Appeal for an order quashing the acquittal of
anyone found not guilty of a ‘serious offence’. - The Attorney General may appeal, in some limited circumstances, against an ‘unduly lenient’
sentence imposed by the Crown Court.
1.9 Grounds for appeal against conviction
The Court of Appeal will quash a criminal conviction of the Crown Court if satisfied that the conviction is ‘unsafe’. The Court will hear oral argument from counsel for both sides, but evidence will not be heard again. Common arguments heard in the Court of Appeal relate to new evidence, errors that occurred during the trial process or misdirections of law by the trial judge. If the conviction is quashed, any sentence is automatically quashed with it
1.10 Grounds for appeal against sentence (more common than appeal against conviction)
Criminal tribunals follow the ‘sentencing guidelines’ for offences. These are produced by the
Sentencing Council, with the aim of promoting consistency in sentencing.
The key grounds for appealing against sentence are:
- The sentence is not justified by law (ie the judge made an error of law when passing it).
- The sentence was based on an incorrect version of the evidence.
- The judge took irrelevant matters into account when sentencing.
- The judge misapplied or failed to give sufficient weight to the sentencing guidelines
1.11 Appeals from the Court of Appeal (Criminal Division) to the Supreme Court (R v R)
In principle, either the defendant or the prosecution may apply for permission to appeal to the
Supreme Court from the Court of Appeal. However, the Supreme Court will only hear an appeal which is certified (either by the Court of
Appeal or by the Supreme Court) as being on a ‘point of law of general public importance’.
This test is rarely met in individual criminal cases. An example of a case in which this ‘public importance’ test was met is R v R [1991] UKHL 12, in
which the House of Lords confirmed that no ‘marital defence’ to the crime of rape existed in English law
1.12 The Judicial Committee of the Privy Council (Final appeal court for UK overseas territories and Crown dependencies)
The Judicial Committee of the Privy Council is the final appeal court for UK overseas territories and Crown dependencies. It is also the final appeal court for those Commonwealth countries which have retained the appeal to ‘His Majesty in Council’ or, in the case of those which are republics, have retained appeal to the Judicial Committee.
Purpose of judicial committee is to advise the Crown
The purpose of the Judicial Committee is to advise the Crown, so in theory it never decides a case
but instead ‘humbly advises His Majesty’. In practice, however, the monarch never refuses the
advice of the Judicial Committee.
Judicial committee hears both criminal and civil matters
The Judicial Committee hears both civil and criminal matters. It consists of senior members of the judiciary, usually from the Supreme Court (previously from the House of Lords). In addition, senior members of the judiciary from Commonwealth jurisdictions are members of the Judicial Committee.
The decisions of the Privy Council
Not binding on the English courts but are highly persuasive. Some decisions are viewed as almost as authoritative as decisions of the House of Lords or the Supreme Court. This is because the Privy Council is made up of the same Justices that sit in the Supreme Court.
1.13 The Criminal Cases Review Commission
The Criminal Cases Review Commission (CCRC) is a statutory body responsible for reviewing
alleged miscarriages of justice in the United Kingdom.
1.13 The Criminal Cases Review Commission
It has power to send a case back to the Court of Appeal for review, if it considers there is a ‘real possibility’ that the Court of Appeal will overturn the conviction or sentence.
Magistrates’ or Youth Court (Re-hearing)
If the decision to be reviewed was made in the Magistrates’ or Youth Court, the CCRC can send it back to the Crown Court for review. This review takes the form of a re-hearing, in which all the evidence is heard again.
New Evidence or New Legal Argument
In order to refer a case for appeal, the Commission usually has to identify new evidence or a new
legal argument that makes the case look significantly different. This evidence or argument must
not have been considered at the time of the trial, at the initial appeal, or in an earlier application to the Commission.
1.14 Summary
- Criminal law is designed to punish those who have committed offences against the public
good. - The standard of proof in a criminal case is ‘beyond reasonable doubt’, and the burden is on
the prosecution. - All criminal cases begin in the Magistrates’ Court.
- Trial by jury takes place for more serious cases in the Crown Court involving ‘indictable only’
offences and some triable ‘either way’. - The Court of Appeal (Criminal Division) hears appeals against conviction and sentence from
the Crown Court. - The decisions of the Court of Appeal (Criminal Division), for example on sentencing, are binding on the lower criminal courts.
- The Criminal Cases Review Commission reviews alleged miscarriages of justice.
- The civil courts
2.1 What is ‘civil law’?
Civil law regulates the legal relationship between private parties – either individuals, or legal
persons, such as companies.
Causes of action
That legal relationship may arise from a contract (for example, an employment contract), or
because a ‘duty of care’ exists between the parties (such as the duty of care between doctor and
patient), or from many other ‘causes of action’.
Private Law Capacity (Civil cases are not prosecuted)
The government does not ‘prosecute’ civil cases. However, it can be involved either as claimant or
a defendant in a civil case, in its private law capacity. For example, a government department might enter into a contract with an IT company for the provision of IT services. If the company breaches that contract, the government department can start civil proceedings against the
company.
2.2 The parties and the outcome
The parties to a civil case are the claimant and the defendant. You will see that in older cases the claimant was referred to as the ‘plaintiff’. This term has not been used since the ‘Woolf reforms’ in civil procedure in the late 1990s. The court’s decision in a civil case is referred to as its ‘judgment’.
The outcome for the successful party is usually damages (monetary compensation). However, the
court may order a number of other remedies. These are covered in your separate materials.
2.3 The standard and burden of proof
Proof: The standard of proof in civil proceedings is ‘on the balance of probabilities’. This is lower than the criminal standard, which is ‘beyond reasonable doubt’. The burden of proof is (with some exceptions) on the claimant.
More than 50% likely
A simple way of explaining the balance of probabilities test is that the claimant must satisfy the
court that they are ‘more likely than not’ or ‘more than 50% likely‘ to be right about what happened. If the claimant can only prove their case to 50% (ie equal probability), it will fail. If the claimant can prove their case to 51%, it will succeed.