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Law Book 1 > The English Legal System - Criminal Courts (Chapter 4) > Flashcards

The English Legal System - Criminal Courts (Chapter 4) Flashcards

1
Q

In criminal law, which are the courts of first instance and which are the appellate courts?

A

First instance

Magistrates’ Courts
Crown Courts

Appellate Courts

Crown Courts
High Court
Court of Appeal
Supreme Court

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2
Q

How are the judges at the Magistrates’ Court called?

A

Justices (lay magistrates) or District Judges

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3
Q

In terms of qualification, what is the difference between Justices and District Judges?

A

Justices are not legally qualified and will therefore be advised on points of law, practice and procedures by a legally qualified or experienced court clerk.
District Judges are properly qualified solicitors or barristers who sit as full-time or part-time judges at the Magistrates’ Court.

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4
Q

Finish this sentence

Justices are the tribunal of …
District Judges are the tribunal of … and …

A

Fact
Fact and law

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5
Q

How is a Magistrates’ Court composed?

A

Up to three Justices or District Judges
In Central London only, most cases will be heard by a single District Judge

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6
Q

Over what kind of offences does the Magistrates’ Court exercise jurisdiction over?

A

Summary criminal offences (Ordnungswidrigkeiten)

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7
Q

Offences triable only summarily may only be tried in the Magistrates’ Court. What does that mean?

A

The defendant does not have the right to be tried before a jury

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8
Q

What are the three types of criminal offences in UK law? What is considered a separate type?

A

1) Summary offences
2) Either way offences
3) Indictable only offences
4) Contempt of court

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9
Q

What are the three main differences between the types of offences in UK law?

A

Sentence period
Type of court
Authority

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10
Q

Type of court
Sentence period
Authority

For summary offences

A

Magistrates’ Court, if attached to another crime in either-way or indictable category it may, in limited circumstances, be dealt with in the Crowns Court
A summary offence normally carries a maximum sentence of 12 month’s imprisonment or a fine. The Magistrates’ Court can also give punishments such as a ban or community service.
Cases in the Magistrates’ Court are usually heard either by a District Judge sitting alone, or by a bench of three Magistrates (District Judges or Justices).

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11
Q

Type of court
Sentence period
Authority

For either way offences

A

An either way offence can be heard in either the Magistrates Court or the Crown Court. The range of offences within this category is very wide in terms of the level of seriousness. The main factor in deciding which court will deal with an either way offence is the likely sentence the defendant will face if found guilty.
The maximum sentence for an either-way offence dealt with by the Magistrate’s Court is 6 months. If the case is referred to the Crown Court the maximum penalty is whatever the maximum for that offence is by law.
Either way offences dealt with by the Magistrates’ Court will be decided by a District Judge sitting alone, or by a bench of three Magistrates (District Judges or Justices). Cases dealt with by the Crown Court will be decided by a judge and jury.

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12
Q

Type of court
Sentence period
Authority

For indictable only offences

A

Indictable only offences are the most serious category of criminal offence and can only be dealt with in the Crown Court.
As this is the most serious category of offence, the maximum sentences are long. Many indictable only offences carry a maximum sentence of life imprisonment.
If the case proceeds to a trial, the jury will decide on the defendant’s innocence or guilt. It is always for the judge to pass sentence.

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13
Q

What power does the Magistrates’ Court have in deciding over cases when a person is charged with an either way offence?

A

A person charged with an either way offence must first appear before a Magistrates’ Court where they will be asked to submit their plea. The Magistrates’ Court will hear the facts of the case and decide where the case should be allocated for trial or sentence.

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14
Q

What decides if a either way offence will be tried before the Magistrates’ Court or the Crown Court?

A

The facts of the individual offence will determine how serious it is and hence whether the sentence will be within the powers of the Magistrates (a maximum of 6 months for a single either-way offence) or whether it will need to go to the Crown Court where higher penalties can be given.

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15
Q

In court, a judge may find an individual in contempt of court if they are?

A
  1. Disrespectful - insulting the judge, a court officer, lawyer or witness
  2. Disobedient - not complying with the lawful order of the court
  3. Disruptive - being rude or noisy in court
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16
Q

What are the punishments for Contempt of Court?

A

If someone is found in contempt of court, there are a few different punishments that can be handed down. The most common is a fine, which can range from a small amount to a maximum of £2,500. In some cases, especially if the person is unable to pay the fine, they may be sentenced to jail time for a maximum of 1 month in the magistrates’ court, or up to 2 years in the Appeal Court and Crown Court.

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17
Q

What is the difference between civil and criminal contempt of court?

A

Criminal contempt is a serious offence that can result in a jail sentence.
Civil contempt of court is conduct that is not a crime in itself, but is punishable by the court in order to ensure that its orders are observed.

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18
Q

What are examples of criminal contempt?

A
  1. Refusing to be sworn in as a witness
  2. Failing to answer questions during cross-examination
  3. Disrupting proceedings by making noise or speaking out of turn
  4. Interfering with witnesses or jurors
  5. Refusing to hand over evidence when ordered to do so by the court
  6. Threatening, assaulting or intimidating anyone involved in the court case such as lawyers, witnesses or jury members
  7. Publishing material that could prejudice a fair trial such as identifying jurors before they have retired to consider their verdict
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19
Q

What are examples of civil contempt?

A
  1. Failing to pay child support
  2. Not complying with a visitation schedule
  3. Not following the terms of a divorce decree
  4. Refusing to obey a court order to turn over property
  5. Violating the terms of a restraining order
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20
Q

What are the requirements for a either-way offence to be tried before the Magistrates’ Court?

A

They require the Magistrates’ Court to determine the mode of trial.
If the Magistrates decide that the summary trial is more suitable for the either-way offence, it also requires the defendant’s consent.
If the defendant does not consent, the case is sent to the Crown Court.

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21
Q

What is an Indictment?

A

The indictment is simply the document that contains the charge or charges faced by the defendant at trial in the Crown Court.

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22
Q

What is a trial on indictment?

A

A trial in the Crown Court is also known as ‘trial on indictment’ and offences which can or must be tried in the Crown Court are known as ‘indictable offences’.

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23
Q

What does the Magistrates’ Court base its decision on when imposing fines?

A

(1) Standard scale
(2) Severity of the offence

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24
Q

How many levels of offences are there? Does it have an effect on fines?

A

5 levels
1-4 certain limits on fines
5 no limit

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25
Q

The upper cap for level 5 offences has recently been lifted. Which law was responsible and how was the limit before?

A

Sentencing Act 2020
5000 GBP

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26
Q

What is the difference between conviction and sentence?

A

A conviction refers to the outcome of a criminal trial. It is the act of proving or declaring a person guilty of a crime. A sentence, on the other hand, is the formal declaration by a court imposing a punishment on the person convicted of a crime.

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27
Q

What are the three activities of the Crown Court?

A

1) Deals with the most serious offences that will be tried by judge and jury
2) Appeals from the Magistrates’ Court (dealt with by a judge and at least two Magistrates)
3) Convictions in the Magistrates’ Court that are referred to the Crown Court for sentencing

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28
Q

Why could it be favorable for a defendant to go to the Crown Court?

A

They can invoke the sympathy of the jury.

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29
Q

What is the trade-off between the Magistrates’ Court and the Crown Court for defendants?

A

The punishments in the Crown Court are more severe.
But the defendant can only invoke the sympathy of the jury in the Crown Court.

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30
Q

Jury and judge have different roles. Which are they?

A

Judge: Finding law
Jury: Finding facts

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31
Q

What are the judge’s tasks in the trial?

A

a) Describe the burden of proof
b) Sum up the evidence of both the prosecution and the defence
c) Define the law concerning the particular offence or offences

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32
Q

Can a judge express an opinion during the trial?

A

No, he can only comment on the evidence and point out implausibility or contradictions.

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33
Q

While the jury has retired in a case, what does the judge have to do?

A

He must be available to answer questions the jury might have. These questions need to be asked openly in court.

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34
Q

How can a judge acquit a case?

A

If he decides that in the LAW the prosecution’s evidence has failed make out a case against the defendant. He will direct the jury to acquit the case.

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35
Q

How are jurors selected for the jury?

A

Selected randomly in an electronic registry.

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36
Q

What are the criteria to be in the electronic registry for jurors?
What registries are there?

A

Age 18 to 75
Have lived in the UK for at least 5 years since age of 13

Parliamentary register
Local government register

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37
Q

What are reasons for exclusion from jury duty?

A

Sentenced to imprisonment for 5 years or more
Received prison sentence or community service in the previous 10 years
Placed on probation in the previous 5 years
Currently on bail in criminal proceedings
Persons lacking mental capability within the meaning of the Mental Capability Act 2005
Persons restricted under the Mental Health Act 1983

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38
Q

In the past, certain professions were exempt from jury duty. Which? Which law has repealed this exception?

A

Lawyers, judges, police officers, clergy
Criminal Justice Act 2003

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39
Q

What are three ways how the parties can challenge jurors?

A

1) Stand by for the crown (prosecutor)
2) Challenge for cause (prosecutor or defendant)
3) Challenge to the array (prosecutor or defendant)

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40
Q

What is “stand by for the crown”?

A

It’s a legal option for the prosecution to exclude a member of the jury. No reason need to be given.
However, the Attorney General announced in 1998 that this right would only be used to remove a juror considered to be “manifestly unsuitable” or to remove a juror in a terrorist or security trial where jury vetting has been authorized

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41
Q

What are the requirements for the defence or prosecution to “challenge for cause”?

A

Can be challenged for many reasons. It may occur when a juror is known to have made racially offensive remarks regarding a particular racial or ethnic category of the defendant.
However, it is not sufficient for a juror to be challenged just because of his race, religion, political beliefs or occupation.
The test for apparent bias is the “real danger” test described by Lord Goff in R vs Gough [1993] AC 646

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42
Q

What is the “real danger” test?

A

This test is used to used for apparent bias when challenge for a cause - a way to remove a juror from the jury based on bias.
It is described in Lord Goff in R vs Gough [1993] AC 646

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43
Q

What is “challenge to the array”?

A

This is where the parties (defendant or prosecution) challenge the whole jury on the grounds that the summoning officer is biased or has acted improperly.
This happens very rarely.
In 1993, this happened in the Romford Jury case where most of the jurors lived in the same street.

44
Q

Does the judge also have the power to remove a juror?

A

Yes, he can use his discretionary power to remove a juror.

45
Q

What does discretionary power mean? (German)

A

Ermessensspielraum

46
Q

What is jury vetting?

A

An exceptional procedure that is most likely going to be requested in the following cases:
1) Cases involving terrorism
2) Official Secrets Act
3) gangland related crime

47
Q

What is the Official Secrets Act?

A

An Official Secrets Act (OSA) is legislation that provides for the protection of state secrets and official information, mainly related to national security but in unrevised form (based on the UK Official Secrets Act 1911) can include all information held by government bodies.
There are five Official Secret Acts in the UK, the latest from 1989.

48
Q

What is the minimum number required for the Crown Court jury to reach a verdict?
In what cases are verdicts by majority possible? What are the majorities allowed?

A

9: Must be unanimous
At least 10 for majority, allowed are
10: 9:1
11: 10:1
12: 10:2 or 11:1

49
Q

Where can we find the majority requirements for a jury?

A

Juries Act 1974

50
Q

What does the foreman of the jury have to do for the Crown Court to accept the verdict?

A

State in open court the number of jurors who respectively agreed to and dissented from the verdict.

51
Q

Meaning of “dissent”

A

Widersprechen

52
Q

Meaning of “deliberation”

A

Überlegung

53
Q

In Crown Court, what is the minimum time a judge can accept a verdict by majority?

A

Two hours

54
Q

What is the meaning of “alternative verdict”?

A

When (1) a defendant is tried on indictment for any offence except murder or murder
(2) he is found not guilty by the jury
(3) the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the high court
The jury may find the defendant guilty of that other offence. That may include summary only offences.

55
Q

“Evidence of a jury’s deliberations is not admissible in court” What does that mean?

A

It means that the jury is not allowed to disclose how the jury came to the verdict. This is, indeed, a punishable act.
Under section 8(1) of the Contempt of Court Act 1981, it is a contempt of court for a juror to reveal what took place behind the door of the jury room.

56
Q

The Contempt of Court Act 1981 also applied to newspapers? How?

A

It is an offence for a non-juror, such as a newspaper, to solicit information as to any discussions that took place there.

57
Q

Two examples of when misconduct of a jury jeopardised a defendant’s right to a fair trial

A

R vs Cadman [2008] EWCA Crim 1418: The Court of Appeal quashed a fraud conviction where the jury had asked for, and provided with, some cheques that which had not been in evidence in the trial.
In 2011, a Crown Court trial was abandoned when a juror and defendant discussed the trial on the social networking site Facebook.

58
Q

Acts discussed in this chapter (placeholder)

A

Criminal Justice Act 2003
Juries Act 1974
Criminal Law Act 1967
Mental Capacity Act 2005
Mental Health Act 1983
Contempt of Court Act 1981
Criminal Justice Act 1988

59
Q

In which case can a non-jury trial take place?

A

Cases where there is danger of jury tampering or where jury tampering has taken place

60
Q

Who applies for a non-jury trial? What are the requirements?

A

Prosecutor
1) Evidence of a real and present danger that jury tempering will take place
2) Even after taking any steps to avoid tampering (e.g., police protection) which might be reasonably taken, the likelihood would still be so substantial that it will take place
Criminal Justice Act 2003 Section 44

61
Q

What options does a judge have when jury tampering has been taken place?

A

Criminal Justice Act 2003 Section 46(3)
Where jury tampering has taken place, the judge may continue the trial without a jury unless to do so would be unfair to the defendant
This has only taken place one in a serious crime in R v Twomey, Blake, Hibberd and Cameron [2011] EWCA Crim

62
Q

Which are the appellate courts?

A

Crown Court
High Court King’s Bench Division
Court of Appeal (Criminal Division)
Supreme Court of UK

63
Q

In which case can a defendant appeal to the Crown Court?

A

Pleaded not guilty before the Magistrates’ Court - can appeal against conviction or sentence or both
Pleaded guilty before the Magistrates’ Court - can appeal against sentence only - he can only appeal against the conviction if he can argue that his plea of guilty was equivocal

64
Q

In which form and under consideration of which deadline does an appeal to the Crown Court take place?

A

Notice of appeal must be given in writing to the clerk of the Magistrates’ Court concerned and the prosecution within 15 business days of sentence being passed, stating the grounds for appeal

65
Q

What happens after an appeal to the Crown Court?

A

Re-hearing of the case at the Crown Court.
Parties may call the same evidence as in the earlier case, hoping that the Crown Court may take a different view, or may call different evidence, including not calling witnesses that were called in the previous court.

66
Q

What two types of appeals can be made to the High Court?
Where are they heard?

A

Appeal by Case Stated, King’s Bench Division
Application for Judicial Review, King’s Bench Division, Administrative Court

67
Q

What is the main difference between Appeal by Case Stated and Application for Judicial Review?

A

Appeal by Case Stated: For Correctness. Grounds are that Magistrates have misdirected themselves as to the law (e.g., inadmissible evidence was received or admissible evidence was excluded) or have acted in excess of their jurisdiction (e.g., if the Magistrates did not have the power to try the case)
Application for Judicial Review: Grounds the way the Magistrates’ decision has been reached. Magistrates might have exceeded their jurisdiction or acted in breach of natural justice (e.g., defendant was not given reasonable time to prepare his defence)

68
Q

Why is it called “appeal by case stated”?

A

Because Magistrates need to state a case for the opinion of the High Court once an application for an appeal has been submitted

69
Q

What is the formal procedure for an appeal by case stated?
Who can submit an application?

A

Application to the High Court within 21 days of the acquittal or conviction/sentence

70
Q

Who hears the appeal by case stated?
What will be the result?

A

The appeal is heard by three High Court Judges who may reverse, affirm or amend the Magistrates’ decision or remit the matter back to the Magistrates (or a different bench of Magistrates) with its opinion

71
Q

Is the appeal by case stated considered a civil or criminal matter?

A

Civil.

72
Q

What consequence does it have for defendants that appeal by case stated are considered civil matters?

A

Legal representation will not be covered. Funding will need to be sought from the Legal Aid Agency.

73
Q

In cases of Application for Judicial Review at the High Court, what orders can the Administrative Court make?
Which is the most common?

A

1) A quashing order - to overturn a decision - most common
2) A mandatory order - to order a court to try a case
3) A prohibitory order - to stop a court hearing a case

74
Q

If the Administrative Court makes a quashing order in case of an appeal, what options does it have?

A

1) Remit the matter to the decision maker and direct it to reconsider its decision in accordance with the judgement
2) Substitute its own decision

74
Q

If the Administrative Court makes a quashing order in case of an appeal, what options does it have?

A

1) Remit the matter to the decision maker and direct it to reconsider its decision in accordance with the judgement
2) Substitute its own decision

75
Q

The Administrative Court cannot entertain which type of applications?

A

Application for judicial review arising from trials on indictment

76
Q

In general, for appeals, which are the two grounds?

A

Matter of law
Matter of fact

77
Q

Who can appeal to the Court of Appeal (Criminal Division)?

A

A person convicted on indictment may appeal to the Court of Appeal against his conviction/sentence in the Crown Court.

78
Q

Who conducts ‘the business’ in the Criminal Division of the Court of Appeal?

A

Lord Chief Justice, Vice-President of the Criminal Division and the same Lords and Lady Justices of Appeal who sit in the Criminal Division

79
Q

What is the notice of leave to appeal to the Court of Appeal?

A

28 days after the conviction or sentence

80
Q

What does leave of court mean?

A

Usually leave of the court, meaning permission of the court.

81
Q

Can an appeal to the High Court be based on a matter of law or matter of fact?

A

Both.
Matter of law, e.g., when a judge misinterpreted a statute.
Matter of fact, only with permission of the trial judge or permission of the Court of Appeal.

82
Q

The Court of Appeal must allow an appeal if they think the conviction is unsafe. What does that mean?

A

Some guidance is offered by the court in a case from 1997 where it said “If, for whatever reason, the Court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe.” – in plain mans speaking if the court has some doubt about whether the guilty verdict was correct then they must allow the appeal.

83
Q

In which case can the prosecution make an appeal to the High Court?

A

In case of a terminating rule made by a judge in relation to an issue at a trial on indictment.
The prosecution in this case must obtain the leave of the trial judge or the Court of Appeal.

84
Q

Who is the “Crown”?

A

The expression “the Crown” has two meanings; namely the monarch and the executive.

85
Q

Can the judiciary enforce the law against the “Crown”?

A

The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown (Lord Templeman in Re M [1994] 1 AC 377 at 395).

86
Q

Who are the Law Officers of the UK?

A

The Attorney General for England and Wales
The Solicitor General for England and Wales

87
Q

The Attorney General has an unusual right to appeal in criminal cases. Which?

A

If they consider that an offender was dealt with unduly leniently and that his sentence ought to be increased, he may refer his sentence to the Court of Appeal for it to review the sentence under S. 36 Criminal Justice Act 1988 after first obtaining the leave of the Court to refer to the case.

88
Q

Who can appeal to the Supreme Court?

A

Both prosecution and defendant

89
Q

What are the requirements to appeal to the Supreme Court?

A

a) The Court of Appeal must certify that the decision involves a point of law of general public importance
b) Either the Court of Appeal or the Supreme Court gives leave to appeal

90
Q

What is the notice period for appeals to the Supreme Court?

A

Within 28 days beginning with the date of the Court of Appeal decision, or, if later, the date on which the Court of Appeal gives reasons for its decision.¨

If the Court of Appeal refuses permission to appeal (but has certified the decision involves a point of law of general public importance), then any application to the Supreme Court for leave must be made within the period of 28 days beginning with the date on which the application for permission is refused by the Court of Appeal.

91
Q

With which act has the European Convention on Human Rights been introduced into UK law?

A

The Human Rights Act 1998

92
Q

What is the difference between primary and secondary legislation?
What is a different name for secondary legislation?

A

Primary legislation: Acts of Parliament
Secondary legislation: Statutory Instruments. Laws made by an executive authority under powers delegated by an enactment of primary legislation, which grants the executive agency power to implement and administer the requirements of that primary legislation
Delegated legislation or subordinate legislation

93
Q

Which courts have the power to check if primary and secondary legislation are in accordance with ECHR right?

A

Court of Appeal and Supreme Court
They can issue a declaration of incompatibility
The Parliament then has to react and decide whether or not to amend or repeal the act

94
Q

Which are the most relevant articles of the ECHR for criminal cases?

A

Art. 3 - prohibition of torture
Art. 5 - right to liberty and security
Art. 6 - right to a fair trial

95
Q

Can states derogate from ECHR law? If so, what is the rule?

A

Yes, the principle of the rule of law states that states can derogate from the ECHR law, this must be a result of readily accessible law and regulation and not an arbitrary decision. It must be directed towards a legitimate aim and comply with the principle of proportionality. The derogation needs to be necessary in a democratic society or based on a pressing social need.

96
Q

Most criminal cases begin their life at the Magistrates’ Court. A defendant can be brought before the Magistrates in which ways?

A

By issue of a summons to appear
Being charged at the police station, following arrest

97
Q

What are the two requirements for a summons to appear by police and prosecution?

A

Police must lay an “Information” before the Magistrates’ Court setting out in basic terms the nature of the alleged offence, including date and time it was committed.
Each offence requires a separate “Information”.
Prosecution must lay an “Information” before the Magistrates Court.

98
Q

When the prosecution lays an information before the Magistrates’ Court, there are two deadlines and one exception. Which?
Also mention the acts that were involved as this information took a long time to understand.

A

The general obligation is for the prosecution to lay the information before the Magistrates’ Court within six months of the alleged commission. This applies to summary offences only (S127(1) Magistrates Courts Act 1980 - for the deadline, Part 7 of Criminal Procedure Rules 2020 for Starting Prosecution at Magistrates’ Court)

The exception are motoring offences. There, the notice period is 14 days. (S1(1) Road Traffic Offenders Act 1988).

This obligation for the prosecution is waived in case the police has served a Notice of Intending Prosecution (NIP) within 14 days to the defendant or he was warned, at the time of the offence, that he may be prosecuted.

99
Q

Magistrates can issue a warrant, in which cases?

A

1) The alleged offence does not empower the police to arrest without a warrant
2) The defender fails to appear before the court after a summons
3) The defender fails to respond to bail

100
Q

Does the police require a warrant to arrest?

A

No, they can arrest even without a warrant.

101
Q

Drunkenness, prostitution and common assault are which category of offence?

A

Summary offences

102
Q

Indictable-only offences are brought before the Magistrates’ Court or Crown Court?

A

This is a trick question.
The offences, like all offences, are brought before the Magistrates’ Court, but the sole function of the court is to transfer the case to the Crown Court.
However, this requires the Magistrates’ Court to be satisfied that it is an indictable-only offence. The Court also decides if the defendant stays in custody or is released on bail.

103
Q

Either-way offences refers to what?

A

It means that these offences can be tried either summarily in the Magistrates’ Court or on indictment in the Crown Court.

104
Q

What is the Mode of Trial Hearing?

A

A mode of trial hearing decides in which court a case will be heard, magistrates’ or crown, and is only held in cases where the defendant pleads not guilty or refuses to state a plea. It happens when either the Magistrates or the defendant choose to have the matter referred up to the Crown Court.

105
Q

If an offence is summary only, what happens if the defendant pleads guilty or not guilty?

A

Guilty: Magistrates’ Court will go to sentence, on same day or later.
Not guilty: Matter will be adjourned to another day, normally for pre-trial, at which time a date will be set for the summary trial.

Law Book 1 (12 decks)

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