Paper 1 - The Legal System & Criminal Law: Section A - The Legal System Flashcards
What are the two main criminal courts in England and Wales ?
Magistrates Court and Crown Court
What do Magistrates Courts deal with?
They deal with around 97% of criminal cases. Magistrates, who are often lay people, handle less severe crimes like summary offences. No jury.
What do Crown Courts deal with?
They handle serious cases like murder, rape, robbery. Cases are decided by a judge and a jury of 12 people.
Definition of jurisdiction
The right and power to interpret and apply the law
Definition and examples of summary offences
Minor crimes such as driving offences, minor assaults and minor criminal damage (under £5,000). Tried in Magistrates’ Court.
Definition and examples of either-way offences
Mid-level crimes like theft and burglary. Can be tried in either courts depending on the seriousness of the crime.
Definition and examples of indictable offences
Serious crimes such as murder, rape, manslaughter, robbery, and s.18 GBH. Automatically tried in the Crown Court.
What does the Court of Appeal do?
hear appeals against the convictions
What the Supreme Court?
Most senior court, most complex or important cases
How many Magistrates Court are there in England and Wales?
There are 160 Magistrates Court in England and Wales
How is it decided which Court either-way offences are tried?
The defendant may chose where to be tried or the magistrates may decide to send the case to the Crown Court if they feel their sentencing powers are insufficient e.g. assault casing actual bodily harm (ABH), criminal damage over £5,000
Preliminary Hearings for Indictable Offences
Indictable offences are first brought to the Magistrates Court for administrative purposes like bail or legal aid but the actual trial is held in the Crown Court.
The Magistrates Court has limited sentencing powers. What can they impose?
They can impose a maximum of 6 months imprisonment for a single offence and a £5,000 fine for individual offences though this may vary for certain offences.
What other powers do the Magistrates Court have?
They also handle some civil matters like licensing and family law issues. Magistrates can issue search and arrest warrants and hear applications for bail.
The Crown Courts hears appeals from the Magistrates Court. What can this include?
This can include appeals against convictions or sentences made in the Magistrates Court.
What powers do the Crown Court have?
They have unlimited sentencing powers meaning they can impose any sentence available under the law including life imprisonment and unlimited fines.
Magistrates Court trial process
Cases are heard by a judge and jury in the Crown Court. The jury determines guilt or innocence, while the judge determines the appropriate sentence based on the law and guidelines.
Pre trial procedures - summary offences
When the defendant pleads guilty, the magistrates will go ahead with the case and decide sentence when needed. When the defendant pleads not guilty, the magistrates must hear the case; try and discover the issues involved in the case, so it can proceed efficiently.
Plea before venue - either-way offences
The defendant is asked whether he pleads guilty or not guilty. If he pleads guilty he has no right to go to the Crown Court but the magistrates may send the case there for a sentence.
Mode of trial procedure - either-way offences
If the defendant pleads not guilty, mode of trial proceedings take place to decide where the case will be tried. The magistrates will consider the seriousness of the case, powers of sentencing, complexity of law and fact. If the magistrates decide to hear the case, then the defendant can chose to have a trial by jury at the Crown Court or in the Magistrates Court. The defendant has a right to trial by jury in all triable either-way offences.
Committal proceedings - either-way offences
Where the triable either-way offence is to be heard in the Crown Court, then Committal Proceedings take place in the Magistrates Court. All prosecution evidence must be loaded to the court in the written form. The defence can then claim that there is insufficient evidence for the case to be sent to the Crown Court. If this happens then the evidence is read to and defence can make oral statements. The magistrates then decide to send the case to the Crown Court for trial. Where there is no dispute then committal proceedings area formality and cases are sent to the Crown Court for trial.
Pre-trial procedure - indictable offences
The first hearing is for such offences in the Magistrates Court. All other pre-trial and case management issues are dealt with by a judge in the Crown Court. At the Crown Court, they will exclusively deal with trying indictable or either-way offences. They can also sentence offenders where the magistrates sentencing powers are limited. They also hear appeals from the Magistrates Court regarding conviction or sentence.
Indictable offences
First Appearance at the Magistrates Court to sort legal aid and bail. Plea before venue and committal proceedings at the Magistrates Court. Guilty plea - results in the case being committed to the Crown Court for sentencing. Not guilty plea - results in the case being committed to the Crown Court for trial by judge and jury. Set date for trial.
Magistrates Court advantages
Speed - quicker for a case to come to trial, shorter trial
Lower possible penalties - 6 months/ £5,000
Local courts - magistrates are local and know local issues
Cost - it’s cheaper for trials at this court
Workload - magistrates deal with 97% of criminal matters. Without them the legal system couldn’t cope.
Magistrates Court disadvantages
Higher conviction rate - 85% are convicted at the Magistrates Court
Transfer to Crown Court - this could mean that the defendant may be given a higher penalty
Crown Court advantages
Lower conviction rate - compared to the Magistrates Court - the acquittal rate here is about 60%
Better advocates - likely to represented by barristers
Crown Court disadvantages
Higher penalties - unlimited sentences or fines can be given
Waiting time - can take months for the trial
Cost - more expensive for the trial here - cost of barristers too
Publicity - more chance of case highlighted in the press
The Criminal Appeals System
The Prosecution and the Defence can appeal, the parties can appeal their sentence and the parties can appeal their conviction. Can only appeal if it’s an important point of law and it’s been certified.
What are lay magistrates?
A long established principle of English law is that a person has a right to be tried by his peers. In the Crown Court this means trial by jury and in the Magistrates Court it means a trial by magistrates also called Justices of the Peace.
The office of Justice of the Peace dates back to the 12th century, now there are over 17, 500 lay magistrates sitting as part-time judges in the 240 Magistrates Court in England and Wales.
6 key qualities of a lay magistrate
- good character
- social awareness
- sound judgement
- maturity and sound temperament
- understanding and communication
- commitment and reliability
Formal requirements to be a lay magistrate
- 18-65
- Local justice area
- 26 half days
and all magistrates have to take an Oath of Allegiance
Ineligibility of being a lay magistrate
- undischarged bankrupts
- serious criminal convicts
- members of the armed forces
- police officers, traffic wardens
- relatives of those working in the criminal justice system
How many lay magistrates sit together?
What is it called when a magistrate is sat by themselves?
What do they have to be qualified as before being appointed?
Where are they appointed?
Lay Magistrates usually sit as a bench of three.
When a magistrates is sat on their own it’s known as District Magistrates.
They have to be qualified as solicitors or barristers and must have at least 5 years rights of audience before appointment.
There are only appointed to courts in major cities such as London, Manchester, Liverpool and Birmingham.
Before becoming a full time judge they have to do what?
What does the District Judge have responsibility for?
Why doesn’t the need the help of a court clerk?
Before becoming a full time judge they will normally have sat part time to establish suitability.
The District Judge has full responsibility for both law and fact.
He doesn’t need help of the clerk so cases can be dealt with more quickly than with bench of unqualified lay magistrates.
Who appoints Magistrates?
Who can delegate these powers?
To appoint who does the judge rely on recommendations from?
On behalf of the queen, the Lord Chief Justice appoints Magistrates.
The Lord Chief Justice can delegate these powers and currently has delegated these powers to the Senior Presiding Judge.
In order to appoint, the judge relies on recommendations by Local Advisory Committees who selects new magistrates.
What do Local Advisory Committees consist of?
How has Lord Chancellor has tried to broaden the composition of the bench?
What is the aim of a panel of magistrates?
Local Advisory Committees mainly consist of ex J.P’s with a maximum of 12 members, but should include non-magistrates. Any person may not out their name forward form appointment, but people are often nominated by local political parties, trade unions, or chambers of commerce.
The Lord Chancellor has tried to broaden the composition of the bench by encouraging newspaper adverts, sometimes aimed at particular ethnic groups, publicity on local radio etc., so a person can put in their application.
The aim is to get a panel of magistrates representing all aspects of society. This should include a political, occupational, gender and racial balance. Once the application is submitted, before appointment, the advisory committee will interview those nominated.
Lay Magistrates Interview Stage
1st interview: 1. the panel find out about the person’s attributes
2. look out to see if they have the 6 key qualities
3. find out about their attitudes to certain criminal
justice issues
2nd interview: 1. test out the candidates’ judicial aptitude by looking
at 2 judicial case studies
2. the candidate will be expected to suggest an
appropriate sentence based on the facts
Why can Lay Magistrates be removed or retire?
- for incapacity and misbehaviour
- persistent failure to meet the standards expected
- declining or neglecting to exercise the functions of a JP
What is the Magistracy meant to do as a whole?
What is a major criticism of the Magistracy?
What were most supporters of?
What happened to two fifths of them?
The Magistracy is meant to reflect the wider composition of society as a whole.
A major criticism is that in fact it’s ‘middle class, middle aged and middle minded’.
Most were supporters of the Conservative Party.
Two fifths were retired due to age.
What percentage of judges are women?
What percentage of judges are ethnic minorities?
What percentage of magistrates are under 50?
42% of all judges are women and 26% are sitting in retirement.
11% of all judges are ethnic minorities.
18% of all magistrates are under 50.
Describe the training of Lay Magistrates.
- Initial Introductory Training - covering matters like understanding the organisation of the bench, the role and the responsibilities of there in the Magistrates Court.
- Core Training - acquiring and developing key skills and knowledge.
- Activities - observing court sittings and visiting prisons and the probation service.
What happens the first two years a new magistrates is sat in court?
What happens after the first two years a new magistrates is sat in court?
What happens if they don’t have the acquired the competencies?
During the first two years that the new magistrate is sat in the court, some of their court sessions will be mentored. At the same time, they are expected to have attended extra training sessions.
After 2 years, an appraisal will take place to check if they have acquired the competencies.
If they haven’t extra training will be given, and if after that it’s felt that still haven’t achieved the competencies then the matter will be referred to the LAC who may recommend to the Lord Chancellor that the Magistrates is removed from sitting.
Who are Lay Magistrates assisted by in court?
What’s the role of the clerk?
Lay Magistrates are assisted in court by a legally qualified clerk who has to be a qualified solicitor or barrister for at least 5 years.
The role of the clerk is to advise and explain to the magistrates the relevant points of law and legal procedure. They also give advice on possible sentencing options.
They also deal with some administrative matters: they prepare the court sessions and make sure that all relevant paperwork and exhibits are ready, reading changes to the court. They now have the power to issue arrest warrants and to extend police bail without magistrates.
What isn’t the clerk meant to be apart of?
The clerk isn’t meant to be apart of the process of deciding guilt or innocence in a case. It’s felt that in some cases the clerk gets too heavily involved in areas where the magistrates alone should be reaching decisions.
CASE: R v Eccles Justices (1989)
In R v Eccles Justices (1989), the Queen’s Division Bench ruled that the magistrates’ decision couldn’t stand because the legal advisor had acted outside of his powers when he retired with the magistrates and spent 25 of the 30 minutes with them. This suggested that he participated with their decision making process.
What courts use juries?
Crown Court, High Court, County Court, Coroner’s Court
Why does the Court of Appeal not use a jury?
Court of Appeal is an appeal against law so no jury
What are the Jury Qualifications?
- 18-75
- Residents in the UK or Channel Islands for 5 years after the age of 13
- Registered elector
What are the Jury Disqualifications?
Disqualified for life - if sentenced to life imprisonment, an extended sentence, sentenced for public protection or sentenced to 5 years
Disqualified for 10 years - if in the last 10 years you have served any kind of sentence less than 5 years, any period of community order or received a suspended sentence
If a person is currently on bail
What happens if you don’t disclose that you are on bail and sit in the jury?
If you don’t disclose that you are on bail and sit in the jury, you will be fined £5,000
What are the reasons for ineligibility?
- Mentally disordered
- Those who lack in capacity - deaf, blind
- Those who can’t understand or speak English
Who can be excused from the jury service?
If you’re a full time serving member of the forces you’re excused from the jury service.
What are reasons for deferrals?
- suffering a disability
- pregnant/ mums that have new-borns
- business appointments
- being too ill to attend
- examinations
- a booked holiday
What happens if you don’t attend jury service?
If you don’t attend jury service, you will be fined £1,000
Who is responsible for the selection of jurors?
What is the jury summons prepared on and who is it dealt with by?
How long would those selected to be called to sit for?
How long does the average trial last for?
The Crown Court is responsible for the selection of jurors at random from the electoral register.
The jury summons prepared on a random basis by a computer and it’s dealt with by the Jury Central Summoning Bureau.
Those selected will be called to sit for two weeks.
The average trial lasts about a day and a half but they may have to sit for several months in long fraud trials.
Jurors may be called to sit on more than one trial which may mean more then one per day.
Where do jurors go once they go to court?
Once jurors reach the court, they go to assembly area. This is a room in the courthouse where jurors have to check in and have the identity confirmed. They are shown a DVD explaining their role and what happens in the courtroom.
What happens when the court is ready to select a jury?
How many people are usually called forward?
Who will the jury be kept apart from?
When the court is ready to select a jury, there is then another random element in the selection of the individual trial for which that juror may be involved. A court official chooses this group of people.
Usually 15 are called forward to the courtroom, to keep the random selection going.
At all times the jury will be kept apart from lawyers, witnesses and all other people involved in the trial.
Jury Vetting
- a police check on prospective jurors to eliminate more disqualified because of criminal convictions.
- a wider background in cases of national security or terrorist cases.
Jury Challenges
in the array - challenging the whole jury as it’s unrepresentative or biased. Used successfully against the ‘Romford’ jury at the Old Bailey. 9 members were from the same area, with 2 living 20 down from each other.
for cause - challenging an individual juror as they may be disqualified or are prejudiced. Can be used if a juror knows the defendant or any witnesses, or related to the victim.
prosecution right to stand by - can only be used by the prosecution, allowing a juror who has stood by to be put at the end of the list of potential jurors. The AG stated that this should be used sparingly.
What does a jury do in a criminal case?
- listen and look at evidence presented in court
- listen to judge’s summing up of the facts of the case and the law
- decide guilt and innocence
- only decide based on the facts and apply the law as the judge directed
- decide in secret
- don’t give reason for their decisions
Majority verdicts
- where there are 12 jurors a 10-2 or 11-1 verdict can acquit or convict
- if the jury has fallen below 12 then 10-1 or 9-1 will suffice
- if the jury has fallen to 9, all 9 must agree - a jury cannot go below 9
R v Ponting (1985)
A civil servant was charged under the s2 of the Official Secrets Act 1911. He had leaked information on the sinking of a ship in the Falklands war to a Member of Parliament. At his trial, he pleaded not guilty, claiming that his actions had been in the public interest. The jury refused to convict him even though the judge ruled he had no defence. Showing that the jury may use fairness and justice to ignore the actual laws or the judge’s direction.
R v Kronlid (1916)
Three protestors were charged with causing criminal damage of £1.5 million to a Hawk jet plane that had been bought by the Indonesian government and was due to be sent there. The defendants admitted that they had done the damage but claimed that they had a lawful excuse for their actions. They claimed that the jet was going to be used against the civilian population in the East Timor region of Indonesia as apart of an alleged genocidal campaign against the people of East Timor. The jury sympathised with he defendant’s view and found them not guilty.
R v Young (1995)
The defendant was charged with the murder of two people. The jury had to stay in a hotel over night as they hadn’t reached a verdict by the end of the day. At the hotel, four jurors used a Ouija board to try and contact the dead victims and ask them who had killed them. The next day the jury returned a guilty verdict. When the use of Ouija board become known, the Court of Appeal quashed the conviction and ordered a retrial.
R v Karakaya (2005)
The defendant was accused of rape. A juror carried out an interest search at home and brought into the jury room the printed - out results of the search. The jury convicted Karakaya but this conviction was quashed because of the outside information that the jury had access to during their deliberations. A retrial was ordered and Karakaya was acquitted by the jury in the second trial.
R v Taylor and Taylor (1993)
Two sisters were charged with murder. Some newspapers published a still from a video sequence that gave a false impression of what was happening. After the jury convicted the two defendants, an appeal has made on the grounds of the possible influence this picture could’ve had on the jury’s verdict; the Court of Appeal quashed the convictions.
R v Mirza
Two doctors were convicted of gross negligence manslaughter. Their post - operative patient became infected with an infection that was left untreated.
What are the Advantages of the Jury?
Public Confidence - Lord Devlin said that jurors are the ‘lamp that
shows that freedom lives’. People have the
confidence in an impartial and fair trial -> CASE: Kronlid
Jury equity - acquittal rates are 60% at the Crown Court
Open Justice - allows the ordinary person to take part in justice - ‘trial
by peers’ is achieved. CASE: Ponting, Kronlid and Blythe
Secrecy - it has been suggested that people would be less willing to
serve on a jury if they knew that their discussions would be
made public. CASE: Mirza, but expectations to Young and
Karakaya.
Impartiality - juries are less case- hardened and can decide the case
based on the facts.
What are the Disadvantages of the Jury?
Perverse decision - juries can make the wrong decision. CASE:
Ponting, Kronlid and Blythe.
Lack of understanding - 10% of jurors admitted to having difficulty
understanding the case. CASE: In one case at
the Crown Court, the jury after they had
retired to consider their verdict sent a note
to the judge asking what they ad to do. The
judge discharged the jury from that case.
Secrecy - Mizra but expectations for Young and Karakaya (case)
Acquittal rates: there are now government concerns into High
Acquittal rates
Media Influence: Taylor and Taylor (case)
What are the 5 Aims of Sentencing?
- The punishment/ retribution of offenders
- The reduction of crime through deterrence/ denunciation
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparations by offenders to person affected by their
offences
What is Retribution?
Retribution is based on the idea that the D deserves punishment if they don’t seek to reduce crime or alter offender’s behaviour
What are Retribution sentences based on?
Retribution sentences based on the idea that each offence has a set tariff e.g. 25 years imprisonment to £500 fine.
What is Denunciation?
Denunciation is society expressing disapproval of criminal activity. Reinforces moral boundaries of acceptable conduct.
What should Denunciation sentences reflect?
Denunciation sentences should reflect on the blameworthiness of the offence.
What is Incapacitation?
The offender is made incapable of committing further crimes. Society is protected from crimes.
What are Incapacitation sentences?
Long term prison sentences. Others used here are electronic tagging, driving bans, exclusion orders and curfew orders.
What is Deterrence?
Deterrence is a sentence will be well above the norm. Prisons sentences, a heavy fine or a long custodial sentence as an example to others.
What is an Individual Deterrence?
The offender is deterred through fear of future punishment
What is General Deterrence aimed at?
General Deterrence is aimed at preventing other potential offenders from committing crimes. Aimed at reducing future levels of crime.
What is Rehabilitation?
To reform the offender and rehabilitate them back into society. It is a forward-looking aim with the hope that the offender’s behaviour will improve.
What are Rehabilitation sentences?
Individualised sentences or community sentences - aimed at the needs of the offender
What is Reparation?
Making amends - aimed at compensating the victim of the crime or to compensate society as a whole.
What are Reparation sentences?
Compensation orders and unpaid work in the community
What has research showed?
Research shows that long prison sentences have little impact on crime. Time in prison can actually make someone more likely to commit crimes - by further exposing them to all sorts of criminal elements.
Aggravating Factors of the offence
- Previous convictions of similar nature or relevant to present offence
- Offending while on bail
- Crime involving violence or use of a weapon
- Hostility towards race or religion
- Hostility towards sexual orientation or disability
- Attacking a vulnerable person(s)
- Premeditation
Mitigating Factors of the offence
- Co-operation with the police
- Remorse
- No previous convictions
- Mental illness of D
- Physical illness of D
- Early guilty plea
Background of the D: What happens if the D has previous convictions?
If the D has previous convictions for the same or similar type of offence then he is likely to receive a heavier sentence.
