The criminal process

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The criminal process is often a very complex one. There are many decisions, which need to be made, and these can have a big effect on the resulting trial. The most important ones tend to take place after the suspect has been charged but before the accused gets to trial. These include the decision to prosecute, granting of bail, plea-bargaining and the court in which the case will be tried. These decisions are as important (if not more important) than the resulting trial.

The decision whether to prosecute is usually the first step taken once the suspect has been charged. The decision to prosecute is vital to the pre-trial decision procedure as it establishes whether the prosecution believe there is a realistic possibility of conviction by ‘sifting out’ cases, which they do not think, would be worth prosecuting. Prosecution is defined as:

‘The pursuit of legal proceedings, particularly criminal proceedings.’

Prosecution takes various forms; in criminal cases it is usually in the name of the crown e.g. R v an individual. Summary offences are in the name of an individual, usually a police officer, although a private individual may bring a prosecution e.g. for assault. Until relatively recently the police took the decision to prosecute an offender. However, the Police and Criminal Evidence Act (PACE) 1984 removed this power from the police and recommended that an independent prosecution body should be set up which would make the decision as to whether to prosecute. It was thought that an independent prosecuting body would be more specialized to deal with prosecuting offenders. Although in some cases the Inland Revenue/Customs and Excise still make the decision whether to prosecute and not the CPS. The proposal was adopted and the Crown Prosecution Service (CPS) was set up under the Prosecution of Offences Act 1985. The CPS came into operation in 1986. The CPS prosecutes 95% of Crown Court and 25% of magistrates’ courts cases. In addition, the CPS is governed by a ‘Code for Crown Prosecutors’, which outlines the role of the CPS and provides general guidelines to aid the operation of the CPS.

The Code includes two tests, which need to be ‘satisfied’ before a prosecution can start or continue. The first is the evidential test. The evidential test involves looking at the evidence presented to them (the CPS) and then making a decision as to whether there is a "realistic prospect of conviction". Furthermore, the defendants’ case must be considered and the effect that it will have on the prosecutions’ case. The CPS must also look at whether the evidence given is reliable and increases the likelihood of a conviction. Factors, which could affect the reliability of evidence given, include the defendants’ age intelligence or lack of understanding, confusion over the defendants’ identity or any other previous convictions etc. The test as to whether there is a realistic prospect of conviction based on evidence is objective. In other words, would a jury or bench of magistrates’, properly directed in accordance with the law is more likely than not to convict the defendant of the alleged offence.

Once the evidential test has been passed then the second stage must be considered. Put simply the public interest test just means would a prosecution be in the ‘public’s interest’ i.e. are there more ‘public’ factors favouring a prosecution than opposing it. When deciding whether to continue with the prosecution in the public’s interest the CPS take into account the seriousness of the offence and the circumstances of the offender and decide on balance whether a prosecution would be the best option or whether another course of action should be followed.

Taking the decision to prosecute is a difficult one; there are various factors, which may make a prosecution more/less likely. Prosecution will be more likely if (these are just some of the reasons there are more but ultimately the decision to prosecute depends on the facts of each individual case) a long sentence is likely, a weapon or violence was used or threatened, the offence was motivated by race, gender, sexuality, politics, religion or nationality, the offence is one against a servant of the public e.g. nurse, policeman etc. On the other hand, prosecution will be less likely if a small penalty is likely, the offence was not deliberate (but bear in mind the seriousness of the offence), there was only minor loss (only resulting from a single incident) to the victim etc.

The second stage in the pre-trial decision procedure is deciding whether to grant bail. Bail is defined as:

‘the release by the police, magistrates court or Crown Court of a person held in legal custody while awaiting trial or appealing against a criminal conviction.’

Bail is defined by section 1 of the Bail Act 1976 (as amended by the Bail Act 1993) and the section 4 governs the right to bail. Schedule 1 of the Act also creates exceptions to the right of bail by distinguishing between defendants’ accused/convicted of offences punishable by imprisonment and those not punishable by imprisonment. ...

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The second stage in the pre-trial decision procedure is deciding whether to grant bail. Bail is defined as:

‘the release by the police, magistrates court or Crown Court of a person held in legal custody while awaiting trial or appealing against a criminal conviction.’

There are only a few offences where bail will never be granted. These are if the defendant is charged with murder, manslaughter, rape or attempted rape – see section 25 subsections 1-3 of the Criminal Justice and Public Order Act (CJPOA) 1994. However, if it is thought that to keep an offender in custody would be in their ‘best interests’ i.e. for their own safety then bail may be also refused.

There are several types of bail, which can be granted. First, if you have not been charged, you may be bailed to go to a police station. If you have been charged, you will probably be bailed to turn up at a Magistrates’ court. Bail from the police station depends on if you have been charged (see above). Bail from a police station is governed by PACE section 38. Bail from the police station involves being released without charge and you are told to report back to the police station at a given date/time where they will either formally charge you or drop the case. If the police arrest the accused with a warrant then this may be “backed for bail”. In this case, the police are bound to release the accused as soon as they have been charged. A further type of bail is bail to turn up at a Magistrates’ court, which is slightly different to an arrest with a warrant being ‘backed for bail’. Usually bail to appear before a Magistrates’ court happens after an offender has been charged. The accused is told to report to the local Magistrates’ court 24-48 hours after charge where they will be told if they will be granted bail. Magistrates’ have considerable power when it comes to granting bail. However, when deciding whether to grant bail they (the magistrates’) must consider if released would the defendant ‘interfer’ with witnesses involved in the case, will the defendant commit another offence while released on bail and/or will the defendant fail to surrender to custody.

If the answer to any of these is ‘Yes’ then bail may be refused. Furthermore, certain conditions may be attached to bail such as residence at a specific address (78%), prohibition of contacting a specified individual (46%), requirement to report to a police station (18%) – in serious cases the accused may have to surrender their passport. In some cases, (although this is not very common in the English legal system) a surety will have to be provided. Sureties are the individuals to whom an accused person is entrusted to after . They will present a financial sum to release the accused before and risk forfeiting that money if the accused does not turn up to the trial at the agreed time and date.

The Crown Court can also grant bail subject to s.81(1)(a) to (g) of the Supreme Courts Act 1981. In addition, the High Court has the power to grant bail in certain circumstances. These are people refused bail by the magistrates court (s.22(1) of the Criminal Justice Act 1967), people who have applied to the Crown Court to state a case for opinion or seeking an order to quash that court’s decision (s. 37 (1) (b) of the Criminal Justice Act 1948) and people convicted or sentenced by the magistrates’ court and seeking an order to quash that decision (s.37 (1) d of the 1948 Act).

As mentioned, being granted bail is not a certainty and the accused, depending on the circumstance, may not be granted bail. However, in all cases where bail is refused the reasons should be given. The decision to grant bail is usually reviewed every eight days. An application against the refusal of bail should be made within 28 days. If you are unsatisfied with the way you have been treated you can appeal to the High Court (as discussed above).

Bail is an important part of the pre-trial criminal procedure for a number of reasons. For instance, being released on bail allows you to further prepare your case and ensure that you get all the (extra) legal help you need. In addition, the granting of bail has an even greater significance with the passing of the HRA 1998, especially Article 5, which relates to the right to liberty and security. In accordance with this, unless there are any circumstances, which prevent bail being granted, bail should be granted regardless of whether an application has been made. The ‘presumption of innocence’ (innocent until proven guilty) as defined by the HRA also needs to be taken into account when considering whether to grant bail.

On the other hand, being released on bail has its disadvantages. For instance the defendant may be subjected to (verbal) abuse from people who think the defendant is guilty of the offence (even without trial) and should not have been released – this can have an adverse affect on the defendants’ reputation.

Finally as regards bail, the Criminal Justice Act 2003 will have an impact on the granting of bail however the changes proposed will be implemented gradually between now and 2006.

A third stage in the pre-trial decision making procedure is plea-bargaining. Plea-bargaining is not a major part of the English Legal system however there is evidence that a certain amount does take place. Plea-bargaining is defined as:

‘an agreement between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution e.g. to drop a more serious charge against the accused or when the judge has informally be let it known that he will minimise the sentence if the accused pleads guilty’

Plea-bargaining can take place at any time in the criminal process. It can happen before charge. If your solicitor can begin negotiations with a prosecutor while the police are still investigating or before you are formally charged with a crime, you may be able to obtain a reduction of charges that would not be available after charges are officially filed. Plea-bargaining can also take place after charge but before trial. For example, if you are charged with murder your solicitor may advise you to plead guilty to manslaughter and as a result get a reduced sentence. A further stage where plea-bargaining can happen is before judge at trial. This works in a similar way to plea-bargaining after charge but before trial and may involve your barrister speaking to the judge in order to assess what your chances would be should you decide to change your plea. Ultimately though the decision to change the plea should be the defendants’ and no-one else’s (see R v Turner and guidelines).

The leading case on plea-bargaining is R v Turner. In this case, the defendant pleaded not guilty on a charge of theft. He had previous convictions and was advised by his counsel to change his plea. The counsel spoke to the judge and said that if the defendant changed his plea to guilty it would result in a non-custodial sentence, however if he persisted with his non guilty plea he was likely to get a custodial sentence. The defendant changed his plea but appealed on the grounds that the decision to change his plea had not been solely his. The appeal was allowed and a new trial ordered. This was on the basis that what the counsel told the defendant were the views of the judge, as it was known that counsel had just been to see the judge before returning to give his advice to the accused.

Furthermore, in R v Turner Lord Parker CJ set out guidelines, which should be followed when making a decision about plea-bargaining. These are:

It may sometimes be the duty of counsel to give strong advice to the accused that a plea of guilty with remorse is a mitigating factor which might enable the court to give a lesser sentence (displays remorse following a not guilty plea tends to be unconvincing);
the accused must ultimately make up his or her own mind as to how to plea;
there should be open access to the trial judge and counsel for both sides should attend each meeting, preferable in open court; and
the judge should never indicate the sentence, which he is minded to impose, nor should he ever indicate that on a plea of guilty he would impose a one sentence, but on a conviction following a plea of not guilty would impose a severer sentence.

There are some important advantages in plea-bargaining. These include a lesser sentence for the defendant, which has obvious benefits for the defendant but if the defendant is released early he may go on to commit further offences and end up in court again. It has been shown that plea-bargaining can lead to a 25-33% reduction in sentence. Also, a practical advantage is that the trial will be less time consuming and expensive for all concerned. For instance, if a guilty plea is accepted/plead guilty to a lesser offence then the defendant will to a certain extent, be getting away i.e. he is acknowledging he/she has done wrong but paradoxically getting a lesser sentence for doing it.

A final decision, which is made before the trial, is the court in which the defendant will be tried. Offences fall in to three categories. The first is indictable e.g. murder, manslaughter, rape - these cases are automatically tried in the Crown Court, following a committal hearing. The second is summary – these offences are defined by statute and include drugs offences, assault, battery etc. These offences are less serious and will be tried in the magistrates’ court that will also pass sentence. However, if they feel their sentencing powers to be inadequate the defendant will be sent to the Crown Court for sentencing. The third (and probably the most difficult to categorise) are offences triable either way. These are cases, which can be tried either in a magistrates’ court or the Crown Court, but the decision as to where the case should be tried starts off in the magistrates’ court. In order to decide which court would be the most suitable there is a plea before venue and a mode of trial hearing. If it goes to crown committal proceedings then magistrates will check there is sufficient evidence to send case to trial. There are various factors, which affect whether an offence triable either way goes to the Crown court or not. The first is the nature of the offence e.g. what offence has been committed. The second is whether the circumstances make the offence one of a serious character. The third is whether the punishment the magistrates’ court could impose would be adequate. The fourth and final factor is any representations made by the prosecution or defence e.g. do they favour a Crown Court trial. In addition, magistrates may consider the age of the defendant e.g. if he is under 18 then he will be tried in a Youth Court regardless of the offence and/or if s/he is to be tried jointly with an adult etc. . The statistics below show the outcomes of ‘triable either way’ cases for the year 1999:

The statistics below also show the outcome of ‘triable either way’ cases which are committed to the Crown Court for trial, for the year 1999:

There are important advantages to the cases being tried in magistrates’ court. Your case will be heard sooner. Procedures are simpler and less costly than a Crown Court trial. Similarly, the Crown Court has its advantages. There is a higher acquittal rate. Furthermore, a trial by jury could be seen as a direct link between the ordinary citizen and the administration o justice. On the other hand, if you are found guilty by a Crown Court then the sentence imposed is likely to be far harsher than a magistrates’ court. A big disadvantage of the magistrates’ court though is that the magistrate has no formal legal training and so may not understand the law.

Recently passed legislation such as The Courts Act 2003 will also have a big impact on offences triable either way as it sets out guidelines as to how to determine which cases should be sent to the Crown Court.

So, in conclusion, these are only some of the main decisions, which are made pre-trial. This would tend to support the statement and show that the criminal justice system is not dominated by the trial. However, the pre-trial decisions discussed here should not be viewed in isolation from each other or the resulting trial. It is a combination of all the factors leading up to the trial and the trial itself which make the criminal justice process what it is and help to ensure that ‘justice is not only done but is seen to be done’. The Criminal Justice Act 2003 was also passed and this will have a big impact on all aspects of the Criminal Justice System, including bail.

Bibliography

Textbooks

Journal Articles

Bail and the Human Rights Act 1998 – J Burrow (2000) 150 NLJ 677

Websites

www.bbc.co.uk/crime/law/jargonbuster

www.yourrights.org.uk/your-rights-of-defendants/bail/index.shtml

www.lawsguide.com/mylawyer/guideview.asp?layer=2&article=147

Cases

R v Turner [1970] 2 WLR 1093

Other Resources

Lexis Nexis

Lecture Notes

Seminar Notes

Oxford Dictionary of Law

Oxford dictionary of Law p390

Section 5.1 ‘Code for Crown Prosecutors’ (2000)

Oxford Dictionary of Law p43

www.bbc.co.uk/crime/law/jargonbuster

Oxford Dictionary of Law p368

[1970] 2 WLR 1093

Taken from ‘The English Legal System – Gary Slapper and David Kelly’

Criminal statistics 1999, Supplementary table S1.1(E)+(F)

Figures provided by RDS (IRS 6519c)

The criminal process

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Websites

www.lawsguide.com/mylawyer/guideview.asp?layer=2&article=147

Cases

Other Resources

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