OPBP: Amendments to the Law on Criminal Procedure in Bosnia-Herzegovina

BOSNIA PROJECT by OXFORD PRO BONO PUBLICO* for JUDGE MALIK HADZIOMERAGIC OF THE SUPREME COURT OF FBIH

Legal Research to assist with the drafting of Amendments to the Law on Criminal Procedure of Bosnia-Herzegovina

University of Oxford, November 2005 *Oxford Pro Bono Publico is a programme run by the Law Faculty of the University of Oxford, an exempt charity (and a public authority for the purpose of the Freedom of Information Act).

The programme assist solicitors and barristers who are themselves acting on a pro bono basis in the preparation of materials for legal work which they undertake for the public good or in the public interest. The programme does not itself provide legal advice, represent clients or litigate in courts or tribunals. The University accepts no responsibility or liability for the work which its members carry out in this context. The onus is on the solicitors or barristers in receipt of the programme’s assistance to establish the accuracy and relevance of whatever they receive from the programme; and they will indemnify the University against all losses, costs, claims, demands and liabilities which may arise out of or in consequence of the work done by the University and its members. Š This report has been prepared exclusively for the use of Judge Hadziomeragic in accordance with the terms of the Oxford Pro Bono Publico Programme. It may not be published or used for any other purpose without the permission of OPBP, which retains all copyright and moral rights in this report.

Table of contents Question 1 ................................................................................................ 3 I need some short information regarding the form of criminal procedure in France. Is the procedure based on accusation or inquisition? ....................................................................... 3

Question 2................................................................................................4 What is the main reason and the relevant historical background behind the rule that an indicted person can give a statement as a witness according to the English Law and not as an indicted person, if he wants to?........................................................................................... 4

Question 3................................................................................................ 5 In English Law, after being warned by the police about his rights to have a lawyer present, about his right to remain silent and that everything he says can and will be used against him, a suspect can give a statement for the record and sign it. When then the accused’s lawyer does not call his client as a witness in the proceedings before the court, the prosecutor may present evidence before the jury related to the out-of-court admission of the accused and can call the policeman who took the accused’s statement...................................5 A. How is the policeman going to be interrogated by the court: is he going to be asked only about the fact that he got the statement from the indicted person or can he also be asked about the content of that statement? ..............................................................................5 B. How is the record of the statement going to be used by the court and how is it going to be recorded as evidence?.......................................................................................................5

Question 4................................................................................................6 A. B.

In the English legal system, is the indictment confirmed? .......................................... 6 If it is, how and which conditions have to be met in order to have it confirmed? ....... 6

Question 5................................................................................................ 7 Can the Judge who ran the pre-trial proceedings (session at which the Judge asks the accused person if he understands the indictment, checks if he has lawyer, etc...) also act as a Judge in the trial before jury or trial without jury? ..................................................................7

Question 6................................................................................................8 A. What process activities are to be performed in the pre-trial hearings? ....................... 8 B. What will the Judge do if the accused who has no lawyer refuses to take a lawyer, although he is accused of serious criminal offence (eg murder)? ..........................................10 C. Can he make a plea of guilty without his lawyer or does his lawyer have to be appointed first so that he can be present when such a plea is made? ....................................10

Question 7 ...............................................................................................11 What will the Judge do in the pre-trial proceedings if it is obvious that the accused person is mentally ill and his lawyer does not make any objections or proposals, which would refer to such circumstances? ................................................................................................................ 11

Question 8 ............................................................................................. 13 Does the criminal procedure start only after the indictment was confirmed or at some earlier stage?............................................................................................................................13

Question 9.............................................................................................. 14 A. Can the verdict be made without an indictment, but based on the written agreement of confession of guilt? ..............................................................................................................14 B. Can the parties and lawyer submit to the court a written agreement on confession of guilt of the accused even when previously indictment was not submitted? ..........................14

References Cited .................................................................................... 16 Annex .....................................................................................................17 Oxford Pro Bono Publico Team.............................................................. 21

Question 1 I need some short information regarding the form of criminal procedure in France. Is the procedure based on accusation or inquisition?

The procedure in France is inquisitorial, although it does have some of characteristics of the accusatorial system: As is characteristic of other inquisitorial procedures, the prosecution in the criminal proceedings is conducted by the public minister (in practice police), representing the State, while the investigation is conducted under the control of the instructive judge (juge d’instruction). The judge is at the centre of the criminal proceedings1: (s)he decides which procedural actions will be undertaken to gather evidence and authorises the detention of the suspect.2 (S)he then puts together a file containing the charges against the accused and the evidence collected. This file is then submitted to the trial judge.3 While in the English system the accusatorial characteristics, ie the equality of arms, are present from the start of criminal proceedings, the French system only requires such equality at trial. However, even at trial, the trial judge (president of the chamber) remains the central figure of proceedings: it is (s)he who interrogates the witnesses and decides whether additional evidence is necessary.4 However, the French criminal procedure steps away from the rigid inquisitorial system in recognising that the separation between investigative and judicial functions is necessary. Thus, the juge d’instruction and the trial judge need to be two different people. This separation of investigative and judicial functions is also a fundamental principle of the common law.5

M Delmas-Marty Procedure penali d’Europa: Belgio, Francia, Germania, Inghilterra, Italia (CEDAM Padova 2001) 449.

2 ibid., 115.

3 ibid., 606.

4 ibid., 607.

5 ibid., 615.

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Question 2 What is the main reason and the relevant historical background behind the rule that an indicted person can give a statement as a witness according to the English Law and not as an indicted person, if he wants to?

For a certain period of time, the English legal system did not allow interrogation of the accused by the police or the courts. Rather, only witnesses could be cross-examined in court after giving an oath that they would speak the truth. In this situation, a need arose to allow the interrogation of the accused by the police and in the courtroom. While the police could question him, the issue arose whether the accused could only be interrogated by the court as an accused or also as a witness. The difference between the two lay in the fact that anybody who was interrogated as a witness could be crossexamined only after they had given an oath, promising to speak the truth. As a result, oral evidence given by witnesses was considered more reliable than that given by an accused without having taken the oath. In the end, it was accepted that the accused could be given the opportunity to be cross-examined as a witness in his own trial but only if (s)he wished to do so and only after giving an oath.

This approach came as a result of the 1898 reform. Prior to the reform, objections were raised about perjury, ie that the statement made by the accused could be false and would consequently be unreliable6: Charles Dickens argued that no credit can be drawn to the statement from a prisoner7 and Evelyn Ashley wrote ‘it is not in reason to be expected of criminal human nature that the truth will be spoken by a criminal on his trial’8. Thus, one of the motivations behind the reform that led to the Criminal Evidence Act of 1898 was to protect the accused by allowing him/her to participate in the process if (s)he wished to do so.9 The question arose then whether the accused should testify under oath or not.

The Royal Commission in charge of preparing the draft of the reform rejected J.F. Stephen’s proposal according to which only ordinary witnesses General see C Allen The Law of Evidence in Victorian England (CUP Cambridge 1997) 167. ibid., 170.

8 Solicitors’ Journal and Reporter 22 (1877-8), 277-8, in Allen (n 6) 171.

9 Allen (n 6) 144.

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would testify on oath while the accused could testify without it. The reason for the Commission’s decision was that such a distinction would disadvantage the accused too much, as his statement would be considered less trustworthy than that of the witnesses’ testifying in his case and would thus create an adverse effect on his/her presumption of innocence.10 Rather, the solution where the accused could testify as a witness after giving the oath was accepted. This also avoided the perjury objections discussed above.

Question 3 In English Law, after being warned by the police about his rights to have a lawyer present, about his right to remain silent and that everything he says can and will be used against him, a suspect can give a statement for the record and sign it. When then the accused’s lawyer does not call his client as a witness in the proceedings before the court, the prosecutor may present evidence before the jury related to the out-of-court admission of the accused and can call the policeman who took the accused’s statement.

A. How is the policeman going to be interrogated by the court: is he going to be asked only about the fact that he got the statement from the indicted person or can he also be asked about the content of that statement?

B. How is the record of the statement going to be used by the court and how is it going to be recorded as evidence?

A. Usually, the policeman can only testify about how (s)he got the statement from the accused. On the one hand, his testimony about the content of the statement could be treated as hearsay. Even if confessions are wellacknowledged exceptions to the hearsay rule11, there seem to be no situations in which a witness could testify about the content of the confession. Therefore, such evidence would be inadmissible as any other hearsay evidence. On the ibid., 171.

M Howard, J Auburn (eds) Phipson on Evidence (Sweet & Maxwell London 2005) 31-38; P Roberts, A Zuckerman Criminal Evidence (OUP Oxford 2004) 604; C Tapper Cross & Tapper on Evidence (Butterworths London 2004) 656.

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other hand, there is no reason for allowing the policeman to testify on the content of the confession since each juror receives a printed copy of his statement.12 It is clear that the policeman can be asked about how (s)he got the statement from the accused. While there are no specific discussions about this situation in the literature, certain rules suggest this conclusion: if the interview was taped and played in court, ‘it may be proved and explained by a witness who was present at the interview’.13 Moreover, testimony about the manner that the interrogation was conducted can be admissible under the familiar exception of ‘legally operative words’, where all testimony not tendering to prove the truth of the content14 is allowed.

B. If the accused confessed to the police and signed his statement, its record will become an exhibit in the trial and the jury will be provided with copies. The jurors will be allowed to take the statement to the jury room.15

Question 4 A. In the English legal system, is the indictment confirmed?

B. If it is, how and which conditions have to be met in order to have it confirmed?

A. Confirmation of indictment in the English system takes the form of ‘preferring a bill of indictment’.

B. ‘Preferring a bill of indictment’ means that the indictment must be signed by an officer of the Crown Court.16 If through inadvertence, no signature is

See part B. of this answer.

Phipson (n 11) 35-21.

14 Zuckerman (n 11) 613.

15 Phipson (n 11) §35-20.

16 Administration of Justice (Miscellaneous Provisions) Act 1933, s 2.

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appended, the indictment is a nullity and convictions based on it will be quashed by the Crown.

Technically, until the indictment is signed it is merely a ‘bill of indictment’. Bills of indictment are drafted either by counsel or offices of the Crown Court. In the former case, the bill must be delivered to and be signed by the Crown Court. On the other hand, if drafted by a Crown Court officer, the Bill is preferred as soon as it is drafted.17 So as to reduce delays in the criminal process, a Bill of indictment must be referred within 28 days of committal to the Crown Court.18 This time-limit is however an extremely flexible one, susceptible to extension and further extension. Similarly, a violation of the time-limit does not prevent the valid indictment and trial of the accused.19

Question 5 Can the Judge who ran the pre-trial proceedings (session at which the Judge asks the accused person if he understands the indictment, checks if he has lawyer, etc...) also act as a Judge in the trial before jury or trial without jury?

Whether a judge overseeing an initial hearing on a matter remains the judge for trial purposes in the United Kingdom depends largely on the classification of the offence. If the offence is a summary offence (one where an indictment is unnecessary), it is appropriate for the magistrate presiding over the initial hearing to conduct the trial on the matter. If the offence is an indictable offence (one requiring a formal indictment), the Magistrates’ Court will conduct the initial hearing, but the trial will be held in the Crown Court. If the offence is classified as an either-way offence (eligible for either summary or indictment trial), the ability of the magistrate at the initial hearing to oversee the trial will largely depend on the defendant’s pleading.20

Indictments (Procedure) Rules 1971, rule 4. ibid., rule 5.

19 J Sprack, C Emmins A Practical Approach to Criminal Procedure (OUP Oxford 2004) 2456.

20 Refer to the Annex for clarification of summary, indictable and either-way offences.

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Question 6 A. What process activities are to be performed in the pre-trial hearings?

The procedures involved depend on whether the pre-trial hearings are conducted at the magistrates’ or the crown court.

I. For magistrates’ courts, where a large majority of criminal cases are tried, the pre-trial hearings involves:21 a) Defendant’s first appearance in the magistrates’ court; and b) The determination of the mode of trial. a. First Appearance If a guilty plea is entered, the objectives of the first appearance are22: 1) To ascertain the plea and enter it where appropriate. In case the defendant is not represented, measures shall be taken to assist the defendant to secure representation at court on the same day of first appearance; 2) To ensure the case proceeds to an effective sentencing hearing with respect to summary and triable either way offences.23 3) To prepare indictable-only cases to be sent directly to the Crown Court; 4) To keep the victims and witness informed of the progress of the case.

For summary offences, at the first appearance, the defendant will be asked to enter a plea. If (s)he enters a plea of guilty, then the case will proceed to the sentencing stage. For triable either-way offences, both parties are expected to proceed to plea before venue. For indictable offences, the defendant is expected to make known his plea before the case is then sent to the Crown Court.

According to the Criminal Procedure Rules 2005.

D Atkinson Blackstone’s Guide to The Criminal Procedure Rules 2005 (OUP Oxford 2005) 35.

23 Refer to the Annex for clarification of summary, indictable and either-way offences.

21

22

When the accused pleads not-guilty, the objectives of the first appearance are24: 1) To ascertain the defendant’s plea and deal with the mode of trial where appropriate; 2) To make preparation for sending the case to the Crown Court; 3) To ensure that the parties prepare for the case properly and are ready for trial when it is listed; 4) To keep the victims and witness informed of the progress of the case.

When a summary trial is appropriate, the first appearance serves to fix a date for trial.25 In all other circumstances, the first appearance will involve the determination of the mode of the trial and where jurisdiction is declined, the transfer of the case to the Crown Court. b. Mode of Trial The determination of the mode of the trial depends on the triable offence and the plea of the defendant.26

II. Prior to the trial at Crown Court, the prosecution and the defence are required to attend one or more pre-trial hearings, which will allow the judge to deal with the preliminary issues, and thereby enhance the efficiency and effectiveness of the trial. This involves several components: a) plea and management hearing b) preparatory hearing and c) pre-trial rulings. a. Plea and Case Management Hearing This applies to all indictment cases whose the purpose is to ensure that the proper preparation of the trial has been made and to arraign the defendant (plea of guilty or not guilty).

Guide to The Criminal Procedure Rules 2005 (n 22) 36. or require certificates of readiness from the parties by a specified date to allow for the fixing of the trial date.

26 Refer to the Annex for clarification of summary, indictable and either-way offences. This is governed by Magistrates’ Courts Act 1980, s 17A-21, which is subject to changes introduced in the Criminal Justice Act 2003, Schedule 3 s 14.

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b. Preparatory Hearing This can be initiated by the parties upon application or by the court’s motion, depending on the circumstances of the case, usually for those cases that are more complex. Such a procedure is intended ‘to identify issues which are likely to be material to the jury’s verdict and expedite the proceedings or assist the judge’s management of the trial’.27 c. Pre-trial Rulings The judge at pre-trial hearings may make legally binding rulings in relation to the admissibility of evidence or even issues of law.28

Question 6 B. What will the Judge do if the accused who has no lawyer refuses to take a lawyer, although he is accused of serious criminal offence (eg murder)?

C. Can he make a plea of guilty without his lawyer or does his lawyer have to be appointed first so that he can be present when such a plea is made?

B. The accused is entitled to decline legal representation and present his case in person during the trial, although (s)he will be given the opportunity to request legal representation and be provided with legal aid if (s)he cannot afford it. If (s)he persists in refusing to have legal representation, then this will not be further pursued by the court. Moreover, ‘if he is represented during the initial stages of a trial on indictment and then wishes to dispense with counsel’s services’, application to that effect will be made to the trial judge, ‘who has discretion to refuse to release counsel’.29 However, his application is rarely refused.

M Hannibal Criminal Litigation Handbook (OUP Oxford 2005) 278.

Criminal Proceedings and Investigation Act 1996, s 31-39. This can be appealed and under changed where ‘interests of justice’ so dictate.

29 Blackstone’s Criminal Practice 2004 (OUP Oxford 2004) 1081; citing Woodward [1944] KB 118.

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28

C. The plea of guilty must be entered by the accused himself. The legal representative cannot enter the plea on his behalf.30 From the above discussion, it is clear that the defendant can enter the plea of guilty on his own.

Question 7 What will the Judge do in the pre-trial proceedings if it is obvious that the accused person is mentally ill and his lawyer does not make any objections or proposals, which would refer to such circumstances?

As the setting posed by this question refers to the previously undetected mental illness at the pre-trial stage of the criminal proceedings, it is safe to assume that the police have decided not to admit the accused person to a psychiatric hospital informally prior to the pre-trial31, and that the case was passed from the police to the Crown Prosecution Service for prosecution.32 In such a situation, the court has two options: it can a) remand a defendant to hospital or b) find him unfit to be tried. a. Remand to hospital At the pre-trial stage, the Mental Health Act 1983 provides a general power to remand a defendant by a magistrates’ court or the Crown Court to hospital for a report on his mental condition,33 although this is mainly intended to facilitate either the trial or the sentencing process rather than to divert the

R v Wakerfield Justices, ex p Butterworth (1969) 114 SJ30.

B Puri, R Brown et al Mental Health Law: A Practical Guide (Hodder Arnold London 2005) 41.

32 N Glover-Thomas Reconstructing Mental Health Law and Policy (Butterworths, LexisNexis London 2002) 182. Although the police have the power of diverting apparent mentally disordered individuals from the criminal justice system (ie pre-trial) by way of the Mental Health Act 1983, a considerable number of individuals are diverted later on in the process. This phenomenon is due to the lack of training for the police officers to recognize and act on the presence of mental health difficulties in the suspect, which results in a high number of mentally disordered suspects laxly filtered through to the courts. ibid., 182.

33 Mental Health Act 1983, s 35; Glover-Thomas (n 32) 184.

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individual out of that process.34 Based on section 35, the magistrates’ court35 can remand the person in hospital for assessment without being certain that (s)he has carried out the alleged offence,36 while section 36 confers a power exercisable only by the Crown Court to remand to hospital for treatment. In both cases, a court shall not remand an accused person to hospital unless satisfied on the written or oral evidence of a doctor or manager at that hospital, that a bed will be available within seven days and that the accused can be detained in a place of safety in the meantime.37 In order for the accused person to be dealt with under sections 35 and 36, (s)he must be deemed to suffer from one of the following four specific forms of mental disorder38: mental illness, mental impairment, severe mental impairment, and psychopathic disorder.39 Mental illness, the first of the four, is broadly defined to encompass mental illnesses, developmental disorders, psychopathic disorder, and any other disorder or disability of the mind.40 The other three forms of mental disorder must be associated with and result in ‘abnormally aggressive or seriously irresponsible conduct’41. However, the accused person may not be classified as any of the four categories of mental disorder as described above only on the basis of their sexual deviancy or substance abuse.42 The judge will decide whether the accused falls within any of the four categories based on the evidence presented, which may or may not be associated with the apparent mental state. b. Accused is unfit to be tried The court can also find the accused person not fit to be tried.43 This takes place in the pre-trial stage called the arraignment, as part of the Crown Court hearings. According to section 4 of the Criminal Procedure (Insanity) Act 1964, the decision whether a defendant is unfit lies with the jury. This issue is usually raised early in the process of the criminal proceedings, but discretion P Bartlett & R Sandland Mental Health Law: Policy and Practice (Blackstone London 2000) 255.

35 Virtually all criminal prosecutions open in a magistrates’ court.

36 Bartlett (n 34) 254.

37 Bartlett (n 34) 261.

38 As outlined by ss 1(1) and 1(2).

39 Puri (n 31) 12.

40 B Dolan & D Powell The Point of Law: Mental Health Act Explained (2nd ed The Stationary Office London 2001) 3.

41 ibid., 4.

42 ibid.

43 Bartlett (n 34) 266.

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is possible for the judge or the jury to delay the consideration of the unfitness at later stages, such as during the course of the trial44. In the case that the defendant is considered unfit for trial,45 the court is required to make an order committing the defendant to hospital without the limit of time, coupled with a ‘restriction order’. This gives the Home Secretary the power to determine when, or if, the defendant would be released from hospital or be remitted to prison to stand trial.46

Question 8 Does the criminal procedure start only after the indictment was confirmed or at some earlier stage?

In England, the criminal procedure starts long before the confirmation of indictment, ie ‘preferring a bill of indictment’. The procedure starts when the suspect is questioned or arrested by the police officer with regards to the specific offence and continues throughout the investigation process as well as during trial.47 The start of the criminal procedure is relevant as it determines the powers of arrest and search and the applicability of the rules on exclusion of inadmissible confessions. Thus, the Police and Criminal Evidence Act of 1984 is concerned with Police powers and seeks to lay down a framework for the exercise of such powers. However, detailed rules are desirable so that the police and the public know with reasonable certainty how an investigation ought be covered. Thus, the Act empowers the home secretary to issue codes of practice covering certain aspects of police powers and procedures.48

ibid., 268.

Under the reformed Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

46 Bartlett (n 34) 268.

47 This is clearly illustrated by the provisions of the Police and Criminal Evidence Act 1984 and the Codes of Practice promulgated under s 67.

48 Further reading Blackstone’s Criminal Practice, especially sections D1 and F17; Sprack (n 19) 8, 9.

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Question 9 A. Can the verdict be made without an indictment, but based on the written agreement of confession of guilt?

B. Can the parties and lawyer submit to the court a written agreement on confession of guilt of the accused even when previously indictment was not submitted?

A. The English criminal justice system does not foresee a situation in which the accused could plead guilty without the existence of a document containing the charges against him. As mentioned earlier, depending on the offence committed, the accused is either tried in summary proceedings or on indictment.49 For most serious crimes,50 the proceedings will be based on an indictment and will take place before judge and jury in the Crown Court.51 There, the accused will be able to make a plea of guilty or not guilty.

In summary proceedings, the trial will take place on the basis of ‘an information’, a document charging the accused with a summary offence or an either-way offence determined by the magistrates’ court to be triable summarily.52 The proceedings take place in the magistrates’ courts, where the case is heard and determined by the magistrates, who are mostly lay men and women, but some of them are also district judges. At the beginning of the trial, the accused pleads guilty to a charge contained in the information.53 B. A guilty plea can only be made by the accused himself, the counsel cannot do this for him.54 The accused pleads guilty to an indictment or an information.

In trials on indictment, following a plea of guilty, there is no need to empanel The mode of the trial is determined by the magistrates’ courts. Refer to annex.

Indictable offences and those triable either way, where the magistrates’ court decides to have it tried on indictment; refer to annex 51 Hannibal (n 27) 3.

52 Summary offences and those determined by the magistrates’ court to be triable in summary proceedings; refer to annex.

53 Hannibal (n 27) 4.

54 ibid., 283.

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a jury. Rather, the court proceeds straight to the sentence. In summary proceedings, the defendant will make a pleading to the charge levied against him. If (s)he pleads guilty, the Court will likely sentence him immediately.

References Cited

Books B Dolan & D Powell The Point of Law: Mental Health Act Explained (2nd ed The Stationary Office London 2001).

B Puri, R Brown et al Mental Health Law: A Practical Guide (Hodder Arnold London 2005).

Blackstone’s Criminal Practice 2004 (OUP Oxford 2004).

C Allen The Law of Evidence in Victorian England (CUP Cambridge 1997).

C Tapper Cross & Tapper on Evidence (Butterworths London 2004).

D Atkinson Blackstone’s Guide to The Criminal Procedure Rules 2005 (OUP Oxford 2005).

J Sprack, C Emmins A Practical Approach to Criminal Procedure (OUP Oxford 2004).

M Delmas-Marty Procedure penali d’Europa: Belgio, Francia, Germania, Inghilterra, Italia (CEDAM Padova 2001).

M Hannibal Criminal Litigation Handbook (OUP Oxford 2005).

M Howard, J Auburn (eds) Phipson on Evidence (Sweet & Maxwell London 2005) N Glover-Thomas Reconstructing Mental Health Law and Policy (Butterworths, LexisNexis London 2002).

P Bartlett & R Sandland Mental Health Law: Policy and Practice (Blackstone London 2000).

P Bartlett Blackstone’s Guide to the Mental Capacity Act 2005 (OUP Oxford 2005).

P Roberts, A Zuckerman Criminal Evidence (OUP Oxford 2004).

Police and Criminal Evidence Act 1984 and the Codes of Practice under s 67.

Solicitors’ Journal and Reporter 22 (1877-8).

Legislation Administration of Justice (Miscellaneous Provisions) Act 1933.

Criminal Justice Act 1988.

Criminal Justice Act 2003.

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c 25).

Criminal Proceedings and Investigation Act 1996.

Indictments (Procedure) Rules 1971.

Magistrates’ Courts Act 1980.

Mental Health Act 1983.

Offences against the Person Act 1861.

Public Order Act 1986.

Road Traffic Act 1988.

Sexual Offences Act 2003.

Theft Act 1968.

Theft Act 1969.

Theft Act 1998.

Case Law R v Wakerfield Justices, ex p Butterworth (1969) 114 SJ30.

Woodward [1944] KB 118.

Annex The following discussion outlines the classification regime, appropriate jurisdiction of the relevant courts, and the procedural process by which a matter moves from the initial hearing to trial.

I. Classification of Offences According to Place of Trial An offence is either summary or indictable. An indictable offence is one for which an adult either must or may be tried on indictment; a summary offence is one which must be tried summarily. An offence that may be tried either on indictment or summarily is known as an offence triable either-way.55 Summary Offences Summary offences are all statutory. Large numbers of minor and occasionally not-so minor offences are considered summary. Such offences include, for example: a conveyance without consent,56 careless and inconsiderate driving,57 common assault,58 or causing harassment, alarm, or distress.59 A statute shows it is a summary offence by specifying a maximum penalty, which may be imposed on summary conviction without specifying a second greater penalty for offenders convicted on indictment.60 Indictable Offences All common law offences (e.g., murder, manslaughter and conspiracy to defraud or corrupt public morals) are indictable. Statutory offences are indictable if the statute creating the offence specifies a penalty to be imposed following a conviction on indictment.61 Typically, indictable offences involve the most serious crimes. Such offences include, for example: robbery62 and rape.63

Sprack (n 19) s 7.01.

Theft Act 1998, s 12.

57 Road Traffic Act 1988, s 3.

58 Criminal Justice Act 1988, s 39.

59 Public Order Act 1986, s 5.

60 Sprack (n 19) 7.02.

61 ibid., 7.03.

62 Theft Act 1968, s 8.

63 Sexual Offences Act 2003, s 1.

55

56

Either-Way Offences Offences either-way fall into two general groups. First, they are either, like dangerous driving, made triable either way by the statute creating the offence or second, they are specified as either-way offences in Schedule 1 to the Magistrates’ Court Act 1980, Section 17. Either-way offences while serious enough to be indictable, are never, even at worst, very grave. Such offences include, for example: theft,64 affray,65 or assault occasioning actual bodily harm.66 II. Relevant Criminal Courts in the United Kingdom Magistrates’ Court The Magistrates’ Court serves as the workhorse of the British justice system.

Accordingly, the Magistrates’ Court tries summary offences. It further tries either-way offences deemed suitable for summary trial and sends indictableonly offences to the Crown Court for trial in accordance with Section 51 Crime and Disorder Act 1998. The Magistrates’ Court also holds committal proceedings67 in either-way offences to be tried on indictment. The Magistrates’ Court further deals with preliminary matters including bail and representation orders.

Crown Court The Crown Court tries indictable-only offences received from Magistrates’ Court pursuant to Section 51 Crime and Disorder Act of 1998. Further, the Crown Court tries either-way offences committed for trial by indictment where the Magistrates’ Court has declined jurisdiction or the defendant has requested trial by indictment. The Crown Court will also sentence those committed from the Magistrates’ Court for sentencing on the basis of a guilty Theft Act 1969, s 1.

Public Order Act 1986, s 3.

66 Offences against the Person Act 1861, s 47.

67 A committal proceeding is held where the accused is charged with an offence triable eitherway where the court has decided that the case should be tried in the Crown Court for trial or the defendant has elected trial on indictment. In accordance with Schedule 3 of the Criminal Justice Act of 2003, committal proceedings in relation to either-way offences will be abolished. However, the provisions are not expected to be implemented for sometime. Once they are and the Magistrates’ Court has declined jurisdiction or the defendant has elected trial by jury, the case will be referred to the Crown Court in a procedure very similar to that applied to indictable only offences.

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plea. It will also hear appeals68 against conviction and/or sentencing from the Magistrates’ Court.

III. Criminal Procedures for Offenders The appropriate jurisdiction of the court for trial and the identity of the judge overseeing both the initial proceedings and the trial proceedings are largely dependent on two factors: (1) the classification of the offence and (2) the defendant’s pleading before the Magistrates’ Court. For the purposes of organization, we will review the procedural path for a case in relation to the classification of the offence.

Summary Offences The prosecution of a summary offence is relatively straightforward. At the initial appearance before the Magistrates’ Court, the defendant will make a pleading to the charge levied against him. If the defendant pleads guilty at the initial appearance, the Court is likely to sentence him immediately. If the defendant pleads not guilty, the Court will outline matters of bail and legal aid. The initial hearing will be adjourned to facilitate the service of prosecution evidence to check availability of witnesses in the case.

At a subsequent hearing, a date will be set for a summary trial before the same Magistrates’ Court. The initial hearing and subsequent summary trial need not be done by different Magistrates’ Courts or bifurcated between two different judicial bodies.

Either-Way Offences The prosecution of an either-way offence depends largely on the plea entered by the defendant. If the defendant at the initial hearing enters a guilty plea, the Magistrates’ Court is likely to sentence the defendant immediately. The sentence can be appealed to the Crown Court, but as noted, the magistrates

68 In such appeals, a Magistrate must be included on the review panel, but Rule 5 of Crown Court Rules 1982 provides that a magistrate who was involved in the proceedings in the Magistrates’ Court may NOT be a member of the court for the appeal. An appellant who found himself in Crown Court before one of the magistrates who had previously decided against him would feel justifiably aggrieved.

sitting at sentencing will be disqualified from participating on the appeals panel.

If the defendant enters a not-guilty plea, the Magistrates’ Court will hold a mode of trial inquiry. Unless there is agreement as to the place of trial by the prosecution and defence, the decision about where the defendant ought to be tried lies initially with the magistrates who take into account submissions by both the prosecution and the defence, guidance contained in the National Mode of Trial Guidelines, and a number of statutory factors contained in Section 19 Magistrates’ Court Act. Where the magistrates consider that trial on indictment in the Crown Court is appropriate, the proceedings will be adjourned until a committal hearing can be held. If the magistrates believes that the case may be tried summarily, the defendant has the right to elect trial either in the Crown Court or before the magistrates in summary trial. If trial on indictment is chosen, the case will be adjourned for a committal hearing to be held. Where the defendant chooses a summary trial, the case will be listed for a summary trial.

Indictable Offences The initial appearance is held before the Magistrates’ Court at which time the issues of bail and legal aid are discussed. The case is then shortly sent to Crown Court where an initial appearance will outline a timetable for trial and any issues, such as bail, will again be discussed. The trial, if one occurs, will be held before the trial court and not the Magistrates’ Court who conducted the initial hearing and drafted the indictment forwarded to the Crown Court for adoption.

Oxford Pro Bono Publico Team The legal research on this project was conducted by a group of postgraduate law students, supervised by Dr Liora Lazarus, under the auspices of the Oxford Pro Bono Publico programme. The students are: Veronika Fikfak (students co-ordinator), Xianyue Bai, Hanaan Balala, Ted Bosquez, Alex Chung, Amit Pundik (project members).

For additional information please contact Sarah McCosker at sarah.mccosker@law.ox.ac.uk.