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

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

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

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

The criminal courts: Procedure and Sentencing