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vypracovaná otázka (19kový) č. 14 (q_14.doc)

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1. Courts of criminal jurisdiction

After a decision to prosecute has been taken the case will eventually be in court. As with civil action, criminal offences vary in seriousness and complexity. These differences are again reflected in the criminal court system. The following text outlines the way in which offences are classified, and in this respect also the courts of first instance and appeal.

There are three types of criminal offence: summary, indictable and triable either way. The nature of the offence will determine the mode trial.

Summary offences are the less serious offences such as minor motoring offences. These offences are tried in the magistrates’ court in summary proceedings. At the commencement of the summary trial the accused pleads guilty or not guilty to a charge contained in a document called an information. The case is heard and determined by magistrates who are the judges of both law and fact.

The great majority of magistrates are lay men and women working part-time, not salaried, but since most magistrates serve as such for many years, and will normally sit in court at least twice a month, they become familiar with summary proceedings and are not complete “amateurs” like the average juror. At least two lay magistrates (known also as justices of the peace JPs) are required to try a case and it is normal for them to sit in benches of three.

A minority of magistrates are stipendiaries, i.e. full-time, paid magistrates who are professional lawyers. They are to be found in major towns and they are entitled to exercise their jurisdiction solely i.e. they sit alone.

The magistrates will hear evidence and reach a verdict. If the verdict is ’not guilty’ the defendant will be acquitted; if ’guilty’ the magistrates will pass sentence. The sentencing jurisdiction of the magistrates’ courts is limited to imposing a fine of up to 1.000 pounds or a maximum prison sentence of six months. A case requiring a heavier punishment must be referred to the Crown Court for sentencing. The defendant may appeal to the Crown Court for a retrial or to the Divisional Court of the Q.B.D. of the High Court ’by way of case stated’. This is on the basis that magistrates were wrong in law or in excess of jurisdiction. The magistrates are required to ’state the case’ (give reasons) for their verdict. This form of appeal is, unusually, available to the prosecution as well as the defence. Further appeal to the House of Lords is available in cases involving important questions of law.

Indictable offences are the most serious offences; examples are murder, manslaughter, rape and arson. The procedure for trying these offences begins in the magistrates’ court with ’committal proceedings’. Here it is a role of the magistrates to conduct a preliminary enquiry into prosecution’s evidence and to decide whether it forms a prima facie case against the accused. If not, the case will be discharged. This is not the same as an acquittal as the prosecuting authorities can bring the case before the court again if further evidence becomes available; a person who has been acquitted of a charge cannot be tried for the same offence again. If a prima facie case is established, a full trial on indictment will take place in the Crown Court. The name ’trial on indictment’ originates from the formal written statement of charges, and it is to the “counts” contained in this indictment that the accused pleads “Guilty” or “Not guilty” at the beginning of this trial. The trial is presided over by a paid professional judge (usually a Circuit judge). The judge controls the course of the trial, adjudicates on all matters of the admissibility of evidence, and is the sole arbiter of matters of law in the case. Matters of fact are decided by the jury, which consists of lay men and women, drawn at random from a broad cross-section of the community, who are summoned for a period usually of two weeks. It is by no means unusual for this to be their only experience of the judicial system. They must accept and apply the law as it is explained to them by the judge in his summing-up at the end of the case, but they alone decide questions of fact. Should the judge, when summing-up, comment on the weight of the evidence or indicate what facts he thinks have been proved thereby, the jury may – and indeed, should – ignore the judge’s views entirely unless they happen to coincide with their own. Having heard the evidence, the speeches of counsel and the judges summing-up, it is then the duty of the jury to bring in the verdict. Thus the general principle may be stated that at trial on indictment, “the law is for the judge, and the facts are for the jury”. Finally the judge if the defendant is found guilty by the jury has to pass sentence on the grounds of the jury’s verdict. The defendant may appeal against conviction or sentence to the Criminal Division of the Court of Appeal. Under the Criminal Justice Act 1988, the prosecution may also appeal to the Court of Appeal for the sentence to be increased. A further appeal to the House of Lords may be allowed on an important point of law.

Offences triable either way are offences which can be committed in a serious or minor way. Burglary and theft are examples of these offences. They may be tried summarily in the magistrates’ court or on indictment in the Crown Court. The magistrates will determine the mode of trial taking into account such factors as the seriousness of the offence and the possible appropriate sentence. The accused can insist on trial by jury in the Crown Court but not on summary trial, if the magistrates decide that the case should be tried on indictment. The trial procedure will then follow the summary or indictable form as discussed previously.

2. Family law – separation

There are four ways of legally separating.

An informal separation agreement

The couple may simply decide to separate, and not reach any formal agreement about maintenance or the custody of the children. Alternatively, they may swap letters and accept them as binding. But the law might not regard the agreement as binding. Firstly, the courts do not like to enforce contracts made between husband and wife and secondly, they may have scant regard for an agreement that was made without the parties having had the benefit of legal advice. Accordingly, it is usually better to consult solicitors, obtain their advice and then have the terms of the agreement set out in a deed.

A formal separation deed

The courts can vary and alter the terms of a formal separation deed, but they are much less likely to do so than if it was just an informal agreement. This is because a formal deed indicates an intention for the parties to be legally bound and it also shows that they took legal advice before signing the agreement.

The typical separation deed will contain a maintenance agreement, arrangements for the children, and a mutual covenant releasing the other spouse from the marital duty to cohabit. But the terms of the deed can never be totally binding.

A magistrates’ court separation order

Magistrates’ court can order the couple to live apart. Usually this is only done when there is a real danger of violence to the wife or children. They are called exclusion orders.

Judicial separation

Judicial separation is a rarely used alternative to divorce proceedings but it does not end the marriage in the same way as divorce does. Even though that the parties are not free to remarry, their obligation to live together is ended. If one of the spouses dies intestate (i.e. without a will) the survivor will not be able to claim the estate as the surviving spouse. To obtain a judicial separation, the petitioner has to prove one of the same five grounds as is used to obtain a divorce. However, there is no need to show that the marriage has broken down irretrievably. The main procedural difference is that there is no three-year rule and so the petitioner can get a judicial separation when s/he would not be able to obtain a divorce.

Legal remedy      Effect

Divorce These legally end the marriage (i.e. the husband and wife are both single again), parties: petitioner <-> respondent

Annulment (rare)

Judicial separation (rare) These do not legally end the obligation to cohabit;

Separation by informal agreement

Separation under a written deed

Separation by magistrates’ court order