You do not need to read this guide if you do not want to. Every case is different and we shall advise you on yours. Do not hesitate to ask us if you have any problems. We are here to help you!
A "Brush with the Law" can be very unpleasant. This guide is to give you an idea of how the System works. The worst fear is that of the unknown. If you understand what is going to happen it may help you cope with the experience.
All Cases start in the Magistrates Court, (but they only pass Sentence on minor offences). They can send you to prison for up to twelve months. More serious matters are transferred to the Crown Court.
Magistrates are generally not lawyers but members of the public who have volunteered to do the job. They decide who is innocent and who is guilty. They also decide what Sentence to impose.
The Crown Court
This generally deals with more serious cases. Trial in the Crown Court are held before a Judge and Jury. The Jury is made up of 12 members of the public who are selected at random to try cases for 2 weeks. The Jury decides whether a Defendant is guilty or innocent The Judge decides the Sentence.
There is no limit on the Sentence which may be imposed by the Crown Court It can pass the maximum Sentence allowed for any offence.
The Youth Court
Magistrates also sit at Youth Courts. They deal with Defendants who are 17 and younger Sometimes they send Young People to the Crown Court for Trial.
Offences are divided into three types, Summary, Either Way and Indictable. The type depends upon whether the case may be tried in the Magistrates Court, in the Crown Court or in either Court.
- Summary: These are less serious matters. Generally, these may only be dealt with in the Magistrates Court. Assault by beating, shoplifting under £200 and most motoring offences are in this group.
- Either way: This covers most offences (for example, theft). These cases may be tried in either the Crown or Magistrates Courts.
- Indictable Only: "Indictment' is an old word for charge. These are usually the most serious cases (for example Murder). There are also some odd but less serious matters that are indictable only. Such cases must be tried in the Crown Court.
This depends upon whether you are:
- 17or younger and
- whether you are charged with a summary, an either way or an indictable only offence.
It also depends on whether you plead "guilty" (admit the offence) or"not guilty" (deny the charge).
Summary Only Cases
The Magistrates listen to an outline of the case from the Prosecution. The Defendant is then allowed to speak. They may say whatever they wish about the matter. This is generally done by the Defendant's Lawyer. The Magistrates then decide what Sentence they will impose. They may ask the Probation Service to prepare a report on the Defendant before passing Sentence.
Either Way Cases
1. If the Defendant pleads guilty in the Magistrates Court:
The Magistrates hear an outline of the case from the Prosecution. They listen to what is said by the Defendant or by their Lawyer. They decide whether they should impose a Sentence or send the Defendant to the Crown Court. If they decide to deal with the case, they may ask the Probation Sen/ice to prepare a report on the Defendant to help them choose the right Sentence.
2. Where a case is sent to the Crown Court:
The Judge decides the Sentence. A Pre-Sentence Report may be prepared by the Probation Service before Sentence is passed. The procedure in the Crown Court is the same as in the Magistrates Court except the parties are normally represented by Advocates. These Barristers or Solicitor Advocates wear black gowns and sometimes a white wig.
Indictable Only Cases
These also start in the Magistrates Court. The Defendant is not asked to say whether they are guilty or not in the Magistrates Court but they can indicate a guilty plea. The case is immediately transferred to the Crown Court.
At the first hearing in the Crown Court (called PTPH), the Defendant is asked if they plead guilty or not guilty. If a Defendant answers ’guilty", the procedure is the same as for either way offences. After hearing what the Prosecution and Defence Advocates have to say, the Judge will pass sentence The Judge might order the Probation Service to prepare a report on the Defendant before doing this
These are cases where a Defendant pleads guilty but there is a dispute between the Prosecution and the Defence about what actually happened This must be important enough to affect the Sentence. The Court has a Trial to decide what happened. It is usually better to avoid Newton Hearings.
NOT GUILTY PLEAS
A Defendant is expected to tell the Court at the first Hearing if they wish to plead not guilty. The case will not be dealt with on that day but the Court will fix a date when the Trial can take place.
The Defence and Prosecution are required to tell the Court what the “issues" of trial will be. And the Court will set directions for each side to ensure the case is ready for trial on the date fixed
Either Way Cases
If the Defendant tells the Magistrates that they wish to plead not guilty or say no plea, the Magistrates decide whether or not to deal with the case. The Prosecution summarise the facts and tell the Court where they think the case should be heard. The Defence can also speak to the Court and say whether they consider that the Trial should take place in the Magistrates Court
If the Magistrates decide that they are prepared to deal with the case, the Defendant is then asked where they wish the matter to be heard? The Defendant has an absolute right to choose whether they wish to be tried by the Magistrates or in the Crown Court before a Judge and Jury.
Once a Defendant has told the Court where they wish to be tried, they cannot change their decision without the Court’s permission which is seldom granted
If the Defendant or the Magistrates decide that a Crown Court Trial is appropriate, the case is sent to the Crown Court for a PTPH hearing. Should the Defendant and the Court choose to have the case heard by the Magistrates the procedure is the same as summary cases.
Indictable Only Cases
A Defendant does not enter their plea in the Magistrates Court. The case is sent by the Magistrates to the Crown Court At the first Hearing in the Crown Court (PTPH) the Defendant pleads not guilty, and the Judge sets a timetable for things to be done and he fixes a date for the trial.
What happens is much the same in the Magistrates Court as in the Crown Court. The Prosecution needs to prove the case against you beyond reasonable doubt This means that the Court must be sure that you are guilty.
- The Prosecution call their evidence first. We are entitled to ask questions of their witnesses.
- When the Prosecution finished it is our turn. We are entitled to ask the Court whether they think that the Prosecution have produced enough evidence for there to be "a case to answer'’. If the Court decides that "a reasonable Court could not convict" on the evidence that they had heard the charge would be dismissed. This does not happen very often
- We generally need to decide whether to call evidence. It is possible not to call any evidence and still be acquitted. We may be able to say that "this Court should not convict" and attack the evidence offered by the Prosecution. You are not forced to give evidence but if you do not this may be taken as an indication of your guilt unless the case against you is a weak one.
- If you decide to give evidence you will be the first Defence witness You will be cross examined by the Prosecution. They will normally suggest that you are lying. You can then call witnesses to give evidence on your behalf.
- After the Court has heard the evidence and anything the Lawyers have to say it decides if you are innocent or guilty.
- If you are found not guilty that is the end of the matter. If the Court convicts you, it will then consider what Sentence's necessary
Sentences for Youths
Referral Order: These are for people between the ages of 10 - 17 who have no previous convictions and who plead guilty. These are referred for between 3 and 12 months to a Youth Offender Panel unless the Court think they should be locked up, sent to Hospital or not punished at all.
A Referral Order must be made where you plead guilty to all the charges and can be made where you plead guilty to one.
You will be required to agree and enter into a contract with the Youth Offender Panel which is designed to stop you from getting into more trouble.
Youth Rehabilitation Orders: These are for persons under 18 and are similar to adult Community Orders. The Court may impose a number of activity requirements and restrictions on liberty. They may be for a maximum of 3 years.
Detention and Training Orders: These are available for Defendants aged between 12 to 1 7. They may be for 4, 6, 8,10, 1 2, 18, 24 months. One half of the Sentence is spent locked up and the other half on supervision. Persons serving 8-12 months may be released 1 month early and those serving 18 to 24 months. 2 months early.
Sentencing Guidelines: For most offences the Court is required to apply the appropriate sentencing guideline which can be found here.
From least to most serious (this is not an exhaustive list):
These are imposed in very minor cases. The Court accepts that you have committed an offence, but does not think that you should be punished for it.
These may be imposed for minor offences. The Court does not give you any punishment on condition that you do not commit any further offence within a set time fixed by the Court. This must not be more than 3 years. If you are convicted of a Crime committed in that time, then the Court passing Sentence for the new offence can impose punishment for this crime.
The Court may order you to pay compensation to anyone who was injured or who suffered monetary loss as a result of your crime These persons could also probably sue you. The Court is only to make an order in straightforward cases when the loss or injury is proved. The Court must take account of your financial position and ability to pay. The compensation should normally be an amount that the Court thinks you can pay within 1 year, but this may sometimes be extended to 3 years.
The bad news is that in some cases, the Magistrates can impose fines of up to £5.000.00 and the Crown Court unlimited fines. The good news is that the Court must take into account your financial circumstances before fixing the fine. The fine should be no more than the amount that the Court thinks that you can pay within 1 year. For example, if the Court thinks you can pay £5.00 per week, the fine should be no more than 52 weeks at £5.00 - £260.00.
Young Persons: The Court can Order the Parent or Guardian of a Young Person to pay their fine.
The Court should only impose a Community Order if it is of the opinion that the offence is serious enough to warrant such a sentence. These restrict your freedom but enable you to serve a sentence in the community as opposed to prison. The Court can attach a number of conditions to the Order. These should be tailored to deal with the offence and the offender. Some examples are:
- Curfew Orders (Also called "Tagging"): You are obliged to wear an electronic tag. Your freedom is restricted because you are obliged to stay indoors. It is a form of "house arrest" The Order may be for 2 - 1 2 hours a day for up to 6 months (3 months for persons under 16).
- Rehabilitation Activity Requirement (RAR): You are required to attend an activity as directed by the Probation Service for a certain number of days to assist your rehabilitation.
- Drug rehabilitation/ Alcohol Activity Requirement DRR/ATR;activities directed by Probation to assist you in tackling your addiction. The Court may review the orders by requiring you to come back to Court every month or so for review
- Community Payback (Unpaid work): you may be ordered to do between 40-300 hours of work in the Community for which are not paid.
A Prison Sentence is only to be imposed "when right thinking members of public" would think it appropriate. The Sentence should not be any longer than is absolutely necessary.
You will generally be eligible for release after serving half of the Sentence. This can vary depending on the length of the Sentence and the date of the offences.
The Magistrates can sometimes Sentence a person to one year’s imprisonment, but they will only serve 6 months. There are separate rules for "life" Sentences. You may be released even earlier if you are thought to be suitable for "tagging". You can be recalled on your licence. You must complete Post Sentence Supervision on your release - if you breach it you can be sent back to prison for up to 14 days. This PSS plus your licence is there to support you for 12 months following your release.
From the Magistrates Court
An Appeal can be made to the Crown Court against conviction and/or Sentence. Notice of Appeal must be given within 21 days of Sentence. You do not need the permission of the Court to lodge an Appeal.
An Appeal cannot be made until Sentence is passed, even if you want to Appeal against conviction.
The Judge sits with two Magistrates. There is no Jury. The Crown Court can acquit a Defendant. It can also impose a tougher Sentence than the one appealed against, but not one greater than that which the Magistrates could impose for that offence.
From the Crown Court
Appeals from the Crown Court against Conviction or Sentence are heard by the Court of Appeal in London. It is usually necessary to obtain permission before proceeding with these Appeals. The Court does not hear the case again, but reads the record of the Trial. An Appeal against conviction will only be heard if the Crown Court Judge made a mistake on the Law.
Notice of Appeal must normally be given within 28 days of conviction for an Appeal against conviction and 28 days of Sentence for an Appeal against Sentence.
On a successful Appeal against conviction, the Court can acquit the Defendant or order a new Trial.
On an Appeal against Sentence the Court cannot impose a greater Sentence on a Defendant that the one Appealed against (unless the Appeal is brought by the Prosecution on the grounds that Sentence was too lenient). It can also direct that time served waiting for your Appeal to be heard is not deducted from your sentence. This happens rarely, if it considers there was no merit in your Appeal.
The Right to Bail
Everyone charged with an offence has the right to bail until they are convicted or plead guilty. Someone who has pleaded guilty or has been convicted of an offence still has the right to bail if their case is adjourned for a Pre-Sentence Report (but not e.g. Committed to the Crown Court for Sentence). Separate provisions apply to murder charges where it is extremely rare to be granted bail.
Reason for refusing bail
A person must be granted bail unless the Court believes that there is a substantial risk of a Defendant absconding, committing offences on bail, interfering with witnesses or affecting the evidence and that there is a reasonable chance that they will receive a prison sentence. In those cases, the Court may still grant bail, but need not do so.
A Court may also refuse bail!
- for a Defendant's own protection
- where they are already serving a Prison Sentence
- if there has not been enough time to obtain information about the Accused
- To protect an "associated person" from harm
- if the Defendant has broken bail conditions in the same proceedings
- if the case has been adjourned for reports and it is necessary to keep the Defendant in custody for their preparation
- where the Accused is charged with an either way offence committed while on bail for another matter
Where the right to bail exists, the Court should consider whether there would still be a substantial risk of the Accused absconding, committing offences, or interfering with witnesses etc, if bail was imposed with conditions to prevent these things from happening. These conditions can be for example, residence, providing a Surety, reporting to a Police Station, curfew, staying away from certain persons or places.
Every time a Defendant appears, the Court is under a duty to consider whether Bail should be granted. But a Defendant only has the right to ask for bail twice in the Magistrates Court unless there is a change of circumstances.
The First chance is when a Defendant first appears before the Magistrates Court in Custody. If that fails, a Defendant can ask for bail one more time.
The first time a Defendant appears in Custody before the Magistrates, the Court may not order a remand in Custody for more than 8 days. After the Hearing, the Court may (if the Defendant consents) order a remand for up to 4 weeks.
A Defendant refused bail by the Magistrates may apply to a Crown Court Judge for bail without a change of circumstances. This is commonly known as “Judge in Chambers” A Defendant therefore has three chances to apply for bail without a change of circumstances. If there is a change of circumstances (e.g., the charges are reduced or a surety is found) then an Accused person may apply for bail again to the Magistrates, and if that fails to the Crown Court Judge.
CUSTODY TIME LIMITS
There are limits upon the time that an Accused person may be kept in Prison awaiting Trial for either way offences called "Custody Time Limits".
- These are 56 days (8 weeks) when the Trial is to be in the Magistrates Court.
- For Crown Court the time limit is 182 days (26 weeks) from the date upon which the Defendant first appears in the Magistrates Court.
These time limits may be extended by the Court, but they are designed to put pressure on the Prosecution to have their case ready for Trial. The time limits start running again, if the Prosecution bring new charges or amend an existing one. The good news is that if the Custody Time Limits are exceeded, an Accused must be released on unconditional bail!