Criminal Litigation
The Criminal Justice System, the Criminal
Procedure Rules, Professional Conduct and
Funding
The Criminal Justice System
• Adversarial = prosecution has to prove its case against an accused person
• Burden of proof = beyond reasonable doubt
• Two courts of first instance = Magistrates and Crown
• Voir dire = a trial held in the absence of the jury
• If a client confides to his lawyer that he has committed an offence, his confession is
covered by legal privilege and he is entitled to plead not guilty, sit through the trial
and see if the prosecution can prove its case
The Criminal Courts
• Courts of first instance
o Magistrates’ Court (Where ALL Criminal Cases commence)
§ Three lay magistrates (justices) called the bench or a full-time District
Judge
§ Deals with all matters
• Bail, plea, allocation, trial, admissibility of evidence,
sentencing
o Crown Court
§ Circuit Judge or part-time Recorder and a Jury
§ Judge = arbiter of law
• Responsible for all matters except determining guilt
§ Jury = arbiter of fact
• Unless D enters into a guilty plea, guilt is determined by a jury
at trial
§ Any arguments about the admissibility of evidence or points of law
must be conducted voir dire
§ Will determine sentencing where Magistrates’ do not have sufficient
powers
o Youth Court
§ For offenders under 18
• Appeal Courts
Supreme Court
Court of Appeal
Divisional Court
Crown Court
1
, § Hears appeals from Magistrates’ Court -> Circuit Judge and two lay
Magistrates
§ If not an appeal, will hear re-trials and determine sentencing
Sentencing powers of the courts
• Magistrates
o Summary = 6 months
o 1 Either Way = 6 months
o 2 or more Either Way = 12 months
• Crown Court
o Depends on the statute
Categories of offences
• Summary only -> can only be dealt with by a Magistrates’ Court
• Indictable only -> so serious that only a Crown Court can deal with it
• Either way -> suspect is sentenced in the Magistrates’, unless they have insufficient
sentencing powers
Offences
• GBH + Intent– s.18 OAPA 1861
o Indictable only
• GBH – s.20 OAPA 1861
o Either way
• Assault occasioning ABH – s.47 OAPA 1861
o Either way
• Possession with intent to supply class A
o Either way
• Common assault and battery
o Summary only
• Affray – s.3(1) Public Order Act 1986
o Either way
• Possession of an offensive weapon
o Either way
• Robbery
o Indictable only
• Burglary of a dwelling
o Either way
• Theft
o Either way
Steps if an individual is arrested
1. Suspect is arrested
• Police officer must have reasonable grounds to suspect that an offence has
been committed by the Suspect
• Low evidential threshold
2. Suspect is charged
2
, • Custody officer and CPS consider whether there is sufficient evidence to
provide a realistic prospect of F’s conviction
• Suspect now becomes the Defendant
3. First hearing at the Magistrates’ Court
• Go through bail issues and funding
4. Plea at early stage of the proceedings
• D must enter into a plea -> guilty/not guilty/no indication
• Prosecution will provide initial details of the prosecution case (IDPC) and the
defence can assess the nature/strength of evidence from this
• A decision will be made as to which court D will be sentenced in (if guilty
plea) or tried in (if guilty/no indication)
5. Trial if not guilty/no indication
• Prosecution opens the case and calls witnesses
• Defence can make a submission of ‘no case to answer’ where the prosecution
has failed to present an arguable case -> the case will be over and no need
for submissions from the defence
• If there is a case to answer, the defence will present its case
• Tribunal then decides if D is guilty or not
Evidence
• Throughout the case, evidence will be considered in light of:
o Admissibility
o Relevance to the facts/issues
o Strength
o Credibility
o Weight
The Criminal Procedure Rules
Part 1 – The Overriding Objective
• Rule 1.1 – the overriding objective
o (1) The overriding objective of this procedural code is that criminal cases be
dealt with justly.
o (2) Dealing with criminal cases justly includes:
§ (a) acquitting the innocent and convicting the guilty
§ (b) dealing with the prosecution and defence fairly
§ (c) recognising the rights of a defendant, particularly those under
Article 6 ECHR (right to a fair trial)
§ (d) respecting the interests of witnesses, victims and jurors and
keeping them informed of the progress of the case
§ (e) dealing with the case efficiently and expeditiously
§ (f) ensuring that appropriate information is available to the court
when bail and sentence are considered
§ (g) dealing with the case in ways that take into account
• (i) the gravity of the offence
• (ii) the complexity of what is in issue
3
, • (iii) the severity of the consequences for the defendant and
others affected
• (iv) the needs of other cases
• Rule 1.2 – the duty of the participants in a criminal case
o (1) Each participant, in the conduct of each case, must –
§ (a) prepare and conduct the case in accordance with the overriding
objective;
§ (b) comply with the rules, practice directions and directions made by
the court; and
§ (c) at once inform court and all parties of any significant failure to
take any procedural step required by these Rules
o (2) Anyone involved in any way with a criminal case is a participant in its
conduct for the purposes of this rule.
Part 3 – Case Management
• Rule 3.2 – the duty of the court
o (1) The court must further the overriding objective by actively managing the
case
o (2) Active case management includes –
§ (a) early indication of real issues
• E.g. mistaken identification, consent, admissibility
§ (e) ensuring that evidence, whether disputed or not, is presented in
the shortest and clearest way
• The defence will be able to see the statements of prosecution
witnesses in the IDPC
• By considering issues in case and client’s instructions, can
determine whose evidence is in dispute
o E.g. if D challenges witness identification, it is
necessary to call that witness so that they can be cross
examined
§ (f) discouraging delay, dealing with as many aspects of the case as
possible and avoiding unnecessary hearings
• Tell the court if the client misses appointments
• If the CPS repeatedly fails to serve papers, the case can be
discharged
§ (g) encouraging the participants to co-operate in the progression of
the case
• If a client tells you they will not attend trial, this is covered by
legal professional privilege and cannot be disclosed to the
court without the client’s consent
• Court requires the advocate attending the case management
hearing to confirm they have advised D that the trial may go
ahead in their absence if they do not attend
• Rule 3.3 – the duty of the parties is to assist the court in exercising its duty under
Rule 3.2
• Rule 3.5 – the court’s case management powers
4
The Criminal Justice System, the Criminal
Procedure Rules, Professional Conduct and
Funding
The Criminal Justice System
• Adversarial = prosecution has to prove its case against an accused person
• Burden of proof = beyond reasonable doubt
• Two courts of first instance = Magistrates and Crown
• Voir dire = a trial held in the absence of the jury
• If a client confides to his lawyer that he has committed an offence, his confession is
covered by legal privilege and he is entitled to plead not guilty, sit through the trial
and see if the prosecution can prove its case
The Criminal Courts
• Courts of first instance
o Magistrates’ Court (Where ALL Criminal Cases commence)
§ Three lay magistrates (justices) called the bench or a full-time District
Judge
§ Deals with all matters
• Bail, plea, allocation, trial, admissibility of evidence,
sentencing
o Crown Court
§ Circuit Judge or part-time Recorder and a Jury
§ Judge = arbiter of law
• Responsible for all matters except determining guilt
§ Jury = arbiter of fact
• Unless D enters into a guilty plea, guilt is determined by a jury
at trial
§ Any arguments about the admissibility of evidence or points of law
must be conducted voir dire
§ Will determine sentencing where Magistrates’ do not have sufficient
powers
o Youth Court
§ For offenders under 18
• Appeal Courts
Supreme Court
Court of Appeal
Divisional Court
Crown Court
1
, § Hears appeals from Magistrates’ Court -> Circuit Judge and two lay
Magistrates
§ If not an appeal, will hear re-trials and determine sentencing
Sentencing powers of the courts
• Magistrates
o Summary = 6 months
o 1 Either Way = 6 months
o 2 or more Either Way = 12 months
• Crown Court
o Depends on the statute
Categories of offences
• Summary only -> can only be dealt with by a Magistrates’ Court
• Indictable only -> so serious that only a Crown Court can deal with it
• Either way -> suspect is sentenced in the Magistrates’, unless they have insufficient
sentencing powers
Offences
• GBH + Intent– s.18 OAPA 1861
o Indictable only
• GBH – s.20 OAPA 1861
o Either way
• Assault occasioning ABH – s.47 OAPA 1861
o Either way
• Possession with intent to supply class A
o Either way
• Common assault and battery
o Summary only
• Affray – s.3(1) Public Order Act 1986
o Either way
• Possession of an offensive weapon
o Either way
• Robbery
o Indictable only
• Burglary of a dwelling
o Either way
• Theft
o Either way
Steps if an individual is arrested
1. Suspect is arrested
• Police officer must have reasonable grounds to suspect that an offence has
been committed by the Suspect
• Low evidential threshold
2. Suspect is charged
2
, • Custody officer and CPS consider whether there is sufficient evidence to
provide a realistic prospect of F’s conviction
• Suspect now becomes the Defendant
3. First hearing at the Magistrates’ Court
• Go through bail issues and funding
4. Plea at early stage of the proceedings
• D must enter into a plea -> guilty/not guilty/no indication
• Prosecution will provide initial details of the prosecution case (IDPC) and the
defence can assess the nature/strength of evidence from this
• A decision will be made as to which court D will be sentenced in (if guilty
plea) or tried in (if guilty/no indication)
5. Trial if not guilty/no indication
• Prosecution opens the case and calls witnesses
• Defence can make a submission of ‘no case to answer’ where the prosecution
has failed to present an arguable case -> the case will be over and no need
for submissions from the defence
• If there is a case to answer, the defence will present its case
• Tribunal then decides if D is guilty or not
Evidence
• Throughout the case, evidence will be considered in light of:
o Admissibility
o Relevance to the facts/issues
o Strength
o Credibility
o Weight
The Criminal Procedure Rules
Part 1 – The Overriding Objective
• Rule 1.1 – the overriding objective
o (1) The overriding objective of this procedural code is that criminal cases be
dealt with justly.
o (2) Dealing with criminal cases justly includes:
§ (a) acquitting the innocent and convicting the guilty
§ (b) dealing with the prosecution and defence fairly
§ (c) recognising the rights of a defendant, particularly those under
Article 6 ECHR (right to a fair trial)
§ (d) respecting the interests of witnesses, victims and jurors and
keeping them informed of the progress of the case
§ (e) dealing with the case efficiently and expeditiously
§ (f) ensuring that appropriate information is available to the court
when bail and sentence are considered
§ (g) dealing with the case in ways that take into account
• (i) the gravity of the offence
• (ii) the complexity of what is in issue
3
, • (iii) the severity of the consequences for the defendant and
others affected
• (iv) the needs of other cases
• Rule 1.2 – the duty of the participants in a criminal case
o (1) Each participant, in the conduct of each case, must –
§ (a) prepare and conduct the case in accordance with the overriding
objective;
§ (b) comply with the rules, practice directions and directions made by
the court; and
§ (c) at once inform court and all parties of any significant failure to
take any procedural step required by these Rules
o (2) Anyone involved in any way with a criminal case is a participant in its
conduct for the purposes of this rule.
Part 3 – Case Management
• Rule 3.2 – the duty of the court
o (1) The court must further the overriding objective by actively managing the
case
o (2) Active case management includes –
§ (a) early indication of real issues
• E.g. mistaken identification, consent, admissibility
§ (e) ensuring that evidence, whether disputed or not, is presented in
the shortest and clearest way
• The defence will be able to see the statements of prosecution
witnesses in the IDPC
• By considering issues in case and client’s instructions, can
determine whose evidence is in dispute
o E.g. if D challenges witness identification, it is
necessary to call that witness so that they can be cross
examined
§ (f) discouraging delay, dealing with as many aspects of the case as
possible and avoiding unnecessary hearings
• Tell the court if the client misses appointments
• If the CPS repeatedly fails to serve papers, the case can be
discharged
§ (g) encouraging the participants to co-operate in the progression of
the case
• If a client tells you they will not attend trial, this is covered by
legal professional privilege and cannot be disclosed to the
court without the client’s consent
• Court requires the advocate attending the case management
hearing to confirm they have advised D that the trial may go
ahead in their absence if they do not attend
• Rule 3.3 – the duty of the parties is to assist the court in exercising its duty under
Rule 3.2
• Rule 3.5 – the court’s case management powers
4
