There are instances when a class of offences can be triable ‘either way’. For example theft is a relatively serious offence, but been committed in a minor such as the theft of a loaf of bread, cases like these now account for about 80% of those tried in Crown Courts. In all offences triable either way, the defendant has the right of trial by jury. If the defendant elects for summary trial, the prosecution still has the right to remit the case for trial at the Crown Court if they think the trial would be more suitable. Summary offences are created and defined by statute the list of summary offences is exhaustive, these cases are heard in the court for the district in which the offence is alleged to have taken place. The maximum sentence a magistrate court can impose is a £5000 fine and/or a six month prison sentence. In many instances the fines issued are income assessed; theoretically this is to ensure that the rich pay more than the poor do for the same offence so it affects them more representatively than the same fine would a person of low income. After a conviction, the magistrates will hear whether the defendant has a criminal record and if so for which previous offences. The justification for this is to ensure the court pass an adequate sentence however if they feel that their powers of sentencing are insufficient to deal appropriately with the defendant in hand the case will be referred to crown court for sentencing. This provision ensures that those who are found to be guilty will be punished by the system accordingly diminishing attempts made by hardened criminals to play the system.
By the provisions of ss 130-34 of the Powers of the Criminal Courts (Sentencing) Act 2000 (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 as a consequence of the offence in question the courts will also take into consideration any other offences that the defendant happened to confess to. If a death has resulted from an offence committed by a defendant other than one resulting from a motor accident they may also be liable for payments towards funeral arrangements and bereavement. However the underlying fundamental reasoning for this is that unlike what happens when a fine is issued the money recovered in this order will be given directly to the victim instead of the state. This means that the victim does not have to fight for damages in civil courts. Here is an evident example of statutory provisions being made with the best interest of the victim in mind.
The Crown Court hears all cases involving trial on indictment. It also hears appeals from those convicted summarily in the magistrates’ courts. The Crown Court has the power at its disposal to confirm, reverse or vary any part of the decision at appeal at the conclusion of the hearing under (s 48(2) pf the Supreme Court Act 19 81). If the situation arises that the Crown Court has decided against the accused it then has the power to inflict any sentence which the magistrate could have inflicted, even if this means that it is consequentially more severe than the original imposed on the defendant.
The Runciman Commission by Zander and Henderson is probably the most significant study of Crown Court cases embarked upon. Within this report 22,000 people were consulted who were involved in 3,000 Crown Court cases. This report included views of lawyers, judges, clerks, jurors, police and defendants. It is a startling fact that 8 % of cases who defence lawyers anticipated to be weak reached convictions and a further 6% of prosecution barristers thought weak and 4% of judges thought weak all reached convictions. In addition to this a further 31 defendants pleaded guilty to offences they had not committed, reasons for this varied from gaining a less severe sentence, they were advised to do so by their lawyers or to avoid a trial. This represents clear evidence that the Criminal Trial Process is still convicting innocent people in what appears to be quite significant numbers.
Furthermore to these findings another startling unearthing was the contribution of poor defence lawyers who have recently been cited as contributing to the miscarriages of justice. It was also discovered that on third of Crown Court cases were handled by clerks, one third of all barristers were introduced to defendants one day before the trial and some on morning of the trial. This adds further to the dismal picture of the duty owed to upon the defendant by the criminal trial process.
Research undertaken for the Royal Commission by Kate Malleson of the London School of Economics found that judge’s mistakes are by far the most common ground for successful appeals against conviction. The research discovered that in about 80% of cases where convictions were quashed, there had been an error at the trial; in most instances it was a judicial error. Of 300 appeals in 1990, just over one-third were successful. Of those appealing two thirds of the defendants appealed against conviction on the ground that the trial judge has made a crucial mistake. This research was crucial as it identified the defective manner in which the Court of Appeal failed to consider fresh evidence which had emerged since the trial or where there was a reasonable suspicion about the validity of a conviction. The Report urged that the court be given a new role allowing it to investigate the events leading up to a conviction. The Commission also recommended that the Home Secretary’s power to refer cases to Court of Appeal be removed and a new body, the Criminal Cases Review Authority should be set up to consider allegations that a miscarriage of justice may have occurred. The authority should consist of lawyers and lay people, devise it own rules and procedures, it should also be able to discuss cases direct with applicants. These recommendations were largely met by the terms of the CAA1995.
Miscarriages of justice involve two types of insult to what should be legal notions of fairness (a) the wrongly imprisoned endure years of incarceration; (b) the real culprits such as the child killer in the Bridgewater case are never identified and could well go on to continue to commit such horrendous crimes. In an attempt to deal with possible miscarriages of justice, and following the recommendations of the Royal Commission on Criminal Justice in 1993 (Runciman), the Criminal Appeal Act 1995 established the Criminal Cases Review Commission. The CCRC has power to investigate and refer to cases to the Court of Appeal, or if appropriate the Crown Court, where they consider that there is real possibility of an appeal succeeding.
Lord Justice Auld has had a pivotal role in the modern reform review of the Criminal Courts, within this report he has considered the possibility of restructuring the courts in some way; for instance, by creating a unified criminal court involving work currently undertaken by the Magistrates’ Courts and the Crown Court and even the potential reworking of the division between summary and triable either way offences. In the Narey Report in 1997, the magistrates would make the decision in accordance with the gravity of the offence and complexity of the case, and also of the effect on the defendant in terms of loss and reputation, but without any opportunity for defence and prosecution to agree the mode of trial. The labour government to f this day has consistently favoured giving the magistrates the right to make the decision, arguing that this would result in savings in excess of £1 million. Other significant change Proposals under consideration include the creation of an intermediate tier of jurisdiction to deal with some of the less serious offences currently categorised as either way. This could take the form of a District Judge sitting with the removal of magistrates’ power of committal for sentence, including the right to jury trial for those accused of serious and complex offences.
Lord Justice Auld’s changes to the court structure themselves is not no means limited. He has argued for a creation of a single criminal court supported by a unified and nationally funded administration, but within a structure which would ensure a significant element of local control and accountability at both the summary and indictable offences level. He has put forward the idea that cases should start and finish in the court or at the jurisdictional level where they are to be tried. This would not only remove a lot of work that would be dealt with outside the criminal justice system altogether but would remove some of the lengthy and expensive cases of fraud and other financial misbehaviour from the criminal courts to a regulatory process.