• lawcourtshomepage

Criminal Courts

Summary Court (Criminal) Jurisdiction

The Summary Court (Criminal) is the first tier in the Falkland Islands Court System, dealing with all criminal cases in the first instance. The court has jurisdiction to deal with both the sentencing of those who are convicted before it and also the trial of those persons who enter a not guilty plea to the offences before the Court.

When dealing with matters before the Summary Court (Criminal), the practice and procedure is primarily governed by the Criminal Procedure and Evidence Ordinance and the Criminal Procedure Rules 2018.

The majority of the work of the Summary Court (Criminal) comprises of the least serious cases before the court, such as motoring matters or minor public order offences. This is because of the court has limited sentencing powers of up to 6 months custody. Where a defendant is convicted of an offence contrary to the Road Traffic Ordinance or Fisheries legislation, the Summary Court has all the sentencing powers of the Magistrate's Court, which can be up to three years' custody.

Where a defendant is convicted of an offence before the Summary Court, the Justices of the Peace will determine whether their sentencing powers are sufficient to allow them to deal with a case. If they believe that the offence or combination of offences is so serious that their sentencing powers are insufficient then they will commit the defendant to be dealt with before the Magistrate's Court. The Justices of the Peace make this decision based on information presented to the court by the prosecution lawyer and the defence lawyer / defendant. The court will hear about the circumstances of the offence and the personal circumstances of the offender.

The Justices may also decide that a matter should be dealt with by the Magistrate's Court because the defendant has other matters before the Magistrate's Court, or there is a co-accused already before the Magistrate's Court, or because the case may involve complex points of law, or because the matter is of particular public interest, or for any other reason that is in the interests of justice.

 

Sentences the Court can give

The law gives maximum penalties for offences. Every court is bound by these and no court can impose a sentence in excess of that written in the law for an offence. The maximum sentence tells the court what the highest sentence is that they can impose. The Summary Court is ordinarily limited to a maximum sentence of 6 months’ imprisonment or a fine of £5,000. There are a number of different sentencing options that all courts in the Falkland Islands can impose before they reach the maximum sentence. These are set out below in ascending order of seriousness:

Absolute / conditional discharge

This is the lowest end of the penalty range for the Court and is only imposed when the court finds it inexpedient to punish the defendant.

Compensation

Imposed to recompense a victim for personal injury, loss or damage. This may be imposed at the same time as any other sentence. The maximum amount of compensation that the Summary Court may impose is £5000 per offence. There is no limit on the amount of compensation that the Magistrate's Court may impose.

Fine

Imposed as punishment for an offence. The maximum level of fine that the Magistrate's Court may impose is unlimited. The Summary Court may impose a fine of up to £5000 per offence.

Community Order

Imposed as punishment for an offence. The order may be any length up to a maximum of three years, as determined by the court. The court must impose at least one (or more) of the requirements from the following list:

- Unpaid work - the defendant to work a number of hours in the community (between 40 and 300) as determined by the Court.

- Activity requirement - the defendant must participate for up to 60 days in activities, such as reperation, specified by the Court.

- Programme requirement - the defendant must participate in a systematic set of activities, specified by the Court.

- Prohibited Activity requirement - the defendant must not undertake the activity specified by the Court.

- Curfew requirement - the defendant must remain indoors, usually at his or her home address, for between 2 and 12 hours a day for a period of up to 6 months, as specified by the Court. This requirement may be electronically monitored.

- Exclusion requirement - the defendant must not enter the place(s) specified in the order for up to 2 years. This requirement may be electronically monitored.

- Residence requirement - the defendant must reside where directed by the Court.

- Foreign Travel Prohibition requirement - the defendant must not travel to a particular country or countries, or alternatively must not leave the Falkland Islands at ll, for a period of up to 12 months as specified by the Court.

- Mental Health Treatment requirement - the defendant must submit to treatment by a registered medical practitioner. The Court may only make such a requirement where satisfied it is right to do so on the evidence of a doctor.

- Drug Rehabilitation requirement - the defendant must submit to drug treatment for at least six months, and may be tested for drugs during the period of the requirement.

- Alcohol Treatment requirement - the defendant must submit to treatment with a view to reducing or eliminating his or her dependency on alcohol for a period of at least six months.

- Alcohol Abstinence and Monitoring requirement - the defendant must either abstain from consuming alcohol at all for a period of six months, or refrain from consuming so much alcohol that his or her body contains more alcohol than the legal drink-driving limit (35ug/100ml of breath). This requirement is monitored by use of electronic means.

- Supervision requirement - the defendant is placed under the supervision of a Probation Officer, and during the period of the requirement they must attend appointments with the Probation Officer and complete work with the aim of preventing them from re-offending.

All requirements are monitored by the Probation Officer. If a defendant breaches a requirement, then the Probation Officer may return the matter to the Court and the order may be allowed to continue, but with its requirements made more onerous; or, the order may be revoked and the defendant re-sentenced for the original offence (s).

Suspended Sentence Order

The offence before the court must be so serious that a sentence of custody is appropriate (see below). When imposing a suspended sentence, the court imposes a period of custody and then suspends it, due to either the circumstances of the offence or of the offender. This period of suspension lasts between one and two years, during which time the defendant must not commit a further offence. If they are brought back before the Court for a new offence, the presumption is that the period of custody imposed under the suspended sentence order will be activated and the defendant will go to prison.

If the court is satisfied that an offence is so serious that a sentence of more than 6 months' custody is appropriate, but that the sentence can be suspended, the court may suspend the custodial sentence with requirements that the defendant complete one or more of the requirements that can be imposed on a Community Order (see above). This is called a 'Suspended Sentence Supervision Order'. If the defendant either breaches the requirement(s), or commits a new offence, the presumption is that the period of custody imposed will be activated and the defendant will go to prison.

If the court is satisfied that an offence is so serious that a sentence of more than three months' custody is appropriate, but not more than two years' custody, the court can partly suspend the sentence of imprisonment. At least 28 days, and not more than three-quarters, of the total term must be served in prison. The balance of the total term is suspended until the full period of sentence that was imposed has expired. If the defendant commits a further offence during the period of suspension, the presumption is that they will be returned to prison to serve the rest of the partly suspended sentence.

Custody

Custody may only be passed upon a defendant where the court is of opinion that no other method of dealing with the defendant is appropriate. The court will assess the seriousness of the offence and the defendant's personal circumstances in order to determine the appropriate length of sentence.

In addition to these sentences, the Court may also impose "ancillary orders", such as an award for costs or disqualification from driving.

How is a sentence worked out?

When determining sentence the Magistrate's Court and the Summary Court will have regard to the England and Wales sentencing guidelines. You can access these guidelines online at www.sentencingcouncil.org.uk.

Sentencing depends on a number of factors and the Court will consider things like:

The defendant’s age

The seriousness of the crime

Any previous convictions that the defendant has

Whether the defendant pleaded guilty or not guilty

Whichever court is dealing with sentence, they will listen to the details of the offence and hear from the defendant or the defendant's legal representative regarding his or her explanation for the offending. The Court may then request a report from the Probation Officer to tell them more in-depth information about the reasons for the offending or it may proceed to sentence without a report (When passing a custodial sentence, the court must have obtained a report unless it is not possible to do so).

Each sentence is worked out on a case by case basis, as each crime and defendant is individual. The court staff cannot advise you as to the likely outcome of your case. If you are due to appear before the Court and would like more information about sentencing and the likely outcome of your case then you are advised to seek independent legal advice. You may be eligible for legal aid.

In some cases, the Summary Court decides if a defendant will be kept in custody or granted bail. This may happen if another court hearing is needed or the court needs more information before it can pass sentence.

If a defendant is aggrieved with the decision of the Summary Court they may be able to appeal to the Supreme Court. Further details regarding appeals can be found on the Supreme Court (Criminal) Jurisdiction page and in the FAQ "I am unhappy with the sentence I have been given, what can I do?"

 


 

Magistrate's Court (Criminal) Jurisdiction

The Magistrate's Court (Criminal) has unlimited jurisdiction to deal with all criminal offences other than those that are indictment only. The practice and procedure of the Magistrate's Court (Criminal) is primarily governed by the Criminal Procedure and Evidence Ordinance and the Criminal Procedure Rules 2018.

The Senior Magistrate sits alone in the Magistrate's Court and deals with the more serious matters before the criminal courts. All cases ordinarily start life before the Summary Court, where the Justices of the Peace determine whether their sentencing powers are sufficient. Where the Justices determine that their sentencing powers are not sufficient the matter will be committed to the Magistrate's Court. This is because the Senior Magistrate has unlimited sentencing powers.

The Justices may also decide that a matter should be dealt with by the Magistrate's Court because the defendant has other matters before the Magistrate's Court, or there is a co-accused already before the Magistrate's Court, or because the case may involve complex points of law, or because the matter is of particular public interest, or for any other reason that is in the interests of justice.

In some cases, the Magistrate's Court decides if a defendant will be kept in custody or granted bail. This may happen if another court hearing is needed or the Court needs more information before it can pass sentence.

If a defendant is aggrieved with the decision of the Magistrate's Court they may be able to appeal to the Supreme Court. Further details regarding appeals can be found on the Supreme Court (Criminal) Jurisdiction below and in the FAQ "I am unhappy with the sentence I have been given, what can I do?"


 

Supreme Court (Criminal) Jurisdiction

The Supreme Court (Criminal) deals with appeals from the decisions of the lower courts (the Magistrate's Court and the Summary Court) and the trial of indictment only offences.

Indictment only offences

Indictment only offences consist of the most serious criminal offences, such as treason, murder and rape. They are dealt with by the Chief Justice or an Acting Judge of the Supreme Court, who have unlimited powers of sentence. In these matters the defendant may elect to have their trial heard either by a jury or by Judge sitting alone.

Trial by jury takes place where members of the public, selected from those on the electoral role or those resident in the Falkland Islands for three years or more and holding a work permit or a permanent resident permit, are summonsed to attend as jurors. Dependent upon the type of crime before the court, the jury may consist of 12 people (murder and treason) or of 7 people (all other indictment only matters). The jury listens to the evidence and then determines the innocence or guilt of the defendant. If the defendant is convicted he or she will then be sentenced by the Judge. The Supreme Court is the only criminal court in the Falkland Islands for which a jury may be summonsed.

Trial by Judge is where the Chief Justice or an Acting Judge of the Supreme Court sits alone to hear the evidence. He or she determines the innocence or guilt of the defendant and, if he or she finds the defendant guilty, is responsible for determining sentence. The maximum sentence that the Chief Justice or an Acting Judge of the Supreme Court may give if someone is convicted before him is determined by law.

When dealing with an indictment only matter for trial, the practice and procedure of the Supreme Court is governed by the Criminal Procedure Rules 2018, and is largely the same as the Crown Court in England.

Appeals

Where a defendant pleads not guilty to an offence before either the Magistrate's Court or the Summary Court and is subsequently convicted, they may, if they are aggrieved with the decision of the lower court, appeal that conviction and any subsequent sentence to the Supreme Court.

Where a defendant enters a guilty plea to an offence before the Magistrate's or the Summary Court and they are subsequently sentenced, they may, if they are aggrieved with their sentence, appeal to the Supreme Court.

There are strict time scales within which you must lodge any appeal to the Supreme Court and you are advised to seek independent legal advice should you wish to make an appeal. Please read the FAQ "I am unhappy with the sentence I have been given, what can I do?" for further information.

When hearing a criminal appeal, the practice and procedure of the Supreme Court will be that of the Court of Appeal of England.