Criminal Revision Notes Final.pdf

Criminal Revision Skeleton 1. Overview of criminal procedure 0 2. Preliminaries to prosecution 3 3. Bail and remands 4...

Criminal Revision Skeleton 1. Overview of criminal procedure 0 2. Preliminaries to prosecution 3 3. Bail and remands 4 4. Procedure in the Magistrate’s courts, allocation and sending to the Crown Court 5 5. Disclosure of unused material and defence statements pg 32 3 6. Indictments 3 7. Preliminaries to trial in the Crown Court 3 8. Summary trial procedure pg 50 wk 5 4 9. Jury trial procedure 4 10. Preliminary evidential matters 1 11. Burden and standard of proof 2 12. Preliminary issues relating to witnesses 2 13. The rules relating to the examination of witnesses 3 14. Hearsay evidence pg 81 5 15. Character evidence pg 89 5 16. Confessions and unlawfully obtained evidence pg 98 wk 10 3 17. Inferences from the defendant’s silence and other conduct pg 102 wk 10 3 18. Visual identification evidence pg 105 wk 11 2 19. Opinion evidence and experts pg 109 wk 11 1 20. Privilege pg 111 wk 11 1 21. Youth courts and the appearance of youths in other courts 113 wk 7 4 22. Sentencing principles pg 119 wk 5 3 23. Non-custodial sentences 2 24. Custodial sentences 2 25. Ancillary orders and costs on conviction 1 26. The dangerous offender provisions 1 27. Appeals from the Magistrate’s and from the Crown Court in its appellate 3 capacity 28. Appeals from the Crown Court 2 1  1. Overview of Criminal Procedure Criminal Procedure Rules: OVERRIDING OBJECTIVE = cases are dealt with JUSTLY, which includes: ▪ acquitting the innocent and convicting the guilty; and ▪ dealing with cases efficiently and expeditiously without undue delay, while considering the gravity of an offence, complexity of a case and the parties involved. All parties must act in accordance with overriding objective and not hinder it. The court must further the overriding objective where possible, using its powers of case management. Court structure: 1) MAGISTRATE’S COURT: ▪ ALL summary-only and some either way; ALL first appearances for adult offenders ▪ EITHER 3 lay Magistrates with a legal advisor OR a District Judge ▪ Tribunal of LAW and FACT 2) YOUTH COURT: ▪ Tries ALL < 18, unless they are sent to the Crown Court ▪ Same bench as in Mags (Magistrates receive special training) 3) CROWN COURT: ▪ ALL indicatable-only offences and some either way ▪ High Court judge, Circuit judge or a Recorder – i.e. barrister, solicitor or judge of lower court authorised to sit in Crown court ▪ Tribunal of LAW; with jury as tribunal of FACT ▪ Appellate jurisdiction over appeals from Magistrate’s and Youth Court 4) HIGH COURT: ▪ Limited supervisory role over the Magistrate’s and Youth courts to hear judicial reviews/case stated matters. ▪ High Court or Court of Appeal judges 5) COURT OF APPEAL: ▪ Appellate court ONLY, hearing appeals (with leave) from the Crown Court ▪ High Court and authorised Crown Court judges; rarely Supreme Court judges ▪ No. of judges depends on the type of appeal (below) 6) SUPREME COURT: ▪ Appeals from CA (with leave) on point of LAW of general public importance ONLY KEY offence categories: (1) SUMMARY ONLY ▪ Common assault ▪ Criminal damage < or = £5K ▪ Minor driving offences 2  (2) EITHER WAY ▪ Theft ▪ Burglary ▪ Fraud ▪ Sexual assault – s 3 SOA 2003 ▪ ABH – s 47 OAPA 1861 ▪ Unlawful wounding – s 20 OAPA 1861 ▪ Possession of class A, B or C drugs ▪ Possession of class A, B or C drugs with intent to supply – Sch 4 Misuse of Drugs Act 1971 ▪ Criminal damage > £5K (3) INDICTABLE ONLY ▪ Robbery ▪ Rape ▪ Wounding with intent – s 18 OAPA 1861 ▪ All common law offences (max sentence = ‘at large’, which means any sentence up to an including life imprisonment) – e.g. conspiracy, treason etc. ▪ Possession with intent to supply where mandatory minimum sentence due to third offence Public funding (for representation) in criminal trials: Designated official at the Magistrates considers a two-stage test to grant a REPRESENTATION order: 1. INTEREST OF JUSTICE (s 17 LASPO 2012: includes factors such as likelihood of D losing liberty, and inability to understand proceedings) 2. MEANS THRESHOLD – evidence of financial circumstances required (Can apply to lay Magistrates or DJ where application is refused; OR even to Crown Court judge where counsel is needed for D in contempt of court, in breach of a court order/warrant for arrest). 3  2. Preliminaries to Prosecution: Police Powers (3) PACE Codes of Practice (supplement PACE 1984) = ADMISSIBLE as evidence in criminal proceedings. Breaches of PACE Codes do NOT render evidence inadmissible/unlawful PER SE; however, they provide a basis for an application to exclude evidence under section 78 PACE 1984. 1. ARREST Power of arrest is generally DISCRETIONARY. EXCEPTION where D has been arrested for one offence and taken to a police station and it becomes clear that if released D would be liable for some other offence, D MUST be arrested for the offence. Either WITH or WITHOUT a warrant: Without a warrant Necessary elements of a LAWFUL arrest: the arrestee MUST be told – 1. That they are under arrest (in any language which sufficiently conveys that meaning); AND 2. Of the GROUNDS of the arrest (where without warrant) Section 24(1) PACE: person (a) in fact, about to/in act of committing an offence; or (b) have reasonable grounds for suspecting someone about to/in act of committing an offence. REASONABLE GROUNDS = both SUBJECTIVE (PO must actually suspect) and OBJECTIVE (reasonable PO in the same position would also suspect); based on facts at the time, without benefit of hindsight. For JR of officer’s decision re grounds, the high threshold of Wednesbury unreasonableness applies. The arresting officer does NOT have to have identified the specific legal provision under which they act; facts must just relate to the kind of offence the PO has in mind. Additional elements which do NOT render an arrest unlawful, but would = breach of PACE Code C (subsequent evidence may not be admissible): 3. Of the REASONS for the arrest Section 24(5) PACE: (a) Enable NAME/ADDRESS of arrestee to be ascertained; (b) Prevent arrestee: (i) Causing/suffering physical injury/property damage (ii) Committing an offence against public decency (iii) Cause an unlawful obstruction of the highway (c) Protection of child/vulnerable person (d) Allow the PROMPT and EFFECTIVE investigation of the offence/conduct of arrestee (e) Prevent any prosecution for the offence from being hindered by disappearance of the arrestee 4. CAUTIONED All of these elements and anything arrestee says (‘verbals’) should be RECORDED in PC’s notebook at the time/as soon as practicable; then later added to custody record. 4  BURDEN OF PROOF on police to prove that the arrest was LAWFUL. With a warrant (Magistrates Court Act 1980, s 1) Police submit a written ‘information’ to the Magistrate’s and explain under oath why a warrant is needed: i.e. because person has/is suspect of committing an offence. Requires: ▪ Suspect be > 18 YEARS; AND EITHER ▪ Offence must be INDICTABLE or carry a possible CUSTODIAL sentence; OR ▪ Person’s address must be unknown, meaning that a summons cannot be served on him. The Mags can then issue the warrant for D to be brought before the court immediately or bailed to be brought before the court on a specified date. The Crown Court can also issue a warrant for arrest where (1) an indictment has been signed but D has not yet been sent for trial; or (2) D has undertaken a bond to appear at the CC but has failed to do so. CIVILIAN powers of arrest: i. Under PACE 1984, where believe that a person is/is about to commit an INDICTABLE offence ii. Common law, to prevent a breach of the peace which reasonably believe (objective) to be anticipated/immediate. Action taken must be REASONABLE, NECESSARY and PROPORTIONATE. Arrest generally requires some PHYSICAL DEPRIVATION of liberty. Arresting officers are allowed REASONABLE USE OF FORCE where necessary to exercise powers of arrest. ▪ What is reasonable? Consider – a. NATURE and DEGREE of force used b. GRAVITY of offence for which arrest is made c. HARM following use of force d. NECESSITY of use of force ▪ This can include use of HANDCUFFS where necessary to prevent (i) escape or (ii) breach of the peace. ▪ Where unreasonable use of force – e.g. resulting in serious injury, or handcuffs are used when not necessary - may = trespass on the person, but the arrest itself does NOT become unlawful. 2.2.CAUTION ‘You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’ Can be explained in additional words if suspect does not understand. 5  Altered words where D questioned in circumstances where adverse inferences CANNOT be drawn (e.g. delayed access to legal advice): ‘you do not have to say anything; anything you do say may be given in evidence.’ Under PACE Code C, caution required: i. On arrest ii. At commencement/re-commencement of any INTERVIEW (see below), whether or not conducted at police station For inferences to be drawn under s 36 (failure to account for object, mark or substance) OR s 37 (failure to account for presence in place arrested) CJPO, police must give a SPECIAL WARNING to the suspect about possible consequences of failure to account. 2.3.CUSTODY/DETENTION Once at the police station post-arrest, D’s custody must be authorised/supervised by a CUSTODY OFFICER (independent on any investigation). Must be rank of SERGEANT or above. The custody officer must open a CUSTODY RECORD for the suspect, to record anything of note during detention. ‘RELEVANT TIME’: either (1) the time D arrives at the police station; (2) 24h post-arrest (whichever is sooner) REVIEW of custody by the custody officer – if at any point the GROUNDS for detention cease to exist, the custody officer must order D’s release. Particular care with children and young persons. Relevant time: Custody officer (>SERGEANT) initially authorises D’s detention +6 hours: Review of custody by officer of rank of at least INSPECTOR (+9h intervals): Review by officer of rank at least INSPECTOR 24h after RT or time of arrest: (Whichever sooner) ▪ Summary only offences must be CHARGED or RELEASED ▪ Indictable offences must be charged or released, UNLESS the continued detention is authorised by officer > SUPERINTENDANT. Superintendent can ONLY authorise where – i. Necessary to preserve or retain evidence, or obtain evidence by questioning; AND ii. Investigation is being conducted DILIGENTLY and EXPEDITIOUSLY. +12h (36h total detention): Must be charged or released, UNLESS the Magistrate’s issue a warrant for further detention. The court must be satisfied of same test as above; submissions by PO made under oath. Court can extend by up to 36h. 6  The application MUST be made before the original 36h period expires. If the Mag’s will NOT be sitting at the end of the 36h period but will be sitting within the next 6h, D can be kept in custody until that time. HOWEVER, if Mag’s consider that application could have been made within the 36h period (earlier), then MUST reject the application. PO should make request as soon as known to be needed; even before extension from superintendent above. +36h (72h total detention): Mag’s can issue a second extension of 36h on the same test. +36h UP TO A MAX OF 96H. D MUST be charged or released. The police CANNOT circumvent the rules by releasing and then re-arresting D; this can only be done where new evidence becomes available. If D is bailed/released and then SUBSEQUENTLY arrested, the relevant time remains the same – ORIGINAL TIME brought to station/24h after arrest. CHILDREN and MENTALLY VULNERABLE persons may be detained by the police in a ‘place of safety’ (where in need of immediate care/control) under s 136 Mental Health Act, to enable a mental health assessment. If practicable, a medical/mental health professional should be consulted prior to detention; The max period of a detention under s 136 = 24 hours; can be extended by 12h by a medical practitioner; A police cell is NOT a ‘place of safety’ for children