Criminal Proceedings. A Basic Guide from Criminal Defence Solicitors.

Introduction to Criminal Proceedings.

Criminal Law is law which involves the state bringing a prosecution against an individual. Only crimes (or offences) which already exist in law can be used to prosecute people. These are set by Parliamentary Law (statutes like the Theft Act 1968) or by previously decided case history in the courts (common law).

Innocent until proven Guilty?

Criminal defence solicitors will tell you that for many people who find themselves on the wrong side of the law it can often feel as if the very opposite is true. But it is still the case that the Prosecution has to show the court that the person has committed the offence to a level of certainty which is very high. In the eyes of the Criminal Courts, 'not sure' is not guilty.

Juries and Judges

In the criminal courts, there are two levels of court that conduct trials, sentences, and all other procedural hearings. The first level is the Magistrates Court. This court deals with less serious types of offence, such as most motoring offences, or low-value thefts, and less serious assaults. However, this court can still impose prison sentences but they are limited to a maximum of 6 months for any single offence. An experienced criminal defence solicitor will tell you that despite the limited sentencing power conviction rates in Magistrates' Courts are far higher than the Crown Court.

In the Magistrates Court, procedural and legal issues are dealt with by part-time judges called Magistrates, or by a District Judge who is a former lawyer. Magistrates are people from the community who become judges on a voluntary basis after being given their own introduction to criminal law in the form of basic legal training. They are helped by the Court Clerk, who is a qualified lawyer, whose job it is to make sure they get the law right. The District Judge is a qualified, paid judge. They can appear as a judge on their own, but the magistrates (sometimes called Lay Magistrates or a Lay Bench) must appear with two or three in court at any one time.

In the Magistrates Court, there are no Juries. The Lay Magistrates or the District Judge decide not only on the law but also decide if someone is guilty or not guilty. This means that for some less serious offences, there is no right to trial by jury, which can be a shock to someone going through criminal proceedings for the first time.

In the Crown Court, a jury will be first told that they have to find the defendant guilty or not guilty by unanimous vote. A majority of 9 to 3 is not enough. If the jury cannot come to a unanimous verdict, a judge might tell them that a majority verdict will do, this being 10 of the 12 members of the jury in agreement. If no verdict can still be reached the case ends in what is called a 'hung jury' the prosecution then have 28 days to decide if they want to try again at a new trial.

What the Prosecution must prove

The prosecution must prove two things before a person can be convicted of an offence. They must prove that the person did something illegal and that he meant it (there are a few exceptions to this rule which any criminal defence solicitor will be able to advise you on). They must prove that the person committed the offence. Secondly, they have to prove that the person knew it was wrong, or that they knew they were doing it. To simplify, they must prove that the person accused did it, and did it on purpose.

Defences

Just because someone is guilty of committing an illegal act doesn't always mean that they are guilty of the offence. They might have a defence, or a good reason why they should not be convicted.

My wife made me do it, or I really needed the money aren't usually regarded as a defence. But if someone committed an offence while sleepwalking or protecting themselves or their family, then that could be a defence.

Self Defence / Defence of Someone Else / Defence of Property etc.

If someone commits an offence of violence (such as assault) to prevent getting injured, to prevent someone else from getting injured, or to protect their property, then they might be entitled to a defence. The force (violence) used must be necessary, and reasonable. That means there must be no other obvious course of action to avoid the injury or damage (such as running away), and the level of force used must be proportionate to the threat - so stabbing someone to stop them from scratching your car probably would not count as a defence in law.

However, the jury have to accept the facts as the defendant honestly believed them to be at the time, even if they were mistaken. So if the jury believes that a defendant honestly thought that his attacker had a knife and so attacked him, the jury have to take that belief into account, even if he was only holding a broom handle. Then they can consider whether his reaction, for example stabbing the attacker first, was a reasonable action.

There are a few other defences to offences of violence. They include:

• The Prevention of a crime in progress

• Citizen's / Police arrest

• Duress

Mental Defences

There are other defences which relate to the mental state of the person accused of the offence. They include:

Automatism

This is a defence when the criminal act has been done unconsciously and involuntarily. An example could be sleepwalking, or being in a trance, or even hypo/hyperglycaemia caused by diabetes. There must be a total loss of control of the body and it cannot be self-induced, so alcohol-related blackouts don't count.

Diminished Responsibility

This is a 'partial defence' to murder only. It can reduce murder to manslaughter. The Law says that the defendant must prove that they were suffering from an ‘abnormality of mind' caused by something inherent and which substantially impaired the defendant's responsibility for the killing.

Provocation

This is another partial defence to murder which is not a defence to any other offences. There are two stages to the test for provocation:

• The first is that the defendant must have been provoked and lost their self-control. This depends on the evidence and what the jury decides

• The second stage is to decide whether the provocation was enough to make a reasonable person react in that way

The law says that only the age and sex of the defendant can be taken into account for the second test, so being particularly high strung or sensitive is not to be considered.

The above introduction to some of the basics of criminal proceedings is just a snippet of information and if you find yourself caught up in the criminal justice system it is always best to seek the advice of a criminal defence solicitor.