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magistrates Court Process
Crown Prosecution ServiceROLE IN CHARGING PROCEDURE
Responsible for prosecuting people in England and Wales
who have been charged with a criminal offence.
It was created by the Prosecution of Offences Act 1985
The head of the Crown Prosecution Service is the Director of Public Prosecutions (DPP).
The Director is responsible to the Attorney General (a government minister) who is responsible to Parliament for the CPS.
Advise police on appropriate chargeor need for further pre-charge enquiries
[- police station / pre-charge role]- this pre-charge role has a significant effect on the
'negotiation of plea' process
Preparation and presentation of cases in court
Assessment of prospects of conviction, strength of evidence and public interest
liason
KEY DUTIES
The Review of the Crown Prosecution Service
(The Glidewell Review)
was published in 1998
The CPS needed to work more closely with the other criminal justice agencies and in particular the police.
Criticism was made in particular of the lack of communication between the police and the CPS
The CPS are now use a ‘statutory charging arrangement’ whereby they select what offence to charge an offender with
in all but the most minor of cases
The CPS have ‘CPS Direct’ which is an out-of-hours telephone service to provide the police with charging advice through
the night and at weekends
The Code for Crown Prosecutors
The Code for Crown Prosecutors sets out the basic principles to be followed by when making charging
and prosecuting decisions.
The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under the Prosecution
of Offences Act 1985 s.10
Crown Prosecutors also have to follow additional guidance on charging a suspect in
‘The Director's Guidance on Charging’which the DPP issues under the Police and Criminal
Evidence Act 1984 s.37A
Decisions on both charging and prosecuting suspects
are based on the Full Code Test outlined in the Code.
There are two parts to this test:
The Evidential Stage
Is there is enough evidence to provide a “realistic prospect of conviction” ?
Can the evidence can be used and is it reliable?
The Public Interest Stage
What factors are there for prosecution?
What factors are there against prosecution?
SOCIAL POLICY???
There is a third test:
the threshold test.
The threshold test is used to decide whether a suspect can be charged
even though there is not yet enough evidence
to apply the Full Code Test
The Threshold Test is only applied to those cases in which it would not be appropriate to
release a suspect on bail
because the suspect represents a serious bail risk and there is reasonable suspicion that the offender has committed the offence
and it is in the public interest to charge that suspect
The defence has the right to challenge a case for lack of evidence or an unjustified refusal of bail.
Until the case has met the Full Code Test there is an increasing likelihood that the defence will succeed in stopping a prosecution at an early stage in the court
process. This in effect limits the use of the Threshold Test.
MAGISTRATES COURT
Over 95% of all cases put before the courts are dealt with in Magistrates’ Court.
The cases are heard by either by lay magistrates or one district judge.
All Criminal Proceedings start in the Magistrates Court
There are three types of cases that come to a magistrates’ court
Summary Offences – where the defendant is not entitled to trial by jury. These usually
include driving offences and minor assaults.
Either-way offences – where the defendant can be tried either and the magistrates’ court
of the crown court for offences such as theft or handling stolen goods.
Indictable-only offences – such as murder or manslaughter, rape and robbery which must
be heard in the crown court.
MAGISTRATES COURT
lowest ranked criminal court
'COURT OF FIRST INSTANCE'- all criminal cases start in the magistrates court
'SUMMARY JURISDICTION'
– no jury – limited 'sentencing powers' [especially re imprisonment]
DEALS WITH MORE MINOR OFFENCES – trial / plea / sentence
- 'summary only' offences- less serious 'either way' offences
'EITHER WAY' OFFENCES – DECIDE JURISDICTION
- accused may 'elect' crown court trial- Magistrates may 'decline jurisdiction' if they believe facts
of case too serious for them to deal withcommittal procedure
CONDUCTS 'COMMITTAL PROCEEDINGS' TO CROWN COURT
[FORMAL 'PAPER' PROCEDURE]
- 'indictable only' offences- more serious 'either way' offences, where they have 'declined
jurisdiction'
'COMMIT FOR SENTENCE' TO CROWN COURT- where their limited powers of sentencing for either way offences are
insufficient
MATTERS OF JURISDICTION [IN BRIEF]
• summary trial before District Judge or bench of three lay magistrates
• indictable offences ‘sent forthwith’ from magistrates’ court to Crown Court and EDH
fixed• either-way offences - magistrates proceed to
‘plea before venue’:
if defendant indicates guilty plea, he loses right to Crown Court trial and Magistrates may
dispose of case summarily (Criminal Procedure and Investigation Act 1996)
can include committal to Crown Court for sentence if magistrates believe their powers
(max. 6 months for single offence and/or max. fine of £5,000) are inadequate
if defendant indicates not guilty plea, magistrates must determine venue, though defendant can elect Crown Court trial if the
Magistrates accept jurisdiction
PERSONNEL
LAY MAGISTRATES / JUSTICES'Your Worships' / Sir / Madam
decide matters of 'fact' and law – trained, but not legally qualified
- 2 or 3 sit together
DISTRICT JUDGE [incl 'Deputy' DJ]Sir / Madam
decides matters of 'fact' and law- legally qualified - solicitor / barrister
- sits alone
LEGAL ADVISOR / CLERK TO THE JUSTICES- legally qualified
- advises bench on law / guidance
LAY MAGISTRATES ARE NOT 'LEGALLY QUALIFIED'
appointed by Ministry of Justice / Lord Chancellorfor their
intelligence/integrity/fairness/common sense /impartiality/competence/local
knowledge
Volunteer for 26 half days pa or more
Expenses entitlement
Paid work leave
Training / Monitoring / Appraisals / Mentoring Judicial Studies Board / Sentencing
Counciltraining clerk
probationmagistrates associationplenty of publications
Guidance of the court Legal AdvisorOver-influenced?
Practice Direction 2000Advice on points of law to be given in
open court
DISTRICT JUDGES ARE QUALIFIED, EXPERIENCED LAWYERS
Practitioners for 7 years+as solicitors / barristers
with2 years Deputy DJ experience
{With the patience to complete a 32 page application form}
CONTINUOUS TRAINING AND UPDATING MAINTAINED
although plans were made to increase their sentencing powers, they are subject to the same restrictions,
guidelines and procedures as the lay bench
OTHER PERSONNEL
USHER – notes attendance of parties and, generally, calls 'cases' for hearing
PROSECUTION REPRESENTATIVE –present case for the crown- explains reason for prosecution-solicitor / barrister / trained clerk
DEFENCE REPRESENTATIVE – presents case for the accused / defendant
- solicitor / barrister
PROBATION SERVICE REPRESENTATIVE[S]prepare reports to assist court with sentencing options
- may include drug / alcohol / housing workers
YOUTH COURT
– youth offending team representative- social worker / responsible adult
- parent
Youth Courts
• defendants aged between 10-17 tried by magistrates sitting as a Youth Court (except most
serious offences)
• magistrates receive special training and sit as a mixed bench
• hearings less formal and held in private with reporting restrictions
• idea is to keep young offenders away from adult offenders and maximise possibility of
reform
NOTE: 'IN CAMERA'
whilst all criminal courts are [generally, subject to exceptions relating to security] open to the public, youth court proceedings are private, and only permit interested parties and
personnel
jurisdiction over virtually all offending by those aged under 18
- except the most seriousand / or
- when charged with an adultthey will then appear in the magistrates court with the
adult[variety of things may happen]
youth will generally remain joined with adult whilst adult has a guilt issue on the 'jointly charged' offence[s]
Bail
may have been given at the police station
- may not! - may be reconsidered by the bench anyway
•Bail applications are dealt with during the Early Administrative Hearing at the magistrates’ court
• Bail Act 1976 gives a general PRESUMPTION OF bail, no matter how serious the offence
• Magistrates can refuse bail where there are substantial grounds to believe the defendant will:
not surrender to bail commit an offence
interfere with witnesses
• factors to be considered:
nature and seriousness of the offence
defendant’s past criminal record
defendant’s ties with the community
defendant’s past record of surrendering to bail
• bail can also be refused if necessary for the defendant’s own safety or welfare
[REVIEW]
• bail can be unconditional or conditions attached: eg.
report to police
reside at a specified address
abide by a curfew
• bail refused? – defendant can renew application
AT THE NEXT HEARING, or appeal to Crown Court
• bail granted? – prosecution can appeal if offence punishable by at least 5 years imprisonment – Bail
(Amendment) Act 1993
Where defendant is charged with a serious offence and has a previous conviction for such an offence, bail only
granted in exceptional circumstances – Criminal Justice and Public Order Act 1994 (as amended by
Crime and Disorder Act 1998)
– Presumption 'reversed'
main concern is variations and inconsistencies between courts in granting/refusing bail
15% of those remanded are not proceeded against or acquitted – does not necessarily invalidate bail decision
as different criteria apply
Defendant / Accused makes appearance at court in the dock – in custody / on bail?
- EAH
Asked by the court's legal advisorto confirm identity by giving name / address
Representation?
Charge, as previously put by the police, after CPS 'pre-charge advice'is read to the defendant
[or summons, if proceedings have started,eg by post]
Progress made? - Adjournment?
SUMMARY OFFENCE PROCEDURE
MAGISTRATES COURT
PLEASENTENCE
TRIAL
At the 'Early Administrative Hearing'
when the charge is put by the clerk the defendant enters an
unequivocal
'guilty' or 'not guilty 'plea
refusal to enter a plea = 'not guilty' plea entered in the court record
'GUILTY' PLEA'CONVICTED'
proceed to sentence?
Prosecutor reads out 'the facts' of their case against the defendant
especially 'aggravating features' of the offence
and reviews details of the defendants previous criminal record
a version of facts / 'basis of plea' may have been agreed with the defence
Defence version put by defendant or his / her representative solicitor
- mitigating factorsrelating to the offence and offender
eg - may have no history of similar offending- behaviour 'out of character'
- provocation- addressing a drug / alcohol problem
- sorry- etc etc etc etc
NEWTON HEARING
When any issue arises between the Prosecution and Defence concerning 'level' of guilt /
involvement / actual actions of DefendantWhich would affect the level of sentence imposed
'mini trial', not to determine guilt, but level of guilt and therefore sentence
MAGISTRATES / DISTRICT JUDGEDECIDES SENTENCE
ASSISTANCE FROM PROBATION?- fast delivery report- full probation report
Probation Service interviews defendant over an adjournment period to ascertain whether involvement of defendant on any of their
programmes will assist in avoiding repetition of offending behaviour
– eg drug rehab / domestic violence courses etc
- availability/suitability of 'community sentences'
If bench decides on such probation input they may give an 'indication' of a sentence
they consider appropriate for the offence
– but this 'indication' will not 'bind' a future sentencing bench
or
'all options' of sentencing, including imprisonment, will be left open / available
to the sentencing bench
SENTENCING ANNOUNCED
LIMITED POWERS / 6 MONTHS PRISON
ADVICE AND GUIDELINES ON SENTENCINGREGULARLY UPDATED BY
THE SENTENCING COUNCIL[FORMERLY JUDICIAL STUDIES BOARD]
'BALANCING' PROCEDURE OF PUNISHMENT AND REHABILITATION
NOTES
legal aid / representation
no choice of 'venue' on summary only offences- magistrates only
may be link with 'either way' offences which can complicate choices re venue, especially when differing pleas are involved
tactical considerations / negotiation
'credit' for guilty plea
'advocacy adjustment'
appeal
SUMMARY OFFENCES
'NOT GUILTY'PLEA
PROCEDURE
NOT GUILTY PLEA
entered at early administrative hearing
CPS provide Advanced Disclosure of their case in the form of witness statements,
which in theory, should be as near complete as to be ready for trial due to pre-charge procedure
directions hearing fixed[depending on bail /custody circumstances of defendant]
issues of bail dealt with – grant / variation of conditions – application to the bench
'negotiations' with CPS
adjournment application?
DIRECTIONS HEARING
discussion of issues in dispute / agreement between prosecution / defence
discussion of potential basis of plea of guilty
ISSUES OF:- bail
- 'editing' of evidence / interview- disclosure of further evidence by cps
- possible defence statement- adjournment requests by defence / crown
- any other business!!
may be dealt with by clerk or magistrates, depending on issues to be resolved
TRIAL DATE
ISSUES
has everyone turned up who has to give evidence?
basis of plea?
adjournment? - why?
has the defendant turned up? - if not, can he/she be tried 'in absence'?warrants for arrest?
all is well and ready = trial
defendant called to dockconfirms not guilty plea
PROSECUTION CASEprosecutor outlines case to magistrates
first witness called by crown – sworn in - 'examination in chief' by prosecutor
- 'cross-examination' by defence solicitor- 're-examination' by prosecutor
- questions from magistrates
same procedure for further prosecution witnesses
'agreed' prosecution witness statements read to court
prosecutor / interviewing police officer reads summary of police station interview
[maybe, but rarely, plays tape]
'CASE TO ANSWER'?
has the prosecution evidence [prima facie] shown an offence may have been committed,
and that the defendant may have been involved?
if not
defence will make an application to the court if the prosecution has failed to prove, or show evidence of, an
essential element of the offence
or that the prosecution evidence is unreliable
basically stating the defendant need not be any further involved and the magistrates should dismiss / throw out the
charge
DEFENCE CASE
defendant called to give evidence – sworn in[note: 'inference' consequences of failing to give
evidence]
- 'examination in chief' by defence rep, including / especially what prosecution witnesses said
- 'cross-exam' by prosecutor- 're-exam' by defence rep
- questions from bench
defence witnesses called – same procedure
defence representative makes closing speech and sums up defence arguments
MAGISTRATES RETIRE TO CONSIDER VERDICT
IF NOT GUILTY, DEFENDANT LEAVES WITH THE HEARTFELT
APOLOGIES OF THE COURT
NOTE: COSTS ISSUES IF DEFENDANT NOT LEGALLY AIDED
IF FINDING OF GUILT:
- PASS SENTENCE- ORDER PROBATION REPORTS
NOTE: LOSS OF CREDIT FOR EARLY GUILTY PLEA
'EITHER WAY' OFFENCES
PROCEDURE IN THE MAGISTRATES COURT
1/ 'PLEA BEFORE VENUE'
GUILTY PLEA AT EARLY ADMIN HEARING
defendant is 'convicted' and liable to be sentenced
(Criminal Procedure and Investigation Act 1996)
- prosecutor outlines their case - aggravating features
- defence state their views, especially 'mitigating' features
- may be a 'basis of plea'
magistrates decide whether their more restricted powers of sentencing, especially prison, are
'sufficient'
MAGISTRATES MAY THEN:
DEAL WITH SENTENCING THEMSELVES – subject to a 6 month prison maximum
[12 MONTHS IF MORE THAN 1 E/W OFFENCE]
COMMIT TO CROWN COURT FOR SENTENCE – if offence[s], they believe, require more punishment
than they can impose
ISSUEScredit for guilty plea
bail / time on remandprobation reportdefence tactics
other offences outstandinglegal aid
'NOT GUILTY' PLEA
2/ MODE OF TRIAL
- charge read out by clerk to defendant – MT Procedure explained
- defendant asked to plead – states 'not guilty' or no plea
- prosecution, then defence state to magistrates their opinions on suitability of magistrates / crown court trial [basically, are magistrates powers on conviction sufficient,
given nature of offence]
- magistrates decide 'suitability' [in much the same way as 'guilty plea' sentencing issues]
if magistrates decide 'not suitable', for reasons of seriousness / nature of offence, for their limited
powersADJOURN FOR 'COMMITTAL'
defendant has no choice of venue
if magistrates decide their powers are sufficient, and offence is suitable for the magistrates court
DEFENDANT HAS CHOICE / 'ELECTION'magistrates – or – crown court [judge and jury]
MAGISTRATES COURT – adjourn for directions and to fix trial date – or maybe plead guilty!!
- [back to 'summary procedure']
CROWN COURT – adjourn for committal to crown court
issues
tacticsadvantages / disadvantages of choice / election
prospects of aquittaltime
type of sentence on convictionseverity of sentenceloss of credit for plea
some numpty barrister who hasn't read the briefdelaying the inevitable for better custody privileges
bail / period of remandlegal aid
DEFENDANT IS OFFEREDSUMMARY TRIAL
AND
ELECTS TRIAL BY THE
MAGISTRATES COURT
FOLLOW 'SUMMARY TRIAL' PROCEDURE ABOVE
[REVIEW]
NOTE:
CROWN COURT COMMITTAL / 'SENDING' and OTHER PROCEDURES HEREAFTER APPLY TO
ADULT DEFENDANTS
youths only become involved if co-accused with an adult who is going to crown court
either via s6 MCA80 or s51CDA98or via a related offence
should they [youth] maintain a not guilty plea
MAGISTRATES 'DECLINE JURISDICTION'OR
DEFENDANT ELECTS TRIAL BY JURY[IF MAGISTRATES TRIAL OFFERED]
Case adjourned for 'COMMITTAL' for trial at the Crown Court
prosecution to prepare evidence of a 'case to answer'
GALBRAITH 81 TEST
the theory is that committal proceedings weeds out weak, unsustainable prosecutions
COMMITTAL PROCEEDINGSFOR
EITHER WAYOFFENCES
DATE FIXED FOR 'PAPER COMMITTAL'
s 6(2) Magistrates Court Act 1980as amended by insertion of s.5a by CPIA96 sch 3
prosecution prepare 'committal bundle' of their 'primary' admissable evidence
- written statements / depositions / documents – in proper format
serve this 'primary disclosure' on magistrates court and defence
if it discloses a 'case to answer' / prima facie case on which a jury could convict {Galbraith test}
defendant committed for trial and PDH fixed at crown – {other orders made}
COMMITTAL PROCEDURE REGULATED BY
PART 10CRIMINAL PROCEDURE RULES 2010
THEY UPDATE THE 2005 RULES
MADE UNDER MCA80 DELEGATED POWERS
'SECONDARY LEGISLATION'
NOTES:CPS need not disclose all their evidence, only enough to
show defendant may have committed the offence R v GALBRAITH 1981
WILKINSON v CPS 1998R v EPPING and HARLOW JUSTICES ex p MASSARO 1973
evidence served must be 'admissable', pursuant to s5A MCA80, as inserted by CPIA96
no consideration by magistrates of the evidenceLORD WIDGERY SAID IN EPPING73 THAT WAS OK
role of defence representative vital in this money and time saving exercise
other orders incl legal aid / reporting restrictions / bail issues
{IN THE OLD DAYS}
Defence could ask court to order cps to call contested witnesses essential to their (CPS) case,
[often just to see would they turn up and actually go into the box]
witnesses could be cross-examined in the magistrates court by the defence rep.
changed by 1996 Criminal Procedure and Investigations Act to the 'new style' 6(1)MCA80
challenge
not now possible to assess the willingness or veracity of prosecution witnesses
– can only challenge whether the prosecution primary disclosure papers hit the relevant evidence mark
'FULL' COMMITTAL
S 6(1) MAGISTRATES COURTS ACT 1980
following consideration of the 'paper' evidence prepared and served by the crown
should the defence wish to contend this discloses no case to answer, ie no admissible evidence of the defendants'
involvement in the offence and the evidence served therefore fails to meet 'Galbraith test'
a further hearing date is listed for the magistrates to hear arguments from the parties, in particular why the defence say
there is no 'prima facie' case
note: if defendant is 'in person', ie not legally represented, must be committed 6(1)
Directions given at the first committal hearing [the one originally fixed for the 'paper' 6(2) committal]
for the preparation of 6(1) 'consideration of the evidence' hearing
CPS are normally to serve 'paper' primary evidence on the court in good time for the allocated bench to
read and consider prior to the hearing
defence may be ordered to serve a 'skeleton' argument, stating why assert 'no case'
[so then guess what happens?!?!}
custody time limits extended
at the hearing listed for consideration of the evidence,
cps will fill evidence gaps
and assert their Galbraith burden fulfilled,
and defence will assert no prima facie case
and the bench will commit!!
and fix a PDH at Crown
{other orders made}
'reporting restrictions' imposed
otherwise!
Prosecutor will address Magistrates and explain why there is a prima facie case on the papers, which implicates the defendant
and on which a jury, properly directed 'could convict'
- standard of proof' required of the crown is very low
- usually no 'admissability of evidence' arguments
- magistrates do not deal with issues of law, only fact
- magistrates read the evidence
- defence makes submissions re contention that the galbraith test is not satisfied
- magistrates decide – committal
INDICTABLE ONLY OFFENCES
ON DEFENDANTS FIRST MAGISTRATES COURT APPEARANCE FOLLOWING CHARGE
these are 'sent forthwith' by the Magistrates to the
Crown Court under
s51 CRIME AND DISORDER ACT 1998
RELATED NON-'INDICTABLE ONLY' OFFENCES SENT WITH THEM [SUBJECT TO QUALIFYING CONDITIONS]
[plans in place since 2003 Criminal Justice Act to 'send' either way offences, where jurisdiction declined, or crown court trial
elected, under this procedure]
[YOUTHS WILL FOLLOW IF CO-ACCUSED WITH ADULT]
CPS need not prepare a bundle of prima facie / case to answer evidence, but will provide defence
with primary disclosure evidence they consider appropriate
it will be a defendants first appearance before the bench
bail issues dealt with
adjournments are extremely rare / effectively unnecessary
a Preliminary Hearing date is fixed for a first appearance at the Crown Court
when the judge will make'Case Management Directions'
'TRANSFER' FROM MAGISTRATES TO CROWN
CPS serve notice on Magistrates Court, Crown Court and Defence that proceedings are being transferred from
magistrates jurisdiction to the crown court
administrative procedurenot subject to challenge
most commonly used in sex offence casesand complex fraud
VOLUNTARY BILL
too rare to be of interest
APPEALS FROM MAGISTRATES
DECISIONS
[2006] UKHL 40 (19 July 2006)
DPP v COLLINS
. The reports of cases before appellate tribunals are strewn with instances in which the courts have
reminded themselves
of the importance of resisting the temptation to interfere too lightly with the findings of a lower court to which a decision has been entrusted,
and have then proceeded to yield to that very temptation.
The magistrates' court in this case was given the task of determining whether an expression or other matter sent by means of a public electronic communication
was grossly offensive in the eyes of reasonable people, judged, as Sedley LJ put it (para 11 of his judgement in the Divisional Court) by the standards of an open and
just multiracial society.
The justices who sit in the magistrates' court are people who are expected to apply the standards of today's
society to determination of such issues.
It is of importance that their determinations should not be upset lightly.
Appellate tribunals should pay more than lip service to that principle and when they do reverse them they
should be clear on what basis they do so
after a Magistrates finding of guilt after trial
ora sentence believed to be excessive
imposed by magistrates
general right of defendant to appeal verdict / sentence
to crown court [by submission of notice]
by way of rehearing of evidence or mitigation by judge
sitting with [normally] 2 magistrates
['timing' tactics]
IF MAGISTRATES [OR INDEED CROWN COURT]
HAVE
WRONGLY INTERPRETED THE LAW
appeal by way of 'CASE STATED' to HIGH COURT
QUEENS BENCH DIVISION[QBD / Administrative court has a supervisory function
over the inferior jurisdictions]
If the High Court decides the law is wrongly interpreted,
it will return case to the Lower Court
with instructions on how to deal with issue