criminal litigation - advocacy Flashcards
bail application
Is there a right to bail i.e no exclusions
What kind of offence is the defendant charged with? This will determine the exceptions
Are any of those exceptions made out?
Can any conditions be imposed to persuade the court to grant bail
Statutory factors which the court will take into consideration when making a decision on bail:
The nature and seriousness of the offence and the probable method of dealing with the defendant for it
The defendant’s character, antecedents, associations, and community ties
The strength of evidence against the defendant (not relevant if already convicted)
The defendant’s previous record on bail
Risk of harm to any person
Any other relevant factor e.g. misuse of drugs
the right to bail
- the right to bail:
GR: A defendant charged with a criminal offence has a prima facie right to bail.
the right to bail applies to all persons subject to several exclusions and exceptions
exclusion: the circumstances wen the right to bail does not apply
exception: where the defendant need not be granted bail if there is a reason to refuse bail - dealing with grounds for refusing bail.
right to bail
general rule: a defendant charged with a criminal offence has a prima facie right to bail (i.e from the outset there is a presumption of bail).
however - there are exclusions (no right to bail) including appeals following summary conviction, committal for sentence following summary conviction and homicide or rape case (with previous convictions) and murder cases.
exception - used when dealing with the grounds for refusing bail.
exclusions to bail (presumption of bail is removed)
- appeals following summary conviction- discretionary - very unlikely to be appropriate
- committal for sentence following summary conviction - the right to bail does not exist following conviction in the magistrates court and there is no presumption in favour.
- homicde or rape cases if there is a previous conviction: the right to bail does not exist where the defendant is charged with or convicted of murder, attempted murder, manslaughter, rape or attempted rape, and has previously been convicted of any of these offences.
here: the court shall only grant bail if they are of the opinion that there are exceptional circumstances justifying the grant of bail - this restriction only applies in manslaughter cases where the previous conviction resulted in a sentence of imprisonment.
- murder cases
a further exclusion exists in respect of defendants charged with murder.
in cases of murder, bail may not be granted unless the court is satisfied that there is no significant risk that if released on bail, the defendant would commit an offence that would be likely to cause physical or mental injury to another person.
(only a crown court judge may grant bail in murder cases, magistrates do not have the power to do so).
exclusion
- appeals following summary conviction -0 discretionary - unlikely unless the appeal was very likely to succeed.
- committal for sentence following summary conviction - bail is discretionary and no presumption of bail
- murder/homicide if there is a previous conviction
- the right to bail dies not exist where the defendant is charged with, convicted of:
- murder
- attempted murder
- manslaughter
- rape
- attempted rape
bail shall only be granted if : EXCEPTIONAL CIRCUMSTANCES JUSTIFYING THE GRANT OF BAIL (previous conviction must have resulted in imprisonment).
- murder cases:
- a further exclusion exists in respect of defendants charged with murder in addition to previous convictions exclusion
- bail will only be granted for murder if the court is satisfied that there IS NO SIGNIFICANT RISK THAT IF RELEASED ON BAIL, THE DEFENDANT WOULD COMMIT AN OFFENCE THAT WOULD BE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY ON ANOTHER PERSON.
exceptions to the right to bail defined according to what type of offences?
the exceptions to the right to bail are listed in SCHEDULE 1 BAIL ACT 1976.
the exceptions are defined according to the type of offence that the defendant is charged with, in particular:
- defendants accused or convicted of indictable imprisonable offences
- defendants accused or convicted of summary only impriasnable offences
- defendants accused or convicted of non imprisonable offences
exception (schedule 1 of the bail act)
exceptions are defined according to the type of offence the defendant is charged with:
- indictable imprisonable offences
- summary only imprisonable offences
- non imprisonable offences
exceptions substantial grounds : defendants accused or convicted of indictable imprisonable offences
includes either way and indictable offences
first consideration: it appears to the court that there is no real prospect of the defendant being sentenced to a custodial sentence.
exceptions: SUBSTANTIAL GROUNDS
1. risk of absconding, further offences or interference with witnesses or otherwise obstruct the course of justice.
relatively high threshold - the court must believe there are substantial grounds for believing the defendant would fail to surrender, commit an offence, or interfere with witnesses.
defendants accused or convicted of indictable imprisonable offences
limitation: unless the limitation is met the exceptions will not apply (limitation does not apply to harm to an associated person, the defendant’s own protection, already serving a custodial sentence, or not practicable to bail).
It appears to the court that there is no real prospect of the defendant being sentenced to a custodial sentence.
Substantial grounds:
1. FAILURE TO SURRENDER TO CUSTODY
2. COMMIT AN OFFENCE WHILST ON BAIL
3. INTERFERE WITH A WITNESS OR OTHERWISE OBSTRUCTOR THE CRSE OFJUSTICE
NB: relatively high threshold, the court must be satisfied that there are SUBSTANTIAL grounds for believing the defendant would do any of the things listed. will not be me where the court believes the defendant might or may do any of those things.
exceptions: defendant accused or convicted of summary only imprisonable offences
applies in circumstances where the defendant is charged with or convicted of a summary only offence which is punishable by imprisonment
under this heading: a defendant need not be granted bail if
- they have previously been granted bail, failed to surrender or the court believes they would fall to surrender
- they were on bail on the date of the alleged offence and there are substantial grounds for believing they Ould commit an offence f released on bail
- the court is satisfied that there are substantial grounds for believing that the defendant would commit an offence on bail by engaging
statutory factors - when the court is making a decision as to bail, i.e. considering whether there are substantial ground (failure to surrender, interfering with witnesses, further offences) they MUST take into account any of the statutory factors which appear to be relevant.
contained in the bail act 1976.
- the nature and seriousness of the offence: the more serious the offence, the greater the risk of custodial sentence and greater the risk the defendant will abscond.
- the defendants character, antecedents, associations and community ties: bad character is admissible in bail hearings. community ties include familial circumstances, residence, employment and other relevant factors.
- the strength of evidence against the defendant (not relevant if already convicted): the defence may contend that the prosecution’s case its weak and thus there is no justification for refusing bail.
- the defendants previous record on bail: has the defendant previously complied with their bail conditions or obligations.
- risk of harm to any person: if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail conditionally or not would commit an offence while on bail the risk that the defendant may do so by engaging in conduct that would be likely to cause physical or mental injury to any other person.
- any other relevant factors.g. misuse of drugs.
application for determining the venue for trial
- introduction
- summarise what the case is about
- outline the stucture of the application
e.g. made on the ground that the magistrates court’s sentencing powers are adequate to deal with this offence. - culpability and harm - state the starting point and range of sentence
- aggravating and mitigating factors
- state what the likely sentence would be taking the above into account
- state that these are within the powers of the magistrates court - conclusion: reiterate what the likely sentence would be
- reiterate why the court should accept jurisdiction
end: Unless I can assist the court further, those are my submissions.
conditional bail
the court is entitled to grant bail to the defendant subject to one, or more conditions. may only be imposed when it appears necessary to the court to do so in order to:
- prevent the defendant from absconding
- to prevent them committing further offences whilst on bail
- to ensure they do not interfere with witnesses or obstruct the course of justice.
- for their own protection or
- to ensure they make themselves available to enable inquiries or a report to be made to assist the court in sentencing .
conditions:
1. surety: person who accepts that if the defendant fails to attend they will be liable t forfeit a specified sum of money. solicitor should never act as a surety.
2. security: condition that the defendant deposit money which will be forfeited if they fail to surrender.
3. residence: a condition that the defendant be required to live and sleep at a specified address. police will visit the address at random points in the day to monitor compliance.
4. curfew- stp[s committing further offences of bail - consider employment and care commitments.
5. non communication
6. restriction on location
7. reporting
8. surrender of passport
remand time limits
if the court chooses to remand a defendant in custody, time limits are set on the period of remand.
the time limits are dependant on whether the decision is made before or after conviction and sets out these time periods.
- pre conviction
three clear days to a police constable
eight clear days in custody to prison
28 clear days in custody to prison where
- the next stage of proceedings is fixed to occur within that time
- the defendant at the time of remand is before the court and
- the defendant has previously been remanded in custody by the court in the proceedings
28 clear days in custody to prison if the defendant is already serving a custodial sentence.
- post conviction e.. awaiting sentencing
- three weeks in custody for enquiries or reports for sentencing
- four weeks on bail.
further applications for bail
if the court decides not to grant the defendant bail, it is the court’s duty to consider the question of bail at each subsequent hearing. t
custody time limits
in addition to the remand time limits, solicitors need to also be aware of custody time limits that apply to defendants in criminal proceedings.
refers to the maximum amount of time that an individual may be remanded in custody during the progress of a criminal trial (designed to ensure that cases will be expedited where the defendant remains in custody)
- 56 days summary only offences from first appearance at trial.
- 70 days for cases sent to the crown court from first appearance in the magistrates court to sending to the crown court).
- 70 days for either way offences being tried in the magistrates court - from first appearance at trial (reduced to 56 days if an allocation hearing is held within the first 56 days)
- 182 days for indictable only offences sent to the crown court from sending to arraignment in the crown court.
NB: prosecution can apply for the deadline to be extended.
- to do so it must show on the balance of probabilities that there is GOOD AND SUFFICIENT CAUSE FOR THE EXTENSION AND HAS ACTED WITH DUE DILIGENCE AND EXPEDITION.
- once the time period has elapsed (without the prosecution showing the above) the defendant MUST be released on bail pending trial.
appealing bail
two circumstances: appeals by the defence where bail is refused, and appeals by the prosecution where bail is granted.
defence appeals
where the magistrates court has refused bail, the defendant may appeal to the crown court.
application process:
1. must apply to the crown court in writing as soon as practicable after the magistrates courts decision and serve the application to the crown court, magistrates court and prosecution
2. notice must specify the decision the defendant wishes the crown court to make, the reasons why bail should not be withheld, any proposed conditions for bail and the application must attach a certificate of full argument.
3. appeals will usually be heard by a crown court judge in chambers - will be a complete rehearing of a bail application.
prosecution appeals against bail
the prosecution does not have such an unfettered right to appeal against the granting of bail. only permitted where the defendant has been charged with an imprisonable offence if it is not punishable by imprisonment, the prosecution cannot appeal against a decision to grant bail.
may appeal either to the crown court or the high court
NB: in both cases, must give oral notice to the court which has granted the bail of the decision to appeal at the end of the hearing and before the defendant is released on bail.
must serve written notice not more than 2 hours after informing th court of its decision to appeal.
the defendant must be remanded in custody until the appeal has been determined.
absconding and breaches of bail
court will issue a warrant for their immediate arrest - criminal offence
magistrates curt - 3 months +5,000
crown court - 12 months and unlimited fine.
breaching bail conditions - not a criminal offence but can have unfortunate consequences on the defendant.
a police officer has the power to arrest without a warrant if they have reasonable grounds to believe that the defendant has:
1. has broken any conditions of their bail OR
2. is likely to break any conditions of their bail.
plea in mitigation
- Introduction
- Summarise the case - end with saying that the defendant has been convicted of the offence they are charged with
- Outline the structure you will follow - address what the starting point and range of sentences are for this offence
- consider whether any aggravating or mitigating factors apply
- if there are multiple offences why they should be concurrent
- early plea - remind the court that they should be given credit for this
- conclude by proposing that an appropriate sentence for he defendant: is X
- conclusion;
a) highlight key submissions made
b) emphasise why sentence proposed would be appropriate
UNLESS I CAN ASSIST THE COURT FURTHER THOSE ARE MY SUBMISSIONS.
appeal against sentence or conviction - magistrates to the crown court
sentence and conviction: notice of appeal lodged within 15 business days of sentence, served on the magistrates court and prosecution.
the notice of appeal must state
- the conviction/sentence it wishes to Appel, with the court and the date
- summary of the issues
- state whether the MC have been used to reconsider its decision under the MC s142 MAC 1980 and if not state why not
- list all the parties the notice will be served on.
if this is served later than 15 business days, an application for an extension of time is required with reasons. provided notice is given on time - no leave is required there is an automatic right to appeal.
the appeal will be heard by a judge and between 2 and 4 lay magistrates
conviction appeal from the magistrates to the crown court : crown court has the power impose any sentence that would have been available to the MC (more or less severe than imposed by the magistrates).
following a rehearsing in the crown court whether against sentence or conviction, both the prosecution and the defence have the ability to appeal to the high court by way of case stated.
sentence:
manifestly excessive
legitimate expectation
appeals by way of case stated
the second form of appeal from the magistrate court is an appeal by way of case stated - based on law and not on fact and is heard by the administrative court, sitting as a divisional court of the KBD
appeals by way of case stated are open to the P and the D.
grounds:
1. that the decision made by the MC is wrong in law e.g. the M’s have misapplied the law, or admitted evidence it ought not to have admitted OR
2. the decision made by the magistrates court is in excess of their jurisdiction e.g. that the magistrates heard a case for which they did not have jurisdiction
NB: once an application to state a case to the high court is made, the appeal route to the crown court is lost. therefore usually advise to the crown court first and then the high court after.
appeals from the crown court
an appeal may be brought by a defendant against their conviction or their sentence at the conclusion of the proceedings.
grounds of appeal:
LEAVE OF APPEAL IS REQUIRED.
conviction: If the defendant appeals against conviction the court of appeal will only allow the appeal in the event of unsafe conviction
unsafe conviction:
1. the trial judge incorrectly rejected a submission of no case to answer
2. the trial judge misdirected the jury on a point of law
3. the trial judge permitted evidence to be adduced which should have been excluded e.g. confession evidence or excluded evidence which should have been permitted e.g. hearsay evidence.
4. the trial judge made an error in summing up
5. the trial judge made unnecessary interventions or comments.
6. in limited circumstances; fresh evidence has been introduced (very restricted).
hearing fresh evidence 0 the court of appeal can in particular circumstances when it is in the interests of justice to do - in particular it will consider whether the fresh evidence is credible, affords a ground of appeal and would have been admissible at trial + there is a reasonable explanation for the failure to adduce it at trial.
APPEALS AGAINT SENTENCE: where the defendant appeals against sentence, they must demonstrate that the sentence is either:
1/ wrong in law
2. manifestly excessive or wrong in principle. e.g. the judge took the wrong approach in sentencing
prosecution appeals
the prosecution’s right to appeal from the crown court is heavily restricted - cannot appeal against the acquittal or sentence of a defencdant unless:
- terminated ruling
- retrial of a serious offence
sentencing hearings
the court must not pass custodial sentence unless it is of the opinion that:
THE OFFENCE OR COMBINATION OF OFFENCES ASSOSIATED WITH IT WAS SO SERIOUS THAT NEITHER A FINE ALONE NOR A COMMUNITY SENTENCE CAN BE JUSTIFIED FOR THE OFFENCE
the court must not make a community order unless it is of the opinion that the offence, or combination of offences associated with it WAS SERIOUS ENOUGH TO WARRANT THE MAKING OF SUCH AN ORDER.
then consider aggravating and mitigating factors.
hearsay application:
hearsay evidence= a statement made by a person is not in oral evidence and is tendered to prove a matter stated - the court retains the discretional exclusionary power under s126 of the criminal justice act
s126:the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account the value of the evidence.
hearsay evidence:
s116 (unavailable witness) oral evidence of the person making the statement would have been admissible had they attended in person AND
the person who made the statement is identified to the court’s satisfaction (the court knows who they are) AND
any of the following reasons exist:
- witness is dead
- witness is unfit due to a bodily or mental condition
- witness is outside of the UK and it is not reasonably practicable to secure their attendance
- witness cannot be found despite reasonably practicable steps being taken to find them
- witness is in fear of giving evidence (this one is not easily met as the court deploys special measures to mitigate the impact of fear on the witness).
s117 Business document
- hearsay statements made in business documents may be admissible as hearsay evidence in the statement
- would be admissible as evidence of a matter stated in oral evidence
- was created or received by the person who at the time was acting in their occupation or as a holder of an unpaid or paid office AND
- was supplied by someone who had personal knowledge of the matter stated.
hearsay application structure
- introduction
- summarise the case
- outline the application
a) what ground are you relying on/disputing to admit/exclude hearsay evidence - outline the law surrounding hearsay
a) single or multiple hearsay?
b) general rule is that hearsay evidence is not admissible in court. - explain the ground for admitting /excluding hearsay
a) parties agree
b) interests of justice
c) res gestae
d) confession
e) witness is missing
f) business document
admitting hearsay evidence
does a statutory provision apply s116/117 CJA 2002 - witness who originally made the statement is unavailable/ statement is a business document.
common law principle: whereby if a statement is made as a result of a close and intimate connection with the event in issue and is made contemporaneously with the event, then it may be admitted as hearsay evidence (justified on the basis that the reaction would have dominated the victims thoughts making it unlikely that they would lie.
- all parties agree to its admissibility
- the court is satisfied that IT WOULD BE IN THE INTERESTS OF JUSTICE TO ADMIT THE EVIDENCE:
1. how much probative value is in the statement and how valuable is it to the court to understand the other matters in the case
2. whether any other evidence has been or can be given on the matter to which the hearsay evidence relates.
3. how important the matter is in the context of the whole case.
4. how reliable the maker of the statement seems to be
5. whether oral evidence on the matter stated can be given and if not why not?
6. how difficult it would be to challenge the statement
7. the extent to which that difficulty would prejudice the party facing the hearsay evidence.
application to include or exclude evidence under s76 and 78 PACE 1984
confession evidence: a statement Ade to a person, official or otherwise , which is wholly or partly adverse to the maker
Limb 1: Exclusion for oppression s76
widely defined: to include torture, inhumant or degrading treatment and the use of treat of violence whether or not amounting to torture
Limb 2: exclusion for unreliability
- where it is represented to the court that
- the confession was or may have been obtained in consequence of anything said or done
- which was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in consequence thereof
- the court shall not allow the confession to be given in evidence against him
- except so far as the prosecution proves to the court beyond reasonable doubt that the confession was not obtained aforesaid.
s78 PACE 1984:
exclusion of unfair evidence in any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, HAVING REGARD TO ALL THE CIRCUMSTANCES, INCLUDING THE CIRCUMSTANCES IN WHICH THE EVIDENCE WAS OBTAINED, THE ADMISSION OF EVIDENCE WOULD HAVE SUCH AN ADVERSE EFFECT ON THE FAIRNESS OF PROCEEDINGS THAT THE COURT OUGHT NOT TO ADMIT IT.”
structure of an application to exclude confession evidence
- introduction
- summarise the case
a) bring in ar and mr of offence
b) is the defendant relying on any defences - outline the structure of the application
a) obtained by oppression
b) obtained in circumstances that render it unreliable
c) it would have such an adverse effect on the fairness of proceedings it ought not to be admitted - remind the court of the general rule for confession evidence admissibility (admissible inso far that it is relevant)
- address the two grounds of the application
a) need to demonstrate causation from things said or done / unreliability to the defendant making the confession - remind the court of the standard of proof that needs to be met to include a confession (prosecution need to prove beyond all reasonable doubt that it was not obtained in such a way) IF NOT THE COURT MUST EXCLUDE IT.
- address the final ground
confusion
Submission of no case to answer
Galbraith test: to be submitted after the prosecution have finished presenting their evidence.
- where there is no evidence that the crime has been committed by the defendant or
- where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
STRUCTURE:
1. introduction, may it please the court, I appear on behalf of the defendant. The defence will be submitting that the prosecution have not provided the defendant with a case to answer.
- summarise the facts of the case
a) what D has been charged with
b) what is the AR and MR of the offence
c) is D relying on any defences? - outline the structure of the application
a) I will submit that the defendant has no case to answer
b) the prosecution have failed to prove beyond all reasonable doubt that the defendant has committed this offence. - Legal grounds for the offence
a) remind the court what the AR and MR of the offence is
b) remind the court that the prosecution must prove all the elements of the offence are not only made out, but that the defendant’s guilt is beyond a reasonable doubt.
5) why the prosecution have failed to prove the offence
a) failed to prove an element of the offence or
b) evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict the defendant.
In sum, the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt because XXX and as such, there is no case for the defendant to answer to. Judge, please exercise your powers and acquit the defendant.
Judge, unless I can assist the court further those are my submissions.
applications for the trial to proceed in absence of a defendant
part 25 criminal procedure rules stipulate that a court should not proceed in the absence of a defendant unless it is satisfied that he has waived his right to attend and that the trial would be fair.
youth court definitions
youth/juvenile - anyone under the age of 18
young person/young offender - 14-17
child - 10 -13
criminal responsibility begins at the age of 10 if any offence is committed before the age of 10 - no criminal liability exists.
general rule for the youth court: a child or young person, charged with a criminal offence must be tried in the youth court.
this is subject to several exceptions affected by:
1. the age of the offender at the time of trial
2. the offence is charged: generally the youth offender should be tried in the youth court even when charged with n indictable offence, however there are exceptions - homicide offences, firearm offences, notice in fraud cases or cases involving children, and dangerous offenders.
3. where the youth is jointly charged with an adult.
offence charged
- homicide offences: a child or young person charged with a homicide offence (manslaughter or murder+attempts to commit murder) must be sent to the crown court for trial without indication of plea being taken at the youth court.
- firearm offences: a young person charged with a firearms offence e.g. possessing a prohibited firearm, which is subject to a minimum mandatory sentence of three years must be sent to the crown court without an indication of plea being taken at the youth court.
- notice in fraud cases or cases involving children: in cases of serious of complex fraud and some cases involving children, the case MUST be sent to the crown court, where notice is given by the orosecution hat the case is on that should be dealt with by the crown court. no indicat5ion of plea is taken.
- dangerous offenders - the youth court MAY send to the crown court, without an indication of plea where
- they have been charged with a specified offence (violent, sexual, or terrorism offence 0 schedule 18 of the sentencing code) e.g. manslaughter wounding, robbery, rape, sexual assault. some of these offences are also grave crimes.
- the court considers them to be a dangerous offender (where the court is of the opinion that there is a significant risk to the public of serious harm caused by the youth committing further specified offences.
- a custodial term OF AT LEAST 4 YEARS WOULD BE IMPOSED FOR THE OFFENCE.
Grave crimes
where a youth is charged with a grave crime, the youth court must determine whether to retain jurisdiction or sent the youth to the crown court for trial.
grave crime = a serious offence, for which the sentence is not fixed by law and is punishable with imprisonment of 14 years or more for an adult offender (21years or over).
- robbery
- causing GBH or wounding with intent
- aggravated criminal damage/arson/aggravated arson.
the court would still take an indication of plea
guilty plea: the offence should be tried summarily and court should proceed to sentencing with the ability to send to the crown court if sentenced.
not guilty plea: the magistrates must then proceed to determining allocation
determining allocation - youth court - grave crimes
- is there a real prospect that a sentence in excess of 2 years will be imposed on the youth?
before deciding whether to send a case to the crown court or retain jurisdiction - the youth court will hear submissions from the prosecution and defence. the
submissions on the interest of justice when an adult and a youth are jointly charged
It is for the magistrates to determine whether the interests of justice test has been satisfied at the allocation hearing. in addition to the representations of the parties, some factors they consider include:
- whether separate trials will cause injustice to witnesses or to the case as a whole
- the age of the youth, the younger the youth the greater the desirability that they be tried in the youth court
- the age gap between the youth and the adult - substantial age gap same as above.
- the lack of maturity of the youth
- the relative culpability of the youth compared with the adult
- lack of previous convictions of the youth
sentencing youth court
when a case is proven against a youth, or following an admittance of the offence, the youth court or other court will proceed to sentence (very similar to the process adopted by the adult courts).
- the prosecution will provide an overview of the offence and outline any previous convictions
- this will be followed by a plea in mitigation by the defence advocate
- the youth and or their parent or guardian may be invited to make a statement t the court.
- before the youth court sentences, it must obtain a pre sentence report prepared by the youth offending team.
sentencing children and young people definitive guideline:
- age of the child or young person
- the seriousness of the offence
- the likelihood of further offences being committed
- the extent of harm likely to result from those further offences.
should not criminalise your people if can be avoided.
scaling approach: refers to the model of interventions adopted by the you. it aims to ensure that interventions are tailored to the individual and based on an assessment of their risks and needs. the intention outcomes are to reduce the liklihood of re-offending
youth court factors to consider when deciding whether a juvenile should be tried in the youth court or jointly with an adult
when jointly charged with an adult - first appearance MUST be together before an adult magistrates court.
- if the adult is sent to the crown court:
youth guilty plea: the youth is treated as having plead guilty and convicted summarily - the magistrates court will proceed to sentencing or remit to the youth court for sentencing, under limited circumstances the magistrates may also commit the youth to the crown court for sentence.
not guilty youth plea: the procedure will be the youth should be tried separately in the youth court however unless it is in the INTEREST OF JUSTICE FOR THE YOUTH AND ADULT TO BE TRIED JOINTLY IN THE CROWN COURT
available orders:
detention training orders,
youth rehabilitation orders
referral orders
referral order: can be made by YC or MC not CC.
mandatory where:
1. the youth has no previous convictions
2. the youth pleads guilty to an imprisonable offence
3 the court is not proposing to impose a custodial sentence, or make an absolute or conditional discharge. and
4. the offence is not one for which sentence is fixed by law.
can last 3 -12 months
DTO: only form of custodial sentence available to the YC.
age: 1-=11 - CANNOT BE MADE
12-14 - only if persistent young offender (more likely if there have been 3 findings of guilt in the past 12 months).
15-17 - can be made.
between 4 and 24 months.
youth rehabilitation order: community entrance imposed on a youth - involves youth rehabilitation requirements which are designed to punish, protect public, reduce reoffending and make reparation.
max: 3 years
OFFENCE MUST ONLY BE IMPOSED WHERE THE COURT IS OF THE OPINION THAT THE OFFENCE WAS SERIOUS ENOUGH TO WARRANT THE MAKING OF SUCH AN ORDER
e.g. curfew, activity, supervision, unpaid work.
requirements must be proportionate to the seriousness of the offence and be suitable for the youth. should no be too onerous so as to make breach of the order almost inevitable.
basis of plea
bad character evidence
Visual identification evidence and Turnbull guidance
Where the issue in the case is one of identity, the prosecution will usually rely on visual identification evidence to prove that the defendant is the one who committed the offence.
in criminal proceedings, a witness may visually identify a suspect at two stages:
1. pre trial: e.g. witness statements, identification procedures
2. dock identification: identifies, for the first time an accused who is sitting in the dock at trial - the prosecution is not permitted to invite a witness to identify the defendant in the dock who has not previously identified the defendant at an identification procedure unless it was:
- IMPRACTICAL OR UNECESSARY FOR THE WITNESS TO CARRY OUT AN ID PROCEDURE OR THERE ARE EXCEPTIONAL CIRCUMSTANCES
structure for an application to exclude ID evidence
- This is an application to exclude the identification evidence of the defendant on the ground that it was improperly obtained and should therefore be excluded as it breaches CODE D OF PACE.
- summarise what the case is about
- outline the structure of the application:
a) how ID evidence should be obtained
b) how it was obtained
c) this means the court should exercise their discretion to exclude it under s78 of PACE.
application for witness summons
applications for arrest warrants
applications for special measures
