Criminal Flashcards
What are the components and potential sentence for the common law offence of assault?
Intentionally or recklessly (MR) caused victim to apprehend immediate and unlawful personal force.
Potential Sentence = Up to 6 months imprisonment and/or a fine (summary only).
What are the components and potential sentence for the common law offence of battery?
An act or omission inflicting unlawful personal force done intentionally or recklessly (MR).
Potential Sentence = Up to 6 months imprisonment and/or a fine (summary only).
What are the components and potential sentence for assault occasioning actual bodily harm? (ABH) S.47 OAPA 1861
An assault or battery which has caused actual bodily harm, defendant was reckless to/intended to do the assault/battery (MR).
Potential Sentence = up to 5 years’ imprisonment (either way).
What are the components and potential sentence for wounding or inflicting grevious bodily harm (GBH)? S.20 OAPA 1861
Unlawfully and maliciously (MR) wounding or inflicting grevious bodily harm (very serious harm, e.g., fractured skull, internal injuries, broken limbs, serious psychiatric harm)
Potential Sentence = up to 5 years’ imprisonment (either way).
What are the components and potential sentence for wounding or inflicting grevious bodily harm (GBH) with intent? S.18 OAPA 1861
Wounding or causing GBH with intent to cause GBH (MR); or with intent to resist or prevent arrest (MR). (Must have intended/foresaw some ABH would be caused).
Potential Sentence = Up to life imprisonment (indictable only).
What are the components and potential sentence for robbery? S.8 Theft Act 1968
Defendant steals and immediately before/at the time of doing so he uses force on any person; or he puts any person in fear of being subject to force.
Potential Sentence = Up to 7 years’ imprisonment (indictable only).
What are the components and potential sentence for burglary? S.9(1)(A) Theft Act 1968
Enters building as a trespasser, has knowledge of/is reckless as to being a trespasser (MR) intends to commit theft, GBH, or criminal damage.
Potential Sentence = Up to 10 years’ imprisonemnt (14 for burglary of a dwelling) (either way).
What are the components and potential sentence for burglary? S.9(1)(B) Theft Act 1968
Enters building as a trespasser, commits/attempts theft or GBH (offence is committed when ulterior offence is committed, must have knowledge/been reckless as to being a trespasser (MR).
Potential Sentence = Up to 10 years’ imprisonment (14 for burglary of a dwelling) (either way).
What are the components and potential sentence for aggravated burglary? S.10 Theft Act 1968
Burglary commited with any firearm, imitation firearm, weapon of offence, or explosive.
Potential Sentence = Up to life imprisonment (Indictable only).
What are the components and potential sentence for simple criminal damage? S.1(1) CDA 1971
Without lawful excuse, defendant destroys or damages property belonging to another, intending/being reckless as to damage (MR).
Potential Sentence =
> £5,000, either way - up to 10 years’ imprisonment
< £5,000, summary only - up to 3 months’ imprisonment and/or fine
What are the components and potential sentence for aggravated criminal damage? S.1(2) CDA 1971
Destroying or damaging property with intent or recklessness as to the endangerment of the life of another by the damage of destruction (MR). (No lawful excuse).
Potential Sentence = Up to life imprisonment (Indictable only).
What are the components and potential sentence for arson? S.1(3) CDA 1971
Criminal Damage/Aggravated Criminal Damage caused by fire.
(Simple Arson - lawful excuse available, Aggravated Arson - no lawful excuse).
Potential Sentence = Up to life imprisonment (indictable only).
vWhat are the components and potential sentence for murder at common law?
Unlawful killing of a human being under the King’s peace with malice aforethought (direct/indirect intention to kill/cause GBH).
Potential Sentence = Up to life imprisonment (indictable only).
In what 2 circumstances can a charge of manslaughter be reduced to voluntary manslaughter?
If either of the 2 partial defences are available:
- Diminished Responsibility
OR
- Loss of Control
What must be established for the partial defence of diminished responsibility to apply?
- Abnormality of the mind
- From a recognised medical condition
- Caused a substantial impairment on the defendant’s ability to understand their conduct/form a rational judgment/exercise self-control.
Abnormality must explain the killing.
What must be established for the partial defence of loss of control to apply?
- Loss of self control
- From a qualifying trigger -
- Fear of serious violence
- Things said or done that constitute circumstances of an extremely grave nature, and caused defendant to have a justifiable sense of being seriously wronged
- A person of defendant’s sex and age with a normal degree of tolerance and self restraint may have reacted in a similar way
What are the components for Unlawful Act Manslaughter?
Defendant commits an unlawful act that kills someone but did not intend to kill or cause GBH - Must be an unlawful act (criminal offence) which a reasonable person would appreciate to be dangerous at the time the act was committed
MR required is the MR for the unlawful act.
What are the components for Manslaughter by Gross Negligence?
- A duty of care owing to the victim is breached
- The breach caused the death
- Defendant’s conduct was grossly negligent (must be a risk the conduct would cause an obvious and serious risk of death)
What are the components for fraud by false representation? S.2 Fraud Act 2006
Defendant makes a false representation dishonestly to make a gain for themselves (or another) or to cause loss to/expose another to the risk of loss.
Gain/loss must relate to money/property.
What are the components for fraud by abuse of position? S.4 Fraud Act 2006
Defendant occupies a position in which they’re expected to safeguard/not act against the financial interests of another dishonestly abuses that position intending to make a gain for themselves (or another) or to cause loss to/expose another to the risk of loss.
What are the components for fraud by failing to disclose information? S.3 Fraud Act 2006
Dishonestly fails to disclose information for which they are under a legal duty to disclose intending to make a gain for themselves (or another) or to cause loss to/expose another to the risk of loss
Define the “Actus Reus”
The guilty act - physical element of the offence.
How is causation proven under criminal law?
- Factual - But for test
- Legal - Chain of Causation, D must be sole or significant cause
Two Elements for Legal Causation:
- The accused’s conduct must be a significant cause (more than minimal).
- There must not be an intervening act: e.g.,
- The victim or third party does a free, voluntary, and informed act; OR- The result of D’s actions was not reasonably foreseeable.
Define the “Mens Rea”
The guilty state of mind.
- Intention
- Recklessness
Define “Oblique Intention”
When the consequence of D’s actions was not the intention of D but a side effect that D knew was an inevitable result of their actions.
The test is:
As a result of D’s actions, was the death or serious bodily harm:
- A virtual certainty?; and
- D knew it was a virtual certainty?
What is the test for “recklessness” under criminal law?
- Was D aware of the risk?
- in the circumstances known to D at the time, was it unreasonable for him to take that risk?
What’s “transferred malice”?
The MR, or malice, is deemed to be transferred to the other victim or result provided that D has that MR in the first place and commits the AR.
E.g., John hits Peter but actually wanted to hit Steve = transferred malice
What’s the “continuing act” rule?
If D accidentally commits an actus reus and then forms the mens rea at a later time, the AR is seen as a continuing act and therefore coincides with the MR when it is actually formed.
What’s the “one transaction” rule?
If D tries to commit a crime and at that time has the intention to do so, but fails to commit it, and then subsequently commits the crime without the MR by mistake/without realising - this is seen as one continuous transaction, meaning that the AR/MR coincided, even if they are not together at exactly the same time.
What is a principal?
The main perpetrator of the offence (committed the AR).
What is an accessory?
Someone not directly responsible (did not commit the AR) but still had a part to play.
If found liable, they will be guilty of the same crime as the principal.
Explain how an accessory can be liable
If a person helps or encourages a principal either before or at the time of the offence is commited, they could be liable.
Explain the AR of accessory liability
AR: D must do one of the below:
- Aid - Help/assist at the time or before the offence
- Abet - Encourage at the time of the offence, D must be present at the time the offence is being committed. Merely being presented is enough. Failure to stop a principal from committing an offence also counts.
- Counsel - Giving advice prior to the commission of a crime. No need to be present.
- Procure - Making sure something happens and taking steps to ensure it does.
Explain the MR of accessory liability
D must have both of the below:
- Intention to aid, abet, counsel, or procure P to commit one of a range of offences within D’s contemplation
- Knowledge/contemplation of a range of possible crimes (which are within D’s contemplation), one of which P actually commits within that range
How can an accessory withdraw from the crime?
Must be at a sufficiently early stage
They must communicate the withdrawal unequivocally to the parties involved
Taking reasonable steps to avert the commission of the crime makes withdrawal more likely to be successful
What’s an inchoate offence?
When D has not actually committed the full crime but has made steps towards committing it.
What’s the AR and MR of Attempt?
AR - Act which is more than merely preparatory
MR - Intention of full offence
S.1(1) Criminal Attempts Act 1981
Explain the AR of Attempt
More than merely preparatory - D has actually tried to commit the full offence, rather than just taken the steps to get himself ready to do so
Explain the MR of Attempt
D must intend to bring the consequences required for the full offence - oblique intent can count.
Conditional Intent (intention to commit the offence subject to certain conditions) counts.
Recklessness does not count.
How does “impossibility” work for an attempt crime?
D can be guilty of attempting to commit an offence even though it is factually impossible.
Two types of impossibility:
- Impossibility through Inadequacy - The crime is feasible but D’s method would not work
- Impossibility in Fact - D thinks they are trying to commit a crime, but in fact they are not because of reality
How does intoxication work as a defence?
Can be used by the defence as evidence that they did not form the MR
Because of their intoxication, D could not have formed intention or foresaw the risk of harm.
How should you apply intoxication for recklessness?
Voluntarily Intoxicated - Presumption that D foresaw the risk
Involuntarily Intoxicated - Check whether D did in fact foresee the risk when drunk
Can you rely on self-defence if you are intoxicated?
If D is involuntarily intoxicated (e.g., spiked): self-defence can be used if D thought that the use of force was reasonable in all the circumstances as he believed them to be, and this is the case even if D is mistaken
Voluntary Intoxication: D cannot rely on a mistaken belief to use force
What is the test for self-defence?
- D genuinely believes it was necessary to act in defence - facing imminent attack
- D’s response was reasonable and proportionate force used
Explain the “response” for self-defence
Was the level of force reasonable?
- Non-Householder Cases: Was the use of force objectively reasonable (proportionate) given the facts the defendant subjectively believed them to be? (Reasonable Man)
- Householder Cases - Use of force cannot be grossly disproportionate
What are the three kinds of offences a defendant can be charged with?
Summary Only - The least serious offence. Only dealt with in the Magistrates’ Court. Covers most road traffic offences (e.g., speeding)
Either Way - Either a summary or an indictable offence depending on the seriousness of the crime. Can be dealt with in either MC or Crown Court (CC). E.g., theft, fraud, assault, or criminal damage
Indictable Only - Most serious offences. Can only be dealt with in CC. E.g., grevious bodily harm (GBH), homicide offences, aggravated burglary, robbery, arson, aggravated criminal damage
Where does an indictable only offence start in the court process?
In the Magistrates’ Court.
All cases start in the MC. The MC will then send the case straight to the Crown Court.
What are the main stages of the criminal litigation process for an either way offence?
- Investigation, Arrest, Detention and Interview - Police pass the results of their investigation onto the CPS who determine whether to charge D. The custody officer will decide whether to grant bail.
- Charge and Police Bail
- First Appearance at MC - If D pleads guilty, MC will determine if they have the power to sentence
- Allocation - MC review sentencing powers to see if they can try D. If not, they go to CC. MC also deals with bail. Even if MC does have the power to try, D can still choose to go to CC.
- Trial at MC or (if allocated to CC) PTPH at CC. If D pleads not guilty, trial by jury - bail can be granted by the CC before full trial.
What is the overriding objective under the Criminal Procedure Rules?
To deal with cases justly.
Solicitors have a duty at all times to abide by and carry out the overriding objective - they are an officer of the court, and their duties owed to it override the duties owed to their client.
What are the duties a solicitor has when conducting criminal proceedings?
- Do not misuse or abuse evidence
- Comply with court orders and advise clients to do so
- Refuse to act for a client if they lie or mislead the court unless the client tells the court
- Solicitor must not mislead the court or work with someone (including the client) to mislead the court
- Do not place themselves in contempt of court
- Do not bribe witnesses
- Ensure the facts are presented fairly
- Draw the court’s attention to relevant authorities even if they are adverse to his/her case
- Conduct cases in a way that does not waste the court’s time and allows cases to be conducted as efficiently and economically as possible
- Remember that the duty of confidentiality to the client lasts even after instructions have been terminated
When a solicitor act for two co-defendants?
A solicitor can act where there is no conflict of interest or a significant risk of a conflict of interest (and the substantially common interest exception does not apply).
Para 6.2 Code - You cannot act where there is a conflict of interest or a significant risk of such conflict. This is unless there is a ‘substantially common interest’ between the parties - this will apply when you have co-defendants pursuing the same defence, but will fail if the interests diverge.
Solicitor would need to assess whether the co-defendants will give evidence against each other.
If you have worked for both but choose to continue acting for only one, you have confidential information on them, you have a conflict between paras 6.3 (keeping client information confidential) and 6.4 (disclosing all relevant information to the client). Unless you get consent from the previous defendant you acted for to disclose, you must cease working for both to avoid this conflict.
How should a solicitor deal with instructions from a parent to act for their child in detention?
The solicitor should speak with the client directly. They should ask the client if they wish for the solicitor to act for them, should say that the client does not have to hire them.
They should get written authorisation from the client to act.
What if a client admits their guilt to a solicitor but will plead not guilty?
The solicitor can still act for the client, provided that the client does not mislead the court. The client should say nothing and put the prosecution to proof.
If the client does mislead the court, the solicitor should cease to act. They cannot tell the court why because of their duty of confidentiality.
The solicitor should advise the client of the risk of committing perjury if the client gives misleading information to the client and that they will get a more lenient sentence if they plead guilty.
What if a client has a really weak defence?
The solicitor should advise that the client pleads guilty to get a more lenient sentence.
However, the solicitor should never TELL the client to plead guilty.
Does a solicitor need to disclose all information about the client’s charge to the client?
Para 6.4 of the Code - A solicitor must disclose all relevant information about the matter to the client, but there are exceptions.
The situation will likely arise when the solicitor is at the police station and they have received disclosure from the police on the client’s charge. They have to tell the client everything they received from the police unless there are legal restrictions imposed for national security reasons or the prevention of crime, or they believe it will cause serious harm to the client or another.
What if the client tells you they are in fact guilty after being acquitted?
The solicitor cannot disclose this to the court because of client confidentiality; they should note it in their internal client file.
Does a solicitor need to disclose to the court evidence on the client’s case that the prosecution has missed out?
No.
Under Rule 2.7 of the Code, you need to inform the court of any relevant case law or statutory information, or procedural irregularities, that arise in a case, even if that is adverse to your case.
But this duty of disclosure does not relate to evidence - if the prosecution has missed a key bit of evidence, that does not need to be disclosed.
What will the custody officer need to determine when a suspect has been arrested and brought to the police station?
The custody officer needs to decide whether to release the suspect, release on bail, or detain to gather evidence to charge.
The first question for the custody officer - is there sufficient evidence to proceed to charge?
If so, the person will be released on bail or kept in detention until the CPS has reviewed the evidence to decide to charge.
If not, the suspect must be:
- Released
- Released on pre-charge bail by the custody officer (ordered to appear before the MC: gives CPS time to review and decide to charge)
- Detained if the custody officer has reasonable grounds for believing that the detention is necessary to secure evidence or obtain evidence by further questioning. This is to get sufficient evidence for the CPS to decide whether to charge or not.
What steps must the custody officer take if they decide to detain the suspect?
- Authorise the detention of the suspect
- Open a custody record which will contain a written record of the time of arrest, arrival at the police station, time of detention, the suspect’s charge and the suspect’s personal details
- Inform the detainee of the reason for their arrest
- Inform the detainee of the reason for their detention
- Advise the detainee of their rights
- Arrange for the detainee to be searched (and seize items which could be used to injure others/damage property or that are evidence)
When and for how long can the right not to be held incommunicado be delayed?
All the grounds for delay must apply and the declay cannot be for more than 36 hours from the “relevant time” (= time of arrival at the police station if arrested and then brought to station or time of arrest if attendance was voluntary and then they were arrested at the police station).
Grounds for Delay:
- Indictable Offence: The suspect must be in detention for an offence that can be tried at CC;
- Rank of Inspector: Authority to grant the delay can only be given by someone of at least the rank of inspector; and
- Reasonable Grounds: The inspector must have reasonable grounds that the exercise of the right will lead to any of:
- Interference with/harm to evidence connect with an indictable offence;
- Interference/harm to other people;
- Alerting of other people suspected of committing an indictable offence but not yet arrested for it;
- Hinder the recovery of property; or
- The suspect has benefited from their criminal conduct and informing someone of the arrest will hinder the recovery of such property.
When can the right to consult privately with a solicitor be delayed and for how long?
All the grounds for delay must apply and the delay cannot be for more than 36 hours from the relevant time.
Grounds for Delay:
- Indictable Offence
- Superintendent at least (higher than inspector) only can authorise delay.
- Reasonable Grounds - The superintendent has reasonable grounds to believe the exercise of the right will lead to any of:
- Interference with/harm to evidence connected with an indictable offence
- Interference/harm to other people
- Alerting of other people suspected of committing an indictable offence but not yet arrested for it
- Hinder the recovery of property; or
- The suspect has benefitted from their criminal conduct and informing the solicitor will hinder the recovery of such property.
What are the rules on the review of a client’s detention by the police?
The client’s detention must be reviewed by the “review officer” (an officer of at least the rank of inspector not involved in the case) to ensure that the grounds for detention still exist.
The review must take place no more than 6 hours after the custody officer first authorised the detention, then periodically every 9 hours after that first review.
At every review, the client must be reminded of the rights to:
- Free legal advice; and
- Make representations to the police (unless the client is unfit/asleep at the time of the review).
The review can be conducted by telephone if the review officer cannot be there.
What is the detention clock?
The police may want to detain the suspect for a longer period of time in order to get sufficient evidence to charge. To do so, they must comply with the time limits and procedures under PACE Code C.
The detention clock is the time limits that the police can keep a suspect detained without charge - up to 24 hours, beyond 24 hours etc.
Failure to comply with the rules under Code C makes the detention unlawful.
How do the police keep a suspect in detention for up to 24 hours from the arrival at the police station without charge (if brought there after arrest)?
The police do not need to do anything. They can keep a suspect in detention without charge for up to 24 hours from the time of arrival at the police station (if arrested and then brought).
If they want to go beyond 24 hours then they would need to take further steps.
What if the police want to detain the suspect at the police station for more than 24 hours after arrival at the police station (if brought there after arrest)?
Beyond 24 hours, the police can only extend for another 12 hours (up to a total of 36 hours from time of arrival at the police station - if arrested then brought).
To do this:
- It must be exercised before the expiry of the first 24 hours
- Indictable Offence (this includes either way offence)
- A superintendent must authorise
- Grounds for Detention must still exist (preserve evidence OR obtain further evidence by questioning)
- The continuing investigation must be conducted by the police diligently and expeditiously
What if the police want to extend a suspect’s detention beyond 36 hours from arrival at the police station (if brought there after arrest)?
The police can make an application to the Magistrates’ Court to extend detention for another 36 hours on top of the 36 hours the subject has already been there (a max of 72 hours from arrival at the police station if arrested then brought).
The MC will issue a warrant authorising further detention. The following conditions must apply:
- It must be exercised before the expiry of the first 36 hours
- Indictable Offence (includes either way offences)
- A superintendent must authorise the warrant application
- Grounds for Detention must still exist (preserve evidence OR obtain further evidence by questioning)
- The continuing investigation must be conducted by the police diligently and expeditiously
What if the police want to extend a suspect’s detention beyond 72 hours from arrival at the police station (if brought there after arrest)?
The police must make another application to the Magistrates’ Court. If the client has been detained for 72 hours, the police can apply for another 24 hours (up to a maximum of 96 hours from time of arrival).
A suspect can only be detained at a police station without charge for a maximum of 96 hours.
If the police can make a second application to the MC, they can apply to detain the client for a further 36 hours, but the client can only be detained for a max of 96 hours, so if the client has been detained for 72 hours, the police can only apply for 24 hours.
The same process as for making the first application applies.
What are the ID procedures the police can use if they know who the suspect is, the suspect is available, and the police have an eyewitness?
Video Evidence - Showing the witness video footage of the suspect and other individuals similar to the suspect to see if they can pick them out
ID Parade - At least eight people are paraded in front of the eye-witness to see if they can pick out the suspect
Group Identification - The witness picks the suspect out of an informal group
Confrontation - The witness is brought face to face with the suspect at a police station
ID from Photographs - The eyewitness is shown 12 photos containing pictures of similar people, one of which will be suspect the eyewtiness previously identified
Eyewitness ID Procedure must be used if:
- A witness has identified or purports to identify a suspect
- A witness thinks they can identify/there is a reasonable chance they can identify the suspect
- The suspect disputes being the person the witness claims to have seen
- It is practicable and would serve a useful purpose in proving or disproving whether the suspect committed an offence
- Can also be held if the investigating officer considers it would be useful
What notice must be given to the suspect before an eyewitness ID procedure?
- The purpose of the procedure
- Their entitlement to free legal advice
- The procedure that is being followed and details of the procedure
- If the suspect refuses to take part, it may be used as evidence against them and the police may covertly identify the suspect
- If the suspect has altered their appearance, this may be given as evidence in trial
- Photos and videos may be taken of the ID procedure
- Details of the suspect given to the police by the witness will be provided to the suspect and their solicitor
What is the role of the ID Officer in respect of the eyewitness ID procedure?
They must organise and arrange the ID procedures and ensure they comply with PACE Code D.
They can delegate and instruct officers to hold the procedures - but the ID offier has ultimate responsibility for them. When delegating, the ID officer must still supervise and be on hand for advice.
The ID officer can consult the investigation officer about the most appropriate ID procedure to use. Any ID procedure must be done as soon as practicable.
The ID officer will also give the suspect the notice before the eyewitness ID procedure.
If an eyewitness procedure is to be used, which is the one that SHOULD be used?
Video Identification should be used, unless it is not practicable or another method is more practicable.
The ID officer may also determine that a group ID procedure is more practicable than a video identification.
The ID officer and the investigation officer must consult each other about which method is the most appropriate to use.
A suspect can refuse to take part in a procedure - they must give reasons. If so, the ID officer can invite them to use another one.
What is the procedure for identification by video evidence under PACE Code D?
- Responsibility of the ID officer to conduct
- The images must include at least 8 other suspects physically similar to the suspect
- The suspect or solicitor must be given a reasonable opportunity to see the images before they are used. The suspect can object
- The suspect’s solicitor can be present at the ID if permitted on request by the ID officer
- One eyewitness views the imagery at a time. They are told that they can view it as many times as they like and freeze the pictures. Must view at least twice. After the eyewitness has confirmed they have viewed enough, they will be asked to identify the suspect
- A full record should be made of those who participated and what was said by the eyewitness
What is the procedure for identification by ID parade under PACE Code C?
The suspect must be given a reasonable opportunity to have their solicitor or a friend present.
Immediately before the ID parade, the suspect must be cautioned.
ID parade must consist of at least 8 people (including the suspect) of similar physical characteristics to the suspect.
Before the parade, the suspect is given the opportunity to confirm they are happy to do it and make objections.
Members of the parade file in one at a time. The witness is told the suspect may or may not be present that they should not make a decision until they have looked at each parade member at least twice. The witness can ask a member to speak, move, or adopt a specific posture (but the witness should be reminded the parade is based on appearance only). The witness can also ask a member to remove a physical obstruction.
If the witness makes an identification after the ID parade has ended, the suspect and solicitor shall be informed. The suspect is invited to make comments on the parade.
A video recording must normally be taken of the ID parade.
A record of the parade and its conduct must be made.
What is the difference between “controlled” showing of media and “uncontrolled” showing of media?
Controlled - When an individual who is not an eyewitness is selected by the investigating officer and shown media to see if they recognise anyone
Uncontrolled - When the police publish media to see if the public can recognise the suspect (e.g., posting on social media)
What are the requirements for an examination or taking photos of a suspect at a police station?
Any searches or photographs must be done by an officer of the same sex. Reasonable force can be used if no consent has been given for a search or photograph.
If no consent has been given to search, authority must be given by an officer of at least the rank of inspector.
When a person is searched, examined or photographed, they must be informed of the:
- Purpose of the search, examination, or photograph;
- Grounds on which the relevant authority, if applicable, has been given;
AND
- Purposes for which the photograph may be used, disclosed, or retained
This information must be given before the search or examination commences or the photograph is taken, except if the photograph is to be taken covertly.
What details must a record include that has been taken after a person has been examined or photographed?
- The identity of the officer carrying out the search, examination or taking the photograph
- The purpose of the search, examination or photograph and the outcome
- The detainee’s consent to the search, examination, or photograph, or the reason the person was searched, examined, or photographed without consent
- The giving of any authority to act without consent, the grounds for giving it and the authorising officer
- If force is used when searching, examining, or taking a photograph a record shall be made of the circumstances and those present
What is the procedure for taking fingerprints or footwear samples from a suspect?
The samples can be taken with or without the suspect’s consent, and reasonable force can be used if the suspect has not consented.
- Samples can only be taken without consent if the suspect has been arrested for a recordable offence
- Before the fingerprints or impressions are taken, the suspect, if given without consent, must be informed of the reason, the power under which they are taken, that their fingerprints/impressions may be searched against others, and that they may be retained for a time.
- If given consent, they only need to be informed that their data is searchable and may be retained.
- A full record must be written up stating that the suspect was informed as necessary and whether force was used.
What are “intimate samples” for the purposes of Code D PACE?
Blood, urine, semen, any other tissue fluid and pubic hair
Dental Impression
Swab taken from a person’s genitals or orifice
What is the procedure for taking “intimate samples” from a suspect?
- The suspect must consent to the intimate sample being taken - no exceptions.
- An officer of at least the rank of inspector must authorise the sample being taken.
- The inspector must have reasonable grounds for suspecting the suspect’s involvement in the offence AND for believing that the sample will confirm or disprove his involvement.
- Authority and consent must be given in writing.
- The suspect must be warned that a failure to consent may be given as evidence.
- The suspect must be informed of the reason, the suspected offence, the authorisation given, and that the smaple may be examined and subject to a speculative search.
- Full record made.
What are “non-intimate samples” for the purposes of Code D PACE?
Sample of hair other than pubic hair
Sample of a nail or under a nail
A swab from any part of a human body other than an intimate area
Saliva
Skin Impression
What is the procedure for taking non-intimate samples from a suspect?
The non-intimate sample can be taken with or without consent.
It can only be taken without consent if the suspect has been arrested for a recordable offence.
What are the conditions for a lawful interview under PACE Code C?
- The interview must be under caution.
- The suspect must be given an opportunity to explain any significant earlier statement or silence made at the time of arrest or before the interview in the presence of a police officer.
- The suspect/solicitor will be given sufficient information so that they can understand the nature of the offence and why they are a suspect.
- It must be done at the police station.
- Prior to the interview, the suspect must be reminded of their right to legal advice and that the interview can be delayed for them to get legal advice.
- An accurate record must be made of each interview.
- If the suspect has exercised their right to have a suspect present, then the solicitor will also be present at the interview.
- The officer conducting the interview must not “oppress” the suspect during the interview or induce the suspect to admit their guilt.
- During a continuous period of 24 hours during which time the suspect is detained at the police station, if the police conduct multiple or long interviews the suspect should be given at least 8 hours of uninterrupted rest (usually at night). The custody officer should make sure that the suspect is in a fit state to be interviewed. Breaks should also be given during the interview, including meal times, at two hour intervals.
Do the police need to suspect’s consent to conduct an interview?
No - the police can force a suspect to be interviewd by questioning them anywhere in the police station (as long as they suspect is cautioned).
Police can conduct the interview in the cell.
What is the role of the solicitor during the police interview?
The solicitor is there to protect the legal rights of their client.
The solicitor must not be passive but must be active - fighting their client’s corner and protecting them against difficult or searching police questioning.
They must also before the interview explain to the client what the interview is, that it will be recorded, that the client can ask for the interview to be stopped to get further advice from the solicitor and that the solicitor will be present to protect the client’s interests.
How must a juvenile or vulnerable person be interviewed?
They can only be interviewed with an appropriate adult present.
Who can be an AA?
For a juvenile:
- Parent or Guardian
- Representative of a Local Authority if the child is in care
- Social Worker
- Any other responsible adult 18 or over who is not associated with the police in any way (not an officer, employed, or contracted by the police).
For a vulnerable client:
- Relative or Guardian
- A person responsible for their care
- Someone experienced in dealing with vulnerable persons or a responsible adult over 18 who is not associated with the police in any way.
What is the role of an appropriate adult for the purposes of an interview of a juvenile or vulnerable person?
AA must take an active role in making sure the police and juvenile/vulnerable client understand each other, making sure the police act appropriately and assisting where necessary.
They must also ensure the juvenile or vulnerable client understands what is happening to them and why and to safeguard their welfare and interests.
What must the police tell the appropriate adult at the interview?
They are not just an observer and they are there to:
- Advise the juvenile/vulnerable person being interviewed;
- Observe whether the interview is being conducted properly and fairly; and
- Help the police to communicate with the interviewee.
AA also has several rights, including:
- Being told why the client is being held.
- Speak in private with the person being interviewed.
- See the custody record.
- Intervene in an interview if they feel it necessary.
What is an “adverse inference” under the Criminal Justice and Public Order Act 1994?
A negative impression the court or jury can draw in relation to D’s case if D fails to speak or account for something when questioned and then brings it up at trial as a defence.
Two Limitations:
- Cannot be drawn if D did not have access to legal advice at the time of being questioned.
- Cannot be used solely to convict a defendant.
When can an adverse inference be drawn if a suspect fails to speak up at an interview? S.34 CJPO 1994
If the defendant:
- Is under caution (meaning is being interviewed) before being charged;
- The questions which were not answered were posed in an attempt to discover whether or by whom the offence had been committed and relate to criminal proceedings only;
- Fails to mention any facts which he then relies on in his defence in court; and
- In the circumstances at the time of the interview he could reasonably have been expected to mention those facts. This means it must have been unreasonable to have been silent during the interview.
When would it be unreasonable or reasonable to stay silent at interview?
Think DEAD:
D - Disclosure: If the police have not given sufficent disclosure to D’s solicitor = reasonable to be silent
E - Evidence: If there is little to no evidence of D committing the crime at the time of the evidence = reasonable to be silent (to avoid self-incrimination)
A - Argent (from case R v Argent): Assess the condition of D. How old are they? Mental capacity? Drunk? Ill? Tired? Have they received insufficient information? Have they acted reasonably on legal advice they have received?
D - Defence: If D has facts that hw knows about at the time of the interview which refute the case against him, he should mention them at the interview. If he does not and relies on them at trial, this can cause an adverse inference UNLESS they are new facts.
When can an adverse inference be drawn for a failure to account for objects, substances or marks under S.36 CJPO 1994?
If after arrest the suspect:
- Is found to have an object (in his possession), substance or mark on him or his clothes or footwear.
- The officer reasonably believes the object, substance or mark (or mark on the object) connects him to the offence.
- The officer asks him to explain the object, substance, or mark during the interview (under caution and in plain ordinary language).
- D fails to do so.
An adverse inference can be drawn if the “special warning” is given to D at the time of the officer’s questioning.
When can an adverse inference be drawn for failure to account for presence at the scene under S.37 CJPO 1994?
If after arrest the suspect:
- Was found at a place where the offence is alleged to have been committed and at about the same time.
- The officer reasonably believes their presence at the place and the timing are due to them taking part in the offence.
- The officer informs the suspect this is what he believes and asks the suspect to account for why they were there at that time during the interview.
- The suspect fails to do so.
An adverse inference can be drawn if the “special warning” is given to D at the time of the officer’s questioning.
What is the “Special Warning” for the purposes of S.36 and S.37 CJPO 1994?
To tell the suspect:
- What offence is being investigated
- What fact they are being asked to account for (meaning what object, substance, mark etc)
- That the fact may be due to them taking part in the offence
- That the court can draw an adverse inference if they do not say anything
- That a record is being made of the questioning which can be used as evidence in a trial
What is bail?
Bail is an order to appear before the court.
It means D is released subject to their duty to surrender to the court at an appointed time and place.
Granted where there is a gap in court proceedings - after the MC first hearing, after the allocation hearing, after the PTPH, if there is a break between conviction and trial etc.
Custody officers can also grant bail after arrest or charge, with an order to appear before the MC for first hearing.
What is the starting point when considering whether bail will be granted?
There is always (subject to exceptions) a presumption of bail pre-conviction.
If D is convicted, there is no right/presumption of bail (unless there is an adjournment for a pre-sentence report or community order breach). Bail may still be granted, but it is not as of right and is less likely.
The general right of bail can be died, meaning that the presumption can be rebutted on the basis that an exception applies. It is up to the prosecution to prove and persuade the court that these exceptions apply so that D is not granted bail.
There are also circumstances when pre-conviction there is no right of bail: if D has been charged with or convicted of a “serious offence” and has a previous conviction of such an offence (and if that conviction was manslaughter was imprisoned) or D has been charged with murder.
What exceptions require a real prospect of custodial sentence for an either way/indictable offence?
- Substantial Grounds Exceptions:
- Fail to surrender to custody;
- Commit an offence while on bail;
- Interfere with witnesses; or
- Otherwise obstruct the course of justice. - D committed an Indictable or Either Way offence whilst on bail.
- D breached conditions of bail or failed to surrender to custody whilst on bail.
What exceptions do not require a real prospect of a custodial sentence for an either way or indictable offence?
Domestic Abuse Risk and “Other Grounds”.
Domestic Abuse Risk = Substantial grounds for believing that D on bail would commit domestic abuse against a spouse, partner, or family member. When considering the likelihood of this, the court must consider the same factors (strength of evidence, associations, etc.)
Other Grounds:
- D should be kept in custody for his own protection
- D is a serving prisoner
- It is not practicable to obtain sufficient information to determine bail
- Where a case is adjourned for inquiries or a report, it is impracticable to complete inquiries or make a report without keeping D in custody
When will the right of bail not apply?
- D has been charged with or convicted of a serious offence + has a previous convictions of a serious offence + if that offence was manslaughter, was imprisoned.
- D has been charged with murder.
Serious Offence =
- Murder or attempted murder
- Rape or attempted rape
- Manslaughter
- Serious sexual offences
What is the approach to bail if the defendant has been charged with murder?
Only a Crown Court judge can grant bail.
D is only granted bail if the court believes there is no significant risk of D committing while on bail an offence which would or would be likely to cause physical or mental injury to any person.
When is bail granted for an imprisonable summary offence?
There is still a general right to bail for a con-convicted defendant, but the exceptions the CPS must prove are slightly different.
Only if there is a real prospect of a custodial sentence:
- D has failed to surrender to custody having been granted bail and there is a fear they will do that again;
- D committed an offence on bail and there are substantial grounds for believing they would do it again; and
- D has been arrested for failure to surrender to custody or breach of bail conditions and there are substantial grounds for believing they would fail to surrender to custody, commit an offence on bail, interfere with witnesses or otherwise obstruct the course of justice.
Substantial grounds for believing D would commit domestic abuse on bail.
Other factors: D’s own protection; insufficient information or D is a serving prisoner.
What is the rule for any bail condition to apply?
Any bail condition must be justified and necessary.
They must deal with a concern that the prosecution/court has (the risk if D was granted unconditional bail).
All conditions must therefore be relevant, proportionate, and enforceable. More than one condition can attach to the bail.
What is a surety?
A guarantee given by a parent or guardian that the defendant will surrender to custody at the appointed time.
This person, therefore, promises to pay up if they do not.
The person must have a form of control over the individual - parent or guardian.
What is “security” for the purposes of a bail condition?
Money paid to the court by D or anyone else - like a deposit.
If D does answer bail, the money is returned.
What bail conditions can be used to ensure D stays in a certain location or is restricted in their movement?
Residence - D must stay in a certain location which will be checked by the police and can be tagged.
Exclusion - D cannot go into certain areas.
Curfews - D is not allowed out after a certain time.
Bail Hostels - D may have to stay at a special hostel if they do not have an address or they cannot go home as they have committed domestic violence.
Surrender of Passport.
Reporting to the Police Station on a regular basis.
Restrictions on Communication with a Witness - Can cover more than just not seeing them, can also cover messaging them.
What happens at the first hearing in respect of bail?
- The defence’s solicitor checks if the prosecution opposes bail. If not, the defence solicitor informs the court.
- If the CPS does, it applies for D to be remanded in custody and will give the court reasons why (including previous convictions).
- The defence solicitor makes the application for bail. D can call witnesses and suggest conditions.
- The court will then decide. If bail is refused, a Full Argument Certificate is granted and reasons given.
What can the defendant do next if a Full Argument Certificate has been granted by the Magistrates’ Court?
Two Choices:
- Make another application for bail to the MC on the same facts (if the case continues in the MC).
- Apply straight to the Crown Court.
If the MC refuses again after the first application and the case continues in the MC, D cannot make another full application to the MC unless new facts arise. He can, however, apply to the CC.
If the case goes to the CC, D would just appeal bail at the CC.
To make the application to the CC, D’s solicitor must apply in writing (using a form), send the form to the MC and CC and serve it on the CPS at least two business days before the hearing. The Full Argument Certificate, the notice of application and details of any previous convictions need to be sent to CC. If the CC refuses, D will not get bail.
Can the defendant appeal the conditions of bail imposed by the Magistrates’ Court?
Yes.
- The defendant has the right of appeal to the Crown Court.
- The CC has the powers to remove or vary these conditions.
- The defendant can also (if the case continues in the MC) appeal again to the MC.
Can the CPS appeal if the defendant has been granted bail by the Magistrates’ Court?
Yes, if D has been charged with an imprisonable offence.
- CPS can appeal to the Crown Court.
- Oral notice of the appeal must be given before D is released from custody and served on the court and D within 2 hours of the conclusion of the MC’s first hearing.
- The CC hearing must be heard within 2 business days of the appeal notice.
What happens if the defendant breaches bail conditions?
D can be arrested but it is not a criminal offence.
The individual is brought before the MC within 24 hours of arrest and is dealt with by the court.
The magistrates can remand the person in custody or impose stricter bail conditions if they think the individual will abscond on bail or has broken or will break the condition(s) of bail imposed on them.
The right to bail still exists but it is subject to the exceptions of “substantial grounds” and breach of bail conditions while on bail.
What happens if the defendant absconds on bail?
D has committed an offence unless they had reasonable cause and surrended when reasonably practicable to do so.
- The burden is on D to prove there was a reasonable cause if they do abscond.
- If D does abscond, he will be arrested by the police for trial of that offence. It is unlikely he will be granted bail again and will be remanded in custody until the case is concluded.
- D is liable for imprisonment.
What is the procedure for a summary offence?
If D pleads guilty, the prosecution will inform MC of the facts of the case and D’s solicitor will enter a plea in mitigation.
MC will either sentence there and then or adjourn to sentence later. Bail will be determined before sentencing.
If not guilty, a trial date will be set. Case management directions are issued by MC. Bail will be determined before trial.
What is the role of the defence solicitor before trial?
- Obtain a representation order if the client is of limited means.
- Take a statement from the client.
- Obtain details of the prosecution’s case (disclosure).
- Advise client on plea.
- If either way offence, inform the client that the case may be held in the MC or CC (and that the client has a choice if they make a not-guilty plea).
- Make a bail application.
What is the procedure for the plea before venue at the Magistrates’ Court (either way offence)?
- The charge is read to D - Court will check D’s solicitor has received adequate disclosure from the CPS.
- D is informed that they can plead guilty or not guilty.
- D is informed that if they plead guilty, the court will convict and move onto sentencing, or they may pass it onto the CC if the MC’s sentencing powers are inadequate. The MC will also inform D they will receive credit for an early guilty plea.
- D then pleads:
- Guilty: CPS outline facts to magistrates and states any previous convictions; D enters plea in mitigation. MC go onto sentencing: they will determine if they sentence or send D to CC for sentencing; or- Not Guilty: MC proceeds to allocation.
What are the rules under S.22(A) Magistrates Court Act 1980?
For low-value shoplifting (meaning theft of goods from a shop with a maximum value of £200, or if D is accused of two or more shoplifting offences, the aggregate value of the goods stolen is of a max £200 value):
Tried summarily (i.e., in the MC straightaway) UNLESS:
- D is 18 or over; and
- Elects to be tried in the Crown Court.
In which case, D is sent to the Crown Court for trial.
What is the allocation procedure under S.19-20 MCA 1980?
- The prosecution informs MC of the facts and if D has any previous convictions.
- MC considers representations from the prosecution and defence.
- MC considers if they have adequate sentencing powers: they consult the Allocation Guideline and the Sentencing Guidelines. They consider the maximum sentence the offence could have as put forward by the prosecution.
Note - The presumption is trial in the MC.
- If the CC is more appropriate, the case is sent to the CC.
- If MC, D is given a choice to go to CC or stay in MC.
D can request an indication of sentence if tried in MC. If after indication D pleads guilty, court is bound.
What are the advantages and disadvantages of being tried in the Magistrates’ Court for an either way offence?
Advantages:
+ Less expensive (legal costs will be less and D does not have to pay prosecution costs)
+ Less time-consuming (trial will be quicker)
+ Less severe sentence (MC can only impose a 12 month jail sentence (for a single offence) but can give an unlimited fine).
Note - MC can commit D for sentencing at CC
Disadvantages:
- Evidence: MCs hear all evidence even if D has successfully excluded it
- Higher conviction rate in MC
- Unlimited fining powers
What are the advantages and disadvantages of being tried in the Crown Court?
Advantages:
+ Higher acquittal rates - A jury may be more sympathetic
+ Voir Dire process - means the judge can decide to exclude evidence from the jury which may be disadvantageous to D (this is more likely to happen in CC)
+ More time to prepare for trial
Disadvantages:
- More severe sentences
- More expensive: legal costs are higher and D may have to pay prosecution costs
- Slower: trial lasts longer
When can a case be sent to the Crown Court under S.50(A) and S.51 Crime and Disorder Act 1998?
- Indictable Only offence
- The MC can try the case, but D chooses to be tried in the Crown Court
- S.22(A) MCA 1980 applies.
- An adult is charged with an either way offence which is related to an indictable offence or a notice offence (under S.51(B) and S.51(C)) (which is going to the Crown Court for trial), they will be sent to the CC for trial in respect of that either way offence.
- An adult is charged jointly with a co-defendant for an either way offence and that co-defendant has been sent to the Crown Court for trial.
- An adult is charged jointly with a related either way offence with a youth defendant who is sent to the Crown Court for trial.
- Notice given under S.51(B) and S.51(C).
What cases can be sent to the Crown Court if notices are given under S.51(B) and S.51(C) Crime and Disorder Act 1998?
S.51(B) - Serious or complex fraud cases where notice has been given by the Director of Public Prosecutions under S.51(B) that the case should be tried in the Crown Court because of the complexity of the case.
S.51(C) - Evidence is sufficient to put a person on trial for an offence and a child will be a witness.
Notice is served on the court under S.51(C) that for the sake of the welfare of the child, the case should be heard in the Crown Court. Used for offences such as assault, threat of injury to a person, child cruelty, sexual offences, false imprisonment, kidnapping, and child abduction.
What are the directions the Magistrates’ Court issues before trial?
Standard Case Management Directions
- MC will fix a date for trial
- The directions give both sides 8 weeks (or 14 if expert evidence is required) to prepare for trial. The defendant’s solicitors will need to conduct their case analysis (to create their defence) and obtain any additional evidence in that time.
What is “unused material”?
Any material (evidence) the CPS is not using (known as “unused material”), but which might reasonably be considered to undermine the prosecution’s case.
The CPS has a duty to disclose such unused material.
Unused material is disclosed after the defendant makes a not guilty plea or after the sending hearing if the case is going to the Crown Court. The CPS will send the defendant’s solicitor a list setting out the unused material that will or will not be disclosed to the defence, along with the documents. The solicitor can challenge the contents of the list.
What unused material does not have to be disclosed by the CPS?
“Sensitive” items of evidence that:
- Relate to matters of security or intelligence; and/or
- Relate to the identity of undercover police officers or informants; and/or
- Relate to surveillance techniques used by the police; and/or
- Relate to a child witness.
And which satisfy the “public interest immunity test”.
It is up to the court to determine if the public interest immunity test is satisfied. The CPS applies to court for permission not to disclose such evidence.
What is a disclosure management document?
Used in the Crown Court. Sets out the CPS’s strategy and approach to disclosure.
- Produced by the CPS, they will also get input from the investigating officer.
- Served at the same time as the unused material.
What must be disclosed by the CPS before the plea before venue?
All evidence the prosecution intend to rely on and use at trial.
This is so that the defendant has sufficient information to make their plea (and their solicitor can advise them on the most appropriate plea to make).
What is the defence statement?
Contains the nature of the defence and the particular defences on which the defendant will rely, the facts the defendant disputes, the facts and legal authorities the defendant is seeking to rely on (and the legal authorities the CPS is using that it disputes) and the details of any alibi witness.
- Rare in the MC - It is optional to give one. Mandatory in the CC. In CC, it must served within 28 days after disclosure of unused material by the CPS.
- The defendant should sign a copy of the statement before it is served.
- D will also need to serve a witness notice with the defence statement on the CPS and the court giving the details of any witnesses they will be calling (name, address, and date of birth) or any inofrmation that can help identify such witness. This notice is mandatory in the CC and MC; in the MC, if there is no defence statement, it is served separately within 14 days of the CPS’ initial disclosure.
What must the CPS do after service of the defence statement?
Review their initial disclosure of unused material.
The CPS should see if any material now needs to be disclosed because, based on the defence statement, it harms the prosecution’s case. If the CPS fail to do this, D can apply for a court order forcing them to do so.
NOTE - The duty of disclosure on the CPS is ongoing - if any new relevant evidence comes to light, they should disclose it to the defence.
What is a sending hearing?
Used for Indictable Offences. The MC sends D to the CC.
The magistrates will set a date for the Plea and Trial Preparation Hearing at the Crown Court, or the date for a preliminary hearing at the Crown Court where necessary.
The magistrates will remand D in custody or grant bail.
They will also issue standard case management directions unless a preliminary hearing is to take place.
When will the Crown Court hold a preliminary hearing?
- There are specific case management issues that need resolving (it is a serious or complex case);
- D is under 18;
- The trial is likely to last over 4 weeks or it is desirable to set an early trial date; or
- There is likely to be a guilty plea, in which case D will be sentenced at the preliminary hearing.
What is a Plea and Trial Preparation Hearing (PTPH)?
A hearing held at the Crown Court where D enters their plea (“arraignment”) and the CC can issue extra directions for trial.
Must take place within 28 days of the sending hearing where there is no preliminary hearing.
The indictment is read to D and they enter their plea.
D can ask for an indication of sentence at the PTPH (if facts are agreed). If the judge gives an indication and D agrees, this is binding on the judge.
If D pleads guilty, he can be sentenced then and there or the court can adjourn for sentencing at a later date.
If D pleads not guilty, the CC will determine if extra case management directions need issuing.
A trial date is set, D is remanded in custody or bailed.
What is the legal burden of proof?
The burden of proof is on the prosecution to prove their case.
Beyond a reasonable doubt.
What is the evidential burden?
The burden to provide sufficient evidence for the judge to put a case or defence to the jury.
Applies to both the defence (if the defence raises a defence that requires evidence) and the prosecution (if the defence make a submission of no case to answer).
NOTE - If the defence raises a defence on the agreed facts, it is up to CPS to disprove it beyond reasonable doubt.
What is the general rule on the admissibility of evidence?
All evidence which is sufficiently relevant to the facts in issue is admissible.
This is subject to the exclusionary rules (e.g., on hearsay). If an exclusionary rule applies, it will not be used no matter the relevancy.
Evidence is relevant to the facts if it is able to prove or disprove a fact or makes a fact more or less probable.
What is hearsay?
Hearsay is a representation of fact or opinion made by a person other than in oral evidence in the proceedings in question when tendered as evidence of any matter stated by that representation.
Includes reading out witness statements when the witness is not there and a business document.
What is the test for determining whether something is hearsay?
3 stage test:
- What is the relevant fact that the party calling the evidence is seeking to prove?
- Is there a statement of that matter or fact in the communication (is the evidence of someone saying something, or reporting someone saying something about the relevant facts?)? If yes,
- Did the person making the communication intend the recipient should believe that matter and act upon it as true? If yes, it is hearsay.
When is hearsay admissible?
- It is allowed uner the Criminal Justice Act 2003 (the gateways);
- By agreement of all the parties to the proceedings; or
- Where the court is satisfied it is in the interests of justice.
The third ground gives the court wide discretion to admit hearsay evidence - must have regard to several factors; including the value of the statement, what other evidence has been given, the circumstances in which the statement was made and the reliability of the statement and the giver of the statement.
What are the gateways for admitting hearsay evidence under the Criminal Justice Act 2003?
- Unavailable Witness
- Business Documents
- Statements prepared for use in criminal proceedings where the witness is unavailable or the statement was given so long ago they cannot remember
- Previous Inconsistent Statements
- Previous Consistent Witness Statements
- Res Gestae (statements made in the act)
- Confession (of a co-accused to co-D, or to another police officer which the police officer reports at trial)
- Common Enterprise (words said during the committing of a crime)
- Public Information (e.g., maps or dates of birth)
- Expert Opinion
When can a witness being unavailable operate as one of the hearsay “gateways” under the CJA 2003?
Think DIALS
Dead
Incapacitated - Mentally or physically
Away - Abroad and unfeasible to bring back
Lost - Unable to locate despite reasonable efforts
Scared - The statement can then only be used if it is in the interests of justice.
The person seeking to use the evidence must prove one of these reasons.
When can statements in business documents be admitted as hearsay under the CJA 2003?
If:
- Relevant to a matter in the proceedings;
- The document was created or received by a person making the statement during their job or course of trade, business, or profession;
- That person has personal knowledge of the matters being spoken about; and
- The information was received during the course of trade or job.
When can a statement prepared for use in criminal proceedings be admitted as hearsay under the CJA 2003?
It can be admitted provided that the person who made the statement is unavailable (dead, missing, lost, etc.) or the person cannot be expected to remember any of the matters dealt with in the statement because it was such a long time ago.
What are the three different kinds of “res gestae” statements that can be admitted as hearsay?
- Those made when someone is really emotionally overpowered by the crime itself to the extent that the statement is unlikely to be made up.
- Statements accompanying an act which can only be properly understood if the statement is admitted.
- Statements relating to a physical or mental state (of the person making the statement).
How can the credibility of hearsay evidence be challenged?
Evidence that would have been used against the witness regarding their credibility if they were available at court, and any evidence that could have been used under cross-examination, can be admitted to challenge the hearsay given by that witness.
What is the procedure to admit hearsay evidence?
Depends on the kind of hearsay being admitted.
If you are admitting hearsay under the interests of justice test, because a witness is unavailable, the evidence is multiple hearsay, or it is a document prepared for criminal proceedings - then notice must be given to the other party and to the court of the intention to use such hearsay evidence.
For any other hearsay evidence other than the above (e.g., res gestae) no notice is required, and the evidence can just be used at trial.
How does the defence or CPS oppose the use of hearsay?
Send notice to the other side and the court.
If D opposes the use of hearsay, they must send notice to the CPS and the court within 10 working days of the CPS’ service of notice, service of the hearsay evidence or D’s not guilty plea, whichever is later.
If the CPS oppose the use of the hearsay, they must send notice to the defence and the court within 10 working days of the defence’s service of notice, service of the hearsay evidence or D’s not guilty plea, whichever is later.
What is D’s bad character evidence?
Both previous convictions and evidence of any misconduct.
Very broad and includes any reprehensible or bad behaviour, even if it did not result in a criminal conviction.
NOTE - The misconduct must be separate, past convictions.
What are the seven gateways for admitting bad character evidence under S.101(1) CJA 2003?
a. All parties to the proceedings agree to the evidence being admissible.
b. The evidence is used/introduced by D himself or given in answer to a question when being cross-examined and he intended to say it.
c. It is important explanatory evidence (only CPS can use this).
d. It is relevant to an important matter in issue between D and the prosecution. (Only the prosecution can rely on this)
e. It has subtantial probative value (meaning it can prove or disprove something) in relation to an important matter in issue between a defendant and co-defendant. (only D can use this)
f. It is evidence to correct a false impression given by D. (only CPS can use this)
g. D has made an attack on another person’s character (CPS only).
What is the procedure for admitting bad character evidence of a defendant?
CPS must give notice to the defendant and the court:
- 20 working days in the MC; or
- 10 working days in the CC,
after D pleads not guilty.
A prescribed form is used, with a list of the previous convictions.
D can apply to the court for such evidence to be excluded, must do so within 10 working days of receipt of notice from the CPS. The application must also be sent to the CPS.
How can bad character evidence of a party who is not a defendant be admitted under S.100(1) CJA 2003?
Must satisfy one of three gateways:
- It must be important explanatory evidence; or
- It has substantive probative value in relation to a matter which:
- Is a matter in issue in the proceedings, and
- Is of substantial importance in the context of the case as a whole; or
- All parties to the proceedings agree to the evidence being admissible.
What is the procedure for admitting bad character evidence of non-defendant?
Notice must be served on the other side and court.
For D, the deadline is 10 working days after disclosure of unused material by the CPS.
A prescribed form is used.
The other party can make an application to exclude such evidence and must serve the application on the other party; the deadline for both is 10 working days of receiving the application.
What are the two circumstances through which a confession can be excluded under S.76 PACE?
- Oppression = The use of torture, inhumane or degrading treatment caused the confession. Must be a causal link - but for the oppression, the confession would not have been made.
- Unreliability = The confession was obtained as a consequence of things said or done which renders the confession unreliable. There must be a causal link between the confession and the thing said or done. Usually means that something was said or done by the police which led to D giving the confession, rather than D genuinely admitting guilt, e.g., blackmail or bribing.
How can a confession be excluded via S.78 PACE?
A breach of PACE by the police could cause a confession and render it unreliable.
The court can exclude the confession if as a result of the breach it will have an adverse effect on the fairness of the proceedings.
There must be a causal link between the breach and the confession AND the breach must be significant and substantial.
How can the admissibility of a confession be challenged in court by the defence?
Using the “voir dire” procedure - a trial within a trial.
CC - the jury is not present during a voir dire.
The burden is on the CPS to prove the confession is admissible. CPS will call witnesses (such as the interviewing officer). No requirement for D to call witnesses.
Judge or Magistrates will make the final decision.
NOTE - Voir Dire is usually used if the confession is trying to be excluded under S.76 PACE
When will the “Turnbull Guidelines” apply?
When there is visual ID evidence given by a witness and:
a. The prosecution’s evidence depeonds wholly or substantially on that ID evidence; and
b. The defence disputes the identification by the ID evidence.
The judge in the CC will need to assess the strength of the ID evidence.
What is a “Turnbull warning” given by a judge in relation to a witness’ ID evidence?
if the judge thinks the ID evidence is usuable (meaning either good or poor but supported by other evidence), they must give a Turnbull warning of the need for caution to the jury before they convict the accused in reliance on the correctness of the identification.
What are the contents of a judge’s Turnbull warning in relation to ID evidence given by a witness?
- The judge must tell the jury the reason for the warning: the witness may be mistaken even if they are convincing.
- The judge must instruct the jury to consider the circumstances in which the identification was made (factors such as time of day, whether it was foggy or rainy, how long the witness saw D etc).
- The judge must remind the jury of any specific weaknesses in the ID evidence.
- If the ID evidence is poor but supported by other evidence, the judge must point out to the jury what that other evidence is.
How does S.78 PACE work?
Evidence can be excluded by the court if it appears to the court that, having regard to all the circumstances, to admit the evidence would cause an adverse effect on the fairness of the proceedings.
What is the trial procedure in the Magistrates’ Court?
- Case is read out by the court. D is identified, allegation is read to them, asked to confirm their not-guilty plea. Admissibility of evidence can also be dealt with.
- CPS opening speech.
- CPS case. CPS calls witnesses and examination-in-chief. Defence cross-examines. CPS can then re-examine.
- Voir Dire - for confession evidence?
- No case to answer raised by D? - R v Galbraith
- D’s case. D gives evidences, then D examination in chief of their witnesses. CPS cross-examines, D can then re-examine.
- Closing Speeches.
- Verdict.
What is the trial procedure in the Crown Court?
- Judge deals with preliminary legal arguments (evidence).
- Jury selected and sworn in.
- Indictment - Allegations read out to D; D confirms not-guilty plea.
- CPS Opening Speech - Judge may also ask D to summarise case
- CPS case.
- Examination in Chief
- Cross Examination
- Re-examine
CPS closes case. - Voir dire may be used to see if confession evidence is admissible - no jury
- D can submit no case to answer - R v Galbraith
- D’s case - D makes opening speech, D gives evidence and calls witness, CPS cross examines, D re-examines.
- Closing Speeches.
- Verdict.
What do competence and compellability of a witness mean?
Competence = Whether a witness is allowed to give evidence for D or P
Compellability = If a witness is allowed to give evidence, can they be forced to do so?
Consider:
1. The status of the witness
2. The offence D is charged with
What are the rules on whether an ordinary witness is competent and compellable for the defence and prosecution?
An ordinary witness is competent and compellable for both the defence and prosecution.
What are the rules on whether the defendant is competent and compellable for the defence and prosecution?
Competent for the Defence but not compellable.
Neither competent nor compellable for the prosecution.
An adverse inference can be drawn by the court if D fails to give evidence (S.35 CJPO 1994) if the judge gives the jury the required directions and warning.
What are the rules for whether a defendant’s spouse or civil partner is competent and compellable for the defence and prosecution?
Competent and compellable for the defence.
Competent but NOT compellable for the prosecution UNLESS the offence is one of:
- Assault
- Injury or threat to the spouse or child under 16
- Sexual Offence against a child under 16
- (Including attempts of all the above)
What are the rules for whether a co-defendant is competent and compellable for the defence and prosecution?
Competent but not compellable by the defence UNLESS they become an ordinary witness by ceasing to be co-D, e.g., the case against him is discontinued or he pleads guilty.
Competent and Compellable by the CPS if they become an ordinary witness by pleading guilty.
What witnesses are eligible for “special measures” in court?
Certain witnesses are eligible for special measures and they will be granted by the judge/magistrates if they will maximise the quality of the witness’ evidence.
- Witness under 18 - Presumed that video examination-in-chief and live link cross-examination will be used, but witness can choose otherwise. The judge can also grant a pre-recorded cross-examination (rare).
- Witness has a physical or mental disability and as a result quality of evidence will likely be diminished.
- Intimidated Witness - Witness is a victim of a sexual offence (in which case pre-recorded video evidence will automatically apply), slavery, domestic abuse or a violent offence.
- Witness suffers from fear and distress and so quality of evidence will be diminished.
What is the procedure to get special measures (for the CPS witnesses)?
CPS applies via a prescribed form no more than 20 (MC) or 10 (CC) working days after D pleads not guilty.
If D opposes, they must notify the court and the CPS 10 working days from the application.
What are some examples of special measures that might be used?
Screens - To shield the witness from D
Live Link - Live video link to the court
Removal of Wigs and Gowns by judges and barristers
Visually Recorded Interview
Pre-trial Visually Recorded Cross-Examination (can only be used if the visually recorded interview has been allowed by the court)
Examination of the Witness through an Intermediary - To assist the witness in court. Can explain questions or answers to the witness
Aids to Communication - e.g., sign language
What is a leading question?
A question that directs a witness toward a particular conclusion, by way of being overly suggestive.
Leading questions are not allowed to be used for examination-in-chief, unless the questions are on well-established facts, or the judge believes the questions are in the interests of justice.
They can however be used when conducting a cross-examination.
What are examples of leading questions?
- Suggestive Insinuation - Planting a time and place in a witness’ mind by being too specific and direct.
- Too many Variables - asking D a question that is packed with too much information to dissect.
- Glossing over Important Details - This is when the prosecution asks a series of questions without allowing the witness to insert important details.
- Asserting Facts - Where the prosecution makes an assertion, then presents it to the witness only to confirm it is true.
How must magistrates and circuit judges be addressed in court?
Magistrates - Sir/Madam or Your Worship
Circuit Judge - Your Honour
What is a Newton Hearing?
A hearing without a jury after D has pleaded guilty, during which the judge or magistrates will determine a dispute on the facts between D and CPS.
- If D has plead guilty on a basis of plea (the facts) that are different to those of the CPS.
- The magistrates or judge must accept D’s version of events or hold a Newton Hearing. This will be without the jury in the CC.
- During the hearing, witnesses can be examined in chief and re-examined.
- The court will make a judgment on the correct factual version and proceed to sentencing.
What is the maximum sentencing power of the Crown Court?
There is no maximum. The Crown Court’s sentencing powers are governed by the offence.
The CC has no restriction on its sentencing powers apart from the maximum for the relevant offence, e.g., a life sentence for murder.
What are the maximum sentencing powers of the Magistrates’ Court?
12 months custody for an either way offence; or an unlimited fine.
What must the courts have regard to when sentencing?
The purposes of sentencing and the Sentencing Guidelines.
- The punishment of offenders.
- The reduction of crime (including by deterrence).
- Reform and rehabilitation of offenders.
- Protection of the Public.
- Making reparations of offenders to persons affected by their offences.
Sentencing Act 2020 and the Sentencing Code - The courts must follow the Sentencing Guidelines unless it is contrary to the interests of justice to do so. The Sentencing Guidelines set out a general approach to sentencing and a specific approach for each offence.
When will the court get a pre-sentence report?
Must be obtained when considering a custodial sentence or community order unless unnecessary.
A PSR is always necessary when it would help assess the offender’s dangerousness and risk of harm, the nature and the causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.
It is likely necessary if the offender belongs to one of the following cohorts: a young adult (18-25); female; from an ethnic minority background, faith minority background, or minority cultural background; pregnant or 12 months post-natal; sole or primary carer for dependant relatives; transgender; addiction issues; chronic physical or mental illness; learning disabilities or brain damage; or the offender is a victim of domestic abuse, slavery or trafficking.
What is the sentencing process the court adopts using the Sentencing Guidelines?
- Determine offence category and starting point and category range based on culpability and harm.
- Hear representations from the CPS and defence. The CPS will summarise the case, set out any relevant previous convictions, statutory aggravating and mitigating factors + any other relevant info.
- Apply the statutory aggravating and mitigating factors to increase or reduce the starting point and come up with a provisional sentence. Adjust lower if D assisted the CPS.
- Make a reduction for guilty plea - Max 1/3
- Credit for time spent on remand in custody.
- Hand down sentence. Give reasons.
Court may also get a pre-sentence report.
What are some examples of aggravating factors that can increase the sentence?
- The offender’s culpability in committing the offence and any harm caused.
- Offending whilst already on bail.
- Racial or religious aggravation.
- Assaults on emergency workers.
- Hostility to a person’s disability or sexual orientation.
- Previous convictions PROVIDED THAT they are relevant and not too long ago.
- If the offence was pre-meditated.
- A weapon (for certain offences such as assault).
- Whether the attack was a group attack.
- Whether the victim was vulnerable.
- Terrorist connection.
- Whether drugs were involved, in particular, whether they were being supplied to children.
What are examples of the mitigating factors that can reduce a sentence?
The Offence - May be minor, any injuries may be minor, and the sums of money involved were small.
D’s personal circumstances - Community standard, work, family (i.e., whether they have dependants), health, education, and drug treatment.
D has assisted the prosecution.
Early Guilty Plea - The earlier the plea is made in the sentence the more lenient the court will be - the later it is said, the less so.
Time spent on Remand - Any time D has already been in custody (i.e., not on bail but in detention awaiting trial) must be deducted from any custodial sentence.
Equality and Diversity Factors - The personal circumstances and background of D (difficult/deprived background and discrimination).
Has D got a job or training lined up?
If D is pregnant has a child 2 or under. Custody likely not appropriate in such circumstances.
What is a plea in mitigation?
Delivered by the Defendant’s advocate after conviction (during the sentencing hearing).
This is to persuade the court to give D the most lenient sentence possible for the offence.
A plea is usually structured in 4 parts:
- Likely Sentence given by the court - the standard sentence.
- The offence - D’s solicitor will then move on to the offence itself - the crime D committed. They try and persuade the court the offence is not that serious - they minimise aggravating factors and emphasise mitigating factors.
- The offender - D’s solicitor will emphasise any personal circumstances of the defendant that can reduce the sentence (e.g., family ties or dependants).
- Suggested Sentence - D’s solicitor gives a suggested sentence that will be lower than the sentence in 1.
What if a defendant faces custodial sentences for more than one offence?
The court should impose prison sentences for each offence. The prison sentences run either “concurrently” or “consecutively”.
Concurrently means the sentence run at the same time (so the length of time in prison is not lengthened by the separate offences). This is used where the ofneces arise out of the same transaction, e.g., multiple deaths from the single act of driving on the pavement.
Consecutively means each prison sentence follows one after the other. Used when D has:
- Used violence to resist arrest for another offence.
- Used violence to make good his escape.
- Committed an offence on bail granted for another offence.
When sentencing for more than one offence, the court must have in mind the totality principle, in accordance with the Totality Guideline:
The overall sentence should reflect the overall harm and culpability and must be just and proportionate.
What is the custody threshold?
Where the offence is so serious that neither a fine nor a community sentence is enough. Only if the threshold is passed will D go to jail.
CUSTODY IS A LAST RESORT:
- Court must still consider if a community order would be more appropriate.
- Court also takes into account any dependants of D.
- If D is a carer and has dependants and is on the cusp of the custody threshold, custody should NOT be imposed.
- Court should consider if suspended sentence should be given.
If a custodial sentence is given, it should be the shortest time possible commensurate to the offence.
What is a suspended sentence?
If the offender is given a custodial sentence in CC of between 14 days and 2 years (for 18-20 year olds, 21 days - 2 years) (or 14 days - 12 months in the MC) then the judge/magistrates may choose to suspend the sentence for between 6 months and up to two years.
The period of suspension is known as the ‘operational period’.
The offender does not go to prison but during the operational period, they must comply with requirements given by the court, such as community work or curfews.
When should a suspended sentence NOT be used?
NOT USED when the custodial sentence is more than 2 years.
NOT USED where D is a danger to the public, custody is the only appropriate punishment, or D has a poor history of compliance with court orders.
What if an offender does not comply with a suspended sentence order or commits another offence during the operational period?
For breach of terms of the order, they get a warning. If they breach it again within 12 months, they will be re-sentenced and the court can impose the original custodial sentence, issue a fine, or impose further community requirements.
If they commit an offence, they get a sentence for that offence plus the original custodial term.
What is a community order and when is it imposed?
A sentence that punishes as awell as imposing requirements that will rehabilitate and and make up for harm caused. The offence must be serious enough not to be punished by only a fine.
What are the requirements that can be imposed under a community order?
- Unpaid Work: for a 12 month period; max 300 hours.
- Participation in Certain Activities up to a max of 60 days.
- Programme Requirement: e.g., a programme for paedophiles or sex offenders.
- Ban on Certain Activities, such as driving or alcohol.
- Curfew: max 20 hours in any single day and 112 hours in any week. Cannot be imposed for more than 2 years.
- Exclusions from Certain Areas, such as football grounds, pubs, and schools. Max 2 years.
- Residence Requirement: the offender must live in a certain area/house for a certain amount of time.
- Psychiatric Treatment: but must get the offender’s consent to this.
- Rehab.
- Tagging.
- Ban on Foreign Travel: max 12 months.
- Drug and Alcohol Treatment/Rehab: must get the offender’s consent. May include a drug testing and/or alcohol abstinence and monitoring requirement.
What if the offender breaches the community order without reasonable excuse?
The offender is given an initial warning: if this fails and there is a second breach within 12 months, the offender returns to court is and resentenced.
The court considers the extent of the breach - if D wilfully and persistently breached the order, a custodial sentence is imposed.
If it is lower than this, the order can be extended or made more stringent.
What if the Magistrates’ Court has made an obvious mistake when convicting or sentencing?
D can make an application straight to the MC under s.142 MCA 1980.
Where MC has made an obvious mistake, instead of lodging an appeal, the court can correct the mistake itself. It can vary or rescind a sentence or direct that the case be re-heard (not possible when D has pleaded guilty).
How does the defendant appeal from the Magistrates’ Court to the Crown Court?
D must lodge a notice of appeal within 15 working days from the date of sentence to the clerk of the MC. No need to give any grounds.
Only D can appeal the sentence and/or conviction (conviction can only be appealed against if not guilty plea entered).
The judge and two justices hear the appeal at CC. It is treated “de novo”, meaning the case is heard all over again at the CC, and new evidence can be called.
CC can reverse MC’s judgment, affirm or vary it. Their sentencing powers are limited to those of the MC but they can increase a sentence if possible (to a max of 12 months).
How does the defendant or prosecution appeal to the High Court from the MC?
D/CPS must lodge a notice of appeal within 21 days from the date of sentence or conviction to the clerk of the MC. The grounds must be stated.
- Appeal by way of case stated only. This means that there has been an error of law, or the sentence given was beyond the MC’s powers.
- Two or more judges hear the legal argument. This is a legal argument ONLY - no new evidence is introduced and the facts are not debated.
Note - You can also appeal from CC to the High Court if the CC was sitting in an appellate capacity.
How does the defendant or prosecution appeal to the Supreme Court from the High Court?
Whether appealing from the MC to the High Court or the CC to the High Court, you can then go on to appeal at the UKSC.
To appeal to the Supreme Court:
- The High Court must certify that a point of law of general public importance is involved in the decision and the point is one which ought to be considered by the Supreme Court; and
- Permission (known as leave) to appeal to the SC must be obtained from the HC or, if refused, from the SC.
How does the defendant appeal from the Crown Court to the Court of Appeal?
Application must be made within 28 days of conviction or sentence.
Permission is required from CoA unless granted by CC (Certificate for Fitness of Appeal).
A single judge considers whether leave of appeal should be granted (no hearing). If they judge not, D can lodge another application within 10 working days.
The appeal hearing will then take place in open court with two or three judges.
On what grounds can the defendant appeal to the Court of Appeal?
D can appeal against conviction only if the conviction is “unsafe”, which means D’s right to a fair trial has been breached.
- Unsafe convictions are usually because of an error made by the trial judge - failure to direct the jury appropriately, no Turnbull Warning given, admitting evidence incorrectly etc.
- It can also be if fresh evidence has come to light which casts doubt on D’s guilt.
D can appeal against a sentence on the grounds that it is not commensurate to the offence - in other words, it is too excessive, wrong in principle, or wrong in law.
What powers does the Court of Appeal have on an appeal?
- Quash Conviction
- Dismiss the Appeal and Confirm CC’s Decision
- Find D guilty of an Alternate Offence
- Allow part of the Appeal
- Order a Retrial
- Oppose any sentence within the powers of CC
When can the prosecution appeal to the Court of Appeal?
If a sentence given by CC is deemed to be too lenient by the prosecution, the Attorney-General can refer the sentence to the CoA if granted leave by the CoA. This is rare.
Evidential rulings by the trial judge which terminated the trial or seriously weakened the prosecution’s case. This is to quash the acquittal and have a retrial or for the trial to continue.
When can an appeal to the Supreme Court be made by either the defendant or the prosecution?
Appeals can be made on points of law only if:
- Either court (CoA/UKSC) has consented to it; AND
- CoA has certified that there is a point of law of general public importance.
Who is the Youth Court for?
A specialist court for children aged 10 to 17.
NOTE - A child below 10 cannot commit a crime.
YC is less formal than adult courts - wigs and gowns are not worn, no jury or public are present, D are called by their first name, and only three magistrates (one of whom must be male and one female) or one district judge preside over the proceedings.
All participants are on the same level, rather than there being a raised bench for the justices.
Legal language is not used - witness promises to give truthful evidence rather than swears to. ‘Finding of Guilt’ rather than conviction.
Does a parent or guardian have to be present at the Youth Court?
Children under 16 must attend with a parent or guardian, unless the court is satisfied that it would be unreasonable to require such attendance.
Aged 16 to 17, the court has a discretion to choose whether to make an order requiring the presence of a parent or guardian.
The parent or guardian must play an active role in the proceedings.
When will a young defendant not attend the Youth Court for the first hearing?
When the first appearance must be in the MC.
This will be when:
- The young D is jointly charged with an adult.
- The young D is charged with aiding and abetting an adult to commit a crime or vice versa.
- The young D is charged with an offence which arises out of or is connected with a charge faced by an adult.
- The custody officer who arrested the child refuses bail, and there is no youth court available. The child will first go to the magistrates, who will decide on bail, and then to the youth court for trial once available.
When must the young defendant be sent to the Crown Court for trial?
The young D is either:
- Charged with murder or manslaughter; or
- Charged with a firearms or weapon-related offence with a mandatory minimum sentence.
No PBV at Youth Court - The court sends young D straight to the CC for arraignment.
What is a “grave crime” and why is it important?
If a young D is charged with a grave crime (sexual/firearm offence) and the YC considers that there is a real prospect they will get a detention order in excess of 2 years, they will be sent to the CC for trial or committed for sentence at CC.
- There is a strong presumption of a YC trial or sentence.
- It will be very rare for a child under 15 to be sent to the CC for trial. Particularly the case for offenders under 12 and first-time offenders aged 12 to 14.
- The YC can commit D for sentence after trial. This strengthens the presumption of a YC trial.
- The YC can hear representations from the defence and CPS on the appropriate court.
- If D pleads guilty, the YC can commit him for sentence at the CC if the sentence will exceed their powers.
What are the “dangerous offender” provisions?
D will be sent to CC for trial or sentence if:
- Young D is charged with a specific offence +
- There is a significant risk to the public of serious harm caused by D comitting further offences
- A custodial term of at least 4 years would be imposed.
Again, strong presumption of YC at trial.
General Approach is a YC trial with committal for sentence at CC.
When assessing whether D is a “significant risk”, a pre-sentence report must be obtained.
If the young defendant is jointly charged with an adult who is sent to the CC for trial, when will the MC also send the young D to the CC for trial?
If it is necessary in the interests of justice.
Again, strong presumption of YC trial, especially because YC can commit for sentence at CC.
If the MC do not send young defendant for trial at CC, they will take a plea. If the young D pleads not guilty, they are very likely sent to the YC for trial.
If guilty, the MC check if their sentencing powers are adequare; again, very likely they will be remitted to the YC for sentence.
If the young defendant is charged with an adult being tried in the MC, what are the rules?
Check whether the adult pleads guilty or not guilty then check young D’s plea.
Joint Charge - YD and AD are jointly charged, and the AD pleads guilty:
- If YD pleads not guilty, MC or YC can try them, but likely YC.
- If YD pleads guilty, MC will remit to YC for sentence if MC’s sentencing powers are inadequate.
Joint Charge - YD and AD are jointly charged and AD pleads not guilty:
- If YD pleads not guilty, MC MUST try them.
- If YD pleads guilty, MC will remit to YC for sentence if MC’s sentencing powers are inadequate.
Aiding and Abetting/Connected Offences - YD charged with aiding and abetting AD or AD charged with aiding and abetting YD or both charged with connected offences:
- If both YD and AD plead not guilty, MC can try the YD or remit to YC for trial.
- If AD pleads guilty, MC will remit the YD for trial in YC.
- If YD pleads guilty or is convicted, MC will remit to YC for sentence if MC’s sentencing powers are inadequate.
What approach must the Youth Court take when sentencing a young offender?
YC must consider the main element of the youth justice system: to stop children from re-offending.
YC must follow the Sentencing Children and Young People - Definitive Guidelines.
What is a Referral Order?
Made if D pleads guilty.
Must be made where D pleads guilty to an offence that has a possible custodial sentence and has never committed an offence to date, but can be made even if D is a repeat offender.
Referral Order = A community order under which the child is ‘referred’ to a community panel that will agree with the child on a contract of work that must be undertaken, which will last between 3 and 12 months. The work is regularly reviewed by the panel.
What is a Detention and Training Order?
Only used where the offence is so serious a fine or community sentence is insufficient.
The court should also consider first whether a YRO is sufficient. Also, the court must have received a pre-sentence report that states that custody is a possible sentencing option.
- The child spends the first half of the order in custody and the second half during community service.
- A lot of time is spent in training and rehab to prevent re-offending.
- It can only be set for a minimum of 4 months and a maximum of 24 months.
- Can only be imposed on a child between 12 to 14 years old if they are serial offenders, and it cannot be imposed on a child under 12.
- During the period of the order, D spends half in detention, and the other half in their local area under strict supervision.
What is a Youth Rehabilitation Order?
A community sentence within which certain requirements and targets are set for the child to complete.
- A fine can be imposed for breaching the order.
- The sentence must set a time within which the requirements are to be completed - max time for this is 3 years.
E.g., unpaid work requirement, activity/skill requirement, programme/attendance centre requirement, curfew requirement, tagging.
