magistrates Court Process

Crown Prosecution ServiceROLE IN CHARGING PROCEDURE

Responsible for prosecuting people in England and Wales

who have been charged with a criminal offence.

It was created by the Prosecution of Offences Act 1985

The head of the Crown Prosecution Service is the Director of Public Prosecutions (DPP).

The Director is responsible to the Attorney General (a government minister) who is responsible to Parliament for the CPS.

Advise police on appropriate chargeor need for further pre-charge enquiries

[- police station / pre-charge role]- this pre-charge role has a significant effect on the

'negotiation of plea' process

Preparation and presentation of cases in court

Assessment of prospects of conviction, strength of evidence and public interest

liason

KEY DUTIES

The Review of the Crown Prosecution Service

(The Glidewell Review)

was published in 1998

The CPS needed to work more closely with the other criminal justice agencies and in particular the police.

Criticism was made in particular of the lack of communication between the police and the CPS

The CPS are now use a ‘statutory charging arrangement’ whereby they select what offence to charge an offender with

in all but the most minor of cases

The CPS have ‘CPS Direct’ which is an out-of-hours telephone service to provide the police with charging advice through

the night and at weekends

The Code for Crown Prosecutors

The Code for Crown Prosecutors sets out the basic principles to be followed by when making charging

and prosecuting decisions.

The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under the Prosecution

of Offences Act 1985 s.10

Crown Prosecutors also have to follow additional guidance on charging a suspect in

‘The Director's Guidance on Charging’which the DPP issues under the Police and Criminal

Evidence Act 1984 s.37A

Decisions on both charging and prosecuting suspects

are based on the Full Code Test outlined in the Code.

There are two parts to this test:

The Evidential Stage

Is there is enough evidence to provide a “realistic prospect of conviction” ?

Can the evidence can be used and is it reliable?

The Public Interest Stage

What factors are there for prosecution?

What factors are there against prosecution?

SOCIAL POLICY???

There is a third test:

the threshold test.

The threshold test is used to decide whether a suspect can be charged

even though there is not yet enough evidence

to apply the Full Code Test

The Threshold Test is only applied to those cases in which it would not be appropriate to

release a suspect on bail

because the suspect represents a serious bail risk and there is reasonable suspicion that the offender has committed the offence

and it is in the public interest to charge that suspect

The defence has the right to challenge a case for lack of evidence or an unjustified refusal of bail.

Until the case has met the Full Code Test there is an increasing likelihood that the defence will succeed in stopping a prosecution at an early stage in the court

process. This in effect limits the use of the Threshold Test.

MAGISTRATES COURT

Over 95% of all cases put before the courts are dealt with in Magistrates’ Court.

The cases are heard by either by lay magistrates or one district judge.

All Criminal Proceedings start in the Magistrates Court

There are three types of cases that come to a magistrates’ court

Summary Offences – where the defendant is not entitled to trial by jury. These usually

include driving offences and minor assaults.

Either-way offences – where the defendant can be tried either and the magistrates’ court

of the crown court for offences such as theft or handling stolen goods.

Indictable-only offences – such as murder or manslaughter, rape and robbery which must

be heard in the crown court.

MAGISTRATES COURT

lowest ranked criminal court

'COURT OF FIRST INSTANCE'- all criminal cases start in the magistrates court

'SUMMARY JURISDICTION'

– no jury – limited 'sentencing powers' [especially re imprisonment]

DEALS WITH MORE MINOR OFFENCES – trial / plea / sentence

- 'summary only' offences- less serious 'either way' offences

'EITHER WAY' OFFENCES – DECIDE JURISDICTION

- accused may 'elect' crown court trial- Magistrates may 'decline jurisdiction' if they believe facts

of case too serious for them to deal withcommittal procedure

CONDUCTS 'COMMITTAL PROCEEDINGS' TO CROWN COURT

[FORMAL 'PAPER' PROCEDURE]

- 'indictable only' offences- more serious 'either way' offences, where they have 'declined

jurisdiction'

'COMMIT FOR SENTENCE' TO CROWN COURT- where their limited powers of sentencing for either way offences are

insufficient

MATTERS OF JURISDICTION [IN BRIEF]

• summary trial before District Judge or bench of three lay magistrates

• indictable offences ‘sent forthwith’ from magistrates’ court to Crown Court and EDH

fixed• either-way offences - magistrates proceed to

‘plea before venue’:

if defendant indicates guilty plea, he loses right to Crown Court trial and Magistrates may

dispose of case summarily (Criminal Procedure and Investigation Act 1996)

can include committal to Crown Court for sentence if magistrates believe their powers

(max. 6 months for single offence and/or max. fine of £5,000) are inadequate

if defendant indicates not guilty plea, magistrates must determine venue, though defendant can elect Crown Court trial if the

Magistrates accept jurisdiction

PERSONNEL

LAY MAGISTRATES / JUSTICES'Your Worships' / Sir / Madam

decide matters of 'fact' and law – trained, but not legally qualified

- 2 or 3 sit together

DISTRICT JUDGE [incl 'Deputy' DJ]Sir / Madam

decides matters of 'fact' and law- legally qualified - solicitor / barrister

- sits alone

LEGAL ADVISOR / CLERK TO THE JUSTICES- legally qualified

- advises bench on law / guidance

LAY MAGISTRATES ARE NOT 'LEGALLY QUALIFIED'

appointed by Ministry of Justice / Lord Chancellorfor their

intelligence/integrity/fairness/common sense /impartiality/competence/local

knowledge

Volunteer for 26 half days pa or more

Expenses entitlement

Paid work leave

Training / Monitoring / Appraisals / Mentoring Judicial Studies Board / Sentencing

Counciltraining clerk

probationmagistrates associationplenty of publications

Guidance of the court Legal AdvisorOver-influenced?

Practice Direction 2000Advice on points of law to be given in

open court

DISTRICT JUDGES ARE QUALIFIED, EXPERIENCED LAWYERS

Practitioners for 7 years+as solicitors / barristers

with2 years Deputy DJ experience

{With the patience to complete a 32 page application form}

CONTINUOUS TRAINING AND UPDATING MAINTAINED

although plans were made to increase their sentencing powers, they are subject to the same restrictions,

guidelines and procedures as the lay bench

OTHER PERSONNEL

USHER – notes attendance of parties and, generally, calls 'cases' for hearing

PROSECUTION REPRESENTATIVE –present case for the crown- explains reason for prosecution-solicitor / barrister / trained clerk

DEFENCE REPRESENTATIVE – presents case for the accused / defendant

- solicitor / barrister

PROBATION SERVICE REPRESENTATIVE[S]prepare reports to assist court with sentencing options

- may include drug / alcohol / housing workers

YOUTH COURT

– youth offending team representative- social worker / responsible adult

- parent

Youth Courts

• defendants aged between 10-17 tried by magistrates sitting as a Youth Court (except most

serious offences)

• magistrates receive special training and sit as a mixed bench

• hearings less formal and held in private with reporting restrictions

• idea is to keep young offenders away from adult offenders and maximise possibility of

reform

NOTE: 'IN CAMERA'

whilst all criminal courts are [generally, subject to exceptions relating to security] open to the public, youth court proceedings are private, and only permit interested parties and

personnel

jurisdiction over virtually all offending by those aged under 18

- except the most seriousand / or

- when charged with an adultthey will then appear in the magistrates court with the

adult[variety of things may happen]

youth will generally remain joined with adult whilst adult has a guilt issue on the 'jointly charged' offence[s]

Bail

may have been given at the police station

- may not! - may be reconsidered by the bench anyway

•Bail applications are dealt with during the Early Administrative Hearing at the magistrates’ court

• Bail Act 1976 gives a general PRESUMPTION OF bail, no matter how serious the offence

• Magistrates can refuse bail where there are substantial grounds to believe the defendant will:

not surrender to bail commit an offence

interfere with witnesses

• factors to be considered:

nature and seriousness of the offence

defendant’s past criminal record

defendant’s ties with the community

defendant’s past record of surrendering to bail

• bail can also be refused if necessary for the defendant’s own safety or welfare

[REVIEW]

• bail can be unconditional or conditions attached: eg.

report to police

reside at a specified address

abide by a curfew

• bail refused? – defendant can renew application

AT THE NEXT HEARING, or appeal to Crown Court

• bail granted? – prosecution can appeal if offence punishable by at least 5 years imprisonment – Bail

(Amendment) Act 1993

Where defendant is charged with a serious offence and has a previous conviction for such an offence, bail only

granted in exceptional circumstances – Criminal Justice and Public Order Act 1994 (as amended by

Crime and Disorder Act 1998)

– Presumption 'reversed'

main concern is variations and inconsistencies between courts in granting/refusing bail

15% of those remanded are not proceeded against or acquitted – does not necessarily invalidate bail decision

as different criteria apply

Defendant / Accused makes appearance at court in the dock – in custody / on bail?

- EAH

Asked by the court's legal advisorto confirm identity by giving name / address

Representation?

Charge, as previously put by the police, after CPS 'pre-charge advice'is read to the defendant

[or summons, if proceedings have started,eg by post]

Progress made? - Adjournment?

SUMMARY OFFENCE PROCEDURE

MAGISTRATES COURT

PLEASENTENCE

TRIAL

At the 'Early Administrative Hearing'

when the charge is put by the clerk the defendant enters an

unequivocal

'guilty' or 'not guilty 'plea

refusal to enter a plea = 'not guilty' plea entered in the court record

'GUILTY' PLEA'CONVICTED'

proceed to sentence?

Prosecutor reads out 'the facts' of their case against the defendant

especially 'aggravating features' of the offence

and reviews details of the defendants previous criminal record

a version of facts / 'basis of plea' may have been agreed with the defence

Defence version put by defendant or his / her representative solicitor

- mitigating factorsrelating to the offence and offender

eg - may have no history of similar offending- behaviour 'out of character'

- provocation- addressing a drug / alcohol problem

- sorry- etc etc etc etc

NEWTON HEARING

When any issue arises between the Prosecution and Defence concerning 'level' of guilt /

involvement / actual actions of DefendantWhich would affect the level of sentence imposed

'mini trial', not to determine guilt, but level of guilt and therefore sentence

MAGISTRATES / DISTRICT JUDGEDECIDES SENTENCE

ASSISTANCE FROM PROBATION?- fast delivery report- full probation report

Probation Service interviews defendant over an adjournment period to ascertain whether involvement of defendant on any of their

programmes will assist in avoiding repetition of offending behaviour

– eg drug rehab / domestic violence courses etc

- availability/suitability of 'community sentences'

If bench decides on such probation input they may give an 'indication' of a sentence

they consider appropriate for the offence

– but this 'indication' will not 'bind' a future sentencing bench

or

'all options' of sentencing, including imprisonment, will be left open / available

to the sentencing bench

SENTENCING ANNOUNCED

LIMITED POWERS / 6 MONTHS PRISON

ADVICE AND GUIDELINES ON SENTENCINGREGULARLY UPDATED BY

THE SENTENCING COUNCIL[FORMERLY JUDICIAL STUDIES BOARD]

'BALANCING' PROCEDURE OF PUNISHMENT AND REHABILITATION

NOTES

legal aid / representation

no choice of 'venue' on summary only offences- magistrates only

may be link with 'either way' offences which can complicate choices re venue, especially when differing pleas are involved

tactical considerations / negotiation

'credit' for guilty plea

'advocacy adjustment'

appeal

SUMMARY OFFENCES

'NOT GUILTY'PLEA

PROCEDURE

NOT GUILTY PLEA

entered at early administrative hearing

CPS provide Advanced Disclosure of their case in the form of witness statements,

which in theory, should be as near complete as to be ready for trial due to pre-charge procedure

directions hearing fixed[depending on bail /custody circumstances of defendant]

issues of bail dealt with – grant / variation of conditions – application to the bench

'negotiations' with CPS

adjournment application?

DIRECTIONS HEARING

discussion of issues in dispute / agreement between prosecution / defence

discussion of potential basis of plea of guilty

ISSUES OF:- bail

- 'editing' of evidence / interview- disclosure of further evidence by cps

- possible defence statement- adjournment requests by defence / crown

- any other business!!

may be dealt with by clerk or magistrates, depending on issues to be resolved

TRIAL DATE

ISSUES

has everyone turned up who has to give evidence?

basis of plea?

adjournment? - why?

has the defendant turned up? - if not, can he/she be tried 'in absence'?warrants for arrest?

all is well and ready = trial

defendant called to dockconfirms not guilty plea

PROSECUTION CASEprosecutor outlines case to magistrates

first witness called by crown – sworn in - 'examination in chief' by prosecutor

- 'cross-examination' by defence solicitor- 're-examination' by prosecutor

- questions from magistrates

same procedure for further prosecution witnesses

'agreed' prosecution witness statements read to court

prosecutor / interviewing police officer reads summary of police station interview

[maybe, but rarely, plays tape]

'CASE TO ANSWER'?

has the prosecution evidence [prima facie] shown an offence may have been committed,

and that the defendant may have been involved?

if not

defence will make an application to the court if the prosecution has failed to prove, or show evidence of, an

essential element of the offence

or that the prosecution evidence is unreliable

basically stating the defendant need not be any further involved and the magistrates should dismiss / throw out the

charge

DEFENCE CASE

defendant called to give evidence – sworn in[note: 'inference' consequences of failing to give

evidence]

- 'examination in chief' by defence rep, including / especially what prosecution witnesses said

- 'cross-exam' by prosecutor- 're-exam' by defence rep

- questions from bench

defence witnesses called – same procedure

defence representative makes closing speech and sums up defence arguments

MAGISTRATES RETIRE TO CONSIDER VERDICT

IF NOT GUILTY, DEFENDANT LEAVES WITH THE HEARTFELT

APOLOGIES OF THE COURT

NOTE: COSTS ISSUES IF DEFENDANT NOT LEGALLY AIDED

IF FINDING OF GUILT:

- PASS SENTENCE- ORDER PROBATION REPORTS

NOTE: LOSS OF CREDIT FOR EARLY GUILTY PLEA

'EITHER WAY' OFFENCES

PROCEDURE IN THE MAGISTRATES COURT

1/ 'PLEA BEFORE VENUE'

GUILTY PLEA AT EARLY ADMIN HEARING

defendant is 'convicted' and liable to be sentenced

(Criminal Procedure and Investigation Act 1996)

- prosecutor outlines their case - aggravating features

- defence state their views, especially 'mitigating' features

- may be a 'basis of plea'

magistrates decide whether their more restricted powers of sentencing, especially prison, are

'sufficient'

MAGISTRATES MAY THEN:

DEAL WITH SENTENCING THEMSELVES – subject to a 6 month prison maximum

[12 MONTHS IF MORE THAN 1 E/W OFFENCE]

COMMIT TO CROWN COURT FOR SENTENCE – if offence[s], they believe, require more punishment

than they can impose

ISSUEScredit for guilty plea

bail / time on remandprobation reportdefence tactics

other offences outstandinglegal aid

'NOT GUILTY' PLEA

2/ MODE OF TRIAL

- charge read out by clerk to defendant – MT Procedure explained

- defendant asked to plead – states 'not guilty' or no plea

- prosecution, then defence state to magistrates their opinions on suitability of magistrates / crown court trial [basically, are magistrates powers on conviction sufficient,

given nature of offence]

- magistrates decide 'suitability' [in much the same way as 'guilty plea' sentencing issues]

if magistrates decide 'not suitable', for reasons of seriousness / nature of offence, for their limited

powersADJOURN FOR 'COMMITTAL'

defendant has no choice of venue

if magistrates decide their powers are sufficient, and offence is suitable for the magistrates court

DEFENDANT HAS CHOICE / 'ELECTION'magistrates – or – crown court [judge and jury]

MAGISTRATES COURT – adjourn for directions and to fix trial date – or maybe plead guilty!!

- [back to 'summary procedure']

CROWN COURT – adjourn for committal to crown court

issues

tacticsadvantages / disadvantages of choice / election

prospects of aquittaltime

type of sentence on convictionseverity of sentenceloss of credit for plea

some numpty barrister who hasn't read the briefdelaying the inevitable for better custody privileges

bail / period of remandlegal aid

DEFENDANT IS OFFEREDSUMMARY TRIAL

AND

ELECTS TRIAL BY THE

MAGISTRATES COURT

FOLLOW 'SUMMARY TRIAL' PROCEDURE ABOVE

[REVIEW]

NOTE:

CROWN COURT COMMITTAL / 'SENDING' and OTHER PROCEDURES HEREAFTER APPLY TO

ADULT DEFENDANTS

youths only become involved if co-accused with an adult who is going to crown court

either via s6 MCA80 or s51CDA98or via a related offence

should they [youth] maintain a not guilty plea

MAGISTRATES 'DECLINE JURISDICTION'OR

DEFENDANT ELECTS TRIAL BY JURY[IF MAGISTRATES TRIAL OFFERED]

Case adjourned for 'COMMITTAL' for trial at the Crown Court

prosecution to prepare evidence of a 'case to answer'

GALBRAITH 81 TEST

the theory is that committal proceedings weeds out weak, unsustainable prosecutions

COMMITTAL PROCEEDINGSFOR

EITHER WAYOFFENCES

DATE FIXED FOR 'PAPER COMMITTAL'

s 6(2) Magistrates Court Act 1980as amended by insertion of s.5a by CPIA96 sch 3

prosecution prepare 'committal bundle' of their 'primary' admissable evidence

- written statements / depositions / documents – in proper format

serve this 'primary disclosure' on magistrates court and defence

if it discloses a 'case to answer' / prima facie case on which a jury could convict {Galbraith test}

defendant committed for trial and PDH fixed at crown – {other orders made}

COMMITTAL PROCEDURE REGULATED BY

PART 10CRIMINAL PROCEDURE RULES 2010

THEY UPDATE THE 2005 RULES

MADE UNDER MCA80 DELEGATED POWERS

'SECONDARY LEGISLATION'

NOTES:CPS need not disclose all their evidence, only enough to

show defendant may have committed the offence R v GALBRAITH 1981

WILKINSON v CPS 1998R v EPPING and HARLOW JUSTICES ex p MASSARO 1973

evidence served must be 'admissable', pursuant to s5A MCA80, as inserted by CPIA96

no consideration by magistrates of the evidenceLORD WIDGERY SAID IN EPPING73 THAT WAS OK

role of defence representative vital in this money and time saving exercise

other orders incl legal aid / reporting restrictions / bail issues

{IN THE OLD DAYS}

Defence could ask court to order cps to call contested witnesses essential to their (CPS) case,

[often just to see would they turn up and actually go into the box]

witnesses could be cross-examined in the magistrates court by the defence rep.

changed by 1996 Criminal Procedure and Investigations Act to the 'new style' 6(1)MCA80

challenge

not now possible to assess the willingness or veracity of prosecution witnesses

– can only challenge whether the prosecution primary disclosure papers hit the relevant evidence mark

'FULL' COMMITTAL

S 6(1) MAGISTRATES COURTS ACT 1980

following consideration of the 'paper' evidence prepared and served by the crown

should the defence wish to contend this discloses no case to answer, ie no admissible evidence of the defendants'

involvement in the offence and the evidence served therefore fails to meet 'Galbraith test'

a further hearing date is listed for the magistrates to hear arguments from the parties, in particular why the defence say

there is no 'prima facie' case

note: if defendant is 'in person', ie not legally represented, must be committed 6(1)

Directions given at the first committal hearing [the one originally fixed for the 'paper' 6(2) committal]

for the preparation of 6(1) 'consideration of the evidence' hearing

CPS are normally to serve 'paper' primary evidence on the court in good time for the allocated bench to

read and consider prior to the hearing

defence may be ordered to serve a 'skeleton' argument, stating why assert 'no case'

[so then guess what happens?!?!}

custody time limits extended

at the hearing listed for consideration of the evidence,

cps will fill evidence gaps

and assert their Galbraith burden fulfilled,

and defence will assert no prima facie case

and the bench will commit!!

and fix a PDH at Crown

{other orders made}

'reporting restrictions' imposed

otherwise!

Prosecutor will address Magistrates and explain why there is a prima facie case on the papers, which implicates the defendant

and on which a jury, properly directed 'could convict'

- standard of proof' required of the crown is very low

- usually no 'admissability of evidence' arguments

- magistrates do not deal with issues of law, only fact

- magistrates read the evidence

- defence makes submissions re contention that the galbraith test is not satisfied

- magistrates decide – committal

INDICTABLE ONLY OFFENCES

ON DEFENDANTS FIRST MAGISTRATES COURT APPEARANCE FOLLOWING CHARGE

these are 'sent forthwith' by the Magistrates to the

Crown Court under

s51 CRIME AND DISORDER ACT 1998

RELATED NON-'INDICTABLE ONLY' OFFENCES SENT WITH THEM [SUBJECT TO QUALIFYING CONDITIONS]

[plans in place since 2003 Criminal Justice Act to 'send' either way offences, where jurisdiction declined, or crown court trial

elected, under this procedure]

[YOUTHS WILL FOLLOW IF CO-ACCUSED WITH ADULT]

CPS need not prepare a bundle of prima facie / case to answer evidence, but will provide defence

with primary disclosure evidence they consider appropriate

it will be a defendants first appearance before the bench

bail issues dealt with

adjournments are extremely rare / effectively unnecessary

a Preliminary Hearing date is fixed for a first appearance at the Crown Court

when the judge will make'Case Management Directions'

'TRANSFER' FROM MAGISTRATES TO CROWN

CPS serve notice on Magistrates Court, Crown Court and Defence that proceedings are being transferred from

magistrates jurisdiction to the crown court

administrative procedurenot subject to challenge

most commonly used in sex offence casesand complex fraud

VOLUNTARY BILL

too rare to be of interest

APPEALS FROM MAGISTRATES

DECISIONS

[2006] UKHL 40 (19 July 2006)

DPP v COLLINS

. The reports of cases before appellate tribunals are strewn with instances in which the courts have

reminded themselves

of the importance of resisting the temptation to interfere too lightly with the findings of a lower court to which a decision has been entrusted,

and have then proceeded to yield to that very temptation.

The magistrates' court in this case was given the task of determining whether an expression or other matter sent by means of a public electronic communication

was grossly offensive in the eyes of reasonable people, judged, as Sedley LJ put it (para 11 of his judgement in the Divisional Court) by the standards of an open and

just multiracial society.

The justices who sit in the magistrates' court are people who are expected to apply the standards of today's

society to determination of such issues.

It is of importance that their determinations should not be upset lightly.

Appellate tribunals should pay more than lip service to that principle and when they do reverse them they

should be clear on what basis they do so

after a Magistrates finding of guilt after trial

ora sentence believed to be excessive

imposed by magistrates

general right of defendant to appeal verdict / sentence

to crown court [by submission of notice]

by way of rehearing of evidence or mitigation by judge

sitting with [normally] 2 magistrates

['timing' tactics]

IF MAGISTRATES [OR INDEED CROWN COURT]

HAVE

WRONGLY INTERPRETED THE LAW

appeal by way of 'CASE STATED' to HIGH COURT

QUEENS BENCH DIVISION[QBD / Administrative court has a supervisory function

over the inferior jurisdictions]

If the High Court decides the law is wrongly interpreted,

it will return case to the Lower Court

with instructions on how to deal with issue