Criminal Litigation Notes PDF

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Criminal Litigation Notes BPP:Police Powers and Preliminaries to ProsecutionYou will: 1. Understand “summary only” “either way” and “indictable only” offences Summary : Magistrates’ court only Plea: entered at first hearing Trial: can only occur in MC Sentencing: only in MCEither way: Magistrates’ o...

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Criminal Litigation Notes BPP: Police Powers and Preliminaries to Prosecution You will: 1. Understand “summary only” “either way” and “indictable only” offences Summary: Magistrates’ court only Plea: entered at first hearing Trial: can only occur in MC Sentencing: only in MC Either way: Magistrates’ or Crown Court Plea: First hearing in MC, then court decides appropriate venue Trial: MC or CC depending on plea stage Sentence: If MC, then sentence there, but if insufficient, CC will sentence. Indictable only: Crown Court only Plea: Entered at CC, even though first hearing is in Magistrates, CC enters plea because MC incapable of taking plea Trial: CC Sentencing: only in CC 2. Have an appreciation of how to determine class of an offence and advise a client accordingly To determine class, consult a practitioner text, and look at the maximum sentences in a statute – depends on whether summary, either-way or indictable. 3. Know the classifications of the main offences outlined in Pt 1 of syllabus Summary only: Common assault; criminal damage value below £5,000 Either-way: theft; burglary; sexual assault; ABH; wounding/GBH; class A or B drugs possession; possession with intent; criminal damage above £5,000. Indictable: Robbery; rape; wounding/ GBH with intent 4. Understand what constitutes legitimate grounds and reasons for arresting Arrest power: s24 PACE 1984: 1. Grounds for arrest without warrant: a. If anyone about to commit an offence b. Is in the act of committing an offence c. Has reasonable grounds of suspicion to be about to commit an offence d. Has reasonable grounds for suspecting to be committing an offence 2. If reasonable grounds the offence is committed, he may arrest without warrant; anyone whom is suspected to be guilty. 3. If offence committed, constable may arrest without a warrant: a. Anyone guilty of the offence; b. Anyone with reasonable grounds for suspecting to be guilty of it. Can only arrest for above, if, ‘reasonable grounds’ for believing arrest is necessary, for the following reasons: 1. Enable name/address of person to be ascertained 2. To prevent person: a. Causing harm to others b. Suffering physical injury c. Causing loss of or damage to property d. Committing an offence against public decency

e. f. g. h.

Causing an unlawful obstruction of the highway Protect child/vulnerable person To allow prompt and effective investigation of offence Prevent prosecution of offence being hindered by disappearance of the person in question.

Reasonable suspicion: known facts and information; 2 part test: 1. Constable carrying out arrest must actually suspect; 2. A reasonable person, in possession of same facts would also suspect. 5. Be able to assess whether an arrest is lawful For arrest to be lawful, at time of arrest, a person arrested by a constable must be informed of: a. The fact that he is under arrest; and b. Grounds for the arrest ((for suspecting committed an offence) c. And in addition, person should be informed of reason of arrest (not required for lawful, though a breach of code C). d. A person arrested should be cautioned at time of arrest or as soon as practicable after (not required for lawful, though a breach of code C) Force: - May use reasonable force under PACE act. Court will take into account circumstances. - Handcuff should be used only when necessary. Arresting officer should record: a. Nature and circumstances of offence leading to arrest; b. Reason why arrest necessary; c. Giving of caution; d. Anything said by arrested person at time of arrest; e. If person arrested is detained at police station details must attach. 6. Understand a suspect’s right on detention, and length of time for which a suspect can be detained before charge Right on detention: A detained person must be informed of rights, to be told clearly about: a. Free and independent legal advice i. Must be told before commencement of an interview; ii. Before a review of detention conducted iii. Before being asked to provide intimate sample iv. Before a drug search v. Before an ID parade If legal advice declined, should be noted in custody record. b. Consult privately with a solicitor At anytime. c. Have someone informed of their arrest Has right to have one person known to them or likely to take interest in their welfare informed of their arrest and place being detained. If detainee does not know of anyone to contact, custody officer should bear in mind local voluntary bodies who may be able to help. d. Consult the Codes of Practice Where required,(young or mentally disordered) the right to an appropriate adult; a parent or guardian. Appropriate adult is to: a. Ensure the detained person understands what is happening to him, and why

b. c. d. e.

Support, advise and assist him Observe whether police are acting properly and fairly and intervene if not Assist with communication between detained and police Ensure detained understands his rights.

Detention time limits: Max period normally without charge is 24 hours from relevant time. Relevant time is the time at which arrested person arrives at first to police station, or 24 hours after arrest – whichever earlier. - May be extended for indictable offence – for up to 36 hours. - May be extended for Magistrates’ court – for up to 96 hours. 7. Know definition of an “interview” under PACE Codes of Practice Interview Code C para 11.1A: ‘the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences…’ -

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Person must be cautioned before asked any questions if answers provide grounds for suspicion, if either suspect’s answers or silence may be given in evidence in court. Must only be interviewed at a police station or other authorised place of detention UNLESS delay may lead to interference to harm evidence/persons or serious loss of/damage to property. He must be given sufficient information to understand nature of suspected offence and why person is suspected of committing it. Information about legal advice must be given prior to interview. Must put to him any significant statement or silence No use of oppression allowed by police officer, nor should he indicate a direct answer. Must cease when officer taken account of other available evidence, he believes there is sufficient evidence to provide a realistic prospect of conviction and the officer is satisfied all questions relevant have been put to suspect. Interview must be recorded.

8. Understand process by which a charging decision is made Decision to charge is by a Crown Prosecutor – they exercise the powers of Directors of Public Prosecution (DPP). They also have discretion to charge on private prosecutions. DPP can delegate their power to agents but they must act in accordance with the instructions given by Crown Prosecutor. 9. Know the different methods for bringing a prosecution 3ways: 1. Arrest and charge: - Accused arrested and charged by police. - Charge may come at end of period of detention at police station after arrest; OR after a period of police bail when suspect re-attends police station. Charge may come after a period of police bail while CPS decides whether to charge.

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2. Written charge and requisition: Must be a public prosecutor, not for private prosecutor. Must be served on person charged and a copy on MC, where person attends. Authorised prosecutor must notify MC immediately.

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At the same time, public prosecutor issues a requisition – requiring person charged to attend MC.

3. Laying an information and a summons (for private prosecution): Prosecutor can serve an information alleging an offence on a MC. Can either serve an information in writing on the court or present an information orally to the court. - Court will then issue a summons OR an arrest warrant requiring accused to attend. o Summons – directs person to appear before a MC to answer the information; summons must contain a notice setting out when and where the accused is required to attend court; specify each offence it has been issued and identify the issuing court. o Warrant – to arrest that person and bring him before a MC - Written charge must contain description of offence, reference to statutory provision creating that offence, and sufficient particulars of conduct for accused to know what is alleged. -

Timing of charge: Summary offences – 6 months Indictable – no limit Either-way offences – no limit 10. Appreciate rules governing government funding of criminal cases Legal aid governed by LASPO 2012. First hearings 1. Understand where all adult defendants make their first court appearance. ALL at MC – only after when category of offence determined it will either be MC or CC. Summary only – trial in MC Either-way – depends. Indictable only – sent to CC for trial and sentence 2. Understand rules relating to provision of initial details of prosecution case (IDPC), including: If accused was in custody immediately before first hearing, initial dets need only a summary of offence and accused criminal record. Otherwise, requires to include a summary of circumstance offence, any written statement to plea, mode of trial, or sentence, victim impact statements and criminal record. Information must be sufficient to provide court to take an informed view on plea and venue for trial. a. When they should be served; and As soon as practicable, and in any event, no later than beginning of day of first hearing b. Consequences if IDPC are not served REMEDY IS for court to adjourn a first hearing and/or award costs to defence for prosecution’s failure to serve. 3. Understand procedure at First Hearing in a Magistrates’ court, and entering a plea. At a first hearing, D will be asked to enter or indicate their plea to a charge: Guilty or Not-guilty, or on either-way offence, give no indication. Guilty plea: - Must be unequivocal. Free of any suggestion that D is not guilty. If equivocal – cannot proceed to sentence. - If plea not clarified – will be treated as a not guilty plea.

4. Appreciate when First Hearings in a Magistrates’ court can take place by live link. Presence via video link is sufficient. CDA 1988. 5. Understand what an early administrative hearing is in a Magistrates’ court. When a person has been charged at a police station first hearing in MC can be treated as an early administrative hearing. Conducted by a single magistrate or justice’s clerk. 6. Learn how Magistrates’ court goes about making pre-trial rulings, and their effect in future hearings. Pre-trial hearings and rulings: for summary trial and not guilty plea where case set down for summary trial. a. Pre-trial hearings allow pre-trial ruling to be made. b. At such hearings, magistrate can make ruling regarding (1) admissibility of evidence; (2) fitness to plead; any (3) other question of law. c. Happens before hearing evidence from prosecution at trial. d. Such rulings can only be made if (a) court has given parties an opportunity to be heard and (b) it appears to court that it is in the interest of justice to make the ruling. e. If accused unrepresented, must be given chance to apply for legal aid. f. Pre-trial ruling is binding until case disposed of by (a) conviction or acquittal, or (b) by a prosecution decision not to proceed or (c) dismissal of the case. g. Can vary or discharge (a) on application by court or (b) of court’s own motion. Party can apply for variation or discharge only if material change of circumstances since ruling made. 7. Familiarise yourself with general procedure at First Hearing depending on classification of the offence and plea entered by the Defendant. -

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Summary only Guilty plea o Court proceed to sentence o If any disrepute court will hold a Newton hearing. o Sentence may be passed immediately or adjourned whilst waiting for pre=sentence report. Summary only Not guilty plea o Court set a trial date and do case management to ensure trial effective on that date. o Parties must complete a case management form setting out (1) what issues at trial will be, and (2) which witnesses are required to give live evidence. o Only those witnesses defence wants to challenge should come to court. o Court should set a timetable for trial and estimate of how long trial will take. Pre-trial hearings and rulings: for summary trial and not guilty plea where case set down for summary trial. o Pre-trial hearings allow pre-trial ruling to be made. o At such hearings, magistrate can make ruling regarding (1) admissibility of evidence; (2) fitness to plead; any (3) other question of law. o Happens before hearing evidence from prosecution at trial. o Such rulings can only be made if (a) court has given parties an opportunity to be heard and (b) it appears to court that it is in the interest of justice to make the ruling. o If accused unrepresented, must be given chance to apply for legal aid. o Pre-trial ruling is binding until case disposed of by (a) conviction or acquittal, or (b) by a prosecution decision not to proceed or (c) dismissal of the case. o Can vary or discharge (a) on application by court or (b) of court’s own motion. Party can apply for variation or discharge only if material change of circumstances since ruling made.

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Either-way offences Not guilty plea o D supplied with copy of IDPC by prosecutor; court begins by asking D to indicate plea. o This is a plea before venue (in MC first hearing before deciding location of trial) if indicate not guilty, then mode of trial/allocation o Requires presence of accused to be there. Steps to decide allocation: a. Court affords prosecution and defence opportunity to make representations: i. Prosecution: submits where they think trial should be held. Submission should cover nature and seriousness of offence, incl. aggravating and mitigation features. Prosecution can refer to D’s previous convictions. ii. Defence: can submit as to venue – if prosecution says CC and defence disagrees, need to make a more persuasive submission. b. Court then decides whether to accept jurisdiction i. Court takes into account allocation guidelines

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Either-way offence Guilty plea o Move to sentence. o If any dispute regarding factual basis Newton hearing. o Can be either MC or CC – depending on MC considering whether their sentencing powers are sufficient. ▪ If sufficient for MC, pass immediately or adjourn for preparation of PSR. ▪ If insufficient, go to CC. MC will order a PSR for CC if they consider there is (a) a realistic alternative to custodial sentence; (b) the accused may be a dangerous offender or (c) there is some appropriate reason for doing so.

8. Identify situations where a Defendant can be absent for plea before venue and allocation. 1. For plea before venue 1 exception: ‘disorderly conduct’ a. Accused is legally represented and b. Court considers that due to the disorderly conduct of the accused before the court, not practicable for proceedings to be conducted in his presence and c. Court considers it should proceed in absence of the accused. d. Representative indicates plea. 2. Determination of mode of trial exceptions: a. Disorderly conduct i. Not practicable for proceedings to be conducted in his presence. b. Good reason and consent i. The accused legally represented; ii. Representative indicates to court that accused consents to the mode of trial proceedings being conducted in his absence; iii. And court is satisfied there is a good reason for accused’s absence 9. Appreciate matters a Magistrates’ court may/must take into account in determining allocation for an either way offence. MC must consider if enough sentencing powers, if not, move to CC. Also needs to consider if he is considered a “dangerous offender”, if so, then move to CC. Depends on MC whether the Defendant deserves a more serious sentence. Must also consider the circumstances of the crime itself.

Guideline states that either-way should start summarily unless in excess of court’s powers of sentencing or if reasons of unusual legal/procedural or factual complexity. iv. MC to consider whether sentencing power adequate. v. Representations made by accused and defence vi. ‘Other factors’ c. If decide to allocate to CC matters sent forthwith by S51 CDA 1998. d. If court decides summary trial more appropriate: further steps to follow: i. Court explains to accused: 1. That such is court’s view and that he can either consent to summarily, or elect trial on indictment in CC. 2. If he is tried summarily and convicted, he may be committed for sentence to CC if MC is of opinion that there should be greater punishment or if ‘dangerous offenders’ criteria for sentence are satisfied. e. D can ask for an indication of sentence (custodial or not) if they were to plead guilty instead; as below. 1.

10. Understand what an indication of sentence involves in a Magistrates’ court and what its effect is. Can be asked by MC if court decides to remain jurisdiction. Up to court’s discretion whether to give or not. - If gives an indication, must ask whether D wishes to reconsider indication – if changed, court asks for a fresh indication. -

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Binding effects: o If doesn’t plead guilty, not binding. o If non-custodial sentence indicated and D indicated guilty plea on MC.

indication binding

D can ask for an indication of sentence (custodial or not) if they were to plead guilty instead: ▪ Court has discretion. ▪ If court gives indication, must be confined to telling D custodial or noncustodial. ▪ Then court should ask D whether he wishes to reconsider indication of plea. ● If reconsidered court asks for a fresh indication so ‘plea before venue’ repeats. ● If doesn’t plead guilty, sentence indication not binding. o If after indication, accused indicates intention to plead guilty: ▪ He will be regarded as entered guilty plea and MC proceed to sentence. o Election – if D doesn’t ask for indication, or (ii) court refuses to give indication, or (iii) if having heard indication D sticks with NG plea court asks the D if they consent to being tried in MC. EXCEPTIONS (where indication not binding): o On CC where dangerous offender provisions engaged – if criteria for extended sentence regarding dangerous offenders satisfied, MC must commit to CC for sentence indication of non-custodial not binding on CC. o Committal to CC where also 1+ related offences being tried in CC: where MC commits to CC for sentence on basis that accused has indicated guilty plea to an either-way offence, AND is also being sent to trial in CC for 1 + related offences power to commit for sentence here is not ousted by an indication, and CC is not bound by indication.

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If after indication, accused indicated guilty he will be regarded as entered a guilty plea and MC proceed to sentence. Custodial is available only if sentence indicated by court.

11. Understand the particular rules in relation to low value criminal damage and low value shoplifting charges. S22A MCA: where value does not exceed £200 – it is not said to be a ‘summary only offence’. However, can still elect CC. Below £5,000 - Summary only - maximum sentence is only 3 months imprisonment or fine at level 4 standard scale. Defendant cannot be committed for sentence.

12. Understand advantages and disadvantages of trial in Magistrates/Crown Court. Advantages of Magistrates: - Less formal - Waiting time before trial date shorter - No requirement on D in MC to serve a defence statement - Magistrates have to give reasons for a conviction CF juries don’t. - Costs lower in MC. - Automatic right to appeal from MC to CC, but CC can only appeal on legal point.

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Disadvantages of Magistrates: Sentencing powers of MC less than CC – may not be enough Tribunal of fact and law same people Inconsistent Advantages of Crown: Separate tribunal of law and facts – acquittal rate is higher Juries are more sympathetic rather than judges Legal submissions, if case is technical, take it to crown court as magistrates don’t have legal backgrounds, and unlikely to follow when you make a technical legal sub...