criminal courts: process and appeals

what is the criminal court hierarchy?

SC
COA
crown court
magistrates’ court

what are the different types of offences?

summary (least serious)
triable either way (TEW)
indictable (most serious)

where are summary offences tried?

magistrates’ court

where are triable either way offences tried?

magistrates’ or crown court

where are indictable offences tried?

crown court

what are examples of summary offences?

assault
battery
driving without insurance

what are examples of TEW offences?

s.47 ABH
theft
s.20 GBH

what are examples of indictable offences?

s.18 GBH
murder
manslaughter
rape

what is the procedure for summary offences if plead guilty?

early administrative hearing at MC to deal with bail/funding
sentencing at MC

what is the procedure for summary offences if plead not guilty?

early administrative hearing at MC to deal with bail/funding
summary trial at MC

what is the procedure for TEW offences if plead guilty?

plea and case management hearing at MC - D makes plea
summary trial at MC
sentencing at MC
MC can pass to CC for sentencing

what is the procedure for TEW offences if plead not guilty?

plea and case management hearing at MC - D makes plea
mode of trial hearing - decide where case will be tried
D can choose MC/CC but if too serious will go to CC
summary trial at MC
indictable trial at CC with jury

what is the procedure for indictable offences if plead guilty?

early administrative hearing at MC but s.51 crime and disorder act 1998 stipulates magistrates must immediately send to CC using committal proceedings
sentencing at CC

what is the procedure for indictable offences if plead not guilty?

early administrative hearing at MC but s.51 crime and disorder act 1998 stipulates magistrates must immediately send to CC using committal proceedings
jury trial at CC

what is the burden of proof?

in both MC/CC the burden of proof lies with the prosecution to prove beyond reasonable doubt that D is guilty

what is the trial process (prosecution case)?

procedure is the same in MC/CC but MC has no jury
prosecution delivers its opening speech to outline the facts
prosecution calls its witnesses and conducts examination in chief
defence then cross-examines those witnesses
prosecution re-examines witnesses if necessary

what is the trial process in order?

prosecution case
determination of whether there is a case
defence case
closing speeches

what is the trial process (determination of whether there is a case)?

when the prosecution has presented all its evidence, defence can submit that there is no case to answer - not enough evidence to prosecute
if successful a verdict of not guilty will be directed

what is the trial process (defence case)?

defence calls its witnesses to support its case and conducts examination in chief
prosecution cross-examines witnesses

what is the trial process (closing speeches)?

both sides make closing speeches, prosecution goes first
in CC judge sums up legal and factual issues and offers clear advice for jury
jury (or magistrates) retire to aim for a unanimous verdict
if D found not guilty they are acquitted. if guilty the judge/magistrates deliver the sentence

what are the roles of the criminal courts?

in both MC/CC, majority of Ds plead guilty - courts role is to sentence
where D pleads not guilty, role of court is to try the case and if guilty then sentence

what is the role of the magistrates court?

deals with approx 98% of criminal cases
some limited civil jurisdiction (non-payment of council tax/TV licences) but most of work is criminal cases
issues arrest/search warrants
decides on bail
conducts sending for trial hearings for indictable cases like murder

what is the role of the magistrates court (2) ?

trying summary offences such as assault
trying TEW offences that are tried summarily like theft
dealing with young offenders in youth court
magistrates have dual tole - hear case and sentence D if guilty

what is the role of the youth court?

special type of magistrates court for 10-17 year olds
has 3 magistrates or district judge
no jury
parent/guardian comes with if under 16 or 1/17 and given court order
less formal than adult courts:
members of public aren’t allowed in court if they don’t have permission
called by first name

what types of cases does the youth court try?

theft/burglary
anti-social behaviour
drug offences
serious crimes (murder and rape) - case starts in youth court but will be passed to CC

what is the role of the crown court?

try serious, indictable criminal offences like murder, rape, robbery. where D pleads guilty there is no need for a jury and judge will sentence
try TEW offence which are to be tried on indictment
to hear appeals from the MC
sentence Ds from the MC where magistrates believe their sentencing powers are insufficient

what is the role of the COA (criminal division)?

deals exclusively with appeals from the crown court
staffed by lord justices of appeal and headed by the lord chief justice who is head of criminal justice system

what is the role of the SC in criminal cases?

final court of appeal for all UK criminal cases
hears appeals on arguable points of law of general public importance
concentrates on cases of greatest public and constitutional importance
hears appeals from the COA

how do appeals work in the magistrates court?

following trial in the MC, 2 routes of appeal are open to D
if D wishes to appeal conviction/sentence, can appeal to CC as of right. automatic right of appeal is open to the defence
D can make a case stated appeal to KBD of HC. can be used by defence if D has been convicted or by prosecution if D has been acquitted. appeal is based on a mistake made in application of law. route of appeal isn’t made often. HC can allow/dismiss appeal or reorder hearing before new bench of magistrates
further appeal is available from HC to the SC but will only happen if of public importance

how do appeals work in the crown court (defence)?

appeals from CC to COA (criminal) are the most common route of appeal by defence against conviction/sentence. D must have to leave to appeal
COA powers:
allow appeal so conviction will be quashed (rejected as invalid)
dismiss appeal so conviction will stand
decrease sentence
reduce conviction to lesser offence
order a retrial in front of new jury at CC

how do appeals work in the crown court (prosecution)?

appeals by prosecution against acquittal are rare and can only be done with permission of attorney general who can:
refer a point of law to the COA or apply for leave against an unduly lenient sentence
2016: 146 out of 190 applications had sentences increased after COA found sentences unduly lenient
further appeal from COA to SC is extremely rare but is available to prosecution and defence. leave to appeal is rarely granted then only on legal points of general public importance

what is the crown prosecution service (CPS)?

when suspect is arrested they aren’t automatically prosecuted
decision to prosecute rather than caution or drop the case lies with an independent body known as CPS
before CPS was established in 1986, decision to prosecute was taken by police

what is the role of the CPS?

CPS set up under prosecution of offences act 1985 partly as a result of concerns about miscarriages of justice involving police tampering with evidence
independent body headed by director of public prosecutions (DPP) who is answerable to the AG

what are the 5 main roles of the CPS?

generally takes control of a case as soon as police have finished collecting evidence and conducting investigation. roles include:
advise police
review cases
prepare cases for court
present cases in court
decide whether to bring a prosecution against a suspect

what is the structure of the CPS?

divided into 14 areas of england and wales
each area is headed by a chief crown prosecutor
each of 14 areas is split into branches which usually correspond to police forces and each branch is headed by a branch crown prosecutor

what is the role of the attorney general?

richard hermer
chief legal adviser to the crown
principal legal adviser on EU, international law, human rights and devolution
referring unduly lenient sentences to COA
dealing with questions of law arising on government bills

what is the role of the DPP?

stephen parkinson
head of CPS and operates under AG
institute/conduct prosecutions
restrain/confiscate assets used or from criminal offences
advise police

what is the code for crown prosecutors?

public document issued by DPP under s.10 of prosecution of offences act 1985 that sets out the general principles crown prosecutors should follow when they make decisions on cases

what is the full code test?

prosecutors must only start or continue a prosecution when the case has passed both stages of the full code test
exception is when the threshold test may be applied

what are the 2 stages of the full code test?

evidential test
public interest test

what is the evidential test?

prosecutors must be satisfied there is sufficient evidence to provide realistic prospect of conviction against each suspect on each charge
must consider what defence case may be/likelihood of affecting prospects of conviction
a case not passing this stage must not proceed
prosecutors ask:
can evidence be used in court
is evidence reliable
is evidence credible
is there any other material that might affect the sufficiency of evidence

what is the public interest test?

in every case where there is sufficient evidence to justify a prosecution, prosecutors must consider if prosecution is in public interest
they ask:
how serious is offence committed
level of culpability of suspect
circumstances/harm to victim
suspect’s age/maturity at time of offence
impact on community
prosecution as proportionate response
sources of info requiring protection

what is the threshold test?

limited circumstances where full code test isn’t met, threshold charge applied to charge a suspect
all 5 conditions must be met before test can be applied:
reasonable grounds to suspect that person to be charged has committed offence
further evidence can be obtained to provide realistic prospect of conviction
seriousness/circumstances of case justifies the making of an immediate charging decision
continuing substantial grounds to bail in accordance with bail act 1976 and in all circumstances of case it is proper to do so
is in public interest to charge the suspect

what are the CPS casework quality standards (and 4 sections) ?

document published by CPS in october 2014 which outlines the standards that the public can expect from the CPS and are important in holding the CPS to account if it fails to provide the service outlines by the standards
1: victims, witnesses and communities
2: legal decision making
3: casework preparation
4: presentation

what is included in the victims, witnesses and communities of the CPS casework quality standards?

treat victims/witnesses with respect and understanding
taking account of the rights, interests and needs of victims/witnesses

what is included in the legal decision making of the CPS casework quality standards?

giving advice which contributes to the investigation reaching a proper and timely outcome
correctly applying the law and the code for crown prosecutors in each case

what is included in the casework preparation of the CPS casework quality standards?

thinking ahead, anticipation and resolving issues
communicating effectively and promptly with victims/witnesses/police/courts/defendants and their representatives and others who rely on them

what is included in the presentation of the CPS casework quality standards?

preparing properly so that each hearing can be suitably progressed
effectively engaging with victims and witnesses

what is bail?

the person is allowed to be at liberty until the next stage in the case

what are the 2 different types of bail?

police bail
court bail

why is bail important?

in line with article 5 ECHR: right to liberty
innocent until proven guilt
home office suggests that up to 20% of those in our prisons are awaiting trial and may go on to be found innocent or given non-custodial sentences so bail is appropriate in many situations
enables suspect to carry on with family life/work
enables suspect to prepare their case
reduces stress on prison population/saves costs to government

what does the policing and crime act 2017 do?

puts a limit of 28 days on police or pre-charge bail

what is pre-charge bail (police bail)?

enables those under investigation to be released from custody, potentially subject to conditions, while officers continue their enquiries

what are the circumstances where the police can grant bail?

to a suspect released without charge
to a D who has been charged
‘street bail’

how can police grant bail to a suspect released without charge?

on the condition that they return to the police station on a specific date in the future - s.37 PACE 1984
where a person has not been charged, they can be on bail no longer than 28 days - policing and crime act 2017

how can police grant bail to a D who has been charged?

with an offence until their EAH at the magistrates court - s.38 police and criminal evidence act 1984
the custody officer can refuse bail if the suspect’s name and address cannot be discovered, or if there is doubt as to whether the name and address given are genuine

how do police grant bail for ‘street bail’?

for minor offences, without the need to take them to the police station - s.4 CJA 2003

whose decision is it to grant bail?

custody officer

which circumstances can police refuse bail?

suspect does not give a name and address
if the name and address given is thought not to be genuine
bail is granted in the majority of cases and can be given to the suspect even if they haven’t been charged on the agreement they will return to the police station on a given date

what is the 28 day limit on police bail?

policing and crime act 2017 introduced pre-charge bail limit of 28 days
was to end the injustice of people being left to languish on very lengthy periods of pre-charge bail, by introducing a limit of 28 days
aims to rebalance the police’s use of bail in the interests of fairness

what governs the court’s power to grant bail?

bail act 1976

what is the bail act 1976?

section 4 contains a presumption in favour of bail
important given that a D is innocent until proven guilty and bearing in mind article 5 ECHR: right to liberty

what did LASPO 2012 introduce regarding bail?

‘no real prospect test’ - sets the starting point as ‘bail must be given if there is no real prospect that the D will be sentenced to a custodial sentence’

what factors are considered under the bail act 1976 schedule 1 (9)?

nature and seriousness of the offence
character, past record, association and community ties of D
D’s previous record of surrendering to bail
strength of evidence against them

what are circumstances when bail will not be granted?

if there are substantial grounds for believing the suspect would:
commit an offence against an ‘associated person’ in a domestic violence case (LASPO 2012)
the suspect needs to be kept in custody for their own protection

what are examples of other restrictions on bail?

serious cases - LASPO 2012
terrorism - s.24 anti-terrorism, crime and security act 2001
already on bail - CJA 2003
custodial sentences
class A drugs - CJA 2003

how do serious cases under LASPO 2012 pose as a restriction on bail?

where a person has previously served a custodial sentence for murder, manslaughter or rape, the judge can only grant bail if it is of the opinion that there are no exceptional circumstances

how does terrorism pose as a restriction on bail?

all bail applications from suspected international terrorists should be made to the special immigration appeals commission

how does already being on bail pose as a restriction on bail?

if D was on bail for another offence at the date of the offence, bail should be refused unless the court is satisfies that there is no significant risk they will commit another offence

how do custodial sentences pose as a restriction on bail?

the prosecution can appeal against the granting of bail for any imprisonable offence

how do class A drugs under CJA 2003 pose as a restriction on bail?

where D has tested positive for class A drug and where the offence is connected with class A drugs

what is conditional bail?

conditions can be imposed on bail by the police and the courts - criminal justice and public order act 1994

what are examples of conditional bail?

curfew
electronic tag
sureties
surrendering passport
reporting regularly to the police station
residence at bail hostel

what is dave lee travis’ conditional bail case?

charged with 11 courts of indecent assault and one count of sexual assault
bail: had to live at home in bedfordshire and should not contact his alleged victims

what is ryan cleary’s conditional bail case?

charged with attempting to hack the website of the serious organised crime agency
bail: extensive and stated he should observe a curfew between 9pm and 7am every night, wear an electronic tag and only leave the house in the company of his parents. also had to live and sleep at his home address and not have access to the internet or possess any devices capable of internet access

what are advantages of bail?

enables suspect to carry on with family life/work
reduces stress on prison population so less costs to government
enables suspects to prepare their case
creation of bail hostels allowed people a safe house whilst managing freedom

what are the disadvantages of bail?

risk to public
risk of reoffending - cases involving gary newlove and gary weddell
risk of interference with witnesses
bail bandits - those who commit offences while on bail. thought that a third of burglaries are committed by people for another offence
seems to be disparity in the interpretations of the bail act 1976 in different courts