Transcript File - Teaching With Crump!

The Criminal Courts and
Lay People
Courts, Appeal System and
Magistrates
(Lay means no legal qualifications)
Lesson Objectives
• I will be able to describe the criminal court
structure and appeal routes
• I will be able to state the jurisdiction of
each court
• I will be able to describe the qualification,
selection and appointment of a magistrate
• I will be able to describe the training, role
and powers of magistrates
Criminal Court Structure
Court for initial trial – Magistrates’ Court
First Appeal Court:
High Court (Queen’s Bench Division) – by way of case stated on point of law
Crown Court – Against conviction or sentence
Final Appeals
From High Court to Court of Appeal (Criminal Division and then HoL
if no leapfrog procedure available)
From Crown Court to Court of Appeal (Criminal Division) and then
to HoL
Appeal routes from magistrates’
courts
House of Lords
Point of law of public importance
Leave to appeal from QBDC or HL
Queen’s Bench Divisional Court
No witnesses; appeal is heard on the basis of what the law is on
the facts given by the earlier court
Case stated appeal
Case stated appeal - by:
defence against conviction or
prosecution against acquittal
where they claim the magistrates
made a mistake about the law
Crown Court: case is reheard
by judge and two magistrates
The normal route Defence only
Trial at magistrates’ court
Court for initial trial: Crown Court
First Appeal Court – Court of Appeal (Criminal Division)
Final Appeals – House of Lords
Appeal routes from the Crown Court
House of Lords
less than 10 cases / year
Point of law of public
importance
Leave to appeal from CA or HL
Court of Appeal (Criminal Division)
Prosecution may appeal:
•if a judge’s error leads
to an acquittal
•if jury has been nobbled
•if new and compelling
evidence of D’s guilt
Defence may appeal against
conviction or/and sentence
Leave to appeal from CA or
certificate from trial judge
Crown Court
Trial
on indictment by judge and jury
The three categories of offence
Category of offence Place of trial
Examples of offences
Summary
Magistrates’
courts
Driving without insurance
Common assault
Criminal damage under £5000
Triable either
way
Magistrates’
courts or
Crown Court
Theft
Assault occasioning actual
bodily harm
Indictable
(serious cases:
triable before a
judge and jury)
Crown Court
Murder
Manslaughter
Rape
Robbery
Magistrates’ Court Jurisdiction
• Has some limited civil jurisdiction – but most work is
dealing with criminal offences involving adult defendants
• Issuing arrest and search warrants, deciding on bail,
conducting sending for trial hearings where indictable
offence cases are transferred to the Crown Court, trying
summary offences, trying either way offences that are to
be tried summarily
• Deal with young offenders in the Youth Court –
specialised form of Magistrates’ Court – not open to
general public
• Deals with almost all cases involving under 18s
• Hearing is similar to Magistrates’ Court – although
procedure is adapted to take account of age of
defendant
• Specialist training given to Magistrate
Crown Court Jurisdiction
• Deals exclusively with serious criminal cases
• Work includes trying indictable offences, trying either-way offences
that are to be tried on indictment, sentencing where the case has
been sent by the Magistrates’ Court to Crown Court for sentence
(limited sentencing powers)
• Appeals from the Magistrates’ Court against conviction or sentence
• Appeals from Crown Court go to CoA (CD)
• Possible grounds for appeal include misdirection of law or facts,
failure to a defence, inappropriate comments by a judge or jury
irregularity
• CoA will allow appeal (and possibly order a new trial) if it considers
the conviction unsafe
• Where the CoA quashes a conviction on a point of lae and the
verdict of the jury shows that it was satisfied that some other offence
had been committed, the CoA may substitute a conviction for that
other offence
Magistrates
• Also known as justices of the peace
• Can be traced back to 1195 – Knights ensuring law was upheld
• 1327 – Act of Parliament set out appointment of men in every county
to ‘guard the peace’
• 1361 – ‘Justice of the Peace’ name first used – role has developed
since then
• Just under 29,000 lay magistrates in England and Wales
• Unpaid except for expenses – although the annual training budget is
approx £500 per head
• Roughly equal numbers of men and women
• Supposed to reflect society as a whole and have a race and gender
balance that reflects the make-up of the country and more
importantly the local area of where they sit
• All part-time but must sit at least 26 half-days a year
• Constant appointments of people to be magistrates
• During 2005-2006 1,132 men and 1,080 women were appointed
Justices of the Peace – this number of appointments does not just
include growth in the number of magistrates, but also turnover, as
magistrates retire or stop being able to continue
• Lay M’s sit on a bench of 3 Ms and have a
role in all criminal cases in some way,
dealing with the entire criminal process for
95% of all cases
• Approx 1m cases heard in M’s Court each
year with nearly 850,000 convictions in
2006-7
• Many cases involve more than 1 hearing,
so workload is enormous
• There are some full-time, paid legally
qualified magistrates – called District
Judges
Qualification, Selection and
Appointment
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Require no special qualification
First requirement is the correct personal qualities and being able to commit
to the time and effort of being a magistrate
6 general personal qualities that applicants should possess:
– To be of good character – including having personal integrity, keeping
confidences and the respect and trust of others
– Understanding and communication – will have to understand documents, identify
facts, follow evidence and concentrate for long periods of time – also need to be
able to communicate effectively both in and out of court
– Social awareness – including an appreciation and acceptance of the rule of law,
respect for people from different ethnic, cultural or social backgrounds, and an
understanding of their local community
– Mature and of sound temperament – this will include awareness and an
understanding of people, a sense of fairness, as well as humanity and
courteousness
– Sound judgement – the ability to think logically, weigh arguments and come to a
sound decision, as well as having an open mind, being objective and recognising
and controlling prejudices
– Commitment and reliability – includes being committed to serving the community
and making the necessary time commitment – the applicant must be willing to
undergo training, be in good health to undertake duties regularly. Support of
family and employer is essential
• The second requirement is the willingness to take the Oath of Allegiance
• British Nationality is not a requirement, although those in process of
seeking asylum cannot be appointed
• Certain professions and occupations are ineligible because of the M’s
duty to be impartial – police and armed forces and if the M has been
selected as a prospective candidate for election to the HoL or any other
parliament or assembly
• There is discretion in the area but the concern is over whether there will
be a conflict of interest – so list could be extended in individual cases
• Guidelines also apply to the occupation of the potential M’s spouse,
partner and even close relatives
• Guidance notes for applicants give more details, as it would be
unacceptable if previous occupations prevented someone from becoming
aM
• Applicants also have to disclose whether they are a freemason
• Third requirement relates to criminal convictions and civil claims
• This is effectively an extension of the quality of good character and
integrity
• Applicants must disclose any convictions, however minor including
motoring offences for which a fixed penalty was payable and even police
cautions
• Disclosure is also required of other criminal or civil orders,
including details of divorce and maintenance orders
• The Rehabilitation of Offenders Act 1974 does not apply to
the application, so even minor motoring offences that are 20
years old have to be disclosed
• The effect of this is that anyone who, or whose spouse or
partner, has been convicted of a serious offence or even a
number of minor offences will not be appointed if it is
thought the Advisory Committee (which advises on the
appointment of Ms) that the public would not have
confidence in them as a magistrate
• A serious offence is regarded as anything other than a
minor motoring conviction for which one received points on
one’s licence and/or a fine, although very old convictions of
this nature are not regarded as serious
• No formal age requirement – must be a minimum of 18,
must retire from the bench at 70
• 5 years’ service is normally expected before retirement –
meaning that anyone over 65 is unlikely to be appointed
Selection
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Number of stages
When new M needed, advert placed in area where needed
Usually part of a local campaign to recruit more M’s
Public awareness days in some courts – potential M’s can learn
about what is involved
Can apply to be an M in either their home or work locality
Standard application form from the Ministry of Justice – can be
downloaded or printed from their website – DVD also included in the
application pack
Must complete application form
Straightforward and reflects the eligibility criteria – can be online or
as a hard copy
Once form is submitted, it is checked to see if applicant is eligible –
if they are, invitation to a first interview is sent by Advisory
Committee (local people including some M’s)
• If successful at first interview, there is a
second interview
• Here there are practical examples of the sort
of cases M deal with and they are discussed
• Background checks are made for conflicts of
interest
• In making recommendations, AC consider
suitability of candidates and number of
vacancies
• The view of the AC is then sent to the Lord
Chancellor who will make the appointments
Appointment
• M’s are then appointed by the Secretary of
State and Lord Chancellor on behalf of,
and in the name of, The Queen
• New M’s will then meet their colleagues
and begin their training
Training
• Judicial Studies Board has overall responsibility for
M’s training
• Training operates through regional Courts Board
areas – each area has responsibility for delivering
training to M’s
• The Justices’ Clerk (M’s legal adviser) for the area is
responsible for delivery, and a local Magistrates’
Area Training Committee sets the training priorities
and agrees a training plan each year
• The Magistrates’ Association is consulted on
training, and works with the Judicial Studies Board
to develop materials
• Each year the Court Service and the Judicial Studies
Board produce a document setting out the minimum
training provision for M’s – this sets out the essential
minimum training provision and desirable additional
training – not all training is for all M’s
• The compulsory training programme for newly appointed
M’s is designed to prepare them for sitting in court
• Usually delivered by the Justices’ Clerk – includes a
basic intro to the roles and responsibilities of a M,
including preliminary reading and 3 days of training, at
least 3 court observations, a visit to a prison, a young
offenders institution and a probation service facility
• After this is successfully completed, the new M can start
to sit in court – they will then develop in their role as they
deal with real cases as one of the 3 M’s sitting on the
bench
• After about a year, a new M will receive consolidation training
– normally be for equivalent of 2 days – includes training on
law and procedure as well as skills development
• Most effective way to develop as a M is to learn from the
experience of sitting in court – therefore all new M’s are given
a mentor
• Mentors are experienced M’s who have been specially trained
for this role
• During the first year, a new M will have 6 sessions with a
mentor – sessions are used to discuss the day’s events in
court with the mentor (who has been present through the day)
and to reflect on how knowledge and skills have been applied
during the day
• One possible outcome is to identify further training and
development needs – after the first year, the new magistrate
will have their first appraisal
• After at least 2 years there may be
opportunities to do specialised training – to
sit in either the Youth Court of the Family
Proceedings Court, or to undertake
training to become chairman of the bench
• Training is also undertaken to cover things
such as new legislation or sentencing
policy as well as refresher training
Role and Powers
• The Lord Chancellor’s Directions for Advisory Committees on
Justices of the Peace state that ‘each bench should broadly reflect
the community it serves in terms of gender, ethnic origin,
geographical spread, occupation and political affiliation’
• This enables M’s to act in an appropriate manner to ensure that the
community in which they serve can deal with local issues
• A M is required to sit for at least 26 half-days each year – normally
work as part of a bench of 3 M’s – there is a chairman and 2
wingmen, who are often less experienced than the chairman
• As M’s are not legally trained, they always have available to them
the advice of a qualified legal adviser – this is a justices’ clerk or
assistant clerk, who is also responsible for effective case
management and the avoidance of delay in court
• The legal adviser explains the relevant points of
law and legal procedures to the M and gives
advice on possible sentencing options
• The actual decisions are made by the M’s alone,
as they decide on guilt or innocence based on
the findings of fact that they make
• The M decides on sentence, but must act within
their powers
• The adviser will make sure that the M’s are
aware of the latest guidelines and policies on
sentencing, but the M’s make the decision and
the chairman of the bench announces it to the
court
• The adviser carries out many administrative roles – preparing for
court sessions ad making sure that all relevant papers and exhibits
are ready, reading charges to the court, dealing with the paperwork
for legal aid and completing bail forms, managing court schedules
and training M’s
• This means the M’s can concentrate on the evidence in the case
and the appropriate sentence, rather than being burdened with tasks
that require specialist knowledge and expertise
• M’s hear less serious criminal cases and commit serious cases to
the higher courts – where the case will be heard by a judge or
recorder
• M’s cannot impose sentences of imprisonment of more than 6
months (or 12 months for consecutive sentences) or fines exceeding
£5,000
• M’s can also sit in the Crown Court with a judge to hear appeals
from Magistrates’ Courts against conviction or sentence; and
proceedings on committal to the Crown Court for sentence
Removal
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Must retire at 70
Complaints about conduct of M’s are dealt with under the Judicial Discipline
(Prescribed Procedures) Regulations 2006
There are likely to be a number of complaints, given the number of M’s
Criticism of a M’s behavior, in or out of court, may come from sources
including:
– Other M’s
– People in their court
– Members of the public
– The press
– Police or CPS
Complaints are investigated on behalf of the Lord Chancellor and the Lord
Chief Justice by Advisory Committees and their support staff, and staff in
the Office for Judicial Complaints
• Failure to meet standards of behaviour
required, or to attend sufficient sittings,
can result in removal
• In the Office for Judicial Complaints’ first
year from 2006, there were 28 complaints
that resulted in disciplinary action – the
action was removal of 15 M’s
• Alan Mitchell 68 year old M was
reprimanded after a colleague overheard
him complaining about ‘bloody foreigners’