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Criminal law: Trials and sentencing

Understand how trials and sentencing work and the key decisions that are made at every stage.

The procedure before trial

When the defendant has been charged by the police s/he will have to have a court trial. The first decision – to be made either by the police or the court - will be to grant bail or to remand the defendant in custody.

Which court the case will be heard in depends on the type of offence.

o Summary offences are the least serious and are always dealt with in the Magistrate’s Court. They will be tried either by a single district judge, or by three lay (legally unqualified) magistrates.

o Either-way offences – the defendant can choose the trial court - either the Magistrates or the Crown Court before a judge and jury. The court will decide preliminary issues at a plea before venue hearing.

o Indictable offences are the most serious and will always be tried in a crown court before a judge and jury. The case will automatically be sent to the Crown Court for preliminary issues to be heard and to set a trial date.

The trial procedure

The prosecution (on behalf of the police) will open the case and use evidence to show beyond reasonable doubt that the defendant committed the offence charged. The evidence can be oral evidence of witnesses or experts (e.g. forensic evidence), CCTV or phone records and any interviews or statements that the defendant gave to the police after arrest. The defendant can cross examine witnesses and challenge the admissibility of evidence. The prosecution will always be represented by a lawyer.

The defendant will be able to give evidence and call witnesses, perhaps to prove an alibi or that s/he was suffering from a condition that meant s/he was not able to form the mens rea. The prosecution can cross examine the defence witnesses to cast doubt on their evidence. The defendant may be represented by a lawyer.

The defence and prosecution will then sum up their cases to the magistrates or jury.

The magistrates will usually retire to consider their verdict. They will announce their verdict in court and can then sentence the guilty defendant.

In the Crown Court the judge will sum up the evidence and direct the jury on the law. The jury will then retire to consider their verdict which must initially be unanimous; after a certain time the judge will be prepared to accept a majority verdict.

If the defendant is found guilty s/he will be sentenced by the judge. If the defendant is found not guilty s/he will be released immediately.

Sentencing and punishments

Sentencing is done in court by the magistrates, or the judge, if the defendant is found guilty or pleads guilty.

Each offence has a maximum punishment fixed by law and the magistrate or judge can impose up to the maximum depending on various factors:

Aggravating factors should make the sentence more severe. They include matters such as:

o The injury or the effect of the crime on the victim,

o If the defendant pleads not guilty,

o If a weapon was used,

o If the defendant has previous offences

Mitigating factors should make the sentence less severe. They include matters such as:

o If this is a first offence,

o If the defendant has shown remorse, or pleaded guilty

o If the defendant has helped the police.

The court can take various aims of punishment into account such as:

o The need to protect the public from a violent or repeat offender,

o The need to deter the defendant or others from committing further crimes

o Any rehabilitation of the defendant

Sentences the courts can impose are

o Prison

o Suspended prison sentence

o Community punishments such as

o Fine

o Discharge – absolute or conditional