Triable Either Way Offences Essay Scholarships

All criminal cases begin in the magistrates' court however serious the offence. The LexisPSL Corporate Crime team set out the correct steps that need to be taken when commencing proceedings in these ways.

There are three main ways of commencing proceedings

o     the defendant may be arrested and charged by the police
o     the prosecution may issue a written charge together with a requirement (a 'requisition') requiring the defendant to attend court, or
o     the prosecution can obtain a summons issued by the court requiring the defendant to attend court on a specified date and time

Instituting proceedings by way of police charge

Where there is enough evidence to provide a realistic prospect of conviction the defendant will be brought before the custody officer and charged with the offence(s). Details of the offence(s) will appear on the charge sheet. The defendant is either produced before the court in custody or bailed to attend court at a specified time and date.

Under the Bail Act 1976 (BA 1976) the CPS now plays a fundamental role in advising the police on appropriate charges. Under guidance issued by the Director of Public Prosecutions (DPP), only the CPS can authorise charges in respect of indictable only offences and specified either-way offences. The police can charge a suspect without reference to the CPS in most summary-only matters. The police may also charge without CPS advice in certain triable either-way cases where a guilty plea is anticipated and suitable for sentence in the magistrates' court.

Instituting proceedings by way of a written charge and requisition

The Criminal Justice Act 2003 (CJA 2003) sets out a new method of commencing proceedings. Under the provisions a prosecutor may institute proceedings by issuing a written charge of the offence accompanied by a written requirement, known as a 'requisition', requiring the defendant to appear before the court to answer the charge.

The new procedure currently only applies in magistrates' courts in areas specified by statutory instrument under the CJA 2003. The date for full implementation has not yet been appointed.

The method is only available to 'public prosecutors' as defined under CJA 2003. These are:

o     a police force
o     the director of the Serious Fraud Office
o     the DPP (this includes the CPS)
o     the director of Revenue and Customs prosecutions
o     the Director General of the Serious Organised Crime Agency
o     the Attorney-General
o     a person specified or authorised by the Secretary of State, and
o     the Secretary of State for Business, Innovation and Skills or a person authorised by the Secretary of state for Business, Innovation and Skills to institute criminal proceedings

Drafting a written charge

The Criminal Procedure Rules 2014, SI 2014/1610 (Crim PR 2014) provide that the written charge must contain a general statement of the offence in non-technical language and provide sufficient particulars of the conduct alleged.   

If there is more than one incident of the commission of the offence those incidents may be included in the allegation.

A single document may also contain more than one offence.

The CJA 2003 stipulates that the requisition must be issued at the same time as the written charge.

The written charge and requisition must be served on the defendant by the prosecutor. The court plays no role in communicating the requirement to attend court under the new provisions.

A copy of both the written charge and requisition must also be served on the court specified in the requisition.

Service of the requisition on the defendant

Under Crim PR 2014 a requisition may be served on an individual by:

o     handing it to him, or
o     by leaving it at, or sending it by first-class post to, an address where it is reasonably believed he will receive it

A requisition cannot be served by fax, email or through document exchange (DX).

Service of a requisition on a corporation may be effected by handing it to a person holding a senior position in that corporation or by leaving it or posting it to its principal office. If no principal office is readily identifiable the requisition can be left or posted to any place where the corporation carries on its business.

Instituting proceedings by way of a summons

In areas where the written charge and requisition procedure have not yet been implemented or where the prosecutor is not a public prosecutor under the CJA 2003, proceedings may be instituted by means of laying an information.

An information is a statement that tells the court what offence the defendant has allegedly committed.

An information is laid when it is received by the clerk's office in the magistrates' court. The laying of an information can be done by a prosecutor or by a person authorised on his behalf.

An information should be laid by an individual and not by an unincorporated association such as a police force.

A valid information may only be laid by a prosecutor or an authorised person under the Legal Services Act 2007, s 13 and 14.

Under Crim PR 2014 the information can be in writing or a prosecutor can present an information orally to the court.

Drafting a summons

The rules governing the content of the information are the same as the rules for a written charge.  

If the information fails to give sufficient particulars this does not render the proceedings void. However, the court has held that defendants must still be provided with the requisite information in good time for him to properly defend himself.  

Obtaining a summons from the court

Once the information has been laid before the magistrates' clerk the court may issue a summons under the Magistrates' Court Act 1980 (MCA 1980). The summons must specify each offence against the defendant. It must also contain a notice of when and where a defendant has to attend court.

The decision whether to issue a summons is a judicial one, not an administrative one.

Before issuing a summons the magistrate or the clerk must be satisfied:

o     the offence alleged in the information is known to law
o     the information was served on the court within the applicable time limits for instituting proceed-ings for an offence
o     the court has jurisdiction, and
o     any consent necessary to commence proceedings had been obtained

There is also a residual discretion not to issue a summons. This may be exercised if the prosecution appears frivolous or vexatious, or if there is some other compelling reason, eg undue delay.

There is no requirement on the part of the clerk or the magistrate to consider the evidence before issuing a summons.

Neither is there a duty to make enquiries into the historical basis of the information. However, a summons should not be issued where enquiries reveal the prosecution has been a knowing party to serious procedural irregularities.  

The MCA 1980 does not require the summons to be issued immediately on consideration of the information by the clerk or the magistrate. The prosecution can ask the court to delay issuing a summons. This may happen, for example, because the defendant is abroad.  

The prosecution should not lay information when it has not in fact reached a decision to prosecute. To do so would be an abuse of process of the court.

Amendment of summons or charge

The MCA 1980 provides that defects in the form or substance of an information or charge are not grounds for objection.

In the case of trivial defects, a conviction will stand even though the information or charge has not been amended (R v Sandwell Justices ex p West Midlands Passenger Transport Executive [1979] Crim LR 56).

The prosecution should apply for an amendment where the variation between the information or charge and the evidence is substantial. If the court grants an amendment it should also grant an adjournment where the defence have been misled by the original charge.

Failure by the prosecution to apply for an amendment or by the court to grant an adjournment, where the defence is entitled to one, may lead to a conviction being quashed.

Time limits for summary only offences

There are generally no statutory time limits for prosecuting indictable offences. However, the MCA 1980 imposes time limits for commencing proceedings by way of laying an information. Under the provisions a magistrates' court may not try a defendant for a summary offence unless the information was laid within six months from the date of the commission of the offence. Provided it is laid within that time, it does not matter if the summons is not issued by the court within that time limit. Failure to observe these statutory time limits will mean the prosecution will be time-barred from commencing proceedings.

The court in R v Myers [2013] EWCA Crim 2423 considered the ability of the court to amend a charge outside the six month time limit, the principle ground of appeal being the court had no jurisdiction to try the information because section 127 of the MCA 1980 precludes the laying of an information outside the six month time limit. The court found that the wrongdoing of the applicant Myers was fundamentally different to the wrongdoing alleged in the original indictable offence, so no amendment of the indictable offence could have been permitted. Accordingly, the court ruled that the court had no jurisdiction to allow the laying of the new information pursuant to section 5(2) of the Criminal Justice Act 1967.

The MCA 1980 does not expressly refer to the time limits for commencing proceedings by way of the new written charge and requisition procedure. Consequently it is not clear if the time limit for commencing pro-ceedings under the new procedure commences from the time the written charge and requisition is issued or when the documents are received by the defendant.

The Crim PR 2014 stipulate that a written charge for a summary only offence must be issued within six months from the date of the commission of the offence.

It is likely that the time will start to run from the date when the written charge and requisition is issued and not the date when the documents are received by a defendant.

Amendment of summons or charge outside statutory time limits

Where an information has been laid within the six-month time limit the Divisional Court has held it can be amended after the expiry of the time limit provided that:

o     the amendment arises out of the same or substantially the same facts as the original offence, and it is in the interest of justice

In DPP v Williams [2009] All ER (D) 292 (Jul) an issue arose as to whether the magistrates' court had been correct to allow an amendment of a charge of failing to provide a specimen of breath to one of failing to provide a specimen of urine. The Administrative Court held that the justices were correct in holding that the alternative charge was based on the same facts but ruled that it was not in the interests of justice to permit the amendment on the facts of the case because of the failure of the Crown to comply with the criminal procedure rules. The court also provided guidance on the application of the test set out in Scunthorpe Justices. The test is not whether the 'wrong doing is different' but whether the new offence arises out of the same (or substantially the same) facts as gave rise to the original offence.

This article was originally published in LexisPSL Corporate Crime.

Describe the role of juries and lay magistrates in criminal cases.

The jury must decide questions of fact, the judge will advise them on questions of law. The criminal justice system is dependent on lay magistrates in order that the justice system functions properly.

Grade: A-C | £0.00.

 

Juries are seen as playing an important role in our legal system.  Juries have been used as part of our legal system for more than one thousand years but it was not until trial by ordeal was done away with in 1215 that they became an integral part of our criminal justice system.  In the same year Magna Carta also formally acknowledged the principle of an individual’s right to trial by their peers. Lord Devlin wrote in 1956: “Trial by jury is more than an instrument of justice and more than a wheel of the constitution; it is the lamp that shows that freedom lives.”


Set out below is a description of the role of juries in criminal cases:

Juries are used in trials in the Crown Court. The jurisdiction of the Crown Court provides for the hearing of more serious offences on indictment. The offenders will have first appeared in the Magistrates’ Court and been committed or indicted to trial at the Crown Court.  If there is a not guilty plea there will be a jury trial. If a guilty plea is entered then there will be no need for a trial and the Judge will decide upon the appropriate sentence. Magistrates deal with some 97% of all criminal cases so they deal with the vast majority of criminal matters. So whilst the principle of a jury trial is important they are only used in approximately one per cent of criminal cases allowing for the fact that in some cases there may be a change of plea to guilty before the trial. This 1% relates to around 30,000 of some of the most serious trials.

The jury is randomly selected from persons entered on the electoral register and they must not be involved in any way with the case. They are required to make an informed decision about whether the accused is guilty or innocent by weighing up the evidence and deciding what the true facts of the case are or what really happened.


The jury is told by the trial judge that they must base their decision upon the evidence put before them during the trial and not upon anything else, including things said outside of the court or anything they may have read.  The jury must listen to the evidence and their role may also include being made aware of physical exhibits and photographs and, in some complex cases, may include accompanied visits to crime scenes.

 

Complex or difficult cases can cause problems for the jury as was demonstrated in the case of Vicky Pryce, the ex-wife of disgraced cabinet minister Chris Huhne, who faced a retrial over taking speeding points for him because a jury failed to reach a verdict. As well as failing to reach a verdict they asked a number of questions during their deliberations which apparently showed what the judge described as "absolutely fundamental deficits in understanding".

 

The role of the jury is to listen to the evidence that is brought to their attention as part of the trial process. Reminders and warnings to juries not to read or discuss the case with members of the public have been emphasised as a result of a number of jurors participating in their own research on the internet or communicating with others on social media sites. Recently jurors have been found guilty of contempt of court and jailed for carrying out their own 'research' on the internet. In 2011, Joanne Frail was given an 8 month jail sentence after becoming the first juror to be prosecuted for contempt of court for using the internet ( Facebook in her case). In 2012, Theodora Dallas carried out internet research at home while sitting at a criminal trial and was jailed for six months for contempt of court.


Towards the end of the trial, and once all the evidence has been presented by both sides, it is the job of the trial judge to assist the jury in their task by summing up the evidence and directing them as to what the law is. It is important that the jury listens to the summing up and to all the evidence.

After the summing up, the jury are put in the hands of a jury bailiff and made aware of their duties by the trial judge. The jury leaves the court and must retire to the privacy of a jury room where they are required to deliberate and discuss the case in secret and come to a decision as to whether the defendant is guilty or not they decide questions of fact and the judge will advise them on questions of law.

One feature of the jury system is that, despite any direction by the trial judge about the law and the facts of the case at the end of the trial, they are free to make up their own minds free from any outside influence and pressure. This has been demonstrated on a number of occasions over the years. Such decisions which seem to fly in the face of the law or facts or both have come to be known as 'perverse' verdicts. They serve to demonstrate the independence of the jury and are seen as a strength. These decisions are rare so although they can be used to support the argument that the jury system is 'flawed' they are also welcomed from time to time as a reminder of the independence of the jury.

A clear example of a perverse verdict arose in the case of R v Randle and Pottle (1991) where the defendants, who were prison officers, were charged with helping a notorious spy to escape. The defendants did not deny what they had done at the time of their trial but explained why they had helped. They reasoned that it was to do with the time that had elapsed between when the events alleged against the spy were said to have taken place and the prosecution.

The subsequent inquiry into the jury system known as the Auld Report (2002) identified 'perverse' verdicts as a problem. One of the report's recommendations was that such decisions should be outlawed and allowing a right of appeal in favour of the prosecution to overturn a perverse verdict but such measures have never been implemented.

As part of the trial judge’s direction to the jurors regarding what is required of them he or she will explain that a unanimous decision is required. There are 12 jurors and this means that all of them must agree on the verdict through discussion and deliberation in the jury room. Time will be allowed for the jury to reach a verdict.  In the event that the jury fail to agree and are unable to reach a verdict, the trial judge will give further guidance and may well direct that the court will accept a majority decision this is normally 11:1 or 10:2.

The trial judge will mention the basis upon which they should decide the case.  The responsibility for making out the case against the defendant is upon the prosecution. The jury must be satisfied beyond all reasonable doubt that the accused is guilty before they can reach such a verdict.  The modern equivalent is that they must be sure’ that the accused did what he or she is accused of.  

A jury foreman will be identified and selected by the members of the jury.  The foreman or spokesperson will announce the verdict in open court.  The jury does not have to give any explanation or reasoning for their decision.

At this stage the jury will have done what has been asked of them.  The trial judge is likely to thank them for their work and dismiss them.  In the event of a particularly complex or difficult case the trial judge may direct that the members of the jury are relieved of further jury service for a specified period of time.

The jury are also reminded that their work, including their deliberations and details of how they may have voted, is to be kept private and confidential.

Juries have a more limited role in civil cases.  It is probably fair to say that it is only in exceptional cases that a jury is used in civil cases.

 

As regards the role of lay magistrates in criminal cases, Magistrates’ courts try 97% of all criminal cases from start to finish. Even persons charged with murder must appear first before a Magistrates' court. The importance and value of the use of lay magistrates becomes immediately apparent. The criminal justice system is dependent on these volunteers in order that the justice system functions properly. The question of whether this role should be fulfilled by employing members of a trained judiciary with fully qualified judges is a separate matter but at present the magistrate's role is vital.

 

Magistrates have some dealings with the other 3% of criminal cases even though they themselves do not dispose of the trial itself. This includes first appearances and other early administrative hearings such as remand hearings, bail applications and committal proceedings. Lay magistrates may not dispose of the matter in the sense that they do not hear the trial but nonetheless they are participating in an important way.

 

By participating in these early administrative matters they are ensuring that due processes are being followed and that a fair hearing and trial is safeguarded. Magistrates courts deal with applications to extend the time a person can be detained in a police station for interview. The prosecuting and police authorities are being seen as having to relinquish the accused to other institutions as part of the criminal justice system. This is an important check and balance on the criminal justice system and assures the public that the police are following correct procedures.

 

Unlike a Crown Court where the trial judge will be assisted by a jury who will make the eventual decision as to guilt or innocence, magistrates deal with matters summarily - that is to say without a jury. Magistrates will therefore reach a decision about guilt or innocence and, if there is a guilty outcome, will proceed to deal with the matter of sentencing. Magistrates usually sit as a 'bench' of three with one of their number acting as chairperson. This is to avoid any problems of failing to reach an acceptable decision should a minority disagree.

 

The type of offences that the magistrates deal with are defined as 'summary' offences. In fact the law prescribes that all summary offences must be dealt with by magistrates. Examples of summary offences include most motoring offences, minor criminal damage and being drunk and disorderly. In terms of severity summary offences are usually thought of as being minor offences whilst those offences dealt with on indictment at the Crown Court are considered to be serious offences. In fact, other than deal with the administrative matters outlined previously, magistrates do not have a role in serious offences and Magistrates’ courts always pass the most serious crimes such as murder, rape and robbery to the Crown Court.

 

In addition to summary offences Magistrates' courts can deal with more serious offences. These more serious offences are known as 'either way' offences, sometimes they are referred to as 'hybrid' offences. These either way offences are not generally as serious as indictable offences but are regarded as 'middle range' offences. Examples include such offences as burglary and certain drugs offences.

 

In the case of triable either way offences the role of the Magistrates' court is to deal with the Plea Before Venue, when the defendant will be asked whether he wants to plead guilty or not guilty. If he pleads guilty the court will move on to sentencing. If he pleads not guilty the Magistrates court will then deal with the Mode of Trial procedure when the court will decide, after consultation with both sides, where the case should be heard. Magistrates have to consider carefully whether they wish to deal with the matter themselves or refer the matter to the Crown Court as this will impact upon the nature of the trial process and may affect the sentence if the person is found guilty. Any aggravating factors which suggests that the offence or situation in which it was committed make it more serious are taken into account. If the magistrates accept jurisdiction and decide to deal with the matter themselves their role is to find the defendant not guilty or guilty and deal with the sentencing or at the end of trial they may decide to send the matter to the Crown Court for sentencing if the circumstances warrant such action.

 

Lay magistrates also have a role to play in relation to bail. Bail entitles a suspect to live at home pending the hearing of their case so this can have an important bearing on the trial and on the individual. If bail is refused this will mean that the accused is kept in custody. If the Magistrates' court grants bail the accused may live at home. The court may impose bail conditions such as staying away from victims or witnesses. The Bail Act 1976 sets out the factors and circumstances which may be taken into account when considering whether to grant bail.

 

In some circumstances the police must apply to magistrates for a warrant of arrest or to search premises. This is a role placed with magistrates as another check and balance on the powers of the police. Whilst the work of the police in protecting the public is vital it is important to realise that the police can only exercise the powers that Parliament has specifically granted to them. Arresting or detaining someone or searching their property amounts to an infringement of their inherent rights and freedoms unless the law specifically authorises the police to act. In the circumstances, magistrates have an important role to play in ensuring that the suspect is named and identified properly together with the offence committed and any other required information in any application for an arrest warrant. This is about accountability and is designed to ensure that there is sufficient evidence and information.

 

Sentencing is an important function of Magistrates' courts and the sentences they can hand out are stipulated as:

  • up to 6 months in prison (or up to 12 months in total for more than one offence)

  • a fine of up to £5,000

  • a community sentence, such as doing unpaid work in the community.

Magistrates take this part of their work seriously and take time to properly consider what would be an appropriate sentence. Magistrates strive to represent the community at large and work on the part of the public including the victims. In some situations they may adjourn sentencing until they have had an opportunity to receive and consider a report from the Probation Service into the social background of the accused before they sentence the individual.

 

The role of lay magistrates extends to dealing with young offenders aged 10 to 17 years. Such offenders are dealt with in a part of the court known as the youth court which is set aside specially to deal with young offenders. The magistrates receive special training before they can hear such cases. The age of criminal responsibility in England and Wales is 10 years meaning that persons below the age of 10 years are deemed by law to not be responsible for any criminal acts. This means that a child below the age of 10 cannot be charged with a criminal offence.

 

Persons older than 17 years will be dealt with by a normal Magistrates court. A jury is not used in the Youth Court in the same way that it is not used in a Magistrates' Court and certain other safeguards are in place. Persons under 16 must be accompanied by a parent or guardian and Youth Courts are less formal and the range of sentences available are different than the full range available to adult offenders.

 

Finally lay magistrates do participate in the appeal process in the event of an appeal from the Magistrates' Court to the Crown Court. This means that a representative magistrate will sit with the judge in the Crown Court to hear the appeal. The benefit of this is that it provides an opportunity for magistrates to consider how their work is received not just by defendants but by other members of the judiciary and this includes the matter of sentencing.

 

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