11: Criminal Courts and Processes

• Role of Police: Investigate

  • Collect evidence from the scene
  • Interview prosecution witnesses
  • Arrest/question suspects, and charge if enough evidence
• CPS:

  • Set up by Prosecution of Offences Act 1985
  • Began operating in 1986
  • Prosecute offenders on behalf of the state if: theres enough evidence and in public interest (code)
• CPS Role:

  • Deciding what offences should be charged in all major cases
  • Review evidence to assess chances of successful prosecution
  • Give guidance on the admissability of evidence to police
  • Prosecute cases (Magistrates and Crown Court)
• CPS Composition:

  Director of the Public Prosecution

  ^

  |

  Chief Crown Prosecutor (in 13 main geographical areas)

  ^

  |

  Branch Crown Prosecutor (located in a branch of each area)

  ^

  |

  Lawyers and support staff (located at each branch)
• CPS Code: Full Code Test s10 Prosecution of Offences Act 1985


  Decision of whether to charge offences is based upon two tests:

  • Evidential Test (enough evidence)
  • Public Interest Test
• CPS Criticisms:

  • Narrey Report 1997: criticised tense relationships between CPS and Police, and delay in cases going from police to court. Now, there are lawyers in police stations and CPS Direct.
• Types of Offences:

  • Indictable = most serious offence (murder, manslaughter)
  • Triable Either Way Offence = Can be trialled in either Magistrates or Crown Court (ABH, speeding, drunk driving)
  • Summary = least serious offence (theft, assault)
• Pre-Trial Processes: Indictable Offences:

  1. EAH (Early administrative hearing) takes place
  2. Case transferred to Crown Court
  3. Other pre-trial matters dealt with in Plea and Case Management Hearing. Council deals with housekeeping issues.
• Pre-Trial Processes: Triable Either Way offences:

  1. Plea before Venue hearing where defendant is asked to enter their plea
  2. If defendant pleads guilty, they will be sentenced immediately at the Magistrates
  3. Id defendant pleads not guilty, Magistrates will proceed to Mode of trial hearing/allocation hearing where they will decide whether to accept jurisdiction
  4. If jurisdiction is accepted, defendant chooses where they want their trial to take place (= defendant election)
• Pre-Trial Processes: Summary Offences

  1. EAH occurs to discover if defendant wants legal aid, requests pre-trial sentence reports or medical reports, which is dealt with by a single lay magistrate of the court clerk.
• Pre Trial Matter: Bail

  • Decided before trial whether the defendant should be remanded on bail (free to go until trial) or remanded in custody (remain in jail/prison until trial)
• Police Bail: s38 The Police and Criminal Evidence Act 1984

  1. Arrest
  2. If not charged, they return to police station
  3. If charged, EAH occurs and pre-trial process begins
• Police can refuse bail if:

  • Name and address isn't found/false
  • It's for the suspect's/someone else's protection
  • Felt that the suspect won't return
  • Felt that the suspect will interfere with witnesses
  • Suspect charged with murder

  (If police refuse bail after charging defendant, defendant must go to Magistrates Court for case to be heard. If cannot be heard, Magistrates will decide as to bail)
• Court Bail:

  1. (Police Bail Process)
  2. Trial
• Refusal of Bail AFTER DECISION IS MADE: Bail Act 1976

  • Felt that accused won't return
  • Felt that accused will commit further offences on bail
  • Felt that accused might interfere with witnesses or destroy evidence
  • Defendant's own interest that bail is refused
• 5 Factors to consider when deciding to grant bail BEFORE DECISION IS MADE

  1. Nature/seriousness of the offence
  2. Character and previous record of defendant
  3. Family and community tied of the defendant
  4. Behaviour of defendant when on bail previously
  5. Strength of prosecution evidence
• Conditional Bail:

  Criminal Justice and Public Order Act 1994 = 'bail can be subject to conditions being imposed'

  • On bail with tag
  • Surrender passport/documents
  • Surrender at police station weekly/monthly
  • Failure to comply = defendant will be remanded in custody
• Sureties:

  • Where someone prepares to pay the court a sum of money if the accused fails to return after having been granted bail
  • Bail ammendment act 1993 gives prosecution rights to appeal against granting bail
• The Trial: (stage 1-5)

  1. Jury sworn in to try the case
  2. Prosecution makes an opening speech to jury
  3. Prosecution: 'examination in chief' and 'cross examination' occurs
  4. Section 9 statements reads to the court (statements of witnesses that each side agree on and are not disputed)
  5. Weak case = prosecution closes the case ('no case to answer') If judge agrees, they will direct the jury to acquit
• The Trial (stage 6-9)

  6. Defence opening speech if they feel there is a case

  7. Defence call their own witnesses and conduct 'examination in chief' whilst prosecution 'cross examine' them

  8. Each side perform closing speech (D last)

  9. Judge sums main points/laws to jury and court usher leads them to deliberate the verdict
• Appeals by the Defendant: Magistrate Court Appeals: 1. Case Stated Appeals (for P and D)


  Made to the KBD

  • If the Magistrates decision was wrong in law or they exceeded their jurisdiction by making a law outside their powers
  • Mags 'state the case' in writing and the court makes its decision based on those documents
  • Court can either confirm or alter the magistrates decision for D, or court will direct the mags to convict the D and pass a conviction for P
• Appeals by the Defendant: Magistrate Court Appeals: 2. Appeals against conviction/sentence


  Made to the Crown Court

  • If D pleads not guilty before Mags, there's a right to appeal against conviction, sentence or both
  • If D pleads guilty, appeals route will be sentence only
  • Takes the form of tr-hearing
  • Court can either vary the original decision or confirm it, and also have the power to increase the sentence given by Mags (no more than 6 months)
• Appeals from Defendant: Appeals from Crown Court:

  • D appealing against conviction and/or sentence
  • A request from D must be made orally at the court or in writing within 14 days
  • Notice of Appeal must be filed at Court of Appeal within 28 days of D being convicted
  • When leave is granted, Court of Appeal can: allow the appeal and quash the conviction, decrease sentence given, dismiss the appeal, vary the conviction, order re-trial in front of new jury
• Referral by Prosecution: Referral on a point of law


  To the Attorney General for clarification following an acquittal
• Referral by Prosecution: Against an unduly lenient sentence

  Referred to Attorney General who can order that the case be referred to the Court of Appeal who has the power to increase the sentence
• Referral by Prosecution: Against jury nobbling

  Prosecution may appeal an acquittal where a person has been convicted of intimidating one of the jurors in attempt to secrete the acquittal
• Referral by Prosecution: Against a judge erroneous decision (made in error)

  Prosecution may appeal a judicial ruling which terminated the Prosecution's case
• Abolition of the double jeopardy rule:

  'Once acquitted, defendant could not be trialled again for the same/similar offence'

  In 2003, the Criminal Justice Act abolished this, allowing a retrial to take place if:

  • there is new and compelling evidence
  • In the public interest

  R V Dunlop - Dunlop strangled a pizza delivery girl. Jury failed to reach verdict twice but third time convicted due to new and compelling evidence
• CCRC = Criminal Case Review Commission

  Miscarriage of Justice = Unless appeals are made in time, wrongly convicted defendants may serve years in prison or an unsafe conviction

  Old Law - The home secretary had the power to request that the Court of Appeal re-examine such a miscarriage of justice under s17 Criminal Appeal Act

  1992 - The Royal Commission on Criminal Justice recommended that an independent body be established to deal with the miscarriage of justice because the power under the old law was rarely exercised.

  • CCRC began in 1997 created by Criminal Appeal Act 1995
• Role of CCRC:

  • To review and investigate cases of suspended wrongful convictions and/or sentences
  • To refer cases to the appropriate court whenever it feels that there is a real possibility that the conviction/verdict/finding will not be possible
  • Investigations may be referred to the CCRC by defendants themselves or their families. To establish a possibility of an appeal, there must be a new argument/evidence that hasn't been raised at trial or exceptional circumstances
  • Report back to Court of Appeal to help the court resolve its appeal
• Composition of the CCRC:

  Based in Birmingham, 100 staff including core of 50 caseworkers supported by administrative staff (9 commissioners, all members appointed by monarch, at least 1/3 members legally qualified, 2/3 have relevant experience in criminal justice system
• Advantages of CCRC:Advantages:

  • Accessible to the defendant, their family and court
  • Gives defendant extra opportunity to challeng criminal justice system
  • Investigated 310 quashed convictions
• Disadvantages of CCRC:

  • Doesn't have the power to overturn an appeal/quash conviction
  • Severe backlog of cases