Law Unit 2 - Topic 1

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Criminal Procedure

Procedure to trial - Summary Offences (e.g common assault)

  • Charge and duty solicitor - D may be charged with the offence at the police station. He may be assigned a duty solicitor, especially if its at the weekend or outside nrmal working hours. A duty solicitor is a qualified criminal defence solicitor, representationis free and our available all the time. If D is charged with the offecne at the station, a'written charge and requisition' will follow this, this requires D to attend the magistrates'court on a specified date.
  • Summons - For most minor offences it is more likely that D will be sent a summons through the post setting a date when he must attend court.
  • First Court Appearance - D will attend the magistrates' court on the required date.
  • Plea - At court, D will be asked to enter a plea - guilty or not guilty.
  • If D pleads guilty, the magistrates can sentence D right there or they may decide that a pre-sentence report is required. If so, then sentencing will be adjourned while this is being done.
  • Pre-trial review - If D enters a not-guilty plea, then a trial date can be fixed there and then, or a pre-trail review can be ordered in which case, the trial will be adjourned.
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Criminal Procedure

Bail - If the trial has been adjourned.

  • The magistrate will make a decision regarding bail.
  • If bail is granted, D is at liberty until his trial.
  • Under the Bail Act 1976, there is a general right to bail (unless there is a good reason not to grant bail).
  • D is likely to be granted bail for a summary offence.
  • D may be granted either conditional or unconditional bail.
  • Conditional bail means that the court can impose requirements to ensure that D attends court at his next hearing and/or does not interfere with witnesses.
  • If D breaches his bail conditions, then he can be arrested.

If bail is not granted, the D will be remanded in custody until his trial. The main reason for refusing bail is if D has previously breached bail conditions, failed to appeal in court for previous offences or if there is good reason to think that D would commit further offences while on bail.

  • For a summary trial, D will finally have his trial heard in the magistrates' court. It is up to the up to the P to prove D guilty beyong reasonable doubt.
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Criminal Procedure

  • Legal representation- D may beed legal representation to prepare his case and at his trial. This covers representation for a solicitor and/or barrister if needed. In the interests of justice, D may be granted a legal Representation Order giving him access to free legal help if he is unable to pay.

Procedure to trial - Either-Way Offence (e.g. s.47 ABH or s.20 GBH)

  • D will be charged - written charge and requisition as outlined above.
  • D can have access to a duty solicitor - as outlined above.
  • Decision on bail - as outlined above.
  • D attends Magistrates Court on required date.
  • Plea before venue - introduced by the Criminal Prodecure and Investigations Act 1996. D will plea guilty or not guilty plea.
  • Guilty plea - There is no need for a trial; D only needs to be sentenced. Magistrates may sentence the D immediately, or M can order a pre-sentence report or M will commit D for sentencing in the Crown Court.
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Criminal Procedure

  • Not-guilty plea - There will be a Mode of Trial to establish where the case will be tried.
  • Mode of trail - P & D outline the facts & their arguments so that the M can decided if the case is suitable for trial in the Magistrates Court. - If M does have the power, D has the option of whether to have his trial heard in the MC of the CC. If D chooses to have his trial in the MC, his trial will be heard as if it werea summary trial. - If M doesn't have the power hear the case they will commit the D for trial to the CC. A date will be sent, bail will be considered & a legal representation order will be considered. D will have his trial heard before a jury in the CC as if it were an indictable offence.  

Procedure to trial - Indictable Offenes

  • Initial hearing at Magistrates Court - they deal with bail and funding for public funding. D's trial will be committed/sent to the Crown Court - 'sending for trial order'.
  • First hearing at the Crown Court:
  • D enters his plea - guilty or not-guilty.
  • If D enters 'not guilty' then Plea & Case Management Hearing (PCMH) needs to consider a number of matters.
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Criminal Procedure

  • P and D submits a questionnaire to the court informing the court of: - how many witnesses are being called - what are the exhibits & how many there are - any points of law - questions as to the admissibility of evidence - how long they think the trial is likely to last.
  • Judge will consider all of the above points. The judge will give 'directions', about the processes for the trial and the date for the trial = Notice of Fixture.
  • D's trial will be heard before a judge and jury on the apoointed date. Burden of proof is on the prosecution to pprove the D is uilty beyond a reasonable doubt.
  • If D pleads guilty, then the judge needs to ensure that he has the information needed to setence D, e.g. a probation report. If the judge has all the information he needs then he can sentence D straight away.
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Sentencing

Aims of sentencing

  • Punishmentpunishment is sometimes called retribution. It is concerned with recognising that the criminal has done wrongand society wants revenge for the criminal's behaviour. Punishment often results in a custodial sentence and/or a large fine. 
  • Reduction of crime - This includes deterrence and rehabilitation.
  • Deterrence - deterrent sentences are aimed at discouraging people from (re)offending. There are two type of deterrence - individual and general.
  • Individual deterrence - Is aimed at individual offeners. Deterrence aims to deter that offender from re-offending by giving him a very severe sentence in the first place. The idea is that the offender does not commit similar crimes in the future through fear of punishment.
  • General deterrence - The court makes an example of an offender in order to warn other potential offenders from commiting an offence. This is usually where there has been a large increase a particular type offence. 
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Sentencing

R v Whitton (1985) D a persistent football hooligan was convicted of disorderly behaviour outside a football ground. The trial judge imprisonment a sentence of life imprisonment with the intention of deterring others. Football hooliganism was a serious matter, he said, 'and sentences aimed at discouraging such behaviour were necessary'.

  • Rehabilitation - Aims to reform the offender to stop them re-offending. Rehabilitation is an important element in the sentencing aims for young offenders. The most likely sentences would be: community order or drug/ alcohol treatment & testing order.
  • Protection of the public - This is an extremely important aim of sentencing as it necessary to ensure that citizens are protected from violent or dangerous individuals. The usual method of protecting society from these criminals is by giving long prison sentences. The offencer is incapable of re-offending while in prison. Most likely offences where protection of the public is the main aim would be murder, ****, s.18 GBH and other offences against the person.
  • Reparation - This is aimed at compensating the victim for the crime committed against them,usually by ordering them to pay money to the V in compensation. Alternatively, they could return stolen line to the V or meet with the V to apologise or write or letter of apology or do community work.
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Type of Sentences

Custodial Sentences - Adult custody means that offenders will sepnd a period of time in prison and refers to those over the age of 21. There are a number of different types of custodial sentences:

  • Mandatary Life Sentence = for murder only.
  • Discretionary Life Sentence = for other serious offences, e.g. s.18 GBH. Max time in prison can be life but can be less. Judge has discretion over how long D is in prison.
  • Fixed Term Imprisonment = for a fixed number of years. Can include the max for an offence, e.g. s.20, s.47 = 5 years max.
  • Suspended Prison Sentence = sentence can be suspended for up to 2 years (6-2 years).

Community Order - They have the aim of requiring D to 'pay back' to the community and in some instances, serve as a a form of rehabilitation. They are avaliable to D aged 16 and over. There are many types of community orders and the courts can impose one or more of the following:

  • Unpaid work order between 40-300 hours, be on asuitable project e.g. litter picking.
  • Programmes aimed at changing behaviour e.g. anger management programmes.
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Type of Sentences

  • Supervision order - D is placed under the supervision of the probation service, for upto 3 years. D must attend regualr appointments with a probation officer during this time.
  • Curfew order - D must be at home between certain times, D will be monitored with an electronic tag.
  • Prohibited activity order - D is prevented from being in certain areas/places - usually places where D has previously committed offences.
  • Drug/alcohol treatment & testing order.

Fines 

  • Maximum in the Magistartes' Court £5,000.
  • Crown Court maximum is unlimited.
  • Compensation order = D pays money to the victim.

Absolute or Conditional Discharge

  • Absolute Discharge - D is technically guilty but has no sentence whatsoever - this is usual and onl reserved for D who are completely blameless.
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Type of Sentences

  • Conditional discharge - D is given no sentence on condition that he does not commit any further offences between 6 months and 2 years.
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Factors taken into account when sentencing

  • Judge or magistrate must abide by Sentencing Guidelines issued by the Sentencing Council.
  • Courts will consider the maximum penalty avaliable for the offence.
  • D's sentence will also reflect the trial venue, i.e. Magistrates or Crown Court.
  • The court will also take into account the aims of sentencing.
  • Ds previous convictions will be made available to the court.
  • The Court will look at the seriousness of the offence. S.143 (1) of the Criminal Justice Act 2003 states that the court must consider Ds 'culpability (how much D was to blame) and any harm caused or intended to be caused by D when he commited the offence'.

Aggravating Factors: When considering the seriousness of the offence, the court will consider aggravting factors. Aggravating factors are factors which make the offence worse and if any aggravating factors are present the court will impose a harsher sentence. They include: 

  • Ds previous convictions.
  • If D was on bail when he commited the offence.
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Factors taken into account when sentencing

  • Racial or religious hostility
  • Disability or sexual orientation hostility
  • d being part of a group/gang
  • Use of a weapon 
  • V was particularly vulnerable, e.g. nurse, paramedic
  • If the assault was premeditated

Mitigating Factors - The court will also consider mitigating factors; these are factors which enable the court to give a lighter sentence, including:

  • Did D cooperate with the police
  • Did D help to identity others involved in the offence
  • Ds mental illness?
  • Ds physical illness?
  • D has no previous convictions
  • Ds genuine remorse
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