Criminal/Criminal Litigation

What is included in the defence statement? drafting

1. What the charge is

2. Matters of fact defendant takes issue with the prosecution

3. Particulars of fact relied upon for the defence

4. Points of law intending to take authority from

Write in first person

Lawful excuse defences

a)     D honestly believes the owner would have consented if they knew (even if mistaken due to intoxication); or

b)     D believes property is in immediate need of protection, believes the means of protecting are reasonable and the means are objectively reasonable

Loss of control

a)     D loses control due to a qualifying trigger: fear of serious violence or things said or done that constitute an extremely grave nature and causes a justifiable sense of being wronged

b)     Would a normal person in the circumstances of D would have acted the same way

Diminished responsibility

a)     D has an abnormality of mental functioning

b)     That arises as a result of a recognised medical condition

c)     That substantially impairs D’s ability to understand the nature of their conduct, form a rational judgment and/or exercise control

d)     Does the AMF provide an explanation for D’s conduct

Unlawful act manslaughter

1.     D commits an act not an omission

2.     The act is unlawful

3.     The act must be dangerous – would the reasonable man see risk of some harm

4.     The act causes the death of the victim – factual and legal causation

Gross negligence manslaughter

1.     D owes a duty of care

2.     D breaches that duty

3.     The breach must be the cause of the death

4.     There must be an obvious and serious risk of death

5.     The breach must amount to gross negligence

Dishonesty test

• what was D’s knowledge and belief as to the facts

• given that knowledge and belief was D dishonest by the standards of an ordinary person

Recklessness test

• D was aware of the risk and went ahead anyway and

• In the circumstances known to him it was unreasonable to take that risk

Intoxication as a defence

• Basic intent - would D have formed the necessary MR is sober? likely yes

• Specific intent - did D form the necessary MR even though intoxicated? If no defence can be used

Self defence

1.     D acted to protect themselves or another

2.     D believed the use of force was necessary

3.     The  level of force reasonable in the circumstances as D believed them to be

Accomplices

Ø  AR = Aid (assist), abet (encourage at the time), counsel (encourage before) or procure (cause them to commit the offence)

Ø  MR =

o   Intention to aid, abet counsel or procure

o   Intention for the principal to commit the actus reus with the necessary mens rea

o   Knowledge of the existing facts or circumstances necessary

Attempt offence

Ø  Actus Reus = An act that is more than merely preparatory

Ø  Mens Rea = intention to commit the full offence

Criminal lit stages

1. Arrival at the station

2. Identification procedures if necessary 

3. Bail

4. First hearing

5. Plea before venue (either way)

6. Allocation (either way)

7. PET or PTPH forms

8. PTPH - enter plea and case management dealt with

9. Disclosure and evidence

10. Trial

11. Sentencing

Custody officer 

• rank at least sergeant 

• Authorises detention 

• Informs suspect of their rights

•  Responsible for the welfare of the suspect

• Open custody record

Delaying right to legal advice

• Max 36 hours

• Superintendent

• Indictable offence

• Suspect informed

• Reasonable grounds to believe will notify suspect, hinder recovery of property, interfere with/harm a witness or evidence

Delaying right to have someone informed of arrest

• 36 hours max

• Inspector

• Indictable offence

• reasonable grounds to believe will: notify a suspect, interfere with/harm witness or evidence, hinder recovery of criminal property

Detention time limits

Detention time limits are based on arrival at the police station (MAX 96 HOURS) must be charged or released by the end.

o   24 hours from arrival

o   36 hours (12 extra from the original) with authorisation from Superintendent

o   36 hours warrant of further detention from mags

o   24 hours warrant of further detention from mags

Initial review within 6 hours of custody officer authorising detention and every 9 hours after

Types of ID procedure (Code D PACE (police and criminal evidence act 1984)

1.     Video identification (VIPER) – suspect and at least 8 others, witness is shown moving images of the suspect and people who resemble them in appearance, age. Any identifying characteristics such as a scar etc should be either hidden or replicated on all individuals who take part. Can take place covertly.

2.     Identification parade – suspect and 8 others in a line up with those who resemble them, witness can ask participants to speak or move.

3.     Group identification – eye witness sees the suspect in an informal group of people. Can take place covertly.

4.     Confrontation – last resort and is when the suspect is directly confronted by the eye witness and requires no consent.

Officer of rank at least inspector with no involvement to case

Interview - PACE CODE C

• Suspect must be fit to interview

• Reminder of right to legal advice, caution to be given

• 8 hours undisturbed rest between interviews

• Officer of rank at least inspector

• Appropriate adult if required

Who can/cannot act as an AA?

Who can act? Parent/guardian, social worker, some other responsible adult who is not connected (for vulnerable people it is usually a relative or someone experienced with vulnerable people)

Who cannot act? Witness, victim, police officer involved in investigation, estranged parent, solicitor acting for them

Bail steps

1. Presumption 

2. Exclusions

3. Exceptions e.g. substantial grounds

4. Court considers statutory factors

5. Conditions

6. Appeals

What are exclusions to bail where no presumption?

a.     Appealing sentence or conviction

b.     Awaiting to be sent from mags to crown for sentencing

c.     Homicide or rape (including attempts and manslaughter) and previous conviction for one of them only granted in exceptional circumstances only crown can grant bail for murder cases – if no previous for them can only be granted if no significant risk of causing physical or psychiatric harm to the public

Exceptions to right to bail

Substantial grounds to believe D will

a.     Fail to surrender

b.     Commit further offences while on bail

c.     Interfere with witnesses or obstruct justice

The court must not withhold bail if there is no real prospect of receiving a custodial sentence

Summary offences – grounds of objection only available if having been given bail they breach a condition or failure to surrender in past.

Statutory factors in relation to bail

a.     Nature and serious of the offence

b.     Defendants character (conduct and reputation), antecedents (previous convictions and record) associations (family and friends) and ties to the community

c.     Previous bail record

d.     Strength of prosecution evidence

e.     Any other relevant factors

Bail conditions

Ø  Surety – third party agrees to pay if they do not attend court after being granted bail

Ø  Security – sum of money deposited to court if fail to attend it is forfeited

Ø  Non-communication with a witness

Ø  Curfew

Ø  Surrender passport

Ø  Residence at a given address

Ø  Attending the police station at regular intervals

Ø  Restrictions on attending certain areas

Ø  Electronic tagging

Procedure for applying for bail

1.     Prosecution makes representations – reason why objecting, what ground and representations on the statutory factors

2.     Defence makes representations – rebut exceptions and mitigate the statutory factors

3.     Prosecution right to reply

4.     Decision is made as to bail – if bail is refused defendant is served a certificate of full argument (used if wish to appeal)

Defence bail appeals

• Trial in mags = 2 attempts at mags

  • 1 at first hearing and

  • 1 a week later and

  • 1 attempt at crown (1 BD after serving) with certificate of full argument

• Trial in crown = 1 attempt at first hearing, 1 attempt as of right

Bail appeals by prosecution

Notice given to court within 2 hours, appeal heard within 48 hours excluding weekends

What is a failure to surrender ie abscond and what are consequences?

 failure to surrender without reasonable cause criminal offence and can be charged separately to the main offence.

o   Mags = 3 months prison / max £5,000 fine

o   Crown = 12 months prison /  unlimited fine

Custody time limits for a trial to commence

Can be extended if Prosecution acted with all due diligence and expedition and there is a good and sufficient cause to have D further remanded in custody.

Ø  For trials in the Mags – 56 days

Ø  For trials in the Crown– 182 days less any days spent in custody prior to the case being sent to the Crown

Means test

Mags = based on annual income (eligible if under 12,475 or less ineligible if 22,235 or more – full test if between based on household disposal income of max 3,398)

Crown = based on income and capital

o   Adjusted income 12,475 or less is funded if above eligible if DHI (below) is 3,398 or below

o   Disposable household income = £3,398 – 37,500 must contribute

o   Capital above 30k must contribute

Auto pass if under 18 or receiving welfare benefits

Merits test - interests of justice

Auto pass if charged with indictable offence that is later sent to CC

1. I will lose my liberty

2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence

3. It is likely I will lose my livelihood

4. It is likely I will suffer serious damage to my reputation

5. A substantial question of law may be involved

6. I may not be able to understand the court proceedings or present my own case

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

8. The proceedings may involve expert cross examination of a prosecution witness 

9. It is in the interests of another person that I am represented

10. Any other reasons

Initial details of prosecution case (IDPC)

• doesnt apply if indictable only

• served as soon as practicable and no later than start of day of first hearing

• enables court and D to take view on plea, venue for trial and case management

Plea at first hearing

o   Summary only – judge reads charge and asks if they plea guilty or not guilty (sentence or adjourn for trial)

o   Either way – ask D to indicate if they intend to plead guilty or not

o   Indictable only – ask if D intends to plead guilty or not

Plea before venue 

Used for either way offences 

 1.     Charge is written down and read to D

2.     Court explains allegations and that the offence can be tried on mags or CC

3.     Court asks whether intend to plead guilty or not (option to stay silent but is seen as NG plea)

a.     Guilty = sentence or commit to CC (may adjourn for a pre sentence report) – if on bail usually remain on bail until sentenced

  b.     Not guilty = proceed to an allocation hearing

Allocation hearing 

Used for either way offences to determine if mags will hear or not 

Ø  court gives prosecution opportunity to inform court of D’s previous convictions

Ø  Prosecution and Defence make representations as to which would be more suitable

Ø  Magistrates consider statutory factors such as likely sentence and their powers, any representations made and the allocation guidelines

o   Mags powers = 6 months summary, 12 months either way

When are cases sent without allocations?

• serious or complex fraud

• cases involving children

• charged with an indictable only offence

Pre trial preparation hearing (PTPH)

• within 28 days of sending to CC

1. Arraignment – charges are read and defendant is asked to enter a plea

2.     Case management

Timeframes for complying with disclosure

o   Mags = comply as soon as reasonably practicable with disclosure after D pleads not guilty

o   Crown = comply as soon as reasonably practicable after case is sent to CC

Defence statements

o   Crown = compulsory – deadline = within 28 days of prosecution complying with disclosure (adverse inferences may be drawn if not filed)

o   Mags = discretionary but cannot request specific disclosure without filing – deadline = 14 days after prosecution complies with disclosure

When is turnbull direction given?

If the prosecutions case depends wholly or substantially on ID evidence the Turnbull direction should be given to jury to warn on relying on the evidence

Adverse inferences under Criminal Justice and Public Order Act 1994

Ø  S34 – failure to mention something later relied on at trial (ARGENT factors to be considered) – was it reasonable for D to have mentioned the fact e.g. might not be if they were intoxicated

Ø  S35 – Silent at trial (D not giving evidence without good cause)

Ø  S36 – failure to account for an object, mark or substance

Ø  S37 – failure to account for presence at the scene

Ø  S38 – no suspect can be convicted solely on an adverse inference

s36 and s37 require a special notice - what offence is, what they are being asked to account for and that the court may draw inferences if they fail to account

Definition of hearsay

a statement that was made outside of a court proceeding and is being presented in court to prove the truth of what was stated. 

Grounds for admitting hearsay

• Unavailable witness e.g. dead, unfit, outside of UK and not reasonably practicable to secure attendance

• Business documents

• Rest gestae – made as a result of a close connection to the event and is a spontaneous reaction

• All parties agree

• Interests of justice

Definition of a confession

An inculpatory statement which adversely affects the person who makes it, either wholly or partly.

Excluding evidence

s76 PACE 1984 = the court must exclude a confession if it was obtained by oppression or things said or done that render the confession unreliable

s78 PACE = the court may exclude if it would have an adverse effect on the fairness of the proceedings

VOIR DIRE in the absence of a jury

Definition of bad character evidence

evidence of or a disposition towards misconduct on the part of the defendant that relates to the alleged facts and is evidence of misconduct

Defendant bad character gateways s101(1) criminal justice act 2003

a)     All parties agree to the evidence being admitted.

b)     The evidence is adduced by the defendant themselves, or is given in answer to a question asked by them in cross-examination and intended to elicit it. e.g attempting to downplay or control info before prosecution do

c)     The evidence is important explanatory evidence.

d)     The evidence is relevant to an important issue between the defendant and prosecution.

• Shows a propensity to commit the offences of the same kind and/or a propensity to be untruthful

e)     The evidence has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.

f)      The evidence is required to correct a false impression given by the defendant.

g)     The defendant has made an attack on another persons character.

other parties bad character s. 100(1) Criminal Justice Act 2003

a)     Important explanatory evidence

b)     Substantive probative value e.g. credibility and reliability

c)     All parties agree

Hanson factors - bad character

1.     Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

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

3.     Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

Notice of bad character and objecting it

Prosecution must serve no more than 20 BD after a not guilty plea in mags or 10 BD are not guilty plea in crown

Co-defendant – no more than 10 BD after prosecution discloses material and in any event as soon as is reasonably practicable

Defendant – give notice orally or in writing as soon as reasonably practicable before the evidence is introduced

OBJECT WITHIN 10 BD OF NOTICE

Courts powers to exclude bad character

• S101(3) Criminal Justice Act 2003 – courts general power to exclude bad character evidence if it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it use for 101(1)(d) or 101(1)(g)

• S101(4) CJA 2003 – court is to consider length of time that has passed in relation to previous convictions and the facts relating to the convictions

• s78 PACE 1984 - would have an adverse effect on the fairness of proceedings

R v Galbraith - submission as to no case to answer

a)     No evidence the crime has been committed

b)     Prosecution evidence even taken at its highest is not enough for a properly directed jury to convict D

c)     The strength or weakness of prosecutions case is generally a matter for jury to consider e.g. reliability of witness – judge should allow matter to be tried by jury

In a murder case it can only be made after all evidence is heard including from D.

Modes of address in court

Ø  Magistrates = sir or madam or collectively your worships

Ø  District judge (mags) = Judge

Ø  Circuit judge (crown) = your honour

Ø  High court = your lord/your lady

competence and compellability

Competent = all who can understand and answer q’s except Defendant

Compellable = anyone but spouse (unless they are the victim each DV) or co-d (unless plead guilty or acquitted)

when are special measures allowed

if witness is vulnerable e.g. under 18 or intimidated

Measures available for a witness (not defendant)

Ø  Screening witness from defendant – prevents witness from seeing defendant but not defendant from seeing witness

Ø  Evidence by live link

Ø  Evidence in private – normally only if they will intimidate e.g. sexual offence cases

Ø  Removal of gowns and wigs – not needed in mags as not worn anyway

Ø  Video recorded evidence in chief

Ø  Aids to communication e.g. a device to enable to answer questions

Ø  Examination through an intermediary e.g. an interpreter (not used for intimidated witnesses)

Special measures for a defendant

giving evidence through a live link if suffering from mental disorder and live link enables them to participate more effectively.

Stages for sentencing

1. Culpability (blameworthiness) and harm (harm caused or foreseeability or harm)

2. Aggravating and mitigating factors

3. Reduction for a guilty plea

Aggravating factors

Ø  Relevant previous convictions

Ø  Offences while on bail

Ø  Assault on emergency workers

Ø  Hostility towards the victim based on race, religion, disability

Ø  Drugs and alcohol

Ø  Evidence of planning

Ø  Concealing evidence

Ø  Weapons

Mitigating factors

Ø  No prior convictions

Ø  Good character or conduct

Ø  Genuine remorse

Ø  Sole or primary caregiver

Ø  Early guilty plea

Reduction for a guilty plea

Ø  At first stage = up to 1/3 reduction

Ø  After first stage = up to ¼ reduction

Ø  Up to day of trial = up to 1/10 reduction

Consecutive vs concurrent sentencing

Concurrent = where the offences arise out of the same facts or series of offences of the same kind – run at same time.

Consecutive = unrelated facts or similar offences but wouldn’t effect criminality and therefore sentences run one after the other.

Custodial vs community threshold

Custodial = so serious that a community sentence is not justified

Community = serious enough to warrant custodial sentence

Suspended sentence:

• meaning

• time period

• consequence of breach

Ø  Where a custodial sentence is imposed but the defendant will not be retained in custody unless they fail to comply with the specified conditions.

Ø  Operational period between 6 months and 2 years

Ø  Breach during operational period = suspended sentence takes immediate effect on same terms, lesser terms or a fine of max £2,500

Community sentence 

• examples

• max length 

• consequence of breach

Ø  Examples – unpaid work, rehab, curfew, mental health treatment, electronic monitoring

Ø  Max length of 3 years

Ø  Breach – amend it, revoke and resentence, fine up to £2,500, extend by 6 months

What is a Newton hearing?

The court will proceed to sentence the defendant on the facts of the case normally but if there is a dispute between P and D the court may hold a Newton hearing.

• Judge hears no evidence but listens to submissions from both sides

• If Prosecution proves beyond a reasonable doubt they sentenced on the their facts then the court will sentence on that basis if not they sentence on D’s basis

Appeals from mags to crown

• within 15 BD of sentence

• auto right to defence - prosecution cannot use

• essentially a re trial

• can give any order up to max of mags powers

appeal from mags to high court by way of case stated

• Apply within 21 days of decision in writing to magistrates to state the case for the opinion of the high court

• Error of law

• Hearing is confined to legal arguments and no evidence

• Further appeals are to the supreme court

appeal from crown court to court of appeal

•  Sentence is manifestly excessive or wrong in law

• Conviction is unsafe e.g. judge incorrectly rejected submission of no case, judge misdirected jury, made an error in summing up

• Appeal within 28 days of decision 

• Appeal considered by single judge on paper first 

What youth offences are sent forthwith to CC?

• homicide offences

• firearm with mandatory 3 year sentence

• grave crimes if carry a sentence of 14 years or more as adult and consider a sentence in excess of 2 years will be imposed

Interest of justice test - youth in CC

o   Whether separate trials causes injustice to the witnesses

o   Age of child and age gap with the adult

o   Previous findings of guilty

o   Culpability if young person

Youth referral order

Ø  Requires the youth offender to attend meetings with youth offender panel and comply with a programme

Ø  Can be made by YC and mags not by CC

Ø  Mandatory if no previous convictions and plead guilty

Ø  Can last 3-12 months

Detention and training order

Ø  Custodial sentence between 4 months and 2 years

Ø  Max 2 years – can only be made if 12+

Ø  12-14 only if a persistent offender ie 3 findings of guilty in last 2 months for imprisonable offences

Youth rehabilitation order

Ø  Community sentence – threshold must be met

Ø  Curfew, supervision, unpaid work (if 16 or over), activity requirement

ADVOKATE factors to consider with ID evidence

• A sustained look - how long did observe for

• Distance

• Visibility

• Obstructions

• Known

• Any reason to remember

• Time elapsed

• Errors/discrepancies