The Criminal Process Flashcards
Appeals from the magistrates?
There are two appeal route from the magistrates, to the crown court or to the Queens Bench Division (QBD).
Appeals from the magistrates to the crown court?
Appeals at the crown court can only be from the defence. If the defendant has pleaded guilty then he can appeal the sentence, if the defendant has pleaded not guilty he can appeal both the sentence and conviction. The appeal is heard by 1 judge and 2 magistrates. They can uphold the original conviction or sentence, reverse the conviction or sentence, they could vary the conviction and find the defendant guilty of a lesser offence and finally they could increase or decrease the sentence but only within the limit of the magistrates courts sentencing powers.
Appeals from the magistrates to the QBD?
Appeals at the QBD can be from both the defence and the prosecution. Appeals heard here are normally case stated appeals which only question points of la. The defence can only appeal the conviction and the prosecution can appeal an acquittal. The appeals are heard by 2-3 high court judges and they can uphold,reverse or vary the decision or they can send it back to the magistrates court for them to apply the correct legal decision.
Appeals to the ECJ?
Appeals made this way are rare and have to involve a point of EU law or be based on the issue of human rights, on the basis that the defendant did not receive a fair trial. This can be done from any court but the Supreme Court must refer point of EU law to the ECJ.
Appeals from the court of appeal?
Both the prosecution and defence can appeal from the court of appeal to the Supreme Court but only on a point of public importance and leave to appeal must be given by either the court of appeal or the Supreme Court. In 2003 7 out of 22 petitions were successful.
Appeals form the crown court?
Appeals from the crown court are heard at the court of appeal and can be from both the defence and prosecution.
Appeals from the crown court to the court of appeal from the defendant?
The defence can appeal both the conviction and the sentence. If the defendant is found guilty at the crown court their lawyers will advise them on an appeal at the court verbally or in writing within 14 days. If they choose to appeal they must send a notice of appeal to the court within 28 days of their conviction. They must get leave for their appeal to be heard or a certificate to state that their case is fit for appeal. This decision is made by a single judge but if rejected can be tried in front of a full court. If the conviction is considered ‘unsafe’ then the appeal must be heard. Since the HRA 1998 a broad view has been taken to the word ‘unsafe’. At the court of appeal they can reverse, uphold or vary the conviction and can uphold or reverse the sentence and can decrease it but not increase it.
Appeals from the crown court to the court of appeal from the prosecution?
The prosecution can appeal an acquittal from the crown court where jury nobbling has taken place, where a trial was dismissed due to problems with the jury e.g. Someone in the jury knew a witness or the defendant. When this has happened they can apply for it to be quashed, once it has been quashed the trial can restart proceedings. They can also have special referring powers when it comes to acquittal and the Attorney General can ask for a ruling from the court of appeal, this will only create precedent for future cases and will not affect that trial. The attorney general can also apply for leave for an until lenient sentence to be re-sentenced. However these issues are not often raised and when they are raised it is done by the CPS or a member of the public.
How did the criminal case review commission come about?
The Runciman 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 Case Review Commission. This came into force in January 1997. There are 14 members appointed by the Queen, the membership consists of legally qualified professionals.
What does the Criminal Case Review Commission have the power to do?
The commission has power to investigate possible miscarriages of justice and recess cases back to court. 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 an appeal. In 2012, 324 convictions were quashed and 137 upheld.
What a famous cases investigated by the Criminal Case Review Commission?
Two famous case investigated by the Commission include Derek Bentley who was hung is 1963, the conviction was quashed due to the unfair summing up of the judge at the time. Ryan James also had his convictions quashed for murdering his wife. Other famous cases include Sally Clark 2003 and George Davis 2011.
Advantages to trial by jury?
- decisions made by jury gives a better chance of acquittal, 20% of defendant who pleaded not guilty were found not guilty and the magistrates compared to 60% at the crown court.
- defendants are more likely to receive legal funding, meaning the state will pay for their legal representation.
- some defendants wish to serve part of their sentence on remand because it may mean being released at trial or receiving a lesser sentence.
- lawyers are more experienced in the crown court.
- where a defendant has been granted bail and imprisonment is likely, the waiting time for the crown court will provide them with longer freedom in the community.
- some defendants want to be tried by their peers.
Disadvantages for trial by jury?
- if legal funding is not given, the cost of lawyers are much more expensive. If the defendant is orders to pay prosecutions costs, they will be much more in the crown court.
- the crown court has greater sentencing powers although the magistrates can commit for sentencing.
- the magistrates court hears the case quickly and this may be preferable to a defendant who is seeking a speedy resolution.
- if a defendant is on remand this will mean a longer waiting time in prison which may be for no reason if they are found not guilty.
The Alud Report 2001 said that magistrates should decide the venue not the defendant.
Pre-trial hearings?
All criminal case start in the magistrates court, it is unusual for it to be dealt with in its first hearing but the magistrates can deal with matters such as granting bail, requesting pre-sentencing reports, requesting medical reports and setting a court date and time. This is called an Early Administrative Hearing (EAH). This is carried out by a single magistrate. For most driving offences it is possible to plead guilty through the post and attendance is not needed even here magistrates may adjourn to get more information.
What are the 3 types of offences?
Summary, triable either way and indictable offences.
