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Summary

1. Overview of criminal procedureThe classification of offences (indictable, either-way and summary)Classification of offenceDescriptionSummary only offenceFirst hearing, plea, trial and sentencing in MagistratesMay be joined in the CC if charged with other interconnected indicatable offences Exampl...

Description

1. Overview of criminal procedure The classification of offences (indictable, either-way and summary) Classification of offence Summary only offence

Description First hearing, plea, trial and sentencing in Magistrates May be joined in the CC if charged with other interconnected indicatable offences Examples  Common Assault  Theft (low value < £200) (exception: can elect jury trial) Time limit Summary offence – issue AND service within six (6) months of the offence

Indictable only offence

First hearing usually in magistrates’ court. This is only administrative to start the court process. Magistrates are incapable of taking a plea. Trial and sentencing must be in the Crown Court. All offences contrary to common law are indicatable only. For example:  Rape  Murder  Causing grievous bodily harm with intent to do grievous bodily harm / Wounding with intent to do GBH (s. 18)  Robbery

Either-way offence

First hearing in the magistrates. 1. Determine the appropriate venue for trial (magistrate or Crown) 2. Decline or accept jurisdiction 3. Defendants (>18) can accept or exercise their right to trial by jury in the Crown Court.  Criminal damage (< £5000 summary, > £5000 either way, unknown then seek consent to summary if yes then summary if no then either way procedure) o Sentencing is maximum £2,500 fine or 3 months imprisonment if £5000 and below.  GBH (s. 20)  Possession with intent to supply (third class A drug trafficking offence then indictable)  Assault occasioning actual bodily harm (ABH)  Burglary (if intention to commit indictable then indictable only)  Theft  Sexual Assault  Fraud Attempts, aiding, abetting of an either-way offence is liable to any penalty imposed

on summary conviction. Time limit Either-way and Indictable offence – no time limit (even if either-way was summary) The structure of the criminal courts in England and Wales Adult : Crown Court or Magistrates Children : Special form of Magistrates (Youth Court), ordinary Magistrates, Crown Court CROWN COURT Title General

Details A single court The Crown Court is regarded as a single court, although at many locations. A senior court It is a Senior Court (s. 45(1) Senior Courts Act 1981), almost on par with the HC. General powers Same powers as the High Court (45(4) SCA 1981) Number of judges Generally : Before one (1) judge On appeal : Before (1) judge/recorder and 2-4 justices (exception unreasonably delayed or absent) On Youth appeal : Before (1) judge/recorder and 2 justices (male and female) qualified to sit in the Youth Court (exception unreasonably delayed or absent)

Which Crown Court?

Categories of Judges

Mode of

Considerations to determine which Crown Court  Nature of offence (three classes determining the level of judge)  Convenience  Desirability of expediting trial  Directions by the presiding judge of the relevant circuit Judges (from most senior)  High Court Judge  Circuit Judge  A Recorder (Part-time judge who is a barrister, solicitor or lower or equal ranked judge authorised to sit part-time in the Crown Court)  Justices (for appeal, 2-4) Role of Justices  Decision by majority (if even vote, the professional judge gets the deciding vote)  The presiding judge and justices participate equally, but in matters of law, the justices must defer to the presiding judge like the jury  Must confer with the justices and cannot make arbitrary orders, can be appealed. Your honour: Recorder and Circuit Judges

address

Jury

Tribunal of fact Tribunal of law First hearing

My Lord/Lady: High Court judge, Senior Circuit Judges, Honorary Recorder of the place, any just in the Central Criminal Court (Old Bailey) At trial 12 members of the public. Decide guilty or not guilty. No role in sentencing. The jury (limited circumstances when the judge is the tribunal for fact) The judge First hearing The magistrates’ court or Youth Court Indictment All indictments go to the Crown Court (s. 46(1) SCA 1981)

First hearing in the Crown Court Trials

Bail

Sentencin g powers

Plea and trial preparation hearing (PTPH). o Ensure that all necessary steps have been taken in preparation for trial and sufficient information has been provided for a trial date to be arranged o PTPH form  All indictable offences  Either-way offences of which the magistrate has declined jurisdiction  Either-way offences of which the magistrate has accepted jurisdiction but where the defendant exercised their right to have a trial by jury in the Crown Court  Summary offences (imprisonable/disqualification) joined with indictable/either-way offences General powers  To grant bail during the course of trial  To grant bail to o A person awaiting trial or sentencing o A person appealing o A person on a custodial sentence by magistrate o A person remanded by magistrate Committal  Magistrates’ courts to commit an offender to the Crown Court for sentencing Sentencing powers (same as HC)  Imprisonment for life or less depending on the statutory maximum  Unlimited fines, unless statutory maximum is less  Costs and ancillary orders Sentencing powers (for summary offences e.g. common assault joined with indictable offences)  Same as magistrates

Appeal and powers on appeal

From the Crown Court What can you appeal from the Crown Court If you plead not guilty, appeal on conviction and/or sentence If you plead guilty, only appeal on sentence Appeals from trials on indictment Must seek leave to appeal Go to the Court of Appeal (just like the HC) Any other appeal (e.g. case appealed from magistrate) Go to the HC:  By way of case stated  Judicial review From the magistrates’ court/Youth Court  There will be a Crown Court judge with two – four justices of the peace (lay magistrates)  An appeal here is re-hearing of a case and the Crown Court can make any decision the court of first instance could have made. MAGISTRATES’ COURT

Title General

Details All adults have their first hearing in the magistrates’ court

Judges

Composition of the court  District Judge  Deputy District judge (barrister/solicitor authorised to sit part-time as a District Judge)  Minimum two lay magistrates and a legal advisor (members of the public who are appointed to the Magistracy and a legally qualified person who advises the lay magistrates on the law)

Mode of address

Change of magistrate Once enforcement begins, the magistrate can change as long as working in the same area. Sir/Madam: District Judge or Deputy District Judge. Sir/Madam: Lay Magistrates, the one who sits in the middle.

Jury

No

Tribunal of fact Tribunal of law First hearing

District Judge or lay magistrates

Trials

All adults and youths jointly charged with adults will be heard here. Charge sheet. Summary only offence

Powers

Youth Court

Either-way offences where the magistrates accepts jurisdiction and the defendant agrees to a trial in the magistrates’ court. Sentencing powers  6 months max for one sentence. Or 12 months for two either-way offences  Unlimited fines, unless statutory maximum is less  Costs and ancillary orders Committal  For either-way offences, may commit to the Crown Court for sentencing Youth Court (part of the magistrates’)  Hear all except homicide, certain firearms offences and joint charges, to be tried in the Youth Court

Title Appeal and

powers on appeal

COURT OF APPEAL Details Appeals heard against conviction/sentence on indictment against sentence passed on a committal for sentence against rulings made at preparatory hearings in serious fraud cases Criminal Cases Review Commission (CCRC) referenced appeals Opinion sought By A-G following an acquittal on indictment (general rule is the prosecution cannot appeal a non-guilty verdict) Increase sentence If A-G finds the sentence too lenient for the indictable offence.

Appeal to Supreme Court

Principle Defence or Prosecution may appeal only if either the CA or the SC agrees that the appeal contains a point of law of general public importance. Limitation Within 28 days (inclusive of the day of the decision) of the day of the decision or the date reasons are given, whichever is later. Application Procedure (For both leave to appeal and/or to certify a question) 1. Apply orally to the CA or in writing to be served on the Registrar and all the parties within 28 days (Representation orders should be made to the CA, as the SC has no power for that) 2. Court of appeal had wide powers of rejection. May refuse to hear oral application. May conclude the appeal has failed before it raises any point of law of public importance. 3. If leave to appeal is rejected, apply to the SC for leave within 28 days of the CA refusing.

Mode of address

Trial procedure 1. If the CA has decided on a few grounds and left out others, the SC may decide on those grounds or remit back to the CA 2. Best practice: Inform the SC on which grounds were not addressed and how to dispose of them My Lord/ My Lady

Public Funding Sources: 1. Standard crime contract 2017 by the Legal Aid Agency (LAA)  Almost all grants of legal aid (in Crown and magistrates) are authorised by the LAA, and applications should be made online.  Magistrates have no power to grant a representation order unless on an appeal against a refusal by the LAA Representation Order Application 1. Apply to the LAA online a. Include proof of means for those without passport 2. Crown court may grant only if: a. Contempt in the face of the court; b. Failure to comply with order and there is no time to consult LAA; or c. Brought before the court with a Crown Court warrant; and d. The application was made orally Two-stage test 1. Merits test (according to the interests of justice) MUST consider: a. Whether if the person loses, he will lose his liberty (see P’s case, not possible sentence), livelihood or reputation* b. Whether there is a substantial question of law c. Whether the individual can understand the proceedings or state his case d. Whether it involves tracing, interviewing or expert cross-examination e. Whether it is in the interest of another person that he be representation f. Among others In the Crown Court (on indictment or commital to sentencing), this test is automatically met (not on appeal). 2. Assessment of means

The overriding objective and the case management functions of the court The overriding objective Overriding objective: *That Criminal cases be dealt with justly This includes (a) acquitting the innocent and convicting the guilty (b) Dealing with P and D fairly (c) Recognising the rights of D (d) Respecting the interests of witnesses victims and jurors and keeping them informed of the progress. (e) Dealing with the case expeditiously and efficiently (consider a timetable) (f) Ensuring that appropriate information is available in bail and sentence (g) Dealing with the case taking into account i. Gravity of the offence ii. Complexity iii. Severity of the consequence iv. The needs of other cases Case management Role of the court INCLUDES: 1. Take steps to encourage and facilitate the attendance of witnesses 2. Active case management ( a lot of ensuring the counsel does this job) a. Early identification of real issues (may require parties to identify this) b. Setting a timetable (what, who and when must things be done) c. Monitoring progress and compliance with directions d. Using technology (live links and telephone, unless court satisfied D can participate effectively, consider with or without representative) e. Ensuring that evidence is presented in the shortest and clearest way f. Discouraging delay g. May limit cross, re or EIC. Powers and duties of the court in case management(CPR 3.5 and 3.9): 1. Give directions on its own or on application (public or in private) 2. Set hearing dates 3. Shorten or extend time limits 4. Identify any point which could affect the conduct of trial or appeal (asking parties to identify in writing) 5. Specify consequences of failing to comply with direction Directions will continue even if change court and either court has full power to revoke or vary directions. Role of the parties INCLUDE:

1. Defence bears the duty to help identify the real issues (for the most part, this is done under disclosure) 2. Comply with deadlines for service or disclosure (otherwise sanctions) 3. Actively assist the court in overriding objectives a. Communication between P and D BEFORE first hearing begins b. Communication between parties and court officer until the end of case c. Above two communications to establish,  likeliness to plead guilty/not,  what is agreed/disputed,  what is information is required and why.  What is to be done, by who and when d. Reporting the above to court in the first hearing e. Any reason why live links or telephone cannot be used for hearings. Case preparation and progression Case progression officer Both parties and the court must appoint a case progression officer and inform the others how to contact that person. The case progression officer will: 1. Progress the case 2. Ensure party’s comply with directions 3. Alert other parties of anything that might interfere with the progress of the case Case progression should be communicated electronically. Progression in hearings At every hearing, the court MUST 1. Consider, If D is absent, proceeding in his absence 2. Take D’s plea, or if not possible, identify if likely to plead guilty/not. 3. Set, follow or revise timetable 4. Give directions keeping continuity in mind 5. Sanction for any failure to comply with directions Other steps The court MUST take every reasonable step to 1. Encourage and facilitate the attendance of witnesses a. Directions for appropriate treatment and questions (ground rules for questioning) 2. Facilitate the participation of every person a. Check if D speaks English or has hearing or speech impediment (interpreter, written translation)

Practical case management Emphasis on early and effective communication between parties. (a) Early identification of guilty pleas (b) Completion of Preparation for Effective Trial Form (while in magistrates and not guilty) (c) Plea and trial preparation hearings - Preparation discussed between parties (P need to give details of availability of PW to arrange trial date) - Avoidance of pre-trial hearings - But identify circumstances in which such hearings should occur Balancing efficiency and fairness Examples i. Holding trial in the absence of the accused cannot be done solely for the purpose of expedition. ii. Using the overriding objective to challenge established legal principles (e.g. litigation privilege) Factors to consider (a) Gravity of the charges (b) Whether justice is denied (c) Compliance (d) Materiality of failures (e) Waste of courts resources (f) Availability of other sanctions (g) Other factors. Consequences of failure to abide by time limits Excluding evidence  Entitled to exclude if deliberate manipulating the court process.  Rare to exclude if not filed within time  Entitled to exclude if it is the only means to ensure fairness. Considerations: 1. Any prejudice caused 2. Reasons for the delay Note: The court may extend a time-limit even after it has expired, adjourn or impose any other sanction....