EXAM CONTENT - THE COURTS

• The Crown Prosecution Service (CPS)

  FUNCTIONS

  1. Decides which cases should be prosecuted
  2. Determines the appropriate charges in more serious or complex cases and advises the police
  3. Prepares cases and presents them at court
  4. Provides information, assistance and support to victims and prosecution witness

  VALUES

  1. Independence and fairness
  2. Honest and openness
  3. Respectfulness
  4. Professionalism and excellence
• The CPS code

  1. The 'Evidential Stage' - objective test

  There must be a realistic chance of conviction against each charge: 'Would a jury or a magistrate properly directed, in accordance with the law, be more likely than not to convict the defendant?'

  • Can the evidence be used in court? is there any question over the admissibility of the evidence?
  • is the evidence reliable?
  • Is the evidence Credible

  If the case does not satisfy the evidential stage - it MUST NOT proceed
• The CPS code

  2. The 'Public Interest Stage' - Discretionary test

  Is it in the public interest to prosecute?

  • How serious is the offence committed?
  • What is the level of culpability?
  • What are the circumstances of and the harm caused to the victim?
  • What is the impact on the community?
  • Is prosecution a proportionate response?
• The CPS - Additional factors to be considered:

  • Is there jurisdiction to prosecute? (money laundering, ships at sea)
  • Does the defendant have immunity? Age of criminal responsibility, sovereign immunity, diplomatic immunity (Anne Sacoolas)
  • Is the offence time Barred? - S127 Magistrates Courts Act 1980
  • Does the prosecution amount to an abuse of process? (promise not to prosecute)
  • Do CPS need permission of DPP or AG to prosecute (e.g. Bribery Act 2010)
• Plea Bargaining

  What is Plea Bargaining?

  D enters guilty plea for which offered consideration that results in a sentence concession (quid pro quo)
• Plea Bargaining

  Different types

  1. Between judge and the accused - indication of likely sentence to allow D to make a choice to plead guilty (Goodyear direction)
  2. Between the prosecutor and accused results in a request for a more lenient sentence
  3. Agreement by the prosecutor to accept a guilty plea to a lesser charge
  4. Agreement with Prosecutor not to proceed on one or more counts

  • Seen as a ' vexed question' in R v Turner (1970)
  • In England and Wales only 1, 3 and 4 are recognised
• Plea Bargaining

  • In the US meanwhile - long established practice
  • Justice Anthony Kennedy 'Horse trading [between prosecutor and defence counsel] determined who goes to jail and for how long. That is what plea bargaining is. it is not some adjunct to the criminal justice system; it is the criminal justice system.'
• The Magistrates' Court

  Types of criminal offences

  • Summary offences: less serious offences, tried in the Magistrates' Court
  • Either Way Offences: more serious but do not all have to be tried in the Crown Court
  • Indictable only offences: Most serious offence that must be tried in the Crown Court
• The Magistrates' Court

  Composition - s121 Magistrates' Courts Act 1980

  • Magistrates (2 but usually 3) or District judge
  • Single Justice Procedure - If you've been charged with a minor non imprisonable offence, you may be able to have your case decided by a magistrate without going to court.

  The 'information' (or change)

  • Time limits - summary only offences must be laid within 6 months of the offence be committed
  • Either way offences - no time limit
  • Discretion not to try an information (if the case is weak)
• Lay Adjudication: Magistrates Courts

  = Decision making by non lawyers e.g. lay magistrates, jury members
• Lay Adjudication: Magistrates Courts

  • Preliminary hearings for all criminal cases; jurisdiction for summary and Either - Way trials
  • Many criminal with some quasi - civil jurisdiction
  • Magistrates sit as a panel of 3 with a presiding justice
  • Custodial sentencing power increased from 6 to 12 months May 2022 to help tackle the courts backlog, reversed back to 6 march 2023. The explicit intention of this change was to make a short term reduction of 500 in the prison population by delaying the resolution of cases
  • Community sentence, fined, discharges
• Magistrates pros and cons

  ADVANTAGES

  • Cross section of society? Diverse on some ways but not others
  • Facts and figures
  • Local knowledge
  • Cost
  • Legal advisor
  • Fewer appeal s
• Magistrates Pros and cons

  DISADVANTAGES

  • Middle aged and Middle class: Lack of Younger, working class people
  • Prosecution Bias
  • Inconsistency in sentencing: affecting overall fairness
  • Reliance on the legal advisor
• The Crown Court

  • All defendants at Crown Court will have initially started in the magistrates' court - they will have been 'sent' to the Crown Court for Trial
  • Either way Offences: more serious offences
  • Indictable only offences: the most serious criminal offences
  • The Indictment: A statement of the offence and the particulars of the offence(s)
• The Crown Court - Tribunal of fact

  • The triers of fact in the Crown Court are the jury
  • The judge is the sole arbiter of questions of law

  Summoning Jurors

  • s2 Juries Act 1974 - failure to answer - can be fined up to £1000
  • Claim expenses

  Empaneling the jury

  • s11 Juries Act 1974 - random ballot
  • R v Salt (1996) Crime LR 517
  • Juror takes the oath
• Lay Adjudication: The role of the jury

  • Decides questions of fact (the judge will decide questions of law)
  • Determines guilt or innocence 'beyond reasonable doubt'
  • Evaluate the evidence and assesses the weight to be attached
  • Decide on the credibility (Worthy of belief) of witnesses
• Lay Adjudication: The Jury

  • Lord Devlin 'Trial by Jury' 1956: “Trial by jury is more than an instrument and more a wheel of the constitution; it is the lamp that shows that freedom lives.”
  • Vaughan LCJ described it as: "The Bulwark of Liberty"
  • Legitimacy - random selection and never intoxicated with power
• Are Juries Fair? Thomas (2010)

  A) all white

  B) Winchester and Nottingham

  C) racially mixed

  D) London

  E) 27

  F) 319

  G) almost always

  H) high

  I) did not discriminate

  J) BME

  K) all white

  L) Black or Asian

  M) white

  N) winchester

  O) white and BME

  P) nottingham

  Q) BME defendant

  R) BME victim

  S) local population dynamics

  
• Are Juries Fair? Thomas (2010)

  The only other personal characteristic that appeared to affect juror decision making was gender. Female Jurors were more open to persuasion to change their vote in deliberations than male jurors. Male jurors rarely changed their mind.

  A) male jurors

  B) female jurors

  
• Jury Trial in a post covid world

  • In march 2020 jury trials were halted due to the pandemic
  • Solution: Smaller Juries or Jury-less trials?
  • Plans for judge only rape and sex offences trials in Scotland cause serious concerns/ plans to cut jury from 12 to 7 jurors, temp measure during covid
  • History of judge only trials: Diplock Trials during 'the troubles' In Northern Ireland
  • Jackson and Doran (1995) - judge only trials didn't necessarily prejudice the defendants but did result in an 'adversarial deficit' so more 'inquisitorial' so judge led. But caution needed
• Jury trial in a post covid world

  • Quirk (2020) - Unfairness due to characteristics of the Judge, single judge vulnerable to threats, influenced by implications of a controversial acquittal or conviction.
  • Jury trial is safety net against unfair prosecutions.
• Justifications for sentencing

  CLASSIC

  • Retribution
  • Deterrence
  • Denunciation
  • Rehabilitation
  • Incapacitation

  MODERN

  • Restitution
  • Reparation
  • Restoration
• What are sentences for?

  Statutory purposes of sentencing

  s57 Sentencing Act 2020 - 5 different purposes - when sentencing someone aged 18 or over the sentencing judge must have regard to these purposes:

  • Punish offenders
  • Reduce Crime
  • Reform and rehabilitate offenders
  • Protect the public
  • Make the offender give something back (restoration)
  • The court must be mindful of these 'Statutory purposes'
• Sentencing - Not just (custodial) prison

  • There are a range of sentences available to a magistrate or judge and they should consider the most appropriate.
  • Incarceration is not always the most painful for the offender if that's the aim.
  • This is where linking these concepts of purpose and proportionality become important
  • Sentencing must make sense in a modern democracy
  • There is obviously a social and temporal context but within these restrictions sentencing decisions must make sense.
• Sentencing Process

  A) prison

  B) community sentences

  C) fines

  D) absolute or conditional discharge

  
• Life Sentence

  • What is a 'Life Sentence'  and does it mean life in England & Wales like it would in some US states? No
  • Most offenders sentenced to ‘life imprisonment’ will serve a minimum term (the “tariff”) set by the judge at their trial in prison and then be eligible for early release on ‘life licence’ but only if the Parole Board agree it is safe to do - so this is still an ongoing sentence – so ‘ sentenced for life’. 
• Whole Life Order

  • What is a  ‘Whole Life Order’? A WLO means the offender will never be released from prison except applying to Home Secretary for compassionate release 
  • Reserved for cases of aggravated murder and offenders aged 21 or over. In August 2023 govt announced this would be extended to sexual and sadistic murders 
  • In June 2021 just 71 prisoners currently serving WLOs including Lucy Letby, Wayne Couzens, Levi Bellfield, Rosemary West and Michael Adebolajo 
• Appeal System

  • Double Jeopardy
  • The rule against double jeopardy is an important part of the criminal law of England and Wales. It means that a person cannot be tried twice for the same crime. 
  • Exceptions in Part 10 Criminal Justice Act 2003
  • Very serious offences
  • But think of the principle – should offenders constantly know that charges could come back to them again? 
  • Prosecution are gradually acquiring more rights to appeal within strict confines
  • Satisfied with that balance? 
• Causes of Miscarriages of Justice

  • Cognitive bias
  • Investigative and procedural problems
  • Representing the client
  • Inadequate counsel and disclosure
  • Trial problems: Use of experts
  • Change in law
• Key Example: Maguire 7

  • Linked to the Guildford Four case
  • Seven additional people convicted of terrorism offences after it was alleged that Gerard Conlon had told police his Aunt Anne had taught him how to make bombs
  • Anne Maguire, Patrick Maguire (her husband), Vincent Maguire (aged 17) and Patrick Maguire (aged 14), William Smyth (her brother-in-law) and Patrick ’Giuseppe’ Conlon (Gerard’s father and Anne’s brother) and Patrick O’Neill (a family friend) all convicted  on basis of forensic tests which showed traces of nitroglycerine on some of their hands
• key example: the Maguire 7

  • Nitroglycerine found in bombs but also found in a popular detergent at the time
  • The Maguire Seven were found guilty at trial and served their entire sentences – 4-14 years and Giuseppe Conlon died in prison
  • Why a miscarriage of justice?
  • Non-disclosure of evidence 
  • Discrediting of forensic tests
• Key example: The Birmingham 6

  • A pub in Birmingham bombed in 1975 - 21 people killed
  • The IRA claimed responsibility for the bombs
  • The Birmingham Six were arrested for the pub bombing [Paddy Hill, Richard McIlkenny, Gerald Hunter, Hugh Callaghan, Jonny Walker and William Power]
  • The Birmingham Six  were found guilty at trial and served 15 Years in prison
  • Why a miscarriage of justice?
  • Obtaining of confession evidence by oppression and evidence tampered with
  • Forensic evidence – reliability of test questioned
  • Led to Royal Commission on Criminal Justice 1993
  • ‘I’m dead inside.’ [Paddy Hill]
• Science in the courtroom

  • Maguire Seven case reminds us that it is not just the accumulation of scientific evidence that is important but also its presentation in the courtroom expert testimony too has its flaws’ (Taylor and Wood, 1999)
  • Key cases concerning Sudden Infant Death Syndrome [SIDS]
  • Role of Professor Sir Roy Meadow as expert in the courtroom – ‘
  • Sally Clark
  • Angela Cannings
  • Trupti Patel
• An overriding tension

  • The Criminal Justice System has to effectively balance the control of crime with the due process of a defendant
  • System never perfect but Packer (1968) said we must try. We must strive for a perfect balance!
  • When will that balance be perfect? Or at least defensible? 
• Appeal system

  • Enable justice to be done?
  • Think about availability of appeal and disparity between the courts
  • Sentence and Conviction 
  • Defence and Prosecution role
  • Criminal Cases Review Commission 

  “The Criminal Cases Review Commission has become one of the critical safeguards for our human, and thus fallible, criminal justice system, stepping in where things might have gone wrong.” Sir Brian Leveson CCRC Annual Lecture April 2018