Criminal Procedure

Criminal Procedure, legal system for determining the guilt or innocence of a person accused of a crime. In most English-speaking countries, the heart of the system is the presumption of innocence, whereby a defendant is innocent until proven guilty. In any criminal case, it is up to the prosecution to prove the elements of the offence that make up guilt. The presumption takes further expression in the right of an accused not to give evidence (see right of silence), the right of any witness not to answer questions that might incriminate the answerer, and the right to cross-examine all prosecution witnesses. In England and Wales, a defendant no longer has the absolute right to be prosecuted only once for an alleged crime (see double jeopardy).

The law in the United Kingdom protects the citizen’s rights in the investigative process. The search and seizure of property is governed by rules which generally call for the police to obtain search warrants from magistrates: these are only available when the police can show a reasonable suspicion of the presence of evidence in the property, and they may not be issued for police to undertake so-called “fishing expeditions” on the off-chance that a householder may have relevant evidence. Arrest powers are also circumscribed, and people held by the police are entitled to certain rights while in custody and being questioned: if these are infringed the prosecution may be prevented from bringing confessions or other evidence into court at the trial.

After an arrest, the suspect must either be released within a set period of time or charged with an offence. If there is a charge, the accused must be brought before a court as quickly as possible, or released on bail and told when to attend court. The accused is, first of all, brought to a magistrate’s court, which must decide how to deal with him or her. Magistrates should grant bail unless there is a reason for detention, such as the probability of the accused absconding, committing further offences, or interfering with witnesses at the trial. If any of these is likely, the court will remand the accused in custody. Bail may be granted subject to conditions, such as the accused living at a certain address, or keeping a curfew (staying indoors between certain times), or subject to a surety, which is the guarantee of money from a friend should the accused fail to return to court to answer the bail. In England and Wales, a deposit of money may no longer be taken from the accused.

The process of determining the outcome of the case also takes place in the magistrate’s court. The vast majority of criminal offences are dealt with summarily by magistrates, who have powers to imprison people for up to 6 months for each offence, up to a maximum of 12 months. Many crimes are triable only summarily and the accused has no choice of where to be tried. The most serious crimes may not be tried by magistrates. For those offences in between (“either way” offences), the magistrates must decide which procedure is suitable, depending on the gravity and complexity of the case, but the accused may always choose to be tried by a jury.

A notable difference between magistrate and jury trial in England and Wales is that magistrates may leave a case part-heard for some time—even weeks—and return to it when another day is available. Juries hear cases without a break. If the magistrates find the defendant guilty, they may sentence him or her themselves, or if they think the matter too grave for their powers, they may pass it to the Crown Court, which has the power to pass more severe sentences. They should not do so unless there is something that became apparent in the course of the trial that makes the case more serious; if it is apparent from the start that the case is a grave one, they should send it to Crown Court for trial.

The case will then be listed for a trial date in the Crown Court. The defendant remains on bail or remanded in custody. A defendant’s first appearance before the Crown Court is known as a “plea and directions” hearing. If the defendant pleads guilty, the court need only prepare for a sentencing hearing. If the defendant pleads “not guilty”, a date will be set for the trial, and the court gives directions to ensure that the case will be ready in time. For example, it may be necessary to simplify complex documents or to provide video links for witnesses who cannot come to court. Preliminary points of law, which may determine whether the defendant pleads guilty or not guilty, or which affect the evidence that the prosecution will call, can also be determined at preliminary hearings.

The charge sheet in the Crown Court is known as an indictment: this may contain any number of counts (or charges), but each count may only allege a single offence. The prosecution has to prove the charges, which it does either by calling witnesses to give evidence, or by reading out agreed on witness statements. It will often be the duty of the prosecution to “negative” certain defences: for example, if the question of self-defence is raised in an assault case, the prosecution has to prove that the defendant did not act in self-defence.

A defendant is not obliged to answer questions during the investigation of the offence, although the jury may draw unfavourable inferences from his or her silence. Nor is the defendant obliged to give evidence on his or her own behalf at the trial, though again the jury may draw unfavourable inferences if he or she does not.

The judge presides over the trial, rules on matters of law, and sums up the case to the jury. The jury is obliged to accept his or her rulings on the law, but it is the jury that judges all questions of fact. Although the jury is required to return a unanimous verdict, the court can in certain circumstances accept a verdict by a majority of 10 to 2 or 11 to 1.

When the verdict of the jury is “not guilty”, the defendant is released. The old absolute rule against double jeopardy has been abolished, and under certain limited circumstances, the defendant can be tried again for an offence of which he or she has been previously acquitted.

Where a defendant pleads guilty, or the jury returns a verdict of guilty, the judge proceeds to sentence for the offence. Pre-sentence reports from the probation service are usually prepared, though a judge is not obliged to seek such reports. Where there is drug abuse or a suspicion of mental illness a medical report is commonly sought as well. A judge will usually order a report where a sentence of imprisonment is being considered, but such a report is not necessary where the offence is so serious that the only possible sentence is a long prison term.

After conviction, a defendant may appeal against the verdict and the sentence. Appeals from the magistrate’s court go to the Crown Court, where a judge sits with two or more magistrates who did not hear the original case; the appeal amounts to a complete rehearing of the case. Appeals from Crown Court trials go to the Court of Appeal. A defendant does not need permission to appeal from the magistrates to the Crown Court, but permission is needed to appeal from the Crown Court to the Court of Appeal. A defendant may also appeal from the magistrates’ court to the Divisional Court of the High Court where the appeal is on an issue of pure law.

If the defendant is imprisoned, he or she will usually be released after serving a proportion of the sentence, on parole. For longer-serving prisoners this release is not automatic; a parole board examines the prisoner’s disciplinary record in prison, and decides how likely it is that he or she will reoffend. A released prisoner may be liable to be recalled to prison if he or she commits an offence while on parole.

This account is true of the legal system of England and Wales, and its features are present in one form or another in most English-speaking jurisdictions. In most states of the United States the law of procedure is based on the English common law. European jurisdictions have a more inquisitorial system of criminal justice, where the examining magistrates are involved in the investigation of crime, and the trial judges—often more than one—are more involved in the examination of witnesses and the direction of the trial. In some jurisdictions, the defendant may be required to answer questions.

Contributed By:
David Watson

Reviewed By:
Simon Levene

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