Criminal Flashcards
Assault occasioning Actual Bodily Harm
s.47 Offences Against the Person Act 1861
This offence is committed when a person intentionally or recklessly assaults another, thereby causing actual bodily harm (ABH). Including hurt or injury calculated to interfere with health or comfort of V. Harm need not be permanent but must be more than transient and trifling.
Either way offence
Maximum: 5 years’ custody
Offence range: Fine – 4 years’ custody
Common assault: assault and battery
Assault: max 6 months imprisonment.
“an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence.”
Battery: max 6 months imprisonment.
‘’an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant’’
Inflicting grievous bodily harm/unlawful wounding, Offences against the Person Act 1861 (section 20)
Triable either way
Section 20
Maximum: 5 years’ custody
Offence range: Community order – 4 years 6 months’ custody
GBH means really serious harm. The harm does not have to be either permanent or dangerous. Proof of wounding requires a break in the continuity of the skin. The distinction between a section 18 and section 20 GBH is the mens rea of the offence. Charge selection must address the question of recklessness and intention. It is therefore of critical importance, and good practice, to explain how the evidence in the case directly supports recklessness and intention. For a section 20 GBH the suspect must intend, or foresee, that the act might cause some harm: R v Savage; DPP v Parmenter [1992] 1 AC 699. It is not possible to attempt this offence because in order to attempt it, the consequence (wounding or GBH) must be intended, which is an offence contrary to section 18 instead. The indictment should make clear whether it is wounding or GBH which is alleged.
Wounding/causing grievous bodily harm with intent, Offences against the Person Act 1861 (section 18)
Triable only on indictment
Maximum: Life imprisonment
Offence range: 2 – 16 years’ custody
S.18 can only be committed where GBH (or wounding) is intended. It bears repeating that the explanation for the charge selection should directly address the question of recklessness or intention, demonstrating how the evidence in the case supports the decision. Evidence of intention may come from different sources, of which the following are a few examples:
selection and use of a particular weapon
severity or duration of attack
making prior threats or planning a serious attack
relevant admissions in interview
3 Forms of commencing criminal proceedings
- Arrest and Charge - Most common.
- Written charge and requisition - Available to relevant prosecutors whom have there powers delegated by the DPP such as CPS/Environment Agency.
- Laying an information - Private Prosecutors.
Written charge and requisition
- Available to public prosecutors
- No requirement for arrest
- Must be served on the person charged and the magistrates court which they are asked to attend
The written charge must contain
- A statement of the offence which describes the offence in ordinary language
- Reference to the statutory provision that creates the offence
- Sufficient particulars of the conduct complained of for the accused to know what is alleged.
A summons or requisition must
- Contain a notice setting out when and where the accused is expected to attend court
- Specify each offence in respect of which it has been issued.
Summons must identify the court
Requisition must specify under whose authority it was issued.
Custody time limits
Trials must commence ahead of these time limits.
- 56 days for trials in the magistrates’ court of summary only or either way offences.
(D must have second hearing for bail within eight clear days - 28 days thereafter but can be done in D’s absence.) - 182 days for trials in the crown court of indictable only or either way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).
Once time expires, D is released unless prosecution applies to extend time and can show that it has acted with all due diligence and expedition and that there is good and sufficient cause to have D further remanded in custody.
The First Hearing Format
All defendants will have their first hearing before the magistrates court.
When D is on bail, first hearing must be within:
- 14 days of being charged - If Prosecutor anticipates a guilty plea which is likely to be sentenced in the Magistrates court.
- 28 days of being charged - where it is anticipated that the Defendant will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence.
If D was retained ion police custody following charge they must be brought before the next available court.
D’s Attendance
D must be present at the first hearing. If D is on bail and fails to attend the court can issue a warrant for the defendant’s arrest. Failure to surrender to bail at the appointed time is an offence under the Bail Act 1976.
If D doesnt attend as required the court will consider whether they can go on without D present. Unlikely that this will be possible when dealing with allocation or either way offences or sending an indictable case to the crown court.
If D has been summonsed to court (typically used for non imprisonable offences) D does not commit an offence for non appearance. Can proceed in D’s absence.
Initial Details of the Prosecution Case (IDPC)
CPR P8.
Prosecution obliged to serve initial details to the court officer as soon as practicable and in any event no later than the beginning of the day of the first hearing. If D requests those details, same timescales apply.
The CPS now uses electronic files which are uploaded to the Common Platform - the mags court online system. A solicitor would then request access.
Remedy for failure to supply would be to adjourn the first hearing and/or award costs to the defence for the prosecutions failure to serve.
Content of the IDPC must be sufficient to allow the court to take an informed view on plea and venue for trial, and must include;
1. Summary of circumstances of offence
2. Account given by D at interview
3. Written statements and exhibits that are available and material to plea and or mode of trial or sentence
4. Victim impact statements
5. The defendants criminal record.
If D was in police custody immediately prior to the firs hearing then the details only need to comprise of:
1. Summary of circumstances of offence
2. D’s criminal record.
Where a not guilty plea is indicated the parties must provide sufficient information to enable the ‘Preparation for Effective Trial (PET)’ form to be completed.
Summary and either-way offences
Hearing will deal with:
1. Plea;
2. Bail;
3. Representation and legal aid,.
4. Depending on offence it may progress to sentence.
Indictable only
- Magistrates court does not have jurisdiction to deal with these offences and therefore a defendant charged with one will only make a brief first appearance at the magistrates. Court will deal with:
1. Bail
2. Legal Aid
D will indicate plea on CC sending form.
D will be sent to crown court to enter plea. Hearing at CC is 3/4 weeks later depending on D’s bail status.
Summary only offences in the Crown Court:
- Exception to rule that Summary only offences do not go to CC; This happens when D is charged with an offence that is to be tried in the CC and there is a summary only offence which is connected to the IO. If the Summary only offence is one of those listed below and is before the magistrates court at the same hearing as the indictable offence, it must be sent to the crown court:
Related summary matters that must be sent for trial and included on an indictment (s40 CJA)- Common assault, Assaulting a prison or secure training centre officer, taking a motor vehicle or other conveyance without authority, driving motor vehicle whilst disqualified and criminal damage.
Related summary matters that must be sent for plea only: any summary matter not listed in s40 but that is punishable by disqualification from driving or imprisonment.
Which court should deal with indictable only offences
Crown Court
Which court should deal with Summary only offences
Magistrates court
Which court should deal with Either Way Offences
Magistrates or Crown Court
Legal Burden
Unless the prosecution can prove beyond reasonable doubt of someones guilt, the benefit must be given to the defendant.
Rare for the defence to have a legal burden but when they do so its on the balance of probabilities.
Sometimes the prosecution has the burden to disprove something but this is still a legal burden. E.G. prosecution must try to disprove that D was acting in self-defence. This issue must be raised by the defence - the defence has the evidential burden.
The Evidential Burden
The defence has the evidential burden in some situations is so that issues remain focused and only becomes a matter for the prosecution to disprove if it is actively raised by the defence.
Burden falls on prosecution to establish a case to answer. If at the end of the case, evidence presented doesn’t suggest a case to answer, it should be stopped at that point. Usually occurs as a response to application by the defence. Sometimes due to reliability of witnesses or procedural error.
Sentencing purposes
- Punishment of offenders
- Reduction of crime
- Reform and rehabilitation of offenders
- Protection of the public
- Making of Reparation.
Types of sentence
- Fines
- Disqualification
- Discharge
- Community Orders / Youth Rehabilitation Orders
- Custodial sentences - Courts limited by max sentences. Certain sentences can only be imposed by CC such as life sentences or sentences for dangerous offenders.
Discretionary sentences in mags court - limited to 6 mnths imprisonment unless 2 or more either way offences - then increases to 12 months.
Crown Court - sentences set by statute.
E.G. Theft - 7 yrs on indictment.
ABH - 5 yrs on indictment.
Custodial threshold
Offence must be so serious that neither a fine alone or community order can be justified.
Community Threshold
The offence must be serious enough to warrant the making of such an order.
Suspended Sentences
2 Parts:
1. Sentence itself
2. Operational Period.
E.G. Custodial sentence 12 months could be suspended for 2 yrs.
Can impose community orders alongside suspended sentence.
If during period of suspension the offender commits a further offence, the court can reactive the sentence in whole or in part, they will then go to prison to serve the sentence. Could must activate the custodial sentence unless unjust in all circumstances to do so.
Types of Community Order
Treatment Orders
Unpaid Work
Prevention from undertaking activities.
If offender fails to comply with requirements they must first be warned that failure is unacceptable, if continue without reasonable excuse, breach proceedings against offender.
The Sentencing Code - Approach to Sentencing
Both prosecution and defence will have opportunity to address the court.
Judge must make decision on appropriate sentence and provide full reasons:
1. Category (consider extent culpability of offender and harm caused by offending) - Starting point and category range
2. Aggravating and Mitigating Factors.
3. Judge will reach provisional decision as to appropriate sentence.
E.G. judge may consider 6 months imprisonment appropriate, judge will then consider other reductions, e.g. assisting the prosecution, reductions for guilty plea at first opp (1/3 off), totality of sentence as well as whether or not should be ancillary orders such as compensation/costs.
Newton hearings - mini trial without a jury - defendant pleaded guilty but on basis of different version of facts. Court concluded that factual differences could or would make material difference to sentence. If Prosecution accepts the version of events of the defendant, they should put this in writing and give it to the judge before the sentencing hearing. If they reject this should also be outlined in writing.
Appeals
Magistrates - Crown Court
Automatic right to appeal to the CC. Can appeal a conviction and or sentence. Grounds not necessary. Reason for appeal must be set out in document served. May be arguing excessive sentence.
Time limit 15 business days of sentence irrespective of whether appeal against conviction or sentence.
Appeal Hearing - Hearing De novo - everything heard again. Another trial. All witnesses called and trial takes place afresh. Crown Court Judge will sit alongside 2 lay mags. Fresh sentencing submissions will be made, no restrictions. CC sentencing powers restricted to those of magistrates (6mnths imprisonment).
Can apply by way of case stated from magistrates to High Court or to judicially review a decision made. Sometimes possible to correct errors in sentencing by reopening matter before the magistrates at later date.
Matters tried in CC - Usual route of appeal to court of appeal. Must be grounds. Conviction grounds of appeal = unsafe. 28 days to lodge appeal. If leave granted CoA can increase, reverse or substitute sentence of if appeal against conviction can order retrial, quash or uphold. Matter of public importance, CoA can send up to supreme court. CC decision can be appealed by case stated (legal determination required e.g. how to apply legal test) or judicial review (procedural irregularity).
Youths - Trial and Sentence
Children - 10-13.
Young Person - 14-17.
Children/YP at Police Station need an appropriate adult.
Overriding principle / aim = to prevent offending by children and YP. Everyone involved working with this principle aim. Must have regard to the welfare of Child/YP.
All cases should be dealt with youth court. Summary jurisdiction. Not public court, reporting restrictions. Exceptions - Homicide (murder/manslaughter) must be dealt with by CC. If notice given re serious/complex fraud must be dealt with by CC. Child/YP under dangerous offender provision sent to CC. Young people under 16 charged with firearms offences sent to CC. (DIFFERENT TO ADULTS).
Exceptions: Grave Crimes and Situations where Child/YP jointly charged with adult.
Grave Crime (Children/Youths)
The youth court can deal indictable offences unless…
Adult punishable with 14+yrs imprisonment or offence of sexual offence or child sex offence or specific firearms offence AND will sentence the YP gets be substantially more than 2 years detention.
When a Child/YP appears before YC in respect of offence, they will need to make a decision. Submissions from prosecution and defence. Has to decide 2nd limb of test - will sentence the YP gets be substantially more than 2 years detention. (2 yrs max sentence youth court can impose DTO - therefore only CC has jurisdiction to impose)
Sentencing Council highlights that may not be possible to decide at this point if sentence will be in excess of 2 yrs - YC advised to retain jurisdiction and if necessary send to CC for sentence later.
Child jointly charged with adult
Interests of justice test.
First appearance will be in magistrates court.
Adults can NEVER appear in YC.
Youth will therefore appear with the adult in the Magistrates Court.
Only triggered if will be a joint trial, if either pleads NG - irrelevant.
Magistrates will decide whether it will be in interests of justice for both offenders to be sent to the CC… Factors which will be taken into account;
- Whether separate trials will cause injustice to witnesses or to the case as a whole;
- The age of the child or YP; the younger the defendant; the greater the desirability that he be tried in the youth court;
- Age gap between child/yp and the adult;substantial gap in age militates in favour of youth court trial;
- The lack of maturity of the child/YP;
- The relative culpability of the child/YP compared with the adult and whether the alleged role played by the child or YP was minor; and or
- The lack of previous findings of guilt on the part of the child/YP.
Always open to CC on conviction to remit Child/YP to youth court for sentence.
Joint trials can take place in the magistrates court for the youth/child and the adult.
Key Sentences for Child/YP
- Referral Order (only available to YC not CC): Compulsory Criteria.
- YRO (Youth Referral Order): Added requirements, community threshold - Serious enough.
- DTO (Detention Training Order) custodial sentence 2 to 24 months. Must be so serious custody threshold.
Aggravating/Mitigating Factors taken into account.
Credit given for early pleas.
Children under 16 - cant be given YRO with intensive supervision/surveillance or DTO unless persistent offender. Term persistent offender is not defined in statute but guidelines suggest where 3 findings guilt in last 12 months for imprisonable offences, this is persistent.
Adjournment:
In any case where D is presented at court and the court cannot conclude the case in one hearing, the case will be adjourned. Adjournment describes something that happens to the case rather than the defendant.
Remand:
When a defendant is sent away and told to come back another day, it is called a ‘remand’. A D on remand is obliged to come back to court to continue with the case. The remand may either be served in custody or served in the community on bail.
Test for bail (‘Indictable Offences’) the big 3
Available to any indictable offence (carrying imprisonment)
Bail Act 1976 Schedule 1 Para 2
If D is released on bail, are there ‘substantial grounds’ for believing that D would either:
a) Fail to attend a subsequent hearing (failure to surrender to custody);
b) commit further offences on bail; and/or
c) interfere with witnesses or otherwise obstruct the course of justice e.g. witness intimidation or destruction of evidence.
Bail test… ‘Substantial grounds for believing’ threshold
- Not a particularly high test.
- It is only necessary to show that the fears of the behaviour happening have substance and merit. This enquiry is factual and it is not a trial per se. No formal rules on determining whether this is made out.
- Representations will be made by the prosecution and the defence but generally witnesses will not be called and hearsay evidence IS permitted. Magistrates role is inquisitorial and they may ask questions of either party or insist that sureties are called to give evidence of their means and relationship to the defendant.
Hearsay Evidence
Statements made out of court presented in evidence as proof of its contents.
Final filter for Bail … No real prospects
The final filter for bail is that it should not be removed under one of these grounds if the defendant is charged with an offence (or offences) where there is ‘no real prospects’ or the defendant receiving a custodial sentence.
E.G. Theft is an indictable offence and so, strictly speaking, even stealing a banana is indictable.
If there is no real prospect of the sentence for the offence being custodial, then the ground of objection cannot succeed.
Summary offences
For lesser summary offences, the general rule is that they are only available if a defendant, having been given bail, breaches a condition of that bail in these proceedings or has a conviction for ‘fail to surrender’ in their past.
Grounds therefore only activated by a trigger event - namely the defendant being arrested for a breach of bail.
Need not be granted bail (widely applicable)… x3
Further grounds which the prosecution may rely on when objecting to bail, the defendant ‘need not’ be granted bail if:
A) A remand in custody would be for the defendants own protection;
B) The Court has insufficient information to deal with the issue of bail and so remands in custody for a (short) period for the production of sufficient evidence; and/or
C) The defendant is already serving a sentence in custody.
Bail… Specialist Grounds
Uncommon.
Broadly:
A) Serious cases with high penalties; and
B) Cases of a particular nature that affect the assessment of the risk posed by a defendant on bail. (D may commit offences and cause physical or mental injury (or fear of it) to an ‘associated person’ - usually used in DV cases.
Four groups of offences (Bail)
Special provision for:
a) serious cases (e.g. murder and rape) where it is harder to get bail because of the gravity of the consequences of such offending;
b) cases of a particular character (e.g. drugs or DV) where a different approach needs to be taken due to particular behavioural difficulties commonly encountered with defendants who commit these offences;
c) cases where the defendant infringes bail;
d) the remaining cases - dealt with in relation to their classification and even with the ‘standard’ cases, there are a number of provisos to watch out for.
Process for bail objections
- Check whether D falls into the provisions of one of the special categories (either serious crime or crimes of particular character).
- If the provisions in relation to serious cases (e.g. murder) are satisfied then the courts must follow the more stringent test and the more general objections cease to apply.
- For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds.
Bail objections for charges of murder, rape, attempted rape, serious sexual offences or manslaughter and offences carrying life imprisonment as its maximum sentence.
A. Murder (NOTE: Only a CC judge can grant bail)
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If D has a pre-con for: i) murder; ii) attempted murder; iii) rape; or iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it*
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If D does not fall into the box above, D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury.
B. Attempted murder, rape, serious sexual offence etc.
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If D has a pre-con for: i) murder; ii) attempted murder; iii) rape; or iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it*
C. An offence carrying life imprisonment
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If D was either: i) already on bail; and/or ii) fails to attend having been on bail, D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend.
*The present charge and pre-con do not need to be the same offence. If D does not have a qualifying pre-con, bail is assessed on the usual grounds.
(BAIL) Dealing with cases with particular characteristics that affect risk.
Is D charged with: a) an offence that suggests D would cause injury (mental/physical) to a partner or family member; b) abuse of drugs.
A) An offence against partner or family
D need not be granted bail for any imprisonable offence if the court believes there are: substantial grounds to believe that D would commit an offence on bail by engaging in conduct that would, or would be likely to cause physical or mental injury to an associated person. An associated person is a spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s.7 Bail Act for breach of bail.
B) Abuse of drugs
Where:
i) the test shows D has a Class A drug in D’s body; and
ii) the offence relates to a Class A or was caused/motivated by D taking Class A drugs.
Court may not grant bail unless there is no significant risk of D committing an offence on bail.
Dealing with cases where there has been a bail infringement
If the defendant was on bail at the time of the alleged offence:
A. If D is said to have committed an indictable offence, then the court ‘need not’ grant bail.
B. If D is said to have committed a summary imprisonable offence then the court ‘need not’ grant bail if there are substantial grounds for believing that D will commit further offences.
If D absconds whilst on bail for an indictable offence, then bail need not be granted again, unless it is prior to the conviction and there are no realistic prospects of the defendant receiving a custodial sentence.
(BAIL) Factors to consider
After considering grounds for objecting to bail, must consider factors.
Factors are mandatory considerations:
- Nature and seriousness of the offence and the likely disposal (i.e. sentence) - if convicted of a serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond.
- The Character of the defendant, D’s antecedents, associations and community ties;
* Antecedents refers to previous convictions which can make a custodial sentence more likely.
* Character might include any personal circumstances such as drug addictions.
* Associations can include friends with criminal records.
* Examining the ‘community ties’ helps to see how easy it could be for D to abscond and how much he has to lose by absconding. If D is married with children or in a job, then D is much less likely to disappear compared to somebody with ‘no fixed abode’. - Defendants bail record in the past - whether D has absconded previously can be seen as indicative that D may do so again. Here the court will also look at whether D has a tendency to commit offences whilst on bail.
- The Strength of the evidence - a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction.
The factors give the court a wide discretion.
Bail conditions - overview
A person granted bail in criminal proceedings is under a duty to surrender to custody, by attending court at the time and date specified (Bail Act 1976 s3(1)).
To overcome objections to bail, the defence can offer conditions to be attached to bail, which would lessen any associated risk of granting bail.
The court can impose ‘such conditions as appear necessary’ meaning technically that there is no limit to the conditions that a court could choose to impose.
Court must consider whether a condition is: Relevant, Proportionate and Enforceable.
Common bail conditions
Residence at a given address - must live and sleep at a specified address. Helps court/solicitors to communicate with D by post, and the police know where to find D if he doesnt appear at court. Imposed to reduce risk of absconding.
Curfew - designed to prevent further offences being committed whilst on bail. Only appropriate where the time of day/night is relevant to the pattern of offending.
Reporting to a local police station at given times - reduces risk of absconding.
Surety - offer of money made by someone with influence over the defendant to secure the defendant’s return to court. Usual due to risk of absconding. Surety forfeits the money if D absconds. These are not deposited initially unless D fails to answer to bail.
Security - the defendant or someone on d’s behalf puts money or some other valuable asset to be forfeited if D doesnt answer to bail and attend court. Means of reducing risk of D absconding. These are deposited ahead of release on bail.
Restriction on where a Defendant may go during bail - area/place. Condition imposed to reduce risk of committing further offences and or interfering with witnesses.
Restriction on who the defendant might have contact with during bail - direct/indirect contact with named individuals. Reduce risk of interference with witnesses and or obstructing course of justice or co-defendants to prevent further offending.
Electronic monitoring (tagging) - A curfew can be subject to electronic monitoring. aims to prevent offences being committed, and can also be imposed to address fears of failure to surrender and interference with witnesses.
Bail Hostels - no fixed address.
Surrender to passport - aiming to prevent absconding.
Applications to vary bail conditions
Can be made by the defence or the prosecution on advance notice to the other party.
App should be made to the Court which granted bail (or CC if accused has been sent for trial or committed for sentence).
If parties agree on variation, the court may decide to vary condition without hearing.
Breach of bail conditions
Breach of bail conditions may result in the accused being arrested under s7(3) Bail Act 1976 and D is at risk of either having the bail conditions tightened or being remanded in custody ie bail being withdrawn.
Not an offence to breach a bail condition.
s7 Bail Act provides that there is a power of arrest allowing officers to arrest those either who are in breach or who are about to be so.
Given that breach of bail isnt an offence the defendant who is arrested for breach must be brought forthwith to a mags court and then the question to determine is simply whether D should have bail going forward.
Not surrendering to custody
Number of instances whereby breach of bail could introduce more grounds of objection which might not have been available previously.
Even if breach does not trigger new grounds, the assessment of whether the defendant gets bail will be likely to alter against the defendants interests if theres been a breach of a condition. D faces a real possibility of being remanded in custody until the case is concluded.
The only breach which is a criminal offence is failing, without reasonable cause to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to 3 months imprisonment and or an unlimited fine or 12 months and an unlimited fine on indictment.
Robbery
Section 8(1) TA 1968 defines robbery as follows:
“A person is guilty of robbery if the person steals, and immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”
Section 8(2) TA 1968 provides for the offence of “assault with intent to rob”.
Robbery is indictable only, punishable with life imprisonment or an unlimited fine or both.
Burglary
Burglary consists of
- entering a building or part of a building as a trespasser with intent to commit theft, grievous bodily harm or criminal damage; or
-having entered as a trespasser, stealing or inflicting/attempting to inflict grievous bodily harm.
Either way offence accept in certain circumstances (Burglary in a dwelling and any person was subject to violence or threat of it, or burglary was a domestic burglary, accused is over 18 and had been convicted on 2 separate occasions of burglary since 1999 - three strike rule) when it is indictable only.
Max sentence post 2022 in Magistrates Court 12 months imprisonment and or unlimited fine.
Theft
Theft is defined by section 1 TA 1968 as dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.
Theft is triable either-way with a maximum penalty in the Crown Court of seven years’ imprisonment and/or an unlimited fine.
In a Magistrates’ Court, the maximum penalty depends on when the offence was committed:
For offences committed pre 2 May 2022, the maximum penalty for a single either-way offence is up to 6 months’ imprisonment and/or an unlimited fine; for two or more either-way offences, the maximum penalty is up to 12 months’ imprisonment and/or an unlimited fine;
For offences committed post 2 May 2022, the maximum penalty available for a single offence either-way offence, and for two or more either-way offences, is up to 12 months’ imprisonment and/or an unlimited fine.
Character evidence
Seven gateways
Bad character can be admissible if one of the 7 criteria is satisfied (CJA 2003 s101(a)-(g):-
S.101(1)(a) all parties agree to the evidence being admissible.
S.101(1)(b) evidence is adduced by D himself or given in answer to a question asked by him in cross examination and intended to elicit it.
S101(1)(c) the evidence is important explanatory evidence, in that the court would find it impossible or difficult to properly understand other evidence in the case or where the value for understanding the case was whole or substantial.
S.101(1)(d) the evidence is relevant to an important matter in issue between Defendant and Prosecution relating to the propensity of the defendant to either-
- commit offences of the kind charged or
- to be untruthful.
S.101(1)(e) evidence has substantial probate value in relation to an important matter in dispute between defendant and co-defendant.
S.101(1)(f) it is evidence to correct a false impression given by the defendant.
S.101(1)(g) the defendant has made an attack on another persons character.
What is a Newton hearing
Where D pleads guilty on a basis that will make a material difference to sentence, the court must hold a Newton Heating to decide the factual basis upon which it should pass sentence.
Procedure:
No jury
Prosecution makes opening speech and calls evidence in the usual way and their witnesses can be cross-examined by the defence.
D is able to give evidence and call witnesses if they so wish.
Both parties entitled to address judge by way of a closing speech.
What are the rules on Indictments?
Only applicable to CC.
CPR Rule 10.2
Indictments must be in writing and each count must contain:
1. A statement of the offence charged that describes the offence in ordinary language and identifies any legislation that creates it; and
- Such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor alleges against the defendant.
- If there is more than one count, each should be numbered.
- each count should state date of offence or ‘on or about’ or ‘day unknown’ before specific date.
Draft Indictments:
- In most cases the prosecuting authority will prepare a schedule of charges drafted in the form of counts suitable for inclusion in an indictment. This schedule is in effect the draft indictment. Usually on sending the D to CC, this schedule is sent to CC electronically. CC checks that D has been sent for trial, signs any paper copy with:
a) a note to identify it as a copy of the indictment; and
b) date on which this draft, or bill, became an indictment (it becomes an indictment immediately before arraignment!).
Time limits for serving: a draft indictment must be served on an appropriate court officer of the CC within 20 business days of the date on which:
a) copies of docs are served where a person is sent for trial; or
b) a High Court judge has given permission to serve a voluntary bill of indictment. CC can extend time limit even after it has expired.
Court expects to receive draft indictment at least seven days prior to the PTPH.
Voluntary bills of indictment:
- An exceptional procedure which involves applying to the HC for leave to direct the preferment of a voluntary bill of indictment. Procedure can be used where defence have made a successful app to dismiss an indictment in the CC and prosecution wish to seek trial.
- Must be good grounds for an app to prefer this and it must be in the interests of justice to grant it. Good grounds could amount to, for example, further significant evidence coming to light following the dismissal of the case or where the CC judge didnt have the crucial authority or statutory provision brought to their attention.
What is arraignment?
Pleading guilty or not guilty
Indictment: Joinder of counts
More than one offence included on a single indictment.
The court has discretion to order separate trials if it is in the opinion that D may be prejudiced or embarrassed in their defence or it is desirable for any other reason.
Summary offence can only feature on an indictment where the facts or evidence relating to it are contained in the facts or evidence disclosing the indictable offence for which D is sent for trial to CC.
Counts may be included on the same indictment if they are:
- Founded on the same facts - arising out of a single incident or an uninterrupted course of conduct; or
- Form a part of a series of offences.
Indictment: Joinder of defendants
More than one defendant included on a single indictment. D’s can be jointly named in 1 count or named individually in separate but related counts. The jury would consider the case against each D separately.
Indictments - Objections
- Duplicity (each count should relate to a single offence - unless there are exceptions permitted for continuous offences)
Each victim should get there own indictment. - Overloaded
- Misjoined
Appeals against magistrates decisions
