Investigating Aspects of Criminal Law and the Legal System
Question: Explore the various legal personnel involved in a criminal trial
Using given case studies of criminal trials in different courts, explain the roles of both lay and legal personnel involved.
Solicitors, Barristers and Legal Advice within a Police Station
A solicitor is a qualified legal professional who gives support and legal advice to their clients. A solicitor will often work directly with their client and take the clients full legal instruction and advise them on the legal requirements in relation to their cases. Solicitors also deal with all the paperwork arising from a case, such as communication with other parties, letters and contracts, as well as preparing papers for court. A barrister is an expert in advocacy. As well as offering expert legal advice, barristers represent clients in court and tribunals. Solicitors have the automatic rights of the audience in the Magistrate Court but, however, they can not represent a client in the Magistrate Court. Solicitors do a lot of preparation before their clients trials, they have to know all the facts that their client has presented to them, the Solicitor then has to examine this evidence and add the law to it. Solicitors have to make a defence for their client to ensure that their client does not get a sentence or they have to minimise their sentence as much as possible. Solicitors have to make sure they have given their clients all the correct and relevant legal advice to prepare them for their trial. A Solicitor can also work alongside a Barrister and they both have to work together to give their client the best chance of not being sentenced.
Barristers in England and Wales are instructed or are hired by solicitors in order to represent a case when it goes to court. Their role is “to translate and structure their client’s view of events into legal arguments and to make persuasive representations which obtain the best possible result for their clients.” They present their client’s case in a manner that is acceptable to the court, in order to get the best outcome for their clients. Defendants can apply for legal aid or funding. Defendants can get legal advice at the police station, once they’ve asked for legal advice, the police can’t generally question the suspect until the suspect has received legal advice. The police can delay access to legal advice in serious cases, but only if a senior officer agrees. Legal advice does not need to be in person, it can also be through the phone. The longest a person can be made to wait before getting legal advice is 36 hours after arriving at the police station. Their clients can get private interviews during police questioning, which helps the client with legal advice. The longest a person can be made to wait for legal advice is 48 hours for suspected terrorism. Barristers undertake training after completing the Bar Professional Training Course. The Pupillage stage involves working alongside an experienced barrister to gain knowledge and expertise in court procedure and advocacy.
Defendants can also get other legal advice from the Duty Solicitor Scheme. The DSCC is free of charge. Duty Provider Crime Contracts cover solicitors’ advice at local police stations, and in some circumstances Magistrate courts, where they advise and assist persons detained or brought there. DPCC has been restricted to 527 contracts. Firms bid for these. Advice will usually be given by phones unless attendance is necessary. Advice is also available for persons unrepresented in court who are pleading guilty to an imprisonable offence. The legal representative scheme pays for the solicitor’s fees for the preparation of the case before trial and for advocacy by a solicitor or barrister in trial.
Lawyers are paid a fixed fee depending on the charge, not the complexity of the case. In order to receive legal representation, the defendant must qualify under a means test and an; interest of justice’ test - section 17 Legal Aid, Sentencing and Punishment of Offenders Act (2012). To apply for legal aid for representation in the courts, the client must complete form CRM14, an application for legal aid, which includes the Interests of Justice Test and financial statement. The request for a ‘Representation Order’ will be made to the courts by the defendant’s lawyer. Under s 19 of LASPOA (2012) determinations about grants of legal aid in criminal proceedings are made by the courts. A person who is ineligible for state funding must pay for themselves or appear without a lawyer.
The Means Test
The means test looks at the defendant’s financial situation. The defendant’s income and the value of their belongings have to be given. If their income or belongings are above a certain limit, they may have to pay a contribution to their legal representatives. There will be no contribution to defendants that are on low incomes. In the Magistrates’ Court cases, the levels of income to qualify for legal aid are very low, this means that many adults do not qualify. Those who are under 18 or that are on income support, automatically qualify. In the Crown Court, Legal representation is more likely to be available. If the defendant is found guilty, they may have to pay a contribution if they have enough funds. If the defendant is found not guilty, any contributions paid will most likely be refunded. In the Magistrates’ Court, the means test is for those under 18 and those on a low income. They automatically qualify for support. The gross annual income is the starting point for all other applicants. This is then divided, which takes account of family circumstances and becomes an adjusted income. If their adjusted income is above the upper limit, £22,325, applicants do not qualify. The means test was created to provide legal advice for those with those who are under 18, those on Job Seekers Allowance or income support also qualify for this.
Applicants between upper and lower limits are subject to a ‘full means test’ to calculate their disposable income. The disposable income is calculated by deducting living costs from the client’s gross annual income, if the disposable income is above £3,398 applicants do not qualify for funding in the Magistrates’ Court. Legal representation is free for those on a low income. Those with an adjusted income between £12,475-£22,325 may be required to contribute depending on their disposable income. Those with a disposable income above £3,398 will be required to contribute. Those with a household disposable income above £37,500 will not be eligible for legal aid at Crown Court. A partner’s or spouse’s income is also taken into account when the defendant is being trialled under the means test. Judges and Magistrate can order the defendant to pay prosecution costs if he or she is found guilty if the defendant is not found guilty their contributions will be refunded. Indictable offences are serious crimes such as murder, rape, treason, robbery and grievous bodily harm. They must be tried at Crown Courts, however, the first hearing will be in a Magistrates' Court. In the Magistrate Court, there are no contribution systems.
The Interest of Justice Test
The interest of justice test includes matters such as the ability to understand the proceedings, risk of imprisonment and the interests of another that the defendant will be represented. The Interest of Justice Test must be used when dealing with criminal legal aid. The Interest of Justice Test is to help reduce the number of people getting refused for legal aid. Those who appear in Crown Court will have passed the interest of justice test. The five criteria that are considered under the Interest of Justice Test are; losing liberty, livelihood or suffer damage, they may need witnesses to be traced or interviewed on their behalf, the case involved a point of law, they are unable to understand the proceedings in court or to state their own case and the interests of another person, perhaps the victim, cannot be around the defendant such as a rape victim.
R White (Assault and Battery)
In the case study of R White, the defendant will be questioned at the police station and will have to go through the interest of justice test as well as the means test. The defendant will get legal advice on how to answer questions posed by the police and about the charge. This happens before White goes to Court to be trailed. Mr White must apply for legal aid and he will go through the means test which evaluates his income. If the defendant has an income of £22,325 or his disposable income exceeds £3398, Mr White will not qualify for any legal advice. The Court made the means test for those under a certain income to be able to qualify for legal advice.
The defendant will have to employ their own Solicitor for legal advice and will have to pay for their service as their income is over the means test. Mr White committed a summary offence and will not go to Court with a Judge or Jury, instead, he will be sent to the Magistrate's Court with laypeople. The defendant will be charged with the offence of assault and battery, which are minor assaults. It is a summary offence which can only be heard at the Magistrate's Court. The defendant does not need to be represented by a barrister. The defendant will be represented by a Solicitor at the Magistrates’ Court. The Solicitor will speak on his behalf to try and communicate with the judge the best they can and try and manipulate the other executives to believe their defendant should plead not guilty. If Mr White is pleaded not guilty then his Solicitor will provide evidence to support that his client is not guilty.
Master H Brown (ABH)
The case of Master H brown the defendant was charged with ABH. Master H Brown is entitled to a responsible adult and a Solicitor being present whilst being questioned by Police within a Police Station due to his age, of 13 years old. He is entitled to legal aid and advice from a Solicitor, the Solicitor will advise him on how to answer questions. The defendant will be represented in the Youth Court and will not have to contribute to any funds towards legal aid. In the Youth Court, H Brown can be represented by a Solicitor or Barrister. The defendant is liable for ABH and will be convicted guilty of the indictment. ABH is a more serious assault that has caused injuries, such as bruises or minor cuts. This is an either-way offence and will be trialled at the Youth Court, which is not open to the public. In the Youth Court, they will impose sentences that are specifically designed for young offenders.
Miss V Strong (GBH)
Miss V Strong can be represented by a Solicitor at the Magistrates’ Court and then Miss Strong will be trialled at the Crown Court. She may be represented by a barrister in the Crown Court where she will be sentenced guilty or not guilty, in the Crown Court the date for the plea or sentencing hearing will be set. In the Crown Court, the Solicitor would have briefed the Barrister before the trial began. Before trials the witnesses will be questioned and examined by the present Barrister, examinations and cross-examinations will take place. The means test will take place during Miss V Strong case if she has an income higher than £22,325 and she will not be able to claim legal aid. She will not be able to claim legal advice in the Police Station.
Miss Strong has an income above £3398 and will have to make a contribution to her representation. If she is found not guilty, her contribution will be paid back to her and if she is found guilty she will not get her money back. Miss Strong will have to pay a Solicitor or Barrister to represent her in Court. Because V Strong committed GBH, she may be sent to the Magistrates’ Court depending on the seriousness of the GBH committed. The Court will sentence Miss strong by using the Offences Against the Persons Act 1861, she could be sentenced to a maximum of five years in prison for the offence of GBH. Due to the fact that this case is either way offence, Miss Strong will have to be represented by a Solicitor (Wood Stock Online, 2020).
In Court, Miss V Strong will be trialled by lay members of the public, instead of a Judge or Jury. GBH is the most serious type of assault. Injuries can be as serious as wounds that might have been caused by a stab wound from a knife. This is an indictable only offence, which can only be heard at the Crown Court. This case will have an initial appearance at the Magistrates’ Court. A plea or trial cannot take place until the case has been heard in the Crown Court.
C.P6 Explain the advice and representation available in given criminal case studies.
Legal Advice and Representation Available
A Magistrate does not need to have any legal qualifications to take the role of a Magistrate, however, they do need training for their role as they are not professionally trained. The Magistrate must be able to examine the evidence provided to them, study documents and be able to judge fairly. The Magistrate volunteers and does not get paid a salary. They can claim expenses and are supported by a legally qualified adviser. Magistrates try all summary offences such as assault, battery and other offences. Magistrates have sentencing powers that are limited to 6 months imprisonment or can even give a fine up to £5000. If a case is too serious, the Magistrate can pass it to the Crown Court for sentencing.
Mr R.White (Assault and battery)
In the case of R White, he will be represented by a Solicitor in the Magistrates’ Court. Advice will be represented to R White in the Police Station before he gets trialled at the Magistrates’. White will have to apply for legal aid and he will have to go through the full means test. If Mr R White has an income above £22,325 or if it exceeds £3398 he will have to contribute towards legal advice. He does not qualify for legal advice and will have to pay for his own Solicitor. The means test was created for those with a low income to claim legal advice. In White’s case, the Magistrate will try the case summarily if he pleads not guilty. In the Magistrate Court, they will consider all the evidence presented to them and decide whether the prosecution has proven its case beyond doubt. If Mr White is found guilty, the Magistrate will sentence him.
Master H.Brown (ABH)
In the case of H Brown, he will go to the Youth Court due to his age of only being 13 years old. He will claim legal advice by a responsible adult in the police station which is also because he is under 18 years old. In both the police station and in Court, Brown will need a representative adult because of his age. Master Brown will get legal aid and advice from a Solicitor, he will then be represented by a Barrister in the Youth Court. Being under the age of 18, Brown will not have to contribute anything towards legal advice and he will not have to go through the interest of justice test or the means test. Brown’s representative will ensure that he is getting the proper support throughout his trials. In Court, the judge will hear the evidence against Brown and will then decide whether to sentence him.
Miss V.Strong (GBH)
In the case of V Strong, she will be represented by a Solicitor in the Magistrates’ Court. The Magistrate will carry out the initial preliminary hearing, in which Strong will confirm her identity and they will decide whether Strong can apply for legal aid before taking the case to the Crown Court. Under the means test, Strongs income will be evaluated to assess if she will claim legal aid or not. Strong does not claim legal advice in the police station due to her income. Due to the fact that she has an income over the legal amount to gain legal aid, Strong will have to put money towards legal aid. Miss V Strong has an income above £3398, if she wants a representative she will have to contribute to having a Solicitor. Miss Strong committed the offence of GBH which is an indictable offence. She will be sentenced in the Crown Court, in the Crown Court, Strong will be represented by a Barrister.
C.P5 Using given case studies of criminal trials in different courts, explain the roles of both the lay and legal personnel involved.
Selection and appointment of Magistrates
The Magistrates Court
Magistrates do not need to be legally qualified but they do however need training for the role of a magistrate. They must be able to assess evidence and interpret evidence fairly. Magistrate are volunteers and do not get paid a salary, however, they do claim expenses. They must be supported by legally qualified advisers when they are trialling the defendant. In the Magistrate Court, the trial summary offences such as assault, battery, motoring offences, the drunk and disorderly. They have limited sentencing powers, they can only sentence defendants for up to 6 months imprisonment or a fine of £5000. If a case is too serious for the Magistrate Court, they can pass it to the Crown Court for sentencing.
Mr R.White (Assault and Battery)
If Mr White pleads not guilty, the case summarily will be carried out in the Magistrates’ Court. In the Magistrate Court, they will consider the evidence presented to them and they will then decide whether the prosecution has proven if the defendant is guilty or not. If the defendant is found guilty, White will be sentenced.
Master H.Brown (ABH)
In Master Brown’s case, due to the fact he is underage, the Magistrates’ Court is specially trained to trial the Youth Court. The Youth Court is less formal than an adult court, as children of that age are less developed and are unable to understand everything an adult is able to understand. In the Youth Court, they will deal with the representation order and ensure Master Brown has the proper support throughout the trial. Master Brown will be prosecuted once the court hears the evidence against him. If the court believes that Master Brown is guilty then he will be sentenced.
Miss V.Strong (GBH)
Miss V Strong will start off at the Magistrates’ Court where a preliminary hearing will take place. Here legal aid will be applied and an initial preliminary hearing will take place which conforms to Strong's identity. Her case will then be sent to the Crown Court where the case will be committed and Miss Strong will be sentenced.
C.P5 using given case studies of criminal trials in different courts, explain the roles of both the lay and legal personnel involved.
Qualification and disqualification, selection and role of jurors
Jurors must be aged 18-75 years old in order to fit the role. They must also be able to register to vote in order to be eligible for service as a juror. Jurors can be disqualified if they have serious convictions or have been sentenced to a custodial or community order in the last 10 years. The role of the juror is that they must listen to the evidence given by prosecution and defence. Jurors also listen to the examination and cross-examination of witnesses, Jurors listen to closing speeches and the judge’s summing up. The next job of a juror is to leave the Courtroom and go to the jury room to decide, in secret, whether they believe the defendant is guilty or not guilty. One Juror is then elected to read out their unanimous vote if they cannot reach a unanimous vote a majority vote can be accepted by the judge. No reasons need to be given by the jurors, the judge will agree with their decisions.
In the case of Miss V. Strong, her defence would be a Solicitor in the Magistrate Court and her prosecutor would be a Barrister. Strong will be charged in the Crown Court. A juror will listen to the evidence of V. Strong's case, the juror will then go and examine and cross-examine the evidence. The evidence is presented by the prosecution and defence, which in Strong’s case would be the Solicitor and Barrister. The jurors have to decide in private if the defendant is guilty or not guilty. In the Courtroom, one juror will read out the jurors unanimous vote and the judge will expect whatever decision the jurors make. Miss Strong committed GBH which is a serious offence and if she is found guilty she can be charged with the maximum of five years imprisonment.
C.P5 using given case studies of criminal trials in different courts, explain the roles of both the lay and legal personnel involved.
The role of Judges in the criminal trial of Miss V. Strong
The roles of judges in the criminal trial of Strong are to listen to the evidence presented to them. The juries also analyze the evidence and then go into their jury room to reach an agreement which a jury will then read out in the court. Judges need to gather all the evidence before they can make a conviction. Once the juries have reached a unanimous verdict, the judge must accept the juries decide whether or not the judge agrees or not. V Strong will be represented by a Solicitor at the Magistrates’ Court and will then be trialled at the Crown Court. Juries can not discuss the case outside of the jury room and can not search the case on the internet, this is something they must swear by and have consequences if they break it.
Judges can discharge jurors during the trial, the judge can also answer any of the jurors written questions throughout the trial. The judge will then sum up at the end of the trial and will explain the jury’s function before they leave to the jury room to make a decision. Strong could be sentenced to the maximum of five years in prison as she committed GBH. In Miss Strong's case, she is trialled by lay members who are members of the general public. Strong’s case can not be trialled until the case has been heard in the Crown Court. The court must make a trial date for V Strong where they will sentence her. If Strong is found guilty she will have to return to court. The Judge will give a sentence if a guilty vote is given back to them.
CM.4 Compare and contrast the roles of the various personnel involved.
Different roles before, during and after trial
Mr R. White (Assault and Battery)
In the case of R White, he will be questioned by the police in the police station, where he will be held for 24 hours. White can apply for legal advice before being questioned by the police. He can hire a solicitor to provide legal advice. Depending on the defendant's income, White will have to go through the interest of justice test and the means test. White might have to contribute to the legal aid depending on his income. The solicitor will help the client make an application for a representation order at the magistrates’ court. The solicitor's role is to interact with the client, for the summary offence committed by R White the solicitor will represent the defendant at the Magistrate’s Court.
Master H. Brown (ABH)
In the case of H. Brown will be represented by a responsible adult whilst being questioned at the police station due to his age. He will also be represented by a solicitor whilst being questioned by the police, the defendant automatically qualifies for legal advice due to his age. Brown will also be represented by a solicitor in the Youth Court, where the judges, defence and prosecution.
Miss V. Strong (GBH)
In the case of V. Strong, she will be represented by a solicitor after being questioned by police. Her case will be taken to the Magistrate's Court. Strong will have to contribute to legal aid due to her income. The solicitor is there to represent their client, they give the client advice as well as present evidence to the judge. Strong’s case was then taken to the Crown Court where she will be presented by a barrister. The barristers and solicitors are hired to give legal advice, represent their clients in court
- Wood Stock Online. (2020). Personnel as such the first person they will - Free Courseworks Examples. [online] Available at: https://woodstock-online.com/personnel-as-such-the-first-person-they-will/ [Accessed 23 Jan. 2020].
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