However, before the decision to charge can be made, Mark and any witnesses, in this case a store detective, have to be interviewed. In the interview Mark claims he intended to pay for the aspirin but the store detective apprehended him before he had a chance to do so. His solicitor has told him they will contest his guilt in court. Conversely, The store detective claims Mark has been in the shop everyday for the past week. He claims Mark has been taking expensive perfumes but he was unable to “catch him in the act” and only noticed the missing perfumes after Mark had left the shop.
The police are now faced with several decisions on how to proceed. They may decide that there is insufficient evidence to prosecute. The gathering of evidence involves further investigation and due to limited resources the police often choose not to investigate further. (Sanders cited in McConville and Wilson 2002: p151) If Mark is a habitual shoplifter it is likely he has already sold the stolen property. Therefore, a search of Mark’s home address for evidence may prove to be both fruitless and expensive. When this situation arises the police may decide to take no further action (NFA).
Alternatively, they may decide to give Mark an official police warning. Many criminal cases are diverted from the criminal justice process and do not reach the stage of prosecution. The most significant form of pre-trial diversion is the formal caution. Cautions are encouraged as it avoids the stigmatising of the offender and saves on resources. (Sanders cited in McConville & Wilson 2002: p153) The main preconditions of the caution are that the offender must admit guilt and there must be sufficient evidence to proceed with prosecution. However, even though the administration of cautions without an admission of guilt contravenes official guidelines studies by McConville et al. (1991: p 81-83) indicate that the police often manipulate the prerequisites of confessions and proceeded to caution regardless of admission or proof.
More recently the emphasis has been on restorative justice. Warnings are to be accompanied by action plans drawn up by multi-agency Youth Offending Teams. The fundamental nature of restorative justice is to compel offenders address their behaviour. The emphasis is on early intervention and to prevent anti-social behaviour whilst the offender is still young. (Davis et al. 1996: p164) However, the police may decide than none of the diversionary decisions are a suitable course of action for Mark.
Once the police have decided that prosecution is appropriate, rather than any other actions, Mark will be charged with theft. The custody officer will then decide if Mark meets the criteria for police bail. The custody officer must predict what will happen if bail is granted. Bail may be denied if it is felt that Mark is unlikely to attend court to answer to the charges or if he is likely to interfere with witnesses. Furthermore, Mark may be detained if the custody officer feels he is likely to commit further crimes. (Davis et al. 1996: p165)
If the bail decision is negative Mark will remain in police custody until the next sitting of a court. The prospect of a night in the police cells is frightening and this puts many suspects in a psychologically vulnerable position. According to Sanders (1994: p 803) research has shown that detention in police custody is used a bargaining device in plea and charge negotiations. The police are conscious of their powers of discretion over bail and this is used to manipulate the decision-making process of the suspect. (McConville et al. 1991 p61)Faced with the prospect of a night in an alien environment, coercion by the arresting officer and the absence of legal advice may all contribute to influence Mark’s plea.
Mark has been charged with theft and released on police bail under the conditions that he stays away from the shop where he was accused of the theft. The papers are now forwarded to the appropriate branch of the Crown Prosecution Service (CPS).
Prior to the existence of the CPS the decision to prosecute was the sole responsibility of the police force. However, it was argued that the police lacked the necessary impartiality to recognise a weak case. They were reluctant to withdraw cases from prosecution in which they had invested a lot of time and energy. This added to the congestion in the criminal justice system and the likelihood of miscarriages of justice. To apply consistency the Royal Commission recommended the formation of an independent organisation whose role would be to make pre-trail decisions about prosecution. In 1984 the Crown Prosecution Service was established. (White cited in McConville & Wilson 2002:p9). Consequently, the CPS is independent of the police and has the power to discontinue prosecutions.
The CPS now has the role of reviewing the pre-trail decisions. The decision to prosecute will be based on two criteria. Firstly, the CPS must ensure there is sufficient evidence to obtain a conviction. This involves assessing the evidence for reliability, availability and admissibility. However, according to McConville at el the CPS rarely dropped cases that are evidentially weak. The CPS continue to prosecute weak cases in the expectation of either “a guilty verdict”, “a guilty plea” or a “plea bargain” (McConville et, al 1991:p157) Applied to the case of Mark and the charges of theft it is doubtful that Mark will be able to plea bargain for a lower charge .However, it is possible that the CPS will continue to prosecute in the anticipation that Mark will enter a guilty plea before the case comes to trial.
The second criteria the CPS take into consideration is called the public interest test. This refers to a list of mitigating factors for or against prosecution. Prosecutors are to take into account the age, mental and physical disabilities of the offender. Consideration is also given to the victim. In addition, if the offence is trivial and likely to attract a small penalty the CPS are unlikely to proceed with prosecution. Furthermore, prosecution will not proceed if the offence can be dealt with by a police caution or warning. (ICJS 2003:p33)However, while the CPS are independent of the police, they are inclined to assume that cases passed on to them merit prosecution. It is assumed that the police have filtered out the cases that could be dealt with by diversionary means. (Davis et, al 1996) Therefore, the decision to prosecute Mark seems inevitable and imminent.
After, the decision to prosecute has been made there are various pre-trial procedures and decisions that have to take place. Most of the initial decisions will be made in the magistrates’ court. Nearly all criminal cases start in the magistrates’ court and 95% end there. (Davis et, al: p152) Mark will be summoned to appear in the magistrates’ court.
Mark’s case, ordinarily, will not be heard on his first appearance. An adjournment is required for the defence and prosecution to prepare the case. Mark may possibly make several appearances during the different stages of pre-trial procedure. He may have to return to decide the mode of trial and whether the case is to be heard at the magistrates or crown court. Another appearance may be needed to enter his plea and yet another appearance may be needed for a summery trial. However, on this first appearance the magistrate will decide whether Mark will be released to await trial, he may be remanded on bail or in custody. (Davis et, al: p 162)
Mark, under the due process of English law is presumed innocent before he is found guilty and usually he will be granted bail. Bail is only usually denied in indictable cases such as rape, manslaughter, or murder. However, his request may be denied if he has committed the theft whilst on bail for another offence. (Padfield: p267) Furthermore, the criterion for bail is similar to the criteria for police bail. The court need not grant bail if they have grounds to suspect that Mark will not attend the next hearing, commit an offence or interfere with witnesses. (Davis et al: p152)
Additional pre-trial decisions have to be made at subsequent appearances in the magistrates’ court. Mark’s offence, although relatively minor, is a triable either way offence (TEW) Therefore, the magistrates have to decide which court is to hear the case. If they decide that the offence is summery the case will be tried at the magistrates’ court. Mark will then be asked where he wishes to be tried. If he decides, on the advice of his solicitor, that that the case will be tried summarily then Mark will be asked to enter a plea. If he pleads guilty the case can proceed. If he pleads not guilty the case will be adjourned for a later date. Conversely, the magistrates may decide, due to sentencing restrictions, the case is to be heard at a crown court. If either Mark or the magistrates elect for trial by jury no plea will be entered at this stage. (Davies et, al: P172)
There are several factors that may influence Mark’s choice of mode of trial at this stage. Primarily, he will be influenced by his solicitor. However, Mark may elect for trial by jury under the misconception that he is more likely to be acquitted or a crown court will impose a lesser sentence. (Davis et al: p172)
However, on the advice of his solicitor Mark has elected to be tried at the magistrates’ court. The pre-trial process is over and the next appearance in court will determine his guilt or innocence. However, it is unlikely that this will be his final appearance before he receives a sentence. Many cases are adjourned one final time for pre-sentence reports. (Davis et al p 173)
To sum up, it is clear that the police have a multitude of roles in the pre-trial stages. According to the crime control model the police are responsible for crime prevention as well as protecting the public. Conversely, they have to consider the welfare of the suspect and this supports the due process model. (Davis et al p113) Furthermore, police diversions conflict with the crime control purpose of the criminal justice system. However, it would be expensive as well as a strain on the criminal justice process to prosecute all suspects. (Davis et al p113)
In addition, the CPS is an essential part of the pre-trial decision making. They are the independent assessors of the evidence. However, they are reliant on the police for evidential information. Therefore, it could be argued that the CPS dependent on the police.
Finally, it is clear that there are many aspects that influence the pre-trial decision making process. The decisions taken from arrest to prosecution are affected by complex guidelines as well as police perceptions and attitudes. The role of the CPS is inter-dependent on the role of the police and this in turn affects the outcomes in the magistrates’ court.
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References
Cain (1973) In Davis M, Croall H, Tyrer J. (1996) Criminal Justice, An Introduction to the Criminal Justice in England and Wales.(p 107) Harlow, Longman Group Limited.
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The Institute of Criminal Justice Studies. (2003) Introduction to Criminal Justice. Portsmouth. Portsmouth University.
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White R, (2002) Structure and Organisation of Criminal Justice in England and Wales. In McConville M, Wilson G. (Eds) (2002) The Handbook of the Criminal Justice Process. (p5-20)London. Oxford University Press.
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