Legal Personnel, The Elements Of Crime And Sentencing
This a review of Beth, John & Janice whereby, I will be discussing the use of lay versus legal personnel and the financing of representation of criminal justice trial process. It also discusses the current law and sentencing trends in relation to non-fatal offenses against the person. Non-fatal offences are defined as common assault, actual bodily harm, grievous bodily harm, and grievous bodily harm with intent.
Turning to the case of Beth who failed to turn Oliver her elderly patient as directed by the doctor. Beth will in the first instance appear before a Magistrate because all criminal cases in England and Wales begin in the Magistrates’ Court. The Magistrates will have to determine whether Beth’s failure to turn Oliver as amounts to the non-fatal offences of actual bodily harm or grievous bodily harm. Magistrates are lay people, which means that they are not legally trained.
Magistrates is an important part of the justice system in England and Wales. They are people from all walks of life who give their time voluntarily to make a difference. Magistrates are recommended by the local advisory committees. They are appointed from lists put forward by the committee. Lay Magistrates do not need to have legal training or formal qualifications. However, some requirements were set out by the Lord Chancellor which is every magistrate must pose these six qualities: good character, understanding and communication, social awareness, maturity and sound temperament, sound judgement and lastly commitment and reliability.
The Magistrates main role is to decide the verdict on whether a suspect is guilty or not guilty. They also have the power to grant bail. An appropriate sentence for defendants who are found guilty is decided. Typically, the magistrate’s courts deal with criminal cases. They determine the best course of action this can be done through deciding whether to remand a suspect in custody, or to grant bail. If bail is granted, they have the power to decide on any condition to impose surrounding their bail.
Before a criminal trial is conducted, magistrates must attend an early administrative hearing where the defendant will be read out the offence which they are being charged with and will be asked to plead guilty or not guilty. A remand hearing is also attended whereby the court decide whether a suspect should be kept in custody pending further court appearance. Lastly bail applications are made to the court in hope the suspect can be granted bail. Consequently, crimes which are too serious to be dealt with at the magistrates would be sent to the Crown Court for trial.
The use of lay magistrates has many advantages and disadvantages. Lay Magistrates come from a wider cross section of society than professional judges. Therefore, there is a greater gender balance as many lay magistrates are female. Lay magistrates save times as it acts as a leeway and enables only serious cases to be heard in the crown court. On the other hand, magistrates lack legal knowledge therefore they may rely too much on the clerk of the court. Another disadvantage is the Inconsistency with sentencing which varies greatly between different Magistrates’ Courts and Lay Magistrates in the same court.
It is not clear from the facts the extent of Oliver’s injuries and the Magistrates will have to determine this. They will have to determine whether the actus reus and Mens rea are present for the offences against Beth. This is a particularly important life changing decision for Beth which could mean that she gets a custodial sentence. There are concerns that the lack of legal training on the part of magistrates does not adequately equip them to make these types of decisions.
The training of lay magistrates is carried out by a court legal adviser and overseen by the judicial college.
There are four areas of training:
- Managing yourself which focuses on the basic aspects of self-management in relation to preparing for court, conduct in court and ongoing learning.
- Working as a member of a team focuses on the team aspect of decision making in the Magistrates’ Court.
- Making judicial decisions focuses on impartial and structured decision making.
- Managing judicial decision making is only for the chair of the bench and focuses on working with the clerk, managing the court, and ensuring effective, impartial decision making.
New magistrates must complete Introductory training:
- Understanding the organisation of the bench, administration of the court and the roles and responsibilities of those involved in the magistrates’ court.
- Core training which provides new magistrates the opportunity to acquire and develop the key skills, knowledge and understanding required of a competent magistrate. Activities – which involves observation of court sittings & visits to prison or probation offices.
There is a lack of diversity in the magistrates.12% of the magistrates are black, Asian or ethnic minority which has therefore left many being sceptical of the justice system among BAM communities as they feel they are underrepresented which may lead them to believing they will be prosecuted harsher. In regard to this, statistic show that ethnic minorities receive harsher penalties compared to the white population.
In the Magistrates’ Court Beth can represent herself however considering the gravity of the charges against her she would be advised to get a solicitor to help her.
The Magistrates can determine that Beth’s case can be heard at that level as a summary offence but they can also decide that the charges are beyond their jurisdiction and decide that Beth’s offences are indictable and should be heard in the Crown Court by a legally trained judge.
In the case of Janice whereby she pushed PC Adamski over which resulted in him requiring brain surgery. Janice case would be tried in the magistrates’ court first but due to the serious nature of the case the magistrate would refer it to the crown court.
A solicitor is a legal practitioner which provides expert advice as they tend to specialise in specific areas of law. Therefore, they would be a member of an accreditation scheme as they have a special expertise in a particular area of law.
In criminal law solicitors undertake numerous roles. One role is defence work this may occur when a suspect is arrested and detained by the police, they have the right to a solicitor for free whereby a solicitor advises them. The case will then be heard in the magistrates’ court where a solicitor can represent the defendant and be paid privately. On the other hand, If the suspect is charged with a serious offence the solicitor will help them to apply for legal representation which covers the cost of initial preparation and representation in court by a solicitor or a barrister. However, if the solicitor has a certificate of Advocacy, they may be able to present the case in the crown court.
Prosecution work is another role solicitor undertake. The crown prosecution services prosecute cases being investigated by the police so solicitors which work for them are required to advise police on the offence to charge a suspect with and whether there is sufficient evidence to form a charge against them.
To qualify as a solicitor, you can complete a qualifying law degree which is then followed by the Legal Practice Course (LPC). However, non-law graduates need to complete a law conversion course which is yearlong. After the LPC is completed, graduates must secure a training contract with a law firm in order to become a fully trained solicitor. A training contract last two years and after completion trainees tend to stay on at the firm. However, this process is incredibly competitive, but it is worth it in the end.
In regard to Jon case. He played a practical joke on his friend Zekia which led to her falling down the stairs and breaking her arm. He is classed as a minor as he is fourteen therefore the law states upon questioning, he is allowed a parent/guardian and a duty solicitor present. The solicitor will advise him on how to answer the questions he will be asked. Jon would be represented by a solicitor at a Youth Court as he is a minor therefore it would be free under legal aid. The solicitor will put the case to the magistrates, after discussing the case with Jon to find out the facts and advise him on how to plead.
Barristers develop and deliver legal arguments on behalf of their clients. They work in chamber and they are usually appointed by solicitors depending on their field of expertise. Barristers study Law at university and then go on to complete the Bar Professional Training Course (BPTC) which is a one-year course they take after completion of their degree. If the barrister client is found guilty, they will make a plea in mitigation to the judge. A plea mitigation is a statement that the defendant or lawyer makes to court explaining why the committed the crime and the circumstances they were in.
Legal professionals have regulations they must follow and if they fail to do so defendants can complain. They can do this by appealing to a higher court if they believe their lawyer did a bad job in presenting their case which therefore has led to them being found guilty. However, the appeal court will decide if the case is justifiable before hearing the full details. Another alternative is defendants can make a complaint to the Legal Ombudsman which is an organisation that deals with complaints across the legal sector. They do this by forming an investigation to see whether the client has received unsatisfactory service. If the investigation proves the lawyer has done an inadequate job they will be ordered to apologies.
Solicitors charge anywhere between £130 – £300 per an hour. Despite, this Beth, or Janice may still be able to afford the fees of a solicitor, but it is possible that they may not be. If Beth or Janice is unable to afford the fees, they may be eligible for legal aid which helps people who are unable to afford legal representation this ensures the right to a fair trial. Legal aid covers the cost of solicitors’ fees for the preparation of the case before the trial and for advocacy by a solicitor or barrister in trial. For Beth or Janice to qualify for legal aid they must pass the two-stage test.
The first stage is the interests of justice test. Where defendants must meet at least one of the five interests of justice.
The five factors that are considered:
- If found guilty will they lose their livelihood or will their reputation be damaged.
- The case involves considering a point of law.
- The defendant is unable to understand the proceedings in court.
- The case may involve the tracing, interviewing, or expert cross-examination of witnesses.
- If the case considers an interest of another person.
The second stage is the means tests. The value of the defendant’s income and living costs will be assessed. If the defendant has a low income, they will not have to contribute. However, many adults do not qualify for legal representation in magistrates court therefore Beth is likely not to be eligible for legal aid.
In court when a judge or magistrates imposes a sentence, they consider five different purposes: deterrence, retribution, rehabilitation, reparation, denunciation, and the protection of the public.
Deterrence aims to deter offenders from reoffending. Harsh punishments are given such as large fines and lengthy sentences. In hopes offenders would be to be scared to commit crimes in the future due to the punishment they will receive. Despite this prison does not deter offenders as most reoffend shortly after they have been released.
Retribution is a form of a revenge which means all offenders deserve to be punished for breaking the law therefore the judge will only focus on the crime that has been committed and making sure the offender receives an appropriate sentence commensurate to the crime they committed.
Thirdly, offenders which are a danger to society are given life imprisonment. Offenders that have committed crimes such as murder will be sentenced to 15-20 years as they are a risk to the public. However not everyone faces life imprisonment they may receive a curfew instead which restricts them from going out after a certain time.
Rehabilitation intends to change offenders in hopes when they are back in society their behaviour will be altered and they will not reoffend in the future. This is different for every individual as the courts are given information provided by probation about the defendant’s background and from this job prospects, training courses, lifestyle changes or medical issues are considered in hope that the offender will reform from the opportunities the prison provide them with.
Reparation is in favour of the victim and making sure they are compensated. Offenders will be ordered to pay money or return stolen property back to the victim. Additionally, a non-custodial punishment may be imposed whereby they have to work unpaid.
Lastly, denunciation is the public disapproval of committing a crime. For that reason, it will indicate to society and the offender that certain types of behaviour are unacceptable, and they will be punished.
Beth’s case illustrates that there are some offences that are triable either way. In regard to this if she is tried in the magistrate’s court for a summary offence the magistrates’ purpose will be reparation and she will receive a fine or have to do community service. However, if she is tried in the crown court by a jury for an indictable offence the purpose of her sentence will be deterrence through which she will face a large fine or six months imprisonment.
In the case of Janice, she will be charged with Grievous bodily harm whereby she could face up to five years imprisonment. The jury would decide on whether she is guilty or not guilty based on the submissions presented by the barrister and then decide on verdict based on the facts and submissions they have received.
In regard to Jon case he would be charged with Actual Bodily Harm the magistrates would hear this case first because it is not serious enough to be heard by a crown court. The punishment that Jon may face if he is found guilty is a detention and training order for a maximum of two years whereby he must spend half of his sentence in custody and the other half supervised by the youth offending team in their community. However, this would be unlikely as we are not told in the case study of any previous convictions. Therefore, the court may consider imposing a fine which the parent or guardian would have to pay.
A jury consists of twelve individuals between the ages of 18-75. They listen to the evidence during a trial and decide whether the defendant is guilty or not guilty based on the facts that have been presented. They are general members of the public who are selected at random from the electoral register. Twelve jurors will sit in each case and are obliged to attend. However, people who are currently on bail or going through criminal proceeding are disqualified from sitting as a juror. Also disqualified are deaf people and those who cannot understand sufficient English due to the fact that a translator would be needed.
During the trial, the jury will pay attention to the evidence provided from the defence and prosecution. Throughout the trial Barristers will receive guidance from the judge. However, they will make their own decision based on the facts provided. When they are considering their verdict, they will retire to a private room where their discussions will be kept secret. They will appoint a foreperson of the jury who will announce the verdict to the rest of the court. Members of the jury must swear by oath they will not discuss or disclose information about the case outside the jury room. It is also forbidden for jurors to publish information on media about discussions that have taken place.
An advantage of the use of juries in criminal case is they can decide if someone is innocent or guilty based on what they think is morally right and fair. In addition, the jury is chosen at random therefore it cancels out the chance of biasness. On the other hand, juries ignore the law and base their decisions off their own morals and ideas. Therefore, it may be unfair, and defendants may experience prejudice. Another disadvantage is some of the jury may not fully understand the complexity of the facts in the case. Therefore, they might make the wrong decision.
Judges are one of the most important people in the justice system. In a magistrate’s courts sits a district judge alone whereby they hear a summary or triable either way case. The prosecution will present the case to the judge whereby the judge will decide the verdict and give reasons for their decision. If the defendant is found guilty the judge will impose a sentence. The judge’s main role is to interpret the true meaning of the law. They must be fair and show compassion towards both parties in the case to avoid biasness. The judge must decide whether there is enough evidence to support that the crime has occurred and also that the person in question has committed that crime.
District judges are appointed by the Lord Chancellor and sit fulltime in the county courts. Before becoming a district judge they would have been a solicitor or a barrister beforehand for seven years. Usually, the Chancellor only considers applicants who have served as a deputy district judges for two year between the ages of 40 – 60.
Judges who normally sit in the Crown Court are High Court judges, circuit judges and recorders. High court judges are appointed by the Queen on the advice of the Lord Chancellor. They must have a ten-year High Court Qualification or to have been a circuit judge for at least two years.
Circuit judges are appointed by the Queen on the recommendation of the Chancellor. They are obligated to have a ten-year county court or crown court qualification or be a recorder. The chancellor will normally only consider applicants who have sat as recorders for at least two years and are aged 45 to 60.
Lastly, records are appointed by the Queen, on the recommendation of the Chancellors. Appointees must have a ten-year Crown Court or County Court Qualification. They sit in the crown court handling less serious matters.
The Judicial studies board is responsible of the training of judges. Newly appointed judges go on a residential course which last four to five days. It concentrates on the practical aspects. They do tasks such as role play, group discussions and exercises. However, before they are able to start working as a judge, they must spend at least a week sitting in with an experienced judge to gain more knowledge and skills. Also, if they are sitting in on a criminal case, they must also visit local prisons and the probation service beforehand
After the residential course is completed, they are required to attend annual training days. Every three years new appointed judges are called back for continuation training by the Judicial studies board, However, when there are legislative changes the judicial studies board organises training for all judges, so they are knowledgeable and understand the changes thoroughly
- Summerscales, A. (2018). BTEC National Applied Law. Pearson Education Limited., pp.82–102.