Criminal Process revision notes PDF

Preview

Summary

Criminal Process Syllabus  1. Police Station procedure: a. arrest b. detention c. Interview d. decision to charge  2. Pre-trial issues: a. commencing a criminal case in magistrates’ court b. funding c. bail d. allocation e. commencing a criminal case in the Crown Court  3. disclosure: a. prosecut...

Description

Criminal Process Syllabus  1. Police Station procedure: a. arrest b. detention c. Interview d. decision to charge  2. Pre-trial issues: a. commencing a criminal case in magistrates’ court b. funding c. bail d. allocation e. commencing a criminal case in the Crown Court  3. disclosure: a. prosecution disclosure b. defence disclosure c. guidance on disclosure  4. trial issues: a. the charge b. double jeopardy c. defendant’s presence d. special measures e. juries f. no case to answer g. trial running order.  5. Sentencing: a. purpose for sentence b. types of sentence c. assessing seriousness d. reports  6. Appeals: a. process from the magistrates’ court b. process from the Crown Court

Offence committed Suspect arrested – detained interviewed NoFur t he rAc t i on

If there is sufficient evidence (& public interest) suspect will be charged

No Evi de nc e

Cha r g e d

Initial hearing in the Magistrates’ Court

Either way offence (Allocation)

Summary offence

Indictable only offence

Crown Court

Magistrates’ Court PLEA*

Not Gui l t y Trial – can guilt be proven beyond all reasonable doubt?

Gu i l t y

Ye s

Conviction

No Se n t e nc e Acquittal

*Ti mi n gof pl e ade pe nds ont ypeof c a s e

Lecture 1 Introduction, Arrest and Detention PACE 1984 & the Codes of Practice  PACE – Police and Criminal Evidence Act 1984: – The statute primarily governing police conduct  Codes of Practice:  A – Stop and search  B – Powers to search premises  C – Detention and treatment and questioning of suspects  D – Identification procedures  E - Audio recording of interviews with suspects  F – visual recording of interviews with suspects  G – Powers of arrest under section 24 PACE  H – Detention treatment and questioning of suspect relating to terrorism Arrest  The start of police detention – no clear definition, but it is known to be when it is made clear that a person is not free to go (words or actions)  There must be a power of arrest & it must be carried out properly  Arrest can be made with or without warrant Arrest without warrant  Two criteria:  1. Commission of an offence: A constable may arrest without warrant:  Anyone who is about to commit an offence  Anyone in act of committing an offence  Anyone who has committed an offence (see s.24(1)-(3) PACE) Note: the officer must have reasonable grounds to suspect the commission of the offence. (subjective test/personal to the officer)  2. It must be necessary to arrest:  The necessity grounds are listed in s.24(5) which include:  ascertain his real name and address; prevent the person causing injury to himself or another; prevent the person causing criminal damage; committing an offence against public decency; to protect a child or vulnerable person; to allow the prompt investigation of offence or to question the person. Information on arrest  The suspect must be told the following at the time of his arrest: 1. that he is under arrest; and 2. the reason for his arrest (s.28 PACE). He must be told this even if circumstances make the reason for arrest obvious.  He should also be cautioned on arrest or as soon as practicable afterwards.(Code C and G)  Failure to may have evidential consequences

Lawful arrest (non-constable)

Persons other than the police can arrest without a warrant if:  A person is committing an indictable offence (or they have reasonable grounds for believing that he is)  An indictable offence has been committed and the person is guilty of it (or they have reasonable grounds for believing that he is). One of the four necessity conditions must be made out:  To prevent the person from causing physical injury to himself or another  To prevent the person from suffering physical injury  To prevent the person causing loss of or damage to property  To prevent the person from making off before a constable can assume responsibility for him. The caution on arrest  Code C 10.4/G 3.5: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.” Note the 3 clear parts to the caution. Why is lawful arrest important?  Suspect’s rights  s.117 PACE 1984 - Power of constable to use reasonable force.  Where any provision of this Act— (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power. Arrival at police station  Role of the Custody Officer: o Sergeant or above o Independent of the investigation o Takes decisions on detention (necessary), questioning, treatment, bail etc. o Duty to ensure detention in accordance with PACE o Duty to inform the suspect of grounds of detention o Opens and maintains a custody record o Gives the suspect his rights Booking in  Open Custody Record – unique custody record number.  Decide if detention should be authorised – only one necessity ground here c.f. arrest.  Explain rights to detainee  Risk assessment – check his mental and physical health Suspect rights  On arrival, will be informed of: Right to a solicitor – s.58 PACE Right of intimation – s.56 PACE Right to consult the Codes of Practice  Other rights at the police station: Right to a copy of the Custody Record Right to remain silent

Right to an appropriate adult (if required) Risk assessment  Code C3.6 - 3.10:  Is detainee in need of medical treatment?  Is detainee a risk to staff?  Is detainee a risk to himself?  Is detainee mentally vulnerable?  The custody officer is responsible for carrying out the risk assessment. Health care Code C Para 9  If the risk assessment indicates a problem:  Health care professional will advise on fitness to detain and fitness to interview  May provide treatment  May prescribe certain drugs  Will record injuries etc.  May recommend transfer to hospital  May advise on how long it will take before T is fit for interview Other entitlements Code C Para 5 and 8  Clean, well-lit and ventilated cell  Bedding; toilet facilities  Adequate replacement clothing  2 main meals and 1 light meal plus drinks at meal times and upon reasonable request  Exercise if practicable  Visits at CO’s discretion  Writing materials  Telephone call  Note this list is not exhaustive. Offence categories Summary Only offences:  very minor offences that can only be dealt with in the Magistrates’ Court.  Examples include - assault and battery, shoplifting (theft) of items valued less than £200, parking on a double yellow lines, no TV licence, drunk and disorderly etc.  Maximum prison sentence the magistrates’ can give is 6 months for each offence Either Way offences:  Middle of the road in severity  Can be dealt with in either the Magistrates’ or Crown court hence the name.  Examples include – assault occasioning ABH, grievous bodily harm/wounding without intent (s.20), criminal damage over £5000, theft, burglary, sexual assault.  The sentence will depend upon the specific offence and court. Indictable Only offences:  Very serious offences that can only be dealt with in the Crown Court.  Includes – murder, manslaughter, rape, robbery, grievous bodily harm/wounding with intent (s.18).  Sentence will include life imprisonment. Detention time limits – ss41-44 PACE

Offence

Initial period

1st Extension

2nd Extension

3rd Extension

Summary only

24 hours

Not applicable

Not applicable

Not applicable

Either Way

24 hours

Up to 36 hours by police

Up to 72 hours by magistrates

Up to 96 hours by magistrates

Indictable only

24 hours

Up to 36 hours by police

Up to 72 hours by magistrates

Up to 96 hours by magistrates.

Note the detention clock runs from the time of arrival at the police station. Release form custody on police bail will stop the clock, it will resume on re-arrest. Once the maximum detention time has been reached the suspect must be charged or released. Contact with solicitor  Police cannot dissuade D from having a solicitor  Police must remind D of right to a solicitor when detained, prior to interview, prior to ID procedure etc.  If D changes his mind Custody Officer must ask for reasons and note on Custody Record  Duty to contact solicitor as soon as practicable  Advice can be in person or by telephone Solicitor’s role  PACE 1984 - Code C Note 6D “The solicitor’s only role in the police station is to protect and advance the legal rights of his client...”  This includes; seeking clarification of an issue; challenging an improper question; advising client not to answer a question; giving further legal advice.   

Lecture 2 Interview, charge and beyond What is a police interview?  “An interview is the questioning of a person regarding their … suspected involvement in a criminal offence … which … must be carried out under caution” C11.1A

If there are grounds to suspect a person of an offence s/he must be cautioned before any questions are put to them: C10.1  Does not include questions solely to establish identity or ownership of vehicle or questions relating to the carrying out of a search Taken to the police station  The location of an interview is immaterial to the definition. Questioning carried out anywhere is likely to be considered an interview.  For most crimes s.30 PACE applies: o The suspect should be taken to a police station as soon as is practicable after arrest. o BUT If a decision has been made to arrest a person they must not be interviewed except at a police station unless delay might cause harm to evidence, people or property, alert other suspects or hinder recovery of property C11.1 At station  Once at the police station all rights and entitlements apply,  Health of suspect can be monitored (risk assessment / access to medical care if necessary),  Access to legal advice,  Access to Appropriate Adult (if necessary),  Interviews are recorded Seeing solicitor  The solicitor can be D’s preferred choice;  Or the duty solicitor.  The solicitor should attend the police station for interview in most cases but in less serious cases may give advice over the telephone..  On arrival at the police station the solicitor will speak with the custody sergeant, look at the custody record, speak to interviewing officers.  Note the police do NOT have to disclose info to the solicitor BUT a failure to do so may have consequences re advice. Solicitor’s role for interview  Prior to interview o Advise client on whether to answer questions or not o Advise on interview procedure  In interview: o Intervene where questioning inappropriate o Intervene to clarify a question o Give further legal advice Seeing the suspect  Private consultation with suspect before interview  Tell suspect what police have told you  Ask him for his account  Test his account  Explain the law  Give advice as to course of action  Always suspects choice Courses of action: 

1. Remain silent  No obligation to speak  Will not implicate himself  If guilty, police may not have enough evidence to charge  May attract inferences (link to Evidence)  2. Answer questions  Provides his full account and defence  May not be charged  May be able to accept another disposal option  If admits guilt beneficial at court  Avoids inferences (link to Evidence)  . Written statement  Gets account and defences on record  Avoids being questioned by police  Avoids giving silly answers that may incriminate somehow  Can avoid attracting inferences (link to Evidence)  Must be full and complete.  Can add to the statement if needed. Interview room  Usually 2 officers, suspect and solicitor (appropriate adult if necessary)  Audio recorded, possibly visually recorded too.  Solicitor sits next to suspect to communicate  Solicitor can intercede if necessary,  But cannot answer questions for the suspect. Basic interview rules  At the outset of the interview the police must give the suspect an opportunity to comment on any significant statements or silences that arose prior to interview C11.4  There must be breaks in interviews at recognised meal times and at least every two hours.  Remember the 8 hours period for sleep. Misconduct in interview  No officer may try to obtain answers by oppression or use any threats or inducements to get answers Code C para 11.5  Compare with the rules of evidence on the exclusion of confession evidence.  Threats c/f exclusion of a confession on the basis of oppression.  Oppression includes torture, inhuman or degrading treatment and threat or use of violence: s.76(8). R v Fulling: Use of power in a “burdensome, harsh or wrongful manner”  Inducements include improper promises or statements made by the police during the interview.  c/f exclusion of a confession on the basis of something said or done likely to render the confession unreliable.  If a complaint is made during an interview the police should record it in the custody record and inform the Custody Officer Interview records 

An accurate record must be made of each interview (verbatim or accurate summary) C11.7  Interviews in police stations for indictable only and either way offences must be recorded Code E  Police must also record any “unsolicited comments” outside the context of an interview and give the suspect an opportunity to confirm or deny the comment made C11.13 Vulnerable suspects  These categories require extra help: o Juveniles (17 and under) o Mentally disordered (e.g. mental illness, or learning disability) o mentally vulnerable (may not understand the significance or what is said due to their mental state or capacity)  They require the help of an Appropriate Adult (PACE Code C para 1G) Appropriate adult  Must be called if the police suspect or are told in good faith that D may be a juvenile or mentally disordered or vulnerable  Appropriate Adults can include relatives, guardian, someone with experience of dealing with MD/MV people or some other responsible person  Must be independent of the police  A person who is a suspect, victim, witness, investigator, received admissions prior to attending, under 18, the solicitor, lay visitor, police officer etc. cannot act as an appropriate adult. Their role  Facilitate communication  To be present when important issues are raised: rights read, cautioned, interviewed, identification, search, charge etc.  AA can call a solicitor even if suspect does not request one  Advice regarding rights (not legal)  Observe the interview is fair Disposal options  Charge – decision usually by Crown Prosecution Service (see CPS “full code” test)  NFA – No further action  Informal Warning – for v. minor cases, not on crim record.  Formal/Police Caution – will appear on record, avoids court  Conditional Caution – as above but with conditions attached  Penalty Notice – used for minor offences, appear on record. Decision to prosecute  Code for Crown Prosecutors Full Code test –  2 stage test:  1. Evidential test – is there a realistic prospect of conviction o This is an objective test. It means that a [court] is more likely than not to convict the defendant.”  2. Interests of justice test – is it in the public interest to prosecute?  Alternative: “Threshold test” (Code for Crown Prosecutors para 5.2) 



o Applied in limited circumstances where “full code” test not met but circumstances / seriousness of case justifies the making of an immediate charging decision. o Intended to keep D in custody Prosecutors must determine whether the following conditions are met: o there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and o there are reasonable grounds for believing that further evidence will become available within a reasonable period; and o the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and o there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.

Lecture 3 Pre-trial procedure: Bail or custody? What’s bail?  Everyone charged with an offence is deemed to be ‘on remand’. Remand:  1. Remand in custody  2. Remand on conditional bail  3. Remand on unconditional bail What is unconditional bail?  Release from custody subject only to an obligation to return. When is bail considered  ‘Pre-charge bail’ (police bail) granted by a Custody Officer following arrest; custody time clock is paused  ‘Post-charge bail’ (bail to court) granted by a CO; may be subject to conditions  ‘Court bail’ granted by a court; may be subject to conditions  Bail also arises as an issue after conviction but before sentence or pending an appeal Competing interests  Unconvicted defendants should be permitted to remain at liberty until trial (linked to the idea of presumption of innocence – there are human rights implications of keeping someone in custody pre-conviction)  Society has an interest in protecting itself from further criminal conduct / harm to the process of justice Why does question of bail arise  Right to bail in Article 5 ECHR: o “Everyone arrested and detained [for an offence] shall be brought promptly before a judge … and shall be entitled to trial within a reasonable time [and] to release pending trial…”  Right to bail in the Bail Act s.4: o Prima facie right to bail; o “A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.” How long can a person be remanded for?

Remand on bail - no limit but subject to the requirement for trial in a reasonable time.  Remand in custody - initial limit for Magistrates = 8 days; thereafter 28 days (s.128(A) MCA 1980).  If D consents and is represented s/he can be remanded in custody for up to 3 consecutive hearings in his/her absence.  Overall ‘custody time limits’ s.22 Prosecution of Offences Act 1985. Time limits 

From 1st appearance to start of trial

From sending to start of trial

Summary only

56 days

n/a

Either way

70 days to start of summary trial 70 days until sent to trial

182 days (less any time spent in custody prior to the case being sent to the crown court)

Indictable only

n/a

182 days (from first appearance in custody in mags’ court)

Refusing bail for imprisonable offences – Schedule 1  Para 2 - Substantial grounds for believing: o D would Fail to surrender (FTS)* o D would offend on bail* o D would interfere with witnesses/course of justice*  Para 2A – D suspected of either way/indictable offence and already on bail*  Para 3 - D’s own protection  Para 4 - D already on a custodial sentence  Para 5 - Lack of time to obtain information  Para 6 - D has already FTS on this offence*

Exceptions to the right of bail (imprisonable offences)  Sch 1, Part 1, para 1A (inserted by LASPO 2012):  If it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence –  Then the court cannot refuse him bail using the five criteria with a *. Factors to be considered by the court  The court must consider the following: o Nature and seriousness of the offence and probable sentence (aggravating factors?) o D’s character, antecedents, associations and community ties (personal details of his life) o D’s previous bail record o Strength of the evidence o Any other relevant matter Reapplying and appealing  D can apply for bail twice on the same facts  Thereafter the court need not consider submissions unless there is a material change in circumstances or legal argument (or 28 days have elapsed)  A magistrates’ court must iss...