THE CRIMINAL COURTS

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THE CRIMINAL COURTS 6


6.1 INTRODUCTION


There are over 12,000 different criminal offences in English law, 3,700 of which have been created since 1997. Professors Andrew Ashworth and Lucia Zedner recently identified that criminalisation is no longer a last resort but has become ‘a routine system for management disorder’ (A. Ashworth and L. Zedner (2008) ‘Defending the criminal law: reflections on the changing character of crime’, 2 Criminal Law and Philosophy 21). These offences can be classified in different ways. You could, for example, classify them according to whether they are offences against people or property; you could classify them according to the type of mental element (mens rea) required for the offence, for example, ‘intention’ or ‘recklessness’. Another type of classification, and the one that concerns us here, is whether the offence is triable summarily, that is, in a magistrates’ court (for relatively trivial offences like traffic offences), or is an indictable offence (the more serious offences like murder, manslaughter, rape and robbery are indictable only), triable in front of a judge and jury in a Crown Court.


From the mid-nineteenth century, magistrates were empowered to hear some indictable cases in certain circumstances. Today, there is still a class of offence that is triable ‘either way’, that is, summarily or in a jury trial. A typical example would be a potentially serious offence such as theft, but one that has been committed in a minor way, as in the theft of a milk bottle. These offences now account for about 80 per cent of those tried in Crown Courts. Most defendants, however, opt for summary trial. The magistrates’ court has the power to refuse jurisdiction – that means to refuse to deal with the matter – if it thinks, having considered the facts of the case, that its powers of sentencing would be insufficient if the case resulted in a conviction.


Where several defendants are charged together with either way offences, each defendant’s choice can be exercised separately. So, if one elects for trial in the Crown Court, the others may still be tried summarily if the magistrates agree (R v Brentwood Justices ex p Nicholls (1991)).


6.2 MAGISTRATES’ COURTS


An estimated 1.68 million defendants were proceeded against in criminal cases in magistrates’ courts in 2010 (excluding breaches) (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 63). This amounts to a fall compared with the 1.79 million defendants in 2009 and the 1.92 million defendants in 2008. These figures are not directly comparable with those prior to 2008 because a different data source has been used since 2008.


The office of magistrate or Justice of the Peace (JP) dates from 1195, when Richard I first appointed ‘keepers of the peace’ to deal with those who were accused of breaking ‘the King’s peace’. The JPs originally acted as local administrators for the king in addition to their judicial responsibilities. Apart from the 29,270 lay justices who sit in some 330 courts, there are also 140 district judges (magistrates’ courts) (formerly known as stipendiary magistrates) and 151 deputy district judges (magistrates’ courts) who sit in cities and larger towns (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 63). They are qualified, experienced lawyers who are salaried justices. A Practice Direction from the Lord Chief Justice sets out details concerning the classification and allocation of Crown Court business, and some of this is relevant to the magistrates’ courts. For example, upon sending someone for trial at the Crown Court, the magistrates should, if the offence is a class I offence (for example murder, manslaughter, or treason) specify the most convenient location of the Crown Court where a High Court Judge or a circuit judge authorised to try such cases regularly sits: Practice Direction (Criminal proceedings: Classification and allocation of business) (2005).


It became evident in 2009 that the workload of many magistrates’ courts was being diverted away from the court system. Magistrates complained that increasing numbers of offenders were being dealt with by ‘on-the-spot’ fines and cautions – almost half of all offences are now dealt with in this way (The Times, 10 July 2009). John Thornhill, chairman of the Magistrates’ Association, said: ‘Magistrates are reporting to us cancelled sittings across the country, either because of no work, or disposing of the case out of court’. Costs were not saved in the long term, however, because nearly half of such fines went unpaid. Mr Thornhill observed that ‘Many of these cases come back to the courts in the end, because the offender has failed to pay’. The use of out-of-court penalties has risen sharply in recent times. In 2010, across England and Wales, 97,700 cases were received for trial in the Crown Court. This represents no change compared with 2009, which saw an increase of 9 per cent on 2008 (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 85). Enforcement of financial penalties in England and Wales in 2009, in terms of the amount actually paid, was £281 million, representing a 12 per cent increase on 2009 (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 3).


In May 2010, plans to build a new magistrates’ court in Birmingham were deferred as part of ‘additional budget savings’, according to a Ministry of Justice press release (www.justice.gov.uk/news/newsrelease280510a.htm). This represents part of the £95 billion cut in public spending that the government plans to make over the next five years, with the Ministry of Justice needing to reduce its budget by £1 billion.


6.2.1 SUMMARY TRIAL


Summary offences are created and defined by statute. There are thousands of different summary offences. They include traffic offences, common assault, taking a motor vehicle without consent and driving while disqualified: about 90 per cent of all cases are dealt with in the magistrates’ court (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 62).


Cases are heard in the court for the district in which the offence is alleged to have been committed. In most cases, the defendant will be in court, but it is possible for the accused in road traffic offences to plead guilty by post and not to attend court.


Two or three magistrates whose powers of sentencing are limited by the Acts that govern the offences in question will hear the cases. A district judge (magistrates’ courts) may sit without lay magistrates. The maximum sentence that magistrates can impose on a private individual is a Level 5 fine (current maximum £5,000) and/or a 12-month prison sentence for more than one either way offence (see below), or six months for one offence. Businesses may be fined up to £20,000 for certain offences. The maximum sentences for many summary offences are much less than these limits. Where a defendant is convicted of two or more offences at the same hearing, the maximum custodial sentence for any one offence is 12 months (s 154 of the Criminal Justice Act 2003, to be brought into law at a date to be appointed). Several sentences to be served concurrently, including more than one 12-month sentence, will be permitted. Consecutive sentences amounting to more than 12 months are not permitted, but will be limited to 65 weeks once s 155 of the Criminal Justice Act 2003 is brought into force. A date for its coming into force has still not yet been appointed.


Many statutory offences are given particular ‘levels’ according to their seriousness. This means that if a government minister wishes to raise fines (say to be in line with inflation), he does not have to go through hundreds of different offences, altering the maximum fine in relation to each one separately; the maxima for each level are simply altered. The 2010 figures are as follows: Level 5 up to £5,000; Level 4 up to £2,500; Level 3 up to £1,000; Level 2 up to £500; and Level 1 up to £200: s 37 of the Criminal Justice Act 1982.


The Criminal Justice Act (CJA) 1991 (the framework statute for many of the sentencing powers of the courts until the enactment of a consolidating statute, the Powers of the Criminal Courts (Sentencing) Act 2000) provided for a new system of fining in magistrates’ courts: the ‘unit fine’ system. Under this system, fines were linked to the offender’s income. The idea was that the rich should pay more than the poor for the same offence. Crimes were graded from 1 to 10 and the level of crime was then multiplied by the offender’s weekly disposable income. The system’s figures, however, resulted in many anomalies and it was eventually abolished. Nevertheless, in fixing the appropriate amount for a convicted defendant’s fine, the magistrates must still take into account his income. Other sentences that the court may use include absolute discharge, conditional discharge, community orders (replacing the old probation orders, community service/punishment orders and curfew orders, and including many new types of requirements which can be included in community orders), and compensation orders.


After a conviction, the magistrates will hear whether the defendant has a criminal record and, if so, for what offences. This is to enable them to pass an appropriate sentence. If, after hearing that record, they feel that their powers of sanction are insufficient to deal with the defendant, then the defendant may be sent to the Crown Court for sentencing.


A bench of lay magistrates is legally advised by a justices’ clerk who is legally qualified and guides the justices on matters of law, sentencing and procedure. The justices’ clerk may give advice even when not specifically invited to do so. It is an established principle of English law that ‘justice should not only be done but manifestly and undoubtedly be seen to be done’ (R v Sussex Justices ex p McCarthy (1924), per Lord Hewart CJ). This is not about the proceedings being visible from a public gallery! It means there must be nothing in the appearance of what happens in a trial that might create an impression that something improper happened. In the Sussex Justices case, Mr McCarthy had been convicted of dangerous driving. He found out that the clerk to the magistrates, the person giving them legal advice, was a solicitor who happened to be representing someone who was suing him as a result of the car accident. Even though the solicitor might have been perfectly professional, there was the appearance that he could have framed his advice to the magistrates (even subconsciously) to help secure a conviction because such an outcome would have assisted his client in the civil case. The clerk had retired with the magistrates when they went to consider their verdict. The conviction was quashed because of the possibility of bias.


The magistrates are independent of the clerks and thus the clerks should not instruct the magistrates what decision to make on any point, nor should they appear to be doing so. The clerk should not, therefore, normally retire with the justices when they go to consider their verdict in any case, although they may be called on by the magistrates to give legal advice on any point. The clerk should not give any judgment on matters of fact. The justices’ clerk will employ legally qualified assistants to sit in court with magistrates – they are known as court legal advisers and carry out the advisory role described above. Court legal advisers have been given ‘delegated powers’ to deal with straightforward unopposed applications in the absence of the magistrates – for example, where both prosecution and defence agree an adjournment of a case or where a warrant for the arrest of the accused is to be issued in his/her absence. As these are formal matters the attendance of the magistrates in court is not required if the legal adviser is happy to deal with them in this way.


The court is required in certain cases to consider a compensation order and to give reasons if it decides not to make such an order. Compensation orders are governed by the provisions of ss 130–34 of the Powers of the Criminal Courts (Sentencing) Act (PCC(S)A) 2000. Section 130 states that a court before which a person is convicted, in addition to dealing with him in any other way, may make a compensation order. The order is to compensate personal injury, loss or damage resulting from the offence in question or any other offence ‘taken into consideration’ (that is, admitted by the defendant) by the court. The defendant can also be ordered to make payments for funeral expenses or bereavement in respect of a death resulting from an offence (other than a death due to a motor accident). The court, s 130(3) states, ‘shall give reasons, on passing sentence, if it does not make such a compensation order in a case where this section empowers it to do so’. Unlike a fine, the compensation will go to the victim rather than to the State, so these orders save victims of crime from having to claim damages against defendants in the civil courts. They are not intended as an alternative to punishment, enabling the defendant to buy his way out of the penalties for the crime. Even so, s 130(12) gives priority to the issue of a compensation order over a fine. In 2007, the Crown Court and magistrates’ courts issued 165,372 compensation orders (up from 137,446 in 2006). The total cost in 2007 was £36,323,584 (Hansard, 15 January 2009, col 917W).


Alongside any such compensation order, an offender may also be required to pay prosecution costs, currently set at £85, and a so-called ‘Victim Surcharge’, currently priced at £15. This surcharge is statutorily imposed regardless of whether or not there was a victim or victims. In this way, it can be understood as a tax on the cost of a prosecution.


6.2.2 OFFENCES TRIABLE ‘EITHER WAY’


Where the defendant is charged with an offence triable ‘either way’, two preliminary decisions have to be made: first, should he be tried summarily (by magistrates) or on indictment (in the Crown Court by a judge and jury)? The procedures by which this matter is resolved are known as plea before venue and mode of trial hearings.


In a plea before venue hearing, that is, one where the accused is charged with an either way offence, he is first asked if he wishes to indicate a guilty plea. If he does, the magistrates will hear the facts of the case and see details of his previous convictions. They retain the power to commit him for sentence to the Crown Court if they feel that their powers of punishment are inadequate (this is dealt with later in more detail). If they feel that they have enough power to deal with the accused, then they proceed to sentence him.


If the defendant pleads not guilty or declines to indicate his plea then a mode of trial hearing is held. In this hearing the prosecution and defence make submissions about whether the case should be heard at the magistrates’ or Crown Court. The magistrates then decide whether to agree to hear the case or decline to do so and commit it to the Crown Court. If they agree to hear the case then the accused can still choose (elect) to have his case heard by a jury and – if he so chooses – the case will be committed for Crown Court trial. If he decides in favour of the magistrates’ court, then it will fix a date for a summary trial.


Secondly, if the determination is in favour of trial on indictment (by either method), the question is asked whether there is a sufficient prima facie case to go before the Crown Court. This question is answered at a hearing known as committal proceedings. Changes to this system have been made by the Criminal Justice Act 2003, although these changes are still not yet in force.


Most defendants charged with ‘either way’ offences are tried by magistrates: 48,600 cases were committed to the Crown Court in 2010 because the magistrates considered their sentencing powers to be inadequate and on average 4 per cent of cases go to the Crown Court because the defendants elect trial by jury (Judicial and Court Statistics 2010, Ministry of Justice, July 2011, p 85).


The defendant therefore can insist on trial on indictment, but cannot insist on being tried summarily if the magistrates decline jurisdiction. Similarly, the magistrates can decide that the defendant should be tried on indictment, but cannot insist that he be tried summarily. Prosecutions conducted by the Attorney General, the Solicitor General or the Director of Public Prosecutions must be tried on indictment if so requested by the prosecutor.


6.2.2.1 The Criminal Justice Act 2003


The Act will make various changes to this area but no date has been set for their implementation.


Section 41 of the Criminal Justice Act 2003, via para 5 of Sched 3, substitutes s 19 of the Magistrates’ Courts Act 1980, which makes provision for the procedure to be followed by a magistrates’ court in deciding whether a case involving an offence triable either way to which the defendant has not indicated a guilty plea should be tried summarily or on indictment. The new procedure (‘allocation’) differs from the present one in that the court is to be informed about, and take account of, any previous convictions of the defendant in assessing whether the sentencing powers available to it are adequate. The court is to have regard, not only (as now) to any representations made by the prosecution or defence, but also to allocation guidelines, which may be issued by the Sentencing Guidelines Council under s 170. This section is not yet in force.


Section 41: Allocation of Offences Triable either Way and Sending Cases to the Crown Court

Section 41 introduces Sched 3, Part 1 of which sets out (through amendments to existing statutes) how it is to be decided whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases that need to go there.


Amendments to the Magistrates’ Courts Act 1980

Paragraphs 3 and 4 of Sched 3 to the 2003 Act clarify that the preliminary stages of an either way case, including the plea before venue and allocation procedures, may take place at a hearing before a single justice. However, a single justice may not conduct a contested trial, nor – while he may take a guilty plea – may he impose a sentence on the offender. Paragraph 3 also limits the sentence that may be imposed where a person pleads guilty to a low-value offence.


Paragraph 5 substitutes s 19 of the Magistrates’ Courts Act 1980, which makes provision for the procedure to be followed by a magistrates’ court in deciding whether a case involving an offence triable either way to which the defendant has not indicated a guilty plea should be tried summarily or on indictment. The new procedure (‘allocation’) differs from the previous one in that the court is now to be informed about, and take account of, any previous convictions of the defendant in assessing whether the sentencing powers available to it are adequate. The court is to have regard not only (as previously) to any representations made by the prosecution or defence, but also to allocation guidelines which may be issued by the Sentencing Council (formerly the Sentencing Guidelines Council) under s 170.


Paragraph 6 substitutes s 20 of the Magistrates’ Courts Act 1980, which sets out the procedure to be followed by the magistrates’ court where it decides that a case is suitable for summary trial. As previously, defendants will be told that they can either consent to be tried summarily or, if they wish, be tried on indictment. In making that decision, they may be influenced by the knowledge that, since it will generally no longer be possible to be committed for sentence to the Crown Court once the magistrates have accepted jurisdiction, they cannot receive a sentence beyond the magistrates’ powers. Moreover, defendants now have the opportunity of requesting an indication from the magistrates as to whether, if they pleaded guilty at that point, the sentence would be custodial. The magistrates’ court now has a discretion whether or not to give such an indication to a defendant. The magistrates may refuse to give an indication and are not required to give reasons for doing so. Where an indication is given, defendants have the opportunity to reconsider their original indication as to plea. Where a defendant then decides to plead guilty, the magistrates’ court will proceed to sentence. A custodial sentence will be available only if such a sentence was indicated, and if so – unlike after a guilty plea indication under s 17A or 17B – the option of committal to the Crown Court for sentence under s 3 of the PCC(S)A 2000 will not be available, although committal for sentence under s 3A of that Act will be available where the criteria for an extended sentence or a sentence for public protection appear to be met.


If this is not the case (that is, where the defendant declines to reconsider his plea indication, or where no sentence indication is given), the defendant will be given the choice between accepting summary trial or electing for trial on indictment, as at present. Where an indication of sentence is given and the defendant does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the defendant elects trial on indictment.


Paragraph 7 substitutes s 21 in the Magistrates’ Courts Act 1980 so that, where the court decides that trial on indictment is more suitable, it will proceed to send the case to the Crown Court in accordance with s 51(1) of the Crime and Disorder Act 1998.


Paragraph 10 adds four new sections (24A–24D) to the Magistrates’ Courts Act 1980, which apply a procedure akin to that in ss 17A–17C (‘plea before venue’) to cases involving defendants who are under 18. It would apply in certain cases where it falls to the court to decide whether the defendant should be sent to the Crown Court for trial, whether in his own right, or for joint trial with an adult defendant.


Paragraph 11 amends s 25 of the Magistrates’ Courts Act 1980. The previous power to switch between summary trial and committal proceedings is abolished, and in its place there is a new power for the prosecution to apply for an either way case which has been allocated for summary trial to be tried on indictment instead.


Sending Cases to the Crown Court

Paragraphs 15–20 amend the Crime and Disorder Act 1998. Paragraph 17 sets out the order in which a magistrates’ court is to apply various procedures in respect of either way offences.


Paragraph 18 substitutes s 51 of the Crime and Disorder Act 1998 (see below, at 5.2.4.3) so that it applies not only (as now) to indictable only offences (and cases related to such offences), but also where an either way case involving an adult defendant is allocated for trial on indictment. The provisions for sending to the Crown Court related cases against the same defendant or another defendant (including one under 18) are preserved.


Paragraphs 21–28 amend the PCC(S)A 2000. The most important of these concerns the committal to the Crown Court for sentence of offences triable either way. This power is no longer available in cases where the magistrates’ court has dealt with the case having accepted jurisdiction (whether as a contested case or a guilty plea), but is limited to cases where a guilty plea has been indicated at plea before venue.


If a defendant charged with a number of related either way offences pleads guilty to one of them at plea before venue and is sent to the Crown Court to be tried for the rest, the power in s 4 of the PCC(S)A 2000 – to send the offence to which he has pleaded guilty to the Crown Court for sentence – still exists.


6.2.3 YOUTH COURTS


The procedures previously discussed apply only to those aged at least 18. Defendants under 18 years of age will normally be tried by a youth court, no matter what the classification of the offence (summary, either way, indictable only). However, a defendant under 18 must be tried on indictment where the charge is homicide, and may be tried on indictment where:


the offence charged is punishable with at least 14 years’ imprisonment, or is indecent assault, or (if the defendant is at least 14 years of age) is causing death by dangerous driving or causing death by careless driving while under the influence of drink or drugs;


the defendant is jointly charged with an adult who is going to be tried on indictment and the court considers that it is in the interests of justice that both should be tried on indictment.


A defendant under 18 may be tried summarily in an adult magistrates’ court where:


he is to be tried jointly with an adult. This is subject to the power to commit both for trial on indictment, and also subject to a power to remit the defendant under 18 for trial to a youth court where the adult pleads guilty, or is discharged or committed for trial on indictment, but the defendant is not;


he is charged as a principal offender and an adult is charged with aiding, abetting, etc;


he is charged separately from, but at the same time as, an adult, and the charges against each arise out of the same or connected circumstances;


it appears during the course of a summary trial that, contrary to the initial belief, he is under the age of 18.


There is likely to be a significant reduction in the number of defendants aged under 18 tried at the Crown Court following the introduction of s 41 of the Criminal Justice Act 2003 which, through Sched 3 to the Act, reframed the rules to produce the foregoing principles.


When defendants under 18 are tried by magistrates in the youth court, there will generally be three justices to hear the case, of whom one must be a man and one a woman. These justices will have had special training to deal with such cases. There are special provisions relating to punishment for this age group. The current maximum fine for a child (under 14 years of age) is £250, and for a young person (under 18) £1,000 (s 36 MCA 1980, as amended by s 17(2) CJA 1991 and Sched 13). Members of both groups may be made the subject of supervision orders and compensation orders. A sentence of imprisonment may be imposed only on a defendant who is at least 21 years old. A sentence of detention in a young offenders’ institution may be imposed only on a defendant who is at least 18 years old (the intention is to bring all those aged at least 18 within the imprisonment regime). For those under 18, the custodial sentence is a detention and training order, which may be imposed only where an adult could have been sentenced to imprisonment. Where the defendant is under 15, a detention and training order can be imposed only if he is a ‘persistent’ offender. In measures under Part III of the PCC(S)A 2000, the youth court will on some occasions be obliged, and on others will have the discretion, to refer the young offender to a youth offender panel, the members of which will agree with the young offender and his family a course of action designed to tackle the offending behaviour and its causes. This could involve actions such as making apologies, carrying out reparation, doing community work or taking part in family counselling.


Traditionally, the aim of the youth court system has been to take the young offender out of the normal criminal court environment, and this has involved strict rules about public access to the court. In general, members of the public have not been permitted to attend and reporting restrictions have been very tight. Parents can be required to attend, and must attend in the case of any person under the age of 16, unless such a requirement would be unreasonable in the circumstances. The name or photograph of any person under 18 appearing in a case must not be printed in any newspaper or broadcast without the authority of the court or the Home Secretary. Also the youth justice system has introduced a system of warnings and reprimands (formerly known as cautions) that are issued instead of court proceedings for many offenders in an attempt to divert them from the youth court system.


The Criminal Justice and Immigration Act 2008 makes many changes to the operation of the youth justice system. Sections 1 to 8 (and Scheds 1 to 4) introduce youth rehabilitation orders (YROs), a new generic community sentence for children and young people. Section 9 sets out the purposes of sentencing in relation to young offenders. It says a sentencing court must have regard to ‘the principal aim of the youth justice system’ which is to ‘prevent offending (or re-offending) by persons aged under 18’. It identifies the purposes of sentencing as:


(a)    the punishment of offenders;


(b)    the reform and rehabilitation of offenders;


(c)    the protection of the public; and


(d)    the making of reparation by offenders to persons affected by their offences.


Section 10 clarifies courts’ sentencing powers to make it clear that a court is not required to impose a community sentence in cases where the offence is serious enough to justify such a sentence. Section 11 restricts the community order to imprisonable offences only. This will apply to offenders aged 18 and over only.


6.2.4 INDICTABLE OFFENCES – COMMITTAL PROCEEDINGS


Where the magistrates decide that an offence triable either way should be tried in the Crown Court, they hold committal proceedings.


6.2.4.1 Old and new committals


There are two sorts of committals under the Magistrates’ Courts Act s 6(1) (known as ‘old style’), and s 6(2) (‘new style’). The different possibilities give the defendant a tactical choice. Under the old style committal, the hearing is contested. The magistrates hear and examine the evidence although the prosecution just reads out its witness statements and exhibits with the defendant’s lawyer asking the magistrates to rule that there is insufficient evidence to proceed, that is, that there is no prima facie (Latin for ‘at first sight’) case to answer. By contrast in a new committal, the magistrates do not hear evidence or submissions. This is opted for if the defence does not wish to contest the evidence at the first stage, or if it is clear that there is a prima facie case to answer. The overwhelming majority of committal proceedings before magistrates are under s 6(2), that is, the case is ‘sent up’ to the Crown Court by the magistrates on the basis of the papers alone.


Committal proceedings will be abolished when Sched 3 to the Criminal Justice Act 2003 comes fully into force. When that happens, ‘either way’ offences that are to proceed to Crown Court trial will be sent there directly.


6.2.4.2 Reporting committal proceedings


In the old style committal proceedings, it was generally only the prosecution that would give evidence, with the defence reserving its arguments. Until 1967, the prosecution case was frequently reported on in the press so that it was virtually impossible to find an unbiased jury for the trial. A notorious instance of this was the case of Dr John Bodkin Adams in 1957. During the committal, deaths of patients other than the one for which he was to stand trial were referred to, but were not afterwards part of the evidence at the trial (The Times, 15 January 1957). The law on reporting was eventually changed by the CJA 1967 and is now found in the MCA 1980. There are now restrictions on any application for dismissal put in by the defence. It is thus an offence to report on any aspect of the case if reporting restrictions have not been lifted by the bench. The bare matters that may as a matter of course be reported are:


the identity of the court and the names of the examining magistrates;


the names, ages, addresses and occupations of the accused and witnesses;


the offence charged;


the names of the lawyers engaged in the case;


the decision of the court whether to commit or not and, if so, details of the committal, for example, to which court;


any arrangements for bail;


whether public funding was granted.


These restrictions, however, must be lifted by the magistrates if requested to do so by the accused. Where there are two or more accused and one objects to the reporting restrictions being lifted, then the magistrates must not lift them unless they regard it to be in the interests of justice to do so.


6.2.4.3 Section 51 of the Crime and Disorder Act 1998


This statute applies where the defendant is charged with an indictable only offence – one which can only be tried by a Crown Court (for example, murder, manslaughter, rape or robbery). Section 51 of the Crime and Disorder Act (CDA) 1998 states that, where an adult is charged with an offence triable only on indictment, the court shall send him directly to the Crown Court for trial. He is ‘sent forthwith’. Where he is also charged with an either way offence or a summary offence, he may be sent directly to the Crown Court for that as well, provided the magistrates believe that it is related to the indictable offence and, in the case of a summary offence, it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving. Under this procedure, the accused may apply to a Crown Court judge for the charge(s) to be dismissed, and the judge should so direct if it appears that the evidence would be insufficient to convict the accused (Sched 3 to the CDA 1998). When Sched 3 to the CJA 2003 comes fully into force, this procedure will be amended (see above 6.2.2.1).


6.2.4.4 Consistency of sentencing


Concern is often expressed at what sometimes appear to be quite notable discrepancies in sentencing practices employed by different benches of magistrates. It might be that these variations are unavoidable in circumstances where the rigidity of fixed penalties is unacceptable for most offences and regional differences in types of prevalent crime prompt justices to have certain attitudes to particular offences. Media reports from courtrooms are also unlikely to pick out the full detail and nuances of cases; there is clearly a difference between following a case in the press and watching it from the public gallery. There are several research surveys that demonstrate the discrepancies in magistrates’ sentencing. Tarling, for example (Sentencing and Practice in Magistrates’ Courts, 1979, Home Office Study 98), showed that in the 30 courts he surveyed, the use of probation (as it was then called) varied between 1 per cent and 12 per cent, suspended sentences between 4 per cent and 16 per cent, and fines between 46 per cent and 76 per cent. In one study, it was found that custody rates, average custodial sentence lengths (ACSL) and the use of life and Indeterminate sentences for Public Protection (IPPs) vary significantly across the 42 Criminal Justice Areas (CJAs) in England and Wales. For example, of those CJAs with custody rates in the top five for 2006, three (Essex, Bedfordshire and London) were consistently in the top five for 2003, 2004 and 2005. Similarly for those CJAs with custody rates in the bottom five for 2006, two (Dyfed-Powys and Lincolnshire) were consistently in the bottom five for 2003, 2004 and 2005 (T Mason, N de Silva, N Sharma, D Brown, G Harper, Local Variation in Sentencing in England and Wales, 2007, Ministry of Justice).


6.2.4.5 Committals for sentence


Currently, cases committed to the Crown Court for sentence must be heard in the Crown Court by a bench composed of a High Court judge, circuit judge or recorder sitting with between two and four JPs. The Powers of the Criminal Courts (Sentencing) Act 2000 ss 3–7 state that where, on a summary trial of an offence triable ‘either way’ a person aged 18 or over is convicted, the magistrates can commit the convicted person to the Crown Court for sentence if the magistrates are of the opinion that the offence was so serious that greater punishment should be inflicted for it than they have power to impose, or, in the case of a violent or sexual offence, that a custodial sentence for a period longer than the magistrates have power to impose is necessary to protect the public from serious harm.


6.2.5 WARRANT EXECUTION AND FINE DEFAULT POWERS


The police used to be primarily responsible for arresting fine defaulters and those in breach of community sentences. Increasingly, however, some police forces have given this work a low priority. The Courts Act 2003 extended the use of the Department for Work and Pensions’ longstanding Third Party Deduction Scheme, which allows deductions from benefits to enforce payment of fines. The new level of deductions is contained in the Social Security Fines (Deductions from Income Support) (Amendment) Regulations 2004.


Deductions can be applied when the offender is first sentenced, subsequently applied if the offender defaults as part of a resetting of payment terms, or used as a further sanction by the fines officer. While £5 is the maximum amount that can be deducted from benefits automatically to pay a fine, the overall cap on deductions remains at £8.40. Other deductions can include council tax, rent arrears, fuel costs, housing costs and water charges.


6.3 THE CROWN COURT


The Crown Court sits in 92 locations in England and Wales. The Judicial and Court Statistics 2010 (Ministry of Justice, July 2011, p 85) (www.justice.gov.uk/publications/judicialandcourtstatistics.htm) shows that:


around 97,700 cases were committed/sent for trial to the Crown Court in 2010. This represents no change compared to 2009. Disposals of cases committed/sent for trial increased by 6 per cent to 100,100 in 2010;


some 40,800 cases were committed to the Crown Court for sentence in 2010, an increase of 6 per cent on the previous year, while appeals against magistrates’ decisions decreased by 4 per cent to 13,800;


guilty pleas as a proportion of all defendants where a plea was entered fell to 70 per cent in 2010 from 71 per cent in 2009;


in 2010, the cracked and ineffective trial rates both rose by around one percentage point to 43 per cent and 14 per cent, respectively.


Until 1971, the main criminal courts were the Assizes and the Quarter Sessions. These courts did not sit continuously and were not held in locations that corresponded with centres of population, as had been the case when they developed. The system was very inefficient as circuit judges wasted much time simply travelling from one town on the circuit to the next, and many defendants spent long periods in gaol awaiting trial.


Change was made following the Report of the Beeching Royal Commission on Assizes and Quarter Sessions (1969). The Courts Act 1971 abolished the Assizes and Quarter Sessions. These were replaced by a single Crown Court, a part of the Supreme Court of Judicature. The Crown Court is not a local court like the magistrates’ court, but a single court which sits in over 90 centres. England and Wales are divided into six circuits, each with its own headquarters and staff. The centres are divided into three tiers. In first-tier centres, High Court judges hear civil and criminal cases, whereas circuit judges and recorders hear only criminal cases. Second-tier centres are served by the same types of judge, but hear criminal cases only. At third-tier centres, recorders and circuit judges hear just criminal cases.


Criminal offences are divided into four classes according to their gravity. Class 1 offences are the most serious, including treason and murder, and are usually tried by a High Court judge; exceptionally he may transfer a murder case (including attempts) to be heard by a circuit judge approved for this purpose by the Lord Chief Justice. Class 2 offences include manslaughter and rape and are subject to similar provisions. Class 3 offences include all remaining offences, triable only on indictment, and are usually tried by a High Court judge, although releases of cases to circuit judges are more common here. Class 4 offences include robbery, grievous bodily harm and all offences triable ‘either way’, and are not normally tried by a High Court judge.


6.3.1 THE JUDGES


High Court judges are usually from the Queen’s Bench Division (QBD). Circuit judges are full-time appointments made by the Queen on the advice of the Lord Chancellor. They are drawn from advocates with at least 10 years’ experience of Crown Court practice (s 71 of the CLSA 1990) or lawyers who have been recorders. Appointment is also possible for someone who has had three years’ experience in a number of other judicial offices like that of the district judge (magistrates’ courts). Circuit judges retire at the age of 72, or 75 if the Lord Chancellor thinks it in the public interest.


A circuit judge may be removed from office by the Lord Chancellor on the grounds of incapacity or misbehaviour (s 17(4) of the Courts Act 1971). This right has not been exercised since 1983, when Judge Bruce Campbell, an Old Bailey judge, was removed from office a week after being convicted of two charges of smuggling.


To qualify for appointment as a recorder, a person must have 10 years’ experience of advocacy in the Crown Court or county courts. JPs may also sit in the Crown Court, provided they are with one of the types of judge mentioned above. It is mandatory for between two and four JPs to sit when the Crown Court is hearing an appeal or dealing with persons committed for sentence by a magistrates’ court.


6.3.2 JURISDICTION


The Crown Court hears all cases involving trial on indictment. It also hears appeals from those convicted summarily in the magistrates’ courts. At the conclusion of an appeal hearing, it has the power to confirm, reverse or vary any part of the decision under appeal (s 48(2) of the Senior Courts Act 1981). If the appeal is decided against the accused, the Crown Court has the power to impose any sentence that the magistrates could have imposed, including one that is harsher than the one originally imposed on the defendant.


6.3.3 DELAY AND OTHER CONCERNS REGARDING CROWN COURT PROCEEDINGS


Defendants committed to the Crown Court to be tried might have to wait a long time. The Judicial and Court Statistics 2010 (Ministry of Justice, July 2011, p 85) show that:


in 2010, the average waiting time for defendants on bail in committed for trial cases was 15.6 weeks and 9.4 weeks for those held in custody;


in sent for trial cases the average waiting time in 2010 for defendants on bail was 23.0 weeks and 15.5 weeks for those held in custody;


the average hearing time for defendants who pleaded not guilty decreased from 19.8 hours in 2009 to 19.5 hours in 2010 in sent for trial cases, and fell from 7.6 hours in 2009 to 7.3 hours in 2010 in committed for trial cases.