Criminal Law and Practice - Written Skills (FLK) Flashcards
The safest option in interview
Giving a no comment interview and provide written statement
The potential impact of the right to silence provisions under ss34, 36 & 37 CJPOA 1994
s34
a) Did D fail to mention at police station a fact he later relies on in his defence at trial?
b) could D reasonably have been expected to mention this fact at the time he was interviewed?
s36 - Failure to account for account for presence of the object, substance or mark when interviewed
s37 - Failure to account for presence
How the interview at the police station will be conducted
The investigating officer will carry out an audibly recorded interview with the suspect about their alleged involvement in the offence. This must comply with Codes C and E.
Solicitor’s role during the interview
Protect and advance the legal rights of the client
What is the role of an appropriate adult and who can fulfil this role
The ‘appropriate adult’ is a person who attends the police station to provide support and assistance to a juvenile (or suspect with a mental health condition or mental disorder.
Appropriate adult – (hierarchical order)
1. Parent/guardian
2. Social worker from LA
3. Another responsible adult (aunt, uncle or grandparent)
Who may not be an appropriate adult :
○ Solicitor
○ Police officers/persons employed by police
○ Interested party such as victim/suspect/potential witness/anyone else involved in investigation
○ Person whom juvenile made admissions to
○ Estranged parent if juvenile objects
Key roles and responsibilities:
a) To support, advise and assist the suspect when questioned
b) Ensure suspect understands their rights whilst at police station
c) Observe whether the police acting properly, fairly and respect to rights
d) Assist with communication between suspect and police
Suspect’s rights at the police station
(a) the right to have someone informed of the suspect’s arrest ;
(b) the right to legal advice
When will an identification procedure be required
ID must be held when police has an identification witness and the suspect disputes being the person the witness claims to have seen
The right to make further bail applications in the magistrates’ court including appealing to the Crown Court against a refusal of bail.
- The defendant may only make one further bail application based on the same facts and submissions.
- An additional request for bail can only be made if there is a change of circumstances.
Appeals to Crown Court
a) To appeal, the defendant’s solicitor must complete a notice of application.
b) This notice needs to be sent to the Crown Court and magistrates’ court and also served on the CPS.
c) The notice of application will specify;
- Arguments
- Bail Conditions
- Any new facts
The extent to which the prosecution may challenge the granting of bail by a magistrates’ court
Essentially the main requirements contain three sets of deadlines to follow:
- Oral notice must be given by the prosecutor at the end of the hearing during which the court granted bail; and before the defendant is released from custody.
- This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal.
- The Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing).
The defendant will therefore be remanded in custody by the magistrates until the appeal is heard.
The significance of bail conditions, how these can be breached, including failing to surrender and the likely consequences of breaching them.
D who breaches any bail conditions other than condition to attend next hearing DOES NOT commit a criminal offence but likely have their bail reviewed.
- Section 7(3) Bail Act allows police to arrest person who has been bailed to attend court if officer reasonably believes that the person
a) Not likely to surrender to bail or
b) Has broken or is likely to break their bail condition
-First hearing before the magistrates’ court-
The relevance of an offence’s classification (i.e. whether the client has been charged with a summary only, either-way or indictable only offence or a combination of these).
Summary offence
Client required to enter plea.
a) If guilty, CPS tells magistrates facts of case and possibly record of previous convictions.
b) If guilty but disputes specific factual allegations, newton hearing to determine factual basis upon which D is sentenced
c) If not guilty, court fix date for defendant’s trial and issue CMD, both parties must comply
Either-way offence
a) If pleads guilty, magistrates decide whether to sentence immediately or transfer to crown court if sentencing powers insufficient
b) If pleads not guilty, magistrates decide whether to be tried in magistrates court or crown court. If magistrates decide it is suitable for summary trial, D has right to elect.
Indictable only
- Adult D will be sent straight to the Crown court for trial or sentence following preliminary hearing in magistrates.
-First hearing before the magistrates’ court-
What is likely to happen at this hearing and your role during it
- The prosecution provide a summary of the offence and a list of the defendant’s previous convictions if the defendant is produced from custody
- The prosecution may also provide an outline of the interview, witness statements, exhibits or victim’s impact statement if the defendant appears on bail
-First hearing before the magistrates’ court-
If the offence is either-way, the plea before venue and allocation procedures, including advising on plea
Either-way offence – guilty plea
(1) D treated as tried summarily and convicted. CPS outline facts and D’s previous convictions. D’s solicitor gives plea in mitigation.
(2) Magistrates decide sentencing powers. Maximum is 12 months custody
(3) If sufficient → sentence D immediately or adjourn case for pre-sentence
(4) Insufficient → commit D to crown court
(5) D will be remanded on custody or bail
Either-way offence – not guilty plea
(1) Magistrates decide on allocation (prosecution can inform court of D’s previous convictions)
(2) If indictment suitable → sent to Crown court
(3) If summary suitable → D has right to elect trial → if in magistrates, trial will be conducted there
-First hearing before the magistrates’ court-
the pros and cons of Magistrates and Crown Court
Crown Court – pros and cons
- Greater chance of acquittal
➢ jury more sympathetic;
➢ fairer hearing because magistrates could be favour police more whereas jurors can question testimony of police; - Better procedure for challenging admissibility of prosecution evidence
➢ If judge rules evidence is inadmissible, evidence will not placed before jury at all
➢ In magistrates, responsible for determining both law and fact so there is a risk that even if evidence is inadmissible, the knowledge of it will affect their decision
- More time to prepare for trial → complex then case will take longer to get to trial, more time to prep for defence case, important if large number of potential witnesses need be interviewed
- The costs order will be higher if convicted after Crown Court trial
Magistrates Court – pros and cons
- Limited sentencing powers
- Speed and stress
➢ Conducted relatively quickly, important for D who is offered employment elsewhere or if D is denied bail and is remanded in custody prior to trial;
➢ Not as intimidating as in Crown court, so it is better for D who never previously been charged with offence - Prosecution costs
➢ D is convicted in either courts → likely ordered to make contribution towards CPS costs and is higher in crown court as greater amount of work - Defence costs
➢ Granted legal aid → no need to contribute towards defence costs
➢ Private fund – significantly cheaper than CC
-Case management and pre-trial hearings-
What will happen following a not guilty plea, including the type of directions the magistrates’ court will give, how we will comply with these
Under the Magistrates’ Court standard directions for trial of a summary trial case:
* the prosecution must serve its evidence and notice of any intention to adduce bad character evidence within 28 days of the order
- after receiving the prosecution’s evidence and any notice of intent to adduce bad character evidence, the defence:
o must notify the prosecution which witnesses are required to attend trial within 7 days and
o serve its defence statement within 14 days
o indicate any intention to object to bad character application within 7 days
o must given notice of intention to adduce hearsay evidence or bad character evidence with respect to prosecution witnesses within 14 days
o may raise points of law (such as case law/statute relating to admissibility of evidence) not less than 21 days before trial
o must serve certificates of readiness for trial not less than 7 days before trial
-Case management and pre-trial hearings-
The disclosure obligations on the prosecution and defence.
Prosecution
The prosecution has 50 days to complete disclosure (or 70 days if the defendant is on bail)
The prosecution is under a duty to disclose all evidence upon which it intends to rely and any other unused evidence which is reasonably capable of undermining the prosecution’s case or assisting the case for the defence.
Defence
The defence must serve its defence case statement within 28 days after the prosecution has made disclosure which sets out:
* nature of the defence
* what facts of the prosecution case are disputed
* alternative facts the defence raises
* details of alibi witness
If not served, an adverse inference may be drawn
-Case management and pre-trial hearings-
What will happen when a case is going to the Crown Court including the Plea and Trial Preparation Hearing.
When an indictable only matter is sent to the Crown Court, a preliminary hearing will take place within 14 days of being sent if
- the trial is likely to last more than four weeks,
- there are case management problems to address,
- an early trial date is needed,
- one of the defendants is under 18, or
- there is likely to be an early guilty plea.
A case being heard in the Crown Court, the pleas and preparation hearing (arraignment) is held within 28 days after the case was sent from Magistrates’ Court
If a defendant pleads guilty= the court will proceed to sentencing
A defendant may ask for an indication of sentence before entering a plea
* if an indication is given, and the defendant pleads guilty, then judge will be bound by their indication
If a defendant pleads not guilty= a trial date will be set
The stages of a criminal trial in the Magistrate’s Court
a) CPS opening speech
b) Prosecution witnesses called in. Examination in chief by CPS and cross-examination by defence
c) Possible submission of no case to answer by defence
d) Defence witnesses (same process)
e) CPS closing speech
f) Defence closing speech
g) Magistrates retire to consider verdict and deliver
h) If guilty → adjourn for pre-sentence report or sentence immediately
i) Not guilty → D discharged
The stages of a criminal trial in the Crown Court
a) Jury sworn in
b) Prosecution opening speech
c) Prosecution witnesses give evidence and agreed s 9 statement read out by prosecutor
d) Submission of no case to answer
e) Opening speech by defence
f) Defence witnesses
g) Prosecution closing speech
h) Defence closing speech
i) Judge summing up
j) Jury retire to consider their verdict
What is a voir dire
A hearing to determine the admissibility of the particular piece of evidence in dispute. Such hearings are also often referred to as ‘a trial within a trial’.
A voir dire will involve witnesses giving evidence on matters relevant to the admissibility of the evidence.
After the witnesses have given evidence, the prosecutor and the defendant’s solicitor will make legal submissions as to the admissibility of the disputed evidence.
Should the defendant testify at trial ?
➢ Advantages:
- Avoid s 35 adverse inferences
- D wants to dispute or put in content evidence of prosecution witnesses;
- explain his conduct (why he made confession to police);
- enhance credibility if gives same account as gave in police station interview
➢ Disadvantages:
- could incriminate himself in witness box;
- account may not stand up to cross-examination
Competence and compellability, especially in relation to a defendant client, their spouse and testimony from a child witness.
- Ordinary witnesses are competent and compellable for both the prosecution and defence.
- Co-defendants are not competent or compellable for the prosecution, but they are competent but not compellable for the defence
Competence (exceptions)
- A witness would not be competent if it appears that they are not able to understand the questions put to them as a witness and give answers to the court which can be understood
Compellability (exceptions)
- The prosecution cannot compel the defendant to give evidence, but if the defendant testifies, then they will be subject to cross-examination by the prosecution
- Generally, a defendant’s spouse may choose to give evidence for the prosecution but may not be compelled to do so, but can be compelled by the defence
- A defendant’s spouse may be compelled to testify if the offence involves assault, injury or threat of injury to them or a child under 16
- The defendant may compel their spouse to testify unless the spouse is jointly charged with the defendant
The availability of special measure provisions
Special Measures
- Screen between witnesses
- Testify through video link
- Court officers remove their wigs and gowns
- Allowing witness to give evidence in private
- Pre-record testimony
May be required where witnesses are:
- under 18
- disabled
- affected by fear of giving evidence
- complainants in sexual offences
- witnesses to specified gun/ knife crimes
What will happen at a sentencing hearing ?
1) Sentencing Guidelines
2) Aggravating and Mitigating factors
3) Concurrent or Consecutive sentences
4) Type of sentence (custodial, community order etc)
Whether a Newton hearing will be required, how this will be conducted and its significance ?
The defendant may plead guilty to the offence but dispute the facts set out by the prosecution and offer to plead guilty on different facts.
If the prosecution rejects the plea, a Newton Hearing is held to settle the disputed facts.
- A Newton hearing takes the form of a trial in which witnesses are called to give evidence.
- If the hearing is settled in the prosecution’s favour, the defendant will lose any credit for the guilty plea.
- If the hearing is settled in the defendant’s favour, the defendant will retain any credit for guilty plea
Procedure for appeals from the Magistrates’ court to Crown court
A defendant who have been convicted at trial may appeal to the Crown Court against either conviction or sentence
* A defendant who pleads guilty can only appeal on their sentence
* The prosecution have no right to appeal from the Magistrates’ Court.
- A defendant must lodge a written notice of appeal with the convicting/ sentencing court within 15 working days from conviction or sentence
- There is no requirement to set out the basis of appeal as the court has no power to decline jurisdiction
Procedure for appeals from the Crown court to Court of Appeal
- The defendant must seek leave to appeal as a first step
a. Leave can be granted by either the trial judge or the COA itself
b. If a defendant seeks leave from the COA, they must lodge a notice for application of leave to appeal within 28 days of the decision with the convicting/ sentencing
- The Crown Court will then send the appeal to the COA where a single judge will decide whether leave to appeal should be granted
- If refused, the defendant can renew the application to the full court
Powers of the Crown Court for appeals from the Magistrates’ court
The matter is heard by a Crown Court judge supported by at least two magistrates
A complete rehearing is held and new evidence may be adduced
The Crown Court may increase (or reduce) the sentence imposed by the Magistrates’ Court but not beyond a sentence that could have been imposed by the Magistrates’ Court
The court can also impose a costs order on the defendant should the appeal be unsuccessful
Powers of the Court of Appeal for appeals from the Crown court
The Court of Appeal can:
* quash the conviction and order either acquittal or a retrial
* find the defendant guilty of some offence but not others
* find the defendant guilty of alternative offences
* dismiss the peal
Youth Court (complete!!!)
Ethical Issues (complete!!!)
