CRIMINAL

PROCEEDINGS

XII SEMINARIO DE ESTUDIO COMPARADO DE SISTEMAS

JUDICIALES Y DE COOPERACIÓN JUDICIAL
INTERNACIONAL A TRAVÉS DEL LENGUAJE JURÍDICO Águilas 2010
 Contents
• Introduction
• The basics
• Criminal Procedure Rules
2005
• Criminal proceedings
¾ Arrest & charge
¾ Offences
¾ Sentences
¾ Magistrates’ Court
¾ Crown Court
¾ The hearing
¾ Law of evidence
¾ Final speech
• The Attorney General’s Office
& CPS
• Crime statistics
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 INTRODUCTION

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 Introduction: essential web pages
• Criminal Justice System for England and Wales:
http://www.cjsonline.gov.uk/

• Ministry of Justice: http://www.justice.gov.uk/

• The Attorney General’s Office for England and

Wales: http://www.attorneygeneral.gov.uk/

• The Home Office: http://www.homeoffice.gov.uk/

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 Introduction: essential web pages
• Sentencing Guidelines: http://www.sentencing-
guidelines.gov.uk/
• The Crown Prosecution Service:
http://www.cps.gov.uk/
• Her Majesty’s Court Service: http://www.hmcourts-
service.gov.uk/
• The Judiciary of England and Wales:
http://www.judiciary.gov.uk/
• CNN Crime News: http://www.cnn.com/CRIME/

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 Introduction: on-line videos

Judge for yourself:

http://www.ezstream.co.uk/coi/

Online dvd: Your role as a juror:

http://video.direct.gov.uk/jurorvideo/video/

Going to court (acting as a witness):

http://video.direct.gov.uk/goingtocourtvideo/
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 Criminal Justice in the UK & Wales

• Home Office: oversees Police, Prison

Service and National Justice Board.
• Ministry of Justice: oversees Magistrates’
Courts, Crown Court Appeal Courts and
Legal Services Commission.
• Attorney General’s Office: oversees the
Crown Prosecution Service.
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 Criminal law case names

• R v Smith
Literally: “Regina/Rex versus Smith”
Speaking: “The Crown against Smith”
• Occasionally criminal prosecutions are
brought by the Government’s law officers:

A-G v Smith
DPP v Smith

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 Criminal law case names
• Examples:

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 COURTS EXERCISING CIVIL COURTS EXERCISING
JURISDICTION CRIMINAL JURISDICTION

THE SUPREME COURT OF

THE UK

COURT OF APPEAL

Civil Division Criminal Division

HIGH COURT OF JUSTICE CROWN COURT

Chancery Family Queen’s criminal
Division Division Bench
Division

Divisional Divisional Administrative

Senior
Court Court Court
courts

COUNTY Inferior
courts
COURTS

MAGISTRATES’ COURTS

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TRIBUNALS
 THE BASICS

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 The basics
• CRIME/OFFENCE: “commission of an act forbidden by law
or omission of a duty commanded by law”
¾ A punishment is imposed on the offender upon trial and conviction

• CRIME/OFFENCE: • CIVIL WRONG/TORT:

¾Criminal proceedings ¾Civil proceedings
(the CPS, at the request (the injured party brings
of police, prosecutes the an action to claim e.g. for
suspect or accused) damages)
¾Burden of the proof & ¾Burden of the proof &
balance of probabilities balance of probabilities

The Crown Claimant

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 The basics
• “Nullum crimen et nulla poena sine lege” (legalidad
penal).
• Human Rights Act 1998: “No punishment without law”.
• No misconduct is criminal until it is made/created an
offence / a crime by a Parliamentary statute, BUT
¾ NO statute making murder illegal. It is a common law crime - so
although there is no written Act of Parliament making murder
illegal, it is illegal by virtue of the constitutional authority of the
courts and their previous decisions. Common law can be
amended or repealed by Parliament; murder, by way of example,
carries a mandatory life sentence today, but had previously
allowed the death penalty. Other examples of common law
offences are blackmail or kidnapping.
• Definitions contained in acts (e.g. of sound mind and
discretion, kill, lawfully, etc.).
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 The basics
• Acts which constitute a crime/offence
UK – Common Law Continental Law
1. Actus reus: any conduct 1. Commission or
defined as unlawful. omission.
2. Mens rea: 2. Offence created by
¾intention to produce an effect statute.
¾reckless [knowingly]
¾negligence 3. No concurrence or
3. No concurrence or simultaneous occurrence
simultaneous occurrence of of defences.
defences (ignorance of law is 4. Recklessness,
no defence; self-defence is a
criminal negligence.
defence). 14
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 The basics
• DEFENCES
¾General defences (Counsel for the prosecution)
Non existence of:
• Mentally abnormal offender.
• Intoxicated offender.
• Self-defence.
• Necessity.
• Duress.
• Legal performance of duty or office.
¾Specific defences (Counsel for the defence)
Demonstrate their existence
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Major features of criminal proceedings
UK – Common Law Continental Law
Accusatorial procedure Inquisitorial procedure
•Judge -> umpire. • Examining magistrate.
•Adversarial British law: judge ¾ Important role in
takes no part in committal proceedings:
investigation/litigation, only: • Interviews witnesses.
• applies the law; • Examines evidence in
• decides the contest; advance.
• sees that justice is done.
• Commital proceedings ->
•2 sides: inquisitorial procedure.
¾Counsel for the defence
¾Counsel for the prosecution
• Public hearing ->
•Jury (verdict). accusatorial procedure.

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Major features of criminal proceedings
• Criminal law not organised into coherent body or code: extremely diffuse
arrangement of statutes and statutory instruments constantly updated
(complicated cross-references).
Same applies to rules of criminal procedure: Magistrates’ Courts Act, Prosecution of
Offences Act.

• No longer distinction by name between serious and minor or relatively

minor crimes.
All crimes referred to as “offences”, but distinction seen in sentences imposed
after verdict of guilty and also in mode of trial.

• 98% of all criminal cases are heard in a magistrates’ court (reminder:

magistrates are supported by a legally trained advisor. There may be just
one magistrate -district judge-, who is a lawyer).

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Investigation and prosecution of crimes
Prosecution of crime NOT the responsibility of courts
or the judiciary:
- No examining magistrate, no continental-style inquisitorial
procedure.

- It is the police who investigate criminal offences and bring

charges in the name of the Crown.

- Common for the police to consult or seek assistance from CPS.

- Once a suspected person is charged with a criminal offence the

case is taken over by the CPS (which works with the police in
preparing the case), which conducts the prosecution.

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 CRIMINAL PROCEDURE
RULES

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 Criminal Procedure Rules 2005
• Criminal Procedure Rule Committee
http://www.dca.gov.uk/procedurerules/criminalpr_committee.htm
PURPOSE:
¾ Review of criminal court procedures and development of modern
and simply expressed rules.
¾ To govern the practice and procedure to be followed in the Criminal
Division of the Court of Appeal and the Crown Court; for criminal
proceedings in magistrates' courts and by justices' clerks.
¾ Development of necessary procedures to bring about closer
alignment of criminal courts.
• In addition, the Committee plays a part in the development of a code of criminal law -
most particularly, in bringing about a single code of procedure for the criminal courts.

Chaired by the Lord Chief Justice.

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 Criminal Procedure Rules 2005
• Case management (ETMP, Effective Trial
Management Programme):
¾ Forms for Crown Court and Magistrates’ Courts brought into
force by Practice Direction from Lord Chief Justice.
¾ Judges given necessary powers to manage cases actively.
¾ Duty of parties to assist the court.
¾ Named, individually responsible case progression officers.
¾ Criminal Case Management Framework (CCMF); ‘route map’ for
every type of criminal case (not prescriptive): to be considered
by LCJBs (Local Criminal Justice Boards).

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 CRIMINAL
PROCEEDINGS

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 POLICE

CROWN PROSECUTION SERVICE

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 Average time by stage of
proceedings – defendants in all
criminal cases, 2006

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 Arrest & Charge
• Investigation / arrest -> Police
• Prosecution Î
¾ Crown Prosecution Service.
¾ Customs and Excise Service.
¾ Inland Revenue Service.
¾ Serious Fraud Office.
• Once received case papers, CPS may:
¾ abandon the case;
¾ initiate criminal proceedings (beyond all reasonable doubt).

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 Arrest & Charge
• All criminal proceedings begin in Magistrates’ Courts,
where decision on appropriate mode of trial is made ...
BUT
before a person taken before magistrates, s/he must be arrested
and charged:
• by summary arrest (wide powers of arrest by police + most suspects charged with
arrestable offences) J most common.
• by arrest with a warrant.
• While interviewed, detainee held in custody by a custody
officer.
• The detainee may ask for a duty solicitor or legal aid.
• Police may adopt several decisions:
• release (insufficient evidence);
• reprimand/admonish and release (first-time offenders, juvenile
offenders, etc.);
• bring the accused to a Magistrates’ Court as soon as practicable
(->CPS) [IF lay charges]

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 Arrest & Charge (UK)
• Arresting officer MUST caution the person under arrest.

Caution in the UK: Right to be silent.

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evidence."

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 Arrest & Charge (US)
• Miranda Warning, USA.
1963: Ernesto Miranda arrested for kidnapping and rape. He made
confession without having been told of his constitutional right to
remain silent and to have an attorney present during police
questioning. At trial, prosecutors offered only confession as
evidence: he was convicted.

Supreme Court ruled (Miranda v. Arizona 1966) that Miranda was

intimidated by interrogation and did not understand his right not to
incriminate himself or his right to counsel. Conviction overturned on
this basis. Later convicted in a new trial, with witnesses testifying
against him and other evidence presented. He served eleven years.

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 Arrest & Charge (US)

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me?”
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 Arrest & Charge
• IF charges are laid, the police may:
¾ Hold the detainee in custody.
¾ Remand the accused on bail:
• bail with a security = conditional bail;
• bail without a security = unconditional bail.
¾ Remand the accused in prison.
¾ Order him/her to be brought before a Magistrates’
Court (24 hours; 72 in Spain).
[Habeas corpus]

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 Criminal proceedings
• Summary trials J Magistrates’ Courts
Magistrates decide on:
• facts
• law
¾ Summary offences.
• Trial on indictment J Crown Court (1 or more judges)
¾ Indictment (charges that the accused faces).
¾ Indictable offences.
¾ Trial by jury:
• Jury J finders of fact.
• Judge J questions of law, conduct of trial, admissibility of evidence,
application of verdict (discharge if acquittal, passing of sentence if
conviction).

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 Arrest & Charge
• Useful collocations:
¾To be in breach of bail
¾To apply for bail
¾To grant bail
¾To refuse bail

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 OFFENCES

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 Criminal proceedings: Offences

Offences are now set out in

statutes (some originally arose
at common law).

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 Criminal proceedings: Offences
• Types of offence:
1. Summary offences (lesser crimes).
2. Indictable offences (serious or very
serious crimes).
3. Offences triable either way (‘either
way offences’: intermediate
offences).

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 SUMMARY OFFENCES

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 Summary Offences
[Petty offences / Misdemeanour (AmE)]

¾ Lesser crimes: motoring offences, assault

on police, petty theft.

¾ Lesser, lighter or more lenient

punishments.

¾ Trial by magistrates summarily (without a

jury). Defendant not entitled to trial by
jury.
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 Summary Offences

(1) If accused pleads guilty, rarely sentence there

and then: need to look into criminal record.
If accused not sentenced J magistrates to
decide whether to grant bail or to remand.

(2) If accused pleads not guilty to the charge,

date fixed for trial and decision taken on bail.
The police can also grant bail (‘police bail’,
pending further enquiries).

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 INDICTABLE OFFENCES

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 Indictable Offences
[Felony (AmE)]

¾ Serious or very serious crimes: rape,

armed robbery, murder. [Sometimes
media reporting restrictions].

¾ Tried before a jury at Crown Court after

formal indictment by CPS.

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 Indictable Offences
¾ Preliminary inquiry by magistrates (examining
justices rather than judges) BUT court not acting
inquisitorially, only testing prosecution evidence for
prima facie case for Crown Court.

¾ If prima facie case: committal proceedings (accused

indicted for trial at Crown Court).
Committal: on bail
in custody

¾ If not prima facie case: reduction of charge or

discharge of the accused.

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 OFFENCES TRIABLE
EITHER WAY

(EITHER-WAY OFFENCES)

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 Offences triable either way
¾ Intermediate offences: theft.

¾ Depending on seriousness of facts alleged, they

may be deemed more suitable for trial by
Magistrates or by Crown Court.

¾ Accused entitled to insist on trial at Crown Court if

s/he prefers jury (BUT: greater sentencing powers
of Crown Court).

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 Offences triable either way
• ‘Either way’ offences: up to magistrates to decide whether they
are competent to try matter depending on:
• gravity of charge;
• facts alleged by prosecution.

• Limited powers of sentence: maximum of six months’

imprisonment and/or £5,000 fine on any one charge and
maximum of one year’s imprisonment on two or more charges
taken together.

• Magistrates may decide to send accused to Crown Court or

the accused himself may choose this option against opinion of
the magistrates.

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 CRIMINAL PROCEEDINGS
& COURTS

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Criminal proceedings: Magistrates’ Court

• Information before a Magistrates’ Court

¾ Prosecutor/any individual (private criminal
prosecution) may lay an information before a
Magistrates’ Court for an alleged offence,

¾ Magistrate may issue a summons or a warrant

for arrest.

1) Preliminary hearing -> discharge the

accused / charge him with a crime.
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Criminal proceedings: Magistrates’ Court

2) Indictable-only offence -> committal

proceedings (= paper commital) Î if
there is a case to answer).

• Commit the case to the Crown Court (with

jury).

• Magistrates do not examine the case, just

send the case on the grounds of documentary
evidence.

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 Send for trial, commit for trial, commit
for sentence
SEND FOR TRIAL & COMMIT FOR TRIAL // COMMIT FOR SENTENCE
¾ Sent for Trial – “Indictable-Only” Offences
• Since 2001 all indictable-only cases are ‘sent for trial’ to the Crown Court after they have
had their first appearance in the magistrates’ court.

¾ Committals for Trial – “Either-Way” Offences

• Either-way offences may be committed by magistrates’ courts to Crown Court for trial.
Magistrates are required to ask defendants to indicate plea to the charge. Where a guilty
plea is indicated, summary trial procedure is deemed to have been complied with and
defendant is deemed to have pleaded guilty under it. Where a defendant indicates a not
guilty plea or gives no indication on plea, the court, considering various factors, indicates
whether it thinks the offence more suitable for summary trial than on indictment. However,
a court may only proceed to summary trial with the consent of defendant.

¾ Committals for Sentence.

• Magistrates’ Courts Act 1980 allows magistrates to commit defendants summarily
convicted of an either way offence to the Crown Court for sentence. The magistrates must
be of the opinion that the offence or the combination of the offence and one or more
offences associated with it is so serious that a greater punishment should be inflicted than
they have power to impose or, in the case of a violent or sexual offence, that a sentence of
imprisonment for a longer term than they have power to impose is necessary to protect the
public from serious harm. Committals may also arise from breaches of the terms of, for
example, community rehabilitation orders or of suspended sentences of imprisonment.

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Criminal proceedings: Magistrates’ Court
3) Triable either way offences (I) -> Magistrates
may, before deciding the venue, plea before
venue (the accused pleads guilty / not guilty)

| If s/he pleads guilty the court will hear the

prosecution case against him and mitigation of the
defence, and then determine the sentence (if greater
than Magistrates’ Court has power to impose ->
commital to Crown Court for sentence).
| If s/he pleads NOT guilty, Magistrates’ Court will
decide if:
| trial on indictment (by a jury, in Crown Court);
| summary trial (in Magistrates’ Court).

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Criminal proceedings: Magistrates’ Court

3) Triable either way offences (II)

• If the accused does not accept summary trial -
> commital proceedings (examining
magistrates).
• At this stage, Magistrates take evidence, and
the Crown sets out the case. The defence
remains silent (so as not to reveal the line of
defence). However, the defence must inform if
s/he will produce an alibi.
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Criminal proceedings: Magistrates’ Court
90% of accused of summary offences -> plead guilty
(sometimes by mail)
| Prosecutor presents the prosecution case.
| Court passes sentence.
| Court may grant an adjournment at the request of the counsel
for the defence/counsel for the prosecution.
If the accused pleaded NOT guilty in the preliminary hearing, s/he
must attend the court in the date fixed for trial.
The prosecutor will give a brief explanation of the case and witnesses
will be called to testify and give evidence.
Counsel for the defence/prosecution will make short speeches
summarizing the reasons to convict or not convict the accused.
After examining facts as found & questions of law, Magistrates may:
• discharge (=acquit/acquittal in CC) the accused;
• convict the accused.
Summary conviction: “We find the case proved”.
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Criminal proceedings: Magistrates’ Court
Types of trials at Magistrates’ Courts:
• Effective Trial: a trial that commences on the day it is
scheduled, and has an outcome in that a verdict is
reached or the case is concluded.
• Cracked Trial: on the trial date, the defendant offers
acceptable pleas or the prosecution offers no evidence. A
cracked trial requires no further trial time.
• Ineffective Trial: on the trial date, the trial does not go
ahead due to action or inaction by one or more of the
prosecution, the defence or the court and a further listing
for trial is required.
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 A typical trial: Magistrates’ Court

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 Criminal proceedings: Crown Court
Arraignment (reading of indictment, that is, of charges):
| Identification of the accused
| Indictment [THE QUEEN v (Defendant) charged as follows...]
» Introductory matters.
» Charges.
» Sections of statute.
| Plead guilty / not guilty.
| Submission of no case to answer / motion for dismissal.
| Counsel for the defence -> pleas in bar
“Excepción de cosa juzgada”
» Autrefois acquit (ya absuelto)
» Autrefois convict (ya condenado)
| If accused pleads guilty:
| Counsel for the prosecution-> summary of evidence, background and
record.
| Counsel for the defence-> plea for mitigation.
| Judge-> verdict / sentence.
| If accused pleads guilty of a lesser offence (change of plea)
• Plea bargaining -> sentencia de conformidad.

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 Criminal proceedings: Crown Court

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 A typical courtroom: Crown Court

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 The Hearing Accused seated in the dock (not
obliged to give evidence at all) * right to
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Trial judge
(wig and robe)
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 Criminal proceedings: Law of Evidence
• Proofs in proceedings before a court (which matters
are admissible and which not as a proof in the course
of a trial).
• Types of proofs:
• Oral evidence.
• Expert evidence.
• Real evidence.
• Hearsay evidence.
• Second-hand evidence.
¾ Circumstantial evidence.
¾ Direct / original evidence(by witnesses-as proof of the truth).
¾ Extrinsic evidence.
¾ Primary evidence.
¾ Secondary evidence.
¾ Conclusive evidence.
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Criminal proceedings: Final/Closing speech
- Closing argument or statement:
1) C. for the prosecution must prove actus reus,
mens rea, no defences.
2) C. for the defence must NOT prove the
accused’s innocence because (s)he is
presumed innocent until proved guilty.
- Summing-up by the judge (Jury
summation in AmE):
- directs the jury as to the law they must apply.
- reminds them of the relevant evidence.
- summarises the issues they have to decide.

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Criminal proceedings: Final/Closing speech

Judge asks the jury to return a

verdict:

If after considering all the evidence you

are sure that the defendant is guilty, you
must return a verdict of ‘Guilty’. If you are
not sure, your verdict must be ‘Not Guilty’.

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Criminal proceedings: Final/Closing speech

• Standard of proof higher than in civil law J

jury/judge satisfied “beyond a reasonable doubt”
(“so that you are really sure”):
• Yes (conviction) -> judge will pass sentence
(antecedents report and previous convictions
recorded).
• No (acquittal).
• I’m not sure (acquittal) [in dubio pro reo]
• Reversal of burden of proof if defendant alleges:
• insanity
• automatism

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 SENTENCE

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 Sentences
• Discharges
• Punishment to the convicted:
¾ Custodial sentence:
• Imprisonment.
• Life imprisonment (murder, attempted murder, manslaughter, rape, grievous
bodily harm).
¾ Non-custodial sentence:
• Curfew order (electronically monitored –electric tag).
• Fine (up to £5,000).
• Community service orders:
– Community punishment order.
– Community rehabilitation order (libertad a prueba = probation order / probation
officer).
– Combination order (punishment + rehabilitation).

• Prisoners/inmates have the right to apply for conditional release,

community rehabilitation order or parole at half-way point of sentence.

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 Sentences
• Community service:
¾ Compulsory (unpaid) work.
¾ Participation in any specified activities.
¾ Programmes aimed at changing offending behaviour.
¾ Prohibition from certain activities.
¾ Curfew.
¾ Exclusion from certain areas.
¾ Residence requirement.
¾ Mental health treatment (with consent of the offender).
¾ Drug treatment and testing (with consent of the offender).
¾ Alcohol treatment (with consent of the offender).
¾ Supervised attendance order.
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 APPEALS

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Águilas2010
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 THE ATTORNEY
GENERAL’S OFFICE &
THE CPS

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 The Attorney General’s Office
• The Attorney General and The Solicitor General (the
Law Officers) are the chief legal advisers to the
Government and are responsible for all Crown litigation.

• They have overall responsibility for the work of:

¾ Treasury Solicitors Department (Tsol).
¾ Crown Prosecution Service (CPS).
¾ Serious Fraud Office (SFO).
¾ Revenue and Customs Prosecution Office (RCPO)
¾ Her Majesty’s Crown Prosecution Service
Inspectorate (HMCPSI).
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 The Attorney General’s Office

• Attorney General: Rt Hon

the Baroness Scotland of
Asthal QC.

• Solicitor General (the

Attorney General's deputy):
Vera Baird QC MP.
• See:
http://www.attorneygeneral.
gov.uk/sub_about_us_biogr
aphies.htm

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 The Crown Prosecution Service (CPS)

• CPS: created in 1985. Government Agency,

decides whether criminal proceedings started
by the police should progress to court.

• In Spain, CPS (Ministerio Fiscal) is not part of

the CGPJ but of the Ministry of Justice.

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 The Crown Prosecution Service (CPS)

• The Crown Prosecution Service:

http://www.cps.gov.uk/

• Attorney General’s Office (AGO):

http://www.attorneygeneral.gov.uk/ (Solicitor General).
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 The Crown Prosecution Service (CPS)

• Head of the CPS and

Director of Public
Prosecution (DPP): Keir
Starmer QC

• The DPP is
superintended by the
Attorney General, who is
accountable to Parliament
for the Service.

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 CRIME STATISTICS

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 For updated information on crime
in Britain:
• The Home Office
• Home Office Statistical Bulletin:

• http://www.crimeredction.homeoffice.gov.uk
/statistics/statistics080.htm

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