Criminal practice Flashcards
Magistrates court
All criminal cases start here
Presided over by a DJ (legally qualified judge who sits alone)
or a panel of magistrates (laypersons in panels of 2 or 3)
=> Legal advisor present to advise panel on matters of law and procedure
Panel rules on fact and law (incl admissibility of evidence)
Crown court
Presided over by crown court judge (decides matter of law), with a jury (decides matters of fact)
Jury = 12 lay people who decide whether guilty/not guilty
Order of police officers (low to high)
Constable
Sergeant
Inspector
Chief inspector
Superintendent
Chief superintendent
Assistant chief constable
D chief constable
Chief constable
Right to legal advice
i.e. Free, private legal advice at any time during detention (independent of the police and prosecution)
Suspect requests legal advice => defence solicitors call centre (DSCC) is contacted, unless the suspect requests that the advice be paid for
DSCC then determines whether telephone advice is sufficient or whether a sol should attend the police station
Delay in accessing legal advice only permitted when:
1. Suspect is arrested on an indictable only or either way offence
2. An officer of rank superintendent or higher has requested the delay in writing; and
3. Officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence
=> right can be delayed for 36 hours (max)
(In practice v rare for right to be delayed (fundamental right + failure to access is likely to cause problems for the admissibility of evidence collected prior to advice))
Right to notify someone of their arrest
Delay permitted only when:
1. Suspect is arrested on an indictable only or either way offence
2. An officer of rank inspector or higher has requested the delay in writing; and
3. Officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence
=> right can be delayed for 36 hours (max) and should be delayed only as long as necessary
Any delay must be proportionate
Custody time limits (general rule)
General rule = max time a suspect can be kept in custody without being charged is 24 hours from the relevant time
Relevant time usually = when the suspect entered the police station
Detention beyond the time limit is unlawful
Suspect must be charged or released before the custody time limit expires
First extension of custody time limits
Further 12 hour (so total = 36 hours) can be granted if:
- Suspect is arrested on an indictable only or either way offence
- An officer of rank superintendent or higher authorises the continued detention;
- Officer has reasonable grounds for believing continued detention is necessary to secure or preserve evidence or obtain evidence by questioning; and
- Investigation is being conducted diligently and expeditiously
Further extensions of custody time limits
Held beyond 36 hours only if warrant for further detention is sought from magistrates court
Court can grant further 36 hours on first app and an additional 24 hours on second app
=> max time a suspect can remain in custody prior to being charged = 96 hours
Magistrates will authorise further detention if:
1. Suspect is arrested on suspicion of an indictable only or either way offence
2. Court has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning; and
3. Investigation is being conducted diligently and expeditiously
When are investigation procedures held
- Witness has identified or purported to identify a suspect
- Witness expresses an ability to identify a suspect; or
- There is a reasonable chance of an eyewitness being able to identify a suspect
Rights of suspect in identification procedures
To have purpose of procedure explained
To have free legal advice and to have a sol or friend present
To have their obligations explained and the consequences of their decisions, namely that:
- The suspect need not cooperate, but a procedure may still be conducted covertly and the failure to cooperate may be raised at trial; and
- If the suspect changes their appearance between the notification and conduct of the procedure, it may affect the conduct of the procedure and may be raised at trial
Types of identification procedures (video identification)
Moving images of the suspect and 8+ others are shown to the witness
The others must resemble the suspect in age, height, appearance, and position in life, and any distinguishing features must be concealed
Suspect and their sol must have a chance to raise reasonable objections
Witness must be shown images at least twice and be warned that the suspect may not be featured in the videos
Multiple witnesses => must be separated
Types of identification procedures (identification parade)
Suspect and 8+ others who resemble the suspect are shown in a line
Suspect may object to arrangements and participants and may choose their position in the line
Witness must be warned that the suspect may not appear in the parade
Multiple witnesses => must be separated
Parade should be recorded or colour photographed
Types of identification procedures (group identification)
Witnesses see the suspect in an informal group
Procedure may take place with or without the suspect’s consent
Location should take into account the appearance of others present
Colour photograph or video should be taken immediately after identification
Types of identification procedures (confrontation)
Witness must be warned that the suspect may not be present
Suspect’s sol or friend may be present unless it causes undue delay
Suspect should not be restrained at the time of the identification
Witness asked “is this the person you saw on the earlier occasion?”
V rare and usually takes place at the police station
Possible objections to identification evidence
Failure to take into account reasonable objections to the appearance of others in the identification procedure
Failure to keep the witness away from the suspect before or during the identification process
Failure to keep witnesses apart before or during the identification process
Failure to warn witnesses that the suspect might not be shown at all
Test for exclusion of identification evidence
Court will consider whether its admission would have such an adverse effect on the fairness of the trial that it ought to be excluded
Police interviews (general info)
Recorded so it can be used as evidence
Must incl audio but may also incl video
Suspect seems unable to appreciate the significance of the questions or answers, or understand what is happening owing to intoxication or any other condition, they should not be interviewed
Advising a suspect at the police station
Entitled to legal rep during interview
Imp aspect is advising suspect whether to answer questions during the interview
Legal rep will inspect custody record = a log of a suspect’s time in detention at eth station maintained by the custody officer
Legal rep will obtain disclosure prior to interview from the investigating officer
- No duty upon police to provide a legal rep with any evidence, but they must provide sufficient information for the rep to understand the nature of the offence and reasons why detainee is under suspicion
- Legal rep will seek to gain as much info as poss from the police in order to inform their advice
Caution
Given at start of interview, setting out suspect’s right in the interview
Suspect must be told: they have right to remain silent, right to legal rep , that any thing they do say will be taken down in evidence and may be used against them, if suspect fails to mention something which they later rely on in court, and it is a fact they could reasonably have been expected to mention in interview, an adverse inference may be drawn by the court regarding why D did not raise the matter when questioned
Special caution necessary if relevant factor (ie if a D failed to account for their presence at the scene of the offence or an object/substance/mark found on D at the time of the arrest) => caution given must Ie outlining what offence if being investigated and what fact the suspect is being asked to comment on, before warning that an adverse inference may be drawn if they fail to provide an account now that they later rely ipon in court
Suspect’s options in interview
Answer qs and give full account
Decline to answer qs (either by remaining silent or saying no comment)
Hand in a written statement (setting out their account and decline to answer any further qs)
Vulnerable suspects
= youths (ie under 18) and suspects with mental disorders or other vulnerabilities
=> under PACE further safeguards are in place
Responsibility of custody officer to identify vulnerable suspects at the beginning of a suspect’s detention
Imp = vulnerable suspects are entitled to an appropriate adult
- Could be person’s guardian/parent, a rep from a care org, social worker, or volunteer not affiliated with the police
- Provide support and explanation to suspect during time in custody
- AA should be present during interview
- When appointing AA, wishes of suspect should be taken into account
- Suspect is vulnerable and AA not called in => admissibility of any evidence obtained during interview may be excluded
Professional misconduct in police interview
Sol must not obstruct the conduct of the interview (Ie telling suspect what to say or answering on the suspect’s behalf)
Sol obstructs interview => may be removed from the room
Must be authorised by superintendent and is v rare
If happens D would be entitled to speak to another sol
Police bail after charge
Decision taken to charge suspect => custody officer will decide whether the suspect should be remanded in custody and produced at court at the next available opp or whether they can be remanded on bail to appear at court on set date
Custody officer will hear submissions by defence rep before making a decision
Custody officer must take into account the same factors used in deciding the grant of court bail
Denied police bail?
=> D will be produced at mags court at next available hearing
Procedure for bail hearing
No prescribed procedure for bail hearing
But if there are objections to granting bail, prosecution will generally outline the objections to bail first, and then defence will present its arguments for vails and propose conditions to address any objections
Rules of evidence relaxed as evidence has not generally been collected or served
- Rare that witnesses be called
Certificate of full argument
- Bail refused or conditions imposed => court must give reasons for doing so in open court
- Court refuses bail => will issue to D a certificate of full argument (ie a doc that states the court heard full argument on the app for bail before it refused the app)
Right to bail
Remand in custody ie D will be kept in prison until the next court hearing
Remand on bail ie D released until next court hearing (subject to a duty to surrender on that date)
Bail can carry conditions or be unconditional
Ds have general right to bail
Court can remand a D into custody only if it finds:
- An exception to the right to bail applies; and
- There is a real prospect of a custodial sentence being imposed if convicted
Exceptions to the right to bail (ie. not granted bail if…)
- There are substantial grounds for believing D would:
1. Fail to surrender
2. Commit further offences whilst on bail; or
3. Interfere with witnesses or otherwise obstruct justice
4. commit an offence on bail that would cause (or cause fear of) physical or mental injury to an ass person (incl spouses, (former) partners, children, and relatives of D) - They are charged with an offence that can be tried in the crown court (ie indictable or either way) and they were on bail at the time of the offence
- Custody is for their own protection
- They are already serving a custodial sentence
- There is insufficient information to make a decision on bail; or
- They have failed to surrender or breached bail conditions in the same proceedings
Exceptions to the right to bail (meaning of ‘substantial grounds’)
Factors =
- Nature and seriousness of the offence and the probable method of dealing with it
- D’s character, prev convictions, and community ties
- D’s record on complying with bail obligations
- Strength of evidence; and
- Risk that D might engage in conduct that would, or would be likely to, cause physical or mental injury to another
Conditional bail
Court can attach conditions to bail if they are relevant, proportionate, and enforceable
Commonly incl:
- Requiring D to reside at a specific address
- Requiring D to report to local police station at specified intervals
- Prohibiting D from going to a particular area
- Prohibiting D from contacting certain named inds
- Requiring D to comply with a curfew
- Requiring D to wear an electronic tag
- Requiring D to obtain a surety who can post security hat will be forfeited if D fails to surrender
Bail and murder charges
Presumption is opposite (ie against release instead of in favour)
Apps can only be heard by a crown court judge
D charged with murder may not be granted bail unless there is no sig risk that D would commit an offence likely to cause physical or mental injury to another person
Further applications for bail (i.e. after initial bail hearing)
Court must consider bail at each hearing
D may only make one further bail app based on the same facts and submissions
D may make additional requests for bail only if there is a change of circs
Absconding and breaches of bail conditions
D breaches conditions => can be arrested without a warrant
Bail can also be withdrawn, or court can impose more stringent conditions
D fails to surrender to bail => commit a separate offence and risk their bail being revoked
First hearing before the mags (summary-only offence)
All Ds asked to provide name and DOB
D pleads guilty or not guilty
D pleads guilty => court will proceed immediately to sentence unless pre-sentence reports are required
D pleads not guilty => date for trial will be set around 6-8 weeks hence, and orders regarding disclosure will be made
First hearing before the mags (either way offence)
All Ds asked to provide name and DOB
Court proceeds to plea before venue process
First hearing before the mags (indicatable only offence)
All Ds asked to provide name and DOB
Matter sent immediately to crown court for trial
Role of defence sol at first appearance (the mags)
- Obtaining disclosure from prosecution
-Ie sufficient disclosure to be able to progress matters at first appearance
- Disclosure can be sought in advance of first appearance if a representation order is already in place
-Indictable only offence => v little is disclosed at first app as matter is sent directly to CC
-Summary only/either way => amount of disclosure available is determined by whether D was in custody prior to first app (and => produced more quickly than if he had been remanded on bail)
-Prosecution provides a summary of offence and list of D’s prev convictions if D is produced from custody
-Prosecutions must also provide an outline of the interview, witness statements, exhibits, pr victim’s impact statement if D appears on bail - Taking instructions from the client
- Professional conduct (classic re duty to court/admin of justice where duties conflict)
- Advising the client on following matters:
- Strength of evidence against D and likelihood of conviction (But NOT on actual plea (is D’s decision alone))
- Likely sentence if convicted, incl credit for an early guilty plea
-Steps needed to prepare D’s case (eg obtaining further evidence)
-Court procedure, partic on advantages and disadvantages of magistrates court vs CC
Representation order (general)
Applies unless D is privately funded
Apps are submitted to court dealing with the case
To be awarded D must satisfy:
1. Interests of justice test; and
2. Means test
Representation order (interests of justice test)
Factors =
1. Whether D is likely to lose their liberty or livelihood or suffer serious damage to their rep
-Seriousness/nature of offence and prev good character/standing = relevant
- D subject to a suspended sentence of community order could be considered as makes a custodial sentence more likely
- Whether case requires determination of a substantial q of law
- Eg involving challenging identification evidence, hearsay evidence, inferences from silence - If D is unable to understand the proceedings or state their own case
- Ie vulnerability due to age/English language level - If case may involved tracing witnesses, interviewing them, or expertly cross-examining them
- If it is in the interest of another person
- Eg cross-examination of complainant in a sexual or violent offence
Representation order (means test)
Automatically satisfied if:
-D under 18
- Or in receipt of IS, I-B JSA, state pension, I-B support allowances or benefits
Other Ds need to prove that their means are sufficiently low to qualify for legal aid
- Threshold = £3398 of annual disposable income (after all deductions and adjustments have been made)
Procedure on plea before venue
Ie the plea that takes place when D appears and is charged with an either way offence
Steps =
1. Charge is read out
2. Clerk explains that D may indicate if they would plead guilty if the matter were to proceed to trial and that, if D indicates that they would plead guilty, the court would treat that as a guilty plea and proceed to sentencing
3. Clerk asks D whether they would plead guilty or not guilty
4. D indicates guilty plea, court proceeds to sentence
5. D indicates not guilty plea or does not give indication => court proceeds to allocation
Advising D on trial venue
Advantages of magistrate’s court =
- Court’s limited sentencing powers (ie no more than 6 months imprisonment for a single offence)
- Relative speed and low cost of conducting a trial
- Less stringent disclosure requirements on the defence
Advantages of crown court
-Higher rates of acquittal
-More effective processes for challenging admissibility of evidence
-Longer delay before trial (which makes gathering evidence more practical within the time limits)
Court’s allocation of trial venue
ie court’s decision on whether to accept jurisdiction
Court must consider:
- D’s prev convictions
- Whether court’s sentencing powers are adequate, incl the adequacy of the court’s aggregate sentencing powers when more than one offence is charged, taking into account the sentencing guidelines; and
- Representations by the defence and prosecution on mode of trial and the adequacy of sentencing powers
Mags declines jurisdiction => case is sent to the crown court for trial
Allocation of trial venue (D’s choice)
Mags court accepts jurisdiction => put to D that matter can be heard it mags court and D may decide whether to consent to summary trial (ie in mags) or whether to elect trial in the CC
D will be warned that if they consent to summary trial, the case can still be committed to sentence
If D consents to summary trial => court will set a trial date
D does not consent to summary trial => matter will be sent directly to CC
Sentencing indication (ie when D deciding venue allocation)
D can ask court for an indication whether sentence will be custodial or non-custodial if they were to plead guilty and accept summary proceedings
Court not obliged to give indication
Indication given and D changes their plea to guilty => court is bound to follow this indication in sentencing
Court gives indication but D maintains not guilty plea => court is not bound to follow the indication if D is later convicted
Hybrid approach ot venue allocation (low-value theft)
Offence is treated as summary only in that the mags cannot decline jurisdiction
BUT still treated as either way in that D can still elect CC trial
Circs where sent without allocation (ie no plea before venue)
- D or co-D is charged with indictable only offence alongside either way offence
- If appearing on both charges on the same occasion, the offence must be sent to the CC
- Whereas if appearing on a separate occasion, the offence may be sent to the CC - Notice is given by the prosecution to the court that this is a serious or complex fraud case or that the case involves child witnesses whose welfare is best protected by CC trial (eg cases of child cruelty or certain sexual offences)
