Verdicts and Judgments

In the civil courts a statement of claim can be struck out or judgment entered against the absent party. A judgment may be entered for a sum of money plus interest (damages), or be made to set off claims and counterclaims, resolve disputed issues between the parties, order a party to take a particular step or desist from taking certain action, approve terms of settlement already reached by the parties or stay proceedings on the basis that agreed action will be taken by one of the parties (this is known as a ‘Tomlin Order').

Deductions may be made from damages, for example, as a result of contributory negligence or to off-set the receipt of state benefits for an injury (this occurs in per­sonal injury claims (see the Social Security (Recovery of Benefits) Act 1997).

In civil proceedings all judgments and orders are sealed by the court (bear the court seal) and include the name and title of the judge making the order. Judgments can be ‘reserved’ to be given at a later date in open court.

In a criminal trial in the Crown Court, a jury will make a finding of guilt or innocence. To help the jury arrive at a decision the trial judge can give the jury a document known as ‘Routes to Verdict’. This can take the form of a list of questions, which, if the jury is satisfied have been answered, would lead it towards the path of a verdict of ‘guilty’ or ‘not guilty’. The questions should be confined to the evidence in the trial and the facts in issue. A trial judge can decide to put the ‘Route to Verdict’ document in pictorial format.

In a non-jury trial in criminal proceedings, the judge will be responsible for deciding the ultimate issue of guilt or innocence and noting the nature of warnings related to various types of evidence.

7.6.1 Newton Hearings (Criminal Cases)

If after a verdict of guilt has been reached, there are still issues to be determined in order for the judge to decide the correct level of sentence to impose, a ‘Newton hear­ing’ can be held (see R vNewton (1982) 77 Cr App R 13).

7.6.2 Sentencing (Criminal Cases)

When sentencing a defendant, the judge must apply the criteria set out in the Sentencing Act 2020 (this Act is also known as the ‘sentencing code’) and interpret these in line with the appropriate sentencing guidelines. Section 59 of the 2020 Act imposes a duty on judges to follow the sentencing guidelines when passing sentence on a defendant.

As most offences include sentences that are in a range of possibilities, the Sentencing Council has issued guidelines as to the factors (both aggravating and mitigating) to be taken into account when deciding on the level of sentence to apply. You will find the guidelines at https://www.sentencingcouncil.org.uk/.

All advocates should ensure that they are aware of the provisions of the ‘Sentencing General Guideline: Overarching Principles’ as well as the guidelines that apply to the

particular offence in question. These are all published on the Sentencing Council's website.

If a defendant is found guilty in a criminal trial, then the proceedings move towards sentencing. The sentencing powers of the criminal court vary between the Magistrates' Court and the Crown Court. However, when sentencing adults, the court should be mindful of the purposes of sentencing as set out in s. 57(2) of the Sentencing Act 2020 as:

a) the punishment of offenders,

b) the reduction of crime (including its reduction by deterrence),

c) the reform and rehabilitation of offenders,

d) the protection of the public, and

e) the making of reparations by offenders to persons affected by their offences.

In the case of offenders under 18, the court should be mindful of the principal aim of the youth justice system which is to prevent offending (or re-offending) and to have regard to the offender's welfare - see Sentencing Act 2020, s. 58. Under s. 25 of the 2020 Act, children who are tried in an adult court must have their case sent back to the Youth Court for sentencing (unless the offence is a homicide).

The court should also consider the seriousness of the offence with reference to the offender's culpability (blameworthiness) and any harm caused that was intentional or foreseeable - see Sentencing Act 2020, s. 63.

In addition, the judge can take into account certain mitigating factors that might reduce the sentence (see ss. 73-75 of the 2020 Act) as well as aggravating factors that would increase the likely sentence (see ss. 64-72 of the 2020 Act).

The judge will adjourn proceedings to obtain pre-sentence reports. This is a require­ment if an offender is 18 or over (see Sentencing Act 2020, s. 30) unless the court considers that such reports are unnecessary. It is also a requirement if an offender is under 18 unless there exists a previous pre-sentence report on the defendant and the court considers, given the circumstances of the case and the information in the previous report(s), that another pre-sentence report is unnecessary (see s. 30(3)).

Pre-sentence reports are reports about the offender's circumstances and may include medical or psychiatric evaluation as well as any welfare concerns. For adult offend­ers these are prepared by the probation service and for offenders under 13 these will be prepared by a local authority social worker. For minors aged 13-17 the report may involve the participation of both the probation service, the local authority social serves and/or the youth offending team (‘YOT').

The different types of sentences include imprisonment, detention in a young offender’s institution (in the case of minors), fines, community sentences and condi­tional discharge (see the Powers of the Criminal Courts (Sentencing) Act 2000).

Where an offence carries a custodial sentence a judge in most cases has a discretion as to whether to impose a custodial sentence (unless the offence carries a manda­tory custodial sentence, e.g. murder). Under s. 230(2) of the Sentencing Act 2020, the court must not pass a custodial sentence unless the court is of the opinion that the offence (or a combination of the offence and one or more offences associated with it) is so serious that neither a fine alone nor a community sentence can be justified for the offence (known at ‘the custody threshold’).

Section 204 of the 2020 Act states that the court must not make a community order unless the court is of the opinion that the offence (or a combination of the offence and one or more offences associated with it) is serious enough to justify the making of an order (known as ‘the community order threshold’).

The court can make an order deferring the passing of sentence (a ‘deferment order’) until a later date specified in the order (see Sentencing Act 2020, s. 3). Such orders are made to enable the court to review the defendant’s conduct after conviction or to take account of changes in the defendant’s circumstances. Such orders can impose certain requirements on a defendant about their residence or contain restor­ative justice requirements (the defendant takes part in an activity to maximise their awareness of the impact of their offence). Such an order has the effect of merely adjourning the trial and a defendant can be re-sentenced if he/she breaches the terms of a deferment order.

The court can also suspend a custodial sentence so that it does not take effect unless an event occurs (such as the defendant reoffending) which activates the original cus­todial sentence (see s.

Under s. 52 of the 2020 Act a court has a duty to give reasons for the sentence and identify the relevant sentencing guidelines used to inform its decision. In deciding on the length of any sentence for imprisonment, the court can give credit for any time the offender has already spent on remand in prison or on bail but under a curfew

(see Sentencing Act 2020, s. 325). We will examine one of the sentencing guidelines in exercise 1 at the end of this chapter.

7.6.3 Enforcement of Judgments (Civil Cases)

A civil advocate’s duties may not end once the trial is over as further steps may be required to secure the judgment. For example, if a money judgment remains unpaid, it is possible for a party to take a number of additional steps to recover the sums owed by making further applications to the court after the trial.

The various methods of enforcing a judgment are set out in the CPR Parts 71-89. The methods include applying for a ‘third party debt order’ whereby an order can be obtained that any third party who owes a debt to the judgment creditor should pay that debt to the applicant instead. This might include banks that hold monies for a judgment creditor (see CPR Part 72). Another enforcement method is an attach­ment of earnings order whereby an order is made that sums are to be deducted from an employed judgment debtor’s salary, wages, fees, bonuses, commission or over­time payments to pay the outstanding debt (see Attachment of Earnings Act 1971, s. 6 and CPR Part 89). If the judgment creditor owns a property, then an order can be made to register a charge against the property as security for payment of the debt.

Certain enforcement procedures can only be granted by a High Court and so it may be necessary to transfer a County Court debt to the High Court for enforcement - see High Court and County Courts Jurisdiction Order 1991. Similarly, a High Court case may have to be transferred to the County Court for enforcement, for example, where a debt of less than £600 is to be enforced through a control of goods order. The County Court does not have powers to make an attachment of earnings order and so such applications would need to be made in the High Court.

As there are so many different methods of enforcement, an advocate will first need to establish the financial situation of a judgment debtor and details of their assets in order to decide on the best method of enforcement. This can be done by first issuing an application for an ‘Order to Obtain Information from Judgment Debtors’ by fol­lowing the procedure set out in CPR Part 71.

7.6.4 Costs

As discussed in Chapter 2, the court has the power to make civil costs orders at vari­ous stages of the proceedings (including trial). Trial costs are calculated after the trial in a process known as ‘detailed assessment’ (this differs to the summary assessment of costs discussed in earlier chapters). The procedure is set out in CPR Part 47. Costs can be made on both an indemnity and a standard basis.

A costs order in criminal proceedings will usually be made at the end of the trial. A costs order can be made from central funds to pay the defendant’s costs or a private prosecutor’s costs (see Prosecution of Offences Act 1985, ss. 16 and 17). The court can also make a wasted costs order. Criminal costs are dealt with in CrimPR Part 45. The court must not make a costs order unless each party or anyone else who would be directly affected is present (see CrimPR Part 45.2).

Certain trial costs orders only apply to particular types of civil cases. For example, in personal injury cases the court can make what is known as ‘Qualified One-Way Costs Shifting’ (‘QOCS’) orders (see CPR Part 44). This is where the normal rules about a losing claimant bearing the defendant’s costs will not arise in certain circumstances. This is to protect claimants who no longer have access to costs insurance from hav­ing to pay large costs to defendant insurers. Any QOCS costs order is not to exceed the sum of damages and interest that the claimant would have recovered if they had been successful in the personal injury action.

In Siddiqui v University of Oxford Chancellor, Masters and Scholars [2018] EWHC 536 the court indicated that QOCS could still apply even if the personal injury claim included other causes of action such as contract. However, whilst costs can be recov­ered in such circumstances they will be reduced accordingly at the judge’s discretion. The case of Brown v The Commissioner of Police of the Metropolis (The Equality and Human Rights Commission intervening) [2019] EWCA Civ 1724 confirms there is no automatic right to a QOCS in a mixed personal injury and non-personal injury case. The protection is therefore subject to judicial discretion.

7.6.5 Finality of Litigation

Generally in civil proceedings parties are expected as a matter of public policy to put forward the entirety of their case to the court for resolution in one set of proceed­ings. This is to avoid parties embarking on piecemeal litigation. This rule was estab­lished in Henderson vHenderson (1843) 3 Hare 100. Any attempts to relitigate issues that could have been litigated in earlier proceedings could amount to an ‘abuse of process’ and be struck out by the court. The exception to this is where the issues, although the same, involve different defendants or different legal entities where there are legitimate reasons for not amalgamating the claims (see Johnson v Gore Wood and Co (a firm) Ltd [2000] UKHL 65). In Taylor Goodchild Ltd v Scott Taylor and Another [2021] EWCA Civ 1135 Newey LJ remarked “[i]t by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all” [51]. However, where the later action can be shown to be ‘oppressive’ or an abuse of process then it should be struck out according to the Taylor Goodchild Ltd case. An advocate should however follow the ‘Aldi guidelines’ from the case of Aldi Stores Ltd v WSP Group PLC [2007] EWCA Civ 1260. This requires the advocate to raise the possibility with the trial judge that separate and subse­quent proceedings might be issued. This would then enable the court to express a view about resourcing and the efficient use of court time and whether it would be in the public interest for further litigation to be conducted after one court has already decided some of the issues.

In criminal proceedings a rule exists known as the ‘double jeopardy rule' that would ordinarily prevent a person from being charged with the same offence twice. However, the Criminal Justice Act 2003 has created exceptions to this rule for seri­ous offences following recommendations made in the Macpherson Report (1999) after the death of Stephen Lawrence who was killed in a racist attack (see recom­mendation 38). The qualifying offences are to be found in Part 1 Schedule 5 of the 2003 Act and include murder, kidnapping, rape sexual offences against a minor, class A drug offences, arson, war crimes and terrorism. Under section 77 of the 2003 Act an application can be made to the Court of Appeal to quash the original acquittal of a defendant and order a retrial.

7.7