AN OVERVIEW OF THE PROCEDURE IN THE CRIMINAL COURTS
AN OVERVIEW OF THE PROCEDURE IN THE CRIMINAL COURTS
The purpose of this handout is to give you an overview of the criminal process. Having read it you will have a context in which to place the various aspects of criminal procedure which you will be studying on this course.
1. Starting a prosecution
People usually end up as defendants in a criminal court in one of two ways – having been served with a charge and requisition (or, occasionally, a summons) or having been arrested by the police and charged with a criminal offence.
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Charge and Requisition (and summonses)
Public prosecutors (e.g. the police, the Crown Prosecution Service, the Revenue and Customs, etc) can start criminal proceedings against a person by issuing a written charge and a requisition (requiring the person to attend the magistrates’ court to answer the written charge).
The documents are posted to your home address informing you that you are being prosecuted for a criminal offence and requiring you to attend court. On the specified date you can turn up at court and plead either guilty or not guilty. If you plead guilty you will be sentenced. If you plead not guilty the case will be adjourned (put off) to a later date for a trial. The procedure tends to be used for less serious offences (driving offences, television licence offences, etc).
Whilst it is usually the police or the CPS who start prosecutions, a private individual may choose to do so as well, but by a different procedure. If you have been assaulted by your neighbour and the police aren’t willing to pursue the matter (for example, because they don’t believe you) you can go to court yourself (or write to the court) and “lay an information” against the culprit telling the court what they have done and asking for a summons to be issued. That is called a private prosecution.
Private prosecutions are sometimes commenced in very serious cases by the laying of an information. When the police and the Crown Prosecution Service decided in July 1993 that there was not enough evidence to prosecute the alleged murderers of Stephen Lawrence, Stephen’s family commenced a private prosecution the following year by laying an information.
1.2 Arrest and charge
If the offence is a more serious one it is unlikely that the summons procedure will be appropriate. If the police attend a pub where someone has been stabbed they won’t simply say to the person suspected, “You will be prosecuted for this offence”, and then let him go on his way. They will probably want to question him as soon as possible as part of their investigations. And if they simply let him go they may never see him again.
So where the offence is more serious the defendant is likely to be arrested. The police can arrest anyone whom they have reasonable grounds to suspect of an offence provided it is necessary to do so. It will be necessary if, for example, they want to question him as soon as possible (as that can generally only be done at a police station), or if they reasonably believe he will disappear if they let him go on his way.
Once a defendant has been arrested he must be taken to the police station where in due course a decision will be made whether or not he should be charged with an offence.
2. The regulation of the conduct of police officers investigating offences
When the police are investigating an offence their conduct is highly regulated by statute and by Codes of Practice. The principal statute regulating their conduct is the Police and Criminal Evidence Act 1984 (PACE) and the Codes of Practice issued under that Act (the PACE Codes).
PACE and the Codes regulate such matters as the treatment of people in police custody, the search of them and any property associated with them, the circumstances of their interrogation, their access to legal advice, the length of time they can be kept in police custody without being charged or brought before a court, and the conduct of identification parades.
If the police break any of the rules regulating their investigation of the offence then this can have serious consequences at any subsequent trial. Judges in criminal cases are given wide discretionary powers to exclude evidence from a trial if it would cause unfairness. So, for example, if a defendant makes a confession to the police officers interviewing him (which would be important evidence against him at any subsequent trial), but those police officers have breached the rules about interviewing suspects (for example, by failing to remind him of his right to have a solicitor present) the judge at the trial may well say that the prosecution cannot make any reference to the fact that the defendant confessed.
3. After charge
After a suspect has been charged the police will either release him on bail with a requirement to appear in the magistrates’ court on a particular date - or he will be kept in custody by the police (typically if the police don’t trust him to turn up at court or if they think he’ll go off and commit another offence) and taken by the police to the magistrates’ court for the next court hearing. If the defendant is brought to the court in custody for his first appearance and the case is to be adjourned to a future date, the magistrates will have to consider the question of bail. If the defendant wishes to apply for bail, and the prosecution objects, the magistrates will make a ruling having heard argument from both sides.
4. The types of criminal court
There are two types of criminal court in which a civilian can be tried – the magistrates’ court and the Crown Court. You may have heard of youth courts (for the under-18s): these are simply a separate branch of the magistrates’ court for young offenders.
4.1 The magistrates’ court
In the magistrates’ court the judges are the magistrates themselves. When you go into a magistrates’ court you will generally find either three magistrates sitting together or one sitting alone. They will be wearing suits but no wigs or gowns. Where there are three they will be lay (i.e. unpaid) magistrates taking time off from their normal jobs to come and sit as judges in the magistrates’ court. Where there is one he or she will be a paid professional, called a district judge.
In the magistrates’ court there is no jury. When a trial is conducted in the magistrates’ court the magistrates have to decide any issues of fact and law.
4.2 The Crown Court
In the Crown Court the judges are all professionals. When they are sitting in open court (i.e. when the public are allowed in) they will generally sit in wigs and gowns. Trials in the Crown Court are almost invariably heard by a judge sitting with a jury. Broadly speaking the jury decides any issues of fact and the judge decides any issues of law. You will read the expressions “tribunal of fact” and “tribunal of law”. In the magistrates’ court the magistrates are the tribunals of both fact and law. In the Crown Court the judge is generally the tribunal of law only and the jury is the tribunal of fact.
5. A defendant’s first appearance in court
All defendants make their first appearance in the magistrates’ court – whether they are charged with shoplifting, careless driving, or murder. As we have seen, they will appear either in response to a requisition or because they have been charged and brought to court or bailed to appear at court.
What happens next depends (in the case of adults) on the category of offence of which they are accused.
6. Deciding in which court a case will be dealt with: categories of offence
Every criminal offence falls into one of three categories. It will either be
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A summary offence
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An indictable-only offence or
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An either-way offence or
6.1 Summary Offences
Summary offences are the least serious offences. They may be punishable upon conviction with nothing more serious than a fine (having no tax disc, dropping litter or soliciting). The most serious of them are punishable with up to six months in custody (e.g. common assault).
Where the most serious offence a defendant faces is a summary offence he will be dealt with from start to finish in the magistrates’ court. So, if he pleads guilty, he will be sentenced by the magistrates. If he pleads not guilty his case will be adjourned to be tried in due course by the magistrates.
Frequently defendants face more than one offence, often arising out of the same incident. You may, for example, be summonsed for careless driving, driving without insurance, and driving without a tax disc. Where the most serious offence faced is a summary offence they will all be tried in the magistrates’ court.
6.2 Indictable-only offences
These are the most serious offences – murder, rape, robbery and the like. These offences can only ever be dealt with in the Crown Court.
Like all other offences, they start off in the magistrates’ court. So, someone charged with murder will be brought to the magistrates’ court by the police (assuming the police haven’t bailed them to appear under their own steam). But at the magistrates’ court not much will happen. The defendant’s case will simply be sent to the Crown Court where he’ll appear, usually in a few days’ time.
Sometimes a defendant is charged with an indictable-only offence and an offence falling into one of the other two categories. For example, he might be charged with robbing one person (indictable-only), and committing a common assault on that person’s friend to get away (summary). Where the most serious offence charged is indictable-only generally all of the offences are sent up to the Crown Court to be dealt with together.
The reason these serious offences are called ‘indictable-only’ is because of the name of the document on which the charge is written in the Crown Court. It is called an indictment. An indictment is simply the document on which the offences which the defendant faces are written. This document is exclusive to the Crown Court. In the magistrates’ court the offence appears written simply in the summons or the charge sheet.
6.4 Either-way offences
Summary offences are by their nature always relatively minor. Indictable-only offences are by their nature always serious. But there is a large body of offences which can be minor or can be serious depending on the facts of the case. An offence of s.20 wounding can be fairly minor (a punch causing a split lip) or it can be very serious (a stabbing). So ‘either-way’ offences are offences which might end up being dealt with in either court, depending on the circumstances.
Where the most serious offence charged is an either-way offence the defendant will first appear at the magistrates’ court (as with all offences). He will be asked if he intends to plead guilty or not guilty. If he intends to plead guilty he will be convicted and the magistrates will decide whether they should sentence him or whether he should be sent to the Crown Court for sentence (“committed for sentence”). Given that their sentencing powers are limited, they will send him to the Crown Court if it is a serious offence and they will sentence him themselves if it is relatively minor.
If he intends to plead not guilty they will ask themselves whether, if he were convicted they would have power to sentence him. If not, they will direct that he be tried in the Crown Court. If they think it’s not that serious they will probably agree to try him in the magistrates’ court, but they will then give him the choice. He can choose to be tried in the Crown Court if he wants – no matter how apparently trivial the offence
Where a defendant is tried for an either-way offence in the Crown Court he will be tried ‘on indictment’ – i.e. an indictment will be drafted containing the charge/s he faces and a jury will try him.
7. Filtering out weak cases which would otherwise be tried in the Crown Court
As Crown Court trials are expensive, time-consuming, and involve twelve jurors a system has evolved for getting rid of cases which are doomed to failure before the case is listed for trial.
Where a case is sent to the Crown Court to be tried the prosecution is required to serve its witness statements on the defence by a certain date. Once that is done the defence will ask themselves whether the evidence discloses a case to answer: in other words, whether, if all these witnesses said to a jury what is in their statements, a jury could possibly convict on that evidence. If the defence feel that the evidence does not disclose a case to answer, they can apply to the Crown Court judge to consider the prosecution witness statements and to dismiss the charge before the case comes to trial.
8. Disclosure
Under this heading we consider to what extent one party has to reveal its hand to the other party in advance of the trial. How much of its case does the prosecution have to disclose to the defence and vice versa?
8.1 Prosecution disclosure
Before a criminal trial in either the magistrates’ court or the Crown Court the prosecution must serve on the defence the statements of all of the witnesses they propose to call. That way the defence will know in advance what case they have to meet and will not be taken by surprise.
In the course of investigating an offence the police may unearth all sorts of information which will not be used by the prosecution at trial, but which might assist the defence. They may have taken a statement from a witness who they do not propose to call at trial because he contradicts what the main body of prosecution witnesses say. Or they may know that one of the prosecution witnesses has previous convictions which might, if known by the court hearing his evidence, undermine his credibility as a witness.
The rule is that the prosecution must disclose to the defendant any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the defence.
This is a very important principle and underlines the role of the prosecution in a criminal case. Whilst the prosecution is representing one side in the proceedings, it has a duty to be fair. It must act as a minister of justice. It must not strive to secure a conviction at any cost. It is in everyone’s interests that the innocent are acquitted.
8.2 Public Interest Immunity
The general rule is that if the prosecution have information that might help the defence they must disclose it.
But occasionally they have such information but are reluctant to disclose it – not because they are worried about the defendant being acquitted – but because they are worried that some other interest may be compromised. For example, the police may have got their main lead from a police informer. Police informers are not usually called to give evidence in trials (once their identity is known they cease to be of any use). If what the informer told the police contradicts the case which is ultimately presented to the court via the prosecution witnesses then the defence would be assisted if it knew the account given by the informer - because it undermines the prosecution case. But the prosecution may not want to tell the defence that there was an informer in case it leads to his identity being revealed.
Again, in cases where a defendant stands charged with sexually assaulting a child it is often the case that the child has a history of involvement with the social services. The police may have information that the child is disturbed or has made allegations of a similar nature in the past. That information might well assist the defence in undermining the child’s evidence. But the police will be reluctant to reveal this highly confidential and sensitive information to the defence.
Whenever the prosecution have material in their possession which should normally be disclosed but which they do not wish to disclose in case some other interest is compromised they can make an application to the court, in the absence of the defence, that the material should not be disclosed on the grounds of “public interest immunity”. The court will then weigh up the competing interests and make an order as to disclosure or non-disclosure.
8.3 Defence disclosure
It is important to understand that in a criminal trial the defence have a very limited duty of disclosure. A suspect who has been arrested has no obligation to answer any police questions (and will sometimes be advised by his solicitor so say nothing). Once the case comes to trial he is not obliged to give evidence himself or to call any witnesses. He is perfectly entitled to say nothing in his defence from beginning to end. By pleading “not guilty” he effectively says to the prosecution, “you prove it”.
Having said that, in recent years the government has made it more dangerous for the defendant to take this stance. It has done so by allowing the jury or magistrates to draw adverse inferences against the defendant from his silence - either when interviewed by the police or at trial, when his turn comes to give his side of the story.
In addition the government has provided that if the case goes to the Crown Court the defendant is obliged to serve a “defence statement” and a notification of defence witnesses. The defence statement is document which simply says what the defence is (“the defendant was acting in self-defence”) and in what respects the defendant disagrees with the prosecution case. The notification of defence witnesses is a notification to the prosecution of the names and addresses of the witnesses the defendant proposes to call at trial. There is no requirement of even these limited measures of disclosure before trial in the magistrates’ court.
It is important to note the following. First, if a defendant fails to serve either of the documents set out above, whilst the jury may be allowed to draw inferences against him from that failure, it is still for the prosecution to prove its case by calling its evidence: the defendant doesn’t automatically “lose”. Secondly, the defendant is under no obligation to serve on the prosecution the witness statements of any witness he proposes to call in his defence: just their name and address. Thirdly, if the defence have in their possession evidence that is highly prejudicial to the defence (for example, they have interviewed witnesses who said, “He definitely did it”) there is no obligation to notify the prosecution of the existence of that evidence (or of those witnesses).
Different rules apply to defence experts. If the defence propose to call a defence expert (for example, on DNA analysis) they must serve her report on the prosecution.
9. Case Management Hearings
If a defendant is pleading not guilty and his case is going to be heard in the magistrates’ court then, at the time that he enters his not guilty plea, the magistrates will generally hold a case management hearing – requiring the parties to identify the issues in the case, the witnesses to be called, the time the trial likely to take, etc.
Similarly, when a case is sent to the Crown Court for trial the Crown Court will hold a Plea and Trial Preparation Hearing (PTPH) prior to trial. At that hearing the defendant will enter his plea to each charge on the indictment. If he is pleading not guilty and the matter has to be tried the judge will hold a case management hearing. The purpose of these hearings is to ensure that, by the time the trial date arrives, the parties are fully prepared and ready to proceed.
10. Crown Court Trial
The typical procedure is as follows.
10.1 Arraignment and the jury
On a day prior to the trial the defendant is arraigned (i.e. the indictment is read to him by the clerk of the court and he is asked to plead guilty or not guilty). After a not guilty plea the case is adjourned for trial on another day.
On the day of the trial the jury is selected, sworn in, and the defendant is put in their charge (i.e. the clerk reads the indictment to the jury and they are told it is their duty, having heard the evidence, to say whether he is guilty or not).
10.2 Prosecution case
The prosecution advocate then opens the case to the jury (i.e. tells the jury what it is about, normally by telling them the ‘story’ of what allegedly happened on the day/s in question).
The prosecution then calls its witnesses to give evidence. Every ‘live’ witness (i.e. giving evidence in person) is called into the witness box, takes the oath (or affirmation) and is asked questions by the prosecution advocate to elicit their evidence. This is called giving evidence in chief. Once the prosecution advocate has finished the defence advocate can cross-examine. At the conclusion of the cross-examination the prosecution advocate may re-examine (i.e. ask questions arising out of cross-examination). The judge is entitled to ask questions at any stage. Once a witness has finished they are generally free to leave.
If the defence do not wish to ask any questions of the witness (because their evidence is not disputed) the prosecution can read the witness’s statement to the jury.
10.3 Arguments of law and the voir dire
Frequently the defence will object to a piece of prosecution evidence being given in evidence. The argument may be, for example, that it is irrelevant to any issue in the case or that its admission into evidence would cause unfairness (you will recall from section 2 that the defence may argue unfairness when the police obtain evidence after breaching their own Codes of Practice). As arguments about the admissibility of evidence are arguments of law, and as the judge is the tribunal of law, he will decide the argument in the absence of the jury. Sometimes he will have to hear evidence before he can decide a matter of law. For example, the defence may argue that evidence of a confession should not be given because the defendant was not told of his right to legal advice. The police may say, “But he was told of that right!” The judge would have to decide that issue of fact before ruling on the law. He would hear evidence from the police (and the defendant, if the defendant chooses) in a hearing called a voir dire. If he rules the evidence inadmissible, the jury never get to hear about it.
10.4 Submission of no case
Once the prosecution has called all its evidence and closed its case (“That is the case for the Crown”) the defence may wish to make a submission of “no case to answer”. This is an argument of law and as such doesn’t concern the jury. So the jury will be asked to leave court and the argument will take place in their absence. The defence advocate can argue that there is no evidence on any given element of the alleged offence or that the evidence as a whole is so weak that no jury properly directed could convict (the test is the same as discussed in section 7 above). If the judge agrees he will have the jury back and direct them to acquit (to return a verdict of not guilty). If he disagrees he will have the jury back and the defence case will commence.
10.5 The defence case
The defence case starts after the conclusion of the prosecution case. If the defendant chooses to give evidence he will go first and will be examined in chief, cross-examined and re-examined in the normal way. He is followed by any defence witness. The defence then closes its case (“That is the case for the defence”).
10.6 Speeches and summing-up
The prosecution will make a closing speech to the jury inviting them to convict and the defence will follow, making a speech inviting them to acquit.
The judge will then sum the case up to the jury. He will give them directions on any matters of law (the burden and standard of proof, the elements of the offence, the inference they are entitled to draw from the defendant’s silence, etc) and he will remind them of the salient evidence in the case. He will then send them out to consider their verdict.
10.7 The verdict
The judge will tell the jury to reach a unanimous verdict. If after two hours and ten minutes they have not reached a verdict the judge can have then back and tell them he can accept a majority verdict. If, as is usually the case, there are still twelve jurors, that means a verdict on which at least ten of them are agreed.
11. Magistrates’ court trial
Trial in the magistrates’ court is called summary trial. It follows pretty much the same format as trial in the Crown Court.
The prosecution opens its case (usually briefly) and calls its witnesses. They are examined as discussed above. Any agreed statements can be read. At the conclusion of the prosecution case the defence can make a submission of no case to answer. Otherwise they go straight into the defence case. At the conclusion of the defence closing speech the magistrates retire to consider their verdict.
The main differences between the magistrates’ court and the Crown Court stem from the fact that the magistrates are the tribunal of both fact and law. There is no jury so none has to be selected or sworn. Any arguments as to admissibility of evidence must be addressed to the magistrates. If they conclude that evidence is inadmissible they must ignore it. So if, for example, they decided the defendant wasn’t told of his right to legal advice and that the confession was inadmissible they would have the difficult task of ignoring it in reaching their verdict.
12. Sentence
If a defendant is convicted, either in the Crown Court or the magistrates’ court, the court will then proceed to consider sentence. Sometimes the court may need more information about the defendant before passing sentence and will adjourn the case for a report or reports to be prepared – typically a pre-sentence report prepared by the probation service. If the case is adjourned for reports the defendant will usually be sentenced by the magistrates or the Crown Court Judge who presided over the trial.
13. Appeals
13.1 Appeals from the Crown Court
An appeal against conviction in the Crown Court lies to the Court of Appeal (Criminal Division). The prosecution can generally not appeal an acquittal. The Court of Appeal rarely hears evidence. They consider what happened in the trial and decide whether or not the verdict is safe. If they feel it is unsafe the appeal is allowed. Otherwise it is dismissed. In an appeal against conviction the defence will usually argue that the judge misdirected the jury on the law, or that he made an incorrect decision of law during the course of the trial, or that some irregularity occurred in the course of the trial – any of which makes the verdict unsafe.
Usually the Court of Appeal is the end of the road for an appellant. If his appeal fails there his case may (very rarely) end up in the Supreme Court provided a point of law of general public importance is involved.
A defendant can appeal against his sentence to the Court of Appeal. The prosecution can generally only appeal what they consider to be an unduly lenient sentence if the offence was an indictable-only offence.
13.2 Appeals from the magistrates’ court
There are three ways of appealing a conviction in the magistrates’ court. The most usual route is to the Crown Court. When this is the route chosen the appeal is heard by a judge in the Crown Court sitting with two magistrates. It takes the form of a retrial, with evidence called on both sides in the usual way. The prosecution cannot appeal an acquittal in this way.
Otherwise someone convicted in the magistrates’ court may be able to appeal to the Administrative Court (formerly called the Divisional Court of the QBD) either by way of “case stated” (usually where the magistrates have gone wrong in law), or by way of judicial review (typically, where there has been a breach of the rules of natural justice). An example of an appeal by way of case stated might be where there is a dispute about the meaning of a statute and the magistrates have sided with the prosecution. An example of an application for judicial review might be where one of the magistrates was reading a magazine whilst the defendant gave his evidence.
Appeals from the Administrative Court lie to the Supreme Court on the application of the defence or the prosecution provided there is matter of law of general public importance involved. Leave to appeal to the Supreme Court is rarely given.
If a defendant considers the sentence passed by the magistrates to be too harsh he can appeal to the Crown Court. But he must be sure of his ground: if the Crown Court takes the view that, far from being too harsh, it was in fact too lenient, it can increase the sentence.
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