Police Powers 1
Arrest w/out warrant:
1. GROUNDS: PO must have RG to suspect D: about to commit, in act of committing (or RG for suspecting either), RG4 suspecting O has been committed +RG D=guilty = LOW thresh.
2. REASONS: D 2be ascertained, correspondingly, prevent D harm/injury/damage etc.,protect child/vulnerable,investigation of offence/D conduct, prevent hindrance2prosecution by dissapear.
NB: must caution but if don't = NOT unlawful arrest but may be open to s.76/78 exclude evidence
Search: PO may search arrestee if reason2believe has evidence related to offence if reasonably believes has material. Must be:public place, suspect stolen/prohib items. PO must: give name, station attached, object searched for+reason, record in writing. Can use reason force. Can search place arrested at or at immediately before for evidence relating to O if reason required.
Search4D: can enter+search2execute warrant, to arrest D for Indict O. D ONLY. Not biscuit tin.
EntrySearch after arrest: PO can enter+search any premises occupied or controlled by D under arrest for an Indict O if RG4B evidence related to Indict O or some other connected Indict O (with Inspector written permission). Includes cars etc.
Police Powers 2
D's safeguards = solicitor, right to silence, detention review 1st = 6hrs then every 9hrs, can interview up2 24hrs then need Superintendent to permit extra 12 hrs up to max 36hrs (MUST BE Indict O after 24hrs). After 36 hrs = apply2Mags, but 6 hr buffer period (but if app could have been made within 36 hrs then must or Mags wont allow extension i.e. cant rely on buffer). 96hrs = MAX to be granted. NB: Terrorism = max 14 days detention.
Custody officer can decide to charge for summ O ONLY (plea=irrelevant+no need4 Crown P)
Crown P ONLY can decide to charge for indict O (+ most either ways+some summary only)
Test for charging: 2 stages:
1) evidential = P satisfied sufficient evidence4realistic prospect of conviction
2) public (only once 1st stage met): P proceed unless public interest factors outweigh prosecution
First Appearances: Commencing methods + procedure
Charging D with O: POLICE: caution+charge+bailed to appear at Mags/remanded nxt work day
Written requisition/charge: PUBLIC P (ALL): draft charge+req req'ing attend Mags+served
Laying info: (PRIV P): draft charge to Clerk in Mags = summons requiring person to attend (NB: Pub P can use this to generate arrest warrant)
NB: crim damage = VALUE determines category of offence (<£5k = summary, >£5k =eitherway)
NB: @1st appear for Indic O: no plea, no bail, sent straight to CC
P serve 'INITIAL DETAILS' (inc. evidence,statements,exhibits,PCN) ASAP/not later than trial start)
@1st appear, D asked enter (summary O) or indicate (eitherway O) plea = G/NG/No indication4EW
@1st appear for Summary O, if D = G= proceed2sentence (if basis questioned may Newton Hearing), then proceed to sentence or adjourn to Pre-Sent-Rep. If D = NG = set trial date and case man form completed by P and D (inc witnesses req'd at trial).
@1st appear for Summary O (multiple D's): each D asked to enter plea, if mixed = sentence for guilty D adjourned until after NG D trial.
First Appearances 2
@1st appear for Either Way O, if D=G=proceed2sentence (if basis questioned may Newton Hearing) but Mags will look at powers avail, if not sufficient=commited2Crown C. If D=NG=trial allocation (rebut presump=mags), P submissions where trial held inc. mit/aggr facts/seriousness, D submissions where trial held. If mags say mags c = D can ask for sentence indication for G plea (discretionary), then D can decide to elect mags or cc (if cc then case sent).
@1st appear for Either Way O (multi D): each enter plea, if mix = sentence for G D=adjourned. NG D = Mag will decide where trial 2be held. Mags can use this provision to re-allocate to CC.
D charged w/ summary O AND either way O: start with deciding mode of trial for EW O. If stay in mags then proceed. If EW/IO 2be sent to CC = depends on:
1. whether Summary O related to EW/Indic O AND 2. if related, what category:
A. sent4trial+inc on indictment = s.40 CJA offences i.e. common assault, driving while disqual'd, crim damage. B. sent4plea only = any other offences not in s.40 but punishable by disqual4driving/imprisonment. C. cannot be sent4plea or trial = any other SO i.e. not in s.40 or punishable by disqual4driving/imprisonment.
NB: If SO unrelated then tried in Mags+adjouned sine die (w/out date) until conclusion of EW/IO.
Presumption of right of bail (s.4 Bail Act) EXCEPT FOR:
1. Homicide (if PCN for homicide/****/serious sexual offence) unless exceptional circums. If no PCN = no bail unless 'NO SIGNIFICANT RISK OF CAUSING OFFENCE 2 CAUSE INJURY'
2. Rape/Serious Sexual Offence (if PCN for homicide/****/serious sexual offence) unless exceptional circums. If no PCN = consider bail standardly.
3. Offence w/life imprison max sentence (If D already on bail and/or fails to attend having been on bail) = no bail unless 'NO SIGNIFICANT RISK OF RUTHER OFFENCES BEING COMMITTED OR FAILURE TO ATTEND'. If not already on bail/hasnt failed to attend = consider bail standardly.
4. Drugs/drugs related offence (if D has class A in body AND not co-operating with assess/follow up) may not be granted unless 'NO SIGNIFICANT RISK OF COMMITTING FURTHER OFFENCES'. If no class A in body and co-operating = consider bail standardly.
In CC = 1 application for bail (if circums don't change), In Mags = 2 applications for bail (1for appeal 2 CC within 24hrs but then no 2nd application in mags)
GROUNDS to object2bail:
IO or EW O w/imprisonment ONLY = Must have SUBSTANTIAL GROUNDS FOR BELIEVING: a. fail2surrender b. commit further offences c. interfere w/witnesses (NB: FTS=EWO imprisonable!)
IO or EW O w/imprisonment AND SO imprisonable AND Low Lev Crim Damage: d. O is IO/EW+D on bail @ time of O or e. PSR required so D must be in custody or f/ D positive for class A drugs and charged w/drug O/O motivated by habit or g. D refused to undergo assess/get help or h. Court has insufficient info due2lack of time to make informed bail decision or
ALL (inc. non-imprisonable offence): i. for D's own protection/childs welfare) or j. D already a prisoner or k. D granted bail already+absconded/breached bail (AND for SO/low value crim damage/non-imprisonable O only there are SGFB D will FTS/IWW/CFO)
ALL (except IO/EW imprisonable O): L. D has FTS and court believes will fail again
SO imprisonable/low lev crim damage ONLY: m. D on bail @time of offence AND SGFB would CFO if released or n. SGFB D will commit O by engaging in conduct that will cause phys/mental injury2another/cause another to fear phys/mental injury.
FACTORS: a. nature/seriousness/likely disposal b. character of D (PCN, associations,community ties) c. past bail record d. strength of evidence = D has right to hear reasons why refused!
Bail conditions: surety (person present+bank stat), security, report2p.station, curfew (9hr tagged curfew=1/2 counts towards custodial sent, exclusion, e-tagging, non-contact order, residence.
Not an offence to breach condition of bail but FTS IS an EW offence but power of arrest applies.
P can appeal against granting bail (RARE) but P must have opposed bail originally, O must be imprisonable, P orally indicate will appeal when granted, D held, intention be in writing+served on D within 2hrs, appeal heard within 48hrs by CC judge (High Court Judge if bail granted in CC).
Remand limit: If D remanded in custody@1st app AND trial will be in MC=1st remand=8 clear days only+then brought back (poss in absence). After 2nd app, D must be brought back every 28days2remand onwards (time runs from day after 1st app-midnight on exp day). Mags SO/EW O's=56 days. CC Indict/EW O's remand limit=182 days (take a/c of aggregate time spent+ substract). P can app to extend remand if due diligence/expedition+good/sufficient cause or bail!
When refusing bail (whether 1st/2nd/subsequent apps when change in circums) mags must issue certificate stating heard full argument. D can THEN appeal to CC with certificate.
Other ways to prove fact (other than live): witness statement agreed+read out (same weight if W there), signed agreed fact (i.e. had card but disputes stole it), judge/jury knowledge (i.e. in a recession), doctrine of notice (judge investigates/researches).
For any evidence to be admissible = must be RELEVANT = logically probative (i.e. prove/disprove fact in issue). If IRRELEVANT = inadmissible.
Exclusionary rule=evidence relevant but inadmissible for fairness i.e. phone taps.
Inclusionary rule=evidence inadmissible but rule allowde it i.e. bad character evidence (nb: evidence not related to offence=generally inadmissible). If evidence under inclusionary rule still a final exclusionary rule discretion test i.e. s.78PACE/common law but breach of PACE must be significant+substantial. Real Q: what effect evidence has on fairness of trial.
Evidential burden=burden of proof to raise evidence to satisfy judge matter should be argued before jury.
P standard: beyond reasonable doubt
D standard: balance of probabilities
W competent= can lawfully be called to testify. Refusal for oath=contempt of court. Exceptions:
D = cant be P witness. Where multi D = none can be P witnesses for the other.
Children/Disabled/Disordered: Age not a determining factor. Test=1)understand Q's put 2)give comprehensible answered.
Spouse/Partner: competent to give evidence for any party. Compellable for D. Not compellable for P if spouses offence is assault/injury/threat of injury to that spouse/child under 16/sexual offence against under 16 or attempts/conspiring/aiding/abetting any of the above.
Deaf/impaired: competent if understand solemnity of taking oath/affirmation and particular responsibility to tell the truth. Use interp's/sign etc.
Test for witness summons issuing = on notice: a. W likely to be able to give evidence that is material evidence and b. in public interest to issue a summons
Unsworn evidence: if understand solemnity of taking oath/affirmation and particular responsibility to tell the truth.
Evidence (disclosure) Used v unused material
Unused mat=anything that tends2show fact inconsistent w/elements of case4P to prove. P must inform D if any of P's witnesses have PCN if pass initial disclosure test. P have continuing duty+duty 2 pursue all reasonable lines of enquiry (inc. Third Party)Third Party=voluntarily or compelled to disclose (P/D can oral app2compell but asaPracticable)
Initial test4P disclosure=MIGHT REASONABLY BE CONSIDERED CAPABLE OF UNDERMINING CASE FOR P AGAINST D/ASSISTING CASE FOR D, AS SOON AS PRACTICAL AFTER EARLY GUILTY PLEA HEARING =low threshold test (EPGH takes place 10-14 working days after 1st app)
MAGS-used+ununused mat=within 28days of D's plea (/in enough time for D 2consider evidence)
NB: After P received D's def stat, P must: disclose more mat relev2issues or written stat that no other evid. If D has RG2B P still has relev mat=D can app in writing2court+P 2force disclosure, P can make rep2court immed/within 14days.
Excluded from disclosure=not in public interest (w/court permission) (nat sec/MI5/facilitate crime/ID informant(never)/locate police surveil). Can be ex parte/w/notice+grounds/w/notice+no grounds. Test=real risk of serious prejudice2important pub interest, D's interests protected w/out disclosure/partial disclosure, minimum necessary2protect pub int, render whole trial unfair?=RvH
S.8 CPIA 96: D can make application for P disclosure under s.8 AFTER served def stat!!!
D: MUST give def stat in CC (within 28days of P complying w/initial details), MAY give def stat in MC (within 14days of P complying w/initial details). Court can extend if unreasonable to comply!
Def stat=1. nature of def inc.defences 2.points of law 3.why D takes issue with P 4.witnesses 2be called (inc name/DOB/address) 5. alibi (inc name/DOB/address of W) 6.experts (name). Failure2supply def stat = adverse inference may be drawn+this can be commented on by P/Judge! If CC=Jury then can draw inferences as appear proper to them! Permission needed2alter def stat. D never loses right to call witness/P's disclosure
R v Galbraith app2dismiss test='if evidence insufficient for D 2be properly convicted'= (if before arraigned) in writing+2court within 28days. Give 28days notice2 all parties after disclosure+state WHY should be dismissed (+if oral hearing needed).
S.78PACE =exclusion of unfair evidence app=v.wide=i.e. failed2caution=power4judge2excl evidence. Test=regard2all circum's inc. how evid obtained, admission=such adverse inference on fairness=court ought not to admit.
Abuse of process app= P's failure2retain material=impacts fairness of trial= STAY/COSTS/BAIL (test=imposs2giveD fair trial or offends courts sense of justice/propriety2accuse D i.e. unfair)
No case to answer app= R v Galbraith, test = 'P's case@its highest, a jury when properly directed could not convict D' (can be used during trial)
Pre Trial Matters
Indictment: must include: offence in ordinary language+relev legislation+particulars of conduct.
Draft indictment: 2be served on CC not >28days after case sent. CC can extend time even if expired. CC clerk signs+serves on parties.Amend indict anytime b4verdict(if D not unfairly predj'd)
Voluntary BO indict:=exceptional procedure=applying2High C judge4leave2direct i.e.D made successful app2dismiss indict. Mustb good grounds4app (further signif evidence arises/where CC judge didnt take a/c crucial authority/stat provision)+be in interests of justice2grant.
Joinder of counts on indict: indict can inc. >1 count if all offences charged: a)founded on same facts or b)form/are part of series of offences of same/similar character=nexus. - Can also include Summ O if: a)founded on same facts/evidence as indict count or b)part of series of offences of same/similar character as indict O (mags powers apply4 SO). - Multi-D's on 1indict: where 2or> committed 1>offence 2gether/common link = same indict!
Misjoinder app2sever2judge(jury=absent):D cant be tried4 >1 indict@atime.Count=quashed on appeal if misjoined+trial proceeds.App2sever can be made if counts joined fine (judge discretion)
Rolled up counts: >1 offence in 1 count if: O's/victim=same,O carried out/same location, incidents took place over time (1year norm)+defence same.(Bad4duplicity rule=quash app)
Pre-trial matters 2
Offering no evid/leaving counts2lie on file: i.e. G s.20 in alternative, P agreed+offer no evidence (then judge directs NG verdict2 be entered4s.18 when insufficient or no evid 2prove s.18) or ask judge to lie s.18 count on file (judge2agree2this+marked 'not to proceed w/out CoA leave') when P do have evidence but chosen not to proceed i.e. when D pleads G to more serious O leaving minor offences (case put on hold perm). Both offering no evidence+lie on file=after sentence)
Pleas in bar= autrefois acquit/autrefois convict: successful=bar P from continuing (double jeopardy: D cant be tried4crime aquitted/convicted/same as offence aquitted/convicted4. NB: D can be tried again4offence aquitted if interference w/jury/witness or 4 murder/ manslaughter/ kidnap/****/child sex/high level drugs/argos/war/terrorism if new compelling evidence arises+interests of justice4retrial
Unfit to plead (raised by D/P, judge decides, SD/Automatism survives U2P):'under disability'=test in Pritchard:1)understand+plead 2)challenge jurors 3)understand evidence 4)instruct legal advisers+give evidence in own defence. If U2P=special procedure=no G/NG=jury2be satisfied D 'did act/made ommission beyond reasonable doubt'=factual evidence tested. If jury decide did act=1)hospital order (w/w/out time limit)+mandatory4murder 2)supervision c)absolute discharge
Silence on arraignment=decided by jury=(same standards for P/D)='mute of malice'=deliberately refusing=enter plea of NG on his behalf or 'mute of god'=out of D's control=decide if fit2plead
Prelim hearing/Early Guilty Plea Hearings: all cases sent2CC from MC have PH or EGPH. -EGPH=when P+D agree case likely2be G plea=1/3rd credit. No sent report ordered in MC=EGPH takes place 10-14 days after case sent. Sent report ordered=EGPH within 4 weeks. -PH: if not listed for EGPH=PH=takes place 10-14days after case sent (except homicide where PH=within 48hrs=full 1/3rd credit. If D pleas G at PH=sentenced or adjourned for PSR.
PCMH: after PH/EGPH: take D's plea+give directions. If G=25%credit. P+D give PC Management Advocates Questionnaire (12 pgs/37 sections)2court to ensure ready4trial. Matters dealt w/@PCMH=indictment in final form/trial date/P evidence served/expert evidence/witness req's/special measures (u.18@trial date, ment or phys impairment, in fear, V's in sex or trafficking or murder or firearm cases = can use screens, diff rooms, video recording of EIC or XX, preventing LIPs from XX, remove wigs+gowns, intermediary i.e. friend, communication aids, protect W identity w/report restriction or anonymity order) /bad character/witness summons/agreed facts-issues/disuted facts-issues/defence stat/disclosure/D's interview/hearsay/admissibility-legal issues. Trial date then set.
Pre-trial hearing/Preparatory hearing: if witness ill etc. or case long+complex (before jury sworn). If D not arraigned, can be arraigned at prep hearing.
Mags court order of events: (NB: if convicted=may have to £some of D counsel costs)
1. D's s.78 app (if approp) 2. P opening speech (law/facts) 3. P evidence (chronologically): a. P's live W's (XX by D, P re-EIC) b. PCN c. PC's (XX by D, P re-EIC) d. ROTI read out (with PC) e. read out expert stat 4. D's no case2ans app (if approp) 5. D opening speech (issue/evidence) 6. D's case a. D's live W's (XX by P, re-EIC by D) 7. Closing speeches (P then D)
CC order of events: (NB: if aquitted=LASPO=legal aid rate back)
1. D's s.78 app (if approp) 1b. Jury sworn in 2. P opening speech (law/facts) 3. P evidence (chronologically): a. P's live W's (XX by D, P re-EIC) b. PCN c. PC's (XX by D, P re-EIC) d. ROTI read out (with PC) e. read out expert stat 4. D's no case2ans app (if approp+jury out) 5. D opening speech (issue/evidence) 6. D's case a. D's live W's (XX by P, re-EIC by D) b. Judge+P+D agree submissions on summing up (jury out) 7. Closing speeches (P then D) 8. Judge provides summary2jury 9. Jury retire 10. Jury verdict
Criteria4trial in D's absence = R v Jones: nature/circumstance of D's behaviour inc. voluntarily, adjournment possible+length of adjournment, did D wish2be represented+can rep get instructions, disadvantangages2D not giving evidence, risk that jury will reach improper conclusion, pub interest (inc. V's+W's), fairness4 other D (if relev).
Eligibility4jury serv: 18-70, electoral role (excluded:detained under mental health act, guardianship order, lack capacity, criminals on bail/life imprison or detained@majesty's pleasure/determinate sentence of 5yrs or more/if had sentence of less than 5 years=barred4 10yrs/if know D/W's)
Selected4jury serv: 'play the tales'=take people from street or write in post. Bring in 15 people, shuffle names on paper and bring 12 to jury box. Can ask jury questions but cant skew racial/religious/gender balance of jury. NO jury if jury tampering then w/out jury is possible.
Jury member prevented from serving: English bad/nat security (judge's discretion), illness, death of close fam as stops J concentrating, improper conduct (research)."Challenge"/"Standby"
Entire jury prev: jury tampering/tainted by research/heard inadmissible evid+real poss injustice
Minimum no. of jury to return verdict: 9 (but must be unaminious if 9)
Judge summing up: functions of Judge/jury, standard of proof, direction on law2accept, foreman
Majority direction= when Jury cant decide = after 2 hrs= judge discretion= 11-1/10-2/9-1/9
Watson direction= remind jury what there to do=judge discretion.Cant combine with MajDir.
Indication of sentence (diff to in MC when ask4 indication before allocation) = R v Goodyear=if enter G plea (before PCMH or after enter NG). D must first: 1) accept P facts or basis of plea must be agreed by parties+court and no Newton req'd 2)D must give clear instructions2counsel that wishes to ask for indication of sentence. Judges discretion to give indication, if do so then: 1)given in open court w/all parties present 2)indication is the maximum sentence if D changed NG to G. Judge to say 'if you change your plea2G now, I would sentence you2no more than...'. Indication=binding4reasonable time(judges discretion)+any other judge unless Parliament.
R v Newton: hearing/trial by judge on fact+law (no jury), burden on P (norm standard). When D agrees to plead on basis but P don't accept, judge thinks difference of D's basis to P's case is material2sentence=then hold a Newton hearing. (NB: if judge thinks same sentence for either basis=sentence on D's basis or if thinks D's basis is absurd=sentence on P's basis). If P accept D's basis, P open facts from D's basis+P sign written+judge sentences on the agreed basis or will order Newton on J's own motion despite it being agreed.) NB: D loses credit if loses Newton.
D pleads G=P set out acts+discuss PCN/ancilliary orders/sent guidelines. D then set out mitigation+guidelines. Judge passes sentence refering2guidelines too.
Once matter sent2CC (elec/jurisdic)=cant be sent back2MC4sent. D MUST be sentenced in CC.
Sentencing Principles 2
Dangerousness test=trigger=specified O commited (sch 15)=is D 'SIGNIFICANT RISK OF SERIOUS HARM2MEMBERS OF PUBLIC BY D'S COMMISSION OF FURTHER SPECIFIED O'S'. Court MUST take a/c of all info about nature/circum's of offence, MAY take a/c of all info about nature/circums of D's PCN, MAY take a/c any info re pattern of behaviour from PCN, MAY take a/c any info about D court has. (i.e. MUST take a/c instant offence, may take a/c of other things)
NB: credit for G plea = 1/3 (first opport), 1/4 (after trial date set), 1/10th (day of trial). These are maximums and court can adjust (red-handed or loses Newton for example)
First breach of an order i.e. doesnt turn up4unpaid work= statutory requirement2give a warning.
Breach by commiting further offence during operational period of sentence=brought back before court, can amend order to be more onerous/fine. Court MUST do something (law changing)
Breach suspended sentence: committed breach and admitted it=presumption that custodial part will be activated in whole/part. Presumption is rebuttable if unjust to do it (i.e. got through most of suspension+complied w/others or if a different O commited). If Judge doesnt activate custodial can impose fine/amend but MUST do something !!
If D denies breach = trial had!
Mags powers=6months for 1 offence, if 2 or more EWO=2x6month sentences consecutively. Band 5 fine (£5k) per offence.
1. Caution: 2 types (simple and conditional)= D admits2police=formally cautioned=for 1st time offenders w/less serious offences. D signs document accepting+recorded on Police Nat Comp. If D fails2comply w/conditional caution=proceedings can be reinstated.
2. Bind over: prior2conclusion of proceedings=court can agree to bind over D. Used4MC minor O's.D must agree2be bound over in particular small sum £ to keep the peace.If fail=brought back.
3. Discharge: 2types (absolute/conditional): absolute=no sentence=D not req'd2do/not do anything+is spent. Conditional=imposed for up to 3yrs=no min period=D not commit more O's.If fail= resentenced.
4. Financial penalties=court MUST: 1)D's means 2)fine reflect seriousness of O 3)take in2a/c circums of case. D to pay fine on day of sentence (discretion to allow time2pay=not a right). If fail=brought back+means enquiry+then allow more time/reduce fine/write off fine/demand instant £. D can only be imprisoned4non-pay if original O was punishable w/prison/D has means2pay/D's wilful refusal or capable neglect+no other methods of enforcement would be effective.
5. Community orders: MUST have 1or> req2it. Unpaid work(min duration=40hrs/max duration=300hrs)/develop skills to change behaviour (max=60days)/prohibit from doing certain activities, curfew (max=12months), exclusion requirement, residence req, mental health treatment (w/D's consent), drug/alcohol rehab (w/D's consent but D must be druggy+willing2improve+2 reports re suitability+check available), Supervision w/Probation, if u25=go2a centre@specific times, remain @place specified by court (min=2hrs, max=16hrs), hospital order (2 psychs inc.1bySS, not personality disorder as this is not believed to be treatable).
6.Suspended sentence components: custodial term (MC:14days-6months or CC: 2yrs)+operational period (6months-2yrs)+supervision period (6months-2yrs).2yrs or<can be given.
7. Determinate sentence: max D will face in jail. D will serve maximum of 50% in prison(rest on licence in community).
8. Undeterminate sentence: D only knows min will serve i.e. for murder=mandatory life
- Specified Offence=sch 15 CJA vs.Serious specified Offence=sch 15+carries max of 10years+/ life
- Imposing life for 2nd listed O=1)what listed offence is (Sch15b), 2)determinate sentence of more than 10yrs relating to 1st offence and 2nd offence but for provision 224a. Can pass lesser sentence for 2nd O unless unjust2doso.
- Extended sentence of imprisonment= court2be satisfied: 1) sch15 offence+2) dangerous offencer+3)if 224a or 225 met (as would have to give life+no extension)+4)sch 15b PCN.
- Passing lesser sentence: judge has broad discretion+MAY pass extended sentence (license period extended: 5yrs for violence/8yrs for sexual/ or 2/3rds if under 10yrs sentence then auto relase/@2/3rds point=2/3rds if over 10yrs then apply2 parole board @2/3rds point.
- Compensation order: court MUST consider if V suffered PI/loss/damage. If dont order=say why! All other (non PI/non-loss/damage = discretionary+dont have2give reasons for why not!)
- Burglary w/2PCN: The court must impose a sentence of at least 3 years for this offence, unless the court regards it as unjust to do so.
- D convcited of 12 armed robberies (PCN for 7 robberies in 1995+got 14yrs)=s225 CJA 2003 test=The court must pass a sentence of discretionary life imprisonment if the court is satisfied that the offender is dangerous and that life imprisonment is justified. Cant ignore life for a second listed offence sentence and skip straight to extended sentence. Whilst an extended sentence could be passed here, it could only be imposed if (a) the Judge decided it was unjust to pass life for a second listed offence and (b) if the defendant was deemed dangerous.
- Aged 18 or over convicted of a specified offence=If the defendant is considered by the court to be dangerous then it may impose an extended sentence provided it would otherwise pass a custodial term of 4 years or more or the defendant has a previous conviction for a schedule 15B offence
- If an offender breaches a conditional discharge he/she may be re-sentenced for the original offence=YES - If an offender breaches a conditional discharge he/she must be re-sentenced for the original offence.NO=court has discretion to re-sentence -If an offender is bound over to keep the peace, and breaches the terms of the bind over he/she must forfeit all/some of the recognisance. NO= court has discretion - If an offender is bound over to keep the peace, and breaches the terms of the bind over he/she may forfeit all/some of the recognisance.YES
Extended sentence criteria: The court must consider Walter to be dangerous, must not be required to pass a life sentence (discretionary or second listed offence), Condition A must be met – that he has a previous conviction for a schedule 15B offence Or Condition B must be met – that the court would pass a custodial term of at least 4 years.
D in Mags=appeal sentence2CC (no leave required=a right=unless out of time). Recorded or HC judge will hear appeal but cant have been involved in D's original decision). Do within 21days of sentence (conviction or sentence in mags)+in writing+serve notice on parties inc. MC, state if appeal against sentence or conviction (identifying sentence OR grounds for conviction+if asked MC to use s.142 for MC to reconsider=note this is the most expedient way to rectify a mistake)+state how long appeal likely to take+how long took in MC+summarise issues.
D in CC=appeal to CoA (crim)=be heard by 3 judges (cant have odd no.of judges less than 3)=within 28days of conviction/sentence/order. Test for appeal=ask for leave(when CC judge gives certificate stating ok to appeal i.e. 2conflicting auth's) Appeal in writing 2CC judge and use form NG (notice+grounds for appeal), CC sends to CoA single judge who grants/refuses leave (if refused=14days to refresh application.) Test = is conviction unsafe? (NB: D can't get greater sentence, CoA can quash sentence/vary it as long as not more harsh BUT CoA can make loss of time order i.e. time spent between appeal and hearing = doesnt count to sentence.
Can appeal MC refusal for bail 2 HC ONLY IF D appealing to HC! Rare time can ask HC for bail!
P apply4sentence increase: AG ref for unduly lenient sentence ONLY IF Indict O or on list (religioisly aggravated). Can quash/pass sentence BASED ONLY on info avail@time of sentence passing+make allowance4double jep. AG ref for aquittal=doesnt impact D's aquittal=law point!
Case stated in MC= HC powers: reverse/affirm/amend previous decision then remit to MC. CC powers: quash/can increase sentence unlike CoA only to MC original limit.
NB: if state case = lose right to go to CC (losing 'two bites@the cherry'). Procedure=21 days, no power2extend+in writing+specify decision/issue, law in which opinion of HC sought+grounds of appeal/deals of bail app/disqual sought+serve on MC/other parties. ASK MC to state case, then draft case, then 21 days 2make written representations+serve on court. Court has 21 days to make amendments to draft case then serve amended on parties+parties then serve on CC within 10days. Case stated is P's only appeal method.
If MC made error of fact or mixed fact/law = appeal to CC=no leave needed=rehearing=new evidence allowed=judge of CC=confirm/reverse/vary/remit w/opinion 2MC/make other order
If MC made error of law or acted in excess of jurisdiction = case stated (P's only appeal way, D can use also)=appeal2 HC=21 days from date of decision appealed. Can state case from CC too. MC can refuse to state if frivolous/vexatious.
If MC unfair/bias/procedural irregularity=JR=to HC (note: MC cant grant bail when JR)
D can only appeal against conviction if pleaded NG. Can appeal against sentence if NG/G.
P to appeal ruling of judge: P can appeal a ruling by the judge if: (i) It relates to one or more offences included in the indictment; (ii) It was made at any time until the start of the judge's summing up; (iii) It has the effect of terminating the trial.
What is the procedure for challenging the Judge’s ruling?
The appeal lies to the Court of Appeal and may be brought only with the leave of the trial judge or the Court of Appeal (1 mark). Section 58(4) provides that immediately following the contested ruling the prosecution must either (i) inform the court that it intends to appeal or, (ii) request an adjournment to consider whether to appeal (1 mark) The prosecution must apply orally or in writing for leave to appeal (Rule 67.5(1)) (1 mark). The prosecution, at the time of applying for leave, if not before, must give the guarantee of acquittal required by section 58(8) Criminal Justice Act 2003 (1 mark). In any other case, such as a non-expedited appeal, the notice of appeal or application for leave must be served within 5 business days of the prosecutor informing the judge that he intends to appeal (Rule 67.3(2)(b)) (1 mark). Where the judge has decided that the appeal should be expedited, the notice of appeal (where the judge has granted leave) or the prosecutor's application for leave to the Court of Appeal must be served on the Registrar of the Court of Appeal, the Crown Court, and every defendant directly affected by the ruling which the prosecutor wants to appeal by the next business day after informing the Crown Court judge of the decision to appeal (Rule 67.3(2)(a)) (1 mark).
Reversing a ruling
What do the Court of Appeal need to be satisfied of before reversing the ruling?(2 marks)
The Court of Appeal may not reverse a ruling unless it is satisfied that:
(a) the ruling was wrong in law;
(b) the ruling involved an error of law or principle; or
(c) the ruling was a ruling that it was not reasonable for the judge to have made (2 marks available for correctly listing all of the component parts of the test).
Categories (impact mainly on sentencing): 14-17=young person, 10-13=child, 10>=irrebutably incapable of a crime. Anyone under 18=youth.
Youth court key differences=3 mags (@least 1 a woman/1 a man but single sex tribunal permitted when situation not forseen or it is in interests of justice NOT to adjourn2wait for mixed) or DJ. NB: wigs/gowns not worn. 17<=presumed2need special measures but may refuse. 17+=not presumed to need special measures but may request them. Media can report from Youth but BANNED from reporting any details that may identify youth BUT ban can be lifted when D applies2lift ban (i.e. publicity important2avoid injustice to D) or when P applies2lift ban (if youth unlawfully@large AND publicity may assist w/recapture AND offence is serious (14yr,violent,sexual per sch 15 CJA) or can be lifted after conviction of D if Coutr thinks in pub interest. NO GENERAL RIGHT2ENTER YOUTH COURTROOM i.e. NOT PUBLIC only directly connected w/case i.e. W's/probabtion officers/social workers/BPTC). Addressed by first name+will not swear on oath but will promise2tell the truth (14-17) or under 13=evidence unsworn.
Parents attending w/youth: 15 or younger=MUST attend+can be compelled. If 16/17: MAY attend. Parent should also attend if court intends2make parenting order. Parent sits beside youth.
Notification of arrest: MUST identify parents+advise of what arrested for+where detained. If Y in care=notify local auth.
Appropriate adult: MUST inform AA2come to station (if in care=AA=on list (NB: list used when parents are inapprop i.e. parent=witness).AA=look after Y's interests+can execute Y's rights i.e. ask for legal rep, inspect custody record, privately consult w/Y+MUST bpresent when interiewed.
Cautions: Youth Caution=admission Y did it, not in pub interest2P AND sufficient evidence2charge w/O (aside of admission). Youth Conditional Caution=Auth'd person has evidence Y committed O, relevant P/auth'd person decides sufficient evidence, Y admits2 auth'd person, Auth'd person explains affect of YCC+Y signs that understands it! Conditions attachable=fine, attend place@specified times etc.
Must be CC: homicide, mandatory min sentence O's, serious complex fraud/child, grave crimes+sent powers beyond 2 years, charged w/adult+interests of justice, dangerous offender.
If tried w/D who elects CC: almost ALWAYS the interests of justice favour ONE trial. Only going to be 2 trials if adult commited burglarly but Y supplied equipment to do it.
Age: relev age is sentence at age of Y WHEN CONVICTED. If turns 18 by conviction=Community Order, DTO still avail (if under 21 only) , suspended sentence order. NB: not entitled to RFO,RO, YRO, compensation order, parental bind over now 18 when convicted!
Tried: Youth must be tried summarily EXCEPT: 1)jointly charged w/adult+necessary in interests of justice for them2be tried together 2)charged w/homicide (CC trial) 3)sentence of long-term detention=O must be grave i.e. 14+/specified sexual/firearms AND long term detention AND REAL PROPSECT OF SENTENCE OF 2+yrs 4)Y may need2be sentenced as dangerous offender.
Sentences: LIFE MUST be imposed where: 1) Y convicted of serious offence AND dangerous offender AND liable to life sentence (14+yrs) AND seriousness=life justified. EXTENDED sent MAY be imposed: 1) Y dangerous offender AND court not req'd2impose life AND court would sentence2@least 4yrs. (NB: these are very similar to adults). NB: detention@majestys pleasure=mandatory for youth murder.
Available sentences: same as adult. Other=referral order (RO), Youth Rehab Order (YRO), Detention Training Orde (DTO). Bind over parent (duty2unless RO), Parenting Order (if Y 16>=presump in fav of PO+reasons must be given if not ordered).PCN discretionary.
RO: ref'd2Youth Offending Team (YOT)+signs contract making commitments+will attend meetings w/Panel of 3. Can last for 3-12months. Mandatory if: Y pleads G to all impris O's+not convicted=UNLESS not in interests of justice2impose). Discretionary if: mand conditions not met=Y convicted and/or Y has 2 or more O's+pleads G 2@least1. RO can ONLY be made on its own (i.e. not with other sentences)+not avail Y faces mandatory sentence or not 1st time offender.
YRO: equiv of comm order. Made: offence is serious enough2warrant YRO AND restriction of liberty=proportionate2O. Req's2YRO: supervision, u/w (16/17), activity req/prohibited activity req, curfew (max 12m/16hrs p), drug treating,residence, attendence cent. Max4YRO=3 YRS+cannot sentence2YRO if already has! Must breach 3TIMES before proceedings initiated (twice4adults) when court can: fine, amend, revoke, take no action (FART)+resentY to appropriate sentence.
DTO (12-17 only): equiv of custody: Y goes2 Y Offenders Institut (only when custody threshold passed AND max sent if adult convicted of same sent=at least 4 MONTHS. If Y=12-14 DTO can ONLY be imposed if: 1)persisitent offender OR 2) Offenced specified (i.e. for adult punishable by 14+years OR it is an offence specified in s.91 itself). Only impose a DTO for lengths: 4,6,8,10,12,18,24 (summary offence then DTO only for 6months or MC=min=1daymax=6months). Y w/DTO=detention for HALF time and released w/supervision req. If fails supervision req court can=fine or return2custody for max of THREE months. NB: if O falls w/in specified O+even 24month YTO=too lenient then courts sentencing powers are increased2those applicable4adult.
Y convicted in adult court: court MUST (UNLESS UNDESIRABLE i.e. remit=delay, CC judge better informed of facts, if jointly charged w/D+remit=sentence disparity) remit case to YC for sentence. BUT, if adult court is MC=remit doesnt apply where: 1)Y MUST be sentenced2MANDATORY RO OR Y can be properly sentenced2absolute/conditional discharge/fine/order4parent2take proper control of Y=then MC MAY remit Y to YC but doesnt HAVE to.
Sentence procedure: 1) Y id'd (can ask for PSR) 2)P opens facts, PCN, rep's (can ask4PSR) 3) D mitigates (can ask4PSR) 4)Parents make reps (if u18) 5)sentence passed. NB: almost always get PSR4Y (good4YRO as many req's+PSR helps)
Ways P can prove D commited O: visual=(ID parade, seen before, know from before, give description, search for particular marks, RARE2ID for 1st time in dock=judge discretion). Scientific=blood/semen/hair (DNA). NB: DNA experts not allowed2give opinion as2whether D left stain/mark only stat date and random occurence ratio. Inc's:footprints, fingerprints, facial mapping, voice recog, handwriting.
R v Turnball=CoA guidelines2be followed when P's case WHOLLY or SUBSTANTIALLY on ID evid. 1)warn jury of need4caution 2)reference2potential mistake 3)jury examine circums ID made by W (circums inc: how long W see D/distance/light/seen D b4/time elapsed since ID/discrepencies from description vs. ID. Also factors that can impede W ability=inflence (intoxication), fairness (contamination), procedure (quality), stress (anxiety impacts), commonality (blue jeans=not ID). NB: Judge MUST consider QUALITY of evidence even if counsel dont pick up on it. If Judge thinks evidence weak but supporting evidence then go through Turnball). Failure to follow Turnball=likely conviction will be quashed.
Pace 84: ID only when justified for prevention/detection/investigating crime=or challenge! Witness first impressions must be noted+discrepencies can be used2test evidence+notes must be made BEFORE W takes part in ID proc.
ID not known: drive around=not prompted/directed, record2be made inc. all circumstances. Police can ask W to look carefully@people around/towards a group. More than 1 W=keep separate. Note in police note book re time/date/place/weather/conditions.
W can be shown: photos (computerised/artist etc. if unknown to police). If D known2police+D able2take part in video ID/ID parade/group ID=photos must NOT be shown.
ID procedure MUST be held for eye W(unless not prac or serves no useful purpose in proving/disproving)=1) Eye W ID'd D 2) W available 3)reasonable chance of W being able2ID D+not been given opport b4+D disputes being the person (NB: silence as2dispute=can infer agree+DO dispute)
Unless not pract/serve no useful purpose=1)eyeW makes plan cant ID D 2)eyeW can ID clothing only 3)Pure recognition where D is known to eyeW
D known+available: If D known+available=officer not involved in case takes respons4arranging/conducting ID procedure. ID should be held asaprac2ensure fairness. Choice of procedure (hierarchical): 1)D offered video ID 2)ID parage 3)Group ID (NB: D cant dictate choice of procedure but can make reps if refuses ID first offered but will be asked2state+record reason4refuding+can get legal rep who can make reps.
KNOWN=sufficient info2justify arrest (can make known by drive around/show 12xphotos but if showing2multi-W's=must make@least 1 swap in of a new person)
AVAILABLE=immediately avail or w/in reason short time (NB: if not avail, can use photos/videotapes of suspect for ID/staged confrontation w/W+D=last resort)
Video ID: moving images (9x15secs) of D+similar images of others resembling (moving images unless D known but not avail or cant replicate/conceal physical feature = then still images)
Lucas direction: Jury to treat the lie as admission of guilt if they wish=LUCAS direction (NB: P to discredit credibility=i.e. a lie=no lucas needed=rare that judge would allow though!) Lucas direction=1)only if made deliberately 2)people might not lie because G but other reasons 3)lie alone is insufficient evidence+look to see if other evidence collaborates G.
Judge should withdraw case from jury if evidence quality is poor unless other evidence2support