Appendix 4

Guilty or Not Guilty
"The Structure of a Decision"

A. What needs to be proved and by Whom?

1. What are the elements of the offence charged?
2. Usually the prosecutor has the burden of adducing all necessary evidence and of proving the case 'beyond reasonable doubt'
3. Occasionally, the defendant may have the burden of adducing evidence and of proving matters on the 'balance of probabilities'
4. Take legal advice whenever necessary.

B. The Evidence

1. Consider the admissible evidence arising from:

• witnesses
• Section 9 statements
• Section 10 agreed facts
• exhibits and documents
• video or tape recordings.

2. Exclude;

• anything heard which is not covered by admissible evidence
• personal views, opinions or prejudices
• consideration of possible consequences of conviction or acquittal.

3. What facts are either not in dispute, or in dispute.

4. Record separately the facts which are either in dispute or not in dispute. These will form part of your reasons later

Is it necessary to determine them - IF SO

• weigh all the admissible evidence
• remember all witnesses are entitled to equal consideration

5. What is found to be fact based upon the evidence?

6. Record separately your findings of fact including reasons for your findings and explaining the way you have dealt with legal submissions. This will form part of your reasons later.

C. Inferences from the Silence of the Accused?

1. Are there possible inferences to be drawn from the;

• silence of accused on arrest/charge
• failure of accused to give evidence at trial
• failure of accused to account for presence of self at scene
• failure of accused to account for possession of objects, substances or marks.

2. This is a very complex area of law - always take legal advice.

3. Record separately any inferences you have drawn, including the weight you will attach to them. This will form part of your reasons later.

D. Is there a case to answer?

1. At the end of the prosecution case consider if there is a case to answer

• if the defence make such a submission
• if the accused is unrepresented
• if you feel that there may not be a case to answer

2. No case to answer will usually be found where;

• there is no evidence at all on a relevant element of the offence OR
• the relevant prosecution evidence is so unreliable or discredited that it cannot be relied on to prove the case.

3. A case to answer cannot be found solely on inferences drawn from the accused's silence etc. see C above

4. At this stage it is possible to acquit OR find a case to answer BUT not to convict

E. The European Convention

1. Consider whether there are any issues arising in the prosecution of the case or the course of criminal proceedings which engage a Human Right. Refer to the Convention Decision Making Card. Record separately the decisions you reached. This will form part of your reasons later.

F. Is the case proved?
At the very end of all the evidence:

1. Has the prosecutor proved all the elements of the offence beyond reasonable doubt?

Has the defendant failed to discharge any evidential burden on him or her on the balance of probabilities?

G. The Decision

• Majority decision
• Collective decision - no 'dissenting vote' to be made known

1. Whether 'guilty' or 'not guilty' - consider the reasons for reaching your decision. The facts and reasons reached earlier in the process will help you. Your reasons should include:

• Finding of fact - a statement of what evidence was not disputed - a statement of what evidence was disputed and what facts you found as the evidence including reasons why one version was preferred to another.
• Findings of law - a statement of what legal submissions were made and how you dealt with them. You may need to include reference to case law and statute law. - a statement of the relevant tests you have applied in relation to the facts to either convict or acquit the defendant.

2. If 'not guilty' - acquit and consider costs etc.

3. Draft your reasons for reaching your decision. The facts and reasons previously recorded will assist you in this process. Once completed, always discuss with your legal adviser before delivering your reasons in open court. Record the agreed facts, facts in dispute, findings of law and any European Convention issues.

Important Note

This chart contains an outline only, for easy reference. It is not a substitute for detailed training nor for consultation with the court legal adviser.

Appendix 4(b)

Sentencing

"The Structure of a Decision"

A. The Offence

1. How serious is an average offence of this type?
2. Consider relevant guidelines for this type of offence e.g. · Magistrates' Association · Court of Appeal
3. .Are there any 'associated offences' and do they affect seriousness?
4. Decide initial level of sentence for this type of offence i.e. · discharge · fine · community sentence · custody · committal to the Crown Court for sentence (either way cases)
5. Are there any factors directly relating to the commission of this offence which make it more serious than the average (see also the available guidelines) e.g.

• premeditated
• violence/use of weapon
• racially motivated
• prevalence locally.

6. Are there any factors directly relating to the commission of this offence which make it less serious than the average (see available guidelines) e.g.

• provocation
• motivation
• spontaneity

7. Revise initial level of sentence if and as appropriate

B. Other possible aggracating factors

1. Consider e.g.

• offence on bail
• previous offences
• responses to previous sentences
• the need to protect the public from serious harm from a violent or sexual offender.

2. Revise level of sentence if and as appropriate.

C. Other possible migtigation

1. Consider whether the offender's Rights under the European Convention have been adversely affected either in relation to the Commission by him of the offence or the procedure leading to the conviction. This is a complex area of law, legal advice should always be sought.

D. Offender Migtigation

1. Consider e.g.

• remorse
• age
• are there general or mental health issues
• lack of (relevant) previous convictions
• personal circumstances
• co-operation with police

2. Revise level of sentence if and as appropriate

E. Consider the need for a pre-sentence Report

1. Is a PSR prima facie compulsory and if so can it be declared 'unnecessary'?
2. Are there other good reasons to have a PSR in any event?
3. Will some form of report short of a full PSR suffice?
4. Is there a need for a medical report? (One or two doctors)
5. What is local practice on giving an indication of seriousness?
6. What is the shortest period possible for production of any report?

F. The Sentence

1. Is punishment 'inexpedient'?

• consider a discharge.

2. Is some form of punishment appropriate?

• consider a fine
• relate to seriousness of offence and offender's financial circumstances

3. Is the offence 'serious enough' for a community sentence?

• consider the community order(s) most suitable for the offender and which restricts liberty commensurate with the seriousness of the offence.

4. Is the offence 'so serious' that only custody can be justified? Always check with the legal adviser when considering custody

• consider if the length of the restriction on the offender's liberty is commensurate with the seriousness of the offence

5. In all cases consider credit for an early guilty plea if and as appropriate

6. Is there a need to protect the public from serious harm from a violent or sexual offender?

• consider custody (or longer custody) based on the risk to the public

7. If this is an either way offence, is a committal for sentence justified?

8. Consider COMPENSATION in all relevant cases (as a sentence in its own right or as an ancillary order) and;

• give priority over fines and costs
• consider the offender's financial circumstances
• give reasons if compensation not ordered where otherwise appropriate.

9. Consider ancillary orders such as;

• costs
• endorsement of driving licence
• disqualification (e.g. from driving or from keeping animals)
• forfeiture or confiscation.

10. Check final decision in respect of e.g.

• overall seriousness of offence(s)
• movement from initial level of sentence for type of offence
• appropriate restrictions on liberty
• offender's circumstances
• totality of sentence
• nature of any other sentences being imposed

11 Check:

• any restrictions based on the offender's age
• need for any consents
• obligation to give or desirability of giving reasons

G. Announcing the Decision

1. Explain what factors you have taken into account in reaching your decision including any aggravating or mitigating factors of the case. You will need to give reasons for the sentence you impose.

Appendix 4(c)
Determining a Convention Issue

European Convention Decision making Guide

Stage One

Stage Two

Which type of Right has been engaged?

The category of Rights dictates the approach to be followed.

Stage Six

Identifying the Source of the Breach

Identifying a violation of the Convention

Having identified the type of Right engaged and having completed stages 3, 4 or 5 you will be able to state whether the Convention has been violated or not.

Stage Seven

Identifying the Source of the Breach

The source of the violation may be:

• Primary legislation; i.e. an Act of Parliament
• Secondary legislation; i.e. Statutory Instruments Order, Rules, Regulations or Bylaws
• Precedent, practice or procedure.

Stage Eight

• Using the Human Rights Act 1998
• Having identified the source of the violation, can you find a possible interpretation of it which gives effect to the Convention Right?
• If you can then you must do so.
• If you cannot, and the source of the violation is either secondary legislation or a rule of precedent, practice or procedure, you should ignore the incompatible source and give the fullest possible effect to the individuals Rights.
• If the source of the violation is primary legislation which cannot be interpreted in any other way you must follow the domestic law.

Stage Nine

Prepare your reasons for reaching your decision and explaining how you have dealt with each stage of this process.

Stage Ten

Apply the conclusions you have reached at Stage Eight to the facts of the case and proceed with the hearing.