Media Law: 3 Criminal courts & procedure Flashcards
indictable offences
[3]
- most serious
- only in Crown Court
- jury
either way offences
[3]
- either magistrates or Crown Court
- defendant can insist on a Crown Court trial
- otherwise magistrates decide if they have enough sentencing power
summary offences
[2]
- only magistrates court
- DO NOT see as trivial (inc. assaulting police officer and drink driving)
start of criminal proceedings
[3]
- ALL start in magistrates
- one or two hearings before trial starts
- 95% stay in magistrates
magistrates sentencing power
[3]
- max. 6 months’ prison sentence
- 12 for multiple offences
- can refer more severe sentences to Crown Court
legal advisor to magistrates
[2]
- clerk to the justices
- no say on sentence
youth courts
[2]
- try under 18s
- branch of magistrates court
percentage/number cases tried by jury
[2]
- 1%
- 30,000 cases per year
role of jury
[1]
- decide whether innocent or guilty
criteria for jurors
[3]
- 12 people from electoral register
- 18-70
- over 65s can opt out
historical exemptions
[1]
- professions (e.g. lawyers, doctors, judges)
- abolished by Criminal Justice Act 2003
referring to Crown Court
[3]
- technically only ONE Crown Court, but can sit in multiple places simultaneously
- should be “the Crown Court”
- but common to refer to “[Cambridge] Crown Court” rather than “the Crown Court sitting at Cambridge”
referring to Crown Court
[3]
- technically only ONE Crown Court, but can sit in multiple places simultaneously
- should be “the Crown Court”
- but common to refer to “[Cambridge] Crown Court” rather than “the Crown Court sitting at Cambridge”
either way offences
[3]
- either magistrates or Crown Court
- defendant can insist on a Crown Court trial
- otherwise magistrates decide if they have enough sentencing power
summary offences
[2]
- only magistrates court
- DO NOT see as trivial (inc. assaulting police officer and drink driving)
start of criminal proceedings
[3]
- ALL start in magistrates
- one or two hearings before trial starts
- 95% stay in magistrates
magistrates sentencing power
[3]
- max. 6 months’ prison sentence
- 12 for multiple offences
- can refer more severe sentences to Crown Court
legal advisor to magistrates
[2]
- clerk to the justices
- no say on sentence
youth courts
[2]
- try under 18s
- branch of magistrates court
percentage/number cases tried by jury
[2]
- 1%
- 30,000 cases per year
role of jury
[1]
- decide whether innocent or guilty
criteria for jurors
[3]
- 12 people from electoral register
- 18-70
- over 65s can opt out
people NOT allowed on juries
[4]
- on bail
- ever sentenced to 5 years in prison
- received prison sentence, suspended sentence, community order or probation order in last 10 years
- mental health problems requiring hospitalisation or regular treatment
historical exemptions
[2]
- professions (e.g. lawyers, doctors, judges)
- abolished by Criminal Justice Act 2003
referring to Crown Court
[3]
- technically only ONE Crown Court, but can sit in multiple places simultaneously
- should be “the Crown Court”
- but common to refer to “[Cambridge] Crown Court” rather than “the Crown Court sitting at Cambridge”
non-police bodies that investigate crime
[2]
- Health and Safety Executive (HSE)
- Serious Fraud Office (SFO)
acts governing police procedure
[3]
- Police and Criminal Evidence Act 1984 (PACE)
- Criminal Justice and Public Order Act 1994
- Serious Organised Crime and Police Act 2005
point at which criminal proceedings start
[2]
- arrest is made
- police lay an information
laying an information
[3]
- document outlining particulars of offence sent by police to magistrates
- magistrates can issue arrest warrant or summons
- must be laid within 6 months of summary offence for magistrates to be able to try it
summons
[2]
- tells defendant what they are accused of
- when they must attend court
pre-arrest powers
[4]
- do not have to answer questions from police
- cannot be detained unless lawfully arrested
- fine line between not answering questions and obstruction
- someone voluntarily attending police station can leave whenever (‘detained for questioning’ has no legal meaning)
factors for public interest
[4]
- in Code of Practice for Crown Prosecutors
- likely to result in significant sentence
- offence against someone serving the public (e.g. police)
- minor offence that happens very frequently in local area
right during police questioning
[1]
- being told what you’re accused of
time limits on detention
[4]
- 36 hours (then must release or charge)
- indictable offence: can add 12 hours if necessary (48)
- apply to magistrates for more (up to 96 hours)
- terrorism charges: 28 days
end of questioning
[2]
- when charged
- just PACE guidelines, but could mean evidence not usable in court
released and not charged
[2]
- civil case of false / wrongful arrest
- tests whether grounds for arrest unreasonable
DEF: arrest warrant guaranteeing suspect released on bail
[1]
- ‘backed for bail’
reasons not to grant bail
[6]
- suspect will abscond, commit further offences, interfere with witnesses, obstruct course of justice
- for defendant’s protection
- not yet sufficient information to make decision
- already on bail for indictable offence
- already charged with imprisonable offence AND tests positive for Class A drugs
- charged with murder, manslaughter, rape, attempted rape AND has previous conviction of same crime
DEF: bail money paid by defendant
- ‘security’
- lost if fail to make court appearance
DEF: bail money paid by third party
- ‘surety’
- does not have to be paid in advance
- if defendant doesn’t show then third party can be jailed
DEF: suspects awaiting trial who have been refused bail
- prisoners on remand
- approx. 22% prison population
CPS options after charging
- prosecute
- drop charges
- issue caution
caution
- formal warning
- suspect must admit guilt AND there must be likelihood of successful prosecution
- recorded and can be used as evidence of criminal record
CPS’s two-stage test whether to prosecute
- sufficient evidence?
- in public interest?
public interest
- in Code of Practice for Crown Prosecutors
- ## likely to result in significant sentence
factors making prosecution unlikely
- suspect elderly or unwell
- long time between offence and trial date
private prosecutions
- if CPS drops charges private individuals can prosecute
- no legal aid available
- in serious cases DPP must be informed
DEF: magistrates sitting on pre-trial hearings that will go to Crown Court
- ‘examining justices’
pre-trial hearing for summary cases
- optional
- magistrate may hold one so both sides can agree main issues of case
pre-trial hearing for either way cases
- start with ‘plea before venue’ from defendant (i.e. guilty or not guilty)
after guilty plea
- hear prosecution for ‘mitigation’
options after hearing guilty plea prosecution
- adjourn for reports (e.g. on mental state, etc.)
- sentence defendant
- send defendant to Crown Court for sentencing
after not guilty plea
- defendant decides venue
- magistrates can also insist on Crown Court
DEF: procedure before magistrates send to Crown Court
- committal / committal for trial
committal
- magistrates decide whether enough evidence to send to Crown Court
- done on paper (e.g. written statements for prosecution)
- defence can insist not enough evidence, forcing magistrates to assess evidence themselves
- if magistrates agree with defence then case can be thrown out
DEF: written statements for prosecution
- ‘depositions’
if magistrates dismiss a case…
- prosecution can apply to High Court for bill of indictment
- Crown Court case goes ahead anyway
DEF: fast-track procedure for either way cases involving children or serious fraud
- notice of transfer
jury verdicts
- retire for at least 2 hours
- judge prefers unanimous verdict
- can accept 11-1 or 10-2
- or 10-1 or 9-2 if jury reduced, e.g. by illness
sending for trial
- defendant appears usually once in magistrates
- issues of funding from Legal Services Commission (formerly Legal Aid)
- use of particular statements / exhibits
arguing no case to answer
- defendant can apply within 14 days for case to be dismissed
- defence can apply to High Court that case should not be in Crown Court
bail application
- long period between pre-trial hearings and Crown Court
- prosecution will be asked for their objections
DEF: pre-trial hearing in Crown Court
- plea and direction hearing
- guilty or not guilty
- known as the arraignment
DEF: start of the trial for complex cases
- ‘preparatory hearing’
- detailed examination of cases so judge can make it more easily comprehensible to jury later
prosecution’s job
- prove beyond reasonable doubt that defendant is guilty
reading of charges
- also called ‘counts’
- may not be same in Crown as in magistrates (journos should check)
procedure for guilty pleas
- prosecution details evidence and previous criminal record
- social inquiry reports read out
- defence can plea for mitigation
- sentencing
procedure for not guilty pleas
[11]
- jury sworn in
- case outlined by prosecution lawyer
- examination-in-chief: prosecution calls witnesses
- cross-examination: defence questions witnesses
- re-examination: prosecution can ask witnesses more questions
- defence can argue no case (if agreed then case dismissed)
- defence then calls witnesses (same procedure)
- closing speeches (can happen twice)
- judge’s summing up (Crown Court only)
- jury verdict
- sentencing
defendant evidence
- can refuse if they want
- prosecution allowed to draw attention to this if defendant is over 14
compelling witnesses to give evidence
- witnesses can be ordered to give evidence
- if they refuse, they can be fined or put in jail
- usually spouses of unwilling defendants are exempt
DEF: witness who changes evidence in statement
- ‘hostile witness’
jury verdicts
- retire for at least 2 hours
- judge prefers unanimous verdict
- can accept 11-1 or 10-2
- or 10-1 or 9-2 if jury reduced, e.g. by illness
after defendant found guilty
- sentencing stage
- previous convictions can be revealed
- can be adjournments for reports to be delivered, etc.
reasons previous convictions might be allowed before sentencing
- defendant giving false impression of character
- defence attacks character of prosecution witness
- important for case (e.g. facts so similar to previous conviction that it reveals a pattern of behaviour)
DEF: admission of other offences of similar nature
- ‘taken into consideration’ (TICs)
- police don’t waste time/money
- offender gets smaller sentence increase than if investigated later
types of sentence
[7]
- imprisonment
- fines
- community sentences
- mental health orders
- compensation / confiscation orders
- binding over orders
- absolute and conditional discharges
another name for sentence of imprisonment
- custodial sentence
when imprisonment might not happen
- if defendant wasn’t represented by a lawyer / didn’t refuse representation
- if subtraction of time remanded in custody exceeds sentence
DEF: when subtraction of time remanded in custody exceeds sentence
- being released ‘on remand’
types of custodial sentence
- fixed sentence
- tariff sentence
- imprisonment for public protection (IPP)
defer passing a sentence
- up to 6 months
- with defendant’s consent
- if circumstances likely to change
- e.g. intention to pay reparations
tariff sentences
- most offences
- only sets maximum sentence
- NOT rigid, but guideline to what similar offences should get
- informed by guidance from Court of Appeal
imprisonment for public protection (IPP)
- minimum sentence set
- release based on decision by Parole Board
- usually some sort of rehabilitation (anger management, drug problems, etc.)
DEF: considerations that might lower sentences
- mitigating factors
DEF: things that lead to mitigating factors being ignored
- aggravating factors
DEF: now used for cases where 12-month sentences were deemed ok
- ‘custody plus’
- up to 3 months imprisonment
- at least 6 months supervision in community
- Criminal Justice Act 2003
CASE: EU ruled Home Sec should not decide life
- R v Anderson
types of life sentences
- LIFE: most serious (serial killers, terrorist murderers)
- 30 years: killers with sexual/racial/religious motives, killers of police
- 15 years: the rest
after minimum expires
- Parole Board evaluates
DEF: when multiple offences, all start at same time
- concurrent sentences
DEF: when multiple offences, one after the other
- consecutive sentences
DEF: not sent to prison unless reoffend during timeframe
- suspended sentence
- ALWAYS referred to in media
- NEVER said to be ‘jailed’
DEF: combination of suspended sentence and community service
- ‘custody minus’
absolute discharge
- free to go without penalty
- judge recognises law broken but deems punishment unnecessary
fines
- not if mandatory prison sentence
- must stick to statute
- otherwise judge decides
- must take defendant’s financial situation into account
magistrates max. fines
- £5,000
Crown Court max. fines
- limitless
community sentence
- defendant over 16
- supervision in community
examples of community sentence
- community service
- curfew
- treatment for addiction
- living in specific area
- abstain from specific activities
DEF: where under 25s sent to avoid re-offending
- attendance centre
mental health order
- order detention in hospital for treatment
- IF most appropriate for defendant
- Mental Health Act 1983
compensation order
- if caused injury or damage to property
- magistrates up to £1,000
- Crown Court = limitless
- alongside other sentences
confiscation order
- return of stolen property
- motor vehicles used to commit crime
binding over order
- for minor violent offences (breaches of peace)
- must promise good behaviour
- time limit (usually 1 year)
- sum of money which can be confiscated if order broken
binding over order before trial
- charges dropped, no trial held
- NOT reported as a conviction
conditional discharge
- free to go without penalty
- if break law within time limit then will be prosecuted for both new and old offence
absolute discharge
- free to go without penalty
- judge recognises law broken but deems punishment unnecessary
ASBO
- civil order sometimes used in criminal courts
- anyone over 10
- for anti-social behaviour against people you don’t LIVE with
- AIM: prevent problematic behaviour or anything leading to it
- breaching can result in criminal penalties (fines/imprisonment)
Serious Crime Prevention Order
- requires recipient to do/not do something
- can apply for 5 years
- individuals or organisations convicted of serious crime involvement
- restrictions intended to protect public
SCPO if no conviction
- apply to High Court anyway
breach of SCPO
- 5 years imprisonment
reasons defendant may appeal
[2]
- plead not guilty but lost
- sentence too harsh
routes to appeal from magistrates court
[4]
- to the High Court, by way of ‘case stated’
- to Crown Court
- referral by Criminal Cases Review Commission (CCRC)
- magistrates’ error
to the High Court, by way of ‘case stated’
- defence can ask magistrates to ‘state the case’ to Queen’s Bench
- High Court can confirm, reverse or vary verdict, or order retiral by different magistrates
- magistrates can refuse if case deemed frivolous
- appellant can go make further appeal straight to Supreme Court
- ONLY on points of law, not if simply think verdict is wrong
to the Crown Court
- if defendant believes verdict wrong OR sentence too harsh
- if pleaded not guilty: only appeal the sentence
- appeal must be made within 28 days
- heard by circuit judge and 2/3 magistrates
- sentence can end up HIGHER
referral by CCRC
- independent body
- if appeal failed / made too late
- new evidence suggests verdict wrong
- referred to Crown Court for another hearing
magistrates error
- if magistrates believe they have made error
- retrial with new magistrates
- OR used to vary sentence
appeals from the Crown Court
[3]
- to Court of Appeal
- referral by CCRC
- by case stated
to Court of Appeal
- if defence believe verdict wrong / law implemented wrong / sentence too harsh
- need permission of trial judge or Court of Appeal
- NOT a rehearing, just going over evidence
- powers to: confirm, quash, order retrial, lower (not increase) sentence
- can go to Supreme Court if either side think case is wrong
DEF: retrying someone who has been acquitted for same offence
- double jeopardy
- abolished in Criminal Justice Act 2003
witness/jury intimidation
- High Court can quash acquittal
- only if there’s a conviction for intimidating
- judges can stop a trial if witnesses/jury are intimidated
new evidence
- s75 of Criminal Justice Act 2003
- DPP can refer case to Court of Appeal
- Court of Appeal can quash acquittal and order retrial
- evidence must be: reliable, substantial, provide high degree of proof
- DPP must consider whether retrial fair (e.g. time lapsed since first trial)
appeals by prosecution
- appeal to High Court by way of case stated
- to Supreme Court (if Appeal decision not good)
sentence review
- Attorney-General can order Court of Appeal to review a sentence that is unduly lenient
difference between theft and robbery
- robbery involves violence AND dishonesty
- theft: just dishonesty
two parts defining crime
- criminal act (actus reus)
- mental element (mens rea)
DEF: crime in which prosecution just needs to prove the defendant did it, NOT whether they intended to do it
- strict liability offence
- some driving offences, industry and food regulation
DEF: killing a human being
- homicide
types of homicide
[4]
- murder
- voluntary manslaughter
- involuntary manslaughter
- infanticide
murder
- killing human being with intention to kill
- known as ‘malice aforethought’ (NOT actually to do with malice)
voluntary manslaughter
- killing with malice aforethought BUT mitigating circumstances
- tried for murder (not manslaughter) and have to argue case for voluntary manslaughter
defences which reduce murder to manslaughter
- provocation
- diminished responsibility
- suicide pact
provocation
- provoked by action that would drive anyone to lose self-control
diminished responsibility
- suffering ‘abnormality of mind’
- medical evidence needed
involuntary manslaughter
- killed a human being, but without malice aforethought
- negligence, or part of violent crime
reporting manslaughter
- usually ok for journos to miss the involuntary/voluntary part
infanticide
- mother kills child under 12 months if mind distrubed
legal hierarchy of assault charges
- wounding with intent / causing GBH with intent
- malicious wounding / inflicting GBH
- assault occasioning ABH
- common assault
DEF: wounding
- breaking the skin
wounding with intent / causing GBH with intent
- most serious
- max. sentence life imprisonment
- includes physical/psychiatric damage and wounding
malicious wounding / inflicting GBH
- serious harm / wounding
- max. 5 years
assault occasioning ABH
- harm that’s more than merely trivial
common assault
- general harm (cuts, bruises, grazes, black eye, etc.)
sexual offences legislation
- Sexual Offences Act 2003
rape
- man penetrates vagina/anus/mouth with penis, without consent or defendant reasonably believing consent
- can be to man or woman
- only men can be charged with rape (but women can be accomplice)
assault by penetration
- man penetrates vagina/anus/mouth with non-penis body part or object, without consent or defendant reasonably believing consent
sexual assault
- intentional touching that is sexual, without consent or defendant reasonably believing consent
when is consent irrelevant?
- under 13
sexual offences against children
[3]
- causing or inciting a child under 13 to commit sexual activity
- causing or inciting a child to commit sexual activity (if did not believe over 16)
- sexual activity with a child (touching sexually, 13 cut-off point applies)
theft
- dishonest appropriation of property belonging to another with intention of permanently depriving them of it
- ‘stealing’ acceptable description, ‘robbery’ is different
robbery
- theft using force / threat of force
burglary
- entering building (trespass) then stealing or inflicting GBH
aggravated burglary
- burglary with any weapon
fraud
- using deception for financial gain / deprive another financially
- just intention is enough
handling
- receiving / assisting in disposal of stolen goods, with knowledge they are stolen
- covers anything to do with stolen goods
reporting rewards
- OK: for info leading to conviction
- NOT OK: return of stolen goods on no-questions-asked basis
motor vehicle offences
- taking without owner’s consent
- careless driving
- dangerous driving
- causing death by dangerous driving
- being in charge of vehicle while being unfit
- driving with excess alcohol
- causing death by dangerous driving while under the influence of drink
- driving under the influence of drugs
- failing to provide a specimen
- driving without insurance
taking without owner’s consent (TWOC)
- created to deal with joyriders
- applies to passengers as well
- no intention to ‘permanently deprive’ of property
- NOT reported as stealing/theft, but ‘taking’ is ok
being in charge of vehicle while unfit
- applies to drink and drugs
- mere intention to drive is enough (e.g. sitting in drivers seat)
careless vs. dangerous driving
- careless: below standard of good driver
- dangerous: well below standard and obviously dangerous to any careful driver
failure to provide specimen
- alcohol cases
- at police station OR on roadside
insurance offences
- driving without insurance
- lending car to someone without insurance
