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R v Faraz [2012] EWCA Crim 2820 – Case Comment (Russell Fraser)

Background

The appellant, Ahmed Raza Faraz, was convicted on 12 December 2011 of seven counts of disseminating a ‘terrorist publication’, contrary to section 2(1)(a) and (2) of the Terrorism Act 2006, by distribution; and four counts of possessing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000. The appellant was sentenced to three years’ imprisonment.

Appeal

The appellant appealed against his convictions under 2(1)(a) and (2) of the Terrorism Act 2006 on the ground that the judge allowed the prosecution to admit in evidence ‘the possession by named terrorist offenders of material similar or identical to that allegedly disseminated by the appellant, for the purpose of considering whether the material comprised a ‘terrorist publication’ for the purposes of section 2 of the 2006 Act’. The appellant also appealed on the ground that the judge did not direct the jury on the constituent parts of the section 2 offence in terms which were compatible with Article 10 of the European Convention on Human Rights (ECHR). Article 10 provides that everyone has the right to free speech but that this right can is subject to qualifications ‘as are prescribed by law and are necessary in a democratic society.’

The indicted material

The appellant was the manager of the Maktabah Islamic bookshop in Birmingham. He sold books, articles, videos and DVDs in the shop and through a website. The prosecution’s case was that certain of this material supported ‘militant Islam’. The indicted material was described by the Court of Appeal as follows:

‘The centrepiece of Milestones – special edition (count 1) was the work of Sayyid Qutb, a leading member of the Muslim Brotherhood, who executed in Egypt in 1966 in consequence of his opposition to President Nasser and his suspected involvement in a plot to bring down his Government. The special edition was edited by the appellant in his pen name A. B. Al-Mehri. It contained a biography of the author… and nine appendices containing works by various authors. The book was offered for sale in the form in which it was indicted in or about April 2006… The special edition was alleged by the prosecution to be a polemic in favour of the Jihadist movement encouraging violence towards non-believers. Malcolm X, Bonus Disc (count 2) was a DVD containing a film about the life of the deceased Muslim leader. It included a number of trailers and other recordings of interviews with the families of men who had died ‘fighting’ US forces in Afghanistan and Israeli forces in the occupied Palestinian territory. It included footage of a suicide bomber driving to his death in Iraq. 21st Century Crusaders (count 4) was a DVD. It purported to be a documentary focused upon the suffering of Muslims around the world. It included an interview with a masked man who defended terrorist attacks by or on behalf of Al-Qaeda. The Lofty Mountain (count 5) included a text written by Abdullah Azzam justifying the expulsion of the Russian occupation of Afghanistan in the 1980s. The work included a biography of Azzam, accounts of the Battle of the Lion’s Den in 1987, in which Osama Bin Laden was a volunteer, the biography of a journalist who died while working as a medic in support of the fighters against US forces in Afghanistan in December 2001, and Azzam’s account of Bin Laden’s role in expelling the Russian army from Afghanistan. Join the Caravan (count 6) was a book founded upon a text by Sheikh Azzam. The translator’s foreward praised his work and writing. Defence of the Muslim Lands (count 7) was also founded upon a text by Sheikh Azzam. Its appendices included a discussion upon the justification for suicide operations in Chechnya. Finally, The Absent Obligation (count 8) was a book whose central text was written in the 1970s by Mohammed Abdus Faraj, an Egyptian Muslim, who was implicated in the death of President Anwar Sadat of Egypt and was executed. The text argued for the need for jihad in defence of the Islamic faith against a corrupt ruler.’

The appellant contended that the materials did not encourage acts of terrorism but instead offered buyers materials of a religious and political nature which were to foster discussion of the theory behind them. Read properly, the material did not encourage terrorism. The appellant did not give evidence to raise the statutory defence under section 2(9) that the publications did not represent his views (Though there is little logic in this being a defence. A person may sell material with the intention that it directly encourages another to commission an act of terrorism which in turn affects, for example, the price of oil or certain stock prices. That person’s purpose might to make some financial gain as a result of the shifting markets. He does not share the views expressed in the material, but why should he be less culpable?).

The statutory offence

Section 2 of the Terrorism Act 2006 provides:

2(1) A person commits an offence if he engages in conduct falling within sub-section (2) and, at the time he does so (a) he intends the effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; or (c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).

2(2) For the purposes of this section a person engages in conduct falling within this sub-section if he (a) distributes or circulates a terrorist publication… or (e) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).

2(3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within sub-section (2) if matter contained in it is likely (a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism…

At trial the prosecution applied for permission to adduce evidence that individuals convicted of terrorist offences possessed several of the publications indicted. The prosecution said that the material important explanatory evidence within the meaning of section 100(1)(a) and (2) of the Criminal Justice Act 2003 and was relevant to three matters: whether the items were terrorist publications; the appellant’s intent in distributing the publications; and whether the material was being disseminated by the appellant within the meaning of section 2(1). The judge agreed that it was important explanatory evidence and was relevant to whether the items were terrorist publications and permitted the prosecution to adduce by way of admissions the names of the offenders, a summary of the offences committed and the fact that they had possessed the relevant publications.

Grounds of appeal

 

Admission of the other cases

The appellant submitted at appeal that the other material did not provide an explanation which the jury needed to hear and nor was it probative of the question whether a publication was a ‘terrorist publication’. The appellant also submitted that section 2(8) of the TA 2006 expressly stated that ‘it is irrelevant… whether any person… is in fact encouraged or induced by that matter to commit, prepare, or instigate acts of terrorism’ and as such that ought to have determined the application to adduce the material. The question of the material’s capacity to encourage ‘was to be judged, on the facts, of the present case, solely upon an assessment of its contents in the context in which it was disseminated.’

Alternatively, the appellant argued, the question whether any individual was encouraged was not ‘a matter of substantial importance’ or that ‘the jury would find it impossible or difficult properly to understand other evidence in the case’ without it because of the terms of section 2(8).

The Court of Appeal held that the identity of the publications’ readership could be important evidence in assisting the jury decide whether the material constituted an encouragement to acts of terrorism and therefore was a ‘terrorist publication’. It was, however, concerned that there had been a risk that without a proper judicial direction the jury might not have appreciated that judging the likely effect of the material was a separate exercise to deciding that the readership was encouraged to commit terrorist offences. The court said:

‘In our judgment, the evidence was admissible, if at all, for the extremely limited purpose of demonstrating that among the readership of the Maktabah publications were people who were prepared to commit terrorist acts.’

However, earlier the court had observed ‘that there would be among Maktabah’s readership some who were more likely than others, particularly those who were already sympathetic to the objectives of militant Islam, to interpret any given text as encouragement.’ Even though the court recognised the manifest potential for evidence that the publications were owned by those convicted of terrorist offences to lead the jury to convict simply on that basis, this earlier observation surely lends weight to the defence’s argument that it ought not to be admitted with reference to section 2(8). The court was right to say that evidence that a person had indeed been encouraged by the publications to commit offences would be admissible. But that ought to have forced the conclusion that anything less than direct evidence would be too prejudicial to the appellant’s case and ought not to have been admitted. No direction of a judge would be sufficient to obviate the risk that a jury might convict on the possession of the publications alone.

The appellant nonetheless succeeded with this ground of appeal as the court found the judge failed to give the jury suitable directions to ‘[head] off the risk of unfair prejudice’.

Article 10 ECHR

In respect of count 1 concerning the publication Milestones the appellant submitted that section 2 of the TA 2000 offends Article 10 since the offence created was disproportionate. The judge ought to have read down the requirements of section 2 as section 3 of the Human Rights Act 1998 allows and thus comply with the Article 10 obligations. The appellant set out four submissions:

(1)  The alternative requirement for recklessness in section 2(1)(c) should not have applied if the jury was to conclude that the subject matter of the publication was ‘political or religious ideas’.

(2)  The requirement of a likelihood that the publication would be understood as encouragement in section 2(3)(a) should not apply to the extent that the jury concluded ‘that the publication was a legitimate expression of a political or religious view’.

(3)  The jury should have been directed that the encouragement required by section 2(3)(a) was for the ‘imminent’ commission, preparation or instigation of acts of terrorism.

(4)  The judge should have left to the jury an Art 10 defence, namely, the jury should be slow to convict in respect of a publication which amounted to a political or religious argument even if it would be understood to encourage terrorism.

The appellant argued that these additional restrictions were needed so as not to offend Article 10. The Court of Appeal considered the judge’s directions and concluded that the jury could only convict if they were sure that: the appellant distributed the publication; at the time the publication would be understood by a significant number of its readers, directly or by necessary implication, to be encouraging the instigation, preparation or commission of a terrorist offence within a reasonable timescale; and at the time the appellant intended that the publication should be so understood or, knowing of a serious and obvious risk that it would be so understood, he distributed it.

Again, given the court’s earlier observation that some may interpret ‘any given text as encouragement’ the mere act of selling any book might be categorised as ‘reckless’ on this account. This is further compounded by the court’s view that ‘[in] judging the capacity of the publication to encourage unlawful acts of terrorism the question whether the publication was a correct interpretation of the teaching of Islam was of marginal relevance.’ Applying this opinion, it is not difficult to imagine the selling of the Quran itself as potentially being a contravention of section 2. A bookseller may understand that there may be some who would interpret that text as encouraging an act as defined by section 1(1) of the Terrorism Act 2000. He may also know that the risk of someone so understanding the book is obvious. And if he then sells the book he is guilty of an offence. The defence under section 2(9) may not be available because he may not wish to state that the contents do not represent his views. The clear problem is the breadth of the offence created by section 2. Defining the material by its readership and not on its content alone is wrong and could lead to capricious results. The implications for free speech and the free exchange of ideas should be obvious. Historical works, religious allegories, autobiographies of certain figures: all are susceptible to perverse interpretations. But more troublingly, prosecutions of this sort are entirely dependant on the direction political winds are blowing at any given time.

 

This post focuses on the Court of Appeal decision rather than an in-depth examination of the legislation itself.  The court below did carry out that exercise and the appellant put before the court much commentary and authority on the principles of Article 10. Milestones is currently available to buy on Amazon and several of the other indicted publications can be found online. Qutb wrote Milestones in 1964, long before the emergence of Al Qaeda and transnational terrorism as we know it today. This represents a further difficulty in defining literature by reference to external factors with no inquiry into the mind of the author. Although the appellant succeeded, cases of this sort will return to the courts. When they do, it is likely that the assessment of the compendious commentary and authorities on freedom of speech that the Court of Appeal decided did not concern it in this case will be have to be addressed.

Russell Fraser is a pupil barrister at 2 Dr Johnson’s Buildings. He previously worked as a paralegal on Special Immigration Appeals Commission and Terrorism Prevention and Investigation Measures cases. He writes in a personal capacity and tweets at @russell_fraser

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Costs

Introduction

As well as being sentenced, someone who is found guilty (or pleads guilty) of a criminal case can be ordered to pay some or all of the costs of the proceedings that have been incurred by the prosecution.The power to order this comes from s18 Prosecution of Offences Act 1986.

The amount has to be fixed by the Court.

How much is awarded?

In theory, this can include anything up to the full amount incurred. This includes the costs incurred in preparing all the paperwork, the payment of witnesses to attend court, and the payment of fees to barristers and experts. The costs of the police investigation itself cannot be claimed back.

The CPS have a list of their standard rates for costs. These are an average and the prosecution can ask for less (if it is clear that that is appropriate) and, in a suitable case, for more.

But, the news report I saw didn’t refer to costs?

It is not automatic. There are various factors that will be taken into account. In particular, a Court has to consider the means of the defendant. For example, if someone is on benefits, or is going to prison and will lose their job, in reality they won’t be able to be able to pay a huge sum of money. It may be that the Court will decide the defendant should pay a reduced amount to take account of that.

There was generally a ‘rule of thumb’ that a defendant should be able to pay the financial penalties imposed (fine, compensation and costs, but not confiscation which is treated very differently) in about a year. This is not a hard and fast rule and the Court can make an order that takes more time to pay if it is appropriate (see R. v. Olliver and Olliver, 11 Cr.App.R.(S.) 10).

Similarly, whilst it is generally right for the order of costs and any fine to be broadly in proportion, this is not a legal requirement but is generally followed.

Although the Crown Court deals with more serious cases (that cost more), the Magistrates’ Court tend to order costs as a matter of routine, whereas it is a lot rarer in the Crown Court. When the Crown Court does order costs however, it will often be at a much higher rate.

Can someone appeal against an order for costs?

Yes. From the Crown Court, the appeal is the normal route of an appeal against sentence. Be careful in relation to the Magistrates’ Court as there is no right to the appeal to the Crown Court – it has to be to the High Court by way of Judicial Review.

The Criminal Procedure Rules section on costs is here. For more details, the Practice Direction (Costs in Criminal Proceedings) is useful.

Burglary

Burglary

Legislation: Theft Act 1968 s9

Definition: There are five ways of committing this offence:

Entering a building as a trespasser with intent to:

Steal

Inflict really serious harm on someone

Commit criminal damage

Having entered a building as a trespasser:

Stealing

Inflicting really serious harm on someone

Explanation: In practice it is rare for it to be charged in relation to causing harm or criminal damage. A trespasser is someone who is entering without the consent of the owner. Whether something is a building is a question of fact for the jury.

Mode of trial: Either way UNLESS : it is an allegation relating to entering with intent really serious harm, or it is a ‘third strike’ or it is an allegation of a domestic burglary where anyone in the dwelling was subjected to violence or the threat of violence.

Maximum sentence: 14 years if the building is a domestic building, 10 years otherwise.

Examples: If someone goes into a building where they have a permission to enter and goes in ‘in excess’ of their permission, then they will be guilty of burglary. For this reason someone who goes into a shop to steal will always be guilty of burglary as whilst the shop lets anyone enter, they would obviously not let someone in if they knew that they were going to steal. In practice however, shoplifting is generally charged as theft.

CPS Guidance : Found here.

Aggravated Burglary

Legislation: Theft Act 1968 s10

Definition: Someone who commits a burglary and, when committing it, has a firearm or a ‘weapon of offence’ with them will be guilty of aggravated burglary.

Explanation: The individual must have the weapon when committing the offence. For this reason, if they are charged with ‘entering a building with intent to steal’ then they must have the weapon with them when going into the building. A ‘weapon of offence’ is anything that is made or adapted for use for causing injury or incapacitating someone, or intended to be used for that.

Mode of trial: Indictable only.

Maximum sentence: Life imprisonment

Examples: Someone who breaks in to a house with a screwdriver and carries it with them won’t be guilty of aggravated burglary as that is not a weapon of offence. If they carried it with them to break in AND to cause injury if confronted by the houseowner, then they would be.

CPS Guidance : Found here.

The Court Martial

Most people will have seen a Court Martial on TV. John Thaw, Maxine Peake or Tom Cruise are just some examples. But do we really understand what military courts are, how they operate and why we need them?

There are no longer courts martial, ad hoc courts convened only when required. Instead there is now the Court Martial a permanent court in the manner of the Crown Court; the judge wears a wig and the public are allowed in. How then does the Court Martial differ from a civilian court?

Who is present at the Court Martial?

Judge: The Court Martial is presided over by a Judge Advocate, a trained judge with a military background who also sits as a judge in the Crown Court. The most senior Judge Advocate is the Judge Advocate General HHJ Jeff Blackett, a senior circuit judge and previously a Commodore in the Royal Navy.  Judges wear a bench wig, bands and a black robe with a tippet (sash) in the tri-service colours (navy blue, army red & air force blue); they do not wear military uniform. Until recently Judge Advocates were addressed as ‘Sir’ however this year it was decided that Judge Advocates would now be addressed as ‘Your Honour’.

Defendant: The defendant is usually a member of the Armed Forces. There is now only one Court Martial that deals with members of the Royal Navy, Army and Royal Air Force. However some civilians may be tried by the Court Martial, either for crimes committed whilst in service or if subject to military discipline (usually civilians living on military bases). The accused wears uniform without a belt and sits next to Defence Counsel, there is no dock.

Jury: The ‘jury’ in the Court Martial is called the Board and is made up of between three and seven members who are either commissioned officers or senior non-commissioned officers. The Board will wear uniform and march in to court led by the senior member. Service personnel salute the board and counsel bow. The most senior member of the board is the ‘President of the Board’, they must be senior in rank to the accused and are responsible for the integrity of the board’s deliberations.  When deliberating and following ancient tradition members of the board vote in reverse order of seniority so no one feels pressured to vote the same way as their superior. If a civilian is being tried then the Board is made up of civilians (usually MoD personnel) who elect a foreman just like a jury in a Crown Court.

Prosecution: Prosecutions are handled by the Service Prosecuting Authority (SPA), a unified military version of the CPS staffed by military lawyers and headed someone entirely independent of the military, currently Bruce Houlder QC. The SPA has increasingly professionalised the conduct of service prosecutions since its inception following the Armed Forces Act 2006. Previously matters were prosecuted by the individual services, now lawyers from any service can prosecute; an airman can prosecute a soldier, a sailor can prosecute an airman. As serving officers SPA lawyers will wear uniform and will salute the Judge Advocate and Board not bow.

Defence: The defendant is entitled to representation from any qualified barrister, solicitor or a similarly qualified lawyer from the Commonwealth. Usually this is a barrister or solicitor who appears in the same manner as they would in the Crown Court.  In addition to a qualified representative tradition dictates the appointment of a Defendant’s Assisting Officer to assist with the conduct of the case. This member of the defendant’s unit helps to arrange witness attendance, conducts research where required and supports the defendant through the process. Defendants are not entitled to Legal Aid in the normal manner, instead legal aid is provided by the Armed Force Criminal Legal Aid Authority but increasingly the defendant will be required to contribute to the costs of their defence. This can lead to some opting to represent themselves or simply pleading guilty rather than incur the expense.

The Trial

The Court Martial tries offences against both service law and ordinary criminal offences committed on military bases or overseas. Additionally the Police may return a serviceman accused of crimes elsewhere in the UK to the military for trial. The conduct of the trial is entirely in the hands of the Judge Advocate and follows the procedures and layout of the Crown Court. Since the reforms of the Armed Forces Act 2006, the Board sits separately from the Judge Advocate in the manner of a jury. The Judge Advocate will arraign the defendant and swear in the Board. Counsel sit at tables facing the bench and the trial takes the same format as in a Crown Court. The prosecution is under the same burden of proof in the Court Martial as in the Crown Court and the defence may challenge evidence as robustly. At the conclusion of the trial the Judge Advocate will sum up the case having heard legal submissions from counsel. Then the Board will withdraw to deliberate on the verdict under the direction of the President of the Board.

The Sentencing

The most significant difference between the Crown Court and the Court Martial is at the sentencing stage. The sentence is decided, in the case of service personnel, by the Judge Advocate and the Board. If a civilian is being tried, then the Judge Advocate alone passes sentence. The Court Martial has wide sentencing powers that can affect both the liberty and the career of a defendant.

At the sentencing stage the Board will join the Judge Advocate on the bench and hear mitigation from counsel before retiring to decide upon sentence. As with a jury in the Crown Court, the Judge Advocate gives directions on the law to the Board that they must follow. The Board also has before them during the sentencing exercise a report of the defendant’s service record. Their discussions are private and each member has a vote. If there is a deadlock the Judge Advocate has the deciding vote. Therefore, the sentence passed by the Court Martial is not simply the decision of a lawyer applying the law but a collaborative exercise with experienced members of the Armed Forces.

As in the civilian courts, a guilty plea attracts a discount in sentence. However unlike the civilian courts a Court Martial may, if necessary, depart from the usual sentencing practices and indeed the Sentencing Guidelines for ‘Service reasons’.

The Judge Advocate is required to give his or her reasons for the sentence they are imposing. Although rarely done, the President of the Board may add further comments explaining the effect of offences on the military generally. If a defendant is sentenced to custody then the order will be given to march out. The Court Orderly (the equivalent of an usher) will order the defendant and escort to salute and then march out of the court room.

Military Correction and Training Centre

Sentences of Military Detention (unless very short) are completed at the Military Correction and Training Centre at Colchester. At this point the defendant is treated regardless of rank as a private soldier (or Navy/Air Force equivalent) and is posted to one of two companies – A or D. A Company is made up of those who will return to military service at the end of their sentence and focuses on training to ensure that they are an asset when they return to their unit. D Company is for those who have either been discharged and will either serve their entire sentence in MCTC or will be transferred to a civilian prison on discharge. Training here is focused on skills for use in civilian life. MCTC is not a prison and therefore the regime is very different. However there is still a process of moving from an open to a closed regime and further incentives for good behaviour including remission of up to 1/6 (sentences of 90 days plus) of the sentence in addition to automatic remission of 1/3 on sentences of over 36 days.

Written by Matthew Bolt

Matthew Bolt is the Membership Secretary of the Association of Military Court Advocates. He recently completed the Bar Professional Training Course at Kaplan Law School and is currently seeking pupillage.

Types of Criminal Courts – General

In this section we will try to de-mystify the criminal courts and give an overview from start to finish of what happens in court.

What sorts of Courts can try a criminal case?

In answering this, it is helpful to draw a distinction between ‘first instance’ cases (cases where there is a trial) and ‘appellate courts’ (courts that hear a case after there has been a finding of guilt that deal with appeals against a decision of the ‘first instance’ court).

First Instance/Trial Courts

There are two courts that hear trials (or take a plea of guilty and deal with sentences):

Magistrates’ Court

Overview

These are the oldest courts in the land and have existed, in one way or another, since the 14th Century. They deal with all summary only offences and some (less serious) either way offences.

Who are the magistrates?

Magistrates can be either lay or professional. Lay magistrates (historically called Justices of the Peace – JPs) form the majority of magistrates and are people who are not legally trained. They sit on a voluntary basis around 20 times a year and are drawn from the local community. As they are not legally qualified, they are assisted by a legal advisor (historically called a clerk) who takes notes of the hearing and any evidence heard. The legal advisor will give advice to the JPs on what the law is (but not in relation to deciding what to make of the evidence).

Lay magistrates will usually sit as a panel of three. Occasionally, usually due to lack of availability, they can sit as a panel of two, although this is generally undesirable due to the risk of them disagreeing. When lay magistrates are sitting in court as judges, they will often be referred to as a ‘lay bench’. One person will be the ‘chair’ who will give the judgment and often lead discussions (if any) in Court.

Professional magistrates are now called District Judge (Magistrates’ Court), or DJ for short (they used to be called Stipendiary Magistrates, which is a term you will still hear being used). They are appointed by the Ministry of Justice and generally have to have been practicing as a lawyer for seven years before they can be considered for an appointment.

Some people are practicing lawyers who sit part-time as a DJ. These are called DDJ (Deputy District Judges) and will sit for about 20 days a year whilst practicing for the rest. They have all the powers of a DJ, except for the fact that they cannot deal with youth cases.

Guidance on who can be a magistrates, and further details can be found here).

What do you call a magistrate?

In court, a DJ will be called ‘sir’ or ‘madam’ as the case may be. If there is a lay bench, then you normally pretend you are speaking to the ‘chair’ and address them as ‘sir’ or ‘madam’. Some people will address the whole panel as ‘your worships’, although this is becoming old-fashioned.

What do they wear?

Magistrates, whether lay or professional, will wear a dark suit in court, as will the lawyers. Neither the magistrates nor the lawyers wear robes or wigs or anything like that.

Crown Court

Overview

Crown Courts date only from 1971, but the courts that they replaced (the old Assizes and Petty Sessions) date back many hundreds of years. They deal with all the indictable only offences as well as some either way ones.

Who are the Judges?

A Crown Court Judge will always have been a practicing lawyer for at least 7 years. They are appointed by a branch of the Ministry of Justice, the Judicial Appointments Commission.

Sitting at a trial, the Judge will always sit with a jury made up of 12 people who are chosen at random from the electoral roll in the local area. The Judge will make legal decisions and rulings and sum up the facts for the jury, but it is the jury (and only the jury) who can return a verdict of guilty or not guilty.

If the jury finds someone guilty (or they plead guilty) then it is the Judge who will sentence that person. Unlike in some countries, the jury plays no role in sentencing.

As with DDJs, sometimes practicing lawyers ‘sit’ part time as Judges of the Crown Court. They are called Recorders.

High Court Judges sometimes also sit in the Crown Court to deal with the more serious offences (typically murder).

Certain Judges who are Senior Crown Court Judges have been designated as the ‘Recorder of X’ or ‘Honoury Recorder of X’ with X being a city, borough or district. These Recorders are full time Judges and should not be confused with part-time Judges (more details can be found here). Generally, if someone is Mr/Mrs/Ms Recorder Smith, then they will be a part-time Judge. If it is The Recorder of [Manchester] then it will be a full-time Judge.

What do you call a Judge?

A Recorder or Crown Court Judge is addressed as ‘Your Honour’ in Court. The only exceptions is Judges at the Old Bailey (officially called the ‘Central Criminal Court’) and those Judges that are the Recorders or Honoury Recorders who are addressed as ‘Your Lordship’, as are all High Court Judges.

What do they wear?

A Recorder wears the normal robes that they wear day to day in court.

A Crown Court Judge will wear a gown, a different wig, and a red sash.

A High Court Judge will wear a red gown.

High Court – http://i.telegraph.co.uk/multimedia/archive/01223/news-graphics-200_1223899a.jpeg

Crown Court – http://www.basildon-today.co.uk/content/newsimages09/MD-JUDGE.Jpg

Classification of Offences

For anyone brought up on American TV shows, the common terms used are Felonies (serious offences) and Misdemeanours (less serious offences). These were the terms used in England up until 1967 (although the distinctions had been eroded before that) and stem from the days before the American Revolution when the American Colonies (as they then were) used English Law.

 In England today there are basically three categories of offences: Summary Only, Either Way and Indictable Only.

Summary Only

These are cases that (almost always) can only be tried in the Magistrates’ Court. By default, the maximum sentence that can be imposed is six months imprisonment (although many offences have a lower maximum sentence).

 A complete list of all the offences that come within this category would be far too long, but they include almost all driving offences (unless it was someone driving dangerously or someone was killed or injured), Common Assault (an assault without any injury, or only minor injury), ss4 and 5 of the Public Order Act (basically using offensive words or causing a fear of violence) and most regulatory offences.

In relation to these offences, there is generally a rule that the prosecution has to be started (normally by the police telling the court that they wish to start one) within 6 months of the offence being committed.

Either Way Offences

These are offences that can be tried either (hence their name) in the Magistrates’ or the Crown Court. These are generally cases where the culpability (the harm caused to society) is wide ranging and therefore sometimes they will be very minor offences and sometimes very serious ones.

 For example, theft is either way. It can vary from someone who shoplifts a packet of crisps up to somebody who steals millions of pounds from a bank.

 If someone is charged with an either way offence and pleads not guilty, there has to then be a decision as to where the trial should be held, Firstly, the Court will decide (after hearing from the person charged and the Prosecution) whether, on the facts that they have outlined by the Prosecution, they believe that the sentence passed if the individual is found guilty exceeds their maximum sentencing powers (if there is one either way offence, then the maximum is six months, if there are two or more, then the maximum is 12 months).

If the Court decides that that is the case, then they will ‘decline jurisdiction’ and the case will be sent off to the Crown Court for trial. If the Court decides that their sentencing powers are sufficient, then the person charged has a decision as to whether he wishes the trial to be heard in the Magistrates’ Court or the Crown Court.

A list of the either way offences is contained within Sch 1 Magistrates’ Court Act 1980. Common either way offences include : theft, burglary, handling stolen goods, ABH (assault occasioning Actual Bodily Harm), possession/possession with intent to supply/supplying drugs (of Class A, B or C) and fraud.

Indictable Only Offences

These are generally the most serious offences that will often lead to a lengthy term of imprisonment. If someone is charged with such a case, then when they go to court for the first time, it will be to the Magistrates’ Court and will be sent to the Crown Court for trial. The role of the Magistrates’ Court here will be only to deal with the question of bail (except for offences of murder, where the Crown Court rather than the Magistrates’ Court that can grant bail).

Common Indictable Only offences are Murder, Manslaughter, Causing Really Serious Harm (injury) and Robbery

Also, anything that is charged as a conspiracy is indictable only.

‘Oddities’

Some offences don’t fit nicely into these categories.

Firstly, an offence under the Bail Act of not turning up to Court when required to do so are tried by the Court where that person was due to attend.

Criminal Damage is an either way offence, but it has different rules. If the value of the damage is under £5,000 then the case has to be tried in the Magistrates’ Court, if the damage is over £5,000 then it is either way.

 Also, certain offences that are summary only can be tried at the Crown Court if they are ‘linked’ to an offence that is being tried there. The only offences are those listed in s40 Criminal Justice Act 1988. They are :