8 markers

Explain the different types of offences.

• Summary Offences are minor offences, such as minor assaults or most motoring offences. They are tried only in the Magistrates’ Court. The case is decided by Lay Magistrates or a District Judge, with no jury.

• Either-Way Offences are mid-level offences (e.g., theft). They can be tried in either the Magistrates’ Court or the Crown Court. The magistrates first decide if the case is suitable for them; if not, it is sent to the Crown Court. The defendant can choose a jury trial in the Crown Court.

• Indictable Offences are the most serious offences, such as murder. They are tried only in the Crown Court. The trial is before a judge and jury.

Explain summary offences.

• Summary offences are the least serious criminal offence and have to be tried in the Magistrates’ Courts.

• The case is decided by Lay Magistrates or a District Judge, with no jury.

• They are subdivided into offences of different ‘levels’, which carry maximum fines: Level 1: maximum £200; Level 2: £500; Level 3: £1000; Level 4: £2500; Level 5: unlimited.

• Examples of summary offences include driving while disqualified, common assault, being drunk and disorderly in a public place, and theft from a shop where the value of the goods stolen is less than £200.

Explain either-way offences.

• Triable either-way offences can be tried in either the Magistrates’ Court or the Crown Court.

• The defendant can choose a jury trial in the Crown Court, as there are no jury trials in the Magistrates’ Court.

• If it is decided that the case will be dealt with in the Magistrates’ Court, then the procedure is the same as for trial of a summary offence. The only difference is that if the defendant pleads guilty or is found guilty, the magistrates have the power to send the defendant to the Crown Court for sentencing. The magistrates can only do this if they think that they cannot impose an adequate sentence.

• If the case is tried in the Crown Court, the trial will proceed in the same way as an indictable offence. If the defendant pleads (or is found) guilty, the judge can impose any sentence up to the maximum for that offence.

• Triable either-way offences include assault causing ABH and theft of property over £200.

Explain indictable offences

• Indictable offences are the most serious offences and can only be tried in the Crown Court.

• The first preliminary hearing to establish the defendant’s identity will take place in the Magistrates’ Court.

• If the defendant pleads not guilty, a jury will decide if the defendant is guilty or not guilty after hearing all the evidence.

• If the defendant pleads guilty, the judge will impose a sentence.

• When sentencing, the judge can impose any sentence up to the maximum that is set by the Act that imposes the offence.

• Examples of indictable offences include murder, manslaughter and robbery.

Explain the pre-trial procedures for summary offences.

• For pre-trial procedures of summary offences, 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% 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.

Explain the pre-trial procedures for triable either way offences. (2022)

• The procedure is set out in the Magistrates’ Court Act 1980.

Plea before venue:

• a pre-trial hearing in the Magistrates Court

• defendant asked whether they plead guilty or not guilty to the offence

• If the defendant pleads guilty the case will proceed to a sentencing hearing

• The magistrates retain the option of sending the defendant to the Crown Court for sentencing

• If the defendant pleads not guilty the magistrates will carry out mode of trial proceedings

Mode of trial:

• Magistrates will decide on the most appropriate court to try the case

• When deciding the magistrates will consider:

o their own powers of sentencing

o recommendations made by the prosecutor

o the seriousness of the offence

o the defendant’s previous convictions

Defendant’s election:

• If the magistrates accept summary jurisdiction the defendant is given the choice of court.

Explain the pre-trial procedures for indictable offences.

• 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.

• The Plea and Trial Preparation Hearing (PTPH) 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 a 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 is a document which will be prepared before trial; it 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.

• 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, even if it undermines the case for the prosecution against the accused.

• The defence must give a written statement to the prosecution that includes:

1. the nature of the accused’s defence, including any legal defences intended to be relied on;

2. any matters of fact on which issue is taken with the prosecution;

3. any point of law to be argued, and the case authority in support;

4. any alibi and witnesses to support that alibi - this information allows the prosecution to run police checks on the alibi witnesses.

Explain the jurisdiction of the Magistrates’ Courts.

• There are about 160 Magistrates’ Courts in England and Wales.

• They were established as local courts and deal with cases that have a connection with their geographical area.

• Cases are heard by magistrates, who may either be legally qualified District Judges or non-legally qualified lay magistrates (also called justices).

Magistrates’ Courts have the following jurisdiction:

1. To try all summary cases

2. To try any triable either way cases that can be dealt with in the Magistrates’ Court.

3. To deal with the first hearing of all indictable offences. These cases are then immediately sent to the Crown Court.

4. To deal with all preliminary matters connected to criminal cases, such as issuing warrants for arrest and deciding bail applications.

5. To try cases in the Youth Court where defendants are aged 10-17 inclusive

(The first two categories account for about 97% of all criminal cases).

Explain the jurisdiction of the Crown Court.

• There are about 92 Crown Courts in England and Wales.

• The Crown Court deals with all indictable, or serious, offences. It also deals with any triable either way offences that are sent for trial from the Magistrates’ Court.

• A judge sits alone to hear pre-trial matters in cases at the Crown Court, and where a defendant pleads guilty.

• However, when a defendant pleads not guilty, a jury is used to decide the verdict.

The judge will:

1. Control the court

2. Rule on relevant issues of law

3. Direct the jury on the law and evidence

4. Impose a sentence if the defendant is found guilty

• Regarding the prosecution, it is the Crown Prosecution Service (CPS) which initially advises the police on what offence to charge. Lawyers work for the CPS.They may direct the police on what evidence is required and needs to be obtained. Once the case comes to court, lawyers present the case and try to prove the defendant guilty beyond reasonable doubt.

• Regarding the defence, the defendant is the person charged with a criminal offence. They (and their lawyer) do not have to disprove the prosecution case but to cast sufficient doubt on it.

Explain criminal appeals (generally) (- Case-stated appeals)

• Case-stated appeals are appeals on a point of law that go to the King’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 2 or 3 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 100 case-stated appeals made each year.

• There is a possibility of a further appeal to the Supreme Court such as in C v DPP (1994).

Explain appeals from the Magistrates’ 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 offence.

Explain appeals by the defendant from the Crown Court

• An appeal can be made against conviction and/ or sentence to the Court of Appeal (Criminal Division).

• 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 simplified the grounds under which the court can allow an appeal. The Act states that the CoA should “allow an appeal against conviction if they think that the conviction is unsafe”.

• Since the ECHR was incorporated into law by the HRA 1998, the CoA has taken a broad approach to the meaning of ‘unsafe’. In particular, a conviction has been held to be ‘unsafe’ where D has been denied a fair trial (A6).

• D can apply to introduce new evidence but:

1. It must appear to be capable of belief and afford a ground for an appeal.

2. It has to be considered whether it would have been admissible at the trial, and why it was not produced at the trial.

The CoA can:

• Allow a D’s appeal and quash a conviction, or

• Vary the conviction to that of a lesser offence of which D 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.

Explain appeals by the prosecution from the Crown Court

The prosecution has limited rights to appeal against an acquittal as follows:

1. Where the acquittal was the result of the jury being ‘nobbled’. This is where one or more jurors was bribed or threatened by associates of the defendant. (R v Twomey and Others)

2. Where there is new and compelling evidence of the acquitted person’s guilt, and it is in the public interest for the defendant to be retired. This power is given by the Criminal Justice Act 2003 and it is only available for approx 30 serious offences including murder, manslaughter and terrorism. This is known as double jeopardy, since D is being tried twice for the same offence (Stephen Lawrence.) The Director of Public Prosecutions has to consent to the reopening of investigations in the case.

• Following an acquittal, under s36 of the Criminal Justice Act 1972, the Attorney-General (A-G) can refer a point of law to the Court of Appeal in order to get a ruling on the law.

• The decision by the CoA on that point of law does not affect the acquittal but it creates a precedent for any future case involving the same point of law.

• Also, under s36 of the Criminal Justice Act 1988, the A-G can apply for leave to refer an unduly lenient sentence to the CoA.

• Cases are brought to the A-G’s attention by the CPS. It is also possible for a member of the public to contact the A-G’s office if they feel that the original sentence was too lenient.

Focus could be on the appellate court itself - jurisdiction of CoA in criminal matters or UKSC

(Further appeals)

• Both the prosecution and the defence may appeal from the CoA to the UKSC, but they need to have the case certified as involving a point of law of general public importance, and to get leave to appeal from either the UKSC or the CoA.

• An appeal can only be made against conviction or acquittal.

• The appeal will consist of legal arguments only, and fewer than 20 criminal appeals are usually heard by the UKSC each year.

Explain aims of sentencing. (2019 - 5 aims of sentencing)

• In the Magistrates’ Courts, the magistrates will decide the sentence.

• In the Crown Court, the judge will decide the sentence

1. Punishment. Retribution is based on the idea of punishment. The offender deserves to be punished for their wrongdoing. This is society’s revenge for the offence and is based on proportionality eg eye for an eye. The judge will pass a sentence that is in proportion to the offence. The punishment should fit the crime. The Tariff sentence are based on the idea of proportionality.

2. The reduction of crime (including its reduction by deterrence). The aim is to reduce crime by deterring individual offenders from committing the same offence again or similar crimes. This is done by giving an offender a severe penalty. By doing this the individual will think twice about reoffending because of fear of the punishment. The aim is also used to deter society from committing offences. If society sees an offender being given a harsh sentence it is hoped that this will deter others from committing the same offence.

3. The reform and rehabilitation of offenders. This aim looks to help reform the offender to stop them re-offending. It is an aim that looks at the potential of the offender to reform – it is a forward-looking aim. It aims to rehabilitate offenders by altering their behaviour so that they do not commit crimes in the future.

4. The protection of the public. The public should be protected from dangerous offenders. There are various ways of protecting the public. A dangerous driver can be given a driving ban. This protect both road users and pedestrians. If the offender presents a significant risk to members of society then they must be sent to prison to protect the public. This prevents them committing further offences.

5. Reparation. The making of reparation by offenders to persons affected by their offences. This aim looks to give something back to the victim. The offender might be ordered to pay compensation to the victim or make restitution. This aim also looks to include making reparation to society.

Explain custodial sentences

Custodial sentences are the most serious type of punishment a court can impose and involve the offender being sent to prison. They are generally reserved for serious offences and are governed by the CJA 2003, which states that a custodial sentence should only be imposed where the offence is so serious that a fine or community order cannot be justified.

The most severe type of custodial sentence is a mandatory life sentence, which must be imposed for murder. The judge sets a minimum term that must be served before the offender can be considered for release on license. In the most serious cases, a whole life order may be imposed, meaning the offender will never be released.

Discretionary life sentences may be given for other serious offences such as manslaughter, rape or robbery, where the maximum sentence is life imprisonment but the judge has discretion depending on the circumstances.

Fixed-term sentences are used for less serious offences, where the length of imprisonment is set by statute. Offenders do not usually serve the full sentence in prison; they are typically released on license after serving half, subject to conditions.

Suspended sentences are another form of custodial sentence. These involve a prison sentence that is not immediately enforced, provided the offender does not commit another offence within a specified period. If they breach the conditions, the sentence can be activated.

Overall, custodial sentences aim to punish, protect the public, and deter crime, and are only used when the seriousness of the offence justifies imprisonment.

Explain community orders (non-custodial sentences). (2025)

Explain fines (non-custodial sentences).

• The most common sentence imposed in the Magistrates’ Court - about 70% of offenders are fined - whereas very few offenders receive a fine in the Crown Court.

• When deciding the amount of a fine, the courts must take into account the income and assets of the offender.

Explain discharges (non-custodial sentences).

• This may either be a conditional discharge or an absolute discharge.

• A conditional discharge means that the courts discharge an offender on the condition that they commit no further offence during a set period of up to 3 years.

• If an offender reoffends within the time limit, the court can impose another sentence in place of the conditional discharge, as well as imposing a penalty for the new offence.

• Conditional discharges are widely used by Magistrates’ Courts for first-time minor offenders.

• An absolute discharge means that, effectively, no penalty is imposed.

• This sentence is often used where an offender is technically guilty but morally blameless.

• This could be imposed, for example, where a person is found in possession of a small quantity of cannabis for personal use, but there is a medical reason for the taking of the drug.

Explain the sentencing process.

1. After conviction

• Sentencing occurs after guilty plea or verdict

• Judge/magistrates decide appropriate sentence

2. Sentencing guidelines

• Courts follow guidelines from the Sentencing Council (established in 2010) - it has responsibility for: developing sentencing guidelines and monitoring their use; assessing the impact of guidelines on sentencing practice; promoting awareness among the public about the realities of sentencing; publishing information about sentencing practice in Magistrates’ and Crown Courts.

• Provide starting point based on harm and culpability

3. Aggravating and mitigating factors

• Aggravating factors increase seriousness (e.g. previous convictions)

• Mitigating factors reduce sentence (e.g. remorse, first offence)

4. Pre-sentence reports

• Prepared by the Probation Service

• Help decide suitable sentence, especially for custodial/community orders

• Will give information about the offender’s background and suitability for a community-based sentence

5. Other reports (brief)

• Medical/psychiatric reports if mental health is relevant

6. Reduction for guilty plea

• Early guilty plea can reduce sentence

• A guilty plea at the earliest opportunity should reduce the sentence by up to 1/3, but where prosecution is overwhelming, only 1/5.

• A guilty plea after trial has been set is up to ¼ reduction

• A guilty plea after trial has started is only a 10% reduction

7. Totality principle

• Ensures overall sentence is proportionate for multiple offences

8. Decision + reasons

• Court selects appropriate sentence (custodial, community, fine)

• Must give reasons for the sentence

Explain aggravating/ mitigating factors.

• Before sentencing an adult offender, the judge or magistrates will weigh up any relevant aggravating or mitigating factors.

• Aggravating factors will increase a sentence.

The Criminal Justice Act 2003 lists these aggravating factors that make an offence more serious:

• Previous convictions for offences of a similar nature or related 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 magistrate will also want to know:

• In a case of theft - How much was stolen and was D in a position of trust?

• In a case of assault - What injuries were inflicted? Was the assault premeditated? Was V particularly vulnerable (young or elderly)?

• Whether D was in a position of trust and abused that trust - the offence will be considered 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 the planning?

• Mitigating factors will reduce a sentence.

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: A guilty plea at the first reasonable opportunity should reduce the sentence by up to 1/3, but where the prosecution case is overwhelming, only 20%. A guilty plea after the trial has started would only be given a 10% reduction.

Explain the qualification of juries

Qualifications

• The Juries Act 1974 (as amended) sets out the qualifications for jurors.

• To qualify for jury service, a person must be: aged between 18 and 76; registered as a parliamentary or local government elector; resident in the UK for at least 5 years since age 13.

• The person must not be detained or resident in a hospital under a Mental Health Order, or disqualified from jury service.

Disqualifications

• Disqualified permanently from jury service are those who at any time have been sentenced to: (some examples, not all) imprisonment, detention or custody for life/ for more than 5 years; imprisonment or detention for public protection; an extended sentence.

• People are disqualified for 10 years if at any time in the last 10 years they have: served a sentence of imprisonment; had a suspended sentence passed on them; had a community order/ other community sentence passed on them.

• Anyone currently on bail in criminal proceedings is disqualified from jury service. If they fail to disclose this and turn up for jury service, they may be fined up to £5000.

Lack of capacity

• A judge may discharge a person from being a juror for lack of capacity to cope with the trial.

• May be because the person does not understand English adequately, or due to some disability that makes them an unsuitable juror (includes blind people, as would not be able to see plans and photographs in evidence).

• Deaf jurors may be excluded if interpreter is needed (as this counts as an extra person).

• Discretionary excusals are only allowed for good reason (illness; persons aged 70+; essential work); temporary issues = defer; non-attendance = fine up to £1000

• Full-time members of the forces: Can be excused if service efficiency is affected

• Lawyers/ police: Can serve; test = real possibility of bias? (Hanif v UK 2012 - police juror knew witness; breach of fair trial (A6))

• Judges on jury service: Must serve as part of duty as a private sentence; excusal is rare & only in extreme cases; must disclose conflicts; must follow trial judge instructions.

Explain the selection of juries.

• Random selection: Jurors are randomly selected by computer from the electoral register to ensure fairness and representativeness.

• Summoning: More than 12 people are summoned (usually around 15+) because some may be disqualified, excused, or deferred.

Vetting:

1. Once the list of jurors is known, both the prosecution & defence have the right to see the list. In some cases, it may be decided that this pool of potential jurors should be ‘vetted’ (checked for suitability)

2. Basic checks by the Disclosure and Barring Service (DBS) to remove disqualified jurors (e.g., criminal records).

3. Authorised jury checks: background/ political checks; only allowed in exceptional cases (e.g., national security cases) and require the Attorney General’s permission.

• Panel selection in court: From a panel of about 15, 12 jurors are randomly selected by the court clerk to form the jury.

Challenging jurors (before swearing in):

• To the array - challenge whole jury for bias/ unrepresentative selection

• For cause - challenge individual juror (e.g., knows defendant/ witness, disqualified)

• Prosecution right to stand by - juror asked to step aside

Key cases:

1. R v Fraser (1987) - challenge allowed where jury lacked ethnic diversity

2. R v Ford (1989) - cannot challenge just because jury isn’t multiracial if randomly selected

• Appointment: Final 12 jurors are sworn in, take an oath, and are empanelled to hear the case.

Explain the role of juries. (2024)

• Used in cases where the defendant has pleaded not guilty

• Used in the Crown Court for serious cases

• Listen to the evidence

• Listen to the summing up by the judge.

• Decide questions of fact

• Listen to the judge’s advice on questions of law

• At the end of the trial, jurors will retire to the jury room and discuss the case in secret

• Come to a verdict/decision not guilty or guilty

• Unanimous or majority decision at least 10 – 2 if necessary

• Foreperson delivers the verdict

Explain the qualification of magistrates.

• No formal legal qualifications required; lay magistrates are ordinary members of the public.

Basic requirements:

1. Aged 18-65 on appointment, retire at 70

2. Must live/ work within or near to the local justice area to which they are allocated

3. Must commit to at least 26 half-days per year + training

Six key qualities that the Lord Chancellor set out in 1998:

1. Good character

2. Understanding and communication

3. Social awareness

4. Maturity and sound temperament

5. Sound judgement

6. Commitment and reliability

Judicial abilities/ qualities:

• Able to understand facts and make reasoned decisions

• Can work as part of a team and consider others’ views

Disqualifications:

• Serious criminal convictions

• Undischarged bankrupts

• Police officers/ traffic wardens/ armed forces

• Close links to local criminal justice system (risk of bias)

• Physical incapacity (e.g., hearing issues affecting duties)

• Close relatives on the same bench

Explain the selection of magistrates.

• Appointments: Around 1200 magistrates are appointed yearly by the Senior Presiding Judge.

Local Advisory Committees:

• Recommend suitable candidates

• Max 12 members (mix of magistrates and non-magistrates)

• Aim to create a representative panel of society

• Encourage applications via adverts (e.g., local media)

The selection process

Application stage:

• Candidates complete a form and give the name of two referees

First interview:

• Assesses personal qualities/ attributes (6 key qualities)

• Interview panel will explore views on criminal justice issues (e.g., youth crime)

Second interview:

• Tests candidate’s potential judicial aptitude using case studies (typically heard at Magistrates’ Courts)

• Candidates discuss decisions (e.g., appropriate sentence)

Final appointment:

• Committee recommends successful candidates

• Senior Presiding Judge makes final decision and appoints magistrates

Explain the role of magistrates.

General role:

• Lay magistrates deal with the majority of criminal cases (around 97%).

• Usually sit on a bench of three, although a District Judge will sit alone.

• They can also issue search and arrest warrants, and extend police custody up to 96 hours in serious cases.

Summary offences:

• Magistrates hear cases from start to finish, listening to prosecution and defence evidence and deciding guilt or innocence.

• If guilty, they pass sentence, with powers of up to 6 months imprisonment (per offence) and unlimited fines for serious Level 5 offences.

Either-way offences:

• They deal with plea before venue hearings, deciding how the case should proceed.

Indictable offences:

• Magistrates do not try these cases but they hold an Early Administrative Hearing and then transfer the case to the Crown Court.

Youth Court:

• Specially trained magistrates hear cases involving 10-17 year olds.

• Cases are private and less formal.

• The bench usually consists of both male and female magistrates.

Appeals:

• Magistrates can sit in the Crown Court to hear appeals against conviction or sentence, alongside a qualified judge.