In England and Wales there are two methods by which criminal proceedings may be commenced:
• By Charging.
Where the person concerned is informed verbally of the charge, cautioned that any reply may be given in evidence, and given a written copy of the charge.
• By Information and Summons
Lodging a document known as an Information with the Court which sets out the offence of which the Defendant is accused. In response, the Court will then issue a Summons, which requires the Defendant to attend the Court at a stated time and place to admit or deny the offence.
The majority of serious matters will be started by charging.
Mode of Trial
There are two modes of trial:
• Summary Trial
This takes place before magistrates in the magistrates’ court.
•Trial on Indictment
This takes place before a Judge and Jury in the Crown Court. The Judge presides over the trial, ensuring fairness whilst deciding matters of law and passing sentence. The Jury decides the verdict.
Depending upon the nature of the offence, it may be tried only Summarily, only on Indictment, or either way.
Commencement, Adjournment and Remand
Unless directed by a High Court judge, all criminal proceedings in England and Wales start in a Magistrates’ Court. The Defendant will appear either on a Summons or under a Charge.
Magistrates Courts have the power to adjourn proceedings to a later time or date, and may do this by simply stating that the hearing is adjourned until a later date. Alternatively, they may remand the case. Most cases that have started with an arrest will begin in Court with a Remand, as it is not usually pheasible to proceed with a Hearing on that day. A Defendant may either be Remanded in Custody (ie: kept in prison until the adjourned date) or Remanded on Bail.
In Custody cases, the maximum Remand period is 28 days (if the suspect is represented and consents), or 7 days (if they are not represented, or do not consent to a longer period of Remand.)
If they are Remanded on Bail, there are two types of bail:
• Unconditional - where the defendant is told to return to Court on a specific date for the next hearing
• Conditional - where the defendant is told to return to court on a specific date but with conditions set by the Magistrates to ensure their attendance (e.g: surrender of passport.)
Bail may not be granted for the following reasons:
• There is a risk that the accused may fail to surrender (i.e.: not turn up to Court.)
• There is a risk the accused may commit an offence whilst on bail.
• It is impractical to obtain sufficient information for a decision to be made on dealing with the accused for that offence
• There is a risk that the accused may interfere with witnesses or obstruct the course of justice.
• The accused has previously absconded (jumped bail) in any criminal proceedings
• For the accused’s own protection or, if they are a child or young person, for their own welfare or their own interests
These may not be the only exceptions to bail being granted, although they are the main exceptions.
Section 3.6 of the Bail Act 1976 gives Magistrates the power to require a defendant to comply with such conditions as they consider necessary before their release on bail.
These conditions will vary according to the circumstances of both the case and the defendant, but their aim is to ensure that the defendant will:
• surrender to custody i.e. turn up at the next hearing
• not commit an offence whilst on bail
• not interfere with witnesses or in any way obstruct the course of justice
• make themselves available so that enquiries or a report can be made to assist the Court in dealing with them for the offence.
Conditions a Magistrate could impose on a Defendant
To try to ensure that the defendant will turn up, the Magistrate can insist that they live in a particular place so that the whereabouts of the Defendant are known. They can also instruct the Defendant to stay away from a specified location - for example, where there may be concerns over interference with witnesses in that location.
The Magistrate can order the defendant to be at home between certain hours.
The Magistrate can ask another person to guarantee a specific sum of money to be paid if the Defendant absconds. The amount is likely to be proportionate to the seriousness of the offence and possible sentence, and hence the likelihood that the defendant will abscond.
This is similar to surety, but the money is actually lodged with the Court.
The Defendant can be ordered to report to a police station at regular intervals.
Surrender of Passport
The Defendant can be ordered to give their passport to the Prosecutor to try to stop them leaving the country, and not to make travel arrangements. The Defendant is not to apply for any more travel documents, including the issue of a new passport.
The Magistrate can impose any combination of these conditions. They can also impose any other conditions they see fit.
What the Magistrates decide to do will depend on what they are told about the case by the Prosecutor, and what objections or points are raised by the Defence to show that matters are not as serious as they may appear.
Procedures vary from Court to Court but generally the format is as follows:
• The Defendant appears in Court and is identified by the Clerk, whereupon the defendant is asked to confirm their name and address.
• The Clerk reads out the charge.
• The Prosecution Lawyer states what they want to happen at the hearing - a Remand, the duration and reason.
• The Prosecution then outlines the brief facts of the case.
• The Prosecutor then states any objections to bail and explains the reasons for them.
• The Defence can then question the witness about the facts.
• The Defence can call witnesses and explain to the Court their reasons for disagreeing with what has been said.
• The Prosecution Lawyer then has the right of reply to clear up any points made by the Defence.
• The Magistrates then decide on their course of action.
What follows outlines the format of a Remand, and the procedures to be followed:
Normally, a ‘Remand in Custody’ means that the Defendant is taken to the Remand Wing of the local prison
• The Defence will (if it has not already been provided) ask for advance disclosure of the case against their client. This can be provided by either giving them a summary of the evidence or some of the actual witness statements. This should be done through the CPS.
• If the offence charged is an ‘either-way’ one (typically involving dishonesty) at some point during a Remand Hearing (it may be the first hearing or a later one), the Magistrates have to decide whether the case should be tried by them or committed for trial to the Crown Court. This procedure is known as deciding ‘Mode of Trial’.
• When the Magistrates consider whether to grant a Defendant bail, they consider all the circumstances relating to the case which have been explained to them by both the Prosecution and the Defence.
• If the Defendant is refused Bail by the Magistrates, they have the right to appeal to the Crown Court.
• If the Defendant is granted bail by the Magistrates, then the prosecution have the right to appeal against the decision.
Decisions on the Type of Trial
All cases begin with the Charge being put to the Defendant.
If the case is triable either way, then any representations about which ‘Mode of Trial’ is more suitable will be made at this stage. The Magistrates will make their decision by looking at the nature of the case, the circumstances of the offence, whether they have sufficient powers of punishment, and any other relevant circumstances.
If the Magistrates decide that the case is more suitable for trial on Indictment, their decision is final - but if they consider it is more suitable for Summary Trial, then the Defendant (but not the Prosecutor) has the right to elect for Trial on Indictment.
Under s.51 of the Crime and Disorder Act 1998, if the charge is indictable only, then the case will be ‘sent’ by the Magistrates’ Court directly to the Crown Court without the need for committal proceedings. This is called ‘Transfer Proceedings’.
Plea Before Venue
The Magistrates Courts Act 1980 ss.17A (as amended by the CPIA 1996) allows Defendants charged with an ‘either way’ offence to indicate their intention to plead at the first hearing of the case, before the Magistrates consider the Mode of Trial.
If the Defendant pleads guilty, the Magistrates will then pass sentence immediately, adjourn for sentencing, or commit the case to the Crown Court (should the Magistrates consider their sentencing powers to be insufficient in the matter.)
There are two types of Committal Proceedings:
• A ‘Contested Committal’, under s.6(1) of the Magistrates Court Act 1980. The Defence will state there is insufficient evidence to commit the Defendant to trial. Magistrates will consider the evidence, and decide whether to commit the Defendant to Crown Court or dismiss the case.
• B ‘paper committal’, under s.6(2) Magistrates Court Act 1980. The Defence accepts there is a ‘prima facie’ case to answer, and the Magistrates commit the Defendant to Crown Court without considering the evidence. This is the most common situation.
After Committal, the Case Lawyer will arrange the Indictment. The Indictment is then lodged at the Crown Court, and the Court will fix the date for trial.
The Trial Process
The format of a trial in Crown Court is similar to a hearing in Magistrates Court.
A trial starts with the Defendant pleading ‘Guilty’ or ‘Not Guilty’ (unless they have pleaded at an earlier stage – i.e. the Plea and Case Management hearing.)
If they plead ‘Not Guilty’, then a Jury is selected and the trial can begin.
The Prosecution Counsel outlines the facts of the case which they hope to prove by calling witnesses. These witnesses can be cross-examined by Defence Counsel, whose job it is to attempt to show that the Prosecution’s interpretation of the facts are not correct.
When all the Prosecution evidence has been put before the Court, the Defence Counsel can ask the Judge (in the absence of the Jury) to dismiss the case through lack of evidence. If they fail in this submission then the Defence can call evidence on behalf of the Defendant (including the Defendant). The Prosecution then have the right to cross-examine the defence witnesses.
Once all the evidence has been heard, both the Prosecution and the Defence will summarise their cases to the Jury, known as ‘summing up’.
The final summing up is done by the Judge, whose task it is to explain to the Jury the facts on which they must base their decision, as well as the procedure for coming to that decision. The Jury then retires to consider its verdict. When the Jury has arrived at a verdict the Foreman, whom the Jury has appointed, announces the verdict on each count of the Indictment.
If it is a ‘Guilty’ verdict, the Judge will review any antecedents (particularly any previous convictions) relating to the Defendant.
The Judge will also listen to pleas of mitigation by Defence Counsel before sentencing.
It is also likely that if the Judge is considering any sentence other than a fine he or she will ask for a pre-sentence report about the Defendant – consequently, sentencing may be adjourned to a later date.