#16094 - Overview Of Criminal Procedure - BPC Criminal Litigation (formerly BPTC) 2024/2025

Overview of Criminal Procedure

NB:

References in these notes to paragraph numbers in the following format: [F2.3] are references to the paragraph numbers of Blackstone’s Criminal Practice 2017.

The criminal justice process:

• (1) Arrest and brought before magistrates’ court (OR, magistrates’ court tissues a written charge and requisition to secure their attendance).

• (2) PLEA:

  • If plead guilty court moves to sentence.

  • If plead not guilty a trial.

    • If guilty verdict D is sentences.

    • If not guilty D is acquitted.

• (3) Appeal (possible, if sentenced following either a guilty plea or verdict).

• (1) Arrest/Requisition

  • Police can arrest if reasonable grounds for doing so.

  • Conduct during an investigation, arrest and subsequent treatment is governed by PACE 1984 and PACE Codes of Practice.

  • After investigation, a person is either released from police custody; or charged with an offence.

  • Alternative to arrest, requisition: made to appear before a court via a ‘written charge and requisition’ the appropriate prosecuting body has power to compel a person’s attendance before a court to enter a plea on an offence.

    • This process generally used (i) against corporate bodies; (ii) where a person is in breach of a court order; (iii) driving offences.

  • Prosecuting bodies:

  • Vast majority of prosecutions brought by CPS (prosecute matters investigated by police, HMRC and gov departments).

  • Other bodies – eg TFL, railway operates, Health & Safety Exec – prosecute their own matters.

  • Private individuals can bring prosecutions (but CPS has right to take over).

• (2) Plea

  • Once before a court, D asked to enter a plea – at first hearing, or at a subsequent hearing.

  • If D pleads not guilty, there must be a trial. If D pleads guilty, no trial.

• (3) Trial

  • Parties call evidence and court determines whether D is guilty or not.

  • If D found not guilty, D is acquitted of the charge.

• (4) Sentence

  • If D found guilty, or pleads guilty ,must be sentenced.

• (5) Appeal

  • If D pleads guilty, can appeal against the sentence. In v limited circumstances, can appeal against their conviction.

  • If D is found guilty, can appeal against their conviction and/or sentence.

  • No leave is required to appeal from the magistrates or Youth Court to the Crown Court.

  • Leave is required to appeal from Crown Court to CA, and from CA to SC.

Classification of offences. 3 classes of offence [[Blackstone, D6.2]]

• [[NB, classifications are only relevant to adults; with youths, the potential sentence determines where their trial is held.

• Blackstone, D6.1: Crim trials are either trials on indictment or summary trials.

  • Trials on indictment: Crown Court, before judge and jury

  • Summary trials: in magistrates’ court, before at least 2 lay justices; or a single district judge.

• (a) summary only matters: an offence which, if committed by an adult, is triable only summarily;

• (b) either-way matters: an offence [[other than an offence triable on indictment only by virtue of s40 Crim Justice Act 1988]] which, if committed by an adult, is triable either on indictment or summarily.

• (c) indictable only matters: an offence which, if committed by an adult, is triable on indictment, whether it is exclusively triable or triable either way.

• [[Blackstone, D6.3: where an Act says phrase ‘indictable offence’ without further qualification, it includes both indictable-only and either-way offences (even though they can be tried summarily with agreement of accused & magistratse).

Determining which classification [[also Blackstone, D6.4]]:

• All common law offences (non-statutory offences): All matters that are contrary to common law (i.e. not a creation of statute) = indictable only, maximum sentence is ‘at large’ (i.e. any sentence up to and including life imprisonment may be imposed by Crown Court. [[unless listed in the MCA 1980, Sch 1]].

• Statutory offences, how to check which category:

  • (a) consult a practitioner text; OR

  • (b) look at the maximum sentence set out in the relevant statute:

    • (i) if there is a max sentence ‘on summary conviction’ only a summary only matter.

    • (ii) if there is a max sentence containing phrase ‘on indictment’ only an indictable only matter.

    • (iii) if it lists both a maximum ‘on summary conviction’ and a maximum ‘on indictment’ either-way matter.

Offences you need to memorise classification for BPTC syllabus:

• Summary only:

  • Common assault

  • Crim damage where value is 5,000 or less.

• Either-way:

  • Theft

  • Burglary

  • Fraud

  • Sexual assault

  • ABH (s47 OAPA 1861)

  • Wounding (s20 OAPA)

  • Possession of Class A or B drugs

  • Possession with intent to supply Class A or B drugs

  • Crim damage where value > 5,000

• Indictable only

  • Robbery

  • Rape

  • Wounding with intent (s18 OAPA)

Summary only offences

• Only capable of being tried and sentenced in the magistrates’ court. So:

  • (a) PLEA—is usually entered at first hearing before a magistrates’ court.

  • (b) TRIAL—if one is necessary, can only occur in magistrates’ court.

  • (c) SENTENCE—If D needs to be sentenced, can only take place in magistrates’ court.

• An EXCEPTION: in certain circumstances, where D is charged with an either-way or indictable only matter and a summary only matter, the summary only matter can be heard in the Crown Court.

  • D6.3 Blackstone’s: CJA 1988 s40 enables certain specified summary offences to appear on indictment if linked to an indictable offence for which the accused has been sent to Crown Court for trial.

  • Such offences include: common assault; taking a motor vehicle without consent; driving whilst disqualified; and crim damage to which MCA 1980 s22 applies [not exceeding 5,000].

  • +, under CLA 1967 s6(3A), a jury can (by way of alternative verdict under s6(3)) convict an accused of a summary offence to which CJA 1988 s40 applies, even if a count charging the offence is not included in the indictment.

Indictable only offences

• Only capable of being tried and sentenced in the Crown Court. Thus:

  • (a) PLEA---whilst D will have their first hearing in magistrates’ court, this is just an administrative hearing to start the court process. Plea will be entered in Crown Court.

  • (b) TRIAL-if necessary, can only occur in Crown Court.

  • (c) SENTENCE—If D needs to be sentenced, can only take place in Crown Court.

Either-way offences

• Can be tried & sentence in either magistrates or Crown Court.

  • (a) PLEA—D has first hearing in M court; at this hearing, court will decide the appropriate venue for the trial. If M court decides case must be heard in Crown Court (‘declining jurisdiction’) it will go there. If M court decides case is suitable to retain in M court (‘accepting jurisdiction’) D can consent to this or exercise their right to trial by jury in the Crown Court.

  • (b) TRIAL – If one is necessary, will take place in either M court or Crown Court.

  • (c) SENTENCE – If D has trial in Crown Court, and needs to be sentence, sentence will be there. If D has trial in M court, they can either by sentenced by M Court if, if they feel their sentencing powers are insufficient, be committed to Crown Court for sentence.

What does each court do?

• Tribunal of fact = person(s) who makes decision where parties dispute the facts.

• Tribunal of law = person(s) who make decision where parties dispute the law and/or its interpretation.

• Blackstone, D3.1:

  • the criminal trial of an adult takes place either in Crown Court or in Mag court;

  • crim trial of juvenile in Youth Court (a special form of M court) usually, but sometimes in either Crown Court or ordinary M court.

Magistrates’ court [[Blackstone, D3.19]]

• all adults have first hearing here.

• Consist of JPs:

  • Mostly unpaid lay men/women.

  • A minority are salaried district judge (magistrates court) who are legally qualified

• Judge =

  • a District Judge or Deputy District Judge

  • OR three (or two) lay magistrates and a legal adviser.

• Where proceedings fall into a number of distinct stages (eg, m’ court, after convicting an offence and imposing a fine, subsequently takes steps to enforce payment of the fine) the court for later stage need not be constituted by same bench as on first occasion, as long as both m’ court are acting in same local justice area.

• Jurisdiction of m’court (D3.23): jurisdiction to try any summary offence AND any offence which is triable either-way (subject to the mode of trial procedure).

  • If accused is convicted of summary offence court may sentence up to max penalty provided by the statute creating the offence.

  • M’ court can try an either-way offence IF: (a) court’s power of sentencing will be adequate in case of conviction; and (b) the accused agrees.

  • If accused is convicted of either-way offence in m’ court: court may impose a penalty up to 6 months imprisonment and/or unlimited fine.

  • If convicted of either-way offence: may commit for sentence to Crown Court if sentencing powers inadequate.

  • May send someone accused of an indictable offence (whether indictable-only or either-way) for trial in Crown Court

Youth Court

• All youths (under 18) have first hearing here, unless jointly charged with an adult.

• Youth Court is a form of m’ court; has jurisdiction to try juveniles (<18) for any offence (other than homicide and certain firearms offences), whether indictable or summary

• In certain circumstances, court may choose to send to Crown Court for trial.

Crown Court

• Creation & Status of Crown Court [D3.2]:

  • Created by Courts Act 1971; derives jurisdiction from Senior Courts Act 1981. Practice and procedure set out in CrimPR.

  • Is regarded as a single court (although sits in many different locations). Choice of location depends on: nature of offence;...