The Classification of Criminal Offences
Criminal Offences can be classified as summary, either way or indictable only offences and this classification determines how a case is processed through the criminal justice system.
These are mostly minor offences dealt with only on the magistrates courts whether or not the defendant enters a guilty or non guilty plea. An example of a summary offence is common assault as found in S39 Criminal Justice Act 1988.
These are more serious than summary offences and can be tried either in the magistrates’ court or in the crown court on indictment before a judge and jury. The venue for the case depends on the defendant’s plea. A guilty plea would mean that the defendant remains in the magistrates’ court where he will also be sentenced although the case can be referred to the crown court for sentencing if the magistrates do not have sufficient sentencing power for the offence. Where a not guilty plea is entered the magistrates decide at a mode of trial hearing whether on conviction they have sufficient sentencing power for the offence. If so, the case will be heard in the magistrates’ court but if sentencing is outside their jurisdiction, it will be committed to the crown court by way of a committal hearing. An example of an either way offence is theft, S1 Theft Act 1968.
These are the most serious crimes and are tried in the crown court before judge and jury. The defendant will have an initial appearance at the magistrates court where the case is then sent to the crown court for trial. If there are various offences the most serious offence will dictate the process adopted. An example of an indictable only offence is the common law offence of murder.
Investigating and prosecuting within the Criminal Justice System
The police have principal responsibility for investigating criminal offences and the Crown Prosecution service decides whether there is sufficient evidence to charge the suspect. As well as the police and the CPS other state agencies have also been given the power to investigate and prosecute criminal offences. Some of these agencies include,
- The Department for Trade and Industry – offences involving company and company directors, fraudulent trading etc
- Serious fraud offence – complex and serious fraud cases
- The Serious Organised Crime Agency – established by the Serious Organised Crime and Police Act 2005 – handles cases previously dealt with by the National Criminal Intelligence Service and HM Customs and Excise
- Environmental Agency – prosecutes environmental crime
The Legal Services Commission is responsible for providing public funding or criminal legal aid for criminal cases.
The Criminal Courts
As stated above the magistrates’ courts is where nearly all criminal cases commence. Magistrate is either a Justice of the Peace/ Lay Magistrates with no formal legal training or a District Judge, a solicitor of barrister who has been qualified for at least seven years.
Where the defendant is under 18 he will be tried in the youth court and all magistrates courts have a youth court panel with specially trained magistrates. The crown court tries cases on indictment before a judge and jury. The Divisional Court of the Queens Bench Division hears appeals by way of case stated under s111of MCA 1980 where a decision has been taken in a Magistrates court and it is held that the court of it’s legal adviser has misinterpreted a point of law of evidence.
The Court of appeal criminal Division hears appeals form cases tried in the Crown Court and cases are normally presided over by the Lord Chief Justice. The House of Lords is the highest court in the criminal jurisdiction and hears appeals from the Court of Appeal on points of law. From October 2009, the law lords will no longer sit at Westminster but in the newly formed Supreme Court in an attempt to separate the judiciary from the legislature and keeping in line with the defendant’s right to a fair trial Art 6 ECHR.
The European Convention on Human Rights
The Human Rights Act 1998 transports the ECHR into UK law by placing a burden on all criminal courts to interpret legislation in accordance with the ECHR. Where legislation is incompatible, the Court of Appeal or the House of Lords must make a declaration of incompatibility and Parliament would then have to decide whether or not to amend the legislation.
Article 3 – the prohibition of torture: this may become relevant where there is evidence of police misconduct towards your client during investigation, questioning, raid or detention at police station.
Article 5 -the right to liberty and security: this provision can be used when challenging the police or court’s refusal of bail for your client
Article 6 – the right to a fair trial: arguably the most significant convention right as it is relevant at all stages of the criminal process including the police station, rules evidence at trial and the sentencing of your client
Jurisprudence under the ECHR
The ECHR also embodies general principles of law as well as the substantive principles above. The principle of the rule of law states that where states derogorate from convention law this must be as a result of readily accessible law and regulation and not arbitrary decision. Any interference of an ECHR right must be directed towards a legitimate aim and comply with the principle of proportionality which means that the interference needs to be necessary in a democratic society or based on a pressing social need.
Criminal Procedure Rules
These came into force on the 4th April 2005 for the purpose of ensuring that all criminal cases are dealt with justly. Everyone in the criminal justice process is expected to conduct cases in accordance with the rules and courts are require to be thorough in their case management duties by identifying issues early and discouraging delay. From the 7th April 2008 the rules were amended to allow for the imposition of sanctions on parties for failing to comply with a rule or direction of the court.
Professional conduct Rules
These rules are set out in the Solicitors Code of Conduct 2007 and regulate the solicitor’s profession. Failure to abide by them could result in disciplinary action or being struck off the roll. In relation to criminal law, professional conduct issues are most likely to arise in the following contexts:
- Duties to client: This means acting in the best interest of client including giving full information about cost as and the availability of legal aid
- Duties to court: A solicitor has a duty not to mislead the court so if for instance you client fails to give you accurate details or it comes to light that they have lied you must ask them to correct their statement or you would have to withdraw form the case. If a solicitor becomes aware during the course of proceedings that the client has inadvertently mislead the court, they must make the court aware immediately with their client’s consent. If their client does not consent they must cease to act. However you are not under an obligation to correct information given to the court by the prosecution. If your client discloses his guilt to you but seeks to plead not guilty you can still act as long as they are not making positive assertions of your client’s innocence. However due to duty of confidentiality, you would be precluded from giving your reasons to the court for withdrawing from the case. If your client wishes not to put forward a defence and plead guilty you may still continue to act on the basis that you have advised them that on a plea in mitigation you would not be able to put forward a defence. The client must agree to this and sign a statement to this effect which would be evidenced in a file note.
- Confidentiality: A solicitor is under a strict duty to keep the details of his client’s affairs confidential although there are exceptions to this eg. Money laundering and child protection issues. Legal professional privilege protects communications between solicitor and client. Legal professional privilege can be waived by the client if during a trial there is a risk of adverse inferences being drawn as per s34 Criminal Justice and Public Order Act 1994 and the solicitor is asked for reasons for advising the client to remain silent at interview.
- Conflict of interest: A solicitor must not act for two or more clients where there is a conflict of interest between them. This is particularly important when acting for co-defendants see Rule 3 para24-36
- Interviewing witnesses: A solicitor must not influence a witness or persuade them to change their evidence. A defence solicitor can interview a prosecution witness and vice versa however a lawyer form the respective team must be present at the interview.
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