CLP (+ Criminal) Flashcards
Following somebody’s arrest,
the suspect will be taken to the nearest designated police station and on arrival they will be taken to the custody suite and presented to the custody officer, whom we have just said must be somebody of at least the rank of sergeant.
The custody sergeant will first need to make a decision as to whether it is necessary to detain the suspect to enable the police to investigate the offence more thoroughly.
different rankings of the police
Constable
Sergeant: min for custody officer (detain in custody)
Inspector: delay right to inform someone + detention review
Chief Inspector
Superintendent: delay right to legal advice + removal of solicitor + detention time limits
Chief Superintendent
The investigating officer — the Investigating Officer (‘IO’):
the investigating officer may also be referred to as the interviewing officer or the officer in the case.
can be a police officer of any rank;
is usually the officer who is in charge of investigating that particular offence, also referred to as the ‘Officer In the Case’ (‘OIC’);
is the officer the suspect’s legal representative would speak to at the police station to obtain pre-interview disclosure;
will most likely lead the interview.
The grounds for detention
are that it is necessary to secure and preserve evidence or to obtain evidence by way of questioning.
If the decision to detain is made, then the suspect will be provided with their rights and a custody record will be opened.
Rights at the police station
To free and independent legal advice.
To have somebody notified of the arrest and
To consult with the Codes of Practice.
Duty solicitors
are taken from a pool of local experienced criminal practitioners, they do not work for the police. The custody sergeant will contact the DSCC, who will in turn contact the solicitor.
Payments to the solicitor will be undertaken by the relevant government funding body, provided the solicitor possesses the requisite criminal contract.
Delaying right to legal advice
x7: indictable/either way + superintendent + reasonable grounds + specific not alternative + 36 h max + inferences implications
There are situations where the police have the power to delay somebody’s access to legal advice.
That power is contained within PACE Section 58, and this is what we mean when we refer to the authority.
The criteria that must be met to allow the police to exercise this delay is that it must be provided by a senior police officer of the rank of superintendent, and their authorisation can only be given if the offence, which the suspect has been arrested, is indictable. This means either an either way or indictable only offence.
Most importantly, any superintendent must have reasonable grounds to believe that by allowing the suspect to have access to this solicitor could lead to one of the outcomes set out in Section 58 PACE.
The grounds must be relevant to a specific solicitor, and it should not prevent the suspect from having legal advice provided by an alternative advisor.
there are limits as to how long the delay can be enforced: 36 hours is the maximum and there are also implications as to whether or not inferences might be drawn later at trial if access to legal advice has been withheld.
The custody record —
which the solicitor has a right to consult as soon as practicable after their arrival at the police station. It should contain everything that has happened to, been said to or been said by the detainee.
Reviews of detention —
the review officer who is at least the rank of inspector and not the custody officer, must be satisfied that detention is still necessary.
Time limits —detention
detention WITHOUT CHARGE
default 24 hours after relevant time
relevant time (sooner): police station arrival or 24 h after arrest
36 hours after relevant time: if indictable/either + reasonable grounds by Superintendent (or above)
96 hours after relevant time: mags
the maximum period of detention without charge is 24 hours from “the relevant time”.
The relevant time is the time that the person arrested first arrives at the police station or 24 hours after arrest, whichever is the sooner.
Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above.
- For example, the superintendent must have reasonable grounds to believe that detention is still necessary.
- The offence must be indictable and it must be being conducted diligently and expeditiously.
Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.
right to have somebody notified of your arrest, it is also sometimes referred to as the right not to be held incommunicado.
not a call
inspector (or more) grounds + indictable/either
continue = grounds (eg search over)
It is, however, worth noting that it is not a right to a telephone call by the suspect to that individual.
The criteria that must be met in order to withhold this right again demands the authorisation of an officer, but this needs to be an officer of a slightly lower rank, namely an inspector, and this is because it is a less fundamental right.
These, again, are that the grounds are that the offence indictable and that there is justification for withholding the right set out in the grounds in Section 56.
Again, the exercise demands that the withholding of the right can only continue for as long as the grounds continue. So once, for example, the search has taken place, then the person should be notified.
Reviews of detention
inspector (or more)
6 hours after detention first authorised then every 9 hours after that
extension of 24 not until second review
An additional safeguard is that of the review process, once the custody sergeant has decided that detention is necessary and thus authorised it.
A constant review needs to take place to ensure that those grounds still exist and this review process is conducted by somebody more senior than the custody sergeant. PACE stipulates that it needs to be somebody of at least the rank of inspector.
The first review should take place no later than six hours after the detention was first authorised, with the further reviews taking place no later than nine hours after. It is also worth noting that no extension to the 24 hour detention limit can take place until the second review has taken place.
During all of their time in detention, suspects should be provided with food and drink as set out in COP C.
Appropriate adults
support + request legal advice
cannot be: solicitor providing legal advice, person involved in investigation (witness, victim)
no duty of confidentiality
present during: interview, charged, re ID
The appropriate adult is there to assist the detainee to ensure that they understand what is happening and to provide support, advice and assist the detainee. The appropriate adult is also able to request legal advice.
There are certain limitations on who is able to act as an appropriate adult; for example, the solicitor cannot be both the appropriate adult as well as providing legal advice. Nor can anybody who is involved in the investigation, such as a witness or a victim. This can often happen where the family members are involved.
The appropriate adult should be present during the interview and also whenever the person is charged or being spoken to about involvement and an identification procedure. There is no duty of confidentiality, and their role is separate to that of the legal adviser subject to the limits set out.
Many appropriate adults will be the child’s parent, guardian or members of the local authority youth offending team.
Identification procedures
whenever suspect disputes ID
if suspect is known to the police: VIPER, parade, group, confrontation
if suspect not known: witness shown photos or points out suspect to police when in a place
eg procedure
– viper: witnesses one at a time
– parade: min 8
There are a number of different types of procedures and these can be located in PACE COP D along with the relevant annexes.
· The first type of procedure is known as a VIPER.
·The second is a parade where the suspect will physically stand in a line-up, along with a number of other suspects.
·There are also group identification procedures which might take place in a shopping centre
·Finally a confrontation.
All of these procedures can only take place if the suspect is actually known to the police.
In circumstances where the suspect is not yet known, the witness could be shown photographs to see if they are able to identify somebody or taken to a particular place to see if they are able to point out a suspected person to a police officer.
It is important to note that whenever ID is an issue in a case and the identification is disputed by the suspect, some form of visual identification procedure must be held.
For example, on a VIPER, only one eyewitness may see a set of images at a time or in an ID parade, it should consist of at least eight people in addition to the suspect. If only six additional people were involved, this would be a breach.
charged
if charged then mags
often bailed to appear at court but custody sergeant can detain if grounds for refusing bail
Then a decision will be made as to whether or not the suspect will or will not be charged with the offence, if they are charged with the offence, then they will appear at the relevant magistrates’ court. Often, they will be bailed to appear at court on a later date, however, it is possible for the custody sergeant to detain them in custody if they consider there are grounds for the bail to be refused.
Definition of an interview
interview = question re (suspected) involvement in criminal offence
: police station + record (if not then notes)
interview => caution + consult solicitor (telephone only for non-imprisonable offences eg road traffic)
First, we need to consider what is a police interview and interview is defined in COP C 11.1A as the questioning of a person about their involvement or suspected involvement in a criminal offence. Therefore, if a police officer is speaking to an individual about the possibility of their having committed a criminal offence, this will be an interview. Once it satisfies the definition of an interview, there are certain set procedures which must take place.
For example, a suspect must be cautioned so that they are aware of the fact that anything they are about to say may become evidence in a case against them at a later stage. As a result, they should also therefore be allowed to consult with a solicitor.
Interviews should only take place in a police station and a record should be kept of what is said, usually through audio or visual recording. But if that’s not possible, then by way of a contemporaneous note.
If the suspect has exercised their right to free and independent legal advice, then the solicitor will often attend the police station in readiness for the interview (although there are some limitations about whether this may be limited to telephone advice, depending on the seriousness of the offence).
Pre–interview disclosure
solicitor entitled to custody record
must x2: sufficient info to understand nature of offence + why suspect is suspected
Information can be obtained both from the officer in person and also from reviewing the custody record; solicitors are entitled to see the custody record under COP C 2.4.
But there is no obligation on the police to provide this information. At this stage. The information that must be provided is limited to that contained and COP C namely sufficient information to enable them to understand the nature of any such offence and why the suspect is suspected of committing it.
There are three possible ways of dealing with a police interview.
· The first is to answer the questions that are asked.
· The second is to make no comment in response to all questions.
· And the third is to hand in a prepared statement at the beginning of the interview and then make no further comment.
Inferences from silence
at trial rely on fact not previously mentioned but would have been reasonable to
by jury or mags: reasonable? factors: legal advice
cannot convict on inference alone! need other evidence
This caution reflects the inference under section 34 of the statute, which allows for an inference to be drawn when a defendant relies on a fact in their defence at trial, which they did not mention when questioned, but which it would have been reasonable to have mentioned. Obvious examples of this might be acting in self defence or relying on an alibi, but it can simply be denying any involvement or denying being present at the scene of a crime as alleged.
Whether or not it was reasonable is a matter for the jury or for the magistrates and they are entitled to take into account a number of factors, this could include reliance on legal advice, which may be put forward by the defendant as a reason for their remaining silent.
However, there must be other evidence. A court cannot convict somebody purely on the fact that they have remained silent.
inferences from failing to account for an object mark or substance or presence at the scene of arrest.
special warning
no question of reasonableness
must be on suspect at time of arrest + linked to participation in the crime
In order for these inferences to be drawn, the officer conducts in the interview must get the suspect the special warning, explaining what they wish them to account for and why the officer thinks that that object, mark, etcetera, is significant or relevant to the suspect’s participation in the offence under investigation.
Unlike Section 34, there is no question of reasonableness.
Both inferences under sections 36 and 37 arise from arrest and therefore the object must be on the suspect at the time of their arrest or the suspect is in the place of arrest, which is linked to their participation in the crime.
If the case never gets to trial or if the defendant pleads guilty, then an adverse inference is irrelevant.
The removal of a solicitor
is a very serious step and one which can only be authorised by a superintendent in very specific circumstances.
samples
During their time in the police station, solicitors may also be required to advise their clients on whether or not they should provide samples to the police or whether or not to participate in identification procedures, given that a refusal to do either could lead to inferences being drawn at trial.
Often the defendant will be on bail, but where the defendant was detained in police custody following charge,
they must be brought before the next available court.
Before the first hearing or on the day of the first hearing, the prosecution must supply the defendant with
the initial details of the case against them.
Plea before venue and allocation for either-way offences
no indication = not guilty
guilty => convicted so needs sentence
– presumption: mags sufficient (6/12 m if consecutive) at first hearing or adjourned (= pre-sentence report by probation + BAIL)
– mags can send to crow (solicitor warned client)
When appearing before the magistrates for an either way offence, a process known as plea before venue will be undertaken. This asks the defendant to indicate whether or not they will be pleading guilty or not guilty.
The defendant is also entitled to not give an indication; in which case the court will proceed as if they had indicated not guilty.
If the defendant indicates that they will plead guilty, then the court will proceed as if the defendant is now convicted and needs to be sentenced. There is a presumption that the magistrates will be able to sentence the offender unless their powers are insufficient. When dealing with an either way offence, their powers here are six months, for one and up to 12 months for two or more either way offences where the sentences run consecutively.
The defendant should have been warned about the possibility of being sent to the Crown Court for sentence as part of the plea before venue process.
If the magistrates are happy to sentence, then this can take place either again at the first hearing or, alternatively, the matter could be adjourned to enable a pre-sentence report to be prepared by the probation service.
If the matter is to be adjourned, then the court will have to consider the question of bail.
Allocation.
test: nature/seriousness + mags sentence powers
representations: P + D
including previous convictions (aggravating factor re sentencing)
The test for allocation is located in Section 19 of the Magistrates’ Courts Act 1980, and it says that in determining which court should hear the trial the magistrates should take into account the nature and seriousness of the offence and also the magistrates’ sentencing powers.
The magistrates will hear representations from both the prosecution and the defence. The prosecution will outline the facts of the case and the defendant’s offending history, if any and will make submissions as to where the trial should be held consistent with the allocation guidelines.
The defence can also make submissions as to venue. Where the defence agree with the prosecution It will be usually a very quick process. However, if the prosecution, for example, submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller and more persuasive submissions on this point.
The court will be told about previous convictions. This is because previous convictions are a statutory aggravating factor in sentencing and therefore will have an influence on whether or not the sentencing powers might be sufficient.
indication of sentence
discretion of mags if D pleads guilty
confined to: non/custodial
If the magistrates consider that the case is suitable to be tried by the magistrates themselves (on a later date) then the defendant will be given the option to ask for an indication of sentence if they were to plead guilty instead.
The court has the discretion as to whether or not to give such an indication and if they do, it must be confined to telling the defendant whether or not the sentence would be custodial or non-custodial. The process is to try and encourage guilty pleas where perhaps the only reason for going not guilty is concern by a defendant of the sentence that they might receive.
elect trial by jury.
The other option available to the defendants at this stage would be to elect trial by jury. The decision to elect is one taken by the defendant with advice from the solicitor, if necessary. There are a number of advantages and disadvantages of a trial by jury, for example, time cost as well as sentencing powers. But the separation of the role of the judge and jury can, in some cases be very advantageous.
If the case is to remain in the magistrates’ court trial,
then the magistrates at this first hearing will undertake case management setting out directions for trial and setting down a date wherever possible.
If the matter is to go to Crown Court,
then the next hearing will be in the Crown Court at a Plea and Trial Preparation Hearing. Therefore, at this stage, the magistrate, along with the clerks, will fill out documentation which will then effectively transfer the case to the Crown Court and their involvement in it will cease.
If the matter is indictable only
If the matter is indictable only then the magistrates have no jurisdiction other than dealing with administrative matters such as legal aid and making decisions regarding bail, if necessary, the matter will simply be sent to the Crown Court and they will have no further dealings.
first hearings – summary
mags: all adults but classifications => proceedings
pleas: summary only/either at first hearings
plea before venue: either-way
initial details served by P before/at first hearing
no plea taken: indictable only
·First hearings - All adult defendants have their first hearing before a magistrates’ court irrespective of the offence that they are charged with. Exactly what happens at the first hearing depends on the classification of offence .
· Pleas- At a first hearing for a summary only or an either-way offence the defendant will be asked to enter their plea to a charge.
· Plea before venue and allocation - will take place to determine the location of a trial for an either way offence.
· Initial details- The prosecution is obliged to serve ‘initial details’ as set out in Criminal Procedure Rules, which include a summary of the circumstances of the offence and the defendant’s criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view.
· Indictable only offences- no plea will be taken.
defaut position – bail
default = unconditional bail unless murder (unless no sig risk)
interfere with right to bail if a statutory exception met
Being released on bail to a later date should be on unconditional bail, as this is the default position for unconvicted defendants, except for those falling into special categories such as murder. In that situation, the defendant may not be granted bail unless there is no significant risk.
This statutory right to unconditional bail is enshrined in Section 4 of the Bail Act. A criminal court can only interfere with somebody’s right to bail if one or more of the statutory exceptions are met.
bail – Statutory exceptions
no need to grant bail if D charged with indictable/either way while already on bail
D would x3 (N/A if unlikely custodial eg steal sweets)
1 – fail to surrender
2 – commit further offence
3 – interfere with witness/obstruct justice
The three most commonly used exceptions are located in part one, schedule 1, paragraph 2 of the Bail Act.
Here, the court must be satisfied that there are substantial grounds to believe that if released on bail, the defendant would
1) fail to surrender,
2) commit further offences or
3) interfere with witnesses or otherwise obstruct the course of justice.
It is also worth noting paragraph 2A. Here, bail need not be granted if the defendant is appearing before the court charged with an indictable offence alleged to have been committed whilst already on bail. Remember that an indictable offence is indictable only and either way.
There is, however, a stipulation that bail should not be removed under one of these grounds if the defendant is charged with an offence where there are no real prospects of the defendant receiving a custodial sentence. For example, theft is an indictable offence and is imprisonable and so, strictly speaking, even stealing a chocolate bar could lead to a prison sentence. However, if on the facts of the case, there is no real prospect of a custodial sentence being imposed, then the grounds for objection to bail under paragraph 2 or 2A cannot succeed.
factors to consider – opposing bail
The factors are not grounds themselves, but help the courts determine if the grounds are made out and for the evidence base.
mandatory to consider:
- ground failure to surrender: all
nature/seriousness (likely disposal): all grounds
character of D + antecedents, associations/communitiy ties:
+ commit further offence
D’s past bail record:
strength of evidence: witness interference + commit further offences
bail – conditions
relevant, proportionate and enforceable.
For example, thinking about our failing to surrender, this could include a condition of residence or condition of reporting to a police station, a surety, a security or maybe surrendering their passport if there are friends or family abroad. Other conditions might relate to the commission of further offences, such as having a curfew, staying away from certain areas or certain people, or staying out of certain premises which might sell alcohol, for example.
bail – hearings
at mags first hearing unless murder
P + D make cases
if refused then reapply in front of court after 8 days
judge in chambers bail application heard by judge in crown court (hearing n1 or 2 if full argument)
Apart from murder, magistrates have the jurisdiction to make decisions about bail at the first hearing of all offences. An argument will be put before the court by the prosecution if they are seeking a remand in custody and then the defence will set out the points they wish to raise to counter argue the prosecution’s case.
This is known as a full argument, and on reaching their decision, the magistrates will complete a relevant document setting out why bail has been granted, what conditions have been imposed, if so, or why they have remanded somebody into custody. It will also set out clearly the exceptions, grounds and factors upon which the magistrates have based their decision.
If the decision is taken to refuse bail and remand the defendant in custody, then they must be brought back before the court no later than eight days subsequent, where they will be allowed to make another application. This might be towards a different bench or district judge and more information might now be available, which would allow for different decision to be reached.
If a further remand into custody is made, then following a full argument and a certification of said full argument, a judge in chambers bail application can be issued. And this is heard by a judge sitting in his chambers in the Crown Court. This can be done after either the first or the second hearing provided, a full argument was made.
Bail offences and breaches
breach w/o reasonable cause = prison sentence + power of arrest
does not create a new offence!
The offence of failing to surrender does carry a prison sentence along with a power of arrest, the offence of failing to surrender does have a caveat in so far as it is without reasonable cause. And it is therefore a matter for the defence to establish reasonable cause on the balance of probabilities.
Breaching a bail condition whilst having a power of arrest does not create an offence. For a defendant arrested and brought back before the court for breach of bail, the magistrates will probably have to be persuaded that it is appropriate to extend the bail, notwithstanding that the condition has now been breached. They will, of course, listen to arguments as to the extent of the breach and the reasons for it.
case management
A lot of the case management and directions which are needed can be given by the magistrates during the first hearing if the trial is going to take place in that jurisdiction, because it is either a summary only or an either way matter where summary trial has been deemed appropriate.
In the Crown Court much of the case management will take place at the Plea and Trial Preparation Hearing. This is for all indictable only matters and those either way cases which have been sent from the lower court.
Part of the case management will involve the parties having to complete the appropriate forms. In the Crown Court this will be the Plea and Trial Preparation Form and in the magistrates’, it is called the Preparation for Effective Trial (PET) form.
Disclosure of unused material
The duty to disclose this material falls on the prosecution and they should do so once the duty has been triggered. This happens when a not guilty plea has been entered in the magistrates’ or the matter is sent for trial to the Crown Court.
The test is that any material which undermines the prosecution case or could reasonably assist the defence case should be disclosed to the defence. It is an ongoing duty, and therefore, if material comes into the possession of the prosecution after the initial disclosure has occurred or following the service of the defence statement, then the material should be reviewed and disclosed if appropriate.
Material can be distinguished between that which is sensitive and non-sensitive, and there is usually not an issue in disclosing the non-sensitive material to the defence. Sensitive material, however, might involve information relating to intelligence or undercover officers. In some circumstances, the prosecution will make an application if it does not wish to disclose this material, believing that to do so would give rise to a real risk or serious prejudice to an important public interest. This is why it is known as an application for public interest immunity.
defence statement – case management – deadlines
There are time limits which need to be complied with by the defence in relation to the service of the defence statement. Because the defence statement is a mandatory requirement in the Crown Court, it must be served within 28 days of the prosecution complying with their duty of disclosure; a failure to do this within the requisite time period can lead to adverse inferences being drawn.
A defence statement is not obligatory in the magistrates’ court, although for reasons such as seeking specific disclosure, it might be appropriate for one to be prepared. If one is served in the magistrates’ court, then the time limit is shorter and it must be done within 14 days, or, as the magistrates’ court standard directions state, within 10 business days of the prosecution disclosure.
defence statement – content
Whenever a defence statement is served it must be in writing and signed by the defendant or their solicitor.
It must set out:
· the nature of the defence of the accused;
· the matters upon which the accused takes issue with the prosecution;
· why the accused takes issue with the prosecution; and
· any particulars of the matters upon which they intend to rely in their defence.
They should also set out any points of law, including those as to admissibility or abuse of process, and also set out an alibi or any alibi witnesses. Bare denials are not sufficient to comply with these obligations.
In addition, in both the Crown Court and the magistrates’ court the defendant must set out to the court and the prosecutor a notice indicating whether or not the defendant intends to call any witnesses at trial above and beyond the defendant and identifying who those witnesses are.
Alibi witnesses, of course, having already been included in the defence statement do not need to be repeated in this Notice of Intention to Call Defence Witnesses.
Defence applications
As well as the prosecution being able to apply under public interest immunity, under Section 8 of the CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under the prosecution’s duty, but which has not been disclosed. This is commonly known as a Section 8 application or an application for specific disclosure.
As the title suggests, the application must be for a specific item and not a ‘fishing expedition.’
Sometimes it may become apparent during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities or even financial institutions. No duty of disclosure under the CPIA rests with such third parties but if the material might be considered capable of undermining the prosecution case or assisting the case for the accused, then the prosecution should take appropriate steps to obtain it.
failure of prosecution to disclose
Given the importance of disclosure in criminal cases, where it becomes apparent that the prosecution has failed in its duty to disclose relevant material, the consequences can be quite serious. For example, it might be that the defence can issue an application to stay the indictment on the grounds of abuse of process or evidence might be excluded under the court’s discretionary powers under Section 78 PACE or ultimately, it could result in a conviction being quashed on appeal due to the conviction being deemed unsafe.
trial
A trial is the hearing at which a court determines somebody’s guilt. In the magistrates’ court, this might be done by bench magistrates or by a single district judge. In the Crown Court a judge will preside over the trial, but the decision as to guilt will be taken by a jury of 12 people. A jury verdict should be unanimous, although there are situations in which a majority verdict can be returned.
Generally, however, trials follow the same basic process wherever they are held, because the burden of proof rests with the prosecution.
trial – Prosecution case
It is always the prosecution that will start the trial process.
After the jury has been sworn in the Crown Court, the prosecutor will open the case. In doing so, they will set out the context and explain what it is that the prosecution must prove. They might highlight the evidence upon which they intend to do this and which witnesses they will be calling. The prosecution case will involve the calling of those witnesses who were identified during the case management pre-trial process.
The witness enters the courtroom and goes into the witness box where they are sworn. The prosecutor will then take the witness through their evidence called evidence in chief. Using their witness statement, the advocate will guide the witness through the key testimony in the hope that they will establish the relevant facts in issue. Other parties, namely the defence, will have the opportunity to cross-examine.
The defence will have seen the written witness statement and any major inconsistencies can be drawn to the witnesses attention by the defence during the cross-examination.
trial – opinion
There are some rules about who can give evidence at a trial and the type of evidence that they are allowed to give. A witness cannot normally give opinion evidence unless they are an expert. So, an ordinary witness may not, for example, be able to say that the car was being driven dangerously. Whether or not the manner of driving was dangerous is a matter of opinion and may well be the issue that the jury themselves have to determine. Instead, the witness will be invited to describe to the court the manner of driving which they observed, such as the speed or any erratic manoeuvres.
trial – competence
There are also rules about who can give evidence, the general rule is that any person, irrespective of their age, is able and competent to give evidence provided they can understand the questions put to them and give understandable answers. Obviously, when dealing with particularly young witnesses. The method in which they give evidence might be different; this is what we know as special measures.
It might be that they do a pre-recorded testimony outside of the courtroom and they might also be cross-examined in a similar fashion. The surroundings might be less formal and they might have somebody there to support them. This is not the same thing as not being a competent witness.
The only exception to competency is that of a defendant, who can never make a competent witness for the prosecution. If you stop and think about this for a moment, it makes sense. How can a defendant be a witness against themselves?
trial – compellability
The main rules that cause difficulty are to do with the compellability of a witness. Compellability refers to being able to make a witness attend court by allowing a summons to be issued to secure their attendance.
Again, the general rule is that if a witness is competent, then they are also comparable for that party that seeks to call them.
There are, of course, a number of exceptions.
The defendant is one of these exceptions, they cannot be compelled to give evidence at their own trial; only a defendant can choose whether or not to give evidence. However, if they choose not to, they must be aware that a court is entitled to draw an inference, if it so chooses, from their failure to testify.
The other difficult group of witnesses are those of the spouses of the defendant. There are, however, some exceptions to this rule. First and foremost, a spouse can be compelled to give evidence against their wife or husband or civil partner on behalf of the prosecution if the alleged offence is against themselves.
Likewise, they can be compelled for the prosecution if the offence is a sexual allegation or it is an offence committed on a child under the age of 16. These are known as specified offences.
– So, if you are dealing with a specified offence, then the spouse of the defendant can be compelled to come to court. It’s the same rules, for example, if a co-accused would like the spouse of their co-accused to give evidence.
Let us imagine that we have two defendants, Alan and Bruce.
Bruce is married to Caroline. Unless the offence is specified, Caroline could not be called by the prosecution to give evidence.
Maybe Alan wants to call Caroline because he believes that she would be able to exonerate him? Alan could not compel Caroline to give evidence unless the offence is specified.
Bruce, however, could compel Caroline to give evidence on his behalf whatever type of offence is alleged against him. This is because the spouse of the defendant is not only competent, but compellable on their behalf.
trial – No case to answer
At the end of the prosecution case, the defence will be able, if they so choose, to make an application of a no case to answer. This is when the defence are of the opinion that the witnesses evidence has not been good enough to establish a case to answer. In the Crown Court an application will be made in the absence of the jury.
This is sometimes known as Galbraith’s submission, because the test that needs to be met originally came from the case of Galbraith. The test in the criminal procedure rules is ‘that the prosecution evidence is insufficient for any reasonable court properly to convict’.
If the application is successful, then that will be the end of the case and if in the current court the jury will be directed to acquit. If an application of no case to answer fails or is not made, then the trial will move to the defence case.
trial – Defence case
Usually, the first witness called will be the defendant themselves, although, as we’ve just heard, the defendant does not have to give evidence.
The second half of the trial will take place in the same way insofar as witnesses will be called by the defence, they will give their evidence in chief and they can be cross-examined.
It is unusual for defence witness statements to be served upon the prosecution in advance.
The prosecution will, however, of course, up the defence statement in the Crown Court and possibly have it in the magistrates’ court. If there are any inconsistencies between this document and the defendant’s evidence or case, then they can be cross-examined about it.
At the conclusion of the defendant’s case, then both the prosecution and the defence will make closing speeches outlining the strengths of their case and the weaknesses of their opponents based upon the evidence that has been heard before the court. This might, of course, include highlighting any inconsistencies between the witnesses or where the witnesses have been particularly sure or unsure of a particular issue.
In the magistrates’ court, the magistrates or district judge will retire. Whereas in the Crown Court, the judge at this stage will have to sum up the case of the jury and give any directions that are needed. Obviously, these directions will depend upon the nature of the case, but might include directions by inferences about particular types of evidence and, of course, about the burdens of proof.
trial – Verdicts
Sometimes it’s possible to find the defendant not guilty of the offence charged but of an alternative offence. In the Crown Court this might even be an alternative count on the indictment. So it might be that they are found not guilty of one count, but guilty of the other.
Once the guilty verdict has been returned, then the defendant will have to be sentenced and it may be that the matter is adjourned to allow for sentence; although in the magistrates, it might be possible for them to sentence on the same day. In the Crown Court, the jury has no further role to play. Sentence is entirely a matter for the judge.
evidence – general rules
admissible + complies with rules of admissibility
First, evidence needs to be admissible. If the evidence is not before the court, then the court will not be able to consider it.
The general rule is that evidence which is relevant and probative to a fact, an issue should be admissible.
If the piece of purported evidence is not relevant to a fact at issue, then it will not be admissible.
Assuming that the evidence is relevant to a fact issue, the next stage is to ensure that it complies with the rule of admissibility.
Most pieces of evidence will be admissible, however, there are types of evidence which can be complicated. Evidence of a person’s character, expert’s evidence, confession evidence and hearsay evidence are just some of the examples.
types of evidence which are prima facie inadmissible unless the court allows it
hearsay
bad character
Hearsay
Does the evidence fall within the definition of hearsay evidence? If the answer to this question is ‘yes’, then it isprima facieinadmissible.
Does it fall within one of the exceptions to the general exclusionary rule?
A statement is hearsay if:
it is made out of court; and
the person that made it intended another person to believe it; and
it is adduced as evidence of the matter stated (s.114(1)ands.115 Criminal Justice Act 2003).
Exceptions to the rule against hearsay
Hearsay is admissible if all the parties agree or one of the exceptions apply:
the witness is unavailable (s.116);
it is a business document (s.117)
it falls under a common law exception (s.118);
it is a previous inconsistent or consistent statement of a witness (ss.119ands.120).
If any of the exceptions apply, the court has discretion to exclude otherwise admissible hearsay if:
a business document etc and the court is satisfied that the statement’s reliability is doubtful (s.117(6)and(7));
by stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence (s.125);
it is superfluous (s.126);
it is unfair prosecution evidence (s.78 PACE).
If the parties don’t agree and the exceptions do not apply, the court has discretion to admit hearsay if it is in the interests of justice to admit it under:s.114(1)(d)in respect of hearsay ors.121(1)(c)in respect of multiple hearsay.
