Overview of criminal procedure Flashcards
Syllabus Topic 1
List 7 personnel you may find in a Magistrates’ court.
Prosecutor CPS officer Gaoler Legal adviser Magistrate Usher District Judge Defence Lawyer
There are three ways that a trial could go…
Summary only
Triable either way
Indictable only
List 7 personnel you may find in a Crown Court.
Judge (usually circuit, sometimes recorders and resident judge)
Jury Usher Friends of D Police Liaison Probation officer Youth offending team Admin staff The Press The Public Witness and Victim Support Volunteers
The Criminal Procedure Rules, introduced by section 69(1) Courts Act 2003, combined the following sources:
Crown Court Rules
Primary legislation Statutory Instruments Magistrates' Court Rules
What are the 3 main components of the Criminal Procedure Rules?
The Rules Themselves (part 2(1)(a)]
The Practice Directions (consider alongside) Forms (Rule 5.1 says these must be used for apps/notice/supply of info)
Section 40 of the CJA 1988 enables certain specified summary offences to appear on an indictment if they are linked to an indictable offence for which the accused has been sent to the Crown Court for trial (see D11.17). Those offences include:
(4)
common assault;
taking a motor vehicle without consent;
driving whilst disqualified;
criminal damage where the value of the damage does not exceed £5,000
What two things can indicate whether an offence is triable either way?
(a) it is listed in the MCA 1980, sch. 1
(b) the enactment creating the offence (where the offence is a statutory one) specifies one penalty on summary conviction and a different (invariably greater) penalty on conviction on indictment.
TRUE or FALSE: Common-law offences (i.e. offences not created by statute) are all indictable offences and are triable only on indictment.
TRUE (unless listed in the MCA 1980, sch. 1)
How is common assault to be tried?
Summary only, although the racially or religiously aggravated form created by the CDA 1998, s. 29(1)(c), is triable either way
How is criminal damage to be tried?
Triable either way. However, where the value of the property alleged to have been destroyed or the value of the alleged damage is not more than £5,000 (unless the destruction or damage was by fire and thus constitutes arson, see B8.25 to B8.30), criminal damage (unless charged in the racially aggravated form) is treated as if it were triable only summarily (MCA 1980, s. 22 and sch. 2).
How is theft to be tried?
With one exception, theft is triable either way (MCA 1980, s. 17 and sch. 1, para. 28). Low-value shoplifting, as defined by s. 22A(3) (see D6.27), is said to be triable only summarily (s. 22A(1)) but, where an accused is aged 18 or over, he may elect Crown Court trial (s. 22A(2)) and s. 22A then ceases to apply (Chamberlin [2017] EWCA Crim 39, [2017] 1 Cr App R (S) 46 (369)).
How is burglary to be tried?
Triable either way, with 3 exceptions:
if the burglary comprises the commission of, or an intention to commit, an offence which is triable only on indictment, then the burglary is also triable only on indictment (sch. 1, para. 28(b));
if the burglary is in a dwelling-house and any person in the dwelling was subjected to violence or the threat of violence, the offence is triable only on indictment (sch. 1, para. 28(c))
if the burglary is a domestic burglary and the accused, who is now aged 18 or over, has two previous separate convictions for domestic burglary in respect of offences committed after 30 November 1999, the offence is triable only on indictment (PCC(S)A 2000, s. 111(4)).
How is fraud to be tried?
Triable either way.
How is sexual assault to be tried?
Triable either way.
How is ABH to be tried?
Triable either way.
How is possession of a controlled drug to be tried?
Triable either way.
How is PWITS to be tried?
Triable either way.
How is GBH under s.20 to be tried?
Triable either way.
How is GBH with intent under s.18 to be tried?
Indictment only.
How is robbery to be tried?
Indictment only.
How is rape to be tried?
Indictment only.
A magistrates’ court may try an either-way offence allegedly committed by an adult if
(a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and (b) the accused agrees (ss. 18 to 21)
in the event of conviction, the Magistrates’ court may impose a penalty of anything up to:
six months’ imprisonment and/or an unlimited fine (s. 32(1)).
Representation orders are applied for using which form?
CRM14
The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test ‘according to the interests of justice’ and an assessment of means.
Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 17
(2) In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account— (5 things!)
.
(a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her LIBERTY or LIVELIHOOD or to suffer serious damage to his or her REPUTATION,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial QUESTION OF LAW
(c) whether the individual may be unable to UNDERSTAND the proceedings or to STATE his or her own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of WITNESSES on behalf of the individual, and
(e) whether it is in the INTERESTS of another person that the individual be represented
Criminal Procedure Rule 1.1 states the overriding objective is to deal with criminal cases justly. What does this entail? (7)
(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—
the gravity of the offence alleged,
the complexity of what is in issue,
the severity of the consequences for the defendant and others affected, and the needs of other cases.
What should a party to proceedings do if it fails to follow a procedural step?
Under CPR 1.2.1c, a party should “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. “
CPR 1.1 is otherwise known as…
The overriding objective
CPR 1.2 covers the duties of parties to the proceedings. What are their duties? (3)
(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.
1.3. The court must further the overriding objective in particular when―
(3)
(AEI - 3 vowels!)
EXERCISING any power given to it by legislation (including these Rules);
APPLYING any practice direction; or
INTERPRETING any rule or practice direction.
CPR 3.2 covers…?
Case management - the duty of the court.
What does active case management under CPR 3.2 include?
8
(a) the early identification of the REAL ISSUES
(b) the early identification of the NEEDS OF WITNESSES
(c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a TIMETABLE for the progress of the case;
(d) MONITORING the progress of the case and compliance with directions;
(e) ensuring that EVIDENCE whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging DELAY dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to CO-OPERATE in the progression of the case; and
(h) making use of TECHNOLOGY
CPR 3.3 covers the duties of parties to actively assist with the overriding objective. What are these duties?
(3)
COMMUNICATION between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing; establishing, among other things―
(i) whether the defendant is likely to PLEAD guilty or not guilty,
(ii) what is AGREED and what is likely to be DISPUTED
(iii) what INFORMATION or other material, is REQUIRED by one party of another, and why, and
(iv) WHAT IS TO BE DONE by whom, and when (without or if necessary with a direction);
(d) REPORTING on that communication TO THE COURT
(e) ALERTING the court to ANY REASON WHY A DIRECTION SHOULD NOT BE MADE in any of the circumstances listed in rule 3.2(4) or (5) (The duty of the court: use of live link or telephone facilities), or that such a direction should be varied or revoked.
When the court is setting grond rules for case management hearing under CPR 3.9, what must the court have regard to when setting grounds rules and giving directions to the parties? (3)
The directions given by the court may include anything about…? (4)
(a) any intermediary’s report;
(b) the parties’ representations; and
(c) such other information or advice as the court requires.
The directions given by the court may include any about—
(a) the timetable for question submission
(b) the timetable for the trial,
(c) seating arrangements
(d) any explanation to be given to the jury,of the witness’ or the defendant’s communication needs and behaviour
CPR 3.11 covers hearings to inform the court of sensitive material. When does this rule apply? (3)
Where the prosecutor has, or is aware of, material—
(a) the revelation of which to the public or to the defendant the prosecutor thinks would give rise to a REAL RISK OF SERIOUS PREJUDICE to an important public interest;
(b) to which the prosecutor DOES NOT THINK TO OBLIGATION to disclose prosecution material applies, under Part I of the Criminal Procedure and Investigations Act 1996; but
(c) of the existence of which the prosecutor thinks it necessary to inform the court to AVOID
(i) potential UNFAIRNESS to the defendant in the conduct of the trial,
(ii) potential PREJUDICE to the fair management of the trial, or
(iii) potential PREJUDICE to that public interest.
What is the standard of proof in a criminal trial?
Beyond reasonable doubt.
Does the burden of proof always fall on the prosecution?
No. Certain defences, whether in common law or in statute, require the defendant to satisfy the burden of proof (e.g. insanity, diminished responsibility).
Where the defendant carries the legal burden of proof, what is the standard?
Balance of probabilities
What is the evidential burden of proof?
The standard required to get the evidence ‘past the judge’, such that, if left unchallenged, the evidence would be enough to establish ‘reasonable doubt’ in the eyes of the tribunal of fact.
TRUE or FALSE: the judge in a jury trial is the tribunal of fact and the tribunal of law?
FALSE. The jury is ToF, the judge is ToL. In a Magistrates’ court trial, the justices fulfill both roles.
What are the facts in issue in a criminal trial? (4)
The identity of the defendant
Actus reus
Mens rea
Defences
What is direct evidence?
Evidence which allegedly clearly indicates a particular fact. e.g. “I saw the defendant stab the victim.”
What is circumstantial evidence?
Evidence which, when put together with other evidence, creates a clear narrrative. (e.g. motive + DNA + opportunity)
What is the weight of evidence?
The extent to which it proves or disproves a conclusion.
Probative value is a combination of which two considerations?
Relevance and weight.
Can facts be proved without evidence?
Yes.
- Formal admissions
- Judicial notice
- Personal knowledge
Can a judge use his discretion to allow inadmissible evidence?
No. A judge can disallow admissible evidence, but not vice versa.
What must a judge consider when choosing to exercise their general exclusionary discretion?
Is the evidence prejudicial?
Was the evidence unfairly obtained?
What are the three ways of adducing evidence?
TDR
Testimony
Documents
Real evidence
What is a trial within a trial?
A situation where the tribunal of law (judge) must consider factual questions in order to determine whether a particular piece of evidence is admissible before the jury.
How can the legal burden of proof be passed to the defendant?
Common law (insanity)
Express statutory provision (diminished responsibility)
Implied statutory provision
Under CPR 3.2 (4) Where appropriate live links are available, making use of technology for the purposes of this rule includes directing the use of such facilities for…?
(a) for the conduct of a pre-trial hearing, including a pre-trial case management hearing;
(b) for the defendant’s attendance at such a hearing―
(i) where the defendant is in custody, or where the defendant is not in custody and wants to attend by live link, but
(ii) only if the court is satisfied that the defendant can participate effectively by such means, having regard to all the circumstances including whether the defendant is represented or not; and
(c) for receiving evidence under one of the powers to which the rules in Part 18 apply (Measures to assist a witness or defendant to give evidence).
Under CPR 3.2(5), where appropriate telephone facilities are available, making use of technology for the purposes of this rule includes directing the use of such facilities for the conduct of a pre-trial case management hearing―
(a) if telephone facilities are more CONVENIENT for that purpose than live links;
(b) unless at that hearing the court expects to take the DEFENDANT’S PLEA and
(c) only if―
(i) the defendant is REPRESENTED or
(ii) exceptionally, the court is SATISFIED that the defendant can participate effectively by such means WITHOUT A REPRESENTATIVE.
Under CPR3.5(1) In fulfilling its duty under rule 3.2 the court MAY GIVE ANY DIRECTION and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.
In particular, what may the court do? (9)
(a) NOMINATE a judge, magistrate or justices’ legal adviser to manage the case;
(b) give a DIRECTION on its own initiative or on application by a party;
(c) ask or allow a party to PROPOSE a direction;
(d) RECEIVE applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and CONDUCT A HEARING by live link, telephone or other such electronic means;
(e) give a directions (in public/private, or without hearings
(f) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (MODIFICATIONS)
(g) shorten or extend (even after it has expired) a time limit fixed by a direction; (CHANGE TIME LIMIT)
(h)require that issues in the case should be identified in writing,
determined separately, and decide in what order they will be determined;
(i)specify the CONSEQUENCES of failing to comply with a direction
Can the magistrates’ court give directions to the crown court if a case is to continue there? (and vice versa)
Yes. Under CPR 3.5(3) A magistrates’ court may give a direction that will apply in the Crown Court if the case is to continue there.
Under CPR 3.5(4) The Crown Court may give a direction that will apply in a magistrates’ court if the case is to continue there.
Under CPR 3.5(6) what can the court do if a party fails to comply with an order under CPR 3.5?
(3)
The court may—
(a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;
(b) exercise its powers to make a costs order; and
(c) impose such other sanction as may be appropriate.
CPR 3.11 deals with when prosecutor is dealng with sensitive material. When it applies, what does CPR 3.11 stipulate should happen prior to the hearing? (5)
Unless the court directs otherwise, what procedures should take place? (3)
(quite a lot - think of the procedure)
A prosecutor must ask for a hearing so to INFORM the court.
They shoud NOTIFY the defendant of that request only to such extent, if any, and at such time, if at all, as the court directs.
Prosecutor must EXPLAIN:
- why THE HEARING IS NECESSARY
- why it should take place in the defendant’s ABSENCE
- the exten to which the DEFENDANT SHOULD BE INFORMED of the hearing
The prosecutor should identify MATERIAL that they want to inform the court of.
PROVIDE OR DESCRIBE MATERIAL FOR THE COURT to the court only to the extent needed to achieve the purpose of hearing.
Unless the court otherwise directs―
(a) any such hearing must be in PRIVATE and must take place in the defendant’s ABSENCE; (nature of hearing)
(b) the court officer must NOT GIVE NOTICE TO ANYONE OTHER than the prosecutor of the court’s decision on the request for a hearing, the arrangements for any such hearing, and any directions given at such a hearing; and (keep it secretive!)
(c) the court officer may KEEP ANY WRITTEN REPRESENTATIONS OR MATERIAL received under this rule, or arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose. (retention of materials)
