Criminal slides part 2 Flashcards
Whats the rule against duplicity on indictment ?
Single count alleging multiple offences is bad for duplicity. They should be listed separately for an example D attacked two people on the same night causing each of them actual bodily harm (ABH), it would be appropriate to draft a single indictment containing two counts, one relating to each victim, because each is a separate offence.
Rule on Indictment Continuing offence.
Give an example of a continuing offence.
Where the offence is a continuous one it can be appropriate to include more than one offence in a single count. These are known as ‘rolled up’ or ‘multiple incident’ or ‘multiple offending’ counts.
Example- if the allegation is that D has been stealing money from the till over a distinct period of time, and the D simply denies taking any money at all, it could be appropriate to have one count of theft on the indictment relating to the period of time involved.
Can more than one incident of an offence be included in one count?
More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.’
What is remand into custody?
Prosecution apply for it by presenting objections to bail due to the presumption in favour of bail.
Objections vary depending on offence involved, broader objections for more serious offences.
If D is refused bail and kept in custody for a more trivial offence, then the worry is they’ll be kept in custody for longer waiting for trial – undesirable as its basically serving a sentence that they might not even be given.
What is Bail?
When prosecution object to bail, it is for the defence to apply for bail. First decision in regard to bail is made in the mags court (except murder when its only CC judge that can). D and prosecution can appeal decisions on bail from Mags.
What is conditional bail?
Can be granted subject to conditions, Defence advocates should consider what conditions might be appropriate to suggest to the court
What is the right to bail?
courts must presume that D is entitled to bail, and it is only if an objection is properly made out that bail can be refused.
The purpose of right to bail is to secure the notion that the prosecution must apply to remove bail.
Who does the right of bail not apply to?
a) those appealing their conviction or sentence
b) Or being committed for sentence from mags to crown court.
Bail can be granted, its just that the presumption doesn’t apply.
When is there no right to bail?
In the case of murder, there is no RIGHT to bail. However, you can still get bail. The defendant would have to ask for bail instead of the prosecution asking to remove it.
When is the right to bail absolute?
If a case runs over the time limits.
How many grounds does the prosecution have to object to bail on?
They can object on as many as they wish, but only one needs to succeed for bail to be denied.
If a ground for objecting to bail is satisfied, are there any alternatives?
Yes, if the court thinks that the ground can be helped by adding a condition, then D would be granted bail.
What are the grounds for bail for indictable cases?
a) Fail to attend a subsequent hearing or surrender to custody.
b) Commit further offences on bail; and/or
c) Intefere with witnesses, or otherwise obstruct the course of justice (witness intimidation/destruction of evidence).
PLUS:
No real prospects – recent addition to the law (final filter). Bail should not be removed if D is charged with an offence where there are no real prospects of D receiving a custodial sentence.
What are the grounds for bail for summary (imprisonable offences)?
only available if D has been given bail but breaches a condition of the bail. OR has a conviction for failure to surrender in their past.
GROUNDS ACTIVATED BY A TRIGGER EVENT FOR SUMMARY OFFENCES (e.g. arrested for breach of bail is trigger event).
What are the grounds for bail for summary (non imprisonable offences)?
There are none!
Other than the 3 main grounds for refusing bail, what are three other important grounds?
a) A remand in custody would be for D’s own protection
b) The court has insufficient information to deal with issue of bail, so remands in custody for a short period until they have sufficient evidence to make that decision and/or
c) D is already serving a sentence in custody
What are the factors in bail applications?
a) Nature and seriousness of the offence and likely disposal (I.e. sentence) for example, if serious offence, D is more likely to get a worse sentence so more likely to abscond.
b) Character of D – D anticedents (community ties/prev cons/ drug addiction/friends with criminal records/ease for D to abscond/ how much they have to lose).
c) D’s bail record in the past (has tendency to breach bail or commit offence on bail).
d) Strength of evidence – If D knows there’s a good chance of being acquitted, less likely to abscond.
What bail conditions are available to the court?
a) Residence at given address (live and sleep there) - to reduce risk of D absconding.
b) Curfew - prevent offences being committed on bail.
c) reporting to a local police station at given time – reduces risk of absconding.
d) Surety – offer of money made by someone to secure D’s return to court. D cannot stand as a surety for their own case. If D fails to surrender, their friend has to pay.
e) Security – D or someone else puts up money if D does not attend court. Difference is surety can only be given by 3rd party, but D can give security.
f) Restrictions on where a defendant may go on bail
g) Restrictions on who the D might have contact with
h) electric monitoring (tag).
I) Bail Hostels
J) Surrender of passport
What happens if bail conditions are breached?
May result in accused being arrested under S7(3) Bail act.
Risk of conditions being tightened or being remanded in custody.
Breaching bail isn’t an offence.
S7 provides power of arrest, allowing police to arrest those that are in breach.
D who is arrested must be brought to a mags court and they will rethink bail.
Rule on Indictment Continuing offence.
Where the offence is a continuous one it can be appropriate to include more than one offence in a single count. These are known as ‘rolled up’ or ‘multiple incident’ or ‘multiple offending’ counts.
Whats the procedure for bail?
If D has been refused bail police, they will see mags as soon as they are available.
On D’s arrival at the court, the defence advocate will first check with the prosecutor to see if they intend to object to bail.
If there is no objections, it will be stated to court.
However, if prosecution objects, they will outline objections to the court.
If there are any previous convictions, these are handed to the court.
The defence then presents its arguments for bail to be granted.
After hearing both sides submissions, the court will announce it’s decisions.
The court has to give reasons if its refused OR the conditions. The court will also fill out a form for the decison.
What is the only breach of bail that is a criminal offence?
Not surrendering to custody.
This is punishable summarily by up to 3 months imprisonment and/or unlimited fine OR indictable at 12 months and/or unlimited fine.
What is rolling up into a count?
Criminal Practice Direction (CrimPD) II, para 10A.11 provides guidance that you can ‘roll up’ a number of incidents into a single count where:
- The offences are the same;
- The victim on each occasion was the same (if there is one);
- Each offence was carried out in the same or a similar way, or each offence took place at the same location, or both;
- The incidents took place over a defined period of time (typically about a year);
- The defence to each incident is the same.
How many attempts do you get for bail?
If trial is in mags – you have two attempts to get bail AND one attempt of appeal to the CC.
In mags court, if refused, they can attempt again at next hearing and after that, D can appeal to CC or have fresh points (e.g. Surety).
In CC, thy have one attempt at first hearing in mags and further application as a right in the CC.
Whats the timeline for applying for bail?
D attends court, case listed and applies for bail.
If D is unsuccessful, where the case will return a week later, bail can be raised then.
They can make the same application again.
Once D has had both applications, D must secure a certificate of full argument from Mags before appealing if they wish to do so. This certificate is a short summary to make CC aware of what transpired in the court below. Appeals are heard 1 business day after and appeal notice is served.
D can only apply again if there is a change in circumstances.
What happens if you need a decision on bail quickly?
Defence may wish to exercise appeal right more quickly, so instead of doing second attempt in mags, they can appeal to cc But then they lose their second application in the mags court.
What does the prosecution need to do to appeal against a grant of bail?
Very unlikely that prosecution would appeal against a grant of bail. But in order to do so, there are the following conditions:
a) Prosecution must have opposed bail originally
b) Offence must be punishable by imprisonment
c) When bail was granted, the prosecution said they would appeal it
d) Intention to appeal confirmed in writing an served on court and defence within 2 hours
e) Appeal is heard within 48 hours (excl. Weekends)
f) appeal is heard by crown court judge
Whats the custody time limit for mags court?
56 days
Whats the custody time limit for crown court?
182 days (less any days spent in custody prior to being sent to the cc)
What is the custody time limit expiry?
When the trial starts:
Mags: When prosecution start giving evidence
CC: When jury is sworn.
What happens if the custody time limit expires?
If limits expire, D will be released unless prosecution applies to extend time limits but will have to show they have acted with all due diligence and expedition and that there is a good and sufficient cause for remanding them in custody.
What is first and onward remand?
For a trial in mags court, there are rules about how long a person can be remanded in custody. If D is in custody at their first hearing and their trial will be in mags, their first remand must be for no more than 8 clear days. They have to be brought back to court within 8 days so another bail application can be made, though D may choose not to make one.
To avoid wasting court time, second appearance can be made via video link. After second appearance, D must be brought back every 28 days or fewer so the court can remand them onwards to their trial.
When must a first hearing be held?
- 14 days of being charged: Where the accused is on bail, if the prosecutor anticipates a guilty plea which is likely to be sentenced in the mags court.
- 28 days of being charged: where it is anticipated that the accused will plead not guilty, or the case is likely to go to the CC for either trial or sentence.
Where is a first hearing held?
No matter what court the trial will take place in, the first hearing must be in the mags court.
What happens at the first hearing?
What happens depends on the type of offence (Summary/indictable/either way).
However, for all offences, the accused will be asked if they wish to obtain legal aid. If so, the matter will be adjourned to facilitate this.
Can a court clerk grant bail at a first hearing?
A mag can make a decision on bail or custody at an early administrative hearing. However, the justice’s clerk can only grant bail on the terms of existing police bail unless the prosecution and defence agree to a change in conditions of bail. A clerk cannot remand the accused in custody.
Does the accused have to be present at the first hearing?
The accused must be present at the first hearing. If they fail to attend, the court can issue a warrant.
Presence via video link is sufficient.
What are the exceptions to the accused being present at their first hearing?
- Plea before venue: operates where accused is legally represented, and the court considers due to the disorderly conduct of the accused it is not practicable for the proceedings to be conducted in their presence. In those circumstances, the representative can indicate the plea.
- The determination of mode of trial: where the accused is legal represented, the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in their absence and the court is satisfied that there is a good reason for the accused not being present. It’s not defined but a good example is ill health. In these circumstances, the representative can consent to summary trial or elect cc trial.
What are initial details?
Initial details are the details of the case against them. The prosecution are obliged to serve them.
If the accused was in police custody immediately before the first hearing, the initial details only need to be:
• a summary of the circumstances of the offence; and
• the accused’s criminal record.
Otherwise, initial details must include:
• a summary of the circumstances of the offence;
• any account given by the accused in interview;
• any written statements and exhibits that are available and material to plea and/or mode of trial or sentence;
• victim impact statements; and
• the accused’s criminal record.
What is a specimen count?
These are counts designed to show just one example of a defendant’s repeated conduct and have been used to avoid ‘overloading’ an indictment. These are used when multiple offending count is not appropriate, specimen counts can be used to reflect, for example, a repeated systematic course of conduct over many years.
Issues with specimen counts?
Issues arise particularly when the defence dispute the other occasions on which similar offences are alleged (this will restrict the basis on which a defendant can be sentenced, for example.) Furthermore indictment needs to be clear as the defendant has a right to know what the precisely what the case is.
What is the issues of an overloaded indictment?
overloaded’ indictment is one that is unduly long, complex or difficult for a jury to follow. Even where the rules permit the inclusion of multiple counts, multiple defendants, multiple incident counts on a single indictment, prosecutors should not add so many counts as it would be unmanageable and difficult for a jury to follow.
How to stop overloading an indictment use the example of sexual offence occurring overtime?
Case against D is that he sexually abused a single complainant over a period of 10 years and the abuse took place at least once a month, this would amount to 120 individual counts on the indictment, which would mean the indictment would be overloaded. More appropriate to list 10 multiple incident accounts to reflect one each year so long as using multiple incident counts met the guidance in CrimPD II para 10A.11.
if two unrelated offences were listed on the same indictment what would the courts do?
Crim PR r.3.29 by amending or splitting the indictment on the application of a party.if there were two wholly unrelated counts on the original indictment (such as a theft and an ABH, both offences having no connection with one another) the indictment would not be valid. The judge could therefore order separate trials. Creating two valid indictments.
Each indictment = what?
One trial per indictment.
What is an application for severance?
the defence are still entitled in appropriate circumstances to apply to the judge to remove a count or counts from the indictment or to ask for separate trials for each defendant.
How detailed should the initial details be?
Information supplied must be sufficient for accused to make an informed decision about plea and venue. Where no guilty plea is anticipated, the information should be sufficient to assist the court in identifying real issues and giving direction. The information required on PET (preparation for effective trial form) must be available where there is to be a trial.
Whats rule permits amendments of an indictment?
Section 5 of the indictment act-
-when the indictment appears defective to the court.
-unless if giving regard to the merits of the case the amendment cannot be made without injustice.
The courts will also consider when the amendment would be prejudice to D then would be refused.
Does failure to supply initial details count as a ground to dismiss a case?
No, this is not sufficient for an abuse of process application. The usual remedy would be for the court to adjourn a first hearing and award costs to the defence for the prosecutions failure.
When is severance appropriate?
Lord Pearson- ‘judge has no duty to direct a separate trial unless it has some special feature where it would be prejudicial or embarrassing. If separate trials required for the interest of justice.’
Important to note there is a presumption in favour of a joint trial unless the risk of prejudice is particularly great.
What happens in a first hearing for summary/either way trials?
Defendant will be asked to enter or indicate their plea to a charge.
If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. In most cases the CPS will be aware when a not guilty plea is likely and the file that comes to court will have a partially completed case progression form included amongst the prosecution papers.
If D is silent or ambiguous with his plea what does this mean?
NOT GUILTY PLEA
What happens if D pleads guilty?
If D pleads guilty to some but not all and the prosecution are not willing to accept those pleas, sentencing for counts that D has pleaded guilty to will take place after the trail for the not guilty count.
Who complies with directions for the prosecution and defence?
Each party will nominated a person who is responsible for tis.
What is a pre-trial hearing for summary only offences?
Covers admissibility of evidence and fitness to plead. A pre-trial ruling is binding until the case is disposed by:
-Conviction or acquittal of the accused
-A prosecution decision not to proceed OR
-The dismissal of the case.
The court can discharge of vary the pre-trial ruling if it’s in the interests of justice. A party can apply for the ruling to be varied, only if there has been a material change of circumstances.
Whats rule permits amendments of an indictment?
Section 5 of the indictment act-
- when the indictment appears defective to the court.
- unless if giving regard to the merits of the case the amendment cannot be made without injustice.
