Determines the appropriate charges in more serious or complex cases and advises the police
Prepares cases and presents them at court
Provides information, assistance and support to victims and prosecution witness
VALUES
Independence and fairness
Honest and openness
Respectfulness
Professionalism and excellence
The CPS code
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 'PublicInterest 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
Between judge and the accused - indication of likely sentence to allow D to make a choice to plead guilty (Goodyear direction)
Between the prosecutor and accused results in a request for a more lenient sentence
Agreement by the prosecutor to accept a guilty plea to a lesser charge
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
EitherWay 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
Eitherway offences - no time limit
Discretion not to try an information (if the case is weak)
Lay Adjudication: Magistrates Courts
= Decision making by nonlawyers e.g. laymagistrates, 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
Eitherway 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 - randomballot
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 NorthernIreland
Jackson and Doran (1995) - judge only trials didn't necessarily prejudice the defendants but did result in an 'adversarialdeficit' 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 safetynet 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 'Statutorypurposes'
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 ‘lifeimprisonment’ 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 ongoingsentence – 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 HomeSecretary for compassionate release
Reserved for cases of aggravatedmurder 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 GuildfordFour 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 Conlondied 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 Justice1993
‘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 perfectbalance!
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