Criminal Litigation - Memory

Summary only offences

1. Assault

2. Battery

3. Simple criminal damage - value <=£5000

4. Attempt simple criminal damage - value <=£5000

5. Theft (Low value shoplifting <£200)

Either-way offences

1. Theft s.1 Theft act

2. Burglary - 91a and 91b

3. Fraud

   1. False representation

   2. Abuse of position

   3. Failing to disclose

4. ABH s47

5. Wounding or GBH s20

6. Simple criminal damage - >£5000

7. Simple arson

8. Attempt of the above

Indictable only offences

1. Robbery

2. Wounding or GBH with intention s18 

3. Aggravated burglary

4. Aggravated arson

5. Aggravated criminal damage

6. Murder

   1. Voluntary manslaughter

   2. Involuntary manslaughter

      1. Unlawful act manslaughter

      2. Gross negligence manslaughter

7 SRA principles

1. The rule of law

2. Public trust and confidence

3. Independence

4. Honesty

5. Integrity

6. Encourage equity, diversity and inclusion

7. Best interest of client

Duties to the court

• Solicitor = officer of the court

• Overriding duty 

  • Not mislead the court

• Client’s insistence to mislead the court - stop acting

• D enter not guilty plea → NOT misleading the court

  • D can wait for the prosecution to prove

• Cannot allow the client to advance a positive case or present false evidence

Public interest > duty of confidentiality

• Explain to client - the need to disclose to the court

  • Must ask for consent, if not, cease to act

• No instruction from client

  • Court ordered to give details for witnesses

  • Cannot give reasons to court for non-compliance

Conflict between duty of confidentiality & disclosure

Duty of confidentiality always overrides disclosure

General rule of action following arrest

Person must be taken to a police station as sson as practicable

Exceptions to General rule of action following arrest

• Necessary and reasonable to carry out investigation immediately

• Being searched

• Being taken to premises being searched

• Being taken to a place to check alibi

Role of the custody officer

1. Handling and welfare of suspects in detention at the police station

2. At least a sergeant

3. Unrelated to the process of the investigation of the offence

Rights of a suspect being detained by the police

1. Legal advice

2. to have someone informed

Reviews of detention

• First review in 6 hours

• Every 9 hours after

• Review officer - inspector

• Every review - remind the detainee of the right to free legal advice and to make representation

Right to legal advice

S58 PACE consult with a solicitor in person or the phone or in writing

When should legal advice be provided at police station

• Starting or restarting the interview

• Providing an intimate sample

• Intimate search

• Idenftification procedure

• Note on the custody record if legal advice is declined

• Provide legal advice ASAP

Delay of right to legal advice - Criteria

• S58 COP Cannex B

• Maximum of delay 36 hours

• Grounds must be informed

• Restriction on drawing adverse inferences in court

• Criteria

  • Indictable offence or either way offence

  • superintendent 

  • Reasonable grounds to lead to consequences

    • Interference or harm to evidence

    • Interference or harm to others

    • Alterting other suspects

    • Hinder recovery of property

• Delay a named solicitor is possible; the right itself is hardly justified

right to have someone informed of arrest

S56 PACE inform a person they are under arrest

Delay to the right to have someone informed of arrest - Criteria

• Indictable offence or either way offence

• Inspector

• Reasonable grounds to lead to consequences

  • Interference or harm to evidence

  • Interference or harm to others

  • Alerting other suspects

  • Hinder recovery of the property

Detention time limits

• Max 24 hours from relevant time

  • When arrive at the police station OR

  • When arrested after coming to the station and interviewed

Extension of detention time limits - beyond 24 hours

• S42 PACE

  • Authorisation to extend before expiry of initial 24 hours

    • After the second review

  • 12 hours further

  • criteria

    • Superintendent

    • Reasonable grounds: secure evidence or obtain evidence by questioning

    • Indictable offence / eitherway offence (CC)

    • Investigation conducted diligently and expeditiously

Extension of detention time limits - beyond 36 hours + 36 hours

• S43, 44 PACE

• Apply to MC for a warrant

• Reasonable grounds: secure evidence or obtain

• Indictable offence / eitherway offence (CC)

• Investigation diligently and expediously

when an identification procedure must be held

• Witness the offence AND

  • Witness has identified or purported to have identified a suspect

  • Witness has a reasonable chance to identify the suspect

  • express an ability to recognise the person if they saw them again

• Suspect disputes being the person the witness claims to have seen

Video identification

• Placed at least 8 other resemble individuals in age, appearance and position in life

• Conceal unusual physical features

• Recorded on video and sound

• Witnesses are not able to communicate with each other

Identification parade

• Placed at least 8 other resemble individuals in age, appearance and position in life

• Conceal unusual physical features

• Witnesses must not communicate with each other or see the members or suspects of the parade

Group identification

Covert without consent or with consent

location should be one where other people are either passing by or waiting around informally

colour photograph or video should be taken of the general scene

witness should be able to communicate with each other

Process of video identification procedure

1. Suspect filming

2. Lookalike selection

3. Video creation

4. Unusual feature handling

5. Suspect review and objection

6. Eyewitness briefing

7. Eyewitness viewing

Process of identification parade

1. Presence during the parade

2. Recording

3. Place the 9 individuals in line

4. Conceal the unusual features

5. Pre viewing instructions

6. Bring in the witness one by one for viewing

7. Witness reuqes

Right to silence

• Basic right - no obligation to answer questions in a police interview

• Court may draw adverse inference

Adverse inferences - Common provisions

• S.34 fact is later relied on at trial and would have been reasonable to mention

• S.36 fail to account for a mark, object or substance

• S.37 fail to account for presence at the scene

What adverence? S.34

• Account may be untrue, cannot stand up to police questioning and had no reasonable explanation at the time of the interview

• Suspect must be cautioned

• Must be reaonsble to have mentioned (circumstances)

  • Disclosure had been made to the suspect or their lawyer by the police

  • Information the prosecution can demonstrate the suspect knew at the time of questioning or charge

  • Condition and circumstances of the suspect

  • Any legal advice suspect received

What adverse inferences? s36 & 37

S36 & 37 arise as soon as there is a failure to account

• require D to be given a special warning

  • What offence is being investigated

  • What fact they are being asked to account for 

  • The fact may be due to them taking part in the commission of the offence

  • Court may draw proper inference if they fail to account for it

  • Record of the interview will be made and may be given in evidence 

Safeguard to adverse inference

• S.38 no one may be convicted solely based on adverse inference

• No adverse inference cna be drawn where the suspect has not been allowed access to legal advice

Role of defence legal representative/ solicitor including representation of vulnerable client

• Code of Practice C

• Protect and advance the legal rights of the client

• Active defence

  • Obtain information from the police

  • Advise client according to professional obligations

  • Advise on issues during police investigation

  • Attend and advise during the interview 

  • Make notes of breaches of PACE and the COP

  • Ask custody offer to note in custody record: interviewing officer reufusing a reasonable request

  • Take notes

Who can be an appropriate adult

• Parent

• Guardian

• Representative of care authority or voluntary organisation

• Social worker

• Anyone above 18 who is not working for the police

Who cannot be an appropriate adult

• Anyone involved in the offence

  • Potential suspect

  • Victim

  • Witness

  • Involved in investigation

  • Mentally incapable

  • Person who receive admission before acting as appropriate adult

  • Estranged parent - specifically objects to

Role of appropriate adult

• Ensure the detained person udnerstands what is happening and why

• support , advise and assist the detained person

• Observe if the police are acting properly and fairly and interven if not

• Assist with communication between detained person and the police

• Ensure the detainee understand the protected rights

Bail application

• The right to bail and exceptions

  • Normal practice: D is presumed to entitle to bail unless there are exceptions

  • Prosecution raises the objection to bail at MC

    • Except murder at CC

Conditional bail

• Residence at a given address

• Curfew - e.g. stay at home after certain hours

• Reporting to local police station at given times

• Surety - money from D

• Security - money from third party

• Restriction on where D may go

• Restriction on who D can contact

• Electronic monitoring - tagging

• Bail hostels

• Surrender of passport

Procedure of bail application

• After the prosecution object to bail 

• D appear before the next MC in custody

• Prosecutor will outline objections

• Defence presents the argument for bail to be granted

• Court decision

further applications for bail

• Can attempt twice getting bail at MC

• Secure a certificate of full argument at MC to appeal at CC

  • Repeat the same application and second attempt

• once attempt appealing bail at CC

appeals against decisions on bail

Rare for prosecution to appeal against the bail application

Conditions

• Prosecution must have opposed bail originally

• Offence must be punishable by imprisonment

• Prosecution indicate orally at the hearing - they will appeal

• Confirm intention to appeal in writing and served on court and defence in 2 hours

• Appeal is heard in 48 hours in working days

  • MC → CC judge → high court judge

Absconding and breaches of bail

• Not an offence 

• Power of arrest allowing officers to arrest those either in breach or who are about to be 

• Brought back to MC - determine if D should have bail onward

• Introduce more grounds of objections

• Fail to surrender = offence - up to 3 months imprisonment or unlimited fine - summary offence

• 12 months imprisonment or unlimited fine - indictable

Applying for a representation order (legal aid)

1. Mean test

2. Merit test

Mean test

1. automatic

   1. Under 18 years of age OR

   2. On specified welfare benefits

      1. Universal credit, jobseeker allowance

2. Magistrate court

   1. Initial assessment - gross annual income

      1. Eligible - <12475 

      2. Undertaker full means test - 12475 - 22325

      3. Ineligible - >22325

      4. Full mean test based on annual household disposable income

         1. Threshold = 3398

3. Crown court

   1. Assessed on income and capital

   2. After >30000 combined capital and equity allowance

      1. Ask to contribute any balance to their defence costs

   3. Eligibility threshold - annual household disposable income 

      1. Ineligible: => 37500

      2. Eligible but with a contribution: 3399 - 37499.99

      3. Eligible without any contribution: <3399

Merit test - interest of justice to be represented

1. Automatic pass

   1. Indictable only offence OR

   2. An either way later sent to CC

2. Is the consequence serious enough to get the funding?

   1. Loss of liberty

   2. Suspended sentence or may be sentenced for original offence

   3. Loss of livelihood

   4. Suffer serious damage to reputation

   5. Substantial question of law involved

   6. Unable to understand the proceeding or present own case

      1. Language

      2. Interpreter not sufficient

      3. Youth?

      4. Learning difficulties or mental disorder?

   7. Involve expert cross examination of aprosecution witness

      1. Any issue making it difficult to cross examine the witness

      2. Police officer involved?

   8. Witnesses may need to be traced or interviewed on my behalf

   9. In the interest of another to be represented

      1. Cross examined by D - sexual offence

      2. Yound vctim

      3. Must be somone involved in the proceeding

First hearing at MC

• Plead before venue

• Bail 

• Representation and legal aid

role of the defence solicitor at first hearing

• Prosecution is required to serve the initial details of the prosecution case IDPC no later than the beginning of the day of first hearing 

• Provide legal advice for the client 

• Protect client interest

• Plea indication

• Bail application

Plea before Venue

• D will be provided with a copy of IDPC

• Write down the charge and read out to D

• Ask to indicate the plea

  • Guilty 

    • Proceed to sentence

  • Not guilty

  • Give no indication → as NOT guilty plea

• Unequivocal guilty plea

Allocation procedure

1. consider allocation guideline

   1. general rule: eitherway offence tried summarily unless

2. Insufficient sentencing power (>6 months) after considering personal mitigation and reduction for a guilty plea

3. Unusal legal, procedural or factual complexity

Guilty plea of Eitherway offence

1. if sufficient power, Sentencing / prepare a pre-sentence report

2. if insufficient power, send to CC for sentence

MC retained case jurisdiction

1. explain to D summary trial is more suitable

2. The defendant can consent to be tried summarily or, if D so wishes, be tried by a jury

3. If D is tried summarily and is convicted, D may still be committed to the Crown Court for

   sentence

Indication of sentence

• court has the discretion as to whether they will give an indication

• must be confined to telling the defendant whether the sentence would be custodial or non-custodial

• if noncustodial sentence is indicated - binding on later MC sentence

Election

Court ask D if D consent to be tried in MC OR tried by a jury in CC

MC still has power to commit to CC for sentence

Advice on election - CC

CC

• acquittal rate is higher in the Crown Court; and

• The separate tribunals of law and fact in the Crown Court can be advantageous to defendant.

  • Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury

• CC sentence not always harsher than MC

Advice on election - Summary trial

• less formal

• shorter waiting time before the trial date

• quicker trial

• No mandatory requirement to serve a defence statement

• less expensive than the Crown Court.

• Magistrates have to provide reasons for their decision whereas juries do not give reasons.

• Magistrates have less sentencing powers than CC

• However, the magistrates’ court has a power to commit to the Crown Court for sentence even after trial.

Magistrates' court case management directions

• PET form - preparation for effective trial form

  • Basic information: D and legal representative

  • Witness

  • Estimated length of trial

  • Issues

  • Warning of any application to be made

  • Special arrnagmeent

• Court will set a timetable for trial and estimate of time length

• Usual (standard) directions

  • Bad character evidence

  • Hearsay evidence

  • Special measures

  • Disclosure

  • Expert evidence

  • Transecripts of interviews

  • Certificates of readiness for trial

Plea and Trial Preparation Hearing

• Usually in 28 days after the sending to CC; pre trial CC hearing

• Prosecution serves sufficient evidence to avoid further case management hearing

  • Unless murder or invovling chaildren

Plea at CC

• Put an indictment to D and ask to enter a plea on each count → arraignment

• Unfit to plead

  • Hold the trial with a jury to determine if D committed the AR

    • Absolute discharge

    • Supervision order

    • Hospital order

Trial preparation stage

• Stage dates

  • Trial date

  • Prosecution evidence

  • Expert evidence

  • Witness requirements

• Standard directions

  • Special measures

  • Bad character

  • Witness summons

  • Agreed facts and issues

  • Disputed facts and issues

  • Defence statement

  • Disclosure

  • D interview

  • Hearsay

  • Admissibility and legal issues

Used material - rely on at trial

• Prosecution witness statement

• Interview record

• Other documentary evidence

Unused material - not rely on at trial

• Statement not adopted

• Record of previous conviction of prosecution witnesses

• Disciplinary findings against police officer

4 stages of disclosure

1. Investigation

   • Disclsoure officers reveal material to the prosecutor and the defence

   • Disclosure officer seek to clarifty if any material is disclosable

2. Initial duty of disclosure on the prosecution

3. Defence disclosure

4. Continuing duty on the prosecution to review disclosure

Prosecution duty of disclosure

• Disclose to the accused any prosecution material, undermining the prosecution case or assisting the D case OR

• Give a written statement to confirm no such material

s.3(2) CPIA 1996 test of disclosure

• Relating to Prosecution material 

• In proseucitor possession and came into his possession in connection with teh case against the accused OR

• The prosecutor has inspected in connection with the case for the prosecution against the accused

A-G’s Guidelines - disclosure test

• Whether the material should be disclosed under s.3 CPIA

  • The material might be used in cross examination?

  • The material may lead to 

    • excluding evidence

    • Stay the proceedings as an abuse of process

    • Court finding that public authority act incompatibly with the ECHRA 

  • Capacity to explain the accused actions

  • Capacity of the material to have a weight on the scientific or medial evidence in the case

Disclosure management document

• Organised and systematic disclosure of the duty

• Encourage communication with defence

• Disclosure strategy if a large volume of material

How defence statement should be structured

• Nature of the defence intends to rely on

• Matter of fact takes issue with the prosecution

• Why he takes issues

• Facts intend to rely for the defence

• Any point of law e.g. admissibility of evidence or breach of PACE code

Defence disclosure

• S.5 Criminal Procedure and Investigation Act 1996

• Compulsory to serve in 28 days on the prosecution and CC after the prosecution serve initial disclosure

  • Can extend time limit only if it is not reasonable to give defence statement in 28 days

• Not compulsory to serve defence statement at MC but if served in 10 business days after the initial duty of disclosure; losing right to apply for specific disclosure if not

Disclosure failure by the prosecution

• Apply to stay the indictment

  • On the ground of abuse of process

• Quash a conviction on appeal due to being unsafe

• Dealy and wasted costs or refusal to extend custody time limits

• Exclusion of evidence due to unfarienss

Burden and standard of proof: admission and exclusion of evidence

• Burden of Proving an element lies with the prosecution

• Beyond reasonable doubt = so that you are sure of guilt (prosecution)

• On the balance of probabilities (defence)

• Legal burden to prove an element of the case

• Evidential burden to provide evidence to satisfy the judge that the matter should be argued before the jury

Turnbull Guidelines

Where the case against the accused depended wholly or substantially on evidence of identification

When Turnbull guidance is given

1. when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification

2. the suspect alleged to be mistakened

   1. alleged recognition

   2. disputed the presence at the scene

3 elements of turnbull warning

• Instruct the jury as to the reason for the need for such a warning

• Direct the jury to examine the circumstances in which the identification by each witness came to be made

• Remind the jury of specific weaknesses in the identification evidence

Other evidence that may support identification

• Scientific evidence

• Multiple identification by different witnesses

• Bad character

• Adverse inference

• Admission / confession

Assessing quality of identification evidence

• Amount of time of observation

• Distance

• Visbility

• Obstruction

• Known or seen it before

• Any reason to remember

• Time lapse

• Error or discrepancy

Inference from silence: s.34 Criminal Justice and Public Order Act 1994

• fact is later relied on at trial and would have been reasonable to mention

  • Account may be untrue, cannot stand up to police questioning and had no reasonable explanation at the time of the interview

  • Suspect must be cautioned

Inference from silence: s.35 Criminal Justice and Public Order Act 1994

• D has no obligation to give evidence; but can result in adverse inference

Inference from silence: s.36 & 37 Criminal Justice and Public Order Act 1994

• S.36 fail to account for a mark, object or substance

• S.37 fail to account fo presence at the scene

  • Given a special warning 

    • What offence, what fact, connection to the offence, fail to answer may draw inference, record is made of the interview

  • S36 & 37 arise as soon as there is a failure to account

S. 38 Criminal Justice and Public Order Act 1994 - safeguard

no one may be convicted solely based on adverse inference

Hearsay evidence

A statement made out of court and the person who made it intended another person to believe and it is adduced as evidence of the matters stated

Generally inadmissible

Grounds for admitting hearsay

s.116 - Witness unavailable - exceptionally admissible

s.117 - Business and other documents

• Medical record or police record

s.118 - preservation of common law categories of admissibility

s.119 - previous inconsistent statements

s.120 - previous consistent statements

s.121 - Multiple hearsay  ( NB: - Never allowed through s.116 or s.118)

Common law categories of admissibility

• public information;

• evidence of reputation;

• res gestae;

• Confessions;

• statements in furtherance of common enterprise; and

• body of expertise.

(e.g. Res gestae - extreme - no time to fake / confessions/ public records)

Safeguards of hearsay admission

s.125 - Unconvincing Hearsay - allows Judge to stop case if it would be unsafe

s.126 - superfluous hearsay (won't allow waste of time on peripheral matters)

Confession

• S.82 of PACE

• Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise

• admissible under s.118 CJA 2003

Challenge / exclude confessions s.76 PACE 1984

Court shall not allow confession evidence to be admitted against D

• unless proved by the prosecution beyond reasonable doubt the evidence was not obtained in the 2 limbs

s.76(2)(a) confession was or may have been obtained by oppression

s.76(2)(b) obtained as a result of anything said or done which was likely, in the circumstances existing at the time, to render it unreliable

s.76(2)(a) Oppression

• torture, inhuman or degrading treatment

• use or threat of violence

s.76(2)(b) unreliability

1. identify things said or done

   1. including omission or failure to act

2. ask whether what was said and done was likely in the circumstances to render unreliable a confession as a result (objective test)

3. ask whether the prosecution has proved beyond reasonable doubt (common sense)

examples of unreliable confessions

Unreliable - literal meaning - cannot be relied upon as truth

1. Depreivation of sleep

2. Failure to caution

3. Denial of access to legal advice

Excluding evidence s. 78 PACE

exclusion of unfair evidence

Court may refuse to allow evidence the prosecution relies on; if admission of the evidence would have an adverse effect on the fairness of the proceedings that the court ought not to admit it

Bad character evidence - s98 CJA 2003

evidence of misconduct on his part

• Has to do with the alleged facts of the offence with which the D is charged OR

• Evidence of misconduct in connection with the investigation or prosecution of that offence

7 gateways to admit bad character evidence

1. Agreement of both parties (A)

2. Blurt it out (D)

3. context (I)

4. done it before (R)

5. e did it (P)

6. false impression (C)

7. gets at the witness (D)

s103(1)(a) Important matter and issues between D and prosecution

1. whether D has a propensity to commit offence of the kind with which he is charged

2. whether D has a propensity to be untruthful

Propensity Test

Hanson test

1. Does the history establish a propensity to commit offence of the kind?

   1. the fewer, the weaker

2. Does the propensity make it more likely that the defendant committed the offence charged?

3. When the previous offences are of the same category or description as the offence charged, unjust to rely?

   1. any other evidence against the D?

Propensity to be untruthful

Can only show propensity to be dishonest

1. plea of not guilty to previous offence and gave evidence at trial which the jury must have disbeleived

2. offence committed involved being untruthful e.g. fraud

3 gateways s. 100(1) Criminal Justice Act 2003 - non defendant

1. Important explanatory evidence

2. Substantial probative value to the matter

3. Agreement of the parties

Procedure to admit bad character evidence

1. prosecution

   • Set out the facts of the misconduct the party relies

   • Explain how the party prove the facts

   • Explain whjy evidence is admissible

2. Defence

   • Which facts in the notice is disputed

   • What the party admits?

   • Why evidence not admissible

   • Why unfair to admit evidence

   • Any other objection

Time limit for Defendant bad character evidence application

• Prosecution

  • MC: 20 business days after pleading not guilty

  • CC: 10 business days after pleading not guilty

• Codefendant 

  • As soon as reasonably practicable AND in 10 business days after prosecutor discloses material

• Response 

  • In 10 business days after notice

Non defendant bad character application

• Application 

  • Set out the facts of the misconduct the party relies

  • Explain how the party prove the facts

  • Explain whjy evidence is admissible

• Defence

  • Which facts in the notice is disputed

  • What the party admits?

  • Why evidence not admissible

  • Any other objection

Time limit of Non defendant bad character application

• Prosecution

  • MC & CC: As soon as reasonably practicable AND in 10 business days after prosecutor discloses material

• Response 

  • In 10 business days after notice

Court’s powers to exclude bad character evidence

• s103(3) if the court satisfies that by reason of the length of time, it would be unjust to apply in the case

• S78 PACE exclusion of unfair evidence

• s101(1)(d) & s101(3) CJA 2003

  • By reason of length of time; unjust to admit the evidence: MUST not admit

• S107 CJA 2003 contaminated evidence; conviction would be unsafe

• S110 DJA 2003 court give reason in open court for ruling of bad character

Trial procedure in magistrates’ court

• Legal arguments

• Prosecution opening speech

• Defence identify matters in issue

• Prosecution evidence

  • call witness

  • read witness statements

  • read admission

• Conclusion of the prosecution case

• Submission of no case to answer

• Right to give evidence and adverse inferences

• Defence evidence

• Prosecution closing speech

• Defence closing speech

• Legal advice

• Magistrates/District Judge retire to consider verdict

• Verdict