Judges: a Summary

The Role of the Judges

• Judges play a central role under the British Constitution playing a vital but sensitive role in controlling the exercise of power by the state

Judicial Hierarchy

• At the head of the judiciary is the President of the Courts of England and Wales. The most senior judges are the 12 Lords of Appeal in Ordinary. They currently sit in the House of Lords and the Privy Council. At the next level down sitting in the Court of Appeal are 37 judges known as Lord Justices of the Appeal and Lady Justices of Appeal

A reduced role for the Lord Chancellor

• With the passing of the Constitutional Reform Act 2005, four major changes to the role Lord Chancellor have been introduced. As a result, he or she will no longer:
• Sit as a judge
• Head the judiciary
• Take a central role in the judicial appointments process
• Automatically become the speaker of the house

Appointing the Judges

• The way in which judges are appointed has been radically reformed by provisions in the CRA 2005. The Act contains provisions for the establishment of a new Judicial Appointments Commission. It is hoped that the creation of this body will help to put an end to the breaches of the principle of the separation of powers and reinforce judicial independence. Depending on their rank, judges are appointed by the Queen on the advice of the Prime Minister or by the Lord Chancellor, taking into account the opinion of other judges

Training

• Training is provided by the JSB

Termination of appointment

• There are five ways in which a judge may leave office:
• Dismissal
• Discipline
• Resignation
• Retirement
• Removal due to infirmity

Independence of the judiciary

• In our legal system great importance is attached to the idea that judges should be independent and seen to be independent. s3 of the Constitutional Reform Act 2005 states:

"The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary"

Criticisms of the judiciary

• Judges are overwhelmingly white, male, middle to upper class and frequently elderly. This leads to accusations that they are unrepresentative of the society they serve. The appointments process has been criticised for being dominated by politicians, secretive and discriminatory. Judges receive very little training. There are real concerns that the independence of the judiciary is not sufficiently protected. The academic, Griffith, has accused judges of being biased towards the interests traditionally represented by the right wing of the political spectrum. The lawyer Helena Kennedy has argued that many judges have an outdated attitude towards women and are sometimes prejudiced against them. There is also some concern that some judges are Freemasons and that this impairs their impartiality, both in the selection of judges and also possibly in their work as judges 

Legal Personnel: Judiciary

Objectives:

• Explain the role of judges and the judicial hierarchy
• Explain how judges are appointed
• Describe the training of judges
• Explain how the judiciary is regulated
• Critically evaluate the constitutional position of judges
• Discuss the role of judges in relation to the Rule of Law

Role of Judges

• The role of judges is to apply the law as stated by Parliament in an independent manner. Parliament is the supreme law maker and so courts cannot question the law, but merely interpret it
• s2 Human Rights Act 1998 - judges should 'take into account' decisions of the European Court of Human Rights
• s3 Human Rights Act 1998 - all legislation should be interpreted in a way which is compatible with the European Convention on Human Rights
• Judges preside over both civil and criminal cases. In criminal cases, the issue of guilt will be decided by a jury, and the judge will pass sentence. In most civil cases, the judge will decide the issue of liability and the amount of damages to be awarded
• The establishment of the Supreme Court under the Constitutional Reform Act 2005 means that the superior judges are completely separate from Parliament. This creates an independent judiciary which is a fundamental principle under the Rule of Law 
• The Constitutional Reform Act 2005 also changed the role of the Lord Chancellor as it too was seen to be in conflict with the separation of powers. The Lord Chancellor is now known as the Minister of Justice

Hierarchy

• The Lord Chief Justice is the head of the judiciary
• Superior Judges (from the top)
• Justices of the Supreme Court (Supreme Court)
• Lord Justices of Appeal (Court of Appeal)
• High Court Judges (High Court)
• Inferior Judges
• Circuit Judges, District Judges, Recorders (part time) - (Crown Court)
• Circuit Judges, District Judges, Recorders (part time) - (County Court)
• District Judges (Magistrates Court)

Selection of Judges

Pre Constitutional Reform Act 2005	Post Constitutional Reform Act 2005
Lord Chancellor selected judges based on the opinions of existing judges Lord Chancellor would decide on who to appoint, and that person would be invited to become a judge This process was seen as very secretive Lord Chancellor was a political appointment and so was not free from political influence	Recruitment of judges is now managed by the Judicial Appointments Commission Judicial posts are now advertised and candidates must apply Appointments process is now completely separate from the political influence of the government Lord Chancellor is still involved in appointment of superior judges, but in a very minimal way

Judicial Appointments Commission

• There are 15 members of the Commission; membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public
• The Commission recommends five judicial qualities for a good judge
• Intellectual capacity
• Integrity, independence of mind, sound judgment, decisiveness, objectivity and willingness to learn
• Ability to understand and deal fairly
• Authority and communication skills
• Efficiency
• Appointments are now made solely on merit and posts are widely advertised to encourage a wide range of candidates to apply
• The amount of time that a candidate has to have worked in the law has been reduced to increase the pool of potential candidates and to encourage applications from solicitors, barristers and tribunal judges

Criticism

• A huge criticism of the judiciary has always been that it is dominated by Oxbridge educated, old and upper class males. The system of selection under the Constitutional Reform Act 2005 has gone some way to addressing the issue

Judicial Diversity Statistics - April 2016

• 21% of Court of Appeal judges are female
• 21% of High Court judges are female
• 28% of all other judges are female
• 34% of judges are from non barrister backgrounds
• Judges in lower courts are more likely to come from a non barrister background
• 6% of judges identify as Black, Asian and Minority Ethnic
• There is only one female Justice of the Supreme Court - Lady Brenda Hale

Judicial Training

• Training of judges is carried out by the Judicial College, set up in 2011
• There are three main elements to judicial training
• knowledge of substantive law, evidence and procedure
• the acquisition and improvement of judicial skills
• the social context within which judging occurs
• On first appointment, judges go through an induction programme, and will be assigned a mentor; usually an experience judge
• Judges are expected to participate in continuing professional development through the completion of seminars and e-learning which teach judges about developments in legislation and 

Judicial Independence

s3 Constitutional Reform Act 2005 guarantees judicial independence and states that this must be upheld at all times

• Judges are free from influence from the legislature - judges are not allowed to be MPs
• Judges are free from influence from the government - they can make decisions which may displease the government without the threat of dismissal
• (Case Study: Court ruling that Parliament must vote on the process of the UK leaving the EU: http:/www.bbc.co.uk/news/uk-politics-37857785)
• Judges should be free from political bias, but there are cases which show that judges tend to support the government
• (Case Study: GCHQ case (1984), the 'Spycatcher' case (1987))
• Judges can declare UK legislation incompatible with the European Convention on Human Rights which will force the government to change the law
• (Case Study: A and another v Secretary of State for the Home Department (2004))

Dismissal and Retirement of Judges

• Judges usually retire at the age of 70
• Judges have to be independent, so it is important that they have security of tenure, which means they should not be at risk of removal just because the government may not agree with their decisions
• Case Study: In 2013, Judge Peter Bowers refused to jail a paedophile for accessing images of child abuse, saying "he'd have a hard time in prison"
• However, judges can be removed from office by the Judicial Conduct Investigations Office, who deals with all issues of judicial discipline, if any allegations of misconduct are upheld
• Case study: "Three judges removed and a fourth resigns for viewing pornography at work", The Guardian. 17th March 2015
• Inferior judges do not have the same security of tenure as superior judges, and the Lord Chancellor has the power to dismiss any inferior judge for incapacity or misbehaviour

Legal Personnel: Barristers, Solicitors and Legal Executives

Objectives:

• Explain the role of solicitors and barristers
• Explain the qualifications and training of solicitors and barristers
• Discuss the way in which recent reforms have led to a more fused profession
• Evaluate the social background of solicitors and barristers
• Discuss the role of legal executives and paralegals within the legal system

Role of Solicitors

• There are over 130,000 solicitors practiaing in England and Wales
• Solicitors' governing body is the Law Society and all practising solicitors must be a member
• Solicitors are regulated by the Solicitors Regulation Authority
• Solicitors are considered general practitioners of the law
• They can work in private practice or be employed by organisations such as the Crown Prosecution Service
• Most of solicitors' work comes from conveyancing, drawing up wills, drafting contracts, writing letters and family and matrimonial work
• Solicitors do almost all advocacy in the Magistrates' Court, but have also developed full rights of audience since the Access to Justice Act 1999, subject to accreditation under the Quality Assurance Scheme for Advocates

Solicitors' Training

There are different ways to become a solicitor:

1. Law Degree - Legal Practice Course (one year) - Training Contract (two years)
2. Degree in another subject - Graduate Diploma in Law (one year) - Legal Practice Course (one year) - Training Contract (two years)
3. 4 GCSEs - ILEX Professional Diploma - ILEX Higher Professional Diploma - Legal Practice Course (one year) - Fellow of ILEX OR Training Contract (two years)

Graduate Diploma in Law (one year)

This is for those students who have not got a degree in Law. If they have a degree in another subject, they spend this year learning the core legal modules

Criticism: Ormrod Committee reported in 1971 that one year of legal education was not sufficient and that the main entry into the legal profession should be through a law degree. It is also expensive to undertake this course on top of what would already have been an expensive degree

Legal Practice Course (one year)

This is a vocational course which teaches students the key skills needed to become a solicitor, to include client interviewing, drafting documents and letters and negotiation. It also includes administration skills such as finance, marketing and the running of a solicitor's firm

Criticism: the cost of the LPC is exceptionally high, averaging around £9,000 for the year. With graduates already having debts from University, it is argued that it is too expensive for many students

Training Contract (two years)

This is where the student will work in a solicitors' firm for two years, getting practical experience. The trainee will be paid, though not as much as a fully qualified solicitor. There is also the requirement that the trainee solicitor attends a 20 day Professional Skills Course where the student builds on the skills learned on the LPC

Criticism: There is a huge problem with over supply and many graduates of the LPC cannot get a training contract

Role of Barristers

• There are nearly 13,000 barristers practising in England and Wales
• Barristers' governing body is the General Council of the Bar and all practising barristers must be a memeber of one of the four Inns of Court: Lincoln's Inn, Inner Temple, Middle Temple or Gray's Inn
• Barristers are regulated by the Bar Standards Board 
• Barristers are usually self-employed, although they share chambers with other barristers and share a clerk
• Barristers are considered advocacy specialists, and work under the cab rank rule - this means that a barrister cannot turn down a case with their specialism
• Barristers have rights of audience in all criminal courts, subject to accreditation under the Quality Assurance Scheme for Advocates. It used to be the case that anyone who needed a barrister had to go to a solicitor first, but from 2004 Bar Direct anyone can gain direct access to a barrister for civil cases

Barristers' Training

1. Law Degree - Membership of an Inn of Court (Attend 12 times) - Bar Professional Training Course - Call to the Bar - Pupillage 2 x 6 months
2. Degree in another subject - Graduate Diploma in Law (one year) -Membershipof an Inn of Court (Attend 12 times) - Bar professional Training Course - Call to the Bar - Pupillage 2 x 6 months
3. Non-graduate mature student - Graduate Diploma in Law (two years) - Bar Professional Training Course - Call to the Bar - Pupillage 2 x 6 months

Membership of an Inn of Court

You can choose to dine 12 times at the Inn of court, or you can take part in a weekend residential course. This gives students the opportunity to meet senior barristers and judges and immerse themselves in the traditions of the profession

Bar Professional Training Course (one year)

This is a vocational course which teaches students the key skills needed to become a barrister, with a heavy focus on advocacy, as well as other skills such as conferencing, drafting, opinion writing and resolution of disputes outside of court. Students will have to complete a Bar Aptitude Test on application to make sure only those who are likely to succeed gain a place on the course

Criticism: In April 2015, the Chair of the Bar Council raised concerns about the financial risk involved in taking the course, claiming that "there are too many people spending too much money in order to train...with no realistic prospect of being able to make a start in the profession". In London, the cost of the BPTC can be up to £20,000

Pupillage (2 x 6 Months)

This is the practical stage of the training where the trainee barrister becomes a 'pupil' barrister to a qualified barrister. The first six months involves students observing their 'master' (kinky) in court and assisting with related paperwork. In the second six months of pupillage, each pupil is responsible for a personal case load

Queen's Counsel

Barristers are eligible to become Queen's Counsel after 10 years of practice as a 'junior' barrister

• Solicitors and barristers are both eligible for promotion to Queen's Counsel if they have the required qualifications and experience
• QCs are informally referred to as 'silks' because they are eligible to wear gowns made of silk
• To become a QC, you have to have higher rights of audience and demonstrate the competencies in the Competency Framework to a standard of excellence
• In 2016, there were 254 applications for QC
• 76% male, 22% female
• 93% were barristers

Diversity in the Legal Profession:

	Solicitors	Barristers
Gender: Female:                Male:	65% 35%	35% 65%
Ethnicity: White:  BAME:	71% 23%	79% 11%
Age: <25 25-34 35-44 45-54 55-64 >65	5% 36% 29% 20% 10% None	0.42% 22% 30% 19% 6% 2%
School attended: Fee Paying: State:	29% 71%	44% 56%

Law Society Diversity and Inclusion Charter:

"The charter was established in 2009 by the Law Society, BT and the Society of Asian Lawyers and is designed to help firms and practices turn their commitment to diversity and inclusion into positive, practical action for their businesses, staff and clients.

This is achieved by helping practices to record and measure their practices, policies and procedures against a set of diversity and inclusion standards and by providing them with opportunities to share best practice advice and guidance with colleagues from across the profession"

Diversity Access Scheme:

The Law Society Diversity Access Scheme supports people from low socio-economic backgrounds who want to become solicitors

The scheme offers 10 diversity scholarships each year. Each place includes:

• a bursary to fund your Legal Practice Course (LPC)
• work experience
• mentoring support

To apply one must meet a range of criteria. You must have no more than £5,000 in saving and must also have:

• had free school meals
• gone to a non fee-paying school
• been the first generation of your family to attend higher education

If you cannot show the above, you must tell them about exceptional circumstances that have made it hard for you to become a solicitor. These can be linked to your:

• gender and/or gender identity
• ethnicity
• sexual orientation
• disability and/or long-term health condition
• education
• other personal obstacles

Regulation of Barristers

• Solicitors are regulated by the Solicitors Regulation Authority whose purpose is to protect the public by:
• Ensuring solicitors meet high standards
• Acting when risks are identified
• They make sure that solicitors adhere to the principles set out in the Authority's Code of Conduct
• It has the power to fine up to £2,000, issue a written reprimand, close a firm, and prosecute in the Solicitors' Disciplinary Tribunal which has the power to suspend a solicitor from practise or strike off a solicitor from the Roll of Solicitors

Regulation of Barristers

• Barristers are regulated by the Bar Standards Board whose purpose is to regulate barristers and their professional practice
• They make sure that barristers adhere to the principles set out in the Board's Code of Conduct and can discipline any breaches of the Code
• If the matter needs to be referred to the Disciplinary Tribunal. It has the power to fine up to £50,000, issue a written reprimand, make the barrister complete further development training, suspend the barrister for up to 12 months from practise or disbar the barrister
• They are responsible for:
• setting the education and training requirements for becoming a barrister
• setting continuing training requirements to ensure that barristers' skills are maintained throughout their careers;
• setting standards of conduct for barristers
• handling complaints against barristers and the organisations they authorise and taking disciplinary or other action where appropriate

Complaints

• Created by the Legal Services Act 2007
• Completely independent of other regulatory bodies
• The chairman is a non-lawyer and the majority of members must also be non-lawyers
• It deals with complaints against all sectors of the legal profession about poor service
• The Office for Legal Complaints also set up the Legal Ombudsman in 2010 which can make decisions about complaints. The Legal Ombudsman has the power to make the legal professional:
• apologise to the client
• put things right if additional work can correct the problem
• refund or reduce any legal fees
• pay compensation up to £30,000

Legal Services Act 2007

Alternative Business Structures

• Prior to the Legal Services Act 2007, solicitors and barristers could not work together and there were restrictions on who could offer legal services
• The Legal Services Act 2007 allowed anyone to apply for a licence from the Legal Services Board to set up a legal firm. This means solicitors and barristers can enter into business with non-lawyers. Critics dubbed it "Tesco Law" because the idea is that you can pick up legal services with your shopping and the whole system becomes more accessible
• Companies currently licensed as ABSs include the Co-Operative, AA, Saga, Direct Line and BT

The Move Towards Fusion

The UK is one of the few legal systems that operate separate legal professions, so what are the arguments for and against fusing the professions?

Arguments in favour of fusion

• Reduced costs, as only one lawyer would be needed instead of a solicitor and a barrister
• More efficient, as only one person would be doing the work resulting in less duplication
• More continuity as the same person deals with the case from start to finish
• We are one of the only legal systems that operates a divided legal profession

Arguments against fusion:

• Possible decline in the area of specialism, especially in relation to advocacy
• Loss of the independent Bar
• A barrister currently provides a second opinion, fusion would lead to a loss of objectivity
• Cab Rank rule would also be lost - could this result in people being without representation?

Legal Executives

• Legal Executives are qualified legal professionals who have passed the Chartered Institute of Legal Executives (CILEx) examinations
• The qualifications are in two stages:
• Level 3 Professional Diploma in Law and Practice (equivalent to A-level Law)
• Level 6 CILEx Diploma in Law and Practice (equivalent to a degree)

In addition, the trainee has to complete three years' vocational experience in a solicitor's firm, during which time they usually work as a paralegal

• When the qualifications have been achieved, the student can become a Chartered Legal Executive if they have been admitted as a Fellow of CILEx
• Fellows can appear for clients in certain courts and can apply for appointment to the judiciary as a deputy or district judge

Legal Personnel: Magistrates

Objectives:

• To explain the role of magistrates within the criminal justice system
• To explain the selection, appointment and training of magistrates
• To discuss the social, racial and gender composition of the magistracy
• To evaluate the arguments for and against magistrates
• To discuss the reforms to the magistracy

Lay Magistrates

• Lay magistrates are volunteers who are not legally qualified. They sit in benches of three in the Magistrates Court and make up 80% of the judicial community
• As of 1st April 2016, there are 17,552 lay magistrates in England and Wales. They are sometimes also referred to as Justices of the Peace
• They do not get a salary but will receive expenses, for example for travel and subsistence and a loss of earnings allowance
• They are required to do a minimum of 26 half day sittings (13 days) per year
• Magistrates use Sentencing Guidelines and case law to assist them to reach decisions about sentencing
• Once appointed a magistrate is assigned to a Local Justice Area which is near their home or work, but they all have national jurisdiction under the Courts Act 2003 
• There is approximately the same number of male and female magistrates

Criminal Jurisdiction

• Magistrates hear 95% of all criminal cases, they usually try summary offences, such as lesser serious assault and criminal damage, drink driving and football offences. They also deal with lots of traffic cases such as no insurance, failing to stop at an accident , defective tyres etc. They also hear environmental cases such as pollution, health and safety cases and cruelty to animals
• Magistrates have to decide if someone is guilty or innocent, whether a defendant should be allowed to have bail and the appropriate sentence when defendants either plead or are found guilty
• Magistrates have the power to impose a prison sentence of up to 6 months, and since s85 Legal Aid, Sentencing and Punishment of Offenders Act 2012 can impose an unlimited fine in certain cases. They an refer the case to the Crown Court if a longer prison sentence is required
• All criminal cases start in the Magistrates' Court, even if only for them to pass the case to the Crown Court

Civil Jurisdiction

Magistrates also hear some civil and family cases involving:

• Unpaid Council Tax
• TV licence evasion
• Child custody and adoption
• Care orders for children

Only experienced magistrates who have had special training can hear family cases and cases in the Youth Court

Qualifications

• in 1998, the Lord Chancellor set out six key qualities that a Magistrate should possess:
• good character
• understanding and communication
• social awareness
• maturity and sound temperament
• sound judgment
• commitment and reliability
• Until 2013, the Lord Chancellor was responsible for appointing Magistrates, but they are now appointed by the Lord Chief Justice
• Applicants must:
• be aged 18-65
• not have any serious criminal convictions
• not have been banned from driving in the past 5-10 years
• not been declared bankrupt 
• not work in a job where there may be a conflict of interest e.g. police officer
• Candidates usually apply to become magistrates, either in response to advertisements, or directly to the secretary of a local Advisory Committee or to the Department for Constitutional Affairs
• There follows at least two interviews before the local Advisory Committee, who will be comprised of a maximum of 12 member s and a mixture of current and retired magistrates as well as non-magistrates
• Interview 1: the panel will assess whether the candidate has the six key qualities and will assess their attitudes to various aspects of criminal justice, such as drink driving
• Interview 2: this will test a candidate's judicial aptitude through the discussion of case studies which would be typical of those heard by Magistrates
• Advertisements may be placed in local papers, community noticeboard, on local radio and in some counties on buses (also they're on indeed). Recent recruitment initiatives have tried to attract potential magistrates in order to make them as representative of society as possible

Training

• 1. Initial Training:
• This is where the magistrate will learn the basics of the role and will observe other magistratea
• 2. Mentoring:
• Each new magistrate will have a specially trained mentor allocated and they should have 6 formal mentored settings within the first 18 months and also keep a Personal Development Log
• 3. Core Training:
• This involves visits to penal institutions and working through a Core Workbook for self study to equip them with key knowledge
• 4. Consolidation Training:
• This happens at the end of the first year and builds on sittings to prepare magistrates for their first appraisal
• 5. First Appraisal:
• The mentor and magistrate will agree after 12-18 months that the new magistrate now demonstrates competence in the role

Magistrates continue training throughout their magisterial career:

• Appraisals take place every three years to ensure the magistrate maintains his/her competency in whichever court they sit
• Continuation Training takes place once every three years, usually before appraisals
• Update Training on new legislation and procedures is delivered to magistrates as required
• Threshold Training accompanies each development in a magistrate's role, there is a matching training process. For instance magistrates may go through comprehensive training to become a chairman or presiding justice. Alternatively, they may choose to undergo training in the specialist skills needed for family or youth courts

Retirement and Dismissal

• Magistrates usually retire at the age of 70
• s11 of the Courts Act 2003 provides that the Lord Chief Justice can remove a lay magistrate from office:
• on the grounds of incapacity or misbehaviour
• on the grounds of persistent failure to meet such standards of competence as are prescribed by a direction given by the Lord Chief Justice or,
• if he is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions as a justice of the peace
• Case Study: "Magistrate removed from office after falling asleep at trial", The Guardian 27th September 2010
• Complaints about magistrates are made to the same body as the judiciary, that is the Judicial Conduct Investigation Office

Social Composition of Lay Magistrates

• As of 1st April 2016, there were 17,552 lay magistrates in England and Wales. In 2012, there were around 25,000 lay magistrates. The steady decline in the overall numbers has been put down to a number of factors:
• magistrates no longer hear cases on licensing and anti social behaviour
• crime is falling generally
• many crimes are being dealt with using out of court disposals
• Diversity statistics currently show the following:
• Gender - Female 53% - Male 47%
• Age - Under 30: 1% Over 50: 80% (the average age is 57 , due to the minimum time commitment magistrates have to give)
• Ethnicity - White 89% - POC 11%
• There have been some moves to improve the diversity of the magistracy, including recruitment campaigns and increased awareness

Justices' Clerk

• Every Bench of magistrates is assisted by a clerk, or a legal advisor
• Every justices' clerk has to be qualified as a solicitor or barrister for at least five years
• Their role is to advise the magistrates on issues of law and procedure in the Magistrates' Courts; this is set out in s28 Courts Act 2003 
• The clerk is not permitted to assist the magistrates in their decision making
• Case study: R v Eccles Justices ex parte Farrelly (1992), convictions were quashed on appeal because the clerk had helped in the decision making process
• s29 Courts Act 2003 guarantees the independence of the justices' clerk and confirms that they cannot be subject to the direction of the Lord Chancellor or any other person

Evaluation of Lay Magistrates

Advantages:

• Magistrates provide a better representation of society than professional judges - 53% of lay magistrates are women
• Magistrates will normally live or work within the area in which they sit, although this is no longer a formal requirement
• The use of lay magistrates is cheap as they only have to be reimbursed for their expenses and subsistence. The trial itself in a Magistrate's Court is also cheaper than in the Crown Court
• The availability of a justices' clerk is also seen as an advantage as there is constant access to advice on points of law and procedure
• There are very few appeals from the Magistrates' Court suggesting that they are doing a good job

Disadvantages:

• There are areas of society which are very under represented - for example, lots of magistrates are from the middle classes or hold managerial occupations. This therefore offers the question of whether they do really have a good local knowledge of the poorer areas in their locality
• Over the last few years, Magistrates' Courts have been closing which can cause problems of access for some people and we are therefore increasingly losing the 'local knowledge' aspect
• Although lay magistrates are more representative than professional judges, the magistracy is often criticised for being "middle aged, middle class and middle minded". There are measures being put in place to combat this and make the magistracy more representative
• There is a low acquittal rate in the Magistrates Court which does suggest that there may be some prosecution bias. This may also be due to the fact that they will see the same representatives from the police and Crown Prosecution Service time and again
• Although training is undertaken from a national perspective, there is often seen to be inconsistency in sentencing across different areas
• Magistrates are often criticised for relying too heavily on the justices' clerk 

Criminal Process: Theories and Objectives of Sentencing

Criminal Justice Act 2003 s142

• Any court dealing with an (adult) offender in respect of his offence must have regard to the following purposes of sentencing:
• The punishment of offenders
• The reduction of crime (including its reduction by deterrence)
• The reform and rehabilitation of offenders
• The protection of the public
• The making of reparation by offenders to persons affected by their offences

Punishment of Offenders:

• The offender has obviously broken the criminal law and must be punished
• The criminal law takes revenge against the offender on behalf of both the victim(s) and society (retribution)
• The main issue is that the punishment must be proportionate to the crime - the 'just deserts' theory
• One of the earliest forms if retribution was based on the Biblical principal 'an eye for an eye'
• This is the basis of the argument for retaining the death penalty
• In America, one judge has given burglary victims the right to go to the home of the burglar and take items to the same value of what was stolen from them
• Tariff Sentences:
• For many sentences, the tariffs are fixed in order to provide consistent sentencing
• In America some states have fixed tariffs for each crime. This doesn't allow the judge to have any discretion and may lead to injustice as the judge cannot consider mitigating factors or circumstances of the individual offender
• Fines are a particular area of concern. A £1000 fine to someone on a very low income is extremely punitive but to a high earner it may have very little, if any, effect

The Reduction of Crime (including its reduction by deterrence)

• The main problem with deterrence is effectiveness. Its effectiveness is calculated by an individual based on the chances of getting caught
• Deterrence is designed to have two effects:
• To stop this particular offender committing any further crime - INDIVIDUAL DETERRENCE
• To prevent others committing the same crime - GENERAL DETERRENCE
• The deterrent effect of punishments is weakened depending on how many times the offender is punished in a particular way
• Various policies have been tried by successive governments, but very few have any significant impact on reoffending rates
• Sometimes the courts impose exemplary sentences to try and increase the deterrent effect. For example, Lord Ahmed (a labour peer) was sentenced to 12 weeks in prison for using his phone whilst driving

Reform and Rehabilitation

• "The aim of rehabilitation is to reform offenders, so that they are less likely to commit offences in the future - either because they learn to see the harm they are causing, or because, through education, training and other help, they find other ways to make a living or spend their leisure time" - English Legal System, C Elliot & F Quinn, 2008
• Many rehabilitation programmes that have been used in prisons over the years have had very little success
• Prisoners are required to undertake a variety of programmes whilst in prison to address their offending behaviour. Longer term prisoners may not be released early until they have completed such programmes
• The problem arises once they are released and have no job or prospects and no money
• The Court can give sentences that incorporate some form of rehabilitation, e.g a drug testing and treatment order
• The problem here is that it could lead to inconsistent sentencing. An offender who is seen as likely to reform could be given a treatment order, whilst another offender may simply be sent to prison

Protection of the Public

• Public protection is usually provided through incarceration
• This is an extremely expensive way of dealing with offenders, currently costing around £37k per year per prisoner
• Other means of protection include curfews, electronic tagging, exclusion orders and driving bans

Reparation

• This is known as 'restorative justice'
• It is all about the offender trying to repair some of the damage done to the victim and society
• It allows for the victim to come face to face with the offender and explain the effect of their offence, whilst also having a say in what the offender will do to put things right
• This has had some success, particularly with young offenders where it is mostly used
• However, it really depends on the crime:
• e.g an offender can paint a wall he's graffitied or mend a park bench he's destroyed. He can also write a letter of apology to the victime
• Obviously this method would never work in the case of murder or rape so in that way it is limited

Denunciation

• This is a further aim of sentencing but not included in the Criminal Justice Act 2003 - the sentence given allows society to show its disapproval of the offender's criminal behaviour
• It provides moral boundaries within society and can shape the views of the general public
• e.g campaigns against drink driving and its effects have changed society's view and now drinking and driving is significantly frowned upon and severe sentences are given to those who do drink and drive

Criminal Process: General principles of sentencing

Sentencing

• Once an accused is convicted of an offence, it is the Court's job to decide what sentence will be given
• A Magistrate or a Judge decide on the sentence depending on what Court the case is heard in
• There are a number of restrictions and factors that will be taken into account when deciding the appropriate sentence
• A sentencing tariff is a guideline for what the sentence should be

Restrictions on Sentencing

• Magistrates:
• A maximum of six months imprisonment for a single offence
• Unlimited fine for serious offences
• Crown Court Judges
• Max life sentences
• Unlimited fines

Maximum Sentences

• Magistrates and Judges are restricted by maximum sentences that are laid down by Parliament in the statute covering each offence
• e.g the maximum sentence for theft is 7 years, the maximum sentence for rape is a discretionary life sentence
• Murder is quite unique as it has a mandatory life sentence

Minimum Sentences

• The Crime (Sentences) Act 1997 introduced minimum sentences for persistent offenders, drug dealers and burglars
• The Act also introduced an automatic life sentence for offenders convicted of a second serious or violent offence

Sentencing

• Sentencing is not an easy or simple process
• Before sentencing those who have been convicted of a criminal offence, the Magistrates or the Judge have to consider a range of different factors regarding the offence and the offender
• Often a pre-sentence report will be prepared by the Probation Service that will help with the decision to impose the most appropriate sentence for this particular offender

Factors surrounding the offence

• The main issue that will be considered here is how serious the offence is for the type of offence it is
• s143(1) Criminal Justice Act 2003
• "In considering the seriousness of the offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, or was intended to cause or might reasonably forseeably have caused"
• The Criminal Justice Act 2003 states that other factors that should be considered are:
• Previous convictions for other similar offences or ones which are relevant to the current offence
• Whether the defendant was on bail when the offence was committed
• Whether there was any religious or racial element to the offence
• Whether there was any hostility towards disability or sexual orientation involved in the offence
• "Other points the courts will want to know may include...In a case of theft, how much was stolen, and was the defendant in a position of trust? In a case of assault...what injuries were inflicted and whether the assault was premeditated; was the victim particularly vulnerable... Where several defendants are convicted of committing a crime jointly, the court will want to know if any of them played a greater part than others, and who was involved in planning it" - (The English Legal System, Jacqueline Martin)

The Effect of a Guilty Plea

• If a defendant pleads guilty, the sentence is likely to be reduced
• The general rule is that the earlier the guilty plea is entered, the more time will be deducted from the sentence
• If a defendant pleads guilty at their first opportunity to do so, up to one third will be deducted from their sentence
• If a defendant pleads guilty once the trial has started, up to one tenth will be deducted
• Discounts are calculated on a sliding scale
• The sliding scale is in place because of:
• Costs - pleading not guilty costs the courts more money
• Time - a person pleading guilty results in a shorter trial, thus saving time
• It encourages rehabilitation and accountability
• Problems with this system:
• It's prone to cynical manipulation by the guilty
• Justice for victims
• The Sentencing Council justifies the discount system as follows:
• "A reduction in sentence is appropriate because a guilty plea avoids the need for a trial, shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence"

The Offender's Background

• Factors the Court will consider here include:
• Any previous convictions, including reaction to previous sentences, whether or not they were on bail
• Where there is the possibility of community sentences a pre-sentence report will be prepared by the Probation Service with details of the offender's background and suitability for this type of sentence
• If there are any medical or psychiatric issues involved in the offence the Court will ask for a medical report before making their decision
• If imposing a fine, the financial situation of the offender will need to be fully disclosed

Sentencing Guidelines

• Used to be set by the Court of Appeal but they had to wait for a suitable case to come to court
• Sentencing Advisory Panel was set up in 1998 to advise the Court of Appeal on guidelines
• Sentencing Guidelines Council was set up following the Criminal Justice Act 2003
• Now all are combined in the Sentencing Council
• Sentences are fixed by tariff. These are set by the Sentencing Council and by sentences imposed in similar cases

Sentencing Council

• What does it do? "The Sentencing Council is an independent body that has been created to ensure transparency and consistency in sentencing whilst maintaining and promoting the independence of the judiciary"

Types of Sentence

• A sentence is the punishment given to defendants when they are convicted, and the type of sentence can vary depending on whether the defendant is an adult or a youth offender. The sentence that can be given to an offender depends on the Government of the time and their priorities which are often affected by current events and media pressure
• Both adult and youth offenders can receive the same type of sentence, but they vary in terms of their requirements and their length
• The judge is responsible for sentencing in the Crown Court and the magistrates are responsible in the Magistrates' Court. The range of sentences available to each court does vary

Sentencing factors - government/politics, precedent, media pressure, public opinion, Sentencing Council recommendations

Sentencing

• The tariff, or length of the sentence will be determined by the court following guidelines issued by the Sentencing Council. The court will look at the following factors:
• The age of the offender
• The seriousness of the offence
• The likelihood of further offences being committed
• The extent of harm likely to result from further offences
• There are four main categories of sentence:
• Custodial sentences
• Community sentences
• Fines
• Discharges
• The courts also have the power to make additional orders such as compensation orders and powers such as driving bans

Types of Sentence

Absolute Discharge:

• This is where the court feels that the offender has received enough punishment by going through court and so discharges the offender with no further action needed

Conditional Discharge:

• This is where the offender will receive no punishment on the condition that they do not reoffend for a specified period for up to three years. It is intended to be used where it is thought that punishment is not necessary. If the offender re-offends within the time limit, the court can then impose another sentence in place of the conditional discharge, as well as imposing a penalty for the new offence. They are used widely by Magistrates' Courts for first time minor offences

Fine:

• These are the most common sentences given to adults. These are mostly administered for minor offences. Magistrates can give a maximum fine of £5000 (or up to £20,000 on businesses who have committed offences under certain regulations such as health and safety), and the Crown Court has no limit on the fine which it can impose

Suspended Sentence Order:

• This is where the offender does not go to prison, but has to comply with conditions set out by the court. The suspended period can be up to two years (or six months in the Magistrates' Court). Breach of the conditions can result in the offender being sent to prison for the remainder of their sentence. If, during this time, the defendant does not commit another offence, the prison sentence will not be served. If they do commit another offence, the prison sentence is 'activated' and the offender will serve that sentence together with any sentence for the new offence
• A suspended sentence should only be given where the offence is so serious that an immediate custodial sentence would have been appropriate but there are exceptional circumstances in the case that justify suspending the sentence
• The court can attach any of the 12 requirements used in community orders to the sentence and a failure to meet a requirement can also mean the sentence is 'activated'

Community Order:

• Under the Criminal Justice Act 2003, there is now one Community Order to which the court can attach any combination of requirements that they think are necessary. Section 177 Criminal Justice Act provides a full list of the requirements that can be attached.
• s.177(1) - Where a person aged 16 or over is convicted of an offence, the court by or before which he/she is convicted may make an order (in this Part referred to as a "community order") imposing on him any one or more of the following requirements:
• (a) an unpaid work requirement
• (b) an activity requirement
• (c) a programme requirement
• (d) a prohibited activity requirement
• (e) a curfew requirement
• (f) an exclusion requirement
• (g) a residence requirement
• (h) a mental health treatment requirement
• (i) a drug rehabilitation requirement
• (j) an alcohol treatment requirement
• (k) a supervision requirement, and
• (l) in a case where the offender is aged under 25, an attendance centre requirement

Custodial Sentences

• This is the most severe sentence available and is for the most serious of offences. S152 Criminal Justice Act 2003 stipulates that custodial sentences are only available for those offences "so serious that neither a fine alone nor a community sentence can be justified for the offence".
• They can range from a few weeks to life imprisonment and can include:
• mandatory and discretionary life sentences
• fixed-term sentences
• suspended sentences

Criminal Process: Jury Trial

Objectives:

• Explain the history of jury trial
• Explain jury selection
• Describe the role of the jury within the criminal justice system
• Explain the role of the civil jury
• Critically evaluate jury trial and suggest reforms and alternatives
• Apply your knowledge of juries to given case studies
  

Quiz:

1. When did jury trial begin? - the Norman Conquest
2. What went before jury trial? Trial by ordeal
3. How many sit on a jury? - 12 in criminal, 8 in civil libel
4. What courts do they sit in? County Court, Crown Court
5. What types of cases are they involved in? Civil and Criminal
6. How many cases are they involved in? 
7. What qualification do you need to sit on a jury? No qualifications but chosen from the Electoral Register
8. What is their role? - To determine whether a person is innocent or guilty

A person may not be allowed to take part in jury service if they have a previous criminal offence, are on probation or in custody

History of Jury Trial

1066 - Trial by ordeal - the defendant was put through a painful/uncomfortable/dangerous ordeal in order to determine whether they were innocent or guilty

12th Century - Trial by peers

1670 - Bushell's Case - Jurors were imprisoned for coming to a verdict that the court did not like - Principle: Juries are supposed to be independent 

R v Wang (2005) - set the precedent that Jurors are the only people who can decide on facts. If a point of law arises e.g self-defence, it is the duty of the court to explain it, and equip the jury with necessary knowledge to reach a verdict

When are Juries used?

• Criminal cases - Juries can be used in Criminal cases (Crown Court 'either way' offences - cases that might be heard either in the Magistrates' Court or Crown Court) - 1% (30,000) of cases are dealt with in this way 
• To decide whether the defendant is guilty or not guilty beyond reasonable doubt
• Criminal Justice Act 2003 - allows for trial by judge alone if there has been or is a risk of jury tampering - R v Twomey (2009)
• Unanimous and majority verdicts

The Civil Jury:

• Civil Jury - less than 1%
• Decide for or against the claimant and, in some cases, the award of damages

Supreme Court Act 1981 qualified right to jury trial

• Malicious prosecution
• False imprisonment
• Fraud

Defamation Act 2011 removed defamation cases from jury trial

The Coroner's Court

• A jury of between seven and eleven member may be used to inquire into deaths
• The Coroners and Justice Act 2009 has provisions for changes to the use of juries in Coroners' Courts. Under this a jury will be used only if:
• There is a reason to suspect that the deceased died while in custody and that either
• The death was a violent or unnatural one, or
• The cause of death is unknown
• The death resulted from an act or omission of a police office
• The death was caused by a notifiable accident, poisoning or disease
• The coroner will commonly direct the jury as to which verdicts are available in a particular case

History of Jury Trial
The Juries Act 1974 states who is eligible for jury service in the UK (the Criminal Justice Act 2003 changed the terms of eligibility, but I only realised this after writing down all of the conditions of the Juries Act so I'm putting them here anyway
One qualifies and can be called for jury duty if:

• They are registered as a parliamentary or local government elector
• They are between the ages of 18-75
• They have been ordinarily resident in the UK, the Channel Islands or the Isle of Man for any period of at least five years since the age of 13
• They are not otherwise ineligible or disqualified

The following persons are ineligible for jury service:

• The judiciary
• Those concerned with administration of justice, e.g policemen, solicitors, barristers, forensic scientists or prison wardens
• The clergy
• The mentally ill

The following persons are disqualified from jury service:

• Those sentenced to more than five years in prison
• Those who have been in prison within the previous ten years
• Those who have been on probation within the previous five years
• Those on probation

The following persons may be excused from jury service:

• Those who are 76 or over
• Members of the Houses of Parliament
• Members of the European Parliament
• Members of the Welsh assembly
• Serving members of the naval, military or air forces
• Members of the medical profession, e.g registered doctors, nurses, dentists, vets
• Members of religious orders whose beliefs are incompatible with jury service
• Those who have previously served on a jury within the past two years

Criminal Justice Act 2003:

• This act removed various former grounds of ineligibility, which meant that more people became available to call for jury duty, including the judiciary, members of the medical profession, the clergy, politicians etc

Non-Jury Trials

• Section 44-50 of Part 7 of the Criminal Justice Act 2003 provide for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place
• R v Twomey (2004)
• An armed robbery occurred at a warehouse - the appellants were tried without a jury under section 44 of the Criminal Justice Act 2003 because improper approaches were being made to two members of the jury
• Non-jury trials can also take place in cases such as fraud, as the jury probably would not have the right knowledge of the subject matter to be able to judge the case fairly, and the trial may be too long for the jury to be able to retain and assess the evidence which they have heard

The Jury

• Jury selection - Central Summoning Bureau
• Jury challenging:
• The methods of replacing one or more of the prospective jurors called into the box are:
• For the prosecution to ask a juror to stand by
• For either the prosecution or the defence to challenge for cause
• For the judge to use their discretionary power to remove a juror
• R v Andrews (1998):
• Where there was no suggestion that potential jurors in a criminal trial might have an interest in the case, such as having lost money in transactions which formed the basis of the trial, the questioning of jurors either orally or by use of a questionnaire was, save in the most exceptional of circumstances, to be avoided.
• Discharging the jury
• Gregory v UK (1997):
• It was decided that a judge's direction to the jury to disregard any question of racial bias was sufficient to ensure a fair trial
• Individual jurors:
• During a trial, an individual juror can be discharged and the trial can continue as long as the minimum number of jurors remain. Discharge is at the discretion of the judge and should be exercised in cases of "evident necessity"
• Whole jury:
• Where misconduct cannot be dealt with by discharge of an individual juror, or in the case of jury tampering, or where the jury cannot teach a verdict, the entire jury can be discharged. The matter lies at the discretion of the judge

Eligibility        ·       Aged 18-70 (although the Criminal Justice and Courts Act 2015 proposes to to  extend this to 75)       ·       Registered on the electoral register       ·       Resident in the UK, Channel Islands, or Isle of Man for at least five years since the age of 13       ·       Not disqualified	Disqualification       ·       Persons on bail       ·       Those with serious criminal convictions       ·       Mentally disordered persons
Deferral       ·       Anyone can apply to defer their jury duty. Reasons for deferral include examinations, having a holiday booked, a wedding, surgery, etc. Jury duty can be deferred once and must be retaken within a 12 month period of the deferral	Excusal       ·       Discretionary (up to the court) excusal can be applied for by anyone       ·       Automatic right of excusal applies to full time serving members of the armed forces and those who have served as a juror in the last two years

Jury Vetting:

• R v Sheffield:
• Two police officers were being brought to trial for assault.
• They applied to the judge for an order directing the prosecution to inform the defence whether any members of the jury had criminal convictions and if so, to give details
• R v Mason (1996):
• Ruled in favour of vetting of criminal records to uphold the law that disqualified persons must not sit on a jury
• R v Obellim (1996):
• The judge received a written question from the jury showing too much knowledge of the criminal justice system. 
• He ordered a security check on the jury without telling the defence.
• The defendant appealed on the grounds that the check on the jury might have prejudiced them.
•  It was decided that the judge should have informed the defence before ordering such a check

Are juries representative of society?

• R v Ford (1989):
• A defendant who was mixed race applied for a multi-racial jury. The jury was entirely white.
• The judge decided that he had no power to select a multi-racial jury, as jurors are meant to be selected completely at random
• R v Bansal (1985):
• There was an application to transfer a case from Maidstone to London so as to obtain a multi-racial jury to try charges of assault on a policeman at an anti-National Front demonstration

Jury Secrecy

For Secrecy and Against Disclosure:

• Ensures freedom of discussion in the jury room
• Protects jurors from outside influences e.g harassment
• If the public knew how juries reached their verdict they may respect the decision less
• Without secrecy, people may be reluctant to serve as jurors
• It ensures that the verdict is final
• It enables jurors to bring unpopular verdicts
• It prevents unreliable disclosures by jurors

Against Secrecy and For Disclosure:

• Makes jurors more accountable
• Makes it easier to inquire into the reliability of convictions and rectify injustices
• Show where reform is needed
• Educate the public
• Ensure each juror's freedom of expression

Contempt of Court Act (1981)

• Section 8 of the Act provides that it is an offence for a person to ask for or make public any opinions or arguments put forward by a jury member in the course of making a decision

R v Mirza (2004) and R v Connor

• The defendants sought an inquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury's deliberations did not fit the human right to a fair trial.
• In one case it was said that jurors believed that the defendant's use of an interpreter was a mere ploy. In the other, a juror reported that other jurors had refused to consider the evidence properly
• It was held that the common law should not be extended to permit enquiries into events in the jury room where they are not now permitted

Att Gen v Scotcher (2005)

• It was decided that although a juror would not be in contempt of court in terms of the Contempt of Court Act 1981, if he disclosed the jury's deliberations to the court with the genuine intention of preventing a miscarriage of justice, he would be in contempt where he had made such disclosure to a third party who had no authority to receive disclosures on behalf of the court and who might or might not pass on that information to the court

Criminal Justice Act 1967 (the actual law)

• Majority verdicts of juries in criminal proceeding:
• Subject to the following provisions of this section, the verdict of a jury in criminal proceedings need not be unanimous if:
• In a case where there are not less than 11 jurors, 10 of them agree on a verdict and;
• In a case where there are 10 jurors, 9 of them agree on the verdict
• A court shall not accept a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who dissented from the verdict
• A court shall not accept a majority verdict unless the jury have had no less than two hours for deliberation or such longer period as the court thinks reasonable having regard to the nature and complexity of the case

Jury Equity:

• Jury equity is applied when a jury reaches a decision which is in contradiction to the law. While rare, a jury sometimes finds the defendant not guilty of a crime even though it is clear beyond a shadow of a doubt that he or she has violated a law. Usually, this happens when the jurors feel that the law itself is unjust or a punishment is unduly harsh. As a result, they hand down a not-guilty verdict

Advantages of the jury system

• Certainty, as the verdict is not open to dispute
• Public participation - Lord Denning said jury duty was 'giving ordinary folk their finest lesson in leadership'
• Jury equity:

R v Kronlid (1996)

• Three women broke onto a plane and caused £1.5 million worth of damage. They left a video explaining that they did it to stop the plane being used to harm people
• The jury found them not guilty because they believed that the women did it for the right reasons, using jury equity to do this

R v Ponting (1985)

• Clive Ponting sent confidential documents about the sinking of a ship to a labour backbencher. He had committed this crime, but the jury found him not guilty as they believed that his prosecution was politically inspired (once again a case of jury equity)

Disadvantages of the Jury System

• Lack of competence
• 'Perverse verdicts'
• Bias
• Manipulation by defendants
• Jury nobbling/tampering
• No reason given for the decision/verdict
• Distress to jury members
• Cost and time
• Problems with compulsory jury service
• Excessive damages in civil cases
• Jury equity:

R v Owen (1991)

• The defendant's son had been killed by a driver with no licence. When the driver was released from prison he continued to drive without a licence and so the defendant, enraged by this, wounded the driver with a shotgun. The defendant was found not guilty by the jury as they shared his anger. This is yet another case involving jury equity. Some could say it highlights a disadvantage of a jury system as juries are able to create 'perverse' decisions

Reform of the Jury

• Abolishing juries in serious fraud cases
• Abolishing juries
• Juries to write down how they reached their verdict
• 13th person (qualified) to enter the jury room to advise
• Defence and Prosecution prepare a written summary of the case for the jury

Criminal Process: Bail

Objectives:

• To identify the difference between bail and remand in custody - bail = not in custody, remand = held in custody pending trial
• Explain the police powers to grant bail - Police and Criminal Evidence Act 1984 - P.A.C.E)
• Explain the powers of the court to grant bail - The Bail Act (1976)
• Evaluate the arguments for and against bail

Reasons for Bail	Reasons against Bail
European Convention on Human Rights - innocent until proven guilty It gives the police time to gather evidence/witnesses Bail record Address/details = traceable	Could offend whilst on bail Could interfere with witnesses They could be a flight risk

Bail is the release of a person until the next stage of the case, in line with Article 5 ECHR - right to liberty and in order to uphold the fundamental principle that every person is 'innocent until proven guilty'

A person can be released on bail at any point after being arrested by the police

Bail can be granted by:

• The police:
• Police and Criminal Evidence Act 1984
• Criminal Justice and Public Order Act 1944
• Criminal Justice Act 2003
• The courts
• Bail Act 1976
• Legal Aid, Sentencing and Punishment of Offenders Act 2012

Police Bail:

The police can grant bail in three situations:

• To a suspect released without charge on the condition that they return to the police station on a specific date in the future
• s37 Police and Criminal Evidence Act 1984
• To a defendant who has been charged with an offence until their EAH at the Magistrates' Court
• s38 Police and Criminal Evidence Act 1984
• The custody officer can refuse bail if the suspect's name and address cannot be discovered, or if there is doubt as to whether the name and address given are genuine
• Police can grant street bail for minor offences, without the need to take them to the police station
• s4 Criminal Justice Act 2003

Conditional Bail:

Conditions can be imposed on bail by the police and the courts - Criminal Justice and Public Order Act 1994

Examples of conditions include:

• Curfew
• Electronic tag
• Sureties
• Surrendering passport
• Reporting regularly to the police station
• Residence at a bail hostel

Case Study: R v Hookway (2011)

The Police and Criminal Evidence Act 1984 states that police officers cannot detain a suspect for more than 96 hours before they must release or charge them. The ruling in R v Hookway (2011) means that the clock is 'ticking' regardless of whether the police are actually questioning the suspect or not. Therefore, after 96 hours, officers can no longer question suspects and can only re-arrest them if they have new evidence

However...

The subsequent emergency legislation, the Police (Detention and Bail) Act 2011 reversed the effect of R v Hookway (2011) which means that periods on bail do not count towards the total detention period.

Case Study: 28 day limit on police bail:

The Police and Criminal Justice Bill 2015 has proposed that where a suspect has been released on police bail without charge, that the maximum time they can be on bail is 28 days.

Court Bail:

s4 Bail Act 1976 - there is a presumption that everyone should be granted bail

Bail need not be granted if there are substantial grounds for believing that the defendant, if released, would:

• Fail to surrender to custody
• Commit an offence while on bail
• Interfere with witnesses or otherwise obstruct the course of justice
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced a new exception: commit an offence against an "associated person" in a domestic violence case

Schedule 9 Bail Act 1976 - factors taken into consideration by the courts when making the decision to grant bail

• The nature and seriousness of the offence
• The character, past record, associations and community ties of the defendant
• The defendant's record on surrendering to bail on previous occasions
• The strength of the evidence against them

S90 Legal Aid, Sentencing and Punishment of Offenders Act 2012

"No Real Prospect Test" - The courts' power to refuse bail is restricted where it appears that there is no real prospect that the defendant would receive a custodial sentence if convicted

Restrictions on Bail

Bail can be restricted in the following circumstances:

• Where a suspect has tested positive for Class A drugs and the offence is one connected with Class A drugs:
• s19 Criminal Justice Act 2003
• Where the offence has been committed by someone who is already on bail at the time of the offence
• s14 Criminal Justice Act 2003
• Where a person has previously served a custodial sentence for murder, manslaughter or rape and the current offence is murder, manslaughter or rape, the judge can only grant bail if it is of the opinion that there are no exceptional circumstances
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Where the offence is murder, bail may only be granted by a Crown Court Judge:
• s115 Coroners and Justice Act 2009

Advantages and Disadvantages of Bail
Advantages:

• There is a reduction in the number of defendants on remand, which means less cost to the government
• The defendant can maintain employment and spend time with family during his/her bail period
• The defendant can use the time to prepare for his/her trial by not being restricted in terms of being able to meet their legal representatives

Disadvantages:

• There seems to be disparity in the interpretation of the Bail Act 1976 in different courts
• There is a risk that the defendant will interfere with witnesses or otherwise obstruct the course of justice
• 12% of bailed offenders fail to appear at their trial; so there is a risk of them absconding or not surrendering to bail
• There are startling statistics on the number of offences committed by people who are on bail

Criminal Process: Appellate Functions

Objectives:

• Explain the routes of appeal available from the Magistrates' Court
• Explain the routes of appeal available from the Crown Court

Key terminology:

• Case stated appeal - a procedure by which a court or tribunal can ask another court for its opinion on a point of law of general public importance (legal clarification)
• Leapfrog appeal - when an appeal skips one or more court and appeals directly to the Supreme Court (skipping the Court of Appeal) - e.g R(Millar) v The Government (The Prime Minister) - what does prorogation mean?
• Leave to appeal - the permission to appeal against a decision

Appeals from the Magistrates Court:

To the Crown Court by the Defence:

• Made by the defence only 
• Defendant has an automatic right of appeal against conviction or sentence, where the defendant originally pleaded not guilty
• Against conviction - Crown Court judge rehears the whole case with two Magistrates. They can:
• come to the same decision
• reverse the decision
• Against sentence - Crown Court judge can impose a harsher sentence, but only to the maximum sentence available to Magistrates
• Appeal must be made within 21 days of the conclusion of the case

To the Queen's Bench Divisional Court:

• Can be made by the prosecution or defence
• Can be made directly from the Magistrates Court or as an appeal from the Crown Court
• The basis for the appeal is a claim that the Magistrates made an error of law or acted outside their jurisdiction
• Appeal is heard by a panel of 2-3 High Court judges from the Queen's Bench Division
• The Queen's Bench Division Court can:
• reverse or vary the decision
• make an alternative decision
• give the Magistrates their opinion on the area of law involved
• If the appeal is successful, the case will be sent back to the Magistrates for reconsideration

To the Supreme Court

•  A further appeal can be made to the Supreme Court if:
• there is a point of law of general public importance
• leave to appeal is granted by the Queen's Bench Division or the Supreme Court
• Case study: C v DPP (1994)

Appeals from the Crown Court:

To the Court of Appeal (Criminal Division) by the DEFENCE:

• Can be against convictions or sentence
• The defendant must state, verbally, or in writing, that they want to appeal within 14 days of the conclusion of the trial
• The full appeal must be filed with the Court within 28 days of conviction
• The defendant must get the leave to appeal from the trial judge or from the Court of Appeal
• The Criminal Appeal Act 1995 states that the Court of Appeal:
• Shall allow an appeal against conviction if they think that the conviction is unsafe and shall dismiss such an appeal in any other case
• The Court of Appeal can:
• Quash the conviction
• Vary the conviction to a lesser charge
• Decrease the sentence (not increase it)
• Order a retrial in the Crown Court with a new jury

To the Court of Appeal (Criminal Division) by the PROSECUTION

• Can appeal against acquittal where the jury has been 'nobbled':
• The Criminal Procedure and Investigations Act 1996 allows a retrial to be ordered where the jury has been bribed or threatened by the defendant
• There is a further provision under s44 Criminal Justice Act 2003 for a judge only trial where there is a risk of jury tampering or bribery

Quiz:

• What is a case stated appeal?
• a procedure by which a court or tribunal can ask another court for its opinion on a point of law of general public importance (legal clarification)
• From which court and to which court can one make a case stated appeal?
• Magistrates' to the Queen's Bench Divisional Court
  
• Does the defendant need permission to appeal from a Magistrates' Court if they originally pleaded not guilty?
• No, there is an automatic right to appeal
• What can the defendant appeal against if they are found guilty at trial in the Magistrates' Court?
• Conviction and sentence
• When does the defendant need to lodge papers for this appeal?
• 21 days
• How many judges hear an appeal at Crown Court from a Magistrates' Court?
• Three judges
• Who are they?
• 2 Magistrates and a Crown Court Judge
• Who can make an appeal from the Magistrates' Court to the Queen's Bench Divisional Court?
• Prosecution and Defence