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ALevel

Law 9084

Criminal Courts

Paper 1 & 2

Criminal Courts

Introduction

The two courts to handle criminal proceedings are the Court of Magistrates and the Court of the Crown. The actual court for the trial is decided by the type of crime associated with the charge. Summary offenses can be tried only at the Magistrates' Court; indictable offenses can be tried only at the Crown Court, whereas triable offenses can be tried at either court.

The plurality of suspects usually pleads guilty to the charge against them in both the Magistrates' Court and the Crown Court. The court's role in these cases is to decide what sentence the defendant should be sentenced to. Where the perpetrator pleads not guilty, the court's task is to try the case and determine whether or not the defendant is guilty; the burden of proof lies with the prosecution who must prove the case without a shadow of a doubt.

The type of the court hearing is an adversarial one, with prosecution and defense presenting their cases and cross-examining the witnesses of each other, while the role of the judge is effectively that of the referee, overseeing the trial and ensuring that the laws are properly followed. The judge can't investigate the case, nor ask for further witnesses.

13.1 Magistrates' Courts

Throughout England and Wales, there are about 400 Magistrates' Courts. There are district courts, so in many cities, there will be a Magistrates' Court, whereas large towns will have many courts. Each court deals with cases related to its geographic area and has authority over a number of criminal cases. Cases are considered by judges who may be either eligible district judges or unqualified lay judges. There is also a legally qualified clerk attached to each tribunal to advise the magistrates on the law.

13.1.1   Jurisdiction of the Magistrates' Courts

The courts had authority in a number of subjects as in criminal cases. They have a very substantial caseload and do the following: 

1.           Consider all of the reopened events.

2.           In the Magistrates' Court, pursue all triable-either-way charges that it is determined should be dealt with.

3.           These first two types reflect nearly 97 percent of all criminal cases.

4.           Start with all indictable crimes at the first trial. Such proceedings are then referred to the Crown Court.

5.           Deal with all the side matters connected to criminal cases, such as issuing warrants for Arrest the applications for bail and decide.

6.           Consider juvenile court cases where the victims are 10–17 regardless of sex.

Civil jurisdiction The courts of the Magistrates also possess some civil jurisdiction.

This includes:

• imposing tax requests from the council and granting admission and inspection warrants to gas and electricity authorities;

• Legal disputes involving criminal defense orders and compliance orders (NB Magistrate Courts can not issue divorces).

• Cases are pertaining to child welfare under the 1989 Children's Act.

• Seeking complaints regarding denial of selling of drug licenses.

13.1.2   Summary trials

These are the least severe criminal offenses and are subdivided into various' class' offenses-level one being the lowest level and level five being the highest level. Having rates allows for the establishment of a maximum fine for each stage, which is raised from time to time in line with inflation. The current maximum penalties derive from the 1991 Criminal Justice Act and are: category 1: overall £ 200; level 2: £ 500; level 3: £ 1,000; level 4:

£ 2,500, and 5th level: £ 5,000. Nevertheless, a corporation can be fined up to £ 20,000 by the magistrates for certain violations of environmental law and health and safety regulations. The current prison sentence that can be served in summary trial is six months, although the 2003 Criminal Justice Act gives power for this to be extended in the future to 15 months.

The court clerk must check the name and identity of the complainant at the outset of any trial and then inquire whether he pleads guilty or not guilty. Most than 90 percent of the offenders plead guilty in the court of the Magistrates, and the procedure is then associated with determining a fair punishment for the crime.

Guilty plea

The usual sequence of occurrences in which the defendant pleads guilty to a summary offense is 

1.     The CPS Crown Prosecutor or Deputy Prosecutor will provide a description of the case's evidence to the judge.

2.           The criminal is asked whether he agrees with those details (if he does not, the magistrates may need to hold an investigation, called a trial in Newton, to ascertain the evidence).

3.           The past record of arrests of the offender, if any, is submitted to the court.

4.           Certain information is given to the court about the history of the offender, including his financial position.
 
5.          The magistrates accept all appropriate reports; these could include a pre-sentence assessment written by a probation officer and/or a medical report on the mental health of the offender.

6.           The suspect or his counsel will then be able to explain some issues that could convince the magistrates to grant a lenient sentence. This is called mitigating speech.

7.           The penalty is determined by the Magistrates.

Not guilty plea

The process becomes lengthy and more complex when a suspect pleads not guilty, as both parties produce evidence to the judge. Since the burden of proof rests on the prosecution, the trial must continue–generally by making a short statement explaining what the case is about and what they intend to show. Then witnesses of the prosecution will be called one at a time to give evidence, and each prosecutor will question what he or she has seen and heard. This is also the examination in chief.

After a witness's chief examination is completed by the prosecution, the defense will then cross-examine that witness to test their evidence and attempt to demonstrate that it is not reliable. The prosecutor may also provide appropriate evidence, such as property that has been discovered in the defendant's custody or records that help establish the argument.
 
The defendant can appeal to the magistrates at the close of the prosecution case that there is no case to answer and that at this stage, the case should be dismissed. This is because the prosecution must prove the case, and it must be discarded if its testimony does not establish a case.

At this stage, only a very minor number of cases will be dismissed. The trial must proceed in the vast majority, and the defendant will have to show the court their facts. Typically the suspect himself can give evidence even though he doesn't have to. Nevertheless, since the 1994 Criminal Justice and Public Order Act, the magistrates have been free to draw their own conclusions from the reality that the perpetrator is quiet and does not justify his hand. If the complainant gives evidence, the prosecution will cross-examine him, as can all witnesses to the defense. The defendant will call any person to give evidence that it feels can further disprove the argument of the prosecution.

After all the proof has been given, the defense shall be entitled to deliver a speech attempting to point out to the magistrates the shortcomings of the case and trying to persuade them to acquit the defendant. Multiple statements are usually not allowed unless there is a point of law to complain over. Instead, the magistrates determine whether the defendant is guilty or not. When they prosecute, they can learn of his past record and can glance at records as well as receive a defensive statement in mitigation. Then they'll pass sentence.

If the courts dismiss the claim, the defendant is free to go and can not usually be charged again for that crime. And, if the convict can be retried, there is one clause. In a ' case-stated ' challenge, the defendant effectively argues against the acquittal.

13.1.3   Triable-either-way offenses


Plea before venue

The suspect is first questioned under the agreement before the location process if he pleads guilty or not. When he pleads guilty, then he has no right to ask to go to Crown Court even though the magistrates may still decide to send him for sentencing there.

Mode of trial

If the suspect pleads not guilty, then the magistrates must hold hearings on the' method of justice' and decide where the matter is to be heard. In this, the magistrates first decide whether they think the case is suitable for Magistrates ' Court trial in them and whether they are prepared to accept jurisdiction.

Under s 19 of the 1980 Magistrates ' Court Act, they shall consider the nature and severity of the situation, their own powers of a penalty, and any representatives of the prosecution and defense.

Cases involving complex factual or legal issues should be forwarded to the Court of Justice. Certain important considerations that can make prosecution more eligible for crown Court court include:

•            where there was a breach of trust by a person

•            where the crime was committed by an organized gang

•            where the amount involved was more than twice the amount, the magistrates can fine the defendant.

In unusual cases where the prosecutor is the Attorney-General, Solicitor-General, or the Director of Public Prosecutions, the magistrates must send the case to the Crown Court under s 19(4) of the Magistrates' Court Act 1980, if that is what the prosecution wants. In other cases, the wishes of the prosecution are just part of the matters that the magistrates must consider before they decide whether they are prepared to hear the case or whether it should be tried at the Crown Court.

Defendant's election

If the magistrates are prepared to accept authority, the suspect is then informed that he has the right to select trial by jury, but the magistrates the seek when he objects to this path. He is also informed, however, that if the case is heard by the magistrates and found guilty at the end of the case, the magistrates may refer him to the Crown Court for sentencing if they believe their disciplinary powers are inadequate.

13.1.4   Choosing trial by jury

As of 1997, in the plea-before-venue procedure, defendants pleading guilty to a triable-either-way offense at the Magistrates' Court have failed to decide to go to the Crown Court. This is fair as there will be no appeal of the prosecution, so the defendants do not lose the right to a jury trial. Defendants who pleaded not guilty have been given the right to choose how to proceed with the prosecution. This was seen as an essential part of civil liberty since jury-by-jury courts are seen as defending individual rights.

Not many suspects decide to go to Crown Court, though. It was notable that when all the defendants might vote to go to the crown court, fewer than one out of 20 decided to do so

Implications of choosing a jury trial

Many factors are involved in selecting the Crown Court as the court for prosecution by a criminal. The biggest reason for choosing the Crown Court is that a jury takes a verdict about guilt or innocence, and this gives a better likelihood of acquittal. Only 20% of the defendants who plead not guilty at the Magistrates' Court will be found not guilty by the magistrates, while 60% of those who plead not guilty are acquitted at the Crown Court. That is when the Crown Court counsel refuses to provide evidence against the defendant. This may be because the prosecutor accepts that the defendant is not guilty by the time the case enters the Crown Court, or it may be that evidence has declined or refused to come to court, and the state provides no evidence to proceed with the proceedings.

Other points to consider are the following:

•            There will be a long wait before the trial, and there will also be committal proceedings in the Magistrates' Court before the case goes to the Crown Court.

•            Cases at the Crown Court are more expensive, but the defendant is also more likely to get legal representation through the Criminal Defence Service.

•            If the defendant is represented, this must be by a barrister or solicitor with a certificate of advocacy giving rights of audience at the Crown Court.

•            There is a risk of a higher sentence if the defendant is found guilty in the Crown Court.

Research by Hedderman and Moxon found that on the recommendation of their attorneys, most suspects who preferred the Crown Court did so, and the main factor was the higher chance of an acquittal. Nevertheless, there were many considerations that affected the decision, including a desire to serve part of the sentence in a remand jail (where the offenders were in custody!)!

Should the right to choose trial by jury be kept?

Holding trials at Crown Court is far more expensive than holding trials at Magistrates' Court. Additionally, statistics show that many of the defendants who choose jury trial then go to Crown Court to plead guilty. This led to calling into question whether the accused should have the power to elect trial by jury in cases where they are charged with a triable-either-way offense. In addition, the fact that many crimes that used to be triable either way have been reclassified as summary offenses has already diminished this opportunity to a jury trial. These include the offenses of assaulting a police officer while carrying out his duties, driving while being suspended and drinking alcohol.

The government has tried to reduce the accused's right to a jury trial in the past. In 1999 and 2000, in triable-either-way cases, the Labor government tried to pass laws abolishing the right of the defendant to elect trial by jury. The House of Lords ruled against the law change on both occasions.

Later, in 2003, there were two provisions in the Criminal Justice Act, targeted at restricting jury trials. Another suggestion was for cases where an effort to tamper with a trial had already been made so that the jury had to be released. Where this happens, the defendant may insist that the jury be exclusively by the judge. That was enacted in s 44 of the 2003 Criminal Justice Act. The other proposal enabled the prosecution to apply for trial without a jury in lengthy or complex cases, or where there was a risk of interference from the jury.

In 2012 the Protection of Freedoms Act abolished this clause of the Criminal Justice Act 2003 without ever having come into effect.

The strong opposition to abolishing the principle to a jury trial is because this privilege is seen as a guarantee of the freedom of the people.

13.1.5   Sending cases to the Crown Court

The magistrates must officially send the case to the Crown Court, where the trial will be held at the Crown Court.

The matter is moved to the Crown Court directly from the first court hearing at the Magistrates' Trial regarding indictable crimes. This is provided for under s 51 of the 1998 Crime and Disorder Act. Magistrates will hold a plea before the venue for triable-either-way offenses and, if the defendant pleads not guilty, a mode-of-trial hearing. If it is agreed at this trial that the matter is to be heard in the Crown Court, then the magistrates will forward the argument to the Crown Court.

13.1.6   Committal for sentence

Magistrates can undertake to the Crown Court a defendant charged with a triable-either-way offense. Nevertheless, this will only take place if they feel that their abilities of punishment are insufficient after hearing the past history of the defendant at the end of a case.

The magistrates may take the view that the crime, or the mixture of crimes, is so severe that a larger sentence should be levied than they have the authority to execute. For instances of violent or sexual crimes, judges may be convicted because they feel a long prison term is needed to protect the public from serious harm.

The number of committals for penalty more than doubled after the implementation of plea before place. The magistrates send nearly 28,000 offenders each year to the Crown Court for sentencing. There are criticisms that judges commit too many defendants for sentence, as a significant percentage of those committed for sentence receive no more than the judge might have imposed on them.

13.1.7   The role of the clerk

Each magistrate bench is supported by a clerk, often known as a legal adviser. The oldest clerk in each trial must be at least five years' practicing barrister or solicitor. The clerk's job is to direct the magistrates on civil, realistic, and procedural matters. The judge guarantees the court meets the correct procedure. At the conclusion of a trial, for example, it is the lawyer who will question the client if he pleads guilty or not. The clerk is not supposed to engage in the decision-making process; that's the job of the magistrates. That implies that when they leave the court at the end of a case to consider their verdict, the clerk should not retire with the justices.

The senior clerk has been given greater powers to deal with routine matters that magistrates had to do previously. For example, now clerks can issue arrest warrants, extend police bail, adjourn criminal proceedings (where the defendant is on bail, and the bail terms are not changed), and conduct early administrative hearings.

13.2       Youth Courts

In the Youth Court, which is a division of the Magistrates' Court, young offenders aged 10 to 17 are dealt with. It is not possible to charge children under the age of 10 with a criminal offense.

There are some exceptional cases where young offenders can be brought to trial in the Crown Court. These are cases in which the defendant is charged with murder or homicide, rape, and dangerous driving, causing death. Additionally, in any case, where they are charged with a serious offense (usually one that carries a maximum prison sentence of at least 14 years for an adult), it is possible for those aged 14 and over to be sent to the Crown Court for trial.

The Youth court sits confidential, with only those involved in the case allowed to enter the courtroom. Press members may be present, but they can not publish any young offender's name or other information that could identify him, such as address or school.

The magistrates in those courts who sit on the bench must have had special training in dealing with young offenders. At least one female magistrate must be on the bench, and one male magistrate. The court procedure is less formal than in adult courts, and the parents or guardians of any child under the age of 16 are required to be present for the trial.

The court may also request parents of those 16 or 17 years old to attend.

13.3       Appeals from the Magistrates' Court

There is a system of routes of appeal available from a Magistrates' Court decision. The route used will depend on whether the appeal is solely on a point of law, or on other grounds. The two routes of appeal are to Crown Court, or Divisional Court of Queen's Bench.

13.3.1   Appeals to the Crown Court

This is the normal appeal route and can only be accessed by the defence. If at the Magistrates' Court, the defendant pleaded guilty, then he can only petition against the sentencing. If the defendant pleaded not guilty and was sentenced, then there may be an appeal of guilt and/or penalty. The defendant has an immediate right of appeal in both cases and does not need to be allowed to appeal.

The trial is completely reheard by a judge and two magistrates at the Crown Court. We can come to the same conclusion as the magistrates and uphold the verdict, or they can opt not to prove the case and revoke the judgment. In some cases, they can change the judgment and consider the offender guilty of a lesser crime.

Where the appeal is also against the sentence, the Crown Court can either confirm the sentence or increase or decrease the sentence. However, any increase in the case can only be up to the maximum powers of the magistrates.

There have been approximately 13,500 appeals to the Crown Court each year over the last few years, and judicial statistics published by the Ministry of Justice show that the appeal is allowed in approximately less than half the cases.

When it becomes evident that a point of law is to be determined, then the Crown Court may decide on that point of law, but there is the possibility of a further appeal by way of a case-stated appeal being brought before the Queen's Bench Divisional Court.


13.3.2   Case-stated appeals

These are appeals to the point of law that goes to the Divisional Court of Queen's Bench. This route of appeal may be used by both the prosecution and the defense, and it may be directly from the Magistrates' Court, or after an appeal to the Crown Court. It is asked that the magistrates (or the Crown Court) state the case by setting out their findings of fact and their decision. Then the appeal is argued on the basis of what the law is about those facts; there are no witnesses. The request is considered by a jury of two or three Queen's Bench Division High Court Judges, although a Court of Appeal justice may be part of the panel in some instances.

That method is only used against an indictment by the criminal, or against an acquittal by the court. It can not be used to bring the statement into doubt. The challenge is because they say that the judges made the wrong decision because they made a mistake regarding the law. The Divisional Court can retain, change, or reverse the decision or remit (send back) the case to the Court of Magistrates for the judges to enforce the law judgment.

There are usually less than 100 claims submitted each year by means of a case mentioned.

Further appeal to the Supreme Court

The ruling of the Queen's Bench Divisional Court calls for the prospect of an appeal to the Supreme Court (previously known as the House of Lords) as a step further. An appeal of this nature can only be made  

1. The  division believes and allows that there is a point of law that needs to be discussed by the supreme court (Remember precedent)

2.           The Divisional Court or the Supreme Court provides permission or leave to appeal since the issue or the point of law needs to be discussed by the higher courts, usually the Supreme court.

Here you can easily link it with the present chapter. Relate to the system of the hierarchy and explain how only the supreme court can give rulings on a point of law. 

One result of a dispute pursuing the path of appeal was C v DPP (1994). This case addressed the legal point on the assumption of children's criminal responsibility from the age of 10 to their 14th birthday. It had been accepted until this case that a child of this age could be convicted only if the prosecution proved the child knew he was doing wrong. The Divisional Court held that times had changed and that kids were more mature, and there was no need for the rule. They concluded that children of this era were expected to know the difference between right and wrong and that it was not appropriate for the prosecution to prove' mischievous ability.'

The matter was then taken to the House of Lords, who overruled the Divisional Court, claiming that the statute was still that a person of this age was considered not to realize he or she was doing anything, and thus not to have the requisite motive for any criminal offense. Only if the prosecution disproved that presumption by bringing evidence to show that the child was aware that what he or she was doing was seriously wrong could a child of this age be convicted. That decision was based on the fact that it was up to Parliament, not the judiciary, to make such a significant change to the law. The tribunals have history required.

13.4       The Crown Court

High Court Judges handled very serious criminal cases until 1971 when they toured the country holding Assize Courts. At Quarter Sessions, other indictable offenses were heard, which were intended to sit four times a year. This method became out-of-date and unable to deal with the growing number of criminal prosecutions–all Assizes and Quarter Sessions were discontinued after the 1969 Beeching Commission Report. The Courts Act 1971 set up the Crown Court as its place to deal with all proceedings that were not heard at the Magistrates' Court.

At the moment, the Crown Court sits across England and Wales in 77 different centers. There are three styles of Centers:

1.           First-tier

These happen all through the country at major centers. Of starters, Cardiff, Glasgow, Leeds, and Manchester have first-tier Crown Courts. There is a High Court and a Crown Court with separate civil and criminal judges at each court. High Court Judges, as well as Circuit Courts and Recorders, indefinitely serve the Crown Court, and the court is able to deal with all forms of offenders triable on the arrest.

2.           Second-tier

This is only a Crown Court, but High Court Judges often sit there to handle criminal cases, as well as Circuit Courts and Recorders. All classifications of criminal triable may be tried here on indictment.

3.           Third-tier

Only the Circuit Judges and Recorders employ this. The most serious cases, such as murder, homicide, and rape, are usually not tried here because there is no High Court Judge to deal with them.

13.4.1   Preliminary matters


The indictment

This is a report formally setting out the accusations against the defendant. Even though the accused will have been sent to trial for various crimes, the indictment may be drawn up for any offense revealed in the witness statements. In more complicated cases, the indictment could be for multiple counts.

Criminal Procedure Rules

Rules of criminal procedure for dealing with all aspects of criminal cases entered into force in April of 2005. The overriding objective of the Rules is to 'justly deal with criminal cases. '

Disclosure by prosecution and defense

The 1996 Criminal Procedure and Investigations Act grants all parties a duty to make those issues clear to each other. The lawyer, who has already issued the declarations in the protection of all the facts they plan to use in the trial, must also reveal previously undisclosed information' which in the view of the plaintiff may reasonably be considered capable of weakening the prosecution case against the convicted.' This is intended to prevent the kind of miscarriage of justice that took place in the case of Stefan Kiszko by "hiding" something that could serve to confirm the defendant's innocence.

For cases to be charged on trial, the 1996 Act often places an obligation on the defendant. In these, after the main declaration of the indictment, the defendant will send the court a written statement spelling out:

•            the nature of the accused's defense, including any particular defenses on which he intends to rely

•            the matters of fact on which he takes issue with the prosecution and why he takes issue

•            any point of law which he wishes to take, and the case authority on which he will be relying.

Also, the defendant must give details of any alibi and the witnesses he intends to call to support that alibi. Such knowledge helps the prosecutor to carry out criminal investigations of alibi witnesses.

Plea and case management hearing

Under the Code of Criminal Procedure, the majority of cases sent to the Crown Court are met with first in a trial on mitigation and case handling (PCMH). A PCMH's main aim is to determine whether or not the defendant pleads guilty or not. All accusations on the complaint are read out in open court to the suspect, and he is told if he pleads against each accusation, this process is called the 'arraignment.'

If the accused pleads guilty, the defendant will be convicted automatically by the court if necessary. This means that the defendants who plead guilty won't have to wait unnecessarily long for their case to be brought to court.

Where a suspect pleads not guilty, the court may ask the prosecutor and plaintiff to describe the key issues involved in the case, both truth and statute. He will then provide the instructions required to arrange the actual trial; for example, the prosecution and defense can decide that some plaintiffs do not need to go to court because their testimony is not in doubt. There is also agreement on other points, such as whether a video link should be used for any witness. The PCMH's mission is to improve the actual trial phase to ensure the time on irrelevant points is not lost. This helps the judge to prepare their collections, too.

The Rules of Criminal Procedure provide for active case management. For Crown Court case management contains:

•           The real issues must be defined and determined as soon as possible. 

•            The identification must be backed by the witnesses.

•           You must have certainty at your end to know what must be done,  by whom it must be done, and when it must be done. in particular by the early setting of a timetable for the progress of a case

•            It’s a must to monitor the proceedings of the case and if they are in compliance with the law

•            Make sure that the evidence, whether disputed or not, is presented in the shortest and clearest way.

The full Criminal Procedure Rules are available online on the Ministry of Justice website, www.justice.gov.uk.

13.4.2   The trial

It is common for a defendant who appears at the Crown Court to be represented, usually by a barrister, although attorneys who have an advocacy certificate can also appear at the Crown Court. Defendants should assert themselves, but there was uncertainty about the impact this could have on plaintiffs who were lengthily cross-examined in court by a defendant. As a consequence, the Child Justice and Criminal Evidence Act 1999 bans in-person cross-examination of accused persons charged with sexual crimes, or where a victim complainant remains.

The order of events will normally be at the trial where the defendant pleads not guilty:

1.       the jury will take the oath before they try the case. 

2.           The prosecutor must make an opening statement to the jurors outlining what the evidence is and what they plan to show. Remember that always the prosecution will establish the case first.

3.           The prosecution witnesses shall give testimony and may be cross-examined by the defense; the prosecution shall also provide every other evidence, including documents or video recordings.

4.       At the closing of the trial case, the defense may argue that there is no claim to be put before the jury; if the judge determines that there is no case, it shall order the jury to acquit the defendant.

5.       The defense can make an opening statement so that they intend to give testimony other than that of the defendant.

6.           The defense witnesses present evidence and are cross-examined by the prosecution; the accused doesn't have to give evidence in court, but the judge could report on the inability to do so in his summing-up to the jury.

7.           The prosecutor gives a final statement to the jurors, setting out the intensity of the prosecution case.

8.       The defendant shall make a final statement to the jury, pointing out the shortcomings of the case 

9.           The judge shall outline the dispute to the jury and refer it to any relevant law.

10.       The jury steps down to make their decision in private.

11.         the jury presents their verdict in front of the open court. 

12.       If the verdict is found guilty, the judge shall sentence the convicted; if the verdict is not found guilty, the accused shall be acquitted

Generally, he can never be tried again for that offense once a defendant is found not guilty. However, if' new and compelling evidence' comes to light, the Criminal Justice Act 2003 removes this' double jeopardy' rule for serious cases, so that a defendant can be tried a second time. In the situation, the DPP will agree to restart proceedings. Once the evidence has been found, the defendant must appeal the initial acquittal to the Court of Appeal to be quashed.

This power was used in cases where new DNA testing techniques now show that an acquitted defendant is, in fact, the offender. The example shows the first situation in which this control was used.

Two men who had originally been cleared of black teenage homicide, Stephen Lawrence, were retried in 2011 and sentenced over 19 years after the crime. Part of the new evidence has been a DNA match with Stephen's blood found on one of them's clothing. Because of improved DNA testing techniques, this evidence became available.

13.5       Appeals from the Crown Court

It is essential that appropriate routes of Appeal should be available. An appeal process's functions serve not only to protect the defendant from a perversion of justice but also to enable uniform law development.

13.5.1   Appeals by the defendant

The applicant can appeal to the Court of Appeal (Criminal Division) against prosecution and/or sentencing. Therefore, his counsel will warn him about the prospect of an appeal at the conclusion of any case in which a crime has been found guilty.

Leave to appeal The guidelines on appeals were laid down in the 1995 Criminal Appeal Act, and in all instances, the convict must seek to leave to appeal from the Court of Appeal or a declaration that the matter is fit for Appeal from the judge of the court. The idea of having to get a leave is to filter out cases that are without merit and save time for the court.

The petition for leave to Appeal is treated in private by a sole Court of Appeal judge, although it is possible to apply for leave before a complete Court of Appeal if he fails. It is difficult to get leave to appeal–in 2011, a single judge considered 4,606 applications, but in only 1,284 cases (less than 30 percent) leave to appeal was granted. Even if a defendant gets leave to appeal, that doesn't mean the actual Appeal is going to be a success. Only one-third of offenders on the petition of prosecution is successful in their challenges.

The Criminal Appeal Act 1995


The Criminal Appeal Act 1995 simplified the grounds under which the court can allow an appeal. The Act states that the Court of Appeal:

(a) 'shall allow an appeal against conviction if they think that the conviction is unsafe, and

(b)         shall dismiss such an appeal in any other case.'

Because the Human Rights Act 1998 incorporated the European Convention on Human Rights into our legislation, the Court of Appeal has adopted a broad approach to the meaning of 'unsafe. 'In particular, a conviction was held as being 'unsafe' where a fair trial was denied to the defendant.

New evidence

All additional evidence would seem to be convincing and would provide a foundation for an appeal. This must be addressed in connection with whether the evidence would have been admissible and why it was not generated at that point.

Court of Appeal's powers

The COA can permit an appeal by a defendant and quash the conviction. Instead, the sentence could differ from that of a lesser offense the defendant might have been convicted by the jury of. As far as punishment is concerned, on the Appeal of the convict, the court can decrease but not raise it. The court can opt to reject the Appeal if the Appeal is ineffective.

The Court of Appeal also has the authority to order a retrial of the proceedings to be tried before a different jury. It was given the power in 1988, but was not immediately exercised frequently; for example, only one retrial was requested in 1989. However, their usage has increased, ordering between 50 and 70 retrials each year.

13.5.2   Appeals by the prosecution

The prosecution previously had no right to bring an appeal against either the Crown Court decision or penalty issued. Gradually, though, Parliament has given it certain limited rights of Appeal.

Against an acquittal

For two small exceptions, the defendant can not file an appeal against a jury decided that it is not guilty. An exception is in situations where the acquittal was the product of being' nobbled' by the judges or witnesses, i.e., where certain jurors are bribed or intimidated by the defendant's friends. In these cases, the Criminal Procedure and Investigations Act 1996 requires an appeal to be taken to the High Court for an injunction quashing the acquittal, given there is a real indictment for jury nobbling. Once the acquittal has been quashed, the prosecution may then commence new proceedings for the same offense. Never before has this ability been used.

one more exception is where the plaintiff may demand an acquittal to be quashed because the complainant has 'fresh and compelling evidence.'

Referring a point of law

Though, in cases where the defendant is acquitted, the prosecution has a special right of reference. This is according to s 36 of the 1972 Criminal Justice Act, which requires the Attorney General to refer a point of law to the Court of Appeal for the purpose of obtaining a law decision. The Court of Appeal's decision on that point of law does not affect the acquittal but creates a precedent for any future case that involves the same point of law.

Against sentence

Under s 36 of the Criminal Justice Act 1988, the Attorney-General can seek permission to appeal an unduly lenient penalty for re-sentence to the Court of Appeal. Initially, this authority was only used for indictable crimes, but in 1994 it was expanded to many triable-either-way offenses, so the court of the crime was conducted at a Crown Court. In a number of cases, this capacity is used each year efficiently. The amount of such referrals has recently gone up.

The main problem is: how does the Attorney-General learn of cases that should be brought before the Court of Appeal? In reality, each year, about 300 prosecutions are brought to the attention of the Attorney General, most of which are referred to him by the Crown Prosecution Service. It is also true for the public to contact the Attorney-General's office, and in this way, a small number of cases are reported a year, usually by distressed relatives of the crime victim, who feel that the original sentence was insufficient. Parliament members will also sometimes refer cases on behalf of the aggrieved constituents to the Attorney General.

Whenever a case is forwarded to the Attorney General, he will examine the trial papers and decide whether to refer the case to the Court of Appeal.

In 2011, the Court of Appeal heard 118 cases referred by the Attorney General. Sentences were raised in 98 of these cases. The trial involved one convict whose term was extended from 3.5 years in prison to 11 years in prison for two sex offenses.

13.5.3   Appeals to the Supreme Court

Both the prosecution and the defense the Appeal to the Supreme Court from the Court of Appeal, but it is important that the case is recognized as having a point of law of general public interest, and that the Supreme Court or the Court of Appeal be allowed to appeal. Supreme Court heard very few criminal appeals. In 2011, 12 petitions for leave to Appeal were considered, but in only seven of these, leave was granted.

References to the European Court of Justice

Where a question of European law involves a dispute, any court may refer the matter to the European Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union. Though, in criminal cases, this is a fairly rare occurrence, as most criminal law is purely' domestic' and is not affected by European Union law.

13.6       The Criminal Cases Review Commission

A large number of miscarriages of justice that had not been resolved through the usual appeal system culminated in calls for a disciplinary agency. It was clear that the Home Secretary had the right to review cases and appeal them to the Court of Appeal, but incidents such as the Birmingham Six and Judith Ward had people feeling the Home Secretary was not fully separate from Parliament. When considering the question, the Runciman Commission recommended the establishment of an independent review body to consider possible miscarriages of justice. This recommendation was implemented through the 1995 Criminal Appeal Act, which established the Criminal Cases Review Commission.

Powers

The Commission has the authority to investigate possible miscarriages of justice (including summary crimes) and return cases to the courts. There has always been a challenge to the Court of Appeal for the Commission to be able to refer a case, although the Commission has a right to refer a case when' exceptional circumstances occur.'

Furthermore, the Court of Appeal may order the Commission of inquiry and report to the court on any subject before it in an appeal if it feels that an inquiry is capable of helping the court resolve the Appeal.

The Queen appoints the members of the Commission-at least one-third of them are legally qualified, and at least two-thirds have applicable criminal justice system expertise. We have about 60 support staff, triple the number commonly used for such jobs in the Home Office. Nonetheless, officers are doing most of the re-investigation research. This is found to be unsatisfactory, as it does not necessarily make such a re-investigation separate, although it is true to say that as a consequence of inquiries by other police forces, many of the alleged miscarriages of justice have come to light.

Work

At the beginning of April 1997, the Criminal Cases Review Commission took over the inquiry into the miscarriages of justice.

Although some proceedings have been recommended by the Court of Appeal and others have been found by the Commission itself, the vast majority of cases it reviews are called to its notice by victims themselves or by relatives of the defendants. Some of the first incidents it examined, such as Derek Bentley's trial, were suspected miscarriages of justice about 40 years ago. In 1953 Bentley was hanged for murder, but owing to his youth, his co-defendant, Craig, who actually fired the fatal shot, was not hanged.

Several attempts have been made over the years to have the trial revived, but it was not until the Criminal Cases Review Commission took over the investigation that the matter was appealed back to the Court of Appeal. In July 1998, the Court of Appeal held that the judge's summing up at the trial was not fair and quashed the conviction.

Referrals to the Court of Appeal

Through 2012, the Committee for Criminal Cases Assessment had issued more than 15,000 submissions. The Commission refers 504 appeals to the Court of Appeal, of which 461 had been considered, and in 325 cases, the sentences quashed.

Cases that attracted a lot of attention included that of Sally Clark, who, in 2003, had quashed her prosecution for killing her two babies after the scientific evidence appeared to be faulty. Sion Jenkins' conviction for his foster daughter's murder was quashed in 2004, also due to flawed scientific evidence.

In 2012 Sam Hallam's conviction for murder was quashed. Sam, who was only 17 when convicted, had always insisted on not being at the murder scene. A review of the evidence by the Commission revealed that pictures of Sam's mobile phone showed he was not present at the attack. During their investigation into the murder, the police had failed to examine his mobile phone.

COMMENT        

The existence of the Criminal Cases Review Commission represents a major change in the old system in which only the home secretary had the authority to report cases to the Court of Appeal. The home secretary rendered very few recommendations, whereas, by 2012, more than 500 had been applied to by the Criminal Cases Review Commission. Of these, the Court of Appeal quashed some three-quarters of the sentences. In many more instances, the framework now requires justice to be done.

Yet the program still has issues. To deciding to appeal a case, the Commission will acknowledge that if a reference is to be made, there is' a real possibility' that the judgment would not be accepted by the Court of Appeal. Which ensures the Commission will' second-guess' what the appeal court will do.

It is noteworthy that the Scottish Commission was set up after larger authority had been granted to the Commission for England and Wales. The Scottish Commission may refer a case if it considers' (a) that there may have been a miscarriage of justice and (b) that a referral should be made in the interests of justice.' There is a strong argument for having the Commission the same authority as the Scottish Commission for England and Wales.

There are also concerns about what is required to be accepted by the Criminal Cases Review Commission in reaching a determination whether to appeal or not.

There must be proof or a claim that was not brought forward at the court or on Appeal. This ensures that a comparison can not be rendered if the issue was addressed at the court or on Appeal but not treated properly.



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