The criminal courts: Procedure and Sentencing

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The criminal courts Procedure and Sentencing

• Outline Procedure to Trial

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Lesson Objectives

• I will be able to describe the procedure from
  charging the accused to the start of his trial
• I will be able to apply this to a given situation

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Principles behind the procedure

• The main purpose behind the procedure is to
  ensure justice is done. The Criminal Procedure
  rules 2005 sets out a number of aspects of
  achieving justice. These include
• 1. acquitting the innocent and convicting the
  guilty
• 2. dealing with the prosecution and the defence
  fairly
• 3. recognising the rights of a defendant,
  particularly those under Article 6 of the ECHR
  (to meet international standards)

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• 4. respecting the interests of witnesses, victims
  and jurors, and keeping them informed of the
  progress of the case
• 5. dealing with the case efficiently and
  expeditiously
• 6. ensuring that appropriate information is
  available to the court when bail and sentence are
  considered
• 7. dealing with the case in ways that take into
  account
• A. the seriousness of the offence alleged
• B. the complexity of what is in issue
• C. the severity of the consequences for the
  defendant and others affected
• D. the needs of other cases

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Summary Offence
Start Next Final
Charged Bail or custody Plead guilty (sometimes by post if so no court appearance)
Summoned Public funding for representation Trial
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• The process for a summary offence starts with the
  summons, as a result of inquiries having been
  made and a decision to prosecute having been
  taken
• The CPS normally makes the decision as to whether
  to prosecute or not
• The Police only have the right to charge a person
  for certain minor offences

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Either way offence
Court selection Pre-trial Trial
Magistrates Court proceed to trial Case management hearing Plea of guilty and be sentenced by the judge
Crown Court sent for trial Case management hearing Plea of not guilty and trial
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• The first main hearing of an either-way offence
  is for a decision to be made as to whether the
  case should be heard at the M or C Court.
• This is called a mode of trial hearing. At this
  hearing both the prosecution and the defence
  lawyers make representations as to which mode of
  trial should be adopted
• The Magistrates clerk and his lawyers will
  explain to the defendant

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• That he may state whether he wishes to plead
  guilty or not guilty
• That if he pleads guilty, the court will proceed
  to hear the case as a guilty plea and proceed to
  sentence
• That, if he pleads guilty, he may still be
  committed for sentence to the C Court if the M
  consider that their powers of punishment are
  likely to be insufficient (maximum sentencing
  power of 6 months or 12 if there is more that 1
  offence)

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• If the defendant indicates a not guilty please to
  an either-way charge, then the M Court first
  considers whether its powers of sentence are
  sufficient to deal with the case in principle
• If the M decide that their powers are not likely
  to be sufficient, they send the case to the C
  Court
• If they decide that their powers are sufficient,
  the defendant still has the right to elect trial
  by jury in the C Court

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• The Ds choice is not straightforward. There are
  advantages and disadvantages to each court. Rates
  of acquittal on not guilty pleas are
  significantly higher in jury trials (jury fairer
  than case-hardened M)
• There are some who believe that Ms may still hear
  evidence that may be inadmissible, and that
  police evidence is never less than totally
  accurate
• Jury trial involves more delays and greater
  defence costs many defendants prefer to get the
  matter over with and on with their lives

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• The D is also opting for a court with greater
  sentencing powers in the event of a conviction
• Best to obtain legal advice before making the
  decision
• The D is entitled to a summary of the prosecution
  evidence, or copies of their witness statements
  before deciding this is known as Advance
  Information

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Indictable offence
First Then Final
Appear before magistrates Plea and case management hearings Trial by jury at Crown Court
Bail and funding of representation hearings
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• Indictable offences pass through the Ms Court
  quickly for transfer to the C Court, even though
  the C Court trial may well take place some time
  in the future
• The sending for trial procedure is quite
  straightforward and leaves the M to decide on
  preliminary issues such as bail only
• The first hearing at the C Court is the plea and
  case management hearing (PCMH)

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• A PCMH is designed to ensure that all necessary
  steps have been taken in preparation for trial
  and that sufficient info has been provided for a
  trial date to be arranged
• The judge is required to exercise a managerial
  role in the case. At this hearing the D will
  enter a plea. If he pleads guilty, sentencing can
  take place immediately. If they plead not guilty,
  then the prosecution and defence are expected to
  inform the court of things such as

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• The issues in the case, such as conflicting
  witness statements
• The number of witnesses and the order in which
  prosecution witnesses will be called this will
  help assess the length of the trial
• Any formal admissions, for example, of guilt
• Exhibits that will need to be produced such as a
  weapon
• The documents to be used by the prosecution at
  trial, and how they will appear
• Any point of law, such as the definition of the
  mens rea of the offence
• Questions as to the admissibility of evidence it
  might be that a statement was not obtained
  following the correct procedure
• The estimated length of the trial and the
  availability of witnesses and counsel, so that a
  suitable date or dates can be found

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• These matters are dealt with in a questionnaire,
  which must be completed by counsel for each party
• The defendant may use the PCMH to request an
  advance indication of sentence from the judge.
  This can help decisions to be made about the
  trial and whether the defendant's plea should
  change from not guilty to guilty with the hope of
  a further reduction in sentence for having
  pleaded guilty before the trial
• It should be noted that this hearing is likely to
  be the first opportunity that the defendant has
  to make such a request, as the procedure is not
  available in the M Court

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• At the PCMH, the judge will give directions with
  a view to dealing with the case justly and
  bringing it to trial quickly and efficiently
• The trial date will usually be fixed. The C Court
  will normally send a notice of fixture, which
  confirms that date and other agreed matters

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Bail

• Under the Bail Act 1976 there is a general right
  to bail. Bail can be granted by the courts of the
  police. Police bail can be given at a police
  station or under the Criminal Justice Act 2003,
  where police officers can grant bail following
  arrest at locations other than at a police
  station, a process known as street bail.
• Court bail is dealt with through the Ms Court.
• Where bail is granted, the person is released
  from custody until the next date when they must
  attend court or the police station, as stated on
  the bail notice.
• If bail is refused, this will be because the
  police or the court believes that the defendant ,
  if released on bail, will abscond, commit an
  offence, interfere with witnesses, or otherwise
  interfere with the criminal justice process.
  There are two types of bail, conditional and
  unconditional

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Conditional bail

• The police and courts can impose any requirements
  that are necessary to make sure that defendants
  attend court and do not commit offences or
  interfere with witnesses whilst on bail
• Recommended bail conditions, and the reasons for
  such conditions, should be specific and
  justifiable. The conditions must be likely to be
  effective and capable of being enforced

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• Bail conditions can be imposed before release on
  bail. This will either surety, where the
  defendant or another person may be required to
  pay a sum of money up to that amount if the
  defendant does not attend the police station or
  court as required
• Or security, which is the same but secured on an
  asset such as a house. The security must be
  forfeited if bail is broken. Additionally, the
  defendant may have to surrender his passport

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• Post-release bail conditions may also be imposed,
  so that the defendant is likely to attend and
  also is less likely to re-offend or interfere
  with witnesses. These can include
• Reporting to the police at given times
• Living at a stated address e.g. their own home,
  or relative away from the offence or a bail house
• Staying away from certain people or places
• A curfew, for which the court (but not the
  police) can order an electronic tag to be used

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• If a defendant is reported, or believed, to have
  breached a bail condition, he can be arrested and
  brought before the Ms Court and may lose the
  right to bail and be placed on remand. Failing to
  appear at court as required is a criminal offence
  and can lead to prosecution for his offence

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Unconditional bail

• If the police or court think that the defendant
  is unlikely to commit further offences, will
  attend court when required, and will not
  interfere with the justice process, the defendant
  will usually be released on unconditional bail