The English Legal System

9.1 Introduction

There are over 12,000 different criminal offences in English law, 3,700 of which have been created since 1997. Professors Andrew Ashworth and Lucia Zedner identified that criminalisation is no longer a last resort but has become ‘a routine system for management disorder’ (A Ashworth and L Zedner (2008) ‘Defending the criminal law: reflections on the changing character of crime’, 2 Criminal Law and Philosophy 21). Criminal offences can be classified in different ways. You could, for example, classify them according to whether they are offences against people or property; you could classify them according to the type of mental element (mens rea) required for the offence, for example, ‘intention’ or ‘recklessness’. Another type of classification, and the one that concerns us here, is whether the offence is triable summarily, that is, in a magistrates’ court (for relatively trivial offences like traffic offences), or is an indictable offence (the more serious offences like murder, manslaughter, rape and robbery are indictable only), triable in front of a judge and jury in a Crown Court.

From the mid-nineteenth century, magistrates were empowered to hear some indictable cases in certain circumstances. Today, there is still a class of offence that is triable ‘either way’, that is, summarily or in a jury trial. A typical example would be a potentially serious offence such as theft, but one that has been committed in a minor way, as in the theft of a milk bottle. These offences now account for about 80 per cent of those tried in Crown Courts. Most defendants, however, opt for summary trial. The magistrates’ court has the power to refuse jurisdiction – that means to refuse to deal with the matter – if it thinks, having considered the facts of the case, that its powers of sentencing would be insufficient if the case resulted in a conviction.

Where several defendants are charged together with either-way offences, each defendant’s choice can be exercised separately. So, if one elects for trial in the Crown Court, the others may still be tried summarily if the magistrates agree (R v Brentwood Justices ex p Nicholls (1991)).

Radical reforms to modernise the criminal courts and strip out 500,000 hearings a year were announced by the government in 2015. The chancellor of the exchequer pledged £700 million for an IT revolution in the justice system (The Times,

Figure 9.1 The Criminal Courts.

26 November 2015). The aim is to move the courts from a Victorian paper-based system into the digital age. The IT reforms will enable more hearings to take place through video links with courts, and they reduce the costs of transporting prisoners to court, thus facilitating 90,000 cases a year to be heard in prison rather than court. Other pre-trial hearings will no longer be needed because judges and lawyers will agree the management of cases via computer links. These changes, it must be kept in mind, are not driven by juridical preferences but rather by shortage of allocated resources. The Ministry of Justice budget will fall over the period 2015/16 to 2019/20 from £6.2 billion to £5.6 billion, a fall of 15 per cent.

9.3 The Crown Court

Until 1971, the main criminal courts were the Assizes and the Quarter Sessions. These courts did not sit continuously and were not held in locations that corresponded with centres of population, as had been the case when they developed. The system was very inefficient as circuit judges wasted much time simply travelling from one town on the circuit to the next, and many defendants spent long periods in gaol awaiting trial.

Change was made following the Report of the Beeching Royal Commission on Assizes and Quarter Sessions (1969). The Courts Act 1971 abolished the Assizes and Quarter Sessions. These were replaced by a single Crown Court, a part of the Supreme Court of Judicature. The Crown Court is not a local court like the magistrates’ court, but a single court which sits in 77 centres. England and Wales are divided into six circuits, each with its own headquarters and staff. The centres are divided into three tiers. In first-tier centres, High Court judges hear civil and criminal cases, whereas circuit judges and recorders hear only criminal cases. Second-tier centres are served by the same types of judge, but hear criminal cases only. At third-tier centres, recorders and circuit judges hear just criminal cases.

Criminal offences are divided into three classes according to their gravity.

9.3.1 The Judges

High Court judges are usually from the Queen’s Bench Division (QBD). Circuit judges are full-time appointments made by the Queen on the advice of the Lord Chancellor. They are drawn from advocates with at least seven years’ experience of Crown Court practice (s 71 of the CLSA 1990) or lawyers who have been recorders. Appointment is also possible for someone who has had three years’ experience in a number of other judicial offices like that of the district judge (magistrates’ courts). Circuit judges retire at the age of 72, or 75 if the Lord Chancellor thinks it in the public interest.

The Courts Act 2003, ss 65–67, introduced greater flexibility in the deployment of judicial resources, allowing district judges (magistrates’ courts) to deal with and make orders in relation both to allocation and to other interim issues in cases reserved to the Crown Court. High Court judges, circuit judges and recorders are able to sit as magistrates when exercising their criminal and family jurisdiction.

A circuit judge may be removed from office by the Lord Chancellor on the grounds of incapacity or misbehaviour (s 17(4) of the Courts Act 1971). This right has not been exercised since 1983, when Judge Bruce Campbell, an Old Bailey judge, was removed from office a week after being convicted of two charges of smuggling.

To qualify for appointment as a recorder, a person must have seven years’ experience of advocacy in the Crown Court or County Courts. JPs may also sit in the Crown Court, provided they are with one of the types of judge mentioned above. It is mandatory for between two and four JPs to sit when the Crown Court is hearing an appeal or dealing with persons committed for sentence by a magistrates’ court.

9.3.2 Jurisdiction

The Crown Court hears all cases involving trial on indictment. It also hears appeals from those convicted summarily in the magistrates’ courts. At the conclusion of an appeal hearing, it has the power to confirm, reverse or vary any part of the decision under appeal (s 48(2) of the Senior Courts Act 1981). If the appeal is decided against the accused, the Crown Court has the power to impose any sentence that the magistrates could have imposed, including one that is harsher than the one originally imposed on the defendant.

9.3.3 Delay and other Concerns Regarding Crown Court Proceedings

Defendants committed to the Crown Court to be tried might have to wait a long time. The Judicial and Court Quarterly Statistics, January – March 2014 (Ministry of Justice, June 2014) reports that:

For cases completing at the Crown Court during Q1 2014, the number of days from offence to completion has remained unchanged at 304 days when compared with the same quarter in the previous year. However, changes can be seen when looking at the time spent in the magistrates’ courts and the Crown Court. When comparing Q1 2014 with Q1 2013, the time spent at the magistrates’ courts between first hearing and being sent to the Crown Court has fallen from 26 days to 8 days, whereas the time spent at the Crown Court has increased from 139 days to 155 days. This is mainly the result of the national abolition of committal hearings for triable either way cases.

Ever since the Streatfield Committee Report recommended in 1961 that the maximum time a defendant should have to wait after committal for trial should be eight weeks, there have been many schemes to help achieve this aim, but none has been particularly successful. Since 1985, for example, a person charged with an offence triable ‘either way’ can request the prosecution to furnish them with information (in the form of witness statements, a summary of the case, etc) of the case against them. This was aimed at increasing the number of guilty pleas by showing to the defendant at an early stage the strength of the prosecution’s case.

When one remembers that the average time to try a case on a plea of ‘not guilty’ is about 14 hours, the burden of work on the Crown Court – dealing with over 90,000 trials and almost 120,000 defendants each year – is considerable. The consequent delay has very serious repercussions for the criminal justice system: justice delayed is justice denied. The accuracy of testimony becomes less reliable the longer the gap between the original reception of the data by a witness and his account of it in court. Also important is the stress and pain for those innocent defendants who have to wait so long before their case can be put to a jury.

9.4 Magistrates’ Courts v Crown Courts

For offences triable ‘either way’, there has been much debate about the merits of each venue. The introduction of the ‘plea before venue’ procedure previously described has significantly reduced the number of cases committed for trial to the Crown Court and significantly increased the number committed for sentence. In 2013, 68 per cent of defendants pleaded guilty to all counts, 30 per cent pleaded not guilty to at least one count, and 2 per cent did not enter a plea. Since 2001, the guilty plea rate has steadily risen from 56 per cent to the current rate of 68 per cent. Initiatives in the Crown Court and other agencies, such as offering an early plea sentencing discount (a more lenient sentence if the defendant pleads guilty early) and providing early charging advice from the Crown Prosecution Service at police stations, have helped to increase the guilty plea rate.

One of the reasons defendants choose to have their cases tried at the Crown Court is that prosecution cases sometimes fall apart during the delay before a Crown Court hearing, allowing the defendant to go free. Another is that juries cannot be compelled to give reasons for convicting, unlike magistrates, who can be required to justify their reasons in writing for review in the High Court, which can overturn convictions or acquittals. Thus, there is a greater chance with jury convictions that an appeal court will regard a conviction (should there be one) as unsafe and unsatisfactory because the jury’s reasons for having convicted will not be known. Thus, a defendant who suspects that they might be convicted can reasonably prefer to be convicted by a jury than by a magistrate because the former do not and cannot give reasons for their verdicts and are therefore perhaps easier to appeal. Jury verdicts are arguably more likely to be regarded as unsafe on appeal because it will not be known whether some improper factor (like a judge’s misdirection) had entered their deliberation. The reports of the Court of Appeal (Criminal Division) contain many cases where the court states that a conviction should be quashed because a misleading statement from the judge might have influenced the jury. It might be said that a defendant should prefer the magistrates’ court as the sentencing is generally lower, but when the defendant’s antecedents are known (after a conviction), they can still be committed to the Crown Court for sentence, so the magistrates’ courts are not really preferable to a defendant with a criminal record who fears another conviction is likely.

However, it is worth remembering that the Crown Court has more draconian powers of sentence compared to the magistrates’ court – for example on a burglary it can sentence a defendant to 14 years’ imprisonment whereas a magistrates’ court’s limit is six months.

9.5 Criminal Appeals

The process of appeal depends upon how a case was originally tried, whether summarily or on indictment.

9.5.1 Appeals from Magistrates’ Courts

Two routes of appeal are possible. The first route allows only a defendant to appeal. The appeal is to a judge and between two and four magistrates sitting in the Crown Court and can be: (a) against conviction (only if the defendant pleaded not guilty) on points of fact or law; or (b) against sentence. Such an appeal will take the form of a new hearing of the entire case (a trial de novo). In 2013, 44 per cent of appellants to the Crown Court had their appeals allowed or their sentences varied (Court Statistics (Quarterly), January – March 2014, Ministry of Justice, 2014).

Alternatively, the defendant can appeal ‘by way of case stated’ to the High Court (the Divisional Court of the QBD). This court consists of two or more judges (usually two), of whom one will be a Lord Justice of Appeal. Here, either the defence or the prosecution may appeal, but the grounds are limited to: (a) a point of law; or (b) that the magistrates acted beyond their jurisdiction. If the prosecution succeeds on appeal, the court can direct the magistrates to convict and pass the appropriate sentence. There is also an appeal by way of case stated from the Crown Court to the Divisional Court when the Crown Court has heard an appeal from the magistrates’ court.

Appeal from the Divisional Court is to the Supreme Court. Either side may appeal, but only on a point of law and only if the Divisional Court certifies the point to be one of general public importance. Leave to appeal must also be granted either by the Divisional Court or the Supreme Court. Some magistrates’ court decisions (not including conviction and sentence) can be appealed by way of a judicial review to the High Court if the magistrates were acting unlawfully, irrationally, in a way that was procedurally unfair, as a result of bias or in breach of the Human Rights Act 1998. Such decisions include a refusal to grant an adjournment, a decision to amend a charge or a decision to refuse bail.

Section 142(2) of the Magistrates’ Courts Act 1980 gives the magistrates themselves power to re-open a case at the request of the defendant and to either set the conviction aside or vary or rescind an order made, if it is ‘in the interests of justice to do so’. Rule (2009) suggests that this test has been too restrictively applied in R v Croydon Youth Court ex parte DPP (1997) and that the requirements of Art 6 ECHR must also be taken into account when construing s 142(2) (see: P Rule, Criminal Law and Justice Weekly, 3 April 2009).

9.5.2 Appeals from the Crown Court: Defence

Appeals from the Crown Court in relation to trials on indictment lie to the Court of Appeal (Criminal Division), which hears appeals against conviction and sentence. Under s 28 of the Senior Courts Act 1981, the High Court has jurisdiction to hear cases stated by the Crown Court for an opinion of the High Court. The statute specifically excludes judgments and decisions relating to trials on indictment. Either party, prosecution or defence, can apply to the Crown Court to have a case stated on the ground that a decision is wrong in law or is in excess of jurisdiction. The procedure for such applications is set out in s 28A of the Senior Courts Act.

This court was established in 1966. The Division usually sits in at least two courts – one composed of the Lord Chief Justice sitting with two judges of the QBD and the other of a Lord Justice of Appeal and two Queen’s Bench judges.

During 2013, a total of 6,851 applications for leave to appeal were received, a 10 per cent reduction on 2012. Of these, 1,554 were against conviction in the Crown Court and 4,997 against the sentence imposed. Of the 6,851 applications for leave to appeal, 4,863 (71 per cent) were considered by a single judge; and of these, 1,154 (17 per cent) were granted. During 2012, a total of 7,610 applications for leave to appeal were received, a 2 per cent increase on 2011 and a 10 per cent increase on 2006. Of these, 1,697 were against conviction in the Crown Court and 5,644 against the sentence imposed, the highest figures since 2006. Of the 7,610 applications for leave to appeal, 5,663 (74 per cent) were considered by a single judge; 1,541 (27 per cent) of these were granted.

All appeals against conviction and sentence must first have leave of the Court of Appeal or a certificate of fitness for appeal from the trial judge before the appeal can be taken. The Criminal Appeal Act (CAA) 1968 requires the Court of Appeal to allow an appeal against conviction under s 1 of the CAA 1968, an appeal against verdict under s 12 (insanity) or an appeal against a finding of disability (s 14) if it thinks that the conviction, verdict or finding is ‘unsafe’. Before the passage of the Criminal Appeal Act (CAA) 1995, the law used the formula that the verdict was ‘unsafe or unsatisfactory’.

During the parliamentary passage of the Act, there was much heated debate about whether the new provisions were designed to narrow the grounds of appeal. That would amount to a tilt in favour of the state in that it would make it harder for (wrongly) convicted people to appeal. Government ministers insisted that the effect of the new law was simply to restate or consolidate the practice of the Court of Appeal. One government spokesman said that:

In dispensing with the word ‘unsatisfactory’, we agree with the Royal Commission on criminal justice that there is no real difference between ‘unsafe’ and ‘unsatisfactory’; the Court of Appeal does not distinguish between the two.

Retaining the word ‘unsatisfactory’ would imply that we thought there was a real difference and would only lead to confusion.

There were many attempts during the legislation’s passage to insert the words ‘or may be unsafe’ after the word ‘unsafe’. The Law Society, the Bar, Liberty and JUSTICE called on the government to make such a change. Also opposed to the use of the single word ‘unsafe’ was the eminent criminal law expert Professor JC Smith. The late Professor Smith argued cogently that there were many cases where a conviction was seen as ‘unsatisfactory’ rather than ‘unsafe’, so that there was a need for both words. Sometimes, the Court of Appeal might be convinced that the defendant is guilty (so the conviction is ‘safe’) but still wishes to allow the appeal because fair play, according to the rules, must be seen to be done. Accepting improperly extracted confessions (violating s 76 of the Police and Criminal Evidence Act (PACE) 1984) simply because it might seem obvious that the confessor is guilty will promote undesirable interrogation practices, because police officers will think that even if they break the rules, any resulting confession will nevertheless be allowed as evidence.

Professor Smith gave the example ((1995) 145 NLJ 534) of where there has been a serious breach of the rules of evidence. In Algar (1954), the former wife of the defendant testified against him about matters during the marriage. The Court of Appeal allowed his appeal against conviction, but Lord Goddard said: ‘Do not think that we are doing this because we think that you are an innocent man. We do not. We think that you are a scoundrel’ (The Times, 17 November 1953). The idea behind such remarks is that rules are rules, and the rules of evidence must be obeyed in order to ensure justice. Once you start to accept breaches of the rules as being justified by the outcome (ends justifying means), then the whole law of evidence could begin to collapse.

The proposal to include ‘or might be unsafe’ was rejected for the reason probably best summarised by Lord Taylor, the then Lord Chief Justice, who argued in the Lords that there was no merit in including the words ‘or may be unsafe’, as the implication of such doubt is already inherent in the word ‘unsafe’.

Cases decided since the new formula was introduced have tended to indicate that the Court of Appeal has not adopted an entirely restrictive interpretation. Thus, a conviction was quashed as unsafe in Smith (Patrick Joseph) (1999) because of irregularities at trial, even though the accused had admitted his guilt during cross-examination. The Human Rights Act (HRA) 1998, incorporating the European Convention on Human Rights (ECHR), introduced a further significant element into the consideration of this issue. Article 6 ECHR, to which English courts must give effect unless incompatible with an Act of Parliament, gives the defendant a right to a fair trial. Irregularities in a trial, including misdirections by the judge, admission of improperly obtained evidence and so on, might cast doubt on the fairness of the trial without necessarily making the conviction unsafe on a narrow view of that word. In Davis (2001), the Court of Appeal suggested that since a conviction might be unsafe even where there was no doubt about guilt, but there were serious irregularities at the trial, English rules on appeals were compatible with Art 6. However, it went on to argue that a violation of Art 6 did not necessarily imply that the conviction must be quashed. Subsequently, Lord Woolf CJ argued in Togher (2000) that obligations under the ECHR meant that it was almost inevitable that if the accused had been denied a fair trial, his conviction would have to be regarded as unsafe. Confusingly the European Court of Human Rights itself does not always follow the restrictive approach, appearing to use consequentialist reasoning to justify using evidence obtained in violation of Art 3 ECHR (the prohibition against torture and inhuman and degrading treatment) in a criminal trial in the case of Gäfgen v Germany (2011).

The Davis decision was appealed to the House of Lords, where the reasoning and approach of the appellate court was confirmed as correct (2008). The Davis decision on the compatibility of anonymous witnesses with the demands of Art 6 ECHR should now be read in conjunction with the Horncastle decision of the UK Supreme Court ([2009] UKSC 14) and the affirmation of the Supreme Court’s decision by the Grand Chamber of the European Court of Human Rights in Al-Khawaja v United Kingdom (2012). The upshot of these decisions is that Art 6 will not automatically be breached where hearsay statements amount to the ‘sole and decisive’ evidence in a criminal trial.

The Court is also vigilant about the operation of s 78 of the Police and Criminal Evidence Act (PACE) 1984, which allows a court to exclude unfair evidence or unfairly obtained evidence. Section 78 operates as a so-called exclusionary discretion rule.

The question may arise as to whether the Court of Appeal should receive fresh evidence. There is a discretion under s 23(1) of the CAA 1968 to receive fresh evidence if it is thought necessary or expedient in the interests of justice. Section 23(2) provides a set of criteria which the court must consider. They are:

whether the evidence appears to the court to be capable of belief;
whether it appears to the court that the evidence may afford any ground for allowing the appeal;
whether the evidence would have been admissible at the trial on the issue under appeal; and
whether there is a reasonable explanation for the failure to adduce the evidence at trial.

9.5.3 Appeals from the Crown Court: Prosecution Appeals and Related Procedures

The prosecution has only limited rights of appeal, which may or may not affect the individual defendant in the case. There is no right of appeal as such against a defendant who has been acquitted, unless s 75 of the Criminal Justice Act 2003 applies (the abolition of the double jeopardy rule, discussed below). The options open to the prosecution if they are dissatisfied with the outcome of Crown Court proceedings are as follows.

The (limited) procedure for either party to apply to the Crown Court for a case to be stated to the High Court is discussed above at 9.5.2.

Attorney General’s reference on a point of law

Under s 36 of the CJA 1972, the Attorney General can refer a case which has resulted in an acquittal to the Court of Appeal where he or she believes the decision to have been questionably lenient on a point of law. The Court of Appeal deals just with the point of law and the defendant’s acquittal is not affected even if the court decides the point against the defendant. It merely clarifies the law for future cases.

Attorney General’s reference on sentence

Sections 35–36 of the CJA 1988 allow the Attorney General to refer indictable-only cases to the Court of Appeal where the sentence at trial is regarded as unduly lenient. The Court can impose a harsher sentence.

Application to quash tainted acquittals

The High Court can quash tainted acquittals under s 54 of the Criminal Procedure and Investigations Act (CPIA) 1996. An acquittal is ‘tainted’ where someone has since been convicted of conspiring to pervert the course of justice in the case by interfering with the jury.

Prosecution appeals in respect of Crown Court rulings short of acquittal

Part 9 of the Criminal Justice Act (CJA) 2003 provides for prosecution appeals in respect of rulings in Crown Court trials which terminate the case. The right of appeal arises only in trials on indictment and lies to the Court of Appeal (s 57). Under s 57(2) the prosecution are prohibited from appealing rulings on discharge of the jury and those rulings that may be appealed by the prosecution under other legislation, for example, appeals from preparatory hearings against rulings on admissibility of evidence and other points of law.

Section 57(4) provides that the prosecution must obtain leave to appeal, either from the judge or the Court of Appeal.

Section 58 sets out the procedure that must be followed when the prosecution wishes to appeal against a terminating ruling, whether rulings that are formally terminating and those that are de facto terminating in the sense that they are so fatal to the prosecution case that, in the absence of a right of appeal, the prosecution would offer no or no further evidence. It applies to rulings made at any time before the start of the judge’s summing up to the jury.

Where the prosecution fails to obtain leave to appeal or abandons the appeal, the prosecution must agree that an acquittal follow (s 58(8) and (9)).

Section 59 provides two alternative appeal routes: an expedited (fast) route and a non-expedited (slower) route. The judge must determine which route the appeal will follow (sub-s (1)). In the case of an expedited appeal, the trial may be adjourned (sub-s (2)). If the judge decides that the appeal should follow the non-expedited route, he or she may either adjourn the proceedings or discharge the jury, if one has been sworn (sub-s (3)). Sub-section (4) gives both the judge and the Court of Appeal power to reverse a decision to expedite an appeal, thus transferring the case to the slower non-expedited route. If a decision is reversed under this sub-section, the jury may be discharged.

Section 61 sets out the powers of the Court of Appeal when determining a prosecution appeal (and see s 67).

Section 61(1) authorises the Court of Appeal to confirm, reverse or vary a ruling that has been appealed against. After the Court of Appeal has ordered one or other of these disposals, it must then always make it clear what is to happen next in the case.

When the Court of Appeal confirms a ruling, it must then order the acquittal of the defendant(s) for the offence(s) which are the subject of the appeal (s 61(3) and (7)).

When the Court of Appeal reverses or varies a ruling, it must either order a resumption of the Crown Court proceedings or a fresh trial, or order the acquittal of the defendant(s) for the offence(s) under appeal (s 61(4) and (8)). The Court of Appeal will only order the resumption of the Crown Court proceedings or a fresh trial where it considers it necessary in the interests of justice to do so (s 61(5) and (8)).

Prosecution application for a retrial

The Criminal Justice Act also allows for the retrial of serious offences.

Section 75 sets out the cases that may be retried under the exception to the normal rule against double jeopardy. These cases all involve serious offences which in the main carry a maximum sentence of life imprisonment, and which are considered to have a particularly serious impact either on the victim or on society more generally. The offences to which the provisions apply are called ‘qualifying offences’ and are listed in Sched 5 to the Act. They include murder, manslaughter, rape and arson endangering life.

The cases that may be retried are those in which a person has been acquitted of one of the qualifying offences, either on indictment or following an appeal, or of a lesser qualifying offence of which he could have been convicted at that time. This takes into account cases of ‘implied acquittals’, in which, under the current law, an acquittal would have prevented a further prosecution being brought for a lower-level offence on the same facts. For example, an acquittal for murder may also imply an acquittal for the lower-level offence of manslaughter, but new evidence may then come to light, which would support a charge of manslaughter. A person may only be retried in respect of a qualifying offence.

In certain circumstances, cases may also be tried where an acquittal for an offence has taken place abroad, so long as the alleged offence also amounted to a qualifying offence and could have been charged as such in the UK. This would include, for example, offences such as war crimes, and murder committed outside the UK, for which the courts in England and Wales have jurisdiction over British citizens abroad. Such cases are likely to be rare. Sub-section (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions.

Prosecutor’s application

Section 76 allows a prosecutor to apply to the Court of Appeal for an order that quashes the person’s acquittal and orders him or her to be retried for the qualifying offence. A ‘prosecutor’ means a person or body responsible for bringing public prosecutions, such as the Crown Prosecution Service or HM Customs and Excise. Where a person has been acquitted outside the UK, the court will need to consider whether or not the acquittal would act as a bar to a further trial here and, if it does, the court can order that it must not be a bar.

Applications to the Court of Appeal require the personal written consent of the Director of Public Prosecutions (DPP). This provides a safeguard to ensure that only those cases in which there is sufficient evidence are referred to the Court of Appeal. The DPP will also consider whether it is in the public interest to proceed. This section also recognises any international obligations arising under the Treaty of the European Union, under which negotiations are taking place to support the mutual recognition of the decisions of the courts in other EU Member states.

Applications may also be brought by public prosecuting authorities if new evidence arises in cases that have previously been tried by means of a private prosecution.

Only one application for an acquittal to be quashed may be made in relation to any acquittal. In March 2006, a man accused of a 1989 murder became the first person to have his case referred to the Court of Appeal under this procedure. The body of Julie Hogg, 22, from Teesside, was found hidden behind her bath by her mother, Ann Ming. William Dunlop, 42, was acquitted of Ms Hogg’s murder. In April 2005, police said they were to re-examine the case of Ms Hogg. William Dunlop previously faced two murder trials, but each time the jury failed to reach a verdict and he was formally acquitted in 1991. The then Director of Public Prosecutions, Ken Macdonald, said that after looking at submissions from the Chief Crown Prosecutor for Cleveland, Martin Goldman, he was satisfied the Crown Prosecution Service should apply to the Court of Appeal for a retrial. The Court of Appeal heard this application and ordered a retrial of Dunlop under s 75. In October 2006 he pleaded guilty to murdering Ms Hogg and was sentenced to life imprisonment. The Court of Appeal had applied s 75 when the CPS applied for a rehearing of Dunlop’s case and felt that: (1) a jury could be selected which would not have any prior knowledge of Dunlop’s earlier conviction; (2) any such recollection was outweighed by the fact that Dunlop had repeatedly confessed to Ms Hogg’s murder since his acquittals in 1991 and that he had been convicted of perjury in relation to his denial of that offence; (3) the delay did not render a retrial unfair; (4) the new evidence under s 78 was both compelling and overwhelming (it consisted of Dunlop’s repeated confessions) and he was in no position to rebut the new evidence; and (5) justice required that he face a retrial.

As the first example of this new procedure these comments by the Court of Appeal are clearly important. This provision was subsequently invoked by the Court of Appeal to quash the acquittal of Gary Dobson for the murder of the black teenager Stephen Lawrence in 1993 (R v Dobson (2011)) (see also 1.3.5). Following Dobson’s second trial in 2011, he was convicted of murder.

Determination by the Court of Appeal

Section 77 sets out the decisions that the Court of Appeal may make in response to an application for an acquittal to be quashed. The court must make an order quashing an acquittal and ordering a retrial if it considers that the requirements set out in ss 78 and 79 of the Act are satisfied, namely that there is new and compelling evidence in the case, and that it is in the interests of justice for the order to be made. The court must dismiss an application where it is not satisfied as to these two factors.

New and compelling evidence

Section 78 sets out the requirement for there to be new and compelling evidence against the acquitted person in relation to the qualifying offence, and defines evidence which is ‘new and compelling’. Evidence is ‘new’ if it was not adduced at the original trial of the acquitted person. Evidence is ‘compelling’ if the court considers it to be reliable and substantial and, when considered in the context of the outstanding issues, the evidence appears to be highly probative of the case against the acquitted person. The court is thus required to make a decision on the strength of the new evidence. So, for example, new evidence relating to identification would only be considered ‘compelling’ if the identity of the offender had been at issue in the original trial. It is not intended that relatively minor evidence, which might appear to strengthen an earlier case, should justify a retrial.

Interests of justice

Section 79 sets out the requirement that in all the circumstances it is in the interests of justice for the court to quash an acquittal and order a retrial. In determining whether it is in the interests of justice, the court will consider in particular: whether there are existing factors that make a fair trial unlikely (for example, the extent of adverse publicity about the case); the length of time since the alleged offence was committed; and whether the police and prosecution acted with due diligence and expedition in relation to both the original trial and any new evidence. The court may take into account any other issues it considers relevant in determining whether a retrial will be in the interests of justice.

The Criminal Justice and Immigration Act 2008 alters the test for ordering a retrial in England and Wales (or that the trial should resume) where the Court of Appeal allows a prosecution appeal against a terminating ruling. The original CJA 2003 provided that a court should not order a resumed or fresh trial unless it considered it necessary in the interests of justice to do so. Now, under s 44 of the 2008 Act, the court may not order that the defendant be acquitted unless it considers that he could not receive a fair trial/retrial.

9.6 Criminal Appeals to the Supreme Court

Following the determination of an appeal by the Court of Appeal or by the Divisional Court, either the prosecution or the defence may appeal to the Supreme Court. Leave from the court below or the Supreme Court must be obtained and two other conditions fulfilled according to s 33 of the CAA 1968:

(1) the court below must certify that a point of law of general public importance is involved; and
(2) either the court below or the Supreme Court must be satisfied that the point of law is one which ought to be considered by the Supreme Court.

Section 68(1) of the CJA 2003 amends s 33(1) of the Criminal Appeal Act 1968 to give both the prosecution and defence a right of appeal to the Supreme Court from a decision by the Court of Appeal on a prosecution appeal against a ruling made under Part 9 of the Act.

9.7 Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council was created by the Judicial Committee Act 1833. Under the Act, a special committee of the Privy Council was set up to hear appeals from the Dominions. The cases are heard by the judges (without wigs or robes) in a committee room in London. The Committee’s decision is not a judgment but an ‘advice’ to the monarch, who is counselled that the appeal be allowed or dismissed.

The Committee is the final court of appeal for certain Commonwealth countries that have retained this option, and from some independent members and associate members of the Commonwealth. The Committee comprises Privy Councillors who are Justices of the Supreme Court.

Most of the appeals heard by the Committee are civil cases. In the rare criminal cases, it is only on matters involving legal questions that appeals are heard. The Committee does not hear appeals against criminal sentence.

The decisions of the Privy Council are very influential in English courts because they concern points of law that are applicable in this jurisdiction and they are pronounced upon by Supreme Court Justices in a way that is tantamount to a Supreme Court ruling. These decisions, however, are technically of persuasive precedent only, although English courts normally follow them; see, for example, the criminal appeal case Abbot v R (1977). This was an appeal from Trinidad and Tobago. The Privy Council ruled that duress is no defence to the perpetrator of murder.

9.9 A Miscarriage of Justice: Some Lessons for the Criminal Justice System

One of the English legal system’s worst miscarriages of justice cases in recent history was exposed in the Court of Appeal in February 1998. In 1979, Vincent Hickey, Michael Hickey, Jimmy Robertson and Pat Molloy, who became known as the Bridgewater Four, were convicted of the murder of a 13-year-old boy, Carl Bridgewater. Although the men were not angelic characters (and two had serious criminal records), they strenuously protested that they were not guilty of the horrific child murder.

Eighteen years later, and after two earlier failed visits to the Court of Appeal and seven police investigations, three of the men were released on 21 February 1998 on unconditional bail in anticipation of an appeal hearing in April. The fourth defendant, Mr Molloy, died in jail in 1981. The appeal was eventually allowed.

The Crown had conceded that the case against the men was ‘flawed’ by evidence falsified and fabricated by police officers. There had also come to light significant finger-print evidence, tending to exonerate the four, which was not disclosed to the defence by the prosecution. Mr Molloy was questioned for 10 days without access to a solicitor, and a fabricated statement from Vincent Hickey was used to persuade Mr Molloy to confess to the crime. Before he died, Mr Molloy claimed he had been beaten by police officers in the course of his interrogation. The former police officers alleged to have falsified the evidence were investigated but not prosecuted.

The case was given extensive coverage in the print and broadcast media in February 1997 and made a significant impact upon public consciousness. It did not reach the Court of Appeal through the Criminal Cases Review Commission, which had only been set up the year before. This major case raises many points germane to the operation of the criminal justice system. The following are of particular importance.

The case was originally investigated in 1978, before PACE 1984 had been passed. The requirements under PACE 1984 for suspects to be given access to legal advice (s 58, Code C) and for interviews to be recorded (s 60, Code E) may have reduced or eliminated the opportunity for police malpractice of the sort which occurred in the Bridgewater case.

Although the criminal justice system ultimately corrected an injustice, this result was achieved primarily through the indefatigable efforts of a few dedicated family members, campaigning journalists and Members of Parliament who would not let the issue disappear from the public forum. The case attracted attention because of the terrible nature of the crime – a child murder. It is quite possible that many other unjust convictions in cases with more mundane facts are never propelled into public discussion or overturned.

Miscarriages of justice cases involve two types of insult to notions of legal fairness: (a) the wrongly imprisoned endure years of incarceration; and (b) the real culprits (a child killer in the Bridgewater case) are never identified and could well go on to commit other offences.

The men were released due to the discovery of evidence that had been fabricated and falsified; yet the CPIA 1996 restricts defence access to prosecution evidence.

The CCRC was established to re-evaluate alleged cases of miscarriages of justice. One criticism of it has been that it does not have its own independent investigators, but must rely on police officers to re-examine cases.

The jury is only as good as the information and arguments put before it allows it to be. After the prosecution’s case had been devastated by the discovery of new scientific evidence in 1993 (a forensic psychiatrist showed that Molloy’s ‘confession’ used language the suspect would not have used), the foreman of the jury from the 1979 trial risked prosecution for contempt of court by issuing a statement to say that he thought that the men were not guilty. He, along with another juror, said they regretted that they had not been given all the evidence that was available at the time of the trial.

Chapter Summary: The Criminal Courts

The Main Courts

The trial courts are the magistrates’ courts and Crown Courts. In serious offences, known as indictable offences, the defendant is tried by a jury in a Crown Court; for summary offences, he or she is tried by magistrates; and for ‘either-way’ offences, the defendant can be tried by magistrates if they agree, but he or she may elect jury trial in the Crown Court.

The main issues here concern the distribution of business between the magistrates’ court and Crown Courts: what are the advantages of trial in the magistrates’ court: (a) for the state; and (b) for the defendant? Conversely, what are the disadvantages?

Appeals

Criminal appeals from the magistrates go to the Crown Court or to the QBD Divisional Court ‘by way of case stated’ on a point of law or that the JPs went beyond their proper powers, or by way of judicial review. If the prosecution succeeds on appeal, the court can direct the magistrates to convict and pass the appropriate sentence. There is also an appeal by way of case stated from the Crown Court to the Divisional Court when the Crown Court has heard an appeal from the magistrates’ court. From the Crown Court, appeals against conviction and sentence lie to the Court of Appeal (Criminal Division). The High Court has jurisdiction to hear cases stated by the Crown Court for an opinion. The prosecution has some, limited, options to refer or appeal aspects of Crown Court decisions to the Court of Appeal.

The Judicial Committee of the Privy Council hears final appeals from some Commonwealth countries and its decisions are of persuasive precedent in English law.

Review after Appeal

In an attempt to deal with possible miscarriages of justice, and following the recommendations of the Royal Commission on Criminal Justice in 1993 (the Runciman Commission), the Criminal Appeal Act 1995 established the Criminal Cases Review Commission (CCRC). The CCRC has power to investigate and to refer cases to the Court of Appeal (or, where appropriate, the Crown Court) where it considers that there is a real possibility of an appeal succeeding.

The Coroners’ Courts

These are not part of the criminal justice system. Their main function is to decide the cause of unnatural deaths. Verdicts such as unlawful killing might result in other legal processes like criminal prosecutions or human rights claims.

Useful Websites

www.justice.gov.uk/about/hmcts/
The official website of Her Majesty’s Courts and Tribunals Service.

www.magistrates-association.org.uk
The official website of the Magistrates’ Association.

www.justice.gov.uk
The official website of the Criminal Justice System.

Companion Website

Now visit the companion website to:

test your understanding of the key terms using our Flashcard Glossary;
revise and consolidate your knowledge of ‘The criminal courts’ using our multiple choice question testbank;
view all of the links to the Useful Websites above.

Total applications:	21,831
Cases waiting:	306
Cases under review:	689
Completed:	20,831 (including ineligible), 629 referrals
Heard by Court of Appeal:	617 (190 quashed, 414 upheld)

9.2.1 Summary Trial

9.2.2 Offences Triable ‘Either Way’

9.2.3 Sentencing in the Magistrates’ Courts

Committals for sentence

Warrant execution and fine default powers

9.2.4 Youth Courts

9.2.5 Indictable Offences – Sending to the Crown Court