PAPER 1: Section A - Criminal Courts & Lay People [COMPLETE]

Question 1

What are the three types of criminal offences?

Answer 1

• Summary offences
• Indiactable offences
• Either way offences

Question 2

Describe a summary offence and where is it tried? (2 marks)

Answer 2

• These are the least serious offences (1 mark)

- Tried in a Magistrates Court (1 mark)

Question 3

Describe a indictable offence and where it’s tried? (3 marks)

Answer 3

• The most serious offences (1 mark)
• Tried at a crown court (1 mark) HOWEVER first preliminary hearing for indictable offences are heard at a magistrates court (1 mark)

Question 4

Describe trimble either way court and what court it’s tried at (4 marks)

Answer 4

• The défendent is asked if they plead guilty or not (1 mark)
• If guilty: Heard at a Magistrates’ Court with no jury (1 mark)
• If not guilty: D can asked to be tried at the Crown Court with a jury OR mag can send it to crown court if the case is serious. (1 mark) If they’re found guilty they get a longer sentence (1 mark)

Question 5

What is a magistrates court? Talk about everythangggg

Answer 5

• Magistrates are lay people and anyone can apply to be one.
• There’s one legally qualified clerk who assists the magistrates.
• In CRIMINAL CASES, the magistrates trial all SUMMARY cases and deal with preliminary hearings and 10-17 year olds in youth court.
• They issue warrants for arrests and decide bail application.
• These courts can sentence up to 6-12 months in prison or a fine.

Question 6

What happens in crown court

Answer 6

• A jury is present and they decide if the défendant is guilty of not. The judge chooses the sentence.
• Crown Court can give out a range of sentences including life
• They also hear all indictable and triable either way offences from Magistrates Court.

Question 7

What happens in High Court / Queen’s Bench Division

Answer 7

• They’ll hear appeals from the magistrates or crown court.

- They’ll also hear verdicts on sentencing

Question 8

What happened in the Court of Appeal

Answer 8

• There’s the CIVIL and CRIMINAL divisions.
• The CoA look at points of law but they don’t hear the trial again. Points of law is looked at if used incorrectly (ie judge says an incorrect law to the jury).
• The CoA can also hear appeals against convictions or sentences from magistrates court or crown court.

Question 9

What happens in a Supreme Court

Answer 9

• Highest appeal court for all UK civil / criminal cases.
• They hear appeals on arguable points of general public importance.
• Must be an important case and it could take years.

Question 10

What is the court’s hierarchy

Answer 10

Magistrates ➡️Crown Court➡️QBD➡️CoA➡️Supreme

Question 11

Pre trial procedure for summaey offences

Answer 11

There is a case management system which aims to complete the case at the earliest opportunity. At the first hearing, the clerk of the court will check the defendant’s name and address and take the plea -guilty or not guilty. Over 90 per cent of defendants in the Magistrates’ Court plead guilty. • Whether or not the defendant has legal representation, the magistrates will proceed to consider a sentence if the defendant has pleaded guilty. A sentencing hearing will hear the brief facts of the offence from the prosecution and any statements the defendant wishes to make. The magistrates will then decide on and announce their sentence. • In some minor driving offences, the defendant can plead guilty by post, so that attendance at court is unnecessary. • If the defendant pleads not guilty, the magistrates will try to discover the issues involved and then set a date for trial.

Question 12

triable either wayoffences pre trial

Answer 12

The procedure is set out in the Magistrates’ Courts Act 1980. Plea before venue The defendant will be asked to plead. • If the plea is guilty, the matter is automatically heard by the Magistrates’ Court and a sentencing hearing will take place in the same way as with summary offences. • If the defendant pleads not guilty, the magistrates must decide where the case will be tried and a
The defendant has no right to request a hearing at the Crown Court but the case can be sent there by the magistrates if they consider they have insufficient sentencing powers.
Mode of trial This procedure is to decide the most appropriate court for the case to be dealt with. The magistrates decide if the case is suitable for a Magistrates’ Court trial and whether they are prepared to accept jurisdiction. They must consider the nature and seriousness of the offence, their powers of punishment and any representation of the prosecution and defence. • If the case involves complex questions of law, breach of trust or offences committed by organised gangs, it should be sent to the Crown Court. • If the case is referred to the Crown Court, or the defendant chooses trial there, all pre-trial matters will be dealt with by the Crown Court

Question 13

indictable offences pretrial

Answer 13

first hearing
The first hearing will be in the Magistrates’ Court shortly after the defendant is charged. The magistrates will deal with: • establishing the defendant’s identity • whether bail or custody should be ordered • whether the defendant should receive legal aid for representation. All further pre-trial matters will then be dealt with in the Crown Court, by a Crown Court judge sitting alone. Plea and Trial Preparation Hearing (PTPH) This takes place at the Crown Court as soon as possible after the case has been sent there from the Magistrates’ Court. An effective PTPH will: • ‘arraign’ the defendant (take the defendant’s plea) unless there is good reason not to • set a trial date • identify the issues for trial, so far as they are known at that stage • provide a timetable for pre-trial preparation and give appropriate directions for an effective trial • make provision for any Further Case Management Hearing {FCMH) that may be required to take place when it can have maximum effectiveness
The indictment This document will be prepared before trial and formally sets out the charges against the defendant. Although the defendant will have been sent for trial charged with specific crimes, the indictment can be drawn up for any further offence that the evidence reveals. In more complicated cases the indictment may have several counts (charges), each relating to a different offence. Disclosure by prosecution and defence Both prosecution and defence have to make certain points known to the other before trial. The prosecution must set out all the evidence they propose to use at the trial. They must also disclose previously undisclosed material ‘which in the prosecutor’s opinion might reasonably be considered capable of undermining the case for the prosecution against the accused’. The defence must give a written statement to the prosecution that includes: • the nature of the accused’s defence, including any legal defences intended to be relied on • any matters of fact on which issue is taken with the prosecution • any point of law to be argued, and the case authority in support • any alibi and the witnesses to support that alibi -this information allows the prosecution to run police checks on the alibi witnesses.

Question 14

appeal process from the mag court to the crown court

Answer 14

2.2.1 Appeals from the Magistrates’ Court to the Crown Court This appeal is only available to the defence. • If the defendant pleaded guilty at the Magistrates’ Court, then an appeal can only be made against sentence. The Crown Court can confirm the sentence, or they can increase or decrease it. However, any increase can only be up to the magistrates’ maximum powers for the case. • If the defendant pleaded not guilty and was convicted, an appeal can be made against conviction and/or sentence. The Crown Court, consisting of a judge sitting with two lay magistrates, will hold a complete rehearing of the case including any evidence that was not available in the Magistrates’ Court. They can confirm or vary the conviction and/or sentence or find the defendant guilty of a lesser offenc

Question 15

case stated appeals and

Answer 15

These are appeals on a point of law that go to the Queen’s Bench Divisional Court, either directly from the Magistrates’ Court or following an appeal to the Crown Court. Both the prosecution and the defence can use this appeal route. The magistrates (or the Crown Court) are asked to state the case by setting out their findings of fact and their decision. The appeal is argued on the basis of what the law is on those facts; no witnesses are called. The appeal is usually heard by a panel of two or three judges. The approach will be that the magistrates came to a wrong decision because they made a mistake about the law. The Divisional Court may confirm, vary or reverse the decision, or send the case back for the magistrates to implement the decision on the law. There are usually fewer than one hundred case-stated appeals made each year. There is a possibility of a further appeal to the Supreme Court such as in C v OPP (1994). Case study C v DPP {1994) A boy of 13 was convicted in the Magistrates’ Court of interfering with a motorcycle with intent to commit theft or to take and drive it away without consent. The appeal concerned the presumption of criminal responsibility of children between the ages of 10 and 14. Until this case, it had been accepted that such a child could only be convicted if the prosecution proved that the child knew he was doing wrong. The Divisional Court held that times had changed, children were more mature and the rule was not needed. The case was further appealed to the House of Lords who overruled the Divisional Court, holding that the law was still that a child of this age was presumed not to know they were doing wrong, and therefore not to have the necessary intention for any criminal offence. The original conviction was confirmed.

Question 16

appeals from the crown court

Answer 16

Appeals by the defendant If a defendant has been found guilty following a Crown Court trial, they should be advised by their lawyers on the possibility of an appeal. An appeal can be made against conviction and/or sentence to the Court of Appeal (Criminal Division). Leave to appeal The Criminal Appeal Act 1995 requires that the defendant must obtain leave (or permission) to appeal, decided by a single judge of the Court of Appeal. The aim is to filter out cases without merit and save the court’s time. The Criminal Appeal Act 1995 The Criminal Appeal Act 1995 simplified the grounds under which the court can allow an appeal. The Act states that the Court of Appeal: ‘’ shall allow an appeal against conviction if they think that the conviction is unsafe; and shall dismiss such an appeal in any other case. ‘’ Since the European Convention on Human Rights was incorporated into law by the Human Rights Act 1998, the Court of Appeal has taken a broad approach to the meaning of ‘unsafe’. In particular, a conviction has been held to be ‘unsafe’ where the defendant has been denied a fair trial. llffl• See Chapter 34 for more on Article 6 of the European Convention on Human Rights. New evidence The defendant can apply to introduce new evidence but: • it must appear to be capable of belief and afford a ground for an appeal • it has to be considered whether it would have been admissible at the trial, and why it was not produced at that trial. The Court of Appeal’s powers The Court of Appeal can: • allow a defendant’s appeal and quash a conviction, or • vary the conviction to that of a lesser offence of which the defendant could have been convicted, and/or • decrease, but not increase, any sentence imposed, or • dismiss the appeal, or • order that there should be a retrial of the case in front of a new jury.

Question 17

aims of sentencing

Answer 17

2.3.1 Aims of sentencing When judges or magistrates are passing sentence, they look at the sentences available but also have to decide what they are trying to achieve by the punishment. Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing for those aged 18 and over: • punishment of offenders • reduction of crime (including its reduction by deterrence) • reform and rehabilitation of offenders • protection of the public • offenders making reparations to their victims. Punishment of offenders The idea of punishment is that the offender deserves punishment for carrying out a criminal act or acts. It
does not seek to reduce crime or alter the offender’s future behaviour. This idea was expressed in the nineteenth century by Kant in The fvletaphysical Elements of Justice when he wrote: ‘’ Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime. ‘’ Punishment is concerned only with: • the offence that was committed • making sure that the punishment fits the crime. Punishment contains an element of revenge: society and the victim are being avenged for the wrong done. This is how long prison sentences for serious offences are justified. The crudest form of punishment can be seen in the old saying, ‘an eye for an eye and a tooth for a tooth and a life for a life’. This was one of the factors used to justify the death penalty for the offence of murder. • One US judge has put this theory into practice in sentencing other offences, by giving victims of burglary the right to go, with a law officer, to the home of the burglar and take items up to the approximate value of those stolen from them! • In other crimes it is not so easy to see how this principle can operate, to produce an exact match between crime and punishment. Punishment and tariff sentences Sentencing is based on the idea that punishment for each offence should have a set minimum term. The Sentencing Council produces guidelines on sentencing for the most common crimes. These include a starting point and a range for the sentence. They also set out factors that make an offence more serious or less serious. When producing guidelines, the Council also has to identify whether they will probably increase the numbers being sent to prison or using the probation service. This allows the government to forecast the requirements of the prison and probation services. This system upholds the aim of punishing offenders and leads to consistency in sentencing. However, it can be difficult for courts to impose sentences aimed at reforming offenders, and the guidelines leave very little discretion in sentencing with the judges. Activity ~ _, Research the Sentencing Council’s guidelines for the guideline sentences for: • involuntary manslaughter • assault occasioning actual bodily harm • robbery. Reduction of crime including deterrence There are two main kinds of deterrence: • Individual deterrence aims to ensure that the offender does not reoffend, through fear of future punishment. • General deterrence aims at preventing other potential offenders from committing crimes. Both are aimed at reducing future levels of crime. Individual deterrence By imposing a severe penalty, the theory is that the offender will think twice in the future, for fear of punishments such as a prison sentence, a suspended sentence or a heavy fine. However, prison does not appear to deter, as about 45 per cent of adult prisoners reoffend within one year of release. Critics of the theory of deterrence point out: • It assumes that an offender will stop to consider what the consequences of their action will be. In fact, most crimes are committed on the spur of the moment, often under the influence of drugs or alcohol. These offenders are unlikely to stop and consider the possible consequences of their actions. • Fear of being caught is more of a deterrent, and because crime detection rates are low, the threat of an unpleasant penalty seems too remote. Use of CCTV in town centres, business and residential properties may act as a deterrent for some potential offenders. General deterrence The value of this aim is more doubtful, as potential offenders are rarely deterred by severe sentences passed on other people. However, judges do occasionally make an example of one offender in order to warn other potential offenders of the type of punishment they might face. • General deterrence relies on publicity, so that potential offenders are aware of the level of punishment they can expect.
Cl/ c.. 0 Cl/ 0. >, ~ “O C 111 Ill …. … ::, 0 u 111 C .E ·;: u N … cu …. a. “’ .c u • • Deterrent sentences are less effective in cases of drug or people smuggling by foreign nationals, as the rewards are considered attractive. • A number of terrorist offences have been created by Parliament with severe maximum sentences. However, the beliefs of potential offenders seem to outweigh the deterrent effect of these offences and of punishment. General deterrence is in direct conflict with the principle of retribution, since it involves sentencing an offender to a longer term than is deserved for the specific offence. It is probably the least effective and least fair principle of sentencing. Reform and rehabilitation The main point of this aim to reduce crime is to reform the offender and rehabilitate them into society. It is a forward-looking aim: to alter the offender’s behaviour so that they don’t reoffend. This principle of sentencing grew in the second half of the twentieth century with the development of community sentences. • Judges or magistrates will be given information about the defendant’s background and, if relevant, they will consider school reports, job prospects or medical issues. • Community orders, especially drug testing and treatment orders and drug abstention orders, aim to rehabilitate drug abusers. Persistent offenders are usually thought less likely to respond to a sentence with rehabilitation as a principal aim. The Sentencing Council guidance asks courts to consider previous attempts at rehabilitation when passing sentence. Individualised sentences Where the court considers rehabilitation as a main aim, the sentence used is an individualised one aimed at the needs of the offender. This is in direct contrast to the concept of tariff sentences for retribution . Criticisms of this approach: • It leads to inconsistency in sentencing. Offenders who have committed exactly the same type of offence may be given different sentences because the emphasis is on the individual offender. • It tends to discriminate against offenders from poor home backgrounds - they are less likely to be seen as possible candidates for rehabilitation . Protection of the public The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced new sentences where the main aim is to protect the public from violent or prolific offenders. Custodial sentences are the main way of protecting the public. If the offender presents a significant risk to members of society, they must be sent to prison where they cannot commit further crimes. • Long-term custodial sentences appear to be more effective at preventing reoffending than short-term custodial sentences. In 2017, the number of people who reoffended within one year of release was approximately: o 44 per cent of adults who served over 12 months’ imprisonment o 60 per cent of those serving less than 12 months’ imprisonment. • The Extended Determinate Sentence, introduced by LASPO, protects the public from offenders who have committed serious sexual or violent offences. The offender has to serve a custodial sentence and an extended period on licence. The minimum custodial period is 12 months. • Also, LASPO introduced a new mandatory life sentence for offenders convicted of a second very serious sexual or violent crime. They will be removed from circulation to protect society. But this raises questions: o How long should the public be protected for? o Should the offender serve all of the sentence imposed, or should they be released early, on licence? • Those who commit murder or other serious crimes are given life sentences. When they are considered no longer to be a danger to the public, the parole board might consider releasing them on licence. Community sentences can also protect the public: • A curfew removes the offender from a certain area or place at certain times of the day, making those places safe for the public. • Wearing an electronic tag allows the probation service and the police to monitor an offender’s location and compliance with their curfew order. LASPO increased: O the curfew requirement from 6 to 12 months o the maximum period for the curfew from 12 to 16 hours per day .
• Community Orders offer treatment and education to offenders who are dependent on drugs and alcohol. • The public are protected when people convicted of driving offences are taken off the road, either in prison or banned. LASPO introduced a maximum of five years’ imprisonment for causing serious injury by dangerous driving. • Section 142 LASPO introduced the offence of threatening with an offensive weapon or article containing a blade or point in public or on school premises. Making reparations to the victim This is aimed at compensating the victim of the crime, usually by ordering the offender to pay a sum of money to the victim or to make reparation, for example, by returning stolen property to its rightful owner. The idea that criminals should pay compensation to the victims of their crimes is long established. Judges and magistrates are required to consider ordering compensation to the victim of a crime, as well as any other appropriate penalty. Under s 130 of the Powers of Criminal Courts (Sentencing) Act 2000, courts are under a duty to give reasons if they do not make a compensation order. Restorative justice Offenders and victims are brought together so that the offenders may see the effect of their crimes and make direct reparation, perhaps by doing decorating or gardening at the victim’s home. The offender might also make reparation to society by doing unpaid work on a community project, supervised by the probation service.

Question 18

AGGRAVATING FACTORS

Answer 18

Aggravating factors The Act lists these aggravating factors that make an offence more serious: • previous convictions for offences of a similar nature or relevant to the present offence • if the offender was on bail when the offence was committed • any racial or religious hostility in the offence • any hostility to disability or sexual orientation being involved in the offence • if the offender pleaded not guilty. The sentencing judge or magistrates will also want to know: • in a case of theft -how much was stolen and whether the offender was in a position of trust • in a case of assault - what injuries were inflicted, whether the assault was premeditated and whether the victim was particularly vulnerable (young or elderly) • whether the offender was in a position of trust and abused that trust - the offence will be considered as being more serious and merit a longer than usual sentence • where several offenders are convicted of committing a crime jointly - whether any of them played a greater part than the others, and who was involved in planning i

Question 19

MITIGATING factors

Answer 19

Mitigating factors Before sentencing, mitigating factors will also be considered. Examples of mitigating factors include: • no previous convictions • showing genuine remorse • taking a minor part in the offence • mental illness or disability • pleading guilty

Question 20

types of sentencing

Answer 20

2.3.3 Types of sentences The main types of sentence that can be imposed on adult offenders are: custodial, community, fines and discharges. Custodial sentences A custodial sentence is the most serious punishment that a court can impose. Custodial sentences for adults range from a short period in custody to life imprisonment. The different custodial sentences are: • mandatory life sentences • discretionary life sentences • fixed-term sentences • suspended sentences. Custodial sentences are meant to be used only for serious offences. This is confirmed bys 152 of the Criminal Justice Act 2003 which states: ‘’ The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. ‘’ Mandatory life sentences The only sentence a judge can impose for a murder conviction is a life sentence. However, after imposing the mandatory life sentence, the judge must set the minimum number of years’ imprisonment that the offender must serve before being eligible for release on licence. This could be a minimum of 12 years to a maximum whole life order. Aggravating factors that can increase the minimum term ordered by the judge include whether the victim was particularly vulnerable because of age or disability, or any mental or physical suffering inflicted on the victim before death. Mitigating factors include that the offender had an intention to cause grievous bodily harm rather than an intention to kill, a lack of premeditation or that the offender acted to some extent in self-defence (though not sufficient to give them a defence). A further type of mandatory life sentence was introduced by s 122 LASPO 2012. If an offender aged 18 or over commits a second serious offence then the court must impose a life sentence on the offender. Serious offences include manslaughter, ss 18 and 20 Offences Against the Person Act 1861 and robbery. Whole life order This is imposed for an offence of murder where the sentencing judge decides that the offender is so dangerous, they should never be released from prison. There are approximately 75 prisoners currently serving whole life sentences in England and Wales and include some of Britain’s most notorious criminals. Look online Research a list of prisoners serving whole life sentences. Choose one of those offenders. Why was a whole life sentence imposed on that offender?
QI Q. 0 QI c.. >, ~ “tJ C: !ti Ill …. … ::, 0 \J -;; C: .E ·;:: u N … GI …. c.. !ti .s:. u • Release on licence When sentencing an offender, the judge will impose a minimum term of imprisonment that has to be served - this is called the ‘tariff’ period. At the end of this time, the Parole Board will decide whether the offender is fit for release back into the community. They will take into account: • whether the offender admits the crime • whether they are considered to still be a danger • their behaviour during the tariff period. If the offender is considered fit for release, this will be subject to conditions such as where they will live, what job they can take, wearing a tag and who they can associate with. For offenders sentenced to a whole life term, these licence conditions will remain for the rest of their life. If the offender breaches any of the terms of the licence, they can be brought back to prison to serve a further term of imprisonment. Discretionary life sentences For the first commission of a serious offence, such as manslaughter, rape and robbery, the maximum sentence set by statute is life imprisonment, but the judge does not have to impose this. The judge has discretion in sentencing and can choose to give any sentence less than the maximum. Fixed term sentences For other less serious crimes, the maximum length of the sentence will again be set by statute -for a fixed term. For example, the maximum sentence for theft, imposed by the Theft Act 1968, is seven years. The sentence imposed by a judge or magistrates will depend on several factors, including: • the seriousness of the crime • the defendant’s previous record. The length of a sentence can be increased if it is racially or religiously aggravated. Only offenders aged 21 and over can be given a sentence of imprisonment. Prisoners do not serve the whole of the sentence passed by the court: • Anyone sent to prison is released on licence after they have served half of the sentence. • For terrorism offences, offenders are released on licence after serving two-thirds of the sentence. Release on licence has to be approved by the Parole Board and may be subject to conditions such as residence and the need to report to the police station or probation service. Suspended prison sentences A suspended sentence of imprisonment is one where the offender will only serve the custodial period if there is a breach of one of the terms of the suspension. • The prison sentence can only be between fourteen days and two years. • The period of suspension can be between six months and two years. The idea is that the threat of prison during this period of suspension will deter the offender from committing further offences. If the offender complies with the requirements of the suspended sentence, they will not serve the term of imprisonment, but the sentence will be ‘activated’ if they do not comply. The suspended sentence can be combined with any of the requirements used in a community order (see below). A suspended sentence should only be given where the offence is so serious that an immediate custodial sentence would have been appropriate but there are exceptional circumstances in the case that justify suspending the sentence. Non-custodial sentences Community orders These orders can be imposed when the judge or magistrates do not think that the offence is serious enough to warrant imprisonment. The Criminal Justice Act 2003 created one community order under which the court can combine any requirements they think are necessary. The judge or magistrate can ‘mix and match’ requirements, allowing them to fit the restrictions and rehabilitation to the offender’s needs. The sentence is available for offenders aged 18 and over. The full list of requirements available to the courts is set out ins 177 of the Criminal Justice Act 2003. 77(1) Where a person aged 18 or over is convicted of an offence, the court by or before which he is convicted may make an order imposing on him any one or more of the following requirements: (a) an unpaid work requirement (aa) a rehabilitation activity requirement (c) a programme requirement (d) a prohibited activity requirement (e) a curfew requirement (f) an exclusion requirement (g) a residence requirement - to live at a certain address (ga) a foreign travel prohibition requirement (h) a mental health treatment requirement (i) a drug rehabilitation requirement (j) an alcohol treatment requirement In 2019, England and Wales had the eighth highest rate of imprisonment among EU countries and the highest among western European jurisdictions. 1 Why do you think that England and Wales have the highest prison population in western European countries? 2 Consider ways in which the prison population could be reduced. Source: Information adapted from report in House of Commons Library, 3 July 2020. (ja) an alcohol abstinence and monitoring requirement (l) in the case where the offender is aged under 25, an attendance centre requirement

Question 21

qualifications of lay magistratesand the 6 key chrcteristics

Answer 21

2.4.1 Lay magistrates Qualifications Lay magistrates do not have to have any legal qualifications, but there are some general qualifications as follows: • Lay magistrates must be aged between 18 and 65 on appointment, and have to retire at 70. • Lay magistrates are expected to live or work within or near to the local justice area to which they are allocated. • Lay magistrates must be prepared to commit themselves to sitting at least 26 half days each year, together with a number of training sessions. There are, however, some requirements as to their character, in that they must be suitable in character, integrity and understanding for the work they have to perform. In 1998, the Lord Chancellor set out six key qualities that candidates should have. These are: 1 Good character 2 Understanding and communication 3 Social awareness 4 Maturity and sound temperament 5 Sound judgement 6 Commitment and reliability They must have certain ‘judicial’ qualities -it is particularly important that they are able to absorb factual information and make a reasoned decision upon it. They must also be able to take account of the reasoning of others and work as a team. Some people are not eligible to be appointed as lay magistrates, such as: • those with serious criminal convictions, though a conviction for a minor motoring offence will not automatically disqualify a candidate • those who are undischarged bankrupts • members of the forces • police officers and traffic wardens • relatives of those working in the local criminal justice system -it would not appear ‘just’ if, for example, the wife of a local police officer were to decide cases • those whose hearing is impaired or who by reason of infirmity cannot carry out all the duties of a Justice of the Peace • close relatives to other magistrates on the same Bench.

Question 22

selection oflay magistrates

Answer 22

election of lay magistrates About 1200 new lay magistrates are appointed each year. The appointments are made by the Senior Presiding Judge. In order to decide who to appoint, th e Senior Presiding Judge relies on recommendations made by the Local Advisory Committees. Local Advisory Committees The committee should have a maximum of twelve members and these should include a mixture of magistrates and non-magistrates. The committees try to encourage as wide a range of potential candidates as possible to put t hemselves forward. Advertisements may be placed in local papers, or on community noticeboards, radio adverts or using social media. The intention is to create a panel that is representative of all aspects of society. The selection process When applying, the candidate must fill in an application form and give the names of two referees. There is then a two-stage interview process: • At the first interview, the panel tries to find out more about the candidate’s personal attributes, in particular looking to see if they have the six key qualities required. The interview panel will also explore the candidate’s attitudes on various criminal justice issues such as youth crime or drink driving. • A second interview is aimed at testing candidates’ potential judicial aptitude, and this is done by a discussion of at least two case studies that are typical of those heard regularly in Magistrates’ Courts. The discussion might, for example, focus on the type of sentence that should be imposed on specific case facts

Question 23

appointment of lay magistrates

Answer 23

Appointment of lay magistrates The local advisory committees will interview candidates and then submit names of those they think are suitable to the Senior Presiding Judge, who will then appoint new magistrates from this

Question 24

role of magistrates

Answer 24

Role of lay magistrates in criminal cases Magistrates have a very wide workload that is mainly connected to criminal cases, although they also deal with some civil matters. Lay magistrates will normally sit as a panel of three, but a District Judge (Magistrates’ Court) will sit alone. Magistrates try 97 per cent of all criminal cases. In addition to their trial role, they can grant search and arrest warrants to the police and consider, in serious cases, requests for an extension in police custody up to a maximum of 96 hours. Summary offences Magistrates deal with the case from start to finish. They will hear evidence from the prosecution and defendant and any legal arguments and decide if the defendant is guilty or not guilty. If the defendant is found guilty, they will decide on a sentence. Their sentencing powers are limited to a maximum of six months’ imprisonment for one offence. For a serious Level 5 offence, they can impose an unlimited fine. Triable either way offences Magistrates deal with plea before venue hearings (see section on Triable either way offences above). Indictable offences Magistrates will hold an Early Administrative Hearing before transferring the case to the Crown Court (see section on Indictable offences). Youth Court Specially nominated and trained magistrates form a Youth Court panel to hear criminal charges against young offenders aged 10 to 17. These panels must usually include at least one man and one woman. Hearings are informal and private. Appeals Lay magistrates can also sit in a Crown Court to hear appeals from a Magistrates’ Court against conviction and/or sentence. In these cases, two lay magistrates form a panel with a qualified judge

Question 25

quakifcations of ajuror

Answer 25

Qualifications The Juries Act 1974 (as amended) sets out the qualifications for jurors. To qualify for jury service, a person must be: • aged 18 and over, and under 76 • registered as a parliamentary or local government elector • ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man for at least five years since their 13th birthday. In addition, the person must not be: • a person detained or resident in a hospital under a Mental Health Order, or • disqualified from jury service.

Question 26

dsqualifcation of jurors

Answer 26

Disqualification Some criminal convictions will disqualify a person from jury service. Disqualified permanently from jury service are those who at any time have been sentenced to: • imprisonment, detention or custody for life • detention during Her Majesty’s Pleasure or during the Pleasure of the Secretary of State • imprisonment for public protection or detention for public protection • an extended sentence • a term of imprisonment of five years or more or a term of detention of five years or more. People are disqualified for ten years if at any time in the last ten years they have: • served a sentence of imprisonment • had a suspended sentence passed on them • had a community order or other community sentence passed on them. In addition, anyone who is currently on bail in criminal proceedings is disqualified from sitting ass a juror. If a disqualified person fails to disclose that fact and turns up for jury service, they may be fined up to £5000 .
ack of capacity A judge may discharge a person from being a juror for lack of capacity to cope with the trial. This could be because the person does not understand English
adequately or because of some disability that makes them unsuitable as a juror. This includes blind people, as they would be unable to see plans and photographs produced in evidence. Deaf jurors In June 1995, a deaf man was prevented from sitting on a jury at the Old Bailey despite wishing to serve and bringing with him a sign-language interpreter. The judge pointed out that that would mean an extra person in the jury room and this was not allowed by law. Discretionary excusals Anyone who has problems that make it very difficult for them to do their jury service may ask to be excused or for their period of service to be put back to a later date. The court has discretion to grant such an excusal but will only do so if there is a sufficiently good reason. Such reasons include being too ill to attend court, suffering from a disability that makes it impossible for the person to sit as a juror, or being a parent with a small baby. Persons aged over 70 can apply to be excused. Other reasons could include doing essential work, for example, doctors or other medical staff. There are sometimes temporary events that would make it difficult for a person to do jury service, such as business appointments that could not be undertaken by anyone else, being due to sit examinations or having a holiday booked. In these situations, the court is most likely to defer jury service to a more convenient date rather than excuse the person completely. If a person is not excused from jury service, they must attend on the date set or they may be fined up to £1000 for non-attendance. Members of the forces There is a special rule for full-time serving members of the forces. They may be excused from jury service if their commanding officer certifies that their absence from duty (because of jury service) would be prejudicial to the efficiency of the service. Lawyers and police on juries Lawyers and police are eligible to serve on juries despite the feeling that this could lead to bias or to a legally well-qualified juror influencing the rest of the jury. The test to be applied in such cases is: ‘’ whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

Question 27

selection of jurors

Answer 27

Selection of jurors At each Crown Court there is an official who is responsible for summoning enough jurors to try the cases that will be heard in each two-week period. This official will arrange for names to be selected at random from the electoral registers for the area the court covers. This is done through computer selection at a central office. It is necessary to summon more than twelve jurors as most courts have more than one courtroom, and it will not be known how many of those summoned are disqualified or will be excused. Those summoned must notify the court if there is any reason why they should not or cannot attend. All others are expected to attend for two weeks’ jury service, though, of course, if the case they are trying goes on for more than two weeks, they will have to stay until the trial is completed. Where it is known that a trial may be exceptionally long, such as a complicated fraud trial, potential jurors are asked if they will be able to serve for such a long period. Vetting Once the list of potential jurors is known, both the prosecution and the defence have the right to see that list. In some cases, it may be decided that this pool of potential jurors should be ‘vetted’; that is, checked for suitability. There are two types of vetting: • Disclosure and Barring Service (DBS) • authorised jury checks. DBS checks Checks can be made on prospective jurors to eliminate those who are disqualified. Authorised jury checks This is where a wider check is authorised into a juror’s background and political affiliations. This practice was brought to light by the ‘ABC’ trial in 1978 where two journalists and a soldier were charged with collecting secret information. It was discovered that the jury had been vetted for their loyalty. The trial was stopped and a new trial ordered before a fresh jury. Following these cases, the Attorney-General published guidelines in 1980 (revised in 1988) on when political vetting of jurors should take place. They state that: • Vetting should only be used in exceptional cases involving national security, where part of the evidence is likely to be given in camera {in secret) such as in terrorism cases. • Vetting can only be carried out with the Attorney-General’s express permission. Challenging The jurors are usually divided into groups of fifteen and allocated to a court. At the start of a trial the court clerk will select twelve out of these fifteen at random. Once the court clerk has selected the panel of twelve jurors, these jurors come into the jury box to be sworn in as jurors. At this point, before the jury is sworn in, both the prosecution and defence have certain rights to challenge one or more of the jurors. There are three challenges that can be made: • to the array • for cause • the prosecution right to stand by. To the array This is a challenge to the whole jury on the basis that it has been chosen in an unrepresentative or biased way. This challenge was used successfully against the ‘Romford’ jury at the Old Bailey in 1993 when, out of a panel of twelve jurors, nine came from Romford, with two of them living within twenty doors of each other in the same street. In R v Fraser {1987), this method of challenging a jury was also used, as the defendant was of a black or minority ethnic {BAME) background but all the jurors were white. The judge in that case agreed to empanel another jury. However, in R v Ford {1989), it was held that if the jury was chosen in a random manner then it could not be challenged simply because it was not multiracial. For cause This involves challenging the right of an individual juror to sit on the jury. To be successful, the challenge must point out a valid reason why that juror should not serve on the jury, such as being disqualified or knowing/being related to a witness or defendant. If such people are not removed from the jury, there is a risk that any subsequent conviction could be quashed

Question 28

appointment of uror

Answer 28

Appointment of jurors When a jury has been chosen, they will individually be required to swear an oath that they will faithfully try the defendant according to the evidence. Once this has been done, the jury has been empanelled and will start to hear the speeches and evidence. A jury will be empanelled to hear just one case

Question 29

role of jurors

Answer 29

ole of jurors in criminal cases Juries are used in the Crown Court where they decide whether the defendant is guilty or not guilty. Jury trials account for less than 1 per cent of all criminal trials - about 20,000 cases per year. This is because 97 per cent of cases are dealt with in the Magistrates’ Court, and about two-thirds of defendants plead guilty at Crown Court. A jury in the Crown Court has twelve members. Split function A trial is presided over by a judge and the functions are split between the judge and jury: • The judge decides points of law. • The jury decides the facts. At the end of the prosecution case, the judge has the power to direct the jury to acquit the defendant if it is decided that, in law, the prosecution’s evidence has not made out a case against the defendant. This is called a directed acquittal. The defence will then put their case and call any witnesses. At the end of the evidence, the judge will sum up the case and direct the jury on any law involved. The jury will retire to a private room and make a secret decision on the guilt or not of the accused. Initially the jury must try to come to a unanimous verdict - that is, one on which they are all agreed. The judge must accept the jury’s verdict, even if they do not agree with it. This long-established principle goes back to Bushell’s Case {1670). The jury does not give any reasons for their decision. Majority verdicts If, after at least two hours {longer where the case involves several defendants), the jury have not reached a verdict, the judge can call them back into the courtroom and direct that a majority verdict can be accepted. Where there is a full jury of twelve, the majority verdict can be 10-2 or 11-1. If the jury has fallen below twelve, then only one can disagree with the verdict; that is, if there are 11 jurors, the verdict can be 10-1; if there are 10 jurors, it can be 9-1. If there are only 9 jurors, the verdict must be unanimous as a jury cannot go below 9 members. Majority verdicts were introduced because of the fear of jury ‘nobbling’; that is, jurors being bribed or intimidated by associates of the defendant into voting for a not-guilty verdict. When a jury had to be unanimous, only one member needed be bribed to cause a ‘stalemate’ in which the jury was unable to reach a decision. Acquittal rates in jury trials were also too high, and it was thought that majority decisions would result in more convictions. Where the jury convicts a defendant on a majority verdict, the foreman of the jury must announce the numbers both agreeing and disagreeing with the verdict in open court. This provision is contained in s 17{3) of the Juries Act 1974 and is aimed at making sure the jury have come to a legal majority, and not one, for example, of 8-4 that is not allowed