Criminal Courts And Procedures(Y)

Question 1

Summary Offences:

Answer 1

Are the least serious and n only be tried on the Magistrate’s Court for example drink driving, assault on a police officer, TV Licensing.

Question 2

Triable Either Way Offences:

Answer 2

These can be tried in either the Magistrates or Crown Court and will depend on the nature and seriousness of the offence and if the magistrates are prepared to accept jurisdiction, even if they accept jurisdiction the defendant can still opt for trial in the Crown Court and runs the risk of a more serious sentence because Crown Courts power of sentencing is higher than that of the Magistrate’s Court. Cases that can be tried either way include theft, ABH.

Question 3

Indictable Only Offences:

Answer 3

These are the most serious and can on,y be tried in the Crown Court with a judge and jury. Cases that are indictable GBH s18, murder, manslaughter.

Question 4

Magistrate’s Court.

Answer 4

There are about 400 Magistrates Courts in English and Wales, they are generally local courts which usually try matters within their locality no surrounding are. They have jurisdiction over a variety of criminal and civil matters. In the Magistrates Court cases are either heard by a qualified District Judge who has been a practising solicitor or barrister for a minimum of seven years, he or she will sit on their own to hear cases or the case will be heard by a panel three lay magistrates who may not be qualified in the law but are providing a voluntary unpaid service to their com,unity or to the community of their choice. For some issues magistrates can sit on their own e.g. Singing warrants or may if necessary sit in panels of two. Attached to each court there is a legally qualified clerk who will give advice on points of law.

Question 5

Jurisdiction of the Magistrates’ Court. In criminal matters they:

Answer 5

1) Try all summary cases.
2) Try Triable Either Way Offences that they have accepted jurisdiction of. (These two points deal with 97% of all cases in Magistrates’ Courts.)
3) Deal with the first hearing. Of indictable only offences before formally committing the case to the Crown Court.
4) Deal with warrants of arrest, search and entry and bail applications.
5) Try cases in the Youth Court where the defendants are aged 10-17.

Question 6

Jurisdiction of the Magistrates’ Court. In Civil Matters they:

Answer 6

1) Enforce council tax demands, issue warrants of entry for gas and electricity authorities.
2) Deal with Domestic Violence through the Domestic Violence Courts.
3) Support drug rehabilitation through DRR panel.
4) In the Family Court award custody and access of children and the removal of children under the Children’s Act 1989 including adoption. (Magistrates’ Courts do not deal with divorce issues this is dealt with in the County Court.)
5) Hearing appeals against the refusal of licences for alcohol.
6) Trading Standards and Environmental Health cases like hygiene regulations in restaurants and fly tipping.
7) Animal cruelty.

Question 7

Summary Trial.(Part one)

Answer 7

These are the least serious offences and are divided into five levels. Level one being the lowest and level five being the highest. The levels are used in sentencing to determine the parameters of fines for each level. The current maximum fines were set up by the Criminal Justice Act 1991 and are: 
Level             Maximum Fine
    1                Up to £200
    2                Up to £500
    3                Up to £1000
    4                Up to £2500
    5                Up to £5000
However for breaches of environmental law and health and safety law businesses can be fined up to £20,000 by the magistrates. Although the offence is determined by the level, the fine is means tested according to the person's income. A fine is a punishment to the offender and therefore must be within the means of being able to meet the requirements of the punishment. There is little point in issuing a £3000 fine to an offender who is on income support and has no means to pay this amount.

Question 8

Summary Trial.(Part two)

Answer 8

The maximum prison sentence that can be given at summary trial is six months per offence. There are also a wide range of other sentences that can be imposed these include community orders, drug rehabilitation and suspended sentences as well as fines and compensation to the victim and costs.
At the beginning of the case the clerk of the court will check the defendants name, address, date of birth, read out the charge and ask if they plead guilty or not guilty. They will also be informed whether the offence is summary, either way or indictable. Over 90% of defendants plead guilty in the Magistrates Courts. If the defendant pleads guilty it is the duty of the magistrates to sentence appropriately in line with the Sentencing a guidelines Bench Book which is provided by the Judicial Studies Board and is issued to all magistrates and constantly up dated.

Question 9

Procedure for Guilty Plea.

Answer 9

The procedure that will then be followed it:

1) The Crown Prosecutor or Associate Prosecutor from the CPS will summarise the facts of the case.
2) The defendant is asked if he agrees with the facts, if he does not then a Newton hearing is held to establish the disputed facts.
3) the defendants antecedent history (past record is given to the court).
4) Other information about the defendants background is provided, his physical and mental health, financial position, employment information.
5) Pre sentence report from the Probation Officer has discussed with the defendant their ability to carry out community service, pay fines, needs for drug rehabilitation etc.
6) The defendant or his lawyer can then explain additional matters like mitigating circumstances which may persuade the magistrates to issue a more lenient sentence,
7) The magistrates will retire for discussion and then return when the chairman of the bench (one of the magistrates) will pronounce sentence.

Question 10

Procedure for Not Guilty Plea.

Answer 10

When the defendant pleads not guilty the process becomes more complicated and longer. Both prosecution and defence will need to produce evidence in court and where necessary witnesses will need to give evidence. The burden of proof lies with the prosecution to prove the case beyond reasonable doubt.

Question 11

Part one of the procedure.

Answer 11

1) A trial date is set, this will depend on how quickly evidence can be exchanged and an appropriate date for witnesses to attend, but it must take place within the required time limit which current,y stands at six months. This means that from the time the defendant pleads not guilty their case must be tried within six months of that date.

Question 12

Part two of the procedure.

Answer 12

2) The magistrates will decide whether the defendant should be given bail or remanded in custody while awaiting trial.

Question 13

Part three of the procedure.

Answer 13

3) While waiting for trial bail will be revised at regular intervals.

Question 14

Part four of the procedure.

Answer 14

4) At the beginning of the trial the defendant will be asked again to confirm their name, date of birth and address and will be asked again if they plead guilty or not guilty to the charge, they have the option of changing their plea at any stage leading up to the trial and on the day of the trial.

Question 15

Introduction.

Answer 15

In criminal cases there are two courts of first instance, these are the Magistrate’s Court and the Crown Court. Where the cSe will be heard will depend on the nature and seriousness of the offence, but all cases will begin in Magistrate’s before being formally committed to the Crown Court. There are three types of offences: Summary Offences, Triable Either Way Offences and Indictable Only Offence.
In both the Magistrates and the Crown Court many defendants plead guilty, the role of the court is then to decide what sentence to be imposed on the defendant based on the Pre Sentence Report written by the Probation Service. Where the defendant pleads not guilty the role of the court is to try the case and decide if the defendant is innocent or guilty with the burden of proof being beyond reasonable doubt. In Magistrates Court the magistrates will listen to the evidence, decide on guilt or innocence and pass sentence. In Crown Court the judge and the jury have split functions. The judge will ensure that the trial process runs fairly and will advise the jury on points of law. The jury will listen to the evidence and decide on guilt or innocence beyond reasonable doubt. If the defendant is found guilty the judge will pass sentence based on Pre Sentence Reports and the law of precedent.
The form of trial is adversarial, prosecution and defence will present their cases, cross exa,one witnesses and sum up their case.

Question 16

Part five of the procedure.

Answer 16

5) The prosecution will begin by providing a brief outlining the case they hope to prove.

Question 17

Part six of the procedure.

Answer 17

6) Prosecution witnesses are then called one at a time, they cannot sit in court waiting but will wait outside the court until the usher calls them in to give evidence. The prosecution will ask questions this is known as the examination in chief, after each witness the defence will cross examine the witness.

Question 18

Part seven of the procedure.

Answer 18

7) At the end of the prosecution case the defence can submit that there is no case to answer and that the case should be dismissed at this point. It is for the ,ageist rates to decide whether this is the case or whether the case should continue. Very few cases are dismissed at this point.

Question 19

Part eight of the procedure.

Answer 19

8) The next stage is for the defendant to give evidence. He has the right to remain silent and since the Criminal Justice and Public Order Act 1994 the defendant has the right to remain silent and the magistrates may draw their own conclusions from the defendant’s silence. Of the defendant gives evidence he can be cross examined by the prosecution.

Question 20

Part nine of the procedure.

Answer 20

9) Defence witnesses can be called and the same procedure will take place as with prosecution witnesses.

Question 21

Part ten of the procedure.

Answer 21

10) Once all evidence has been given the defence will make a speech pointing out e weaknesses in the case.

Question 22

Part eleven of the procedure.

Answer 22

11) Further speeches are not allowed unless there is a point of law that needs to be raised.

Question 23

Part twelve of the procedure.

Answer 23

12) The magistrates retire to discuss the evidence presented in court and decide if the defendant is innocent or guilty.

Question 24

Part thirteen of the procedure.

Answer 24

13) The magistrates will return to court and the chairman of the bench will announce their decision. If found not guilty the defendant is free to leave court, if found guilty the next stage must take place. This is a sentencing procedure.

Question 25

Part fourteenth of the procedure.

Answer 25

14) A Pre Sentence Report is requested from the Probation Service, if it can be carried out that day then the defendant will be sentenced that day. This will depend on a number of factors, if medical evidence is required which may take longer. If sentencing has to be adjourned for several days then the magistrates must also decide if the defendant is to be bailed or remanded in custody.

Question 26

Part fifteenth of the procedure.

Answer 26

15) When the Pre Sentence Report is produced the magistrates will listen to the report provided by the probation service, retire to read the recommendations in more detail and then return to pronounce sentence.

Question 27

Triable Either Way Offences.

Answer 27

Under the plea before venue procedure the defendant is first asked if he pleads guilty or not guilty. If he pleads guilty he has no right to request for the case to go to Crown Court but the magistrates may decide to commit the case to Crown Court for sentencing if they consider their powers to be I sufficient for the seriousness of the offence.

Question 28

Mode of Trial.

Answer 28

If the defendant pleads not guilty the magistrates carry out “mode of trial” procedures to establish where the case should be tried. The Crown a Prosecutor will usually make a short speech expressing their opinion of suitability and the defending solicitor will do the same. The magistrates will take into consideration a number of factors including nature and seriousness of the offence, sentencing powers and whether there are any mitigating factors that aggravates the case. They will then decide whether to accept the case acknowledging that it is suitable for trial in the Magistrates Court or decline jurisdiction and formally commit the case to Crown Court. These decisions are governed by s19 of the Magistrates Court Act 1980.

Question 29

Defendant’s Election.

Answer 29

If the magistrates are prepared to accept jurisdiction, the defendant is then told he has the right to choose trial by jury in the Crown Court but he may be tried in the Magistrates Court if he wishes. He is warned that the sentencing powers of the a Crown Court are higher and he is also warned that if he elects for trial in the Magistrates Court and is found guilty that the magistrates have the right to send the case to Crown Court for sentencing if they consider their powers of punishment are insufficient. Only 20% of defendants will elect for trial by jury.
There are several factors that a defendant may consider if opting for trial by jury. These are that the decision of guilt or innocence is taken by twelve members of a jury and statistically this gives a better chance of Aquitaine. In the Magistrates Court only 20% of those who plead not guilty are acquitted compared with 60% acquitted in the Crown Court where they plead not guilty.
Other factors to be considered include a longer wait for the date of the trial; cases are more expensive even though the defendant is entitled to full representation through the Criminal Defence Service, if a barrister is prosecuting then in the interest of fairness a barrister will be used to defend, if found guilty there is the risk of higher sentences being awarded.
A study by Hedderman and Moxon showed that most defendants who opted for Crown Court trial did so based on the advice of their lawyer with the main reason being a higher chance of acquittal. Other issues were whether the defendant was on the remand wing in prison and therefore chose to spend more time on the remand wing where more privileges are received knowing that if found guilty and a custodial sentence is awarded the time spent on the remand wing will be deducted from their overall sentence.

Question 30

Should the Right Choose Trial by Jury by Kept?

Answer 30

A crown Court trial is far ,ore costly that a trial in Magistrates Court. Statistically Many defendants will elect for trial by jury only to go on and plead guilty at Crown Court. The right to jury trial has already been reduced because many offences that used to be classified as triable either way offences are now summary only offences, for example, assault on a police officer.
In 1999 and 2000 the Labour Government tried to pass laws abolishing the defendants right to jury trial in triable either way offences, on both occasions the bills were defeated in the House of Lords who recognised the lawful right of the defendants judgement by their peers. In 2003 the Criminal Justice Bill contained two clauses, one where the defendant could apply for a Crown Court trial to be headed by a single judge, again this was rejected by the House of Lords, and secondly the right to be tried without. Jury in cases that involved complex area of law, or where the jury would be in danger or where the jury had been nobbled. The second clause was accepted and became law under the Criminal Justice Act 2003. The case of R v Two years and other 2009 was tried without a jury after it was discovered that even on the second jury after the first jury had been dismissed for jury nibbling that the same dad been attempted on the second jury.

Question 31

Committal for Sentencing.

Answer 31

Magistrates can commit a defendant charged with a triable either way offence for sentencing to the Crown Court. This will only happen when at the end of the case and having heard the defendants antecedent history, they feel their powers of punishment are insufficient. After the introduction of plea before venue the number of committal a for sentencing more than doubled. Approximately 28.000 defendants are sent each year from Magistrates Court sentencing powers are increased in the future taking sentencing up to 15 months.

Question 32

The Role of the Clerk.

Answer 32

The clerk is also known as the legal advisor. The senior clerk of each court has to have been a barrister or solicitor for at least five years. The role of the clerk is to advice magistrates in points of law and ensure that correct procedure is followed in court. The clerk cannot take part in the decision making process that is the preogative of the magistrates. The clerk should not retire with the magistrates. The senior clerk has greater powers and can deal with some court matters administratively. This will include signing warrants for arrest, extending police bail and adjourning criminal proceedings.

Question 33

Youth Courts.

Answer 33

Young offenders aged 10 to 17 are dealt with in the Youth Court which is a branch of the Magistrates Court and has specially trained magistrates, who have been magistrates for a minimum of three years, under taken the training course, be under sixty five. The panel of three magistrates will include one female and one male. Children under the age of 10 cannot be charged with a criminal offence because it believed that below the age of 10 their power to recognise right and wrong are not appropriately developed.
There are some exceptional cases where the case must be tried in the Crown Court, this includes where the defendant is charged with murder, manslaughter, rape, causing death by dangerous driving. In addition it is possible for those age 14 and over to be sent to the Crown Court for trial in any case where they are charged with a serious offence (usually one where the maximum sentence for an adult would be 14 years).
The Youth Court sits in private with only those directly involved with the case allowed in the court room. Members of the press may be present but they cannot publish the name of the youth or any information that could identify them such as an address or school. The procedure in the Youth Court is less formal than the adult court and the parents or guardians a are required to be present for the proceedings.

Question 34

Appeals from the Magistrates’ Court.

Answer 34

There are two routes of appeal from the Magistrates’ Court, if it is by the defendant and based on appeal against sentence or appeal against conviction, then the appeal will be heard in the Crown Court by a Crown Court Judge and two magistrates who carried out appeal court training and are listed on the appeal panel. The case is heard again and the judge and the magistrates can confirm the sentence, increase or decrease it, reverse the decision or find the defendant guilty of a lesser charge. If the sentence is increased it can only be up to the magistrates’ maximum powers for the case.
There are approximately 12,500 appeal cases made to the Crown Court per year. Statistics published by the Ministry of Justice show that the appeal is allowed in about a quarter of the cases, while magistrates’ orders are varied in another quarter of cases, consequently about half the cases who go to appeal are successful.
If it becomes apparent that the case involves a point of law then the Crown Court can decide that point of law, but there is a possibility of a further appeal by way of case stated with the appeal being made to the Queen’s Bench Divisional Court.

Question 35

Case Stated Appeals. (Part one)

Answer 35

These are cases that are appealed on a point of law and will be heard in the Queen’s Bench Divisional Court. Both prosecution and defence can use this appeal route and it can be referred directly from the Magistrates’ Courts and “leap frog” to the Crown Court. The magistrates are asked to state the case by setting out their findings of the fact and their decision. The appeal is then argued on the basis of what the law is on those facts, no witnesses are called. The appeal is heard by a panel of two or three High Court Judges from, the Queen’s Bench Division. This route is on,y used by a defendant against a co victim or the prosecution against an acquittal. It cannot be used to challenge a sentence. The appeal is because the ,ageist eyes came to the wrong decision because they made mistake about the law. The Divisional Court can confirm, vary or reverse the decision or on so,e cases remit (send back) the case the Magistrates’ Court to implement the decision on the point of law. There are only a small number of appeals by way of case stated made each year.

Question 36

Case Stated Appeals. (Part two)

Answer 36

From the decision of the Queen’s Bench Divisional Court a further appeal can be made to the Supreme Court. It only if:

1) The Divisional Court certifies that a point of law of general public importance is involved.
2) The Divisional Court or the Supreme Court gives leave to appeal because the point is one ought to be considered by the Supreme Court.

Question 37

Case Stated Appeals. (Part three)

Answer 37

An example of this is C v DPP 1994, where the case concerned the presumption of criminal responsibility of children from the age of ten up to their fourteenth birthday, until this case it had been accepted that a child of this age could only be prosecuted if it could be proved that the child knew that what he was doing was wrong. The Divisional Court held that times had changed and there should be a presumption that children of this age know the difference between right and wrong. The House of Lords (now the Supreme Court) held that the law was still that a child of this age was presumed not to know what he was doing was wrong and it was necessary for prosecution still disprove this presumption by bringing evidence to show that the child was aware that Whaley were doing was wrong. The Supreme Court ruling was on the basis that it was parliament to make such a major change in the law not the courts as the courts are bound by precedent.

Question 38

The Crown Court.

Answer 38

Until 1971 the most serious criminal case were dealt with by high Court Judges who toured the country holding Assize Courts. Following the Beeching Commission Report 1969 both Assize and Quarter Sessions were abolished and under the Courts Act 1971 the Crown Court was set up to deal with all cases that could not be heard in the Magistrates’ Court. There are 77 Crown Courts in England and Wales. There are three kinds of centres; First Tier, Second Tier and Third Tier.

Question 39

First Tier.

Answer 39

1) In major cities like Bristol, Birmingham, Leeds and Manchester. At each court there is a High Court with separate judges for civil and criminal work. The Crown Court is permanently staffed by High Court Judges as well as Circuit Judges and Recorders and the court can deal with all categories of crime triable indictment.

Question 40

Second Tier.

Answer 40

2) Crown Court only, but High Court Judges sit there on a regular basis to hear criminal cases as well as Circuit Judges and Recorders. All categories of crime triable on indictment can be heard here.

Question 41

Third Tier.

Answer 41

3) This Crown Court is staffed by Circuit Judges and Recorders, the most serious cases of murder, manslaughter and rape are not usually heard in the third tier courts as there is no a high Court Judge to deal with them.

Question 42

Preliminary Matters.

Answer 42

The Indictment, Criminal Procedures Rules and Disclosure by prosecution and defence.

Question 43

The Indictment.

Answer 43

This is the document which formally sets out the charge against the defendant.

Question 44

Criminal Procedures Rules.

Answer 44

This came into force April 2005 and states that criminal cases must be dealt with justly and deals with all asp cuts of criminal cases.

Question 45

Disclosure by prosecution and defence.

Answer 45

The Criminal Procedure and Investigation Act 1996 places a duty on both sides to disclosure all evidence relating to the case, this includes additional evidence which may not have previously been disclosed which court undermine the prosecution’s case. This is to prevent miscarriages of justice like the Stefan Kiszko’s case where the prosecution hid evidence that which could prove the defendant innocent. The 1996 Act also imposes a duty on defence that after the prosecution have submitted their primary disclosure, defence must provide a written statement to the prosecution setting out:
- The nature of the accused defence, including any particulars on which they will rely.
- Matters of fact with which they take issue with.
- Any points of law which they wish to take and any legal authorities on which they will be relying.
The defendant also has to give details about any alibis and witnesses to support that alibi.

Question 46

Plea and Case Management Hearing.

Answer 46

Under the Criminal Procedure Rules, most cases sent to the Crown Court are dealt with at the plea and case ,a age,net hearing. The aim is to find out if the defendant is pleading guilty or not guilty. All charges on indictment are read out in open court and the defendant is asked how they plead to each charge. If they plead guilty the judge will aim to sentence the defendant immediately, if they plead not guilty them a trial date needs to be set. In a not guilty plea the judge will require prosecution and defence to set out the key issues of the case both in fact and in law and then give any directions which are necessary, for example, where evidence is agreed it may not be necessary for a witness to attend court, if a video link will be needed. The aim of the plea and case management hearing is to prevent any wasted time during the trial. Timetables are set indicating what must be done by whom and when, that disputed evidence is to be presented in the shortest and clearest way, clarifying no delays so that only disputed points are heard and that both parties co-operate with each other for full and frank exchange of information.

Question 47

The Trial.

Answer 47

The defendant is usually represented by a barrister but a solicitor has rights of audience in the Crown Court providing they have a certificate of advocacy. At a trial where the defendant pleads not guilty the usual order of events are:
1) The jury is sworn in to try the case.
2) Prosecution will open with a short speech explaining what the case is about and what they aim to prove.
3) Prosecution witnesses will give evidence and be cross examined by defence. Other evidence will be provided like documents, videos, photographs.
4) At the end of the prosecution case the defence may submit that there is no case to answer, if the judge agrees with this they will formally direct the jury to acquit the defendant.
5) The defence may make an opening speech providing they are calling other witnesses other than the defendant.
6) The defence witnesses give evidence and are cross examined by the prosecution.
7) The prosecution makes a closing speech to the jury pointing out the strength of the case.
8) The defence makes a closing speech to the jury pointing out the weaknesses in the prosecutions case.
9) The judge sums up the case to the jury and directs them on points of law.
10) The jury retire and consider their verdict in private.
11) The jury’s verdict is announced in open court.
12) If he verdict is guilty the judge will sentence, if not guilty the defendant is discharged.
Until the Criminal Justice Act 2003 nobody could be charged for the same crime twice, but now under the “double jeopardy” rule where new and compelling evidence (for example DNA) comes to light then the defendant can be tried a second time.

Question 48

Appeals from the Crown Court.

Answer 48

The function of appeal is not only to prevent miscarriages of justice but to also allow for proper development of the law.

Question 49

Appeals by the Defendant.

Answer 49

This can be an appeal against conviction or against sentence. This must be done verbally at the court or in writing within 14 days of the trial, then a notice of appeal must be filed at the Court of Appeal Criminal Division within 28 days of conviction. The rules on leave to appeal are set out by the Criminal Appeal Act 1995 leave to appeal must be granted by the Court of Appeal or a certificate that the case is fit to appeal from the trial judge. The application is considered by a single judge in private. Few cases are granted. In 2008 4,658 applications were made 1,416 were granted.

Question 50

The Criminal Appeal Act 1995 simplifies the ground for an appeal; the act States the Court of Appeal:

Answer 50

• Shall allow an appeal against conviction of they think that a conviction is unsafe.
• Shall dismiss such an appeal in any other case.
  Any new evidence must be capable of belief and would afford a ground for appeal.
  The Court of Appeal can quash the conic it ion, sentence for a lesser offence, decrease the sentence but where an appeal is brought by the defendant they cannot increase the sentence, they can order a re-trial. Although the power to retry cases was granted in 1988 it is used rarely, there are only 50 to 70 re-trials ordered each years.

Question 51

Appeals of Prosecution.

Answer 51

Prosecution can only appeal against acquittal where they discover that the jury or a witness has been nobbled. Under these circumstances the Criminal Procedure and Investigations Act 1996 allows for an order to be made by the High Court quashing the acquittal.
Prosecution can appeal on a point of law under s36 of the Criminal Justice Act 1972 the point of law does not affect the acquittal but creates a precedent for future cases to follow.
Under s36 of the Criminal Justice Act 1988 the Attorney age real can apply for leave to refer a case to the Court of Appeal for am unduly lenient sentence and for re-sentencing. I’m 2004 Luan Plakici was found guilty of kidnapping, procuring girls for sex and living off prostitution. He was imprisoned for ten years, on appeal it was increased to 23 years.