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Either-way offences
Electing Crown Court Trial
Enforcement
English and Welsh Jurisdiction
European Convention on Human Rights (ECHR)
Evidence
Examination-in-chief
Exhibit

Either-way offences

Either-way offences can be tried in the Magistrates' Court or the Crown Court.
Either-way offences may be relatively minor or quite serious, depending on the circumstances of the offence.

For example, theft is a common either-way offence. However, the seriousness of the offence will depend on the facts of the case. The Magistrates' Court is a suitable venue for a shoplifting matter, but not the theft of a priceless diamond.

An either-way offence reaches the Crown Court either by the Magistrates' Court declining jurisdiction to hear the matter (often following representations from the prosecutor) or by the defendant electing a Crown Court trial.

The sentences available for either-way offences are more serious in the Crown Court than the Magistrates' Court, albeit the Magistrates' Court can always commit a case for sentence if it considers its sentencing powers insufficient.

Electing Crown Court Trial

If a defendant has been charged with an either-way offence, he/she may "elect" to be tried in the Crown Court. In these circumstances, the case will be set down for a committal hearing to ensure there is a "case to answer" against the defendant. This will normally take place 4-6 weeks later. Should the matter be committed the Crown Court, in due course the defendant will be tried by a jury, (assuming he/she does not plead guilty in the interim).

From a defendant's point of view, there are advantages and disadvantages of being tried in the Crown Court and he/she will have to consider carefully where they want to be tried.

Crown Court proceedings are lengthier and more costly (which will be relevant if the defendant is not legally-aided or if an adverse costs order is made), however the conviction rate is generally lower than in the Magistrates' Court. The Crown Court has a wider range of sentencing powers, although a Magistrates' Court may always commit an either-way offence matter for sentence if it feels its sentencing powers are insufficient, in any event.

Enforcement

Enforcement is the process of realising a judgment debt.

There are a number of methods of enforcement. Examples include:

  • applying for a warrant of execution (for bailiffs to attend a the judgment-debtor's property to seize goods),
  • applying for a charging order over the judgment-debtor's property and
  • applying for a garnishee order (against the judgment-debtor's salary).

A more drastic solution is to make a statutory demand and then if the debt is not paid to petition for the defendant's bankruptcy.

It is vitally important that consideration is given to enforcement at the outset of a case. An unscrupulous defendant may take no notice of a judgment. Enforcement can be a costly process that may not guarantee success. There is normally little point in successfully suing a defendant who has no assets (often referred to as a "man of straw").

If it can be proved that a defendant might conceal or dissipate his assets to frustrate a judgment of the court it might be worth a claimant considering applying for a freezing/Mareva injunction at the outset of a case or post-judgment.

English and Welsh Jurisdiction

The United Kingdom does not have a single legal system. There are three separate legal systems (including statutory provisions and courts) for:-

  • England and Wales
  • Scotland
  • Northern Ireland

This website concerns the legal system of England and Wales.

European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR) is a 1953 treaty between various states that enshrines fundamental rights upon individuals within member states, including the United Kingdom. These rights include the right to a fair trial, the right to life, the right to privacy, the right to liberty, freedom from torture, freedom from slavery, freedom of assembly and freedom of expression.

If an individual feels his/her rights have been interfered with by the state they may make an application to the European Court of Human Rights (in Strasbourg) that that state pays him/her damages. States are also expected to comply with judgments and remedy breaches (although there is no formal mechanism of enforcement).

An application may only be made to the European Court of Human Rights when all domestic legal avenues have been exhausted.

In the United Kingdom, the Human Rights Act 1998 incorporates the ECHR into domestic law. The Human Rights Act 1998 makes it unlawful for public authorities (including courts) to act in contravention of the ECHR. Furthermore, any domestic legislation (i.e. statute law) should be interpreted by the courts in a way that gives effect to the ECHR, in so far as it is possible. Thus, potential breaches of the ECHR may be raised in the context of ongoing court proceedings (including appeals to the appellate courts) or by judicial review of a public authority.

The European Convention on Human Rights and the European Court of Human Rights is overseen by the Council of Europe. The Council of Europe is an entirely separate organisation to the European Union and the European Court of Justice. However, the EU and European Court of Justice take note of ECHR decisions as all EU member states are signatories to the ECHR.

Evidence

Evidence is the means of substantiating an argument and proving, disproving or challenging a particular set of facts that are subject of proceedings. For example, oral evidence will be the testimony of live witnesses.

Examination-in-chief

Examination-in-chief is the process (during a trial) of a party asking questions of a witness he/she has called. Examination-in-chief (which will be carried out by a lawyer if a party has one) is followed by cross-examination.

Exhibit

An exhibit is any tangible evidence in a case (e.g. a document or object) aside from a witness statement or affidavit.

An exhibit will be "produced by" or "exhibited by" a witness statement or affidavit. For example, in a criminal case, a police officer called PC John Smith may make a witness statement which reads: ".I seized a kitchen knife that I produce herewith at "exhibit JS/1" (JS being his initials). If he produces a second exhibit it will be referred to as JS/2 and so on.

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