English Legal Method I Fall 2024-2025 PDF

English Legal Method I B ELKIS ŞAH İNOĞ LU FA LL 2024 - 2025  Post-Midterm Timetable 09.12.24 - Criminal Court Structure 16.12.24 – Precedent 23.12.24 – Tutorial 30.12.24 - Statutory Interpretation 06.01.25 – Review 13.01.25 – FINAL EXAM  Criminal Court Structure...

English Legal Method I B ELKIS ŞAH İNOĞ LU FA LL 2024 - 2025  Post-Midterm Timetable 09.12.24 - Criminal Court Structure 16.12.24 – Precedent 23.12.24 – Tutorial 30.12.24 - Statutory Interpretation 06.01.25 – Review 13.01.25 – FINAL EXAM  Criminal Court Structure: Contents 1. The categories of criminal offences: Summary, Indictable and Triable Either Way 2. The Courts: Criminal Jurisdiction of Magistrates, Crown (first Instance) 3. The Appeal Routes 4. Types of Sentence and how they are determined 5. Plea Bargaining?  Procedure pre-prosecution It all starts with a complaint/investigation > arrest* under Legislation, Common Law or Warrant Arrested individuals must be brought to the police station. Within 24 hours they should be charged or released. If the investigation is going to continue, police can extend for 12 hours. If for more than 36 hours, court must approve further detention. Absolute maximum is 96 hours. NB: Northern Cyprus. Arrested individuals must be charged within 24 hours or brought to court for further detention. Court can extend in +8 days increments maximum 3 months.  Procedure pre-prosecution Until 1986 – Police made the decision to prosecute Defendants Now – while police charge, the decision to prosecute is made by the CPS The prosecution can take place irrespective of a victim’s complaint. NB: difference in Turkey and Northern Cyprus - some need complaints to be prosecuted (sexual assault, sexual harassment, theft, property damage) How does CPS decide to prosecute?** Instead of prosecution… Crime and Disorder Act 1998, Criminal Justice Act 2003; and Legal Aid, Sentencing and Punishment of Offenders Act 2012 No criminal charge but bad character reference CAUTION (over age of 10) – e.g. graffiti - must be agreed PENALTY NOTICE (18+ - fine) –e.g. shoplifting, Deciding on the crime for prosecution….  Categories of Criminal Offences – ‘Summary’ Relatively trivial offences (some can be pled guilty by post!), created and defined by Statute Tried in the Magistrates – 330 courts – in the District where committed Highway/ Traffic offences (speeding, dangerous driving) Assault Cruelty to animals Criminal damage less than 5,000 stg Being drunk and disorderly TWOC; Driving while disqualified Labour issues - Employment of children  Categories of Criminal Offences – ‘Indictable’ Serious offences. Tried in the Crown Court Murder, attempted murder, conspiracy to commit Manslaughter (all) (fatal) Rape Shooting Maiming, burning by explosion Robbery Burglary Arson endangering life Kidnapping (hostage)*  Categories of Criminal Offence – ‘Triable Either Way’ More serious, but not automatically seen as serious as indictable! Could be tried as a summary offence OR indictable Theft – Minor theft - not robbery (force) or burglary (trespass and harm) Drug offences Aggravated vehicle taking e.g. someone injured Aggravated dangerous driving (e.g. alcohol or racing involved) ABH Aggravated common assault (e.g. racially motivated) Criminal damage (over 5,000); Arson not endangering life Abduction, cruelty to child Controlling/causing prostitution for gain Administration of noxious substance to cause harm  Triable Either Way Offences…how do we decide? Magistrates deliberation…. Asks for plea… Is D pleading guilty? Mag may sentence…. If sentencing of Magistrates insufficient, D can be sentenced by Crown. Is D not-guilty/no plea? ALLOCATION: Is it suitable for summary trial – e.g. are their sentencing powers enough? If Magistrates considers only indictable appropriate, there is no choice. Where summary is appropriate, there is a choice*. What are the advantages / disadvantages of selecting summary / indictable where a choice is given? Complaint/Investigation Arrest Charge (Prosecution) Court Summary Plead Guilty Sentenced by Magistrates Indictable Plead Guilty Sentenced by Crown Triable either way Plead Guilty Mag sentences Crown sentences Plead Not Guilty…?  Bail – What is it? After the decision to prosecute (after charge), D is brought before the court and it is questioned whether D should be kept in CUSTODY (at police or court cell) or given BAIL (free during trial until conviction/sentence). Only if D pleads not guilty!! Bail = Release from custody while their case is being dealt with. Balance is sought – presumption of innocence and liberty vs. the importance /need to keep people in custody (in order to ensure e.g. they appear for trial, don’t tamper with witnesses/evidence) D can be granted ‘conditional bail’: To keep away from named places or people e.g. Witnesses Payment of a bond - ‘surety’ Reporting e.g. appearance at police station No driving Electronic tagging  Some exceptions – e.g. No bail for murder prosecution s.4, Bail Act 1976 - D must be granted bail without condition unless there are grounds to believe that the Defendant would (for imprisonable offences): Fail to surrender Commit an offence on bail Interfere with witnesses Committed an indictable or triable either way offence while previously on bail Own protection For non-imprisonable offences: D has previously failed to surrender to custody and therefore would fail again Needed for protection  Progression of Criminal Cases Prosecution Exam Cross exam Re-Exam Defence  The Court Jurisdictions – Magistrates’ Court Original Jurisdiction only! Tries: Summary Sentence /try Triable either way selected as summary trial Referrals: Transfers some cases (either way) to crown for sentencing (limited powers) Sends Indictable /triable either way selected as indictable to Crown for trial  Who hears cases in the Magistrates’ court? ✓Magistrates – 2 or 3 ✓District judge No Jury!  Sentencing Powers of the Magistrates Magistrates has limited sentencing powers: ✓maximum six-month sentence for a single offence ✓total of 12 months for multiple offences ✓Community sentence e.g. unpaid work ✓Combination: fine + community sentence Also used to be limited for fines – only up to £5,000. After 2015 the fines in a magistrates’ court will be unlimited in most cases. In the Crown Court, the fine can be unlimited. Where the Mag believes that the sentence should be more, it can pass the case to the Crown Court for sentencing.(E.g. TEW pleaded guilty)  The Court Jurisdictions – Crown Court Original and Appellate Jurisdiction Tries: Indictable Triable either way – selected as indictable by the Magistrates or Defendant* Referrals: Defendants pleading guilty are sent from magistrates court for sentencing Appellate Jurisdiction: Hears appeals from Magistrates (summary offences)  Who hears cases in the Crown? ✓Circuit Judge (for lesser) ✓High court Judge (more serious cases e.g. Murder, Manslaughter) ✓Cases are heard by judge + jury Role of the jury = decides on facts and guilt Role of the judge = sentencing ❖Sentencing powers of the Crown are wider e.g. prison  Youth Courts – Defendants under 18 (10-17) Special Magistrates Courts – no matter the classification of offence Exceptions > Crown for Homicide (including death by dangerous/intoxicated driving) or offences carrying potential of 14 years+ imprisonment) ✓3 Magistrates ✓A district judge ✓No jury Less formal - Must be accompanied by parent/guardian if under 16 Wide range of sentences available – see later  The Appeal Structure SUMMARY ? INDICTMENT ? ❖Who can appeal?  Initial Appeal SUMMARY – Mag * to the Crown Court Defendant may appeal from the Magistrates - s108(1) Magistrates' Courts Act 1980 ✓Appeal against sentence or conviction (facts) or both if plead not-guilty ✓Appeal against just sentence if plead guilty No permission needed APPEAL must be made within 21 days otherwise need to seek permission of Crown Court Appealing sentence = not full hearing Appealing conviction = full rehearing with witnesses but no jury Outcome: confirm, reverse or vary. Can be heavier or lighter - but within Mag powers**  Prosecution cannot appeal from the Magistrates to the Crown! Quasi Appellate Jurisdiction of the Crown Why ‘Quasi’? Criminal Review Commission sends for review - s.11 Criminal Appeal Act 1995  Initial Appeal SUMMARY – Mag to the High Court D.C KBD prosecution or defence As an alternative: from the Magistrates to D.C - …Or from mag-crown to D.C. K.B.D (defendant only) s111(1) Magistrates' Courts Act 1980 ✓On a point of law ✓That the Magistrates acted beyond their jurisdiction As ‘Case Stated’ - not retrial Further appeal = From HC directly to Supreme. Leave needed. Of public importance.  Initial Appeal INDICTMENT – Crown * to the COA Criminal Division Defendant: ✓Against conviction (depends on plea) or sentence ✓Leave of COA or trial court required. Leave decided by single judge ✓Application must be made within 28 days Usually will be ‘case stated’ If ‘in the interests of justice’ and appealing against conviction, COA can grant retrial  Initial Appeal INDICTMENT – Crown * to the COA Criminal Division ✓Prosecution can appeal rulings that have the effect of terminating the trial* ✓with leave - Criminal Justice Act 2003 Quasi-Appellate Jurisdiction of the COA: s.9 Criminal Appeal Act 1995 - Criminal Review Commission sends for review s. 36 Criminal Justice Act 1972 – review acquittal on indictments. A-G can refer on point of law s. 36 Criminal Justice Act 1988 - AG refers lenient sentences of the Crown  Further Appeal Summary: mag crown D.C.K.B.D (def only) SC mag DC.K.B.D (prosecution or defence) Indictment: ✓Crown COA (prosecution or defence) SC Leave needed  Summary Indictment Magistrates Crown K.B.D High Court (pros COA (def. pros Crown (def) limited*) & def) Supreme  The Criminal Cases Review Commission Review of Magistrates decisions are appealed to Crown Review of Crown Court decisions appealed to COA Lenient sentence, point of law  Sentences Discharge least serious offences – going to court is punishment enough No punishment other than conviction (absolute discharge) - but still criminal record Can have conditions placed (conditional discharge) e.g. If they commit another crime, can be sentenced for first offence in addition to the second one! Fine less severe offences - most common sentence. Consider seriousness of offence and finances of D  Community Sentence unpaid work most common such as removing graffiti (Unpaid work from 40-300 hours; maximum 3 years) Also Curfew, restricted places, mental health treatment (or e.g. drugs), where stay If under 18: Reparation Order (return e.g. property to victim), Rehabilitation Order - referral for program created to address behaviour Prison ‘custodial sentence’ Over 21 serious or bad record of D where fine or community sentence not enough ‘indeterminate’ – minimum tariff set by judge then parole determined ‘determinate’ – fixed sentence. Half is served, the rest on licence.  Suspended sentence Prison sentence between 14 days- 2 years Don’t go to prison straight away – ‘on licence’ in community Requirements placed e.g. curfew, treatment, places If don’t follow conditions, go back to prison and serve original sentence If another offence committed = original sentence + new one ‘Detention and Training Order’ (12-17 ages) Ordered for 4 months – 2 years. First half in custody and then in community If more serious = extended custody, then supervision like ‘licence’ e.g tag Murder - minimum time for custody set, then supervision for lifetime Ancillary Orders Compensation, drinking ban, disqualified from driving, exclusion orders.  Which Sentence? No sentence will be the same because the crime and circumstances is different. But the way in which the Court decides is the same…. Factors: Seriousness of the crime (burglary: open window vs knife) - Aggravated Circumstances and Legal provisions Impact on victim/harm caused Level of blame worthiness - planning, using weapon, targeting vulnerable groups (elderly) Is there a criminal record – more harsh treatment Guilty or not guilty - guilty earlier on = smaller sentence, save victims and witnesses stress and court money* Mitigated circumstances - personal problems, genuinely sorry, pleaded guilty early on, take care of family members What type of sentence is likely to change the defendants behaviour? + sentencing guidelines from the COA and Sentencing Council Sentencing Children and Young Persons Community and Custodial Guidelines Robbery Theft Fraud and bribery Health and safety offences: corporate manslaughter, food and hygiene offences etc…  Plea Bargaining? s.144 Criminal Justice Act 2003 “In determining what sentence to pass on an offender who has pleaded guilty to an offence a court must take into account… the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty”… Sentencing Council Guidelines - Reduction of sentence for guilty plea (from 7 March 2017) Encourage those who are going to plead guilty to do so as early in the court process as possible. Why? Can reduce the impact of the crime upon victims; save victims/witnesses from having to testify; saves public time and money on investigations and trials. Reduction in the sentence available at the first stage of the proceedings at Magistrates ✓1/3 off After the first stage of proceeding e.g. triable either way has gone from Mag to Crown on indictment. ✓Maximum 1 /4 off When proceedings start e.g. trial (cross-examination) ✓reduced to 1/10 off  How can it be applied? Reducing Type of Sentence Custodial sentence (prison) > community sentence; community sentence > fine Reducing Length of Sentence 10 > 5 Keeping ‘triable either way’ in the Mag = lower sentencing powers For murder? Mandatory life custodial sentence Identification of minimum for serving :- First stage: one-sixth or five years (whichever is less) Lesser reductions should be given for guilty pleas after that point On day of trial: maximum one-twentieth reduction