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)
Case management forms and directions in the mags
Case management forms incl the following:
- Details of witnesses to be called
- Details of agreed prosecution witnesses
- Estimated length if trial
- Any likely applications to the court
- Any special arrangements (eg interpreter)
- Confirmation that D has been advised on credit for early guilty plea and that the trial will proceed in their absence if they fail to attend
Case management directions: Standard directions =
- Prosecution must serve its evidence within 28 days
- Defence must serve a defence statement (if it is to be served) within 14 days and notify which prosecution witnesses are requires to attend within 7 days
Preliminary hearings in the CC
Indictable only matter => preliminary hearing will take place within 14 days of being sent if:
- Trial is likely to last more than 4 weeks
- There are case management problems to address
- An early trial date is needed
- One of Ds is under 18
- There is likely to be an early guilty plea
Plea and trial preparation hearings in the CC
Takes place 28 days after the case was sent from the mags court
D will be arraigned (ie plea will be taken on the indictment)
Prosecution agrees to ‘offer no evidence’ on some counts if D pleads guilty to others, or if ‘lets some counts lie on the court file’ => count will not be pursued in exchange for D’s guilty plea to other counts
Guilty plea
- D pleads guilty => court will proceed to sentencing
- D may ask for goodyear indication (ie indication of sentence)
- Judge indicates and D then pleads guilty – judge will be bound by their indication
Not guilty plea => judge will set a trial date after requiring counsel to advise on:
- the facts of the case
- number of witnesses
- their availability
- whether special measures will be needed
- whether any issues arising from the defence case statement
- Evidential issues incl the adequacy of prosecution evidence, expert evidence, hearsay and bad character
- Any other matters of law
Prosecution’s duty of disclosure in the CC
Ordinarily has 50 days (or 70 if D on bail) to complete disclosure
Disclose all evidence upon which it intends to rely at trial
Disclose any unused material which might reasonably be considered capable of undermining the case for the prosecution (or assisting the case for the defence)
Duty is ongoing
Prosecution seeks to withhold disclosure of sensitive material (eg re national security) => an app must be made to te court in chambers to withhold the material on the grounds of public interest immunity
Defence’s duty of disclosure in the CC
Have 28 days to serve a defence case statement on prosecution and court (after prosecution has made disclosure)
Statements must set out the nature of the defence incl:
- what facts of the prosecution are disputed
- what alternative facts defence alleges
-what points of law the defence wishes to raise
-and details of any alibi witnesses (if relevant)
D fails to serve an adequate case statement on time that reflects defence put forward at trial => adverse inference may be drawn
Defence case statement is deemed to be approved by D
Admitting/excluding identification evidence (turnbull guidelines)
Identification evidence disputed => Turnbull guidelines followed (factors to determine the strength of the identification evidence)
Prompt = ADVOKATE ie:
- Amount of time the witness observed the suspect
- Distance between the witness and the suspect
- Visibility at the time fo the observation
- Obstruction between witness and suspect
- Known or unknown to the witness
- Any reason to remember the suspect
- Time lapse between the incident and the identification procedure
- Errors in the witness’s first description of D’s appearance
Admitting/excluding identification evidence (procedure once decided)
Judge concludes identification is weak and there is no supporting evidence => should withdraw the case from the jury and direct acquittal
Judge concludes identification evidence is strong enough that a conviction would be supported (or corroborating evidence to support a weak identification) the judge will leave the case to the jury to decide
Case goes to trial => D may try to undermine evidence using factors in ADVOKATE
At end of trial judge must sum up using Turnball warning on identification evidence, ie:
- Warn of the special need for caution before convicting D in reliance on identification evidence, explaining that a mistaken witness can be convincing and that several witnesses can be mistaken
- Ask the jury to consider the circs in which the witness identified D; and
- Refer to the particular weaknesses with the identification evidence, considering the factors set out in ADVOKATE
When silence can amount to an adverse inference
- Fact upon charge
- Failure to mention fact when questioned or charged which D could reasoning be expected to mention
- Legal advice to remain silent will not necessarily preclude inference
- Triggered by putting forward explanation at trial - Failure to give evidence at trial
- Unless D’s physical or mental condition makes it undesirable for them to give evidence - Failure to account for object, substance or mark found on D’s clothing, person, or footwear in their possession at the time of arrest
- Failure to account for presence at scene of suspected offence
Admissibility of hearsay evidence (general)
Ie evidence as to something someone else told them out of court
Deemed less reliable as truth of the content cannot be tested by cross-examination
Admissible only if:
- Admissible under statute
- Admissible by rule of law
- Admissible by agreement of all parties
- Admissible in the interests of justice
Admissibility of hearsay evidence (under statute)
Applies when:
1. Witness is unavailable
- Ie they are: dead, unfit owing to bodily/mental condition, outside the UK and not reasonably practicable to secure their attendance, unable to be found despite reasonably practicable steps having been taken to find them
- Business document may be adduced if:
- Doc was created or received in the course of trade, business, profession, or other occupation;
- Person who supplied the information may reasonably be supposed to have had personal knowledge of the matter; and
- (if the information was received by other persons) it was done in the course of trade, business, profession, or other occupation - Statements were prepared for use on criminal proceedings and the relevant person cannot be expected to recollect the matter
- There are previous consistent or inconsistent statements of a witness
- Expert evidence is adduced
- There is a confession
Admissibility of hearsay evidence (by rule of law)
- Confessions or mixed statements by D
- Statements made contemporaneously to the offence; and
- Statements preserved by res gestae (ie the circs) which incl:
- Statements made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
- Statements accompanying an act which can only be properly evaluated in conjunction with the statement; and
- Statements relating to a physical or mental state
Admissibility of hearsay evidence (in the interests of justice)
Gives court discretion to adduce evidence that might otherwise not be admissible
In deciding, court will consider:
- Probative value of the statement to a matter in issue
- What other evidence could be given
- How important the evidence is in relation to the case as a whole
- Circs in which the statement was made
- How reliable the maker of the statement appears
- How reliable the evidence of the making of the statement appears
- Whether oral evidence of the matter stated can be given
- Amount of difficulty in challenging the statemet
- Extent of liekly prejudice caused
Admissibility of hearsay evidence (multiple hearsay evidence)
Ie relayed through more than one person before it gets to court => Rules stricter
Admissible only if:
- It is a business document
- It is an inconsistent statement
- It is a consistent statement
- All parties agree; or
- Value of evidence is so high that it is in the interests of justice
Admissibility of confessions
= any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority and whether made in words or otherwise
Admissible if they are relevant to a matter in issue
Defence can challenge admissibility either on basis of mistake (listener misheard) or on the basis of untruth
Burden of proof
On prosecution to show oppression or unreliability do not render confession unreliable
Prosecution fails to discharge burden => confession must be excluded
Challenging admissibility of confession (based on untruth)
Incl confessions obtained by oppressions or by things said or done likely to render the confession unreliable
But defence must show causal link between thing said or done/oppression and the confession made
Confession made independently => will not be excluded
Burden of proof in considering admissibility of confession
On prosecution to show beyond reasonable doubt that oppression or things said or done do not render confession unreliable
Prosecution fails to discharge burden => confession must be excluded
Process for deciding admissibility of confessions (Mags)
Bench decides matters of both fact and law
Bench rules confession is inadmissible => must put confession from their mind and decide the case without it
Process for deciding admissibility of confessions (crown court)
Decided by judge in absence of a jury (as it is a matter of law rather than fact)
Hearing = voir dire
Jury will not know nature of the matter being discussed and will not be informed of the outcome
Exclusion fo evidence for unfairness
Court has discretion to exclude evidence offered by the prosecution if it appears to the court, considering all the circs, that admission of the evidence would have an adverse effect on the fairness of the proceeding
Different from above as is discretion, not mandatory
Often used if police have breached their duties under PACE in obtaining evidence
Court will not usually exercise discretion unless breaches are sig and substantial and have rendered the evidence unreliable
May incl:
- Illegal searches
- Identification evidence
- Confessions
- Covert surveillance
- Undercover operations
Gateways to admission of bad character evidence
ie Ie 7 grounds for admitting bad character evidence
- All party agreement
- Evidence adduced by D (or given by D in response to cross-examination)
- Needed to properly understand other evidence
- Relevant to an important matter in issue between P and D (ie propensity to commit the offence or propensity to be untruthful)
- Matter in issue between co-defendants
- Correct false impression given by D
- D attacked another’s character
Gateways to admission of bad character evidence (important explanatory evidence)
Admissible under this heading if:
Without it, the jury would find it difficult or impossible to properly understand other evidence in the case; and
Its value for understanding the case as a whole is substantial
Gateways to admission of bad character evidence (relevant to imp matter in issue between P and D)
Similar offence – incl all offences of the same kind
Proof needed to show propensity
- No min number of events
- Unless the offence has unusual or distinctive features in common with the prev conviction, propensity is unlikely to be made out on the basis of a single conviction
Propensity for untruthfulness as a ground
- Has been restricted to offences only if untruthfulness forms part of the offence
- Unlikely to be used to simply adduce evidence of dishonesty offences, unless it relates directly to the type of offence charged in the instant case
Gateways to admission of bad character evidence (substantive probative value between co-Ds)
May apply where co-Ds are running a cutthroat defence ie blaming each other for the commission of the offence
D may seek to show that co-D has a history of committing similar offences to the one charged and is => more likely to be the perpetrator
Test for admissibility = substantial probative value (not relevance)
Gateways to admission of bad character evidence (correct false impression given by D)
Incl evidence given in court by D or before court proceedings under caution and evidence given by witnesses or elicited by questioning the defence
Gateways to admission of bad character evidence (D has attacked another’s character)
Ie in intending to elicit such evidence, D’s own bas character evidence becomes admissible
Attack need not take place during D’s evidence at trial (can take place when questioned under caution or upon charge)
Also if D’s counsel pursued line of questioning intending to elicit such evidence
Attack covers wide variety of allegations, incl suggesting that a witness is biased, raising their prev convictions, or accusing the police of misconduct
Procedure for admitting bad character evidence
Must provide notice in a set form and served within 20 business days of entry of a not guilty plea in the mags or 10 business days of not guilty plea in CC
D wishes to oppose => notice to oppose must also be served in set form
App may be decided at a pre-trial hearing or on the day of trial in absence of the jury
Court’s power to exclude D’s bad character evidence
Any of 7 gateways made out => evidence is admissible
Evidence is sought to be adduced under the gateways of an ‘imp matter in issue between the prosecution and defence’ or ‘the D attacked another’s character’ => court must not admit it if defence makes an app to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it
Court must have regard to amount of time that has elapsed between the matters that constitute bad character evidence and the offence charged (similar to s78 PACE but this provision is more strongly worded)
Under s78, court may refuse to allow evidence if its admission would have such an adverse effect on the fairness of the proceedings, whereas for these gateways the court must not admit the evidence
Admission of good character evidence
Eg evidenced by lack of criminal record or other noteworthy, commendable behaviour
D has no prev convictions => entitled to have judge give a good character direction to the jury
Two parts:
1. Propensity direction (person of good character less likely to have committed this offence)
2. Credibility direction (person of good character more likely to be credible when they assert their innocence either before or during trial)
Entitlement to good character direction
If D has prev convictions that are old, minor, and not related to current charged, D will be considered of effective good character and may still receive a propensity and credibility direction
If D has no prev convictions but there is other bad character evidence upon which the prosecution relies, good character direction will probably not be available
If D has no prev convictions but there is bad character evidence which the prosecution does not seek to rely on, the judge has a discretion to give a good character direction
Questioning allowed in Examination in Chief/cross examination
EiC Ie witness first questioned by party that called them
- witness can only be asked non-leadings qs (ie do not suggest an answer)
XE - Advocate’s role is to cast doubt on evidence given in chief and put their client’s account to the witness
=> can ask leadings questions
Competence v compellability in giving evidence
Competence = W is allowed to give evidence in court
- W not competent if appears to court they are unable to:
1. Understand questions put to them as a witness; and
2. Give answers to the court which can be understood
Subject to above all Ws (other than D and D’s spouse) are competent
All competent witnesses are compellable
Compellability = W can be forced to give evidence
Comptency/compellability of the Defendant
For prosecution - Neither competent nor compellable
For defence - competent but not compellable
BUT Jury/bench/judge may draw and adverse inference if D does not give evidence
Direction for judge in summing up states:
- D is entitled not to give evidence
- Jury may draw such inferences as appear proper
- Failure to give evidence on its own cannot prove guilt, but depending on the cicrs, the jury may hold this failure against the D; and
- If jury thinks the only sensible explanation for the decision not to give evidence is that the D has no answer for the case against them (or none that could have stood up to XE) then it would be open to the jury to hold the failure to give evidence against D
Competence/compellability of D’s partner/spouse
Prosecution/co-D => they are competent but not compellable (unless the offence involved assault, injury, or threat of injury to them or a child under 16; a sexual offence on a child under 16; or attempting/conspiring/aiding/abetting those crimes)
Defence => they are competent and compellable (unless they are jointly charged)
Competence/compellability of co-defendant
Prosecution => neither competent or compellable
Defence => competent but not compellable
BUT if co-D pleads guilty or case against them is dropped => competent and compellable for either party
Special measures at trial
Ie to assist vulnerable W to give evidence
Incl following Ws:
- Under 18
- With a disability or disorder likely to affect evidence
- Affected by fear of giving evidence
- Complainants in sexual offences; or
- Witnesses to specified gun and knife crimes
Poss special measures incl:
- Placing screen between W and D
- Allowing W to testify through a video link
- Allowing W to give evidence in private
- Allowing W to pre-record testimony
- Using an intermediary to obtain info from W
- Asking court officers to remove wigs and gowns
Submission of no case to answer
Ie defence can say prosecution had not presented enough evidence to amount to a prima facie case
Ie if prosecution has either failed to adduce evidence of one or more elements of the offence or if the evidence given is so unreliable that no reasonable bench, jury, judge could convict
Application heard by judge in absence of the jury
Successful => D is acquitted
Unsuccessful => defence will proceed to advance their case
Modes of address in MC/CC
Mags
- Ind mags = Sir/Madan
- Bench = your worships
- DJ = Judge
Crown court
- Judge = your honour when addressed, or his/her honour judge [surname] when referred to in 3rd person
Role of sentencing guidelines
Offer a starting point for an offence and list aggravating and mitigating factors, which may increase or lower the sentence
Courts obliged to follow the guidelines unless it is against the interest of justice to do so
Aggravating factors that must be taken into account on sentencing
- Relevant previous convictions
- that offence was committed whilst D was on bail
- that offence was motivated by racial or religious hostility
- that offence was motivated by V’s sexual orientation, transgender identity, or disability
Aggravating factors that court has discretion to take into account in sentencing
- Offence premeditated
- Offence committed in a group
- Targeting vulnerable victim
- Offence committed under influence of drugs/alcohol
- Abuse of position of trust
- Use of weapon
- Gratuitous violence or damage to property
- Victim providing a service to the public
- High value or sentimental nature of property
Concurrent + consecutive sentences
Totality principle must be taken into account – ie overall sentence must not be disproportionate to the overall seriousness of the offending behaviour
Offences arise out of same matter and are connected and D is found guilty of more than one of the offences => sentences will generally be concurrent (ie served at the same time)
If D is found guilty of multiple offences that did not arise out of the same conduct, consecutive sentences more likely (ie served after each other)
Mitigating factors the court has discretion to take into account in sentencing
- Offence committed on impulse
- D subject to high degree of provocation/acted out of fear
- D has a disability or mental illness
- D is very young or old
- D played a minor role in crime
- D has attempted to make reparation with the victim
Credit for guilty plea (re sentencing)
Before trial => entitled to a reduction in the sentence that would otherwise be imposed
Earlier plea entered => greater reduction in sentence
Pleads guilty at first opp => 1/3 reduction in sentence
Type of sentences (mags court)
Mags court restricted in sentencing powers
Can impose max 6 months imprisonment for a single or multiple summary offence or a single either way offence
Can impose max 12-month sentence for two or more either way offence
Custodial sentences
Imposed only when the custody threshold has been passed
Threshold states that no offender should be sentenced to a custodial sentence unless the offence is so serious that neither a fine nor a community order can be justified
Threshold passed => court will use relevant sentencing guidelines to determine appropriate length of sentence
- Sentence must be shortest term that is commensurate with the seriousness of the offence
- Offender will generally spend half sentence in custody and remaining half on licence
- Offender breaches any term of licence/commits further offence during licence, they would automatically be returned to custody to complete the remainder of their sentence
Suspended sentence
Custody threshold passed => court has option to impose suspended sentence in place of immediate custodial sentence
Ie not placed in custody but will be liable to serve sentence in custody if they break any conditions of the suspension or if they commit any further offences whilst subject to the suspended sentence
CC can suspend a 2 year sentence, and mags can suspend a 6 months sentence
Max period of suspension is 2 years
Court is able to impose additional requirements (eg community order) as part of the suspended sentence
What happens if suspended sentence breached
(or commits a further offence while subject to a suspended sentence)
- Activate the custodial term imposed
- Activate a reduced term to reflect the period of compliance with the suspended sentence
- Amend the requirements of the sentence to be more onerous
- Extend the period of suspension originally imposed
Fines as punishment
CC and mags able to impose a fine (either as sole sentence or in combination with any other sentence, save a discharge)
Community order
Probation service will frequently provide a pre-sentence report if a community order is considered
Probation service will advise on the suitability of any order and particular requirements
Community order may incl:
- Unpaid work requirement
- Rehabilitation activity requirement
- Programme requirement, eg sex offenders or drink driving programme
- Curfew
- Exclusion from a particular area
- Residence requirement
- Mental health treatment requirement; and
- Drug rehabilitation or alcohol treatment requirement
Offender breaches community order => can be subject to breach proceedings, can result in the order being amended and more onerous terms imposed/or order being revoked and offender being sentences to immediate custody
Discharge (re sentencing)
Court does not feel any other sentence is merited => court can opt to impose a discharge
Absolute discharge = no punishment whatsoever, except for the recording o the offence on the record
Conditional discharge => D must not offend again for specified period (up to 3 years) or they will face being resentenced for the original offence
Victim surcharge (re sentencing)
Must be levied when D is sentenced
Compulsory and in addition to any sentence
Amount charged will depend on type of sentence imposed
Surcharge does not go to the victim but is pooled and distributed by a fund
Newton hearing
ie D may wish to plead guilty but not accept full facts as set out by the prosecution
=> D may offer a basis of plea to the prosecution
Prosecution accepts that the basis reflects the seriousness of the offending => D can be sentenced on the agreed basis
P does not accept D’s basis of plea => newton hearing held to settle disputed facts
Hearing takes form of a trial in which witnesses are called to give evidence
Hearing settled in P’s favour => D will lose any credit for the guilty plea
Hearing settled in D’s favour => D will retain any credit for guilty plea
Appeal from Mags to Crown Court (who can appeal)
D has right to appeal
D pled guilty => may only appeal against sentence
P has no right of appeal
Appeal from Mags to Crown Court (procedure)
D must lodge written notice of appeal with convicting/sentencing court within 21 days
No requirement to set out the basis of appeal as court has no power to decline jurisdiction (but usual practice to set out grounds)
Appeal from Mags to Crown Court (subsequent proceedings in the CC)
Matter heard by CC judge supported by at least 2 (max 4) mags
Constitutes a complete rehearing (ie new evidence can be called)
CC has power to increase as well as reduce the sentences imposed, but are restricted to sentencing powers of the MC
Court can also impose a costs order on D should appeal be unsuccessful
Appeal from Mags court to High Court (Div Court)
By way of case stated ie that decision is wrong in law or in excess of jurisdiction
Both P and D may appeal
Application must be made in writing within 21 days of decision in MC and must include the point of law subject to the appeal
Appeal heard by 3 judges, and only legal arguments will be made (ie no rehearing of evidence)
Appeals from Crown Court to CoA (D’s options - general)
D can appeal against both conviction and sentence to the CoA
D must obtain leave (permission)
Granted either by trial judge or CoA itself
D seeks leave from CoA => must lodge a notice for application of leave to appeal within 28 days of the decision with the convicting/sentencing court
CC will send appeal to CoA where single judge will decide whether leave to appeal should be granted
Refused => D can renew the application to the full court
Appeals from Crown Court to CoA (D - appeal against conviction)
D can appeal only on ground it is ‘unsafe’ (eg if evidence wrongly excluded/admitted, conduct of trial demonstrated obvious bias, problems w jury etc)
When hearing appeal the CoA can quash the conviction and order either acquittal or retrial, find D guilty of some offences but not others, find D guilty or alternative offences, or dismiss the appeal
Appeals from Crown Court to CoA (D - appeal against sentence)
Can be made on basis that the sentence was wrong in law, wrong in principle, or manifestly excessive
CoA can quash any sentence imposed by the CC and impose and sentence it deems appropriate
BUT cannot exceed sentence imposed by the CC
Any new sentence imposed will be deemed to have been imposed at the original sentencing date (ie any further time spent in custody pending appeal will be taken into consideration)
Appeals from Crown Court to CoA (P’s options)
Cannot appeal a decision by jury to acquit D, but can appeal rulings made by judge during the course of the trial (eg re exclusion of evidence)
AG may also refer a case to the CoA if they feel a sentence passed was unduly lenient and permission is granted by the CoA itself
Appeals to the SC
Decision by CoA can be appeal by D or P only if:
- CoA or SC grant leave to appeal; and
- CoA certifies that a point of law of general public importance is involved
How is the youth court conducted differently
= part of MC and deals with 10-17 yos
Proceedings conducted in closed courtroom where public are excluded
Press permitted to attend but subject to reporting restrictions that prevent publication of details likely to lead to identification of D
Proceedings conducted in less formal manner (+ formalities of address largely dispensed with + increased emphasis on using plan English)
Jurisdiction of youth court
Youth turns 18 during proceedings => youth court may elect to retain case for trial or remit case to adult MC
In either event, court will have full range of sentencing options available in the adult court upon conviction
Youth court or crown court?
Certain crimes must be sent to the CC:
- Murder/attempted murder/manslaughter
- Certain firearm offences
- Specified violent, sexual, or terrorism offences where the youth is considered dangerous
‘Grave crimes’ in the youth court
= an offence punishable in the adult court by a sentence of 14+ years (eg robbery/rape/specified firearms)
Youth appears charged of grave crime => youth court considers adequacy of its sentencing powers in determining whether to accept jurisdiction
Youth court should send cases to CC only if it fells its maximum sentence is insufficient and that a sentence of long term detention would be more appropriate
Court must conclude that there is a real prospect of a custodial sentence of substantially more than 2 years to decline jurisdiction
What happens when youths are jointly charged with adults
Adult sent to CC => youth also sent to CC
Adult sent to MG => youth tried alongside adult in MC
Purpose of sentencing in the youth court
= prevent reoffending
Court should give primary focus to offender above the offence committed
Emphasis on rehabilitation, on avoiding criminalising youths unnecessarily, and on getting young offenders to take responsibility for their actions
Referral orders in the youth court
Ie referral to youth offender panel
Panel = member of youth offending team and 2 community reps
Panel will meet with youth and their family and agree a contract (3-12 months in length) aiming to address the youth’s offending, their issues, and make restitution to the victim
May be made if D pleads guilty to some but not all offences, or if D prev receives referral order
Cannot be made if D pleads not guilty to all offences but is convicted after trial
Youth commits further offences whilst subject to referral order (or if terms of order are breached) => court has discretion on whether to permit order to continue or revoke order and resentence
Youth rehabilitation order
Can last up to 3 years
Can incl variety of conditions incl supervision (attending appts with the probation service), unpaid work (up to 240 over max 12 months), activities (making restitution to victim or addressing offending behaviour), programmes (eg anger management), curfew, exclusion from specified area, and residence requirements
Detention and training order (in youth court)
= custodial sentence available in YC
ie First half of sentence spent in custody, and second half spent under supervision of the youth offending team
Depends on age:
- D aged 10-11 => detention and training order not available
- D aged 12-14 => order available only for persistent young offenders (ie D who has been sentenced on 3 occasions for an offence punishable by imprisonment)
- D aged 15-17 => order can be imposed on any offender as long as the court is of the opinion that the case is so serious that only a custodial sentence is justified
Can be imposed for period of 4, 6, 8, 10, 12, 18 or 24 months
