Criminal Procedures Flashcards
The Criminal Cases Review Commission?
The Rubciman Commission reported in 1993 and recommended the establishment of an independent body to consider suspected miscarriages of justice as a result of a number of high profile miscarriages of justice, including the Birmingham Six, the Guildford Four and Judith Ward. The Criminal Appeals Act 1995 established the Criminal Cases Review Commission. This came into force in January 1997. There are 14 members altogether, all appointed by the Queen. The membership consists of legally qualified professionals. The Commission has the power to:
- investigate possible miscarriages of justice and to refer cases back to the courts
- the Court of Appeal may direct the Commission to investigate and report to the court on any matter if an investigation is likely to help the court to resolve the appeal.
Two famous cases investigated by the Commission include Derek Bentley who was hung in 1953, the conviction was quashed in 1998 due to the unfair summing up carried out by the judge at the time. Ryan James also had his conviction quashed for murdering his wife. Other famous cases include Sally Clark 2003 and George Davis 2011.
Appeals to the European Court of Justice?
Appeals made this way are rare and have to involve an interpretation of EU law or be based on the issue of Human Rights, on the basis that the defendant did not receive a fair trial.
Appeals from the Court of Appeal?
Both the prosecution and defence can appeal from the Court of Appeal to the Supreme Court, to do this it is necessary to have the case certified as a matter of public importance. Leave to appeal must be given from either the Supreme Court or the Court of Appeal, in 2003 7 out of 22 petitions were successful.
Appeals from the Crown Court by the defendant?
The defendant can appeal against a conviction and/or sentence to the Court of Appeal criminal division. At the end of the trial where they have been found guilty his lawyer should advise him on the possibility of the appeal. This advice is given verbally at the court or in writing within 14 days. In order to appeal, a notice of appeal must be filed at the Court of Appeal within 28 days of conviction.
The rules of appeal are set out by the Criminal Appeals Act 1995. In all cases the defendant must get leave to appeal from the Court of Appeal or a certificate that the case is fit for appeal from the trial judge. The application for leave to appeal is considered by a single judge in the Court of Appeal. If this is refused, the defendant can apply for the decision to be made by a full court. The 1995 Act states when an appeal should be heard. The act states that the Court of Appeal: shall allow an appeal against a conviction if they think that the conviction is unsafe and shall dismiss an appeal in any other case.
Since the HRA 1998 the Court of Appeal has taken a broad approach to the word ‘unsafe’. Any new evidence must be capable of belief, it has to be considered together with whether it would have been admissible at the trial and why it was not used. The Court of Appeal can allow the defendants appeal and quash the conviction or vary it to a lesser offence. With regards to sentence they can decrease it but they cannot increase it. The court also has the power to order a retrial in front of a new jury.
Appeals from the Crown Court by the prosecution?
Originally the prosecution had no right to appeal against either verdict or sentence. Now they can appeal:
- against an acquittal, where jury nobbling has taken place then the Criminal Procedure and Investigations Act 1996 allows an application to be made to the High Court for an order quashing the acquittal. Once the acquittal is quashed the prosecution can begin proceedings for the same offence.
- referring a point of law, the prosecution also has a special referral right in cases where the defendant is acquitted. This is under Section 36 of the Criminal Justice Act 1972, this allows the Attorney General to refer a point of law to the Court of Appeal in order to get a ruling on the law. The decision on that point of law does not affect the acquittal but creates a precedent in future cases.
- the Attorney General can apply for leave to refer an unduly lenient sentence to the Court of Appeal for re-sentencing. An example of this power being used is when a 15 year old boy was given a supervision order for raping a girl, his sentence was increased to 2 years in custody. Luan Plakici was sentenced to 10 years for kidnapping and procuring young girls for sex and prostitution. The Court of Appeal following the Attorney General reference increased his sentence to 23 years.
The main difficulty is that the General Attorney needs to be aware of all cases, cases are sent to the Attorney General by the CPS but the general public can write and MP’s on the victims behalf.
Appeals from QBD?
It is possible to make a further appeal to the Supreme Court, such an appeal can be made if:
- the divisional court certifies that a point of law of general public importance is involved.
- the divisional court or supreme court can give leave to appeal because the point of law is one which should be considered by the supreme court.
Appeals from the Magistrate Court to the Crown Court?
This is the normal route of appeal and is only available to the defence. If the defendant pleaded guilty at the Magistrates court then they can only appeal against a sentence. If the defendant pleaded not guilty then the appeal can be against a conviction and/or sentence. In both cases the right to appeal is automatic and leave is not needed. At the Crown Court the case is completely reheard by a judge and two magistrates. They can either uphold or reverse the decision. In some cases they will vary the decision and find the defendant guilty of a lesser offence. Where the appeal is against the sentence, the Crown Court can increase or decrease it. However, it can not be increased beyond the maximum powers of the Magistrates.
Where can appeals from the Magistrate Court go?
To the Crown Court or to the QBD.
Where can appeals from the Crown court go?
To the Court of Appeal.
Appeals from the Magistrates Court to the QBD?
Case stated appeals are usually heard here and only question points of law. Both the prosecution and defence can use this route. It can either be direct from the Magistrates or follow an appeal from the Crown Court. No witnesses are called to these types of cases and the case is heard by two or three high court judges. This route can be used by the prosecution against an acquittal or the defence against a conviction. The challenge is the magistrates misapplying the law. It cannot be used to challenge the sentence. The court may uphold, reverse or vary a decision. If it is against an acquittal they may send it back to the Magistrates to implement the correct legal decision.
Recommendations for changes to juries?
- trial by a single judge: this is used in the majority of civil cases, it is thought to produce a fairer and more predictable result. Judges are trained to evaluate and they are now trained in racial awareness and this may make them better arbiters than an untrained jury but there is less public confidence is using a judge in a criminal trial.
- a panel of judges: we could use 3 or 5 judges as seen in some EU countries. This allows for a balance of view instead of the verdict of one judge. But we could still get the problem of case-hardened judges. There are insufficient judges and out appointment and training process would need a major overhaul to implement this proposal, it would also be very expensive.
- a judge and lay assessors: a judge and two lay assessors is used in Scandinavian countries, this gives the legal expertise of the judge and lay participation from the public. Lay people could be selected in the same way as we currently select juries or there could be a panel of assessors drawn up as in tribunal cases.
- a mini jury: reduce the number of jurors for example in Spain a jury has 9 members or even 6 in less serious criminal cases.
Advantages of using a jury?
- Public confidence: using a jury is seen as a fundamental in a democratic society. As Lord Devlin said ‘juries are the lamp that shows that freedom lives.’ The public have confidence in 12 ordinary members of the public than a single judge.
- Jury equity: as jurors are not legal experts they are not bound by precedent, they decide on the idea of fairness. Such as in Pointing 1984 and they are called perverse verdicts. They can also give a sympathy verdict like in R V Owen.
- Open system of justice: it is seen as making the legal system more open. Justice is seen to be done by members of the public who are involved in a key role, it also helps to keep the law clearer as the judge has to explain points of law.
- Secrecy of the jury room: this means the jury are free from pressure and can bring verdict that are unpopular with the public.
- Impartiality: juries aren’t connected to anyone in the case and the random selection should result in a cross section of society.
Disadvantages of using a jury?
- The media influence may play a big part in high profile case. Rosemary West who was charged together with her husband Fred West which appealed to the Court of Appeal as she suggested that she didn’t get a fair trial due to the media coverage.
- Jurors may be influenced by eloquent lawyers or the judge in summing up.
- There is bias, they may be racially prejudiced and in Sander V UK 2000 the European Court of Human Rights held there was a breach of Article 6 of the ECHR.
- There may be a lack of understanding, this is supported by the Runciman Survey 1992 where 10% of jurors admitted having difficulties understanding the evidence.
- Secrecy can be a problem as seen in Young 1991 where the case continued into a second day and the jurors held a seance, in their hotel, to try and contact the victims, the verdict was quashed and a retrial was ordered.
- Fraud trials are an issue as they are complex cases and can be very detailed. Jurors need a long time and it is very expensive. The Criminal Justice Act allows a single judge to sit for a fraud case.
- There are high acquittal rates, in 2005, 60% of those who pleaded not guilty were acquitted.
- Jury nobbling and intimidation, a juror may be threatened or bribed to give verdicts favourable to the defendant, which may be problematic in organised crime trials.
- There also may be problems when jurors don’t follow the rules, in 2010 a juror was jailed for communicating with a defendant on Facebook.
- The compulsory nature of jury service is unpopular, this means a jury may hurry their decision, it is also a strain and they may have to view unpleasant evidence e.g. in murder and rape cases. They are also slow as each point has to be explained and is also expensive.
Criticisms of the selection process?
- Use of the electoral register: the electoral register is not always a representative sample of the population and excludes groups like the homeless who cannot register to vote. Not everyone who is eligible to vote registers e.g. young students and ethnic minorities.
- Multi-racial juries: according to Ford 1989 ethnic minorities defendants have no right to an ethnically balanced jury. Runciman Commission 1993 recommended that in exceptional cases it should be possible for either the prosecution or defence to apply for the selection of the jury to have up to 3 jurors from ethnic minorities and that they should even come from the same ethnic minority as the victim or defendant, this was not implemented.
- Disqualified jurors: some people who are disqualified may hide this and sit on the jury, a survey of London jurors estimated that 1 in 24 jurors were disqualified.
- Excusals: too many discretionary excusals may lead to an unrepresentative jury.
- Prosecutions right to stand by: this might be seen as giving the prosecution an advantage, especially when combined with vetting.
Secrecy of the jury?
The jury discusses in private and no inquiry can be made to how the decision was reached. This ban means we don’t know how juries actually decide the verdict or if they understood the issues involved. The jury can ask the judge for clarification of a point.
Unanimous and majority verdicts by the jury?
The jury must try to reach a unanimous verdict, if after 2 hours the jury is undecided the judge can tell them that a majority verdict will be accepted. With 12 jurors this can be 11 - 1 or 10 - 2, if the jury falls below 12 for any reason then only 1 can disagree with the others. With 10 jurors it can be 9 - 1 and if there are only 9 jurors the verdict must be unanimous. A jury cannot fall below 9, the judge must not pressurise the jury to reach a decision. In McKenna 1960 the judge told the jury that if they did not reach a decision in 10 minutes they would be locked up all night. They came back in 6 minutes with a guilty verdict but the conviction was quashed by the Court of Appeal.
What is the role of the jury?
The jury is used where a defendant pleads not guilty, there is a split function between the judge and jury. The judge decides on points of law and has the power to direct the jury to acquit on the grounds of insufficient evidence, this happens in around 10% of cases annually. The trial judge also sums up for the jury at the end of the trial and directs them on points of relevant law. The jury decide if the defendant is guilty or not guilty, they try to established the facts of the case.
The judge must accept the jury’s decision. The principle was established in Bushell’s Case 1670, here jurors refused to convict Quaker activists of unlawful assembly. The judge would not accept their not guilty verdict and ordered the jurors to resume their deliberations without food or drink. When jurors persisted in their refusal to convict, the court fined them and committed then to prison until the fines were paid. The Court of Common Pleas ordered their release and held that jurors couldn’t be punished for their verdict. The case established that jurors were the sole arbiters of fact and the judge couldn’t challenge their decision.
Successive governments have tried to limit/reduce the use of the jury and the debate continues, the Criminal Law Act 1977 removed the right to a jury in a significant number of offences e.g. criminal damage under £5,000 making them summary only.
When are juries used?
Juries are used in the Crown Court, about 97% of criminal cases are heard in the Magistrates Court, the jury only hears about 1% of criminal cases. The High Courts hears defamation, false imprisonment, malicious prosecution and fraud. In civil cases juries decide the liability of the parties as well as the level of damages awarded. As a consequence, juries can award excessively high amounts of damages, but since 1990 the Court of Appeal can vary the damages to appropriate levels. The County Court is for cases similar the the QBD. Coroners Courts are used to enquire into death and the jury is between 7 and 11.
Jury challenging?
Once they have been selected jurors come into the jury box to be worn in. Before swearing in both the prosecution and defence have certain rights to challenge one or more of the jurors. Two types of challenges are available to both the prosecution and defence:
- to the array: under the Juries Act 1974 the whole jury can be challenged on the basis that it has been chosen in an unrepresentative or biased way. This was successfully used against the Romford jury in the Old Bailey 1993, when from a panel of 12 jurors, 9 came from Romford with 2 of them living within 20 doors of each other.
- for cause: the prosecution or defence can challenge the right of an individual juror to sit, they must have a valid reason to be successful e.g. if they are disqualified or if they know or are related to a witness of the defendant. In R V Wilson and Sprason 1995 the wife of a prison officer was summoned for jury service and asked to be excused but this was rejected. She served and both defendants were charged with robbery, however, it was found that they had been in her husband’s prison during remand and their convictions were quashed.
Prosecution right to stand by jurors, this allows a juror who has been stood by to be put at the end of a list of potential jurors so they cannot be used on the jury unless there are not enough jurors. No reason needs to be given by the Attorney General’s Guidelines 1988 emphasises that the power should be used sparingly.
Vetting of the jury?
Once the list of potential jurors is known both the prosecution and defence have the right to see that list, there are two types of vetting:
- Routine police checks can be carried out on prospective jurors to eliminate those disqualified. In R V Mason 1980 it was revealed that the Chief Constable of Northamptonshire had a policy of widespread use of unauthorised vetting of criminal records. The Court of Appeal approved this type of vetting.
- A wider check is made on a jurors background and political affiliations. The Attorney Generals Guidelines 1988 state it should only be used in cases involving national security where part of the evidence is likely to be given in camera and terrorist cases. The Attorney General’s permission is needed for this type of vetting.
How is a jury selected?
Since 2001 a Central Juror Summoning Bureau administers the selection process for the whole country. Random lists of potential jurors are produced from the electoral register. A summons is sent out, more than 12 juror are initially summoned.
Selection at Court: Jurors are divided into groups of 15 and allocated to a court. At the start a trial clerk selects 12 people at random. If there are insufficient jurors then the court can select anyone qualified from people passing in the street or local businesses, this is known as ‘praying a talesman’. It hardly ever happens but it was used at Middlesex Crown Court 1992 when about half of a panel didn’t turn up after the New Year Holiday.
Excusals of the jury?
The Criminal Justice Act 2003 has abolished the category of excusals as of right and ineligibility. It used to be the case that members of the judiciary, police officers and anyone involved in the criminal justice system could not serve in the jury. In order to introduce professionalism onto the jury, these categories have been abolished.
The only people who have the right to be excused are members of the armed services and only then if they have a certificate from their commanding officer.
There may be a potential problem with police and judges sitting on the jury, in R V I 2007, one juror was a police officer who knew all the police giving evidence in the case therefore she assumed that they were guilty and should have been asked to stand down.
Discretionary excusals: a potential juror may be excused at the discretion of the court or may ask to defer their jury duty for a good reason e.g. exams or a booked holiday etc. In many circumstances the court will defer rather than completely excuse. If someone is not excused but doesn’t turn up they may be fined up to £1,000.
