Setting the Scene

Criminal trials in England and Wales take one of two forms. They are either trials on indictment or summary trials. Trial in the youth court, which might at first sight appear to be a third distinct form of trial, is in fact a special form of summary trial. Parts 2 and 3 of this book will deal in detail with, respectively, summary trial and trial on indictment. The following two Paragraphs will give an indication of the salient characteristics of the two methods of trial.

The Indictment

The indictment is the formal document containing a list of the charges against the accused, to which he pleads either guilty or not guilty at the beginning of his trial on indictment. A jury may try only one indictment at a time: Crane v DPP [1921] AC 299. The law on drafting indictments is contained principally in the Indictments Act 1915 (IA) and the CrimPR, Part 10.

Sentences other than Custody

Chapter 24 dealt with the range of custodial penalties at the court’s disposal. The great majority of offenders, however, are dealt with by some means other than custody, and this Chapter is concerned with the non-custodial options.

Custodial Sentences

This Chapter and the one following describe the sentencing options open to the courts. The general nature of a particular sentence, the age group for which it is intended, and any restrictions on its imposition are explained. The special limitations on the powers of the magistrates’ courts, and on the powers of an adult magistrates’ court when dealing with a juvenile have already been explained (see 10.65 to 10.73, 11.29 to 11.31, and 12.02 to 12.05). This Chapter concentrates upon those sentences which can be described as ‘custodial’. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act 2012) made a number of changes in this field, and those changes are described in the relevant paragraphs.

Trial of Juveniles

A juvenile is normally tried by magistrates in a special form of magistrates’ court, known as the ‘youth court’. In the circumstances described below, it is either obligatory or possible for a juvenile to be tried on indictment (see 11.04 to 11.15) or in the adult magistrates’ court (see 11.17 to 11.18). In all other cases, he must stay in the youth court, even if the offence charged is one which, if he were an adult, either could or would have to be tried on indictment.

The Course of the Trial

The judge at a trial on indictment must be a professional judge (i.e., a High Court judge, circuit judge or deputy circuit judge, or recorder). The distribution of work between these various types of judge is described at 14.14. The prosecution must be legally represented; the accused usually chooses to be so, and will probably be able to obtain representation from the Legal Aid Agency. Although some solicitors now have rights of audience in the Crown Court, legal representation for trial on indictment still usually involves instructing solicitors who in turn brief counsel (see 14.21 to 14.23). The following Paragraphs deal with some aspects of the role of prosecuting and defence counsel, and their relationship with the judge. The discussion is based upon decided cases and also upon the Code of Conduct for the Bar. The Code does not have the force of law, but is of great persuasive value, and a barrister who conforms with its spirit cannot be guilty of a breach of professional discipline.

The Client

This Chapter attempts to give some guidance to those dealing with a client in a criminal matter. It is intended to be of assistance to those who are embarking upon, or are relatively new to practice, as the matters in this particular Chapter will be familiar to a practitioner with some experience. It is not geared particularly to either barristers or solicitors, but takes certain situations where the tasks to be performed and the instructions to be sought are common to both branches of the profession. For ease of presentation it is presented from the point of view of the defence lawyer, but the points made are easily transferable to those who are representing the prosecution.

The Crown Court

The Courts Act 1971 created a new criminal court—the Crown Court—to replace the ancient courts of assize and quarter sessions which had formerly dealt with trials on indictment. The Courts Act has now been largely repealed and its provisions incorporated into the Senior Courts Act 1981 (SCA).

Determining the Sentence

Chapter 22 dealt with the procedure which the court follows prior to passing sentence. The sentencer should therefore have the information upon which to decide sentence. That decision involves a choice between a series of options. In any particular case, the range of options will be in part determined by the circumstances of the offence (e.g., whether it is imprisonable and the maximum punishment which the law lays down) and of the offender (e.g., his age). Usually, however, the sentencer has a fairly wide range of possibilities for disposing of the case. The various options for sentence are considered in detail in Chapters 24 and 25. Without any attempt to be exhaustive, such options include (in roughly increasing order of gravity):

Bail and Remands

The principal subject matter of this Chapter is bail, which may be defined as the release of a person subject to a duty to surrender to custody at an appointed time and place. The time when a person bailed is to surrender to custody may be fixed when bail is granted or, in the case of a person sent on bail to the Crown Court for trial or sentence, it may be notified to him subsequently. The place where he is to surrender is either a court or a police station, usually the former. The granting of bail in criminal proceedings is governed by the Bail Act 1976.