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    1. 1. magistrates Court Process
    2. 2. Crown Prosecution Service ROLE IN CHARGING PROCEDURE
    3. 3. 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.
    4. 4. Advise police on appropriate charge or 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
    5. 5. 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
    6. 6. 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
    7. 7. 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?
    8. 8. The Public Interest Stage What factors are there for prosecution? What factors are there against prosecution? SOCIAL POLICY???
    9. 9. 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
    10. 10. 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.
    11. 11. 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
    12. 12. <ul><li>There are three types of cases that come to a magistrates’ court </li></ul><ul><li>Summary Offences – where the defendant is not entitled to trial by jury. These usually include driving offences and minor assaults. </li></ul><ul><li>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 . </li></ul><ul><li>I ndictable-only offences – such as murder or manslaughter, rape and robbery which must be heard in the crown court. </li></ul>
    13. 13. 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
    14. 14. '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 with committal 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
    15. 15. MATTERS OF JURISDICTION [IN BRIEF] <ul><li>summary trial before District Judge or bench of three lay magistrates </li></ul><ul><li>indictable offences ‘sent forthwith’ from magistrates’ court to Crown Court and EDH fixed </li></ul><ul><li>either-way offences - magistrates proceed to ‘plea before venue’ : </li></ul>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)
    16. 16. <ul><li>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 </li></ul><ul><li>if defendant indicates not guilty plea, magistrates must determine venue, though defendant can elect Crown Court trial if the Magistrates accept jurisdiction </li></ul>
    17. 17. 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
    18. 18. LAY MAGISTRATES ARE NOT 'LEGALLY QUALIFIED' appointed by Ministry of Justice / Lord Chancellor for their intelligence/integrity/fairness/common sense /impartiality/competence/local knowledge Volunteer for 26 half days pa or more Expenses entitlement Paid work leave
    19. 19. Training / Monitoring / Appraisals / Mentoring Judicial Studies Board / Sentencing Council training clerk probation magistrates association plenty of publications Guidance of the court Legal Advisor Over-influenced? Practice Direction 2000 Advice on points of law to be given in open court
    20. 20. DISTRICT JUDGES ARE QUALIFIED, EXPERIENCED LAWYERS Practitioners for 7 years+ as solicitors / barristers with 2 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
    21. 21. 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
    22. 22. Youth Courts <ul><li>defendants aged between 10-17 tried by magistrates sitting as a Youth Court (except most serious offences) </li></ul><ul><li>magistrates receive special training and sit as a mixed bench </li></ul><ul><li>hearings less formal and held in private with reporting restrictions </li></ul><ul><li>idea is to keep young offenders away from adult offenders and maximise possibility of reform </li></ul>
    23. 23. 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 serious and / or - when charged with an adult they 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]
    24. 25. Bail may have been given at the police station - may not! - may be reconsidered by the bench anyway <ul><li>Bail applications are dealt with during the Early Administrative Hearing at the magistrates’ court </li></ul><ul><li>Bail Act 1976 gives a general PRESUMPTION OF bail, no matter how serious the offence </li></ul><ul><li>Magistrates can refuse bail where there are substantial grounds to believe the defendant will: </li></ul><ul><li>not surrender to bail </li></ul><ul><li>commit an offence </li></ul><ul><li>interfere with witnesses </li></ul>
    25. 26. <ul><li>factors to be considered : </li></ul><ul><li>nature and seriousness of the offence </li></ul><ul><li>defendant’s past criminal record </li></ul><ul><li>defendant’s ties with the community </li></ul><ul><li>defendant’s past record of surrendering to bail </li></ul><ul><li>bail can also be refused if necessary for the defendant’s own safety or welfare </li></ul>[REVIEW]
    26. 27. <ul><li>bail can be unconditional or conditions attached: eg. </li></ul><ul><li>report to police </li></ul><ul><li>reside at a specified address </li></ul><ul><li>abide by a curfew </li></ul><ul><li>bail refused? – defendant can renew application </li></ul><ul><li>AT THE NEXT HEARING, or appeal to Crown Court </li></ul><ul><li>bail granted? – prosecution can appeal if offence punishable by at least 5 years imprisonment – Bail (Amendment) Act 1993 </li></ul>
    27. 28. 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
    28. 29. Defendant / Accused makes appearance at court in the dock – in custody / on bail? - EAH Asked by the court's legal advisor to 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?
    30. 31. 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
    31. 32. '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
    32. 33. Defence version put by defendant or his / her representative solicitor - mitigating factors relating 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
    33. 34. NEWTON HEARING When any issue arises between the Prosecution and Defence concerning 'level' of guilt / involvement / actual actions of Defendant Which would affect the level of sentence imposed 'mini trial', not to determine guilt, but level of guilt and therefore sentence
    34. 35. MAGISTRATES / DISTRICT JUDGE DECIDES 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'
    35. 36. 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
    37. 38. 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
    39. 40. 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?
    40. 41. 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
    41. 42. 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 dock confirms not guilty plea
    42. 43. PROSECUTION CASE prosecutor 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]
    43. 44. '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
    44. 45. 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
    47. 48. 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 '
    48. 49. 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 ISSUES credit for guilty plea bail / time on remand probation report defence tactics other offences outstanding legal aid
    49. 50. '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]
    50. 51. if magistrates decide 'not suitable', for reasons of seriousness / nature of offence, for their limited powers ADJOURN 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
    51. 52. issues tactics advantages / disadvantages of choice / election prospects of aquittal time type of sentence on conviction severity of sentence loss of credit for plea some numpty barrister who hasn't read the brief delaying the inevitable for better custody privileges bail / period of remand legal aid
    53. 54. 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 s51CDA98 or via a related offence should they [youth] maintain a not guilty plea
    54. 55. 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
    56. 57. DATE FIXED FOR 'PAPER COMMITTAL' s 6(2) M agistrates Court Act 1980 as 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}
    58. 59. 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 1998 R 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 evidence LORD 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
    59. 60. {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 A ct 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
    60. 61. '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)
    61. 62. 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
    62. 63. 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
    63. 64. 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
    65. 66. 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]
    66. 67. 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 P reliminary Hearing date is fixed for a first appearance at the Crown Court when the judge will make 'Case Management Directions'
    67. 68. '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 procedure not subject to challenge most commonly used in sex offence cases and complex fraud VOLUNTARY BILL too rare to be of interest
    69. 70. [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.
    70. 71. 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
    71. 72. after a Magistrates finding of guilt after trial or a 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]
    72. 73. 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