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Law A-level Module Two: The Legal System
Lesson
Nine
The Criminal Courts
and Lay People
Aims The aims of this lesson are to enable you to
- distinguish between different courts exercising criminal jurisdiction
- describe the selection and appointment of lay magistrates
describe the role and powers of lay magistrates
describe the criteria for jury selection
describe the role of the criminal jury
Context This lesson examines the basic structure of the criminal courts
and then proceeds to consider the role of lay people within the justice system.
AQA A-level Law for Year 1/AS : Chapters 13 - 14.
Oxford Open Learning
Lesson Nine The Criminal Courts and Lay People
9.1 Hierarchy of the Criminal Courts
As you will remember from the previous lesson, there are two branches to the court system: civil and criminal. This lesson deals the criminal courts. Those courts which are primarily criminal courts are highlighted in bold.
SUPREME COURT
COURT OF APPEAL
Criminal Division Civil Division
CROWN COURT HIGH COURT
MAGISTRATES’ COUNTY COURT
COURT
9.2 Courts Exercising Criminal Jurisdiction
Before considering the criminal courts it is necessary to explain the difference between courts of ‘first instance’ and ‘appellate’ courts
Courts of first instance are those criminal courts in which a defendant is tried for the crime they are alleged to have committed. It is important to use the word ‘alleged’ here as all defendants are presumed innocent. It is up to the prosecution to prove that they are guilty ‘beyond all reasonable doubt’. The two criminal courts of first instance are the Magistrates’ Court and the Crown Court.
If an appeal is made from either of these courts, the court to which the appeal is taken can be referred to as an ‘appellate’ court. Although it is possible to appeal to the Crown Court from the Magistrates’ Court, the main appellate criminal court is the Court of Appeal (Criminal Division).
9.3 Classification of Offences
All crimes are categorised into one of three categories. The categories reflect the seriousness of the crimes within them and a
Lesson Nine The Criminal Courts and Lay People
out a case against the accused, he is committed for trial in the Crown Court, where he will be tried on indictment. However, the usual procedure, by virtue of s.51 of the Crime and Disorder Act (1988), is for defendants charged with indictable offences to be “sent forthwith” to the Crown Court without a preliminary investigation.
(ii) Summary Trial of Petty Offences and other Offences Triable Summarily: A petty offence is one that may only be tried by the magistrates - there being no right to jury trial. In addition the magistrates may also try certain of the less serious types of indictable offence, that is, Triable Either Way offences.
In order that the magistrates may exercise their full powers in a summary trial, there must be two or more magistrates, with a maximum of seven, sitting in open court.
The maximum penalty which magistrates may impose for any one offence is in most cases six months’ imprisonment, unless the accused is convicted of two or more indictable offences which have been dealt with summarily, in which event, the aggregate of the terms so imposed must not exceed twelve months. The maximum fine for any one offence is £5,000 in the majority of cases (although the court has the power to fine up to £20,000).
A person convicted and sentenced by the magistrates for a summary offence may appeal to the Crown Court. Appeal from the magistrates lies at the instance of the accused only. Appeal may be against conviction or sentence on questions of law or fact and no permission is required. The appeal takes the form of a re-hearing. The powers of the Crown Court in respect of such an appeal are set out in s.48 of the Supreme Court Act 1981.
A further right of appeal lies from the Crown Court to the Divisional Court of the Queen’s Bench Division. This appeal, which may only be based on a question of law, lies by way of case stated and may be made at the instance of either side. Alternatively either side may appeal direct from the magistrates to a Divisional Court by way of case stated on a point of law. If the accused pleads guilty before the magistrates he cannot appeal to the Crown Court against conviction but can appeal to a Divisional Court on a point of law.
Finally, by the Administration of Justice Act 1960, appeal lies to the Supreme Court if the Divisional Court or the Supreme Court gives leave, so long as the Divisional Court certifies that the case involves a question of law of general public importance which ought to be considered by the Supreme Court.
Law A-level Module Two: The Legal System
9.5 Superior Courts
These are:
(a) Crown Courts
Established by the Courts Act 1971, the Crown Court handles all major criminal trials as well as appeals from the magistrates court and convictions in the magistrates court that are referred to the Crown Court for sentencing.
The Crown Court is based at 78 centres across England and Wales. Trials are heard by a judge and a jury. High Court judges sit in the Crown Court to hear more serious offences and Circuit judges hear less serious offences, as do part-time Recorders.
Appeal lies from the Crown Court to the Court of Appeal (Criminal Division).
Criminal Procedure Rules to deal with all aspects of criminal cases came into force in 2005. The overriding objective is that criminal cases are dealt with justly.
You should familiarise yourself with the organisation, composition and jurisdiction of the Crown Court.
(b) Court of Appeal (Criminal Division)
The work of the Criminal Division is done by the Lord Chief Justice, the Lords Justices of Appeal, and any judge of the High Court asked to sit by the Lord Chief Justice.
Appeal lies from the Crown Court:
(i) without leave on any grounds involving a question of law;
(ii) by leave of the Court of Appeal or, more rarely, on the certificate of the judge of the lower court, on any ground;
(iii) by leave of the Court of Appeal against sentence, unless such sentence is fixed by law.
By s.36 of the Criminal Justice Act 1988, if it appears to the Attorney-General:
(i) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and
Law A-level Module Two: The Legal System
As stated earlier, the Supreme Court exercises appellate jurisdiction from the Divisional Court under the provisions of the Constitutional Reform Act 2005 (revising the Administration of Justice Act 1960), and the same conditions as regulate appeals from the Court of Appeal (Criminal Division) apply.
Below you will find a diagrammatic representation of the above information.
9.6 Magistrates
(i) Unpaid part-time Justices of the Peace try the bulk of minor criminal offences in this country. Lord Merthyr in his Minority Report of the Royal Commission on Justices of the Peace
Lesson Nine The Criminal Courts and Lay People
(1948) thought that the day of the amateur was past and they should all be replaced gradually by professional stipendiary magistrates. No one took him very seriously; for one thing the cost of so doing would be enormous, and secondly it is very doubtful if the trained personnel could be found for such a gigantic task. Thirdly, the office of Justice of the Peace is a very ancient one, dating from the twelfth century and made statutory by the Act of 1361, which is still on the statute book:
to restrain the offenders rioters ... to pursue, arrest, take and chastise them according to their trespass or offence; and to cause them to be imprisoned and duly punished according to the law and customs of the realm ...
(ii) Magistrates have both criminal and civil jurisdiction. In the criminal sphere, they issue warrants (of arrest & search), and grant Bail etc [see Lesson 8]; specially trained Magistrates hear cases in the Youth Court. Their civil jurisdiction includes Family matters, such as granting Contact Orders and granting gaming licences, as well as dealing with unpaid Council Tax.
Three justices also serve as members of the Police Authorities which are responsible for the raising and maintenance of local police forces.
(iii) Nowadays the judicial functions of magistrates are outlined in the Magistrates’ Courts Act 1980. At least two, and not more than seven, magistrates must sit to try offenders for the summary offences which form the bulk of the criminal work.
(v) There have been many criticisms of the system of lay justices, but the Royal Commission of 1948 thought that improvement rather than radical change was called for. Much criticism stems from the method of appointment of magistrates, and in particular its political overtones. In the nineteenth century the justices were seen as agents of the ruling classes, intent on maintaining their own social prestige and power of control. At the beginning of the 20th^ century the chief complaint was that there were too many Tories and too few Liberals on the bench. This was caused by the fact that the Lords Lieutenant of the counties were largely Conservative in politics and only allowed the names of candidates of the right political complexion to go forward to the Lord Chancellor.
(vi) The position was somewhat alleviated by the adoption of a recommendation of the Royal Commission of 1910 that advisory committees should be set up in counties and boroughs with a separate commission of the peace. Gradually the political complexion changed as more Liberal, and later Labour, justices began to be appointed. The Royal Commission of 1948 was also concerned with the relevance of a justice’s
Lesson Nine The Criminal Courts and Lay People
expected to serve a 5 year term, so applicants over the age of 65 would not usually be appointed.
Applicants have to take an Oath of Allegiance to the Queen but no formal or academic qualifications are required. Instead, the Department for Constitutional Affairs lists six essential ‘qualities’. These are:
good character understanding and communication social awareness maturity and sound temperament sound judgement commitment and reliability
Certain groups of people are barred from applying to become magistrates, mainly because of concerns about the potential for bias. These include:
members of the Police Service members of the regular Armed Forces anyone who is a member of (or has been a prospective candidate for) the House of Lords or any other Parliament or Assembly.
9.6.3 Selection and appointment
The application process is straightforward and accessible. It is now possible to apply via e-mail as well as via the conventional postal system.
When an application form is submitted, it is checked to make sure that the applicant meets the eligibility requirements. After this applicants are invited for a first interview. If this is successful, applicants are invited to a second interview, where the type of cases that magistrates deal with will be discussed. Checks are made to make sure that there are no conflicts of interest and then a local Advisory Committee makes a recommendation to the Lord Chancellor. In the past, the composition of this committee was kept secret to avoid the embarrassment of canvassing by citizens who wanted the honour of becoming justices without necessarily having the qualities required, but this is no longer the case. It is the Lord Chancellor who makes the appointment.
9.6.4 Training
(a) Training schemes for magistrates have been required since 1966 under the general direction of the Lord Chancellor. The newly created justice is not required to embark on a serious
Law A-level Module Two: The Legal System
study of the substantive law; the amount he requires to know about that is limited because the justices always have the advice of their clerk, who is professionally trained. The Royal Commission itself stressed this point:
The law that justices have to administer is extensive and complex and any attempt to give lay justices an adequate knowledge of it would not usually succeed. What we think is possible and what should be done is to train justices to understand the nature of their duties rather than the substantive law that they administer.
(b) The training of justices, like that of the professional judiciary, is now under the direct control of the Judicial Studies Board and, since 1988, has taken on a more practical emphasis, rather than simply attending courses.
(c) Initial training includes reading and distance learning exercises (which cover the role and responsibilities of magistrates), as well as an induction and core training course. In addition there must be a minimum of three court observations, together with a visit to a prison establishment, a young offender institution and a probation service facility. All new magistrates have access to an experienced magistrate, who acts as a mentor, giving them advice, support and guidance. After about a year, magistrates take part in a consolidation training programme.
In addition to initial training, there is also update training (to keep magistrates updated with any changes in the laws and procedures affecting the magistrates’ courts) and continuation training (which takes place every three years, prior to an appraisal of the magistrate’s performance in court. The Magistrates’ Association also plays its part by arranging conferences of justices and circulating information.
9.6.5 Regulation
As already mentioned, the Constitutional Reform Act 2005 led to the setting up of the Office for Judicial Complaints, which considers and determines complaints about the personal conduct of all judicial office holders in England and Wales. This includes lay justices. You can find out more about the work of the OJC on their website: www.judicialcomplaints.gov.uk.
9.6.6 Relationship between the Justices and their Clerks
Much criticism in the past centred on the powerful personalities of some justices’ clerks. Many of them used to retire with the justices and suspicions arose that they took part in the decisions. The function of the clerk is to advise the magistrates on procedure and points of law; he or she is not entitled to take part in their
Law A-level Module Two: The Legal System
Disadvantages include:
Magistrates tend to come from a middle class background and may have little in common with the majority of the defendants who appear before them. Sentencing by magistrates can be inconsistent, with differing sentencing practices in different parts of the country.
Further reading can be found in AQA A-level Law for Year 1/AS : Chapter 13.
Activity 2 Using^ material^ from^ this^ lesson,^ your^ textbook^ and^ other resources (e.g. the internet or other textbooks), think of at least two more points that you consider to be disadvantages of using magistrates in the criminal courts.
i)
ii)
9.8 The Jury
The jury as we know it today is the culmination of a long evolutionary process which started, as far as England is concerned, with the use of the jury as an essentially administrative agency. The Normans used the jury as a local fact-finding device where the jurors spoke of their own knowledge rather in the manner of witnesses. By the Assizes of Clarendon and Northampton the use of the jury was put on a statutory basis and from the jury of presentment established thereby evolved the Grand and Petty Juries.
The Grand Jury was only abolished in 1948 (though it had long been obsolete), its function being superseded by the justices of the peace acting as examining magistrates in committal proceedings. The Petty Jury, which took the place of trial by ordeal following the
Lesson Nine The Criminal Courts and Lay People
Lateran Council of 1215, had evolved by the fifteenth century as the modern trial jury of fact.
9.8.1 The Role of Jurors
The role of the jury in a criminal case is to listen to the evidence presented by the advocates, to be guided by the judge, and to come to a verdict of Guilty or Not Guilty at the conclusion of the case. (In civil cases, the jury decide whether a party is liable or not, but, in addition, also award a sum of money (damages) to the successful party.)
The criminal jury comprises twelve persons of either sex and is the method of trial on indictment in the Crown Court. It is the duty of the jury to well and truly try the case and give a true verdict according to the evidence.
Prior to the Criminal Justice Act 1967 the verdict of the jury had to be a unanimous one, but because of the suspicion that some jurors were being got at by gangs of organised professional criminals and bribed, which highlighted dissatisfaction with the requirement of unanimity, the concept of the majority verdict was introduced for criminal trials by the Criminal Justice Act 1967 and extended to civil trials by the Courts Act 1971. The relevant provision is now s.17 of the Juries Act 1974.
A verdict need not be unanimous if where there are not less than eleven jurors, ten agree on the verdict, and where there are ten, if nine agree. The court cannot accept any majority verdict unless the jury have had not less than two hours for deliberation, or such longer period as the court thinks reasonable having regard to the nature and complexity of the case, nor can the court accept a majority verdict of guilty unless the foreman of the jury states in open court the number of jurors who agreed on, and dissented from, the verdict.
9.8.2 Qualification and Selection of Jurors
Under s.1 of the Juries Act 1974 jury service is in general equated with the parliamentary or local government franchise. All citizens aged over eighteen and under seventy who have been resident in the United Kingdom for at least five years since attaining the age of thirteen are eligible.
Prior to the implementation of the Criminal Justice Act 2003, there used to be people who were ineligible (such as serving police officers), disqualified (such as those who have served a certain
Lesson Nine The Criminal Courts and Lay People
(b) Juries represent the verdict of ordinary people of common sense, and this fact can act as a corrective to the harshness of the law.
(c) There is public confidence in jury trials.
(d) In jury trials the judge explains the facts to be proved and the law to be applied, which tends to clarify the issues verbally. The public thus see that justice is done.
You will find further information relating to Juries in the Juror section of the Criminal Justice System website, www.cjsonline.gov.uk.
Further reading can be found in AQA A-level Law for Year 1/AS : Chapter 11 - 15
Revision Points 1.^ What are the two criminal courts of first instance? (9.^2 )
What is the difference between a summary offence and an indictable offence? (9. 3 )
What is the main appellate criminal court? (9. 5 )
Why was the CCRC established? (9. 5 )
What are the age restrictions on applying to become a magistrate? (9.6.2)
What are age restrictions on being a juror? (9.8.2)
Law A-level Module Two: The Legal System
AQA Subject Content
Each of the lessons in this pack of course materials is linked to a particular section of the AQA syllabus (specification). This lesson relates to the subject content in S3.1.10 the Criminal Courts. Before going any further, ensure that you fully understand the following concepts:
Outline of criminal courts and appeal system, including classification of offences. Lay magistrates: qualification, selection and appointment; training; role and powers. Jurors: Analyse the effectiveness of using juries The advantages and disadvantages of using lay people in the criminal courts. Identify the different sentencing options
