Criminal slides part 2 complete Flashcards
What are the three ways someone can be “arrested”?
- Arrest
- Written charge & requisition
- Laying an information
What is a written charge & requisition?
Alternative to arrest. A person can be made to appear before the court by the process known as written charge and requisition. Where the relevant prosecution body has the power to compel the person to attend court and enter a plea for an offence. This is now used increasingly for common offences e.g. speeding/not having a bus ticket. Private individuals can bring prosecutions however, the CPS can take over from them and discontinue proceedings.
What is laying an information?
Another way to commence proceedings is for the prosecutor to serve an information alleging an offence on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.
How do you apply for legal aid?
- Fill in a form.
- Give details such as income and expenses.
- Give evidence on finances.
- A designated official at the mags court will consider applications and the official two stage test is based on whether it is in the interest of justice and considering the defendant’s needs. Both parts must be satisfied for public funding to be granted.
Can you make an oral application for legal aid?
You can only make a direct oral application to the lay mags where legal aid has been refused by the designated official. Or an application can be made to the crown court judge where a person is charged with a contempt of court. Where a person is in breach of a court order and there is no time to instruct a solicitor or if the defendant is brought to court on a warrant. This allows the court to appoint council to represent an individual immediately.
What is the overriding objective?
Dealing with a criminal case justly includes:
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account:
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.
What does the overriding objective say is the duties of the participants of the case?
Each participant, in the conduct of each case, must:
a) prepare and conduct the case in accordance with the overriding objective;
b) comply with these Rules, practice directions and directions made by the court; and
c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
In what ways can parties and the court comply with the overriding objective with case management?
- Presenting evidence in the shortest and clearest way
- Avoid unnecessary hearings (trial may go ahead in D’s absence.)
- Court gives standard directions.
When must the prosecution serve its evidence, comply with their initial duty of diclosure and give notice of intention to deduce bad character/hearsay?
Within 28 days of a not guilty plea.
When must the defendant serve a defence statement and notify that they will have witnesses attending the trial?
Within 14 days.
When does the defence need to indicate that they will oppose bad character applications?
Within 7 days
When does the defence need to give notice that they will apply to use bad character/hearsay?
Within 14 days
Are skeletons used in criminal law?
Yes, skeleton arguments must outline points of law and authorities, and must be served at least 21 days before trial.
What is a certificate of readiness?
Both parties must serve a certificate of readiness to say they are happy for the trial to begin. This must be served 7 days before trial.
What sanctions are available to the court if the parties don’t follow standard directions?
If a party fails to comply with any rule or a direction, the court may:
• fix, postpone, bring forward, extend, cancel or adjourn a hearing;
• exercise its powers to make a costs order; and
• impose such other sanction as may be appropriate.
There may be further consequences:
-The court may refuse to allow that party to introduce evidence
-Evidence that the party wants to introduce may not be admissible
-Court may draw adverse inference from late evidence/issue
What summary offences do we need to know?
Common assault Criminal damages (£5,000 or less)
What indictable offences do we need to know?
Robbery
Rape
GBH with intent (S18)
What either way offences do we need to know?
Theft burglary fraud sexual assault ABH GBH (S20) Possession of Class a or b drugs Possession with intent to to supply (Class a & b) Criminal damage (Over £5000)
How do you calculate the cost for criminal damage?
Where there are multiple offences, the court must consider whether they form part of a series of offences. If so, the court can aggregate the value of the damage in deciding which side of the £5000 figure the damage falls. The value of the damage is the cost of replacement where the property was destroyed. But if its damaged, it’s just the cost of repair or replacement, what ever is less.
When determining the value of the damage, the court must hear representations from the parties. There is no requirement to hear evidence on value but can do so. The representations the parties may include production of documents such as invoices or estimates for repair or replacement.
Where is criminal damage held if the value is uncertain?
D is asked if they consent to be tried summarily. If so, that will take place and the max sentence will be limited to 3 months or Level 4 fine. If not consented, will be treated as an either way and higher sentencing powers will apply on conviction.
Low Value Shoplifting (less than £200)
Summary only HOWEVER Shoplifting (as this not deemed as an offence in any event and is classed as theft) = theft so treat as either way if value more than 200 pounds.
Whats the mags sentencing powers for one or more summary only offence?
Maximum 6 months imprisonment
Whats the mags sentencing powers for one either way offence?
Maximum 6 months imprisonment
Whats the mags two or more either way offences?
Maximum 12 months imprisonment
What are facts in issue?
the facts that any party needs to prove in order to prove its case. For example; an offence of theft, the prosecution has to prove that the defendant appropriated property belonging to another dishonestly with an intention of permanently depriving another of it.
How can evidence be established?
- Agreeing a witness statement is true by consent of the parties (its then just read out and carries the same weight as if a witness gave evidence in person - Evidence is only agreed in this way if there is not challenge to the evidence. If disputed then they must call and challenge orally).
- Agreeing any fact between the parties (if someone was found with a credit card, P needs to prove no one had authority to do so. This can be done simply by getting a witness statement from owner of card).
- Judicial notice – when facts may be proven without evidence. Its for a judge/jury to acknowledge that its fact. We know somethings without having them proved to us. E.g. the sky is blue. There’s a pandemic etc.
What is the standard of proof?
Sure/Beyond reasonable doubt
Who has the burden of proof (in general)?
The prosecution
What is the evidential burden?
Burden to raise some evidence to satisfy the. judge that the matter should be argued before the jury.
When is a Newton hearing needed?
When D says they are guilty but challenging the facts… newton hearing may be required. However, this wont be needed if the prosecution are willing to accept the defence’s facts. The courts will see if this is acceptable also.
What is a basis of plea?
The facts on which they plead guilty are different to the facts the prosecution allege.
What can the prosecution do when they are presented with a basis of plea?
a) Accept the basis of plea as being correct. If so, the prosecutor should sign the document before it is handed up to the court.
b) Reject the basis of plea as being inconsistent with the evidence. If so, the prosecutor should refuse to sign the document.
c) Adopt the position that they are unable to agree or reject the basis as it contains matters outside of the prosecution’s knowledge.
Is a basis for plea an opportunity for the defendant to engage in early mitigation?
No, mitigation comes later. A basis of plea is designed to reduce to writing the defendants factual basis for pleading guilty.
Can a basis for plea assert that the d is only guilty to some parts of the offence?
No, it must be an admission to the whole offence. If they plead not guilty to some parts, then the correct plea is not guilty.
What questions does the court have to answer when considering a basis for plea?
1) Is it absurd? They can reject if it is and make no further enquiries and proceed to sentence defendant on prosecutions facts. If not absurd, they will move on to next question…
2) Whether it will make a material difference to sentence if the court sentences on the defendants version rather than the prosecution version. If it will not then the court must sentence on the defence version of facts. If it makes a material difference, then a newton hearing will be held.
What happens in a Newton hearing in the mags?
Its pretty much a normal hearing.
What happens in a Newton hearing in the CC?
it takes place without a jury. As there is no trial phase to this process, the prosecution will make an opening speech, call evidence as usual and maybe cross examined by defence. The defendant is able to give evidence and call witnesses if they wish to do so. Both parties can address the judge in the closing speech.
