magistrates | crown court | legal protection
youth courts | S39 orders | sex attack victims
civil courts | asbos

THE COURTS

1. The Magistrates Court. Ninety-five per cent of criminal cases are started and finished in the magistrates court. Magistrates also deal with civil cases like family matters, liquor licensing and betting and gaming. Magistrates are appointed by the Crown and retire at 70 and there are about 30,000 in England and Wales. There are also about 130 District Judges – professionals once known as stipendiary magistrates - who sit alone and deal with the more complex or sensitive cases. Magistrates cannot normally send people to prison for more than 6 months (or 12 months for consecutive sentences), or fine people more than £5,000, so more serious cases are sent to the Crown Court.

2. The Youth Court: A specialised form of magistrates court that deals with people who were under 18 at the time it is alleged they committed the offence. Most young people have their cases dealt with in the youth court. The normal magistrates courts may deal with cases which involve people under 18 but only if they are tried with an adult. Young people also appear in the crown court if they are being jointly tried with an adult whose case needs to be heard in that court.

3. The Crown Court deals with more serious criminal cases such as murder, rape or robbery. Trials are heard by a judge and a 12 person jury. There are 77 crown courts across England and Wales. Appeals against a decision of the magistrates' court in criminal cases are also heard by the crown court. The Old Bailey, more correctly known as the Central Criminal Court, is a crown court.

4. The High Court of Justice is based at the Royal Courts of Justice in London but High Court judges ‘on circuit’ also sit in the larger provincial cities. They are the people who preside over the most serious cases at the crown court. The High Court also hears appeals on points of criminal law from both the magistrates court and the crown court.

5. The Court of Appeal Criminal Division, hears appeals from the crown court. The criminal division is presided over by the Lord Chief Justice and has jurisdiction over appeals by the defendant against conviction or sentence given at a trial in the crown court and deals with references by the Attorney General on a point of law after an acquittal or against an unduly lenient sentence.

6. The Supreme Court: The final court of appeal in criminal cases from England, Wales and Northern Ireland.

Magistrates Court

There are three categories of cases which come before magistrates.

a. Summary offences: Those which the magistrates can, and do, deal with there and then.

b. Indictable offences: Offences like murder or rape which are too serious for magistrates to deal with and which must be passed up to the Crown Court.

c. Either Way offences: Those slightly less serious offences where the accused has the right to chose summary trial by the magistrates or trial by jury at the Crown Court and exercises that right.

Magistrates powers: They can

l. Send end people to prison - but not for over 6 months for any one offence nor for over 12 months for more than one offence.

2. Impose suspended prison sentences. This means that the offender does not have to go to prison unless he commits a further offence for which a prison sentence could be imposed during the time for which the first sentence is suspended.

3. Fine people. Maximum fines are fixed by statute for most offences.

4. Impose a community service order under which the offender is directed to work for a specified number of hours, without pay, for the good of the community.

5. Place an offender over the age of 17 on probation for a specific period under the supervision of a probation officer.

6. Grant an offender an absolute discharge. That means that although the offender is guilty of an offence he is allowed to go free without any conditions attached.

7. Give a conditional discharge - again no penalty is imposed but, if the offender commits another offence within a specified time, he is liable to be dealt with for the first offence as well.

8. Bind over a defendant to be of good behaviour.This typically happens with minor charges relating, say, to disputes between neighbours. If the defendant ( or a witness or a complainant) agrees to be bound over then the prosecution drops the case and no conviction is recorded.

9. Send an offender to Crown Court for sentence.This happens when the magistrates have found a defendant guilty but feel that any sentence they are permitted to pass is inadequate.

10. Order an offender to make restitution.

11. Order that a motor vehicle used in the furtherance of theft
(which includes shoplifting) be confiscated.

12. Order an offender to pay damages for personal injury or for loss or damage to goods.

13. Send a defendant for trial at the Crown Court.

Practicalities: What must go into an ordinary, run of the mill, court case involving adults?

1. The name, address, age and occupation of the defendant.
2. Details of the offence.
3. Whether he pleaded guilty or not guilty.
4. If the case is concluded - the verdict of the court.
5. If the case is concluded - details of the sentence.
6. If the case is adjourned - the date it's adjourned to.
7. If the case is adjourned - details of how the defendant is remanded: in custody or on bail.

 

Reporting 'sent for trial' cases

At first glance the restrictions imposed on reporting cases where people are sent for trial can be an intimidating tangle.They begin to untangle once you realise the reasons they are there.The main object of all the rules and restrictions is simple: that an accused person gets a fair trial.

A Crown Court trial takes place in front of a jury of 12 citizens who are charged with reaching a verdict solely on the evidence presented to them in court. If the jury was influenced by anything other than the courtroom evidence then that would be unfair.

There are two channels through which a jury might get prejudicial information either for or against the accused. One is through the media publishing sensational stories and backgrounders.The other is through reports in the media of the various legal stages an accused must go through before he gets to plead not guilty at the crown court.

The Magistrates Court Act 1980 restricts what can be reported when a person is sent for trial to the Crown Court.The provisions of this Act are designed to allow the case to be reported – justice must not only be done, it must be seen by the public to be done – but reported in such a way as to avoid prejudicing the all-important future jury trial.

S8 of the Magistrates Courts Act 1980 limits the report of the committal to 10 factual points:

1. The name of the court and the names of the magistrates.

2. Names, addresses and occupations of parties and witnesses and the age of accused(s) and witnesses.

3. The offences with which the accused is charged, or a summary of them.

4. The names of barristers and solicitors in the case.

5. The decision of the court to commit the accused, or any of the accused for trial and any decisions on the disposal of the case of any accused not committed.
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6. The charges on which the accused was committed, or a summary of them, and the court to which he was committed.

7. Where proceedings are adjourned, the date and place to which they are adjourned.

8. Any arrangement as to bail.

9. Whether legal aid was granted.

10. Any decision of the examining magistrates to lift or not to lift the above reporting restrictions (1-9).

Reporting restrictions can be lifted if:

1. The accused applies to have them lifted. If so they must be lifted.

2. In a case involving more than one defendant the magistrates decide to commit none of the accused for trial.

3. The magistrates decide to try one or more of the accused summarily.
The Act allows the report to contain an account of any proceedings that took place before the decision to lift the restrictions was made. If some accused are tried summarily and some are committed in the same proceedings, the evidence relevant to those who have been tried summarily may be reported even if it impinges on the case of those sent for trial. If an accused is committed for sentence there are no restrictions on the report because he has been tried summarily.

4. All the accused eventually have been tried at crown court. This means that evidence given at the magistrates court, weeks earlier, can now be reported without waiting for any appeal. This delayed report of the committal proceedings, provided it is fair and accurate, will be treated as a contemporaneous report and will be protected.It may be that in a case where there are two defendants one may want reporting restrictions lifted and his co-accused may not. If so, the examining magistrate may lift the restrictions only if he is satisfied that in the interests of justice it is right to do so. (Criminal Justice (Amendment) Act 1981)

Granting bail

There is also the question of whether the accused should get bail while he waits for the trial to start.The rules governing bail applications are contained in the Bail Act 1976. Under this Act magistrates are required to remand the accused on bail unless they are satisfied that there are substantial grounds for believing he will:

Abscond, commit other offences or interfere with the course of justice.
or

He should be kept in custody for his own safety or

he is already serving a prison sentence. or

There is not sufficient information available to make a decision.

Magistrates cannot grant bail to a person accused of homicide or rape if he has previously been convicted of such an offence. The magistrates must give their reasons for refusing bail or state their reasons for granting bail in the case of murder, manslaughter or rape. If bail is refused by magistrates the accused may apply to a judge in chambers.

Reporting applications for bail also comes under S8 of the Magistrates Court Act.
This restricts what may be reported to “arrangements as to bail on committal or adjournment.” This means the amount of any surety, any requirements to report to the police, the surrender of passport or any warning not to interfere with witnesses etc.

But the actual arguments as to whether bail should be granted cannot be published. Nor can the reasons for refusing bail which magistrates must give under the Bail Act 1976.

The working rules for journalists therefore are:

1. The report should in no circumstances mention previous convictions or any other information that carries a serious risk of prejudicing the subsequent jury trial.

2. The arguments for and against bail being granted must not be published.

3. The reasons for refusing bail, which ( Bail Act 1976) the magistrates must give in court are also ruled out.

 

The Crown Court

The lawyers

High Court Judges – There are 106 High Court judges and they try the more serious criminal cases in the provincial crown courts.

Circuit Judges: Some of the country’s 600 circuit judges deal specifically with criminal cases at crown courts. They may also be asked to sit in the Criminal Division of the Court of Appeal.

Recorders are part-time judges whose jurisdiction is broadly similar to that of a circuit judge but they generally handle the less complex or serious matters.

Barristers and solicitors: Lawyers are either solicitors or barristers. It is barristers who prosecute at Crown Court trials and they also usually appear for the defence but experienced solicitors who have gained higher court qualifications may also appear, titled solicitor advocates.

The Jury

A jury is made up of 12 people aged between 18 and 70 chosen at random from the electoral list. Majority verdicts of 11-1 or 10-2 are allowed but only if the jury has failed to reach a verdict after at least two hours 10 minutes. If the numbers of a jury are reduced, say through illness, a majority of 10-1 or 9-1 is possible.

The accused

The charges are read out to the accused and he pleads either Guilty or Not Guilty.
Guilty: If the plea is Guilty, the prosecuting barrister outlines the evidence, reveals any past convictions of the accused, and presents any social inquiry reports about the accused.

The accused himself, or his lawyer, is then allowed to address the court before sentence is passed.

It may be that this speech of mitigation includes statements that are damaging to another person’s character. If there are substantial grounds to believe that the statement is false, or irrelevant to the sentence, the court may order that the statement made in mitigation should not be reported for 12 months.

If the accused pleads Not Guilty a jury is sworn in and the substance of the charges is read to them.

The counsel for the prosecution then opens the case against the accused and outlines the evidence which will form the prosecution case.

The prosecution then calls its witnesses who give their evidence at the prompting of the prosecution lawyer and are then cross-examined by the defence lawyer.

The defence then begins to present its version of events and produces witnesses for the defence who are in turn cross-examined by the prosecuting counsel

After all the evidence has been given, the prosecuting counsel makes his final speech to the jury and the defence lawyer addresses them last
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The judge then sums up the case for the jury and directs them as to the law involved but leaves the facts of the case to the jury unless he feels there is not enough evidence to support the charge and directs the jury to bring in a verdict of Not Guilty.

The Reporter

Great care should be taken about the way in which the opening address by the prosecution is reported. What the prosecuting counsel is saying is not in itself evidence. It is only a summary of what will be stated later by the prosecution witnesses. The preliminary claims therefore are precisely that, claims, and should not be reported as facts.

A prosecuting counsel may “allege” or “claim” that a policeman saw a gun and the report should read: The prosecuting counsel alleged that a policeman saw the accused with a gun. When the policeman himself gives evidence the reporter can write: The policeman said: “I saw a gun.”

After that the case can be reported in the usual way with the proviso that it should be fair and accurate if it is to be protected as far as Libel and Contempt of Court is concerned.

Legal protection for reports

Libel

A fair and accurate report, published contemporaneously of UK court proceedings held in public attracts Absolute privilege and is immune from an action for libel.

Qualified privilege protects fair and accurate reports of court proceedings which are not published contemporaneously.

Fair and accurate

If the report is unfair or inaccurate it forfeits both Absolute or Qualified privilege.
Example: In 1993 The Sunday Sport paid substantial out of court damages in a libel action brought by to a police officer based on the paper’s reporting of a court case in which he had been found not guilty of indecent assault. The paper had reported the opening statement by the prosecution and the main evidence of the alleged victim but did not include her cross-examination by the defence which began the same day. During the cross-examination the alleged victim made a number of admissions which weakened the evidence she had given earlier and which the paper had reported. The Sunday Sport then briefly reported the policeman's acquittal but they neglected to report the admissions which effectively negated much of the adverse publicity the policeman had received in the earlier report.

Contemporaneous

If the court report is not published contemporaneously - roughly the next reasonably available edition of the paper or the next television or radio news bulletin - it loses absolute privilege but is still protected by qualified privilege if all the conditions attaching to that defence are met.These are that the report is:

* Fair and accurate
* Published without malice
* On a matter of public concern
* And the publication is for the public benefit

When might this protection be needed as far as court reporting is concerned? Say the chairman of the council’s road safety committee is arrested for drink driving and his case is heard when there is no reporter at the magistrates court to report his conviction.

Some weeks later you hear that he has been banned from driving. You get the details of the case but you have already lost Absolute privilege because the report will not be contemporaneous with when the case was heard.

What you still have left is qualified privilege with its four requirements listed above but particularly that his conviction was a matter of public interest and that publishing the report was for the public benefit.

Remember that privilege is restricted to reports of the court proceedings only. Documents seen by the judge or magistrates but not read in open court are not covered but there is qualified privilege for fair and accurate copies of, or extracts from, documents made available by the court.

Contempt of court

S4(1) of the Contempt of Court Act 1981 gives immunity from contempt proceedings provided the report is fair and accurate and published contemporaneously (first available edition).

S 4(2) allows the court to postpone the reports in order to avoid a substantial risk of serious prejudice. The court has to balance the risk of prejudice against the public’s right to open justice.

S11 allows the court to ban the publication of any name or any other matter which has already been withheld from being mentioned in public during the court proceedings - for example the name of a blackmail victim. The ban is justified by being in the interests of the administration of justice.

The Youth Court

Youth courts (previously known as juvenile courts) deal with young people who were under the age of 18 at the time they are alleged to have committed an offence. In law a 'child' is under 14 and a 'young person' is over 14 and under 18.

The youth court has power to:

* Remand the offender to local authority accommodation as a temporary measure.

* Put the offender under the supervision of the local authority. Such an order may include a residence requirement compelling the offender in serious cases to live for up to six months in accommodation provided by the local authority.

* Order an offender to put in a stated number of hours at an attendance centre.

Reports of proceedings at a youth court must not contain:

* The name, address or school, or any particulars leading to the identification of any child or young person involved in the proceedings as a defendant or witness.

* Any photograph of, or including, any such juvenile.

* There is a complete ban on naming the juvenile's school, however large it may be.

The Crime Sentences Act gives a Youth Court the power to lift the ban on identifying a young person when he is convicted if the magistrates believe it would be in the public interest. The Press can ask for the anonymity to be lifted. Guidelines for the court include:

• the seriousness of the case or

• the persistent offending of the young person and

• whether warning the community about the offender’s behaviour would help prevent further offences.

The magistrates must weigh those points against the possibility that printing the young person’s name and address etc would put him or his family at risk and must also take into account the offender’s age and vulnerability. They must also consider whether naming the offender would also reveal the identity of a vulnerable victim.

A youth court also has the power to lift restrictions on identifying a juvenile to avoid injustice to him. They may also dispense with restrictions in order to trace a juvenile who is wanted for a violent or sexual offence or an offence where an adult could be jailed for 14 years or more.

There is nothing to stop the naming of an adult concerned in the proceedings provided it does not lead people to the identity of the child.

The youth court does not have the power to deal with care orders - applications for a child to be put into the care of a local authority. These matters are dealt with
in a magistrates court sitting in family proceedings.

Young people in adult courts

Where a young person appears as a defendant or witness in any court other than a youth court, or other than in an appeal from a youth court, there is no automatic ban on identification.

But the court, under S39 of the Children and Young Persons Act 1933 can impose the same restrictions as those in force at a youth court.

Many magistrates courts do this as a matter of course. Courts have also attempted to use S39 in cases involving child battery or sexual abuse within families to order that the name of the adult defendant should not be published.The Court of Appeal, however, has stated that this action was wrong unless such defendants were themselves young persons.

Lawyers representing adult defendants sometimes wrongly seek a S39 order with the motive to protect the adult from publicity. These attempts can be placed in two categories:

Unreasonable:
* The children involved are too young to be affected by publicity as in the case of a father battering a year-old baby.

* The names of the children involved are already out in the public domain as a result of media stories before any legal process had begun.

Unlawful:
* S39 orders cannot be made in respect of dead children,
* Orders cannot be made to protect the identity of children not “concerned in the proceedings.”

Anonymity: sexual attacks

The law gives anonymity to victims of sexual attacks. The Sexual Offences (Amendments) Act of 1992 and 1976 combine to protect the identities of complaints alleging the following crimes:

1. Rape
2. Attempted rape
3. Aiding and abetting rape or attempted rape
4. Incitement to rape
5. Conspiracy to rape
6. Burglary with intent to rape

The restrictions come in two stages:

1. Once an allegation has been made no personal details or picture can be published in his or her lifetime if it is likely to identify the complainant as a victim.

2. After a person has been accused of a rape offence no matter likely to lead to the victim being identified as a complainant must be published during the victim’s lifetime.

The anonymity for the victim remains in force even if the allegation is later withdrawn or the accused is later tried for a lesser offence than rape. It also applies to victims of male rape. A judge at a crown court may remove the anonymity if he is satisfied that it imposes an unreasonable restriction on the reporting of the trial and that it is in the public interest to do so. He can also do so to bring witnesses forward.

Since the passing of the Criminal Justice Act 1988 there has been no anonymity for rape defendants but publication of the identity of the defendant, combined with other details, could lead to the identification of the defendant, as where a husband is accused of raping his wife.

The anonymitity for life does not apply to reports of civil proceedings, for example a claim for damages for rape or to allegations made to an industrial tribunal.

Other sexual offences:

The 1992 Act provides a similar two-stage anonymity for complaints in such offences as intercourse with a mentally-handicapped person, incest, indecent assault etc. The restrictions can be lifted by a magistrate or a judge is he/she feels they unreasonably restrict reporting the case.

The anonymity can be lifted with the complainant’s written consent.

The Civil courts

Civil courts resolve disputes between individuals or companies, mostly over money, but areas such as the welfare of children, matrimonial disputes, the settlement of wills and libel actions also feature in the case-load.

1. Magistrates Court: This has a rather limited function in civil matters, mostly confined to family proceedings. Magistrates have the power to make a number of orders for the welfare of a child. They also issue anti-social behaviour orders and hear licensing appeals.

2. County Court: Often referred to as the Small Claims Court, it deals mostly with cases between people or companies who believe that someone owes them money. Claims for things like breach of contract, damage to property, traffic accidents, personal injury and faulty goods are common as are disputes over housing , including mortgage and council rent arrears and re-possession. The judgments which relate to payment of money are recorded on the Register of County Court Judgments and the information is used by banks, building societies and credit companies to check an individual's credit-worthiness. The county court – there are 216 of them throughout England and Wales - also deals with Family issues such as divorce or adoption. Family proceedings are mostly dealt with by district judges but circuit judges deal with the more serious cases.

3. The High Court deals with the more important civil disputes in which large sums of money or other important issue are at stake. It is based at the Royal Courts of Justice, but may also sit at 'first tier' Crown Court centres across England and Wales. There are three divisions of the High Court:

The Queen's Bench Division deals, broadly with actions for damages arising of contract such as failure to complete work on time or pay money due for work done and, importantly for the media, libel.

The Family Division deals with Children Act proceedings, wardship and adoption applications, divorce and ancillary relief proceedings and declarations in medical treatment cases. It also deals with wills and, where no will has been made, the distribution of estates under the intestacy laws.

The Chancery Division covers property, intellectual property, patents, trade marks copyright, insolvency, commercial frauds and business disputes. The Division is increasingly involved with financial regulatory work and professional negligence.

4. The Appeal Court Civil Division hears appeals from the High Court and (directly by-passing the High Court) from the county courts. There are 37 regular judges of the Court of Appeal whose title is either Lord Justice or Lady Justice. The Master of the Rolls is the President of the Court of Appeal, Civil Division. He is also Head of Civil Justice.

5. The Supreme Court: The Court of Appeal may refer cases involving points of law to the Supreme Court where the Justices, if they follow their practice in the House of Lords, will usually sit in panels of five.

Most civil cases centre on money and they all begin with a claim form. The form sets out the details of the claimant’s case and the amount they are seeking and is served on the defendant. There are two choices open to the defendant:

1. He can decide not to file any defence to the claim and judgment against him is entered by the court ‘in default’. As soon as the judgment is entered the claimant may use the court’s services to enforce it.

2. If the defendant decides to fight the case he must file his defence within 28 days. The case is then allocated to one of three tracks:

Small claims – below £5,000. These cases should be decided by a district judge within three months.
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Fast track - £5,000 - £15,000. These cases should be heard within 30 weeks and the court proceedings should last no more than a day.An example is the procedure for libel. Major libel cases are usually heard by a judge and jury but if plaintiffs are willing to accept damages of £10,000 or less they can take advantage of the 'fast track' procedure.

In a suitable case a plaintiff wanting a quick apology and modest damages will not be forced to incur huge legal costs in getting them. Claims are dealt with by a judge without a jury and – if successful – the claimant can get any or all of the following remedies:

• Declaration that the statement was false and defamatory
• Order to publish suitable correction and apology
• Damages not exceeding £10,000
• Injunction restraining further publication

Multi-track – the more complex cases. Efforts are made to resolve the dispute by negotiation or mediation but if this fails a trial is arranged.

ASBOs

The Labour government introduced Asbos as a key part of the Crime and Disorder Act 1998, a central plank of Labour's law and order policy.

Asbos are imposed for a term of between two and five years and most commonly include bans on causing harassment, alarm or distress, exclusion from particular places or parts of town, and bans on mixing with other named individuals.

Legally they are unusual because they are imposed in a civil court but trangressions of the Asbo are punished in a criminal court.

This is because dealing with louts in the criminal courts means producing first hand, eye-witness evidence which many of the sufferers were unwilling to provide on the basis that it might make matters worse.

Parliament got round that by making the Asbo a civil, not a criminal, matter. This meant that people did not have to face their tormentors in court. Instead, ‘hearsay’ evidence - unacceptable in a criminal court - could be collected from them by either the police or the local authority and presented to the magistrates court sitting in its civil capacity.

The sting in the tail was that breach of an Asbo also became a criminal offence. The maximum penalty is five years imprisonment for an adult or a two-year detention and training order for juveniles, 12 months of which is custodial.

The standard of proof required where a breach of the order is concerned is the criminal standard. Guilt must be established beyond reasonable doubt.

Where groups of people are engaged in anti-social behaviour a case needs to be made against each individual against whom an order is sought but the cases can be heard together by the court.

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