Criminal Courts and Lay People

 Where D pleads not guilty, the role of the court is to try the case and decide if D is guilty or not guilty; the burden of proof is on the prosecution who must prove the case beyond reasonable doubt. 

The two courts which hear criminal trials are the Magistrates’ Court (where the trial is before three lay magistrates) and the Crown Court (where the trial is before judge and jury).

There are two different routes of appeal from the Magistrates’ Court: 

a. by D to the Crown Court against conviction and/or sentence. The Crown Court can confirm, reverse or vary the conviction; they can confirm the sentence or increase or decrease it; or

b. by D or the prosecution to the Queen’s Bench Divisional Court (QBDC) where the appeal court will decide on whether or not the magistrates have made the correct decision on the law. This is known as a case stated appeal. The QBDC can confirm, vary or reverse the decision or remit (send back) the case to the Magistrates’ Court to implement the decision on the law. From the decision of the QBDC there is a possibility of a further appeal to the Supreme Court. 

From the Crown Court, D has the possibility of appealing against conviction and/or sentence to the Court of Appeal (Criminal Division). Under the CRIMINAL APPEAL ACT 1995, if the Court of Appeal decides that the conviction is unsafe, they can allow the appeal and quash the conviction. Alternatively, they can vary the conviction to that of a lesser offence. They can order a retrial or dismiss the appeal. 

Both the prosecution and D may appeal from the Court of Appeal (Criminal Division) to the Supreme Court, but the case must involve a point of law of general public importance and permission to appeal is needed

If the trial judge in the Crown Court gives a ruling on a point of law which effectively stops the case against D, the prosecution can appeal to the Court of Appeal (Criminal Division) against that ruling: CRIMINAL JUSTICE ACT 2003. This right to appeal makes sure an error of law by the trial judge does not lead to an acquittal. 

 The prosecution can only appeal to the Court of Appeal (Criminal Division) against an acquittal by a jury when:

i. the acquittal was the result of the jury being ‘nobbled’ – i.e. where one or more jurors are bribed or threatened by D’s friends; or

ii. there is new and compelling evidence of the acquitted D’s guilt and it is in the public interest for D to be retried: CRIMINAL JUSTICE ACT 2003. This is known as double jeopardy, since D is being tried twice for the same offence. It is only available for very serious crimes, including murder, **** and terrorism offences.  

Where the trial judge may have made an error in explaining the law to the jury, the prosecution have the right to refer that point of law to the Court of Appeal (Criminal Division) if D is acquitted: CRIMINAL JUSTICE ACT 1972. The decision by the Court of Appeal (Criminal Division) on the point of law does not affect the acquittal, but creates a precedent. Such appeals are referred to as Attorney-General’s References.  

The Attorney-General can also refer an unduly lenient sentence to the Court of Appeal (Criminal Division) for re-sentencing. 

summary offences (minor crimes, such as assault) can only be tried at the Magistrates’ Court. 

indictable offences (serious crimes, such as murder) can only be tried at the Crown Court. 

 either way offences (middle-range offences which can vary in the degree of harm caused, such as theft) may be tried at either court. 

Custodial sentences are the most severe form of punishment and involve imprisonment, either immediate or suspended (a suspended prison sentence is not activated unless the offender commits a further offence). 

a. For murder, the only sentence a judge can impose is a life sentence. However, despite this mandatory life sentence, the judge is allowed to state the minimum number of years’ imprisonment that the offender must serve before being eligible for release on licence.

b. A discretionary life sentence is one where the maximum sentence is life imprisonment, but the court can give any lesser sentence where appropriate. Robbery carries a discretionary life sentence.  

c. A fixed-term prison sentence is a term of imprisonment for a set number of months or years.   The Magistrates’ Court can only impose a maximum of 6 months’ imprisonment for one offence (12 months’ for two). The Crown Court can impose any custodial sentence up to the maximum allowed by Parliament for that particular crime. For example, assault occasioning actual bodily harm (ABH) carries a maximum sentence of five years’ imprisonment. 

The CRIMINAL JUSTICE ACT 2003 created one community order to which the court can attach any requirements they think will both punish and reform the offender. The requirements can include:

• a. an unpaid work requirement (where the offender has to carry out unpaid work between 40-300 hours over a year on a project organised by the probation service – e.g. the offender may be required to paint school buildings).
• b. an alcohol/drug treatment requirement.
• c. a supervision requirement (where the offender is placed under the regular supervision of a probation officer for a period of up to 3 years).
• d. a curfew requirement (where the offender must remain at a fixed address for between 2-16 hours in any 24 hour period. This can be for a maximum of 6 months and the offender is usually electronically tagged). 

Financial sentences can include: 

• a. a fine paid to the state; and/or
• b. a compensation order paid to the victim. 

 Discharges are the least serious sentences and are usually imposed on first-time minor offenders in the Magistrates’ Court. These may be either:

• a. a conditional discharge (where if the offender commits a further offence in the stated period, then they can be resentenced for the original offence); or
• b. an absolute discharge (no real penalty is imposed as the offender is technically guilty but morally blameless). 

Section 142 of the CRIMINAL JUSTICE ACT 2003 sets out the aims of sentencing for those aged 18 and over. A court must have regard to the:

•  punishment (or retribution) of offenders
•  reduction of crime (including its reduction by deterrence) 
• protection of the public
•  reform and rehabilitation of offenders
• making of reparation by offenders to persons affected by their crimes 

The aim of punishment/retribution is the idea that if someone has broken the criminal law they should be punished and get their ‘just deserts’ – i.e. receive the sentence their degree of fault deserves. To an extent, all sentences involve retribution.

An important aim of sentencing is to punish in such a way as to reduce offending. One way of doing this is to impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences (known as individual deterrence) and/or other people are deterred from offending because they do not want the same fate (known as general deterrence).

 To achieve the aim of protection of the public the offender is given a sentence that makes them incapable of committing further crime.  A long custodial sentence or community order with a curfew requirement are typically used to achieve this aim. Dangerous drivers are disqualified from driving. 

 Another aim behind a sentence could be to reform the offender and rehabilitate him into society. This aim usually involves help (e.g. with anger management or drug addiction) to alter the offender’s behaviour so that he will not reoffend. The sentence should take into account the personal circumstances of the offender and look to his future. Offenders will usually be given a community order with various requirements aimed at rehabilitating them. 

 The making of reparation to Vs is an increasingly important aim of sentencing.  This is where the sentence tries to ensure that the offender makes amends. Reparation might be achieved through a compensation order. 

In deciding on a sentence the court will take a number of factors into account.

Where relevant, the maximum prison sentence allowed by Parliament for the offence. 

 The maximum sentencing powers of the court. Note that if D pleads guilty or is found guilty of an either way offence in the Magistrates’ Court, the magistrates can only sentence up to 6 months’ imprisonment; however, they have the option of committing the case to the Crown Court for sentence if they regard their sentencing powers as insufficient. 

The maximum period of imprisonment is rarely given and often any kind of custodial sentence would be inappropriate. Indeed, the CRIMINAL JUSTICE ACT 2003 says that the court must not pass a custodial sentence unless the offence is serious enough. If a custodial sentence is justified, the length of a custodial sentence should be in proportion with the seriousness of the offence. 

The offender’s background and any aggravating or mitigating factors will be taken into account. This may involve referring to a pre-sentence report drawn up by the probation service or to a medical/psychiatric report, if the offender is ill. 

Aggravating factors are circumstances which allow the court to impose a more severe sentence than it would normally have given. Examples in the CRIMINAL JUSTICE ACT 2003 include:

•  previous convictions for similar offences
• the fact that the crime was premeditated
•  an unprovoked attack 
• the offence involved racist or religious hostility
• the offence involved hostility on the grounds of disability or sexuality the offence was committed against a vulnerable victim (e.g. young, elderly or disabled) and D knows this
• use of a weapon
•  the offender being part of a group attacking V
• the offence was committed under the influence of alcohol or drugs 

Mitigating factors are circumstances which allow the court to impose a lower sentence than it would normally have given. Examples in the CRIMINAL JUSTICE ACT 2003 include:

•  the offender has no previous convictions
•  the offender has a mental or physical illness
• the offender has shown genuine remorse 
•  cooperation with the police
• provocation by V
• D pleaded guilty at the first reasonable opportunity (usually this reduces the sentence by up to one-third) 

The aims of sentencing – i.e. retribution, reduction of crime (including by deterrence), protection of the public, reform and rehabilitation of the offender, and reparation. 

 Sentencing guidelines are issued by the Sentencing Council which set out the starting point and the range of sentencing options for an offence and the kind of factors the court should consider. They may suggest a ‘tariff’, which is the sentence appropriate for the ‘average’ example of the offence – e.g. whether magistrates should be thinking of a custodial sentence or a community order. 

There is a tradition of using lay people (non-lawyers) in the decision-making process in our courts. Lay people are used today in the Magistrates’ Courts (lay magistrates) and in the Crown Court (juries). The role of lay magistrates is very wide and largely connected to criminal cases.

•  Magistrates try all summary offences (e.g. minor criminal damage) and decide if D is guilty or not guilty, after hearing the evidence and applying the relevant law.   
•  They decide what the sentence should be where D pleads guilty or is found guilty. For a single criminal offence committed by an adult, the maximum sentence is 6 months’ imprisonment (12 months’ imprisonment for two) and/or an unlimited fine.  
• They deal with the first hearing of all indictable offences (e.g. murder and ****) then transfer those cases to the Crown Court.  
•  They can issue an arrest warrant and/or issue a search warrant to the police. 
• They can extend the period of detention of a suspect at a police station. 
•   They decide whether D should be granted bail or remanded in custody between court appearances. 
•   Specially trained magistrates sit in the Youth Court to hear criminal charges against those aged 10 to 17 years old.

•  Specially trained magistrates also sit in the Family Court to hear cases on family issues, such as parental disputes over the contact and residence of their children. 
• Magistrates will sit in the Crown Court with a judge where a case is on appeal from the Magistrates’ Court against conviction and/or sentence. 

• Magistrates deal with the procedure for either way offences (e.g. theft and ABH). Either way offences can be tried either before magistrates in the Magistrates’ Court or before judge and jury in the Crown Court. Under the plea before venue and allocation procedure D is asked whether s/he pleads guilty or not guilty to the offence. 
• If D pleads ‘guilty’, then the magistrates must decide whether their sentencing powers are sufficient to sentence D or if the case should be committed to the Crown Court for sentence. 
• ii. If D pleads ‘not guilty’, the magistrates must work out the most appropriate court to allocate the case for trial. They will hear arguments from the prosecution and defence, together with any relevant previous convictions. Generally, either way offences should be tried in the Magistrates’ Court unless it is likely that the court’s sentencing powers will be insufficient. If the magistrates feel the case is not suitable for trial by a Magistrates’ Court, they will allocate it to the Crown Court for trial. If the magistrates are prepared to hear the case, D is given a choice of trial court. An indication of the likely sentence will be given to help him or her decide. 

• If there is a trial in the Magistrates’ Court, there will be an adjournment and a decision on bail will have to be made. On the day of the trial, three magistrates will hear the evidence and then decide on guilt or innocence. This must be a unanimous decision or by majority. If D is found guilty, they will sentence up to their maximum sentencing powers; however, they have the option of committing an either way case to the Crown Court for sentence if their sentencing powers are insufficient.  
•  Every bench of magistrates is assisted by a legal adviser to guide them on points of law and procedure.  
• Lay magistrates are required to sit for at least 13 days/26 half-days each year (or 35 halfdays if they also sit in the youth or family courts).  

Juries try indictable offences and either way offences heard in the Crown Court. 

•  After the jurors have been selected and sworn in, the panel of 12 jurors listen to: a. the arguments and evidence presented by the prosecution and defence b. any cross-examination of witnesses by the defence and prosecution to try to show that the evidence of that witness is not reliable c. the closing speeches of the prosecution and defence d. the judge’s summing up of the evidence and directions on the relevant law   The jury will retire to the jury room to have a secret discussion and decide what the facts of the case are and then apply the law to those facts to decide on guilt or innocence (the verdict).  
•  The jury has at least two hours in which to reach a unanimous verdict. Where this is not possible, a majority verdict is allowed. Where there is a full jury of 12, the verdict can be 10-2 or 11-1 either for guilty or not guilty. If the jury has fallen below 12 for any reason (e.g. because of illness) then only one juror can disagree with the verdict. If there are only 9 jurors, the verdict must be unanimous. A jury cannot go below nine.  
• . Finally, there will be a public announcement of their verdict by the foreman in open court, though no reasons for the verdict have to be given.  
• If D is found guilty by the jury, the judge will then decide the sentence. 

• The basic qualifications for jury service are set out in the JURIES ACT 1974 (as amended). A person is eligible for jury service if: 
•  they meet the lower and upper age limits (between 18 and 75 years old, on the day that they start jury service); and
• they are on the electoral register; and
•  they have lived in the UK for the necessary period of time (any period of at least 5 years since they were 13 years old). 

Lawyers, judges and police officers used to be ineligible for jury service but this was changed by the CRIMINAL JUSTICE ACT 2003. On one hand, this means that there is a wider pool of potential jurors who can be summoned for jury service. On the other hand, many people feel that this could lead to bias or to a legally well-qualified juror influencing the rest of the jury. Indeed, the European Court of Human Rights has ruled in HANIF v UNITED KINGDOM (2012) that having a police officer on the jury was a breach of the right to a fair trial. 

• A person is disqualified if:
• they are currently on bail; or 
• they have recent or serious convictions - e.g. a person who has been sentenced to a term of 5 or more years’ imprisonment is disqualified for life; or 
• they are mentally disordered. 

 A person can be excused or have their jury service deferred for ‘good reason’ – e.g. if serving in the armed forces or experiencing serious ill health. Jurors are not allowed to sit on cases where they know the victim, D or any of the witnesses. A judge at the court may discharge a person from being a juror for lack of capacity to cope with the trial – e.g. they do not understand English.