THE CRIMINAL LITIGATION PROCESS Simple case progression:
1. Billy is arrested:
CrPR has a page of offences on page 181. The arrest must be lawful: police officer must have reasonable
grounds for suspicion (low evidential threshold). Billy is a suspect
Permitted materials: Criminal litigation materials, PACE Codes of and has rights during his detention, including the right to receive
Practice and SRA Codes of Conduct. legal advice.
Exam is 35% of litigation mark, lasts 1 hour 30 mins.
2. Billy is charged:
To charge a suspect, the custody officer in consultation with the
THE CRIMINAL JUSTICE SYSTEM: Crown Prosecution Service (CPS) must consider whether there is
sufficient evidence to charge (slightly higher threshold). In
The English criminal justice system is an adversarial system. making this decision, Billy’s interview will be taken into account.
If charged, Billy will become a Defendant.
Note C6D PACE Codes of Practice (COP) ’The solicitor’s only role in the
police station is to protect and advance the legal rights of their client.’ 3. Plea:
Billy will be asked to enter a plea of guilty/not guilty.
The classification of offences:
s.17A Magistrates’ Courts Act 1980 Plea before venue hearing
All offences will start in the Magistrates’ Court. = Hearing to ask D to indicate a plea which helps to determine
which court is suitable.
Indictable offence = covers both either way and indictable only offences.
Indictable = capable of being dealt with at the Crown Court. If the prosecution has strong evidence and/or Billy has no
Indictable only = can only be tried at the Crown Court. defence, then the lawyer will advise him to plead guilty to obtain
a reduced sentence/lower fines. If he pleads not guilty, the
1. matter will go to trial.
Summary only offences:
Least serious, dealt with at the Magistrates’ Court (start to finish). 4. Allocation:
Examples: shoplifting under £200, criminal damage, assault, driving * If D indicates a guilty plea: they will be dealt with as if
without insurance and other motoring offences convicted and the Magistrates’ Court will sentence
them. However, if the Magistrates’ Court sentencing
2. powers are insufficient, the matter will be sent to the
Triable either-way offences: Crown Court for sentence.
These offences can be tried in the Magistrates’ Court or Crown Court. An * If D indicates a not guilty plea: the court allocates the
either-way offence will start in the Magistrates’ Court and might, proceed case by hearing representations from both sides on
to the Crown Court. which each considers to be the suitable court.
Examples: shoplifting over £200, deception, fraud, sexual offences,
bigamy, actual bodily harm (ABH), theft, burglary, affray * s.78 PCC(S)A s.133 MCA 1980 The Magistrates’ Court’s
sentencing powers are:
A triable either-way offence will proceed to the Crown Court if: - One/more summary only offence: Max. 6
* The circumstances of the offence are serious months’ imprisonment
OR - One either way offence: Max. 6 months’
* The Defendant (D) wants a trial before a jury – Crown Court has imprisonment
a jury but not the Magistrates’ Court. - Two/more either way offences: Max. 12 months’
imprisonment
3.
Indictable only offences: 5. Billy’s trial:
The most serious offences will start in the Magistrates’ Court and will The burden of proof is on the prosecution.
then be sent to the Crown Court for trial. * The prosecution will open the case and call its witnesses.
Examples: murder, manslaughter, attempted murder, rape, robbery, * If the prosecution has not presented an arguable case,
wounding/inflicting grievous bodily harm (GBH) with intent, trafficking a the defence may make a submission of ‘no case to
class A drug, burglary with violence/threatened violence. answer’. If the court accepts this, the case will be closed
without Billy having to tell their side of the story.
The criminal courts: * If there is a case to answer, the defence will present its
case.
Courts of first instance: * The court will then decide if Billy is guilty or not.
* Magistrates’ Court: * When sentencing, the court will refer to the Sentencing
Three lay magistrates (the bench) or a full-time district judge. Guidelines.
The magistrates deal with all matters in their court: bail, plea,
allocation, trial, the admissibility of evidence and other legal Throughout the case:
issues, and sentence.
Lawyers on both sides consider the evidence based on its:
* Crown Court: • Admissibility
One circuit judge (or a part-time judge called a recorder). The • Relevance to a fact in issue
judge is responsible for all matters in their court except • Strength
determining guilt. Unless D enters a guilty plea, this is decided • Credibility
by a jury at trial. The judge is the arbiter of law, and the jury is • Weight
the arbiter of fact. The jury can only decide guilt based on what
it hears in court. The overriding objective: Rule 1
The court and parties must take into account the overriding objective
Voir dire = a trial within a trial in the absence of the jury throughout the case.
(regarding admissibility of evidence)
The court must deal with all cases:
* Youth court: 1. Justly – para 1.1(1) Part 1 Criminal Procedure Rules (CrPR)
Deals with offenders under 18. AND
2. In the interests of all involved – para 1.1(2) Part 1 CrPR
Appeal (or Appellate) courts:
* Supreme Court para 3.3 Part 3 CrPR The parties’ have a duty to assist the court in
* Court of Appeal achieving the overriding objective.
* Divisional Court
* Crown Court (hears appeals from the magistrates’ court. In this Factors – The parties should: para 3.2(2) Part 3 CrPR
case, composition of the court changes; a circuit judge sits with 1. para 3.2(2)(a) Give early indication of the real issues – eg. if D
two lay magistrates. They alone will hear re-trials and decide alleges mistaken identification or if D will challenge the
sentence) admissibility of evidence/confession.
2. para 3.2(2)(e) Ensure that evidence is presented in the
Case progression: shortest/clearest way.
3. para 3.2(2)(f) Avoid delay
Cases are commenced because D: 4. para 3.2(2)(g) Co-operate in the progression of the case
* Has received a summons through post
OR Art 5-6 ECHR Also bear in mind client’s human rights to liberty, security
* Is charged by the police or the CPS – focus of this module. and a fair trial. Protecting Human Rights is a purpose of the CrPR.
Criminal Litigation – Revision notes | Page 1 of 15
, PUBLIC FUNDING:
At the police station:
At the police station all suspects are entitled to free legal advice. In
addition to this, suspects may pay for solicitors privately.
To determine level of free advice – use the ‘Sufficient benefit’ test:
1. It is reasonable for the suspect to be provided with help
2. Advice is likely to be sufficient benefit to the suspect
If the matter passes the test: solicitor advises face-to-face at police
station, attends interviews, identity parades and public hearing.
Passes eg. if there has been serious maltreatment by the police
If the matter fails the test: only entitled to telephone advice.
Fails eg. minor offence, non-imprisonable or to do with drunkenness.
At the Magistrates’ Court:
Apply for a representation order as soon as possible to get funding for
representation at the hearing.
To obtain this order: D must pass both means test + merits test.
Means test:
D will pass this test if:
* D is under 18
* D receives unemployment benefits
OR
* D receives an income below £12,475 or capital is below £12,475.
Merits test:
s.17(1)(b) LASPO 2012 D’s solicitor will complete a form demonstrating
that it is in the interest of justice that D is legally represented.
Are the below factors likely?
* Is a prison sentence likely? – eg. a prison sentence will always be
likely for serious offences
* D losing their livelihood? – if a custodial sentence is likely, then
D will also likely lose their livelihood.
* D suffering serious damage to reputation? – eg. if D was a lawyer
or if D is of previous good character.
* Is it in the interest of another person that D is represented? –
eg. if it was a violent/sexual offence, the victim will want to be
cross-examined by a lawyer rather than the accused.
* Does the matter involve a substantial question of law?
* The proceedings requiring:
1. The tracing or interviewing a prosecution witness?
2. Cross-examination of experts/witnesses?
If the D fail these tests:
* D may consult the duty solicitor on one occasion if D is in
prison/custody.
* D may pay for representation privately.
Criminal Litigation – Revision notes | Page 2 of 15
