Criminal Law and Practice is not a subject that is included in the Legal Secretaries Diploma course, and the reason for this is that when the course was first devised, it was geared to the most common areas of law that are practiced in the average firm of solicitors, as this would give the student the best chance for finding a job. However, Criminal Law and Practice is provided by the Institute as a Higher Diploma Course and it is a very interesting area to work in.
In the Legal Secretaries Diploma course you will remember from your studies of the English Legal System in general that the Magistrates’ Court is the lowest Court in the Criminal Law system, but nevertheless is a very important one, because it not only deals with the majority of crimes that are committed but, in fact, every single criminal case has to be commenced there. The more serious ones will be transferred to the Crown Court for trial whilst the less serious ones will be dealt with and disposed of there.
Whereas I have mentioned ‘more serious’ and ‘less serious’, you will, no doubt, remember that crimes are classified into three categories, not just two.
1. Summary offences: These are the less serious ones like driving offences, minor thefts, common assault, and the like, and will be dealt with exclusively in the Magistrates’ Court.
2. Indictable Offences: These are the most serious offences, like murder/manslaughter, robbery, and serious burglary. These will be dealt with, by way of Indictment, in the Crown Court.
3. Hybrid Offences (sometimes called ‘either/or’ offences, because they can be tried ‘either’ in the Magistrates’ Court ‘or’ in the Crown Court). These are offences more serious than Summary ones and less serious than Indictable ones. Take theft, for example – this is a hybrid offence because the crime of theft has degrees of seriousness. I can steal a paper clip from work (not serious) or £10,000 from my bedridden grandmother (very serious), but they are both the crime of theft. Theft is a statutory crime which also lays down that the maximum penalty for theft is seven years imprisonment, meaning that any punishment up to that level can be imposed at the discretion of the magistrate or judge – so the paper clip would, perhaps, warrant a conditional discharge, whereas stealing from my bedridden uncle would warrant, perhaps, a term in prison.
Most crimes are laid down by statute and the statute will say what the category of the crime is and the maximum sentence that can be imposed. Obviously the Crown Court has no cap on what sentence can be imposed (subject to sentencing guidelines laid down by the Sentencing Council/Ministry of Justice) but the Magistrates’ Court does have a cap. Until recently, the maximum term of imprisonment that could be imposed in the Magistrates’ Court was six months, or one year if there were two offences tried together, and the maximum fine that could generally be imposed was £5,000 (there were some offences under, for example, the Health and Safety legislation that have maximum fines of £20,000, but these are exceptions to the rule).
This maximum fine of £5,000 applied to the Court, i.e. a Magistrates Court was not capable of imposing a fine above this amount (subject to the above exception); however, it did not necessarily apply to the offence. Offences are classified under five different levels of seriousness and each level had a scale of maximum fines that could be imposed for crimes of each level – this is generally referred to as ‘The Standard Scale’ and fines were set out in s. 37(2) of the Criminal Justice Act 1982. This was as follows:
Level Maximum fine
So, if a hybrid offence came to be tried by the Magistrates, and on listening to the case and finding the accused guilty, they decided that it deserved a sentence of a term of imprisonment, for example, of more than one year, or a fine of more than the cap for the level set out in the Standard Scale, it would, in such an instance, be necessary for them to transfer the case to the Crown Court for sentencing. This, however, results in extra court time wasted and so it has been mooted for some time that the sentencing powers of the Magistrates (or Magistrates’ Court District Judges) should be increased. The result of this was the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and in particular of Sub-sections (1), (2) and (4) of section 85 thereof which was stated in the Act to be introduced on the day appointed by the Minister of Justice. It was subsequently declared that the ‘appointed day’ was to be 12 March 2015.
The effect of the Act was that the statutory caps on Levels 1 – 4 of the Standard Scale would remain the same, but that for Level 5 offences the cap would be abolished. This means that the Magistrates’ Court now has the ability to impose a fine of whatever amount it should decide, bearing in mind the seriousness of the offence, any mitigating factors and also the accused’s ability to pay (taking a long-term view if necessary).
What about Levels 1 – 4? Well, these are still under review, and it is expected, taking into account the attitude of both the government and the judiciary, that there should be more proportionality between offences and fines, and that there will be further legislative changes sometime in the future with a possible increase of the levels by some 300%. Also, of course, there will be a saving of the Crown Court’s time and resources by reducing the number of committals from the Magistrates’ Court for sentencing.
It does not seem that the same attitude applies to sentences of imprisonment, not for the time being, at any event. This is likely because of the current gross overcrowding of prisons rather than any regard to the general concept of the liberty of the subject.