Criminal Flashcards
(58 cards)
Assault occasioning Actual Bodily Harm
s.47 Offences Against the Person Act 1861
This offence is committed when a person intentionally or recklessly assaults another, thereby causing actual bodily harm (ABH). Including hurt or injury calculated to interfere with health or comfort of V. Harm need not be permanent but must be more than transient and trifling.
Either way offence
Maximum: 5 years’ custody
Offence range: Fine – 4 years’ custody
Common assault: assault and battery
Assault: max 6 months imprisonment.
“an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence.”
Battery: max 6 months imprisonment.
‘’an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant’’
Inflicting grievous bodily harm/unlawful wounding, Offences against the Person Act 1861 (section 20)
Triable either way
Section 20
Maximum: 5 years’ custody
Offence range: Community order – 4 years 6 months’ custody
GBH means really serious harm. The harm does not have to be either permanent or dangerous. Proof of wounding requires a break in the continuity of the skin. The distinction between a section 18 and section 20 GBH is the mens rea of the offence. Charge selection must address the question of recklessness and intention. It is therefore of critical importance, and good practice, to explain how the evidence in the case directly supports recklessness and intention. For a section 20 GBH the suspect must intend, or foresee, that the act might cause some harm: R v Savage; DPP v Parmenter [1992] 1 AC 699. It is not possible to attempt this offence because in order to attempt it, the consequence (wounding or GBH) must be intended, which is an offence contrary to section 18 instead. The indictment should make clear whether it is wounding or GBH which is alleged.
Wounding/causing grievous bodily harm with intent, Offences against the Person Act 1861 (section 18)
Triable only on indictment
Maximum: Life imprisonment
Offence range: 2 – 16 years’ custody
S.18 can only be committed where GBH (or wounding) is intended. It bears repeating that the explanation for the charge selection should directly address the question of recklessness or intention, demonstrating how the evidence in the case supports the decision. Evidence of intention may come from different sources, of which the following are a few examples:
selection and use of a particular weapon
severity or duration of attack
making prior threats or planning a serious attack
relevant admissions in interview
3 Forms of commencing criminal proceedings
- Arrest and Charge - Most common.
- Written charge and requisition - Available to relevant prosecutors whom have there powers delegated by the DPP such as CPS/Environment Agency.
- Laying an information - Private Prosecutors.
Written charge and requisition
- Available to public prosecutors
- No requirement for arrest
- Must be served on the person charged and the magistrates court which they are asked to attend
The written charge must contain
- A statement of the offence which describes the offence in ordinary language
- Reference to the statutory provision that creates the offence
- Sufficient particulars of the conduct complained of for the accused to know what is alleged.
A summons or requisition must
- Contain a notice setting out when and where the accused is expected to attend court
- Specify each offence in respect of which it has been issued.
Summons must identify the court
Requisition must specify under whose authority it was issued.
Custody time limits
Trials must commence ahead of these time limits.
- 56 days for trials in the magistrates’ court of summary only or either way offences.
(D must have second hearing for bail within eight clear days - 28 days thereafter but can be done in D’s absence.) - 182 days for trials in the crown court of indictable only or either way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).
Once time expires, D is released unless prosecution applies to extend time and can show that it has acted with all due diligence and expedition and that there is good and sufficient cause to have D further remanded in custody.
The First Hearing Format
All defendants will have their first hearing before the magistrates court.
When D is on bail, first hearing must be within:
- 14 days of being charged - If Prosecutor anticipates a guilty plea which is likely to be sentenced in the Magistrates court.
- 28 days of being charged - where it is anticipated that the Defendant will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence.
If D was retained ion police custody following charge they must be brought before the next available court.
D’s Attendance
D must be present at the first hearing. If D is on bail and fails to attend the court can issue a warrant for the defendant’s arrest. Failure to surrender to bail at the appointed time is an offence under the Bail Act 1976.
If D doesnt attend as required the court will consider whether they can go on without D present. Unlikely that this will be possible when dealing with allocation or either way offences or sending an indictable case to the crown court.
If D has been summonsed to court (typically used for non imprisonable offences) D does not commit an offence for non appearance. Can proceed in D’s absence.
Initial Details of the Prosecution Case (IDPC)
CPR P8.
Prosecution obliged to serve initial details to the court officer as soon as practicable and in any event no later than the beginning of the day of the first hearing. If D requests those details, same timescales apply.
The CPS now uses electronic files which are uploaded to the Common Platform - the mags court online system. A solicitor would then request access.
Remedy for failure to supply would be to adjourn the first hearing and/or award costs to the defence for the prosecutions failure to serve.
Content of the IDPC must be sufficient to allow the court to take an informed view on plea and venue for trial, and must include;
1. Summary of circumstances of offence
2. Account given by D at interview
3. Written statements and exhibits that are available and material to plea and or mode of trial or sentence
4. Victim impact statements
5. The defendants criminal record.
If D was in police custody immediately prior to the firs hearing then the details only need to comprise of:
1. Summary of circumstances of offence
2. D’s criminal record.
Where a not guilty plea is indicated the parties must provide sufficient information to enable the ‘Preparation for Effective Trial (PET)’ form to be completed.
Summary and either-way offences
Hearing will deal with:
1. Plea;
2. Bail;
3. Representation and legal aid,.
4. Depending on offence it may progress to sentence.
Indictable only
- Magistrates court does not have jurisdiction to deal with these offences and therefore a defendant charged with one will only make a brief first appearance at the magistrates. Court will deal with:
1. Bail
2. Legal Aid
D will indicate plea on CC sending form.
D will be sent to crown court to enter plea. Hearing at CC is 3/4 weeks later depending on D’s bail status.
Summary only offences in the Crown Court:
- Exception to rule that Summary only offences do not go to CC; This happens when D is charged with an offence that is to be tried in the CC and there is a summary only offence which is connected to the IO. If the Summary only offence is one of those listed below and is before the magistrates court at the same hearing as the indictable offence, it must be sent to the crown court:
Related summary matters that must be sent for trial and included on an indictment (s40 CJA)- Common assault, Assaulting a prison or secure training centre officer, taking a motor vehicle or other conveyance without authority, driving motor vehicle whilst disqualified and criminal damage.
Related summary matters that must be sent for plea only: any summary matter not listed in s40 but that is punishable by disqualification from driving or imprisonment.
Which court should deal with indictable only offences
Crown Court
Which court should deal with Summary only offences
Magistrates court
Which court should deal with Either Way Offences
Magistrates or Crown Court
Legal Burden
Unless the prosecution can prove beyond reasonable doubt of someones guilt, the benefit must be given to the defendant.
Rare for the defence to have a legal burden but when they do so its on the balance of probabilities.
Sometimes the prosecution has the burden to disprove something but this is still a legal burden. E.G. prosecution must try to disprove that D was acting in self-defence. This issue must be raised by the defence - the defence has the evidential burden.
The Evidential Burden
The defence has the evidential burden in some situations is so that issues remain focused and only becomes a matter for the prosecution to disprove if it is actively raised by the defence.
Burden falls on prosecution to establish a case to answer. If at the end of the case, evidence presented doesn’t suggest a case to answer, it should be stopped at that point. Usually occurs as a response to application by the defence. Sometimes due to reliability of witnesses or procedural error.
Sentencing purposes
- Punishment of offenders
- Reduction of crime
- Reform and rehabilitation of offenders
- Protection of the public
- Making of Reparation.
Types of sentence
- Fines
- Disqualification
- Discharge
- Community Orders / Youth Rehabilitation Orders
- Custodial sentences - Courts limited by max sentences. Certain sentences can only be imposed by CC such as life sentences or sentences for dangerous offenders.
Discretionary sentences in mags court - limited to 6 mnths imprisonment unless 2 or more either way offences - then increases to 12 months.
Crown Court - sentences set by statute.
E.G. Theft - 7 yrs on indictment.
ABH - 5 yrs on indictment.
Custodial threshold
Offence must be so serious that neither a fine alone or community order can be justified.
Community Threshold
The offence must be serious enough to warrant the making of such an order.
Suspended Sentences
2 Parts:
1. Sentence itself
2. Operational Period.
E.G. Custodial sentence 12 months could be suspended for 2 yrs.
Can impose community orders alongside suspended sentence.
If during period of suspension the offender commits a further offence, the court can reactive the sentence in whole or in part, they will then go to prison to serve the sentence. Could must activate the custodial sentence unless unjust in all circumstances to do so.
Types of Community Order
Treatment Orders
Unpaid Work
Prevention from undertaking activities.
If offender fails to comply with requirements they must first be warned that failure is unacceptable, if continue without reasonable excuse, breach proceedings against offender.
The Sentencing Code - Approach to Sentencing
Both prosecution and defence will have opportunity to address the court.
Judge must make decision on appropriate sentence and provide full reasons:
1. Category (consider extent culpability of offender and harm caused by offending) - Starting point and category range
2. Aggravating and Mitigating Factors.
3. Judge will reach provisional decision as to appropriate sentence.
E.G. judge may consider 6 months imprisonment appropriate, judge will then consider other reductions, e.g. assisting the prosecution, reductions for guilty plea at first opp (1/3 off), totality of sentence as well as whether or not should be ancillary orders such as compensation/costs.
Newton hearings - mini trial without a jury - defendant pleaded guilty but on basis of different version of facts. Court concluded that factual differences could or would make material difference to sentence. If Prosecution accepts the version of events of the defendant, they should put this in writing and give it to the judge before the sentencing hearing. If they reject this should also be outlined in writing.
Appeals
Magistrates - Crown Court
Automatic right to appeal to the CC. Can appeal a conviction and or sentence. Grounds not necessary. Reason for appeal must be set out in document served. May be arguing excessive sentence.
Time limit 15 business days of sentence irrespective of whether appeal against conviction or sentence.
Appeal Hearing - Hearing De novo - everything heard again. Another trial. All witnesses called and trial takes place afresh. Crown Court Judge will sit alongside 2 lay mags. Fresh sentencing submissions will be made, no restrictions. CC sentencing powers restricted to those of magistrates (6mnths imprisonment).
Can apply by way of case stated from magistrates to High Court or to judicially review a decision made. Sometimes possible to correct errors in sentencing by reopening matter before the magistrates at later date.
Matters tried in CC - Usual route of appeal to court of appeal. Must be grounds. Conviction grounds of appeal = unsafe. 28 days to lodge appeal. If leave granted CoA can increase, reverse or substitute sentence of if appeal against conviction can order retrial, quash or uphold. Matter of public importance, CoA can send up to supreme court. CC decision can be appealed by case stated (legal determination required e.g. how to apply legal test) or judicial review (procedural irregularity).
Youths - Trial and Sentence
Children - 10-13.
Young Person - 14-17.
Children/YP at Police Station need an appropriate adult.
Overriding principle / aim = to prevent offending by children and YP. Everyone involved working with this principle aim. Must have regard to the welfare of Child/YP.
All cases should be dealt with youth court. Summary jurisdiction. Not public court, reporting restrictions. Exceptions - Homicide (murder/manslaughter) must be dealt with by CC. If notice given re serious/complex fraud must be dealt with by CC. Child/YP under dangerous offender provision sent to CC. Young people under 16 charged with firearms offences sent to CC. (DIFFERENT TO ADULTS).
Exceptions: Grave Crimes and Situations where Child/YP jointly charged with adult.
