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CRIMINAL LITIGATIONNOTEBOOKMARCH 2019CASE ANALYSISSTEP ONEELEMENTS OFTHE OFFENCE [NAME] has been arrested on suspicion of [ACTION] contrary to [SECTION]  A person is guilty of [ACTION] if they [REQUIREMENTS]Theft  s1 Theft Act 1968  AR: appropriation of property belonging to another  MR: dishon...

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CRIMINAL LITIGATION NOTEBOOK MARCH 2019

CASE ANALYSIS  

STEP ONE ELEMENTS OF THE OFFENCE

[NAME] has been arrested on suspicion of [ACTION] contrary to [SECTION] A person is guilty of [ACTION] if they [REQUIREMENTS]

Theft  s1 Theft Act 1968  AR: appropriation of property belonging to another  MR: dishonestly and with intention to permanently deprive  Either way offence Robbery  s8(1) Theft Act 1968  AR: committed theft and in order to steal either used force/threat or put the victim in fear of immediate force either before or at the time of the theft  MR: intention or recklessness as to the force; dishonesty and intention to permanently deprive (as to theft element)  Indictable offence ABH  s47 OAPA 1861  AR: used unlawful force against the victim causing them an injury that is more than transient  MR: intention or recklessness as to the unlawful force  Either way offence 

STEP TWO WHAT THE PROSECUTION MUST PROVE & BURDEN OF PROOF

Burden of Proof The legal burden of proof will be on the prosecution throughout the case and the evidence must prove that [NAME] committed the offence beyond reasonable doubt. The prosecution have the initial evidential burden to show that [NAME] has a case to answer to and defend.

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STEP THREE EVIDENCE GIVEN

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STATE SUSPECT’S DEFENCE

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STATE THE EVIDENCE THAT SUPPORTS THE DEFENCE

 The defence may then raise the defence of alibi (below) List each piece of evidence given, including bad character evidence State how each one applies to the elements of the offence set out above i) Statements ii) List of Previous Convictions iii) Recorded Interviews

Additional Evidence (that prosecution could obtain)  Handwriting analysis/finger printing/CCTV/entry logs/records (base on facts)

STEP FOUR

STEP FIVE

The prosecution must prove the following (ensure is given based on the facts):  Who:  What:  When:  Where:  How:

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Include any innocent explanation for evidence against them or any dispute over the admissibility of certain evidence [NAME]’s case is that he did not commit [OFFENCE]”

Note that the suspect can give oral testimony in their own defence in court (but is not under an obligation to do so; s1(1) CEA 1998) If the evidential burden does indeed move to [NAME] to rebut the prosecution’s allegation, [NAME] should provide facts and evidence in support of his defence (though the defendant is not under any evidential burden to show their innocence) To rely on an alibi, [NAME] would be required to give evidence in support of this defence (alibi and self-defence have an evidential burden; requires some evidence to be produced to court, but does not need to prove the defence) 1

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Insanity has to be proven by the defence “on the balance of probabilities”

Burden of Proof The prosecution then must prove that this defence is not true beyond reasonable doubt

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THE POLICE STATION

POLICE POWERS

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WHO BRINGS PROSECUTION

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PACE 1984: detention, stop and search, questioning Codes of Practice provide detailed advice and guidelines (Issued by Home Secretary) S67(11) PACE: obliges the court to take into account any relevant breaches of the Codes in relation to an issue in the proceedings (a breach could be used to contest the admissibility of some evidence) The breach of the codes is not an offence or a civil wrong CPS / HMRC / Local Authorities / Trading Standards In exceptional circumstances, an individual

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Begun by either “laying an information” before a magistrate or “making an arrest”

Laying an Information  Typically for motoring offences  Laid before a magistrate

COMMENCING PROSECUTION

DUTIES OF ARRESTING OFFICER

DUTIES OF CUSTODY OFFICER

Making an Arrest  Suspect is taken to the station and charged or released after questioning  They must have “suspicion”: where proof is lacking; Hussein  Can arrest in anticipation of an offence if one from s24(5) is followed: a) Enable the name of the person in question to be ascertained b) Correspondingly as regards their address c) To prevent the person from: i) Causing physical injury to themselves or another ii) Suffering physical injury iii) Causing loss or damage to property iv) Committing an offence against public decency v) Causing unlawful obstruction to the highway d) To protect a child/vulnerable person from the person in question e) Allow prompt and effective investigation of the offence f) To prevent prosecution being hindered by their disappearance  They have the power to arrest without a warrant under s24 (above)  They must tell the arrested person they are under arrest and the grounds; s28  They must caution the suspect before questioning as per Code C Paragraph 10.1 “you do not have to say anything, but it may harm your defence if you do not mention something and later try to rely on it at trial” (Paragraph 10.4)  Must take the suspect to the police station immediately after arrest unless it is reasonable to carry out other investigations elsewhere; s30 (if not, take as soon as is practicable; s30(1A))  Must bring the suspect to the custody officer ASAP (Code C Paragraph 2.1A)  Custody Officer must be at least the rank of sergeant and unconnected to the investigation; s36  Must tell the suspect (both oral and written) of their rights to:  Free independent legal advice; s58  Read the Codes of Practice  Have someone informed of their arrest; s56  Custody Officer then considers whether there is sufficient evidence to charge; s37  A Custody Record must be opened (s36) which states (check on facts):  Reason for arrest (Code G Paragraph 4.3)  Reason for detention  The time they were told of their right to legal advice  Suspect’s response and any comments made  The time the legal advisor arrived  List of property suspect had on them on arrival  If insufficient evidence, detention without charge may be authorised; s37(3)  An interview must only take place at the police station; Code C Paragraph 11.1  May search and seize items that could be used by suspect to harm themselves or others; s54(3) Relevant Time  Suspect arrives at the station as volunteer: from time of arrest; s41(2)(c)  Suspect arrested and taken to station: from time of arrival at station; s41(1)  Suspect arrested and given street bail: from time of attendance at station; s41(2)(ca)  Suspect arrested and taken elsewhere first before arrival: at time of detention; s40 Time Held s41

Suspect must be released after 24 hours if not charged, unless (below) A superintendent or above extends this to 36 hours if: 3

DETENTION WITHOUT CHARGE

s42

s43

s44

 The offence is either way or indictable  Reasonable grounds for believing it necessary to secure/preserve evidence  Investigation is being carried out diligently and expeditiously Police obtain warrant from magistrates, in which case it can be extended to 72 hours total if:  The offence is indictable only  Reasonable grounds for believing it necessary to secure/preserve evidence  Investigation is being carried out diligently and expeditiously Magistrates may extend the time to 96 hours (absolute maximum) in exceptional cases where there are reasonable grounds for justifying further detention

Reviews 1) The first review must take place within 6 hours of time detention is authorised; s40 2) Second review must take place within 9 hours of the first review 3) Subsequent reviews must take place at intervals of not more than 9 hours  

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Reviews must be carried out by at least the rank of inspector and by someone not involved with the investigation; s40(2)(b) If the reviews are not carried out, the police will be liable in the tort of false imprisonment Roberts v Cheshire Constabulary Check, on the facts, that these reviews have been conducted at the correct intervals

CODE C PARAGRAPH 1.1 6.1 6.4 6.6 8.2 8.3 8.4 8.6 & B 10.3 10.4 11.1 11.2 11.18

MEANING Deal with all persons in custody expeditiously LEGAL ADVICE Inform suspect that they may consult a solicitor at any time Do not dissuade suspect from getting any legal advice Do not interview suspect who wants legal advice until they have it (unless superintendent) DETENTION CONDITIONS Cell must be adequately heated, cleaned and ventilated Bedding must be clean and adequate Access to toilet and washing facilities Two light meals and one main meal every 24 hours, drinks on reasonable request CAUTIONING Person may be cautioned on their arrest unless it is impossible to do so because abusive Sets out the wording of the caution (consider special cautions) INTERVIEWING Interviewing must only take place at the police station Suspect should be reminded of the right to free legal advice Interviewing shouldn’t take place if suspect doesn’t understand the significance (drunk)

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ADVISING CLIENT AT STATION 1) 2) 3)

SOLICITOR OBJECTIVES

Find out as much as possible about the alleged offence Whether there have been any breaches of procedure and the Codes Check on the client’s state and find out about vulnerability Telephone the Custody Officer who must tell you the following: (check compliance on facts)  Basis of detention without charge; s57  State of the suspect  Let you see the Custody Record and Detention Log (Code C Paragraph 2.4) Check whether the suspect has been treated in accordance with Code C  If not, defendant can argue for the inadmissibility of the evidence Check whether the suspect has made any significant comments since arrival Speak to the client by phone and give them the preliminary advice of not to say anything until you arrive Speak to the Investigating Officer who may tell you at their discretion:  What evidence is held  What the officers’ next steps are  The facts of the offence  Investigating Officer may cooperate so as to get your client to respond to questioning

i)

PRELIMINAR Y STEPS

ii) iii) iv) v)

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The decision as to whether or not to answer questions is the client’s Check the client is in a fit state to be interviewed (not drunk or exhausted) Disregard any confessions/statements made if obtained in such a way as to make it unreliable or by oppression; s76(2) PACE

OPTION  REMAIN SILENT “NO COMMENT INTERVIEW”

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THE INTERVIEW

   WRITTEN STATEMENT

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   ANSWER ALL QUESTIONS

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ADVANTAGES Avoids self-incrimination; good if you have a weak defence and the prosecution have little evidence Good if events from long time ago/complex case The court cannot draw adverse inferences where legal advice was relied on; Beckles Police may not have sufficient evidence to enable them to charge the client Far less stress than an interview; allows client to think Covers whole defence Good if client may perform badly at interview based on character If hand it in during interview, no inferences can be drawn under s34, s36 and s37 Hand it in on charge avoids adverse inference under s34(1)(b) Avoids adverse inferences under s34, s36 and s37 If you have an innocent explanation, you may be released without charge Put your defence on record at the earliest opportunity to boost credibility (important if raising specific defences which imposes evidential burden such as alibi/self-defence)

DISADVANTAGES

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SELECTIVE

N/A

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Adverse influences under s34 may be drawn Will not be able to put forward a particular defence at trial if asked about it at interview

If hand it in before, may give police information they didn’t have previously Hand it in on charge will not allow the suspect to avoid inferences under s34(1)(a), s36 or s37

Danger of self-implication If suspect isn’t careful, police may catch suspect out Interview played in court, so confused or contradictory person is less credible Immature clients are a particular risk Check whether police have given sufficient disclosure Whole interview is admissible Silences may be interpreted adversely It appears the suspect has

SILENCE 

something to hide Will not be able to put forward a particular defence at trial if asked about it in interview/jury believe it to be a sham

SOLICITOR’S INTERVENTION  During the interview, the solicitor is entitled to intervene, but they must:  Explain why they are intervening  Provide a purpose of how to rectify the situation (new evidence is put forward and you want to discuss with your client) 

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Code C: solicitor may intervene to: (inform client of this)  Clarify/correct any improper questioning  Advise the client not to comment  Give the client any legal advice Cannot answer questions on the client’s behalf; if you do, you risk exclusion from the interview under Code C Paragraph 6D

Adverse inferences alone are not enough to prove guilt; s38(3) CJPOA 1994 Any suspect has the right to silence but the prosecution may draw “adverse inferences” from this Adverse inferences cannot be drawn from silence if suspect has not been allowed to see a solicitor; s58 YJCE 1999 CJPOA

s34 ADVERSE INFERENCES

s36

APPLY Suspect does not mention a fact when questioned or charged which they then seek to rely on in their defence Failure to account for a mark / object / substance / clothing / possessions when requested Applies irrespective of any defence put forward at trial

s37

Failure to account for where they were/being in a particular place “at or about the time the offence was committed” when requested Applies irrespective of any defence put forward at trial

CONDITIONS Suspect must have been under caution

INFERENCE DRAWN “Court may draw such inferences as seem proper”: a)

Officer must have explained simply the consequences of non-compliance; s36(4): Code C Paragraph 10.11  What offence is under investigation  What fact they are being asked to account for  Officer says he suspects this fact is due to participation  A record of the interview is being made and is admissible in trial

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b)

That defendant subsequently fabricated the fact(s) That defendant did not want the facts or their explanation to be subject to police scrutiny

Court will only draw such inferences if the suspect could reasonably have been expected to mention the relevant facts Circumstances that might be affected include: time, age, capacity, fatigue, personality, legal advice and sobriety; R v Argent

ALLOCATION & SENDING

7

MODE OF TRIAL “NOT GUILTY” MAGISTRATES’ DECISION

All proceedings begin in the Magistrates Court If the defendant indicates a not guilty plea the court must decide whether or not to accept jurisdiction

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General Points  Presumption for guilty plea that they are treated as having been tried summarily and convicted. Prosecution will then outline facts of the case to the magistrates and tell them about any previous convictions the defendant may have. Magistrates will then determine if their sentencing powers are adequate or whether Crown Court is more appropriate (they have greater sentencing powers) 

Defendant sent to Crown Court for trial on indictment where: i) The Defendant is sent to the Crown Court for trial for a related offence; (not here) ii) The Defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence; iii) The Defendant is charged jointly, or charged with a related either-way offence, with a youth defendant who is sent to the Crown Court for trial

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If the defendant indicates a not guilty plea, the Magistrates court must decide whether or not to take jurisdiction. The Magistrates have regard to the following:

WHETHER SUITABLE FOR MAGISTRATES

S19 MAGISTRATES COURT ACT 1980 (a) Whether the sentencing powers are adequate (b) Any representations made by the prosecution (including telling the court of the D’s previous convictions) (c) Any representations made by the defence (d) Allocation guidelines issued by the Sentencing Council. The starting point is to presume that the case will be suitable for summary trial unless its powers of punishment are insufficient (cap of 6 months imprisonment)

If the offence is not aggravated enough to say Magistrates cannot sentence, it is suitable for summary in the Magistrates court

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If the Magistrates have retained jurisdiction, the Defendant has a choice of venue Apply to the facts, and clearly advise on a specific court

MAGISTRATES COURT (VOLUNTEERS) Costs generally lower Comes to trial quicker; defendant can move on with life  Less formal and intimidating; significant if defendant will be giving evidence of has never been in court before; reduces stress  Lay Magistrates may be more lenient in sentencing  Sentencing powers limited; 6 months custodial, up to £5000 fine, though they can send defendant to Crown Court for sentencing if they feel powers are inadequate  Defendant has no obligation to serve a defence statement; important if they do not have a good defence, and prosecution won’t be on notice of their defence  Prosecutions costs will be lower if convicted  Defence costs slightly lower  

ADVANTAGES

DEFENDANT’S CHOICE OF VENUE

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DISADVANTAGE S

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Rules on evidential procedure are not as good as Crown Court; Magistrates decide both fact and law issues so hear inadmissible evidence; will be hard to forget it totally Magistrates are more casehardened and less likely to acquit than juries; may be more trusting of people they seen regularly

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CROWN COURT (JURY) Greater chance of acquittal for some offences as juries are not as case-hardened as magistrates Cases take a lot longer to come to trial, which gives defendant more time to prepare their case/find missing witness Rules on evidential procedure much more advantageous; issues on admissibility are argued in front of the judge in private, whereas in Magistrates the inadmissible evidence may remain in the back of the Magistrates mind; consider if any evidential issues are likely to arise Judges are legally trained Judge rules on the admissibility of defendant’s previous convictions in the absence of a jury Maximum sentence is 7 years custodial and/or unlimited fine Must serve a written defence statement on the prosecution if pleading not guilty; s5, s6, s6A CPIA, which will put prosecution on notice of their defence Higher prosecution costs if convicted Whether client is convincing/likeable; may affect chances more with a jury than with magistrates

CONCLUDE ON THE FACTS  Low level offence and the sentencing will be low  [EVIDENCE AGAINST [NAME] ISN’T THAT STRONG]  “I would advise [NAME] to choose to be tried in the [CHOICE] Court”  “If [NAME]’s alibi is good and strong, then they will have a strong chance at acquittal”

9

GRANT OF BAIL WHO DECIDES ON BAIL

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The Magistrates, if trial adjourned in the Magistrates’ court Judge, if trial adjourned in the Crown Court

“On the facts, [NAME] has/has not got a presumption for bail” APPLIES TO s4 Bail Act, 1976 1) All defendants prior to conviction, unless charged with a very serious offence; murde...