Court processes

Question 1

What is an ‘adversarial’ court system?

Answer 1

Courts in the UK are based on the ‘adversarial’ system, which means that they act as an umpire between prosecution and defence.

(of a trial or legal proceedings) in which the parties in a dispute have the responsibility for finding and presenting evidence.

Question 2

What is the maximum conviction for summary offences?

Answer 2

Summary offences can only be tried in the magistrates’ court. The maximum sentence for a summary offence is six months imprisonment and / or a maximum fine of £5,000.

Question 3

Explain the layout of a magistrates court

Answer 3

In a magistrates’ court there is no jury. Trials are usually heard by three ‘lay’ magistrates, also known as ‘justices of the peace’. Magistrates are volunteers from the community and do not wear wigs or gowns. A small number of magistrates’ courts are presided over by a full-time official, known as the district judge.

Magistrates’ courts can only try offences committed in their area, and are the first instance courts for all offences. Normally proceedings for summary offences must begin within six months from the time the offence was committed.

Question 4

Where can either way offences be charged. Give examples of either way.

Answer 4

Either way offences can be tried in either a magistrates’ court or a Crown Court, unless the defendant pleads guilty. In the case of a guilty plea, the defendant will be sentenced in whichever court has the appropriate powers.

Either way offences include theft and burglary, where the relative seriousness of the offence can vary hugely depending on the facts of the case.

Magistrates have the right to try a case and then submit it to a Crown Court for sentencing if they feel their powers are inadequate to deal with the seriousness of the matter.

Question 5

Explain the layout of crown court

Answer 5

All common law offences are indictable, including murder. Indictable offences must be dealt with in the Crown Court. Crown Courts hear the more serious offences, regardless of whether the defendant pleads guilty or not.

Trials for indictable offences in a Crown Court are held in front of a jury, and are presided over by a judge. If the jury determines that a person is guilty, the judge decides on the sentence.

Criminal cases go to the Crown Court in three ways:

They have been previously sent or committed to the court for trial from a magistrates’ court (typically for sentencing).

There are appeals against a conviction or sentence from the magistrates’ court.

The defendant has entered a ‘not guilty’ plea to an either way offence at magistrates’ court and has chosen to be tried by a jury.

Question 6

What is the ushers role in crown court?

Answer 6

The court usher’s role is to prepare the courtroom and meet and greet court users and visitors. They direct the taking of oaths, keep order in the public areas and are responsible for taking care of jurors.

It is also the duty of the court usher to manage who enters and leaves the courtroom and in which order. This is to ensure that there can be no jury tampering or conflict between parties. The court usher will sit on the side of the courtroom nearest the courtroom door.

Question 7

What does a judge do in court?

Answer 7

The judge is responsible for overseeing hearings, ruling on points of law and ensuring defendants get a fair trial.

They are also responsible for passing sentences that reflect the seriousness of the acts committed, taking into account the defendants’ personal circumstances and previous convictions.

The judge will enter the courtroom from a door to one side of the bench. Typically the judge will come in last, when everyone else is seated, and leave before everyone else is dismissed. Whenever a judge enters or leaves a court, the people in the courtroom are asked to be ‘upstanding’ as a show of respect.

Question 7

What is the function of a judge in crown court?

Answer 7

The judge is responsible for overseeing hearings, ruling on points of law and ensuring defendants get a fair trial.

They are also responsible for passing sentences that reflect the seriousness of the acts committed, taking into account the defendants’ personal circumstances and previous convictions.

The judge will enter the courtroom from a door to one side of the bench. Typically the judge will come in last, when everyone else is seated, and leave before everyone else is dismissed. Whenever a judge enters or leaves a court, the people in the courtroom are asked to be ‘upstanding’ as a show of respect.

Question 8

Coroner’s court

Answer 8

Coroner’s Courts deal with death inquests and determine who the deceased was and how, when and where they came by their death. When the death is suspected to have been either sudden with unknown cause, violent or unnatural, the coroner decides whether to hold a post mortem examination and, if necessary, an inquest.

Question 9

Youth Courts

Answer 9

Youth courts solely deal with persons between the ages of 10 and 17 years old. They are presided over by magistrates for both summary and indictable offences.

However, there are five circumstances in which a young offender will be sent directly to the Crown Court for trial. These include:

Homicide (murder or manslaughter) or causing or allowing the death of a child or vulnerable adult.

A firearms offence.

An offence carrying a sentence of 14 years’ or more imprisonment for a person over 21 years of age.

A specified violent or sexual offence.

An offence for which they have been jointly charged with an adult aged over 18 years who has been sent for trial for the same, or a related, indictable offence.

Proceedings in a youth court are less formal, for instance robes and wigs are not usually worn by the court officials. A parent or guardian must be accompany offenders under 16 years of age.

Question 10

Case law

Answer 10

Case law is the result of judges’ decisions in individual cases in the Court of Appeal or Supreme Court.

Question 11

Voir dire

Answer 11

A voir dire is commonly referred to as a ‘trial within a trial’. It is a hearing in which a court determines questions of fact and law after hearing evidence from witnesses. The purpose of a voir dire is to allow the judge to determine a question of law on the basis of the witness evidence.

Question 12

Pre-sentence report

Answer 12

A pre-sentence report assists the court in determining the most suitable way of dealing with an offender. They are generally prepared by the probation service and should include an assessment of the nature and seriousness of the offence and the impact on the victim. A court will usually obtain a pre-sentence report before imposing a community or custodial sentence.

Question 13

Adjournment

Answer 13

A break in court procedings, either for lunch, overnight or postponed for a later date.

Question 14

Alibi

Answer 14

A claim that a person was elsewhere when a crime was committed. If someone is accused of a crime, their alibi is:

Evidence that the person was somewhere else when the crime was committed; or

An attempt to prove that the person was somewhere else when the crime was committed.

Question 15

Directing the jury

Answer 15

Judges must give juries instructions on points of law. This is called ‘directing the jury’.

Question 16

Hostile witness

Answer 16

A witness who refuses to testify in support of the people who called them, or testifies in a way which differs from their previous statement.

Question 17

Mistrial

Answer 17

A trial that is ended by a judge because no decision can be reached or because mistakes in law have been made that make a fair trial impossible.

Similarly, if after two weeks’ deliberation, the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts.

Question 18

Prejury

Answer 18

When any person presenting evidence, witness statements, or asking questions is found to be lying to a court after being sworn in.

Question 19

Perverting the course of justice

Answer 19

Doing something to interfere with the justice system (such as misleading the court or intimidating witnesses). Perverting the course of justice is a common law offence, with a maximum sentence of life imprisonment.

Question 20

Paralegal

Answer 20

A person who provides substantial legal services, but is not a trained lawyer, barrister or chartered legal executive.

Question 21

Summons

Answer 21

An order signed by a magistrate which requires someone to be present at a certain time and place to answer a charge.

Question 22

When is a witness exempt from being a competent witness?

Answer 22

There are two exceptions:

A person is not competent to give evidence in criminal proceedings if it appears to the court that they are unable to understand questions put to them as a witness and give answers to them which can be understood.

A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether they are the only person, or is one of two or more persons, charged in the proceedings).

Question 23

Can children be competent witnessess?

Answer 23

Children of any age can be called to give evidence; their competency depends upon their understanding, not their age. As far as competency is concerned, the same test is applied to child witnesses as for adult witnesses.

Section 55 of the YJCEA 1999 states that witnesses cannot be sworn on oath unless they are aged 14 or over, and have a sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth.

Therefore, children under the age of 14 should give unsworn evidence.

Question 24

Can spouses or civil partners be competent witnesses?

Answer 24

Spouses or civil partners of a person charged in proceedings are generally competent to give evidence for the prosecution. The only exception is if the spouse or civil partner is jointly charged. If they are, neither is competent or compellable to give evidence on behalf of the prosecution against the other, unless the spouse or civil partner witness has already pleaded guilty, or the proceedings against the spouse or civil partner witness have been discontinued.

Spouses or civil partners are competent and compellable to give evidence on behalf of the defendant or the defendant’s co-accused.

Question 25

In what circumstances can the prosecution compel a spouse or civil partner to give evidence for the prosecution in cases?

Answer 25

The prosecution can only compel a spouse or civil partner to give evidence for the prosecution in cases which involve:

An allegation of an assault on, or injury or a threat of injury to the spouse or civil partner.

An allegation of an assault on, or injury or a threat of injury to a person who was at the material time under the age of 16 years.

An alleged sexual offence against a victim who was at the time under the age of 16 years.

Attempting, conspiring or aiding and abetting, counselling and procuring to commit the offences in the categories above.

Question 26

Can divorced or separated people give evidence against each-other as competent witnesses?

Answer 26

If a spouse witness is divorced from the defendant or the civil partnership comes to an end before they give evidence, the former spouse / civil partner is competent and compellable to give evidence as if that person and the accused had never been married or had never been civil partners.

Section 80 of PACE does not apply to a defendant’s partner to whom they are neither married nor in a civil partnership with.

Question 27

Vulnerable witnesses

Answer 27

Witnesses who are classed as ‘vulnerable’ include children under 18 years of age, victims of sexual offences and the most serious crimes, persistently targeted victims and people with communication difficulties. They are eligible for special measures under Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999.

These witnesses may be allowed to use special measures to help them give their evidence in the best possible way. For example, by using a video link, screen or curtain.

Question 28

Witness intermediaries

Answer 28

Witness intermediaries assist vulnerable witnesses in giving their best evidence. They come from a variety of professional backgrounds, such as speech and language therapy, teaching and social work.

The provision of an intermediary must be available to all eligible witnesses, subject to the court’s discretion. The absence of an intermediary in the police interview does not mean they cannot use an intermediary at trial.

Question 29

Court interpreters

Answer 29

Any defendant in a criminal investigation and court proceedings who cannot understand or speak the language used in court has the right to the free assistance of an interpreter, translator or language service professional.

A translator or interpretator should be provided for all documents or statements which are necessary for the defendant to understand. This ensures a fair trial.

The police service only uses interpreters from the HM Courts & Tribunals Service (HMCTS).

Question 30

Bad character evidence

Answer 30

Bad character evidence is evidence of, or a disposition towards misconduct on the part of the defendant. It has a significant impact on sentencing. Bad character evidence is only admissible if:

• It is of important explanatory value.
• It has substantive probative value in relation to a matter which is in issue in the proceedings.
• It is of substantial importance to the case as a whole.

All parties agree to the admissibility of the evidence.
Remember, evidence of previous convictions can also be used to support evidence of bad character.

Question 31

Probative

Answer 31

Having the quality or function of proving or demonstrating something; affording proof or evidence.

Question 32

What are the 4 types of sentencing?

Answer 32

Discharge, fines, community sentences, imprisonment

Question 33

Discharge

Answer 33

A court will discharge a defendant if they decide that given the character of the offender and the nature of the crime, punishment would not be appropriate.

Question 34

What is absolute discharge?

Answer 34

Absolute discharge, where no further action is taken, since either the offence was very minor, or the court considers that the experience has been enough of a deterrent. The offender will receive a criminal record.

Question 35

What is conditional discharge?

Answer 35

Conditional discharge – the offender is released and the offence registered on their criminal record. No further action is taken unless they commit a further offence within a time decided by the court (no more than three years).

Question 36

What is the maximum fine allowed in a magistrates and crown court?

Answer 36

Magistrates: 5000
Crown: unlimited

Question 37

Community sentencing

Answer 37

Courts can impose a community order when the offence is serious enough to justify this. The requirements of the order can combine punishment with activities carried out in the community. These are designed to change offenders’ behaviour and make amends either directly to the victim of the crime or the local community.

Community sentences can include things like compulsory (unpaid) work, or participation in specified activities that benefit the community. They might require curfews (often involving electronic tagging) and prohibiting the individual for engaging in certain activities, or visiting certain areas. Other approaches include:

Programmes aimed at changing offending behaviour.
Residence or attendance at a particular place.
Mental health treatment.
Drug and alcohol treatment and testing.
Supervision.

Question 38

Appeals

Answer 38

Appeals
People convicted by a magistrates’ court can appeal to the Crown Court against their conviction and the sentence. People convicted by the Crown Court can appeal to the Court of Appeal. If these appeals are rejected they can go on to apply for permission to appeal to the Supreme Court.

The Criminal Cases Review Commission reviews alleged miscarriages of justice that have been through the appeal process and is independent of both government and the courts. It can refer a case back to the Court of Appeal if there is a possibility that either a conviction or a sentence would not be upheld.

Referral of a case to the Commission depends on a new argument or evidence being discovered that was not previously raised at the trial or appeal.

Question 39

Exhibits

Answer 39

Exhibits are documents or other items shown to a victim or witness and referred to by them in their evidence. According to common law, it is within the power and is the duty of a constable to retain things which may be evidence of a crime.

You will be responsible for arranging the transportation of exhibits to and from the trial venue, for their security and their production as requested by the court.

Following a trial, all exhibits should be returned to your property store pending an appeal. Police determine which items should be retained and any methods of disposal for others.