Transcript The criminal courts: Procedure and Sentencing

The criminal courts:
Procedure and Sentencing
Outline Procedure to Trial
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
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)
• 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
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
• 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
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 Case management
trial
hearing
Plea of not guilty and
trial
• 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:
• 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)
• 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
• The D’s 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
• 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
Indictable offence
First
Then
Appear before
magistrates
Plea and case
Trial by jury at Crown
management hearings Court
Bail and funding of
representation
hearings
Final
• Indictable offences pass through the M’s
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)
• 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:
• 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
• 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
• 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
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 M’s 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
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
• 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
• 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
• If a defendant is reported, or believed, to
have breached a bail condition, he can be
arrested and brought before the M’s 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
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