Hotlist Flashcards
(127 cards)
1
Q
Transferred Mens Rea
What is this?
A
Where the state of mind required for one offence can, on occassions, be ‘transferred’ from the orginal target to another.
This only operates if the CRIME REMAINS THE SAME.
2
Q
Transferred Mens Rea
When does transferred mens rea not apply?
A
If you act with the mens rea for one offence but commit the actus reus of another.
If the nature of the offence chances, transferred mens rea does not apply.
3
Q
Actus Reus
For a person to be found guilty of a criminal offence you must show that he/she:
A
- Acted in a particular way
- Failed to act in a particular way (omissions), or
- Brought about a state of affairs.
- Must be shown that the defendant had the requisite mens rea at the time of carrying out the actus reus.
4
Q
Actus Reus
When proving the required actus reus you must show:
A
- That the defendant’s conduct was voluntary (own volition/ free will).
- That it occurred while the defendant still had the requisite mens rea.
5
Q
Actus Reus
Omissions which mean a person commits an offence by failing to act in certain situations.
A
D Dangerous situation created by the defendant.
U Under statute, contract or a person’s public ‘office’.
T Taken it upon him/herself
Y Young person
Remember you must show that the defendant has voluntarily omitted to act as required.
6
Q
Actus Reus
Once the Actus Reus has been proved, what must then be shown for an offence to have been carried out?
A
A causal link between it and the relevant consequences.
That is, to prove the consequences would not have occurred without the defendants act or omission.
7
Q
Actus Reus
What is an Intervening Act?
A
A subsequent overwhelming or supervening event which is not the ultimate cause of the consequence that form part of the actus reus of the offence, and NOT the initial conduct.
E.g significant medical intervention and it kills them if they were nearly better. Broken chain of causation. If something like an allergic reaction occurred would still be original aggressors wrongdoing.
8
Q
Actus Reus
Give an example of what would not be considered an intervening act?
A
A soldier is stabbed in a fight, two persons carrying the injured man away drop him and a doctor fails to notice an injury to a lung and he subsequently dies.
Incorrect medical treatment is almost NEVER considered an intervening act.
9
Q
Actus Reus and a ‘Victims Weakness’
Case study?
A
The defendant must be aware that his actions may have a greater consequence than expected.
R v Harvey – The eggshell skull case
- A husband and wife have an argument, husband throws remote at her. Unfortunately, she had a weakness where it struck and she was killed.
- In 99% it would have been common assault but you must take a victim how you find them.
10
Q
Principals and Accessories
- What is a principal offender?
- What is an accessory?
A
- One who’s conduct has met all the requirements of the particular offence.
- Someone who has helped in or brought about the commission of an offence.
11
Q
Principals and Accessories
In what circumstances will an accessory be treated in court in the same was a the principal offender?
A
If the accessory ‘aids, abets, counsels or procures’ the commission of an offence.
Sentences of an accessory and principal are the same.
You do not have to convict/ charge a principal. Accessories can be convicted in their own standalone charge.
12
Q
Principals and Accessories
What does ‘aid, abet, counsel and procure’ mean?
A
At the scene:
• aiding = giving help, support or assistance
• abetting = inciting, instigating or encouraging.
Away from the scene:
• counselling = advising or instructing
• procuring = bringing about.
13
Q
Principals and Accessories
If an accessory is present at the scene of a crime when it is committed, his/her presence may amount to encouragement which would support a charge of aiding or abetting if he/she was there as part of an agreement in respect of the principal offence.
What of the situation where the accessory is not present during the substantive offence?
A
It is necessary to prove intentional assistance by the accessory (A) in acts which they knew were steps taken by the principal offender (P) towards the commission of the crime. Therefore the prosecution must prove:
- an act done by A;
- which in fact assisted the later commission of the offence;
- that A did the act deliberately realising that it was capable of assisting the offence;
- that A, at the time of doing the act, contemplated the commission of the offence by P; and
- that when doing the act A intended to assist P.
14
Q
Principals and Accessories
Generally, the state of mind (mens rea) which is needed to convict an accessory is:
A
‘proof of intention to aid as well as of knowledge of the circumstances’.
15
Q
Joint Enterprise
A joint criminal enterprise exists where:
A
Two (or more) people embark on the commission of an offence by one or both (or all) of them.
It is a joint enterprise because all the parties have a common goal—that an offence will be committed.
As the parties to a joint enterprise share a combined purpose, each would be liable for the consequences of the actions of the other in the pursuit of their joint enterprise.
16
Q
Joint Enterprise
What is Parasitic Accessory Liability?
A
When one person in the joint enterprise goes down a fundamentally different path.
e.g Two friends go out shoplifting but when in the shop, the second friend stabs and robs the cashier.
How liable the person is the higher the probability that something was to happen, the more likely the person could have foreseen it. Did they know the other friend had a knife on them?
17
Q
Corporate Liability
What is Corporate Liability?
A
Companies which are ‘legally incorporated’ have a legal personality of their own and they can commit offences.
It is most commonly used to describe actions, taken by the company itself or its employees, that could be deemed unlawful.
18
Q
Vicarious Liability
What is Vicarious Liability?
A
Vicarious liability arises when a principal (such as an employer) is answerable for the act of an agent in the course of its business.
It most often comes up in an employment context. The employer is vicariously liable for the employee, by the operation of tort law. The employer responsible for acts of the employee. The acts of the employee must be unlawful - and establish a cause of action - but not necessarily be reckless.
E.g Landlord of a pub becomes criminally liable for something bar staff has done.
19
Q
Incomplete Offences
Intentionally Encouraging or Assisting an Offence—
A
s44 The Serious Crime Act 2007
(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting in the commission of an offence; and
(b) he intends to encourage or assist its commission.
(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.
20
Q
Incomplete Offences
Encouraging or Assisting an Offence BELIEVING it will be Committed—
A
The Serious Crime Act 2007, s. 45 states:
(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting in the commission of an offence; and
(b) he believes—
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission.
21
Q
Incomplete Offences
Encouraging or Assisting Offences BELIEVING ONE OR MORE will be Committed—
A
The Serious Crime Act 2007, s. 46 states:
(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences: and
(b) he believes—
(i) that one or more of those offences will be committed (but has no belief as to which); and
(ii) that his act will encourage or assist the commission of one or more of them.
(2) It is immaterial for the purposes of subsection (1)(b)(ii) whether a person has any belief as to which offence will be encouraged or assisted.
22
Q
Incomplete Offences
What are s44, 45 and 46 of the The Serious Crime Act 2007?
A
- s44: Intentionally Encouraging or Assisting an Offence.
- s45: Encouraging or Assisting an Offence BELIEVING it will be Committed.
- s46: Encouraging or Assisting Offences BELIEVING ONE OR MORE will be Committed
23
Q
Incomplete Offences
- What does s49 of the Serious Crime Act 2007 state?
- s50?
A
- That the offences (s44, 45 and 46) can still be committed regardless of whether or not the encouragement had the effect the defendant intended it to have.
- It is a defence if in the circumstances he/she was aware of, or in the circumstances he/she reasonably believed existed, it was reasonable to act as he/she did.
24
Q
Conspiracy
What is the offence of statuatory conspiracy?
A
The Criminal Law Act 1977, s. 1 states:
- An agreement between at least two people, and,
- If the agreement was carried out, would it lead to the commission of an offence by one or more of the parties?
Doesn’t matter if impossible.
25
Conspiracy
A defendant cannot be convicted of a statutory conspiracy if the only other party to the agreement is:
* his/her spouse or civil partner
* a person under 10 years of age
* the intended victim (Criminal Law Act 1977, s. 2(2)).
26
Conspiracy
Conspiracy to Defraud—
. . . an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right [of the victim] . . .
27
Criminal Attempts
What is a 'Criminal Attempt'?
s1 The Criminal Attempts Act 1981
(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
28
Criminal Attempts
What offences can you not attempt?
S ummary only offence (apart from simple damage & low value shoplifting.
P rocure/ Counsel/ Aid/ Abet an offence
A ssist offender/ Conceal relevant offence
C onspiracy
E ncourage/ assist suicide
29
Criminal Attempts
To prove an ‘attempt’ you must show...
...an intention on the part of the defendant to commit the substantive offence.
This requirement means a higher level or degree of mens rea may be required to prove an attempt than for the substantive offence.
30
Criminal Attempts
Can you attempt the impossible?
You can conspire or attempt to commit the impossible.
e.g attempting to steal a painting in an art gallery that has been moved.
31
Recklessness
What is recklessness?
A state of mind that is essentially unjustified risk-taking.
The approach taken to the interpretation of the word reckless is that it will be subjective.
32
Recklessness
What are the requirements of subjective recklessness?
Where the defendant foresees the consequence of his/her actions as being probable or even possible, e.g.
- A circumstance when he/she is aware of a risk that it exists or will exist.
- A result when he/she is aware of the risk that it will occur.
And it is, in the circumstances known to him/her, unreasonable to take that risk.
33
Recklessness
How is how 'reasonable' taking a risk is established?
Each situation will be decided on its own merits by the court – not the defendant.
E.g Are they children? Are they mentally ill?
34
Entry, Search and Seizure – Searching Premises
Time of searches
- Searches must be made within 3 months of date warrant is issued.
- Must be at a reasonable hour unless this may frustrate the purposes of the search.
35
Entry, Search and Seizure – Searching Premises
A warrant under s8 PACE may authorise what?
Search and entry of premises on more than one occasion if, on application, the justice of peace is satisfied that it is necessary to authorise multiple entries.
Further entries must be authorised by written authority of Inspector.
36
Entry, Search and Seizure – Searching Premises
Entry other than with consent
What is the first step to take...
Try to communicate with the occupier, explain the authority under which entry is sought and ask the occupier to allow entry unless:
(i) the search premises are unoccupied.
(ii) the occupier/ any other person entitled to grant entry are absent.
(iii) there are reasonable grounds for believing that alerting would frustrate the object of search/ endanger officers.
37
Entry, Search and Seizure – Searching Premises
Conduct of Searches
Premises may be searched only to the extent necessary to achieve the object of the search and must not continue if all objects are found.
38
Issues in Evidence
What can evidence be described as?
Information that may be presented to a court so that it may decide on the probability of some facts asserted before it, that is information by which facts in issue tend to be proved or disproved.
39
Issues in Evidence
The two questions that need to be applied to any evidence are:
* admissibility - whether the evidence is relevant to a fact in issue. All evidence of facts in issue and all evidence which is sufficiently relevant to prove (or disprove) facts in issue are potentially admissible.
* weight - once it is established that the evidence is admissible, it is put before the court to determine what weight it will attach to the evidence, that is, how much effect does it have on proving or disproving the case (how good it is).
40
Issues in Evidence
What are some reasons for excluding admissible evidence?
At common law, the trial judge has a general discretion to exclude legally admissible evidence tendered by the prosecution.
1. They believe the prejudicial value outweighs the probative value.
2. Evidence obtained through improper or unfair means.
3. Hearsay.
4. Incompetency of a Witness
5. Evidence relating to previous convictions
6. Privileged information or withheld as a matter of public policy.
7. Non-expert opinion evidence.
41
Issues in Evidence
In a criminal case, what are facts in issue?
In criminal cases these are facts the prosecution must prove, for example:
* the identity of the defendant;
* the actus reus;
* the mens rea.
42
Issues in Evidence
What is the duty of the prosecution?
What is the duty of the defence?
Prosecution:
- To prove guilt.
- Beyond all reasonable doubt.
Defence:
- Level of proof is less for the defence.
- On the balance of probabilities.
- To put doubt in the minds of the Jury
43
Interviews – 10 Cautions
When must a caution be given?
A person whom there are grounds to suspect of an offence must be cautioned before any questions about an offence.
If questions provide to grounds for suspicion then they are to be immediately cautioned at the point suspicion is formed and questions ceased.
This means the suspect's silence, (i.e failure or refusal to answer satisfactorily) may be given in evidence to a court in a prosecution.
44
Interviews – 10 Cautions
There is no need to provide a caution with questions which are for other necessary purposes, for example...
When asking for a person's identity or the identity of the owner of a vehicle.
When asking for a driver's name and date of birth under the Road Traffic Act 1988.
When asking a suspect to read and sign records of interviews and other comments.
Before conducting a search.
45
Interviews – 10 Cautions
What does s34 of the Criminal Justice and Public Order Act 1994 state?
'Failure to mention any fact.'
It provides that inferences can be drawn if, when questioned by the police under caution, charged or officially informed that he/she may be prosecuted, the accused fails to mention a fact on which he/she later relies in his/her defence, and which she could reasonably have been expected to mention at the time.
46
Interviews – 10 Cautions
Special warnings
What are 'special warnings'?
s36 and s37 Criminal Justice and Public Order Act 1994
This relates only to persons who have been arrested who fail to account for something that the investigator reasonably believes is fundamental in the fact that they were involved in the offence. A Special Warning is given meaning that inferences can be drawn from their failure to answer.
s36: FAILURE TO ACCOUNT FOR OBJECTS, SUBSTANCES AND MARKS.
S37: FAILURE TO ACCOUNT FOR PRESENCE
47
Interviews – 10 Cautions
Special warnings – Section 36
A person is arrested and on his...
PC FOPSOMM
```
P erson
C lothing
F ootwear
O therwise in his possession or
P lace at time of arrest a
S ubstance
O bject
M ark
M ark on an object
```
....at the time of arrest and is REFUSING to account as to why this is, can be subject of a special warning
48
Interviews – 10 Cautions
Special warnings – Section 37
What four things need to be satisfied?
s37: A person is arrested and found at the place or about the time of the offence that was alleged to have been committed and they reasonably believe this is because they were involved in the offence.
1. The person has been arrested.
2. An officer reasonably believes that what they are asking may be linked to their participation in the offence.
3. The detainee is informed and asked for an explanation.
4. The interviewer tells them in plain language that by not answering an inference could be drawn.
49
Interviews – 10 Cautions
Special warnings
For an inference to be drawn when a suspect fails or refuses to answer a question about one of these matters or to answer it satisfactorily, the suspect must first be told in ordinary language:
a) what offence is being investigated;
(b) what fact they are being asked to account for;
(c) this fact may be due to them taking part in the commission of the offence;
(d) a court may draw a proper inference if they fail or refuse to account for this fact; and
(e) a record is being made of the interview and it may be given in evidence if they are
brought to trial.
50
Interviews – 10 Cautions
Special warnings
Can inference be drawn from silence or refusal to answer?
No – these will not be sufficient alone to prove guilt and obtain a conviction.
51
Interviews – 10 Cautions
Special warnings
At the trial of any person for an offence, inferences can be drawn from an accused failure to give evidence or refusal to answer any question, unless...
s35 Criminal Justice and Public Order Act 1994
(a) The accused's guilt is not in issue, or
(b) It appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence, e.g having a mental age of 9.
52
Interviews – 11 General
What is an interview?
The questioning of a person regarding their involvement or suspected involvement in a criminal offence which must be carried out under caution.
53
Interviews – 11 General
A person must not be interviewed at any place other than an authorised place of detention, unless the consequent delay would lead to...
(a) Lead to interference with, or harm to, evidence connected with an offence; interference with, or physical harm to, other people, or serious loss of, or damage to, property.
(b) Lead to alerting other people suspected of committing an offence but not yet arrested for it.
(c) Hinder the recovery of property obtained in consequence of the commission of an offence.
54
Interviews – 11 General
When should a suspect be reminded of their entitlement to free legal advice?
- Immediately prior to the commencement or re-commencement of any interview at any police station/ authorised place of detention.
- The interview can be delayed to allow this to happen.
55
Interviews – 11 General
1. What is a 'Significant Statement'?
2. What is a 'Significant Silence'?
1. One which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt.
2. A failure or refusal to answer a question or answer satisfactorily when under caution, which might, allowing for the restriction on drawing adverse inferences from silence, give rise to an inference.
At the start of an interview, the officer will question the suspect on giving one of the above (if they have) and if they confirm/ deny/ want to add anything.
56
Interviews – 11 General
If reason(s) for arrest cease to exist accused should be released and processed by summons
PACE section...
Section 30(7) and 30(7A) and (8) of PACE provides that:
‘A person arrested by a constable at a place other than a police station shall be released without bail if a constable is satisfied at the time before the person reaches a police station that there are no grounds for keeping him or her under arrest releasing him/her on bail. The constable must record the fact that this has happened’
57
Interviews – 11 General
An interview must cease in what circumstances?
(a) The officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, e.g. to clear up ambiguities or clarify what the suspect said;
(b) The officer in charge of the investigation has taken account of any other available evidence; and
(c) The officer in charge of the investigation, or in the case of a detained suspect, the custody officer, reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence.
58
Juveniles and Interviews
1. Where can they be interviewed in exceptional circumstances?
2. Who should be notified when they're interviewd?
3. What happens if awaiting the appropriate adult would cause unreasonable delay?
1. Juveniles may only be interviewed at their place of education in exceptional circumstances and only when the principal or their nominee agrees.
2. Every effort should be made to notify the parent(s) or other person responsible for the juvenile’s welfare and the appropriate adult, if this is a different person, that the police want to interview the juvenile and reasonable time should be allowed to enable the appropriate adult to be present at the interview.
3. If awaiting the appropriate adult would cause unreasonable delay, and unless the juvenile is suspected of an offence against the educational establishment, the principal or their nominee can act as the appropriate adult for the purposes of the interview.
59
Interviews – 11 General
A juvenile or vulnerable person must not be interviewed regarding their involvement or suspected involvement in a criminal offence, or asked to provide or sign a written statement under caution or record of interview in the absence of what...?
An appropriate adult
60
Interviews – 11 General
If an appropriate adult is present at an interview, they shall be informed:
• They are not expected to act simply as an observer; and
• The purpose of their presence is to:
∼ advise the person being interviewed;
∼ observe whether the interview is being conducted properly and fairly;
∼ facilitate communication with the person being interviewed.
61
Interviews – 11 General
When may an appropriate adult be required to leave the interview?
If their conduct is such that the interviewer is unable to properly put questions towards the suspect.
Consult a superintendent or inspector.
ANOTHER APPROPRIATE ADULT MUST BE OBTAINED.
62
Interviews – 11 General
Vulnerable suspects – urgent interviews at police stations
What interviews may take place only if an officer of superintendent rank or above considers delaying the interview will lead to the consequences previously described and is satisfied the interview would not significantly harm the person’s physical or mental state?
(a) An interview of a detained juvenile or vulnerable person without the appropriate adult being present.
(b) An interview of anyone detained other than in (a) who appears unable to:
• Appreciate the significance of questions and their answers; or
• Understand what is happening because of the effects of drink, drugs or any illness,
ailment or condition;
(c) An interview, without an interpreter having been arranged, of a detained person whom
the custody officer has determined requires an interpreter.
63
Identification by Witnesses
What are the three parts to Code D
Part A = Eyewitness
Part B = Recognition by non eyewitnesses
Part C = Broadcast of images to the public
64
Identification by Witnesses
What are the two types of the identification procedure?
Where the identity is known - ID parade, Video Parade, Group Identification.
Where the identity is not known - Street ID, Showing of images.
65
Identification by Witnesses
In what circumstances is the taking of images / examining marks that may identify a person practicable to obtain that persons consent?
When the person is drunk or otherwise unfit.
When any attempt to gain their consent may alert them to that fact which may cause the person to take steps to avoid it / cover marks etc.
In the event of a juvenile, where the appropriate adult can not be contacted within a reasonable time.
66
Identification by Witnesses
If a person is not known, what are the stipulations around a street ID
If the suspect is unknown:
- A record should be made of the witnesses first description.
The witness can then engage in the following ID procedures:
- Street ID (taken there)
- Showing of images.
Care must be taken not to draw the witnesses's attention to any person.
67
Identification by Witnesses
What is the exam trip up in relation to witnesses who have made a positive identification from being shown photographs?
They potentially may be required to engage in further identification procedures of the suspect.
68
Identification by Witnesses
Types of Identification where the identity is known
Video ID – Witness is shown moving images of a known suspect with similar images of others who resemble the suspect.
ID Parade – The suspect is shown to the witness in a line up with others who resemble the suspect.
Group ID – Witness sees the suspect in an informal group of people.
69
Identification by Witnesses
Which procedure to use?
Suspect is known and available...
Video ID
ID Parade
Group ID
*Known means there is sufficient information known to Police to justify the arrest of a particular person for suspects involvement in the offence.
Available means they are immediately available or will be within reasonably short time and they are willing to take part
70
Identification by Witnesses
Which procedure to use?
Suspect is known and unavailable...
Video
Group ID
*Still images can be used and these may be obtained covertly
71
Identification by Witnesses
Which procedure to use?
Suspect is not known...
Street ID - Witness may be taken to a particular neighbourhood or place.
Once identification is made the suspect then moves to "suspect known groups for any other witnesses"
72
Identification by Witnesses
Who can act as Identification Officer (ID)?
An officer not below INSPECTOR rank who is not involved with the investigation.
73
Identification by Witnesses
Eye-witness ID post identification recording obligations
Must record in PNB:
1. Date/ time/ location witness previously saw suspect.
2. Details of subsequent ID, inc:
a) Where it was made
b) How it was made
c) Quality of conditions at time of ID
d) Whether the witnesses attention was drawn to suspect (+reasons).
e) Anything said by witness or suspect in relation to conduct of procedure.
74
Identification by Witnesses
Showing photographs: The supervising officer (I.E. Sergeant or above) must ensure that the identification is not compromised by checking that:
1. Postponing the viewing of photographs until the first description by the witness has been recorded (oic to confirm this to the supervising officer)
2. Only one witness at a time is shown photographs, in as much privacy as possible
3. Witnesses are unable to communicate with each other
4. No fewer than 12 photographs are shown at a time (no reference to how m many times the images must be shown)
5. All photographs are as far as possible of a similar type
6. The witness should not make a decision until they have seen at least 12 photographs
7. The witness must not be prompted
8. The witness must be told that:
A) the photograph of the perpetrator may or may not be present; and
B) if they cannot make a positive identification, they must say so
75
Identification by Witnesses
Consequences of a witness making a positive identification?
1. There is now sufficient information to justify the arrest of the suspect, who becomes known at this juncture.
2. The identification rules for known suspects must be followed for all witnesses (including the witness who made the positive identification) from this point onwards
76
Identification by Witnesses
Even if there is forensic evidence that already implicates the suspect, what must still be carried out?
An identification procedure must still be held where the suspect disputes (or might reasonably be foreseen to later dispute) the identification.
77
Release of a Person Arrested
Where a person is arrested, what is an officer obliged to do?
s30 PACE 1984
- Take them to a designated police station
OR
s30A PACE 1984
- Released with bail (street bail) or without bail without being required to attend a police station.
78
Release of a Person Arrested
Where a constable releases a person under s30A, he must do what?
Give a notice in writing which states:
(a) The offence for which he was arrested.
(b) The grounds on which he was arrested.
(c) Whether the person is being released without bail or on bail (if so the time/date required to attend station and any conditions).
79
Release of a Person Arrested
Where a constable releases a person under s30A on bail, after how long must the bail be answered?
Standard cases = 28 days
Serious fraud office & exceptionally complex cases = 3 months
This is the ‘Applicable Bail Period’ (ABP)
ABP runs from the person's Bail Start Date which is the day after the arrest.
80
Release of a Person Arrested
If a person is required to attend a police station which is not a designated police station he must be...
s30C(2) PACE
(a) Released, or
(b) Taken to a designated police station no longer than 6 hours after his arrival.
81
Release of a Person Arrested
Power of Arrest for Non-attendance
s30D(1) PACE
A constable may arrest without a warrant a person who—
(a) Has been released on bail under section 30A subject to a requirement to attend a specified police station, but
(b) Fails to attend the police station at the specified time.
82
Release of a Person Arrested
Power of Arrest Breach of Bail Conditions
s30D(2A) PACE
A person who has been released on bail under section 30A may be arrested without a warrant by a constable if the constable has reasonable grounds for suspecting that the person has broken any of the conditions of bail.
83
Release of a Person Arrested
What are the pre-conditions for bail?
s50A PACE
(a) That the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
(b) That an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative).
84
Release of a Person Arrested
Power of Arrest for Failure to Answer Police Bail
s47A PACE
(1) A constable may arrest without a warrant any person who, having been released on bail under this Part of this Act subject to a duty to attend at a police station, fails to attend at that police station at the time appointed for him to do so.
85
Release of a Person Arrested
Breach of Pre-charge Bail Conditions Relation to Travel
s68 Policing and Crime Act 2017
(3) The person commits an offence if—
(a) the person’s release on bail is subject to the travel restriction condition and fails to comply.
86
Release of a Person Arrested
What are the bail timeframes and authorities?
Up to 28 days: Authorised by Inspector
28 days - 3 months: Authorised by Superintendent
3 months - 6 months: Looking at levels of Director of Public Prosecutions, the Direction of the Serious Fraud Office, The Exec of the Financial Conduct Authority (people like that).
If it is referred back to police…
Clock starts again!
If request for info is made within 7 days of end of ABP, get an extra 7 days
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Release of a Person Arrested
What are some examples of bail restrictions?
- Curfew
- Not to interfere with witnesses
- Report to police
- Surrender passport
- Not to drive a motor vehicle
88
Release of a Person Arrested
What is a 'surety'?
s8 the Bail Act 1976
(1) This section applies where a person is granted bail in criminal proceedings on condition that he provides one or more surety or sureties for the purpose of securing that he surrenders to custody.
KFC
Kinship to the accused (close relationship = positive moral influence)
Financial resources of surety
Character and previous convictions of surety
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RIPA, CHIS and IPA
What is RIPA?
The Regulation of Investigatory Powers Act 2000 governs the way in which law enforcement use covert methods to investigate in a way that is proportionate, necessary and compatible with human rights.
This does not just relate to the police but all intelligence services.
90
RIPA, CHIS and IPA
s26 of RIPA looks at what three areas?
Covert Human Intelligence Sources
Directed Surveillance
Intrusive Surveillance
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RIPA, CHIS and IPA
What is a CHIS?
A person is a CHIS if they establish or maintain a relationship with another person for the covert purpose of obtaining information, providing access to information or who covertly discloses information obtained by the use of such a relationship.
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RIPA, CHIS and IPA
What is covert surveillance?
Surveillance is covert if, and only if, it is carried out in a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place.
There are two types: directed and intrusive.
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RIPA, CHIS and IPA
What is directed surveillance?
Directed surveillance means surveillance that is: covert, but not intrusive. For example, observation points outside of premises, or foot or vehicle surveillance tactics.
94
RIPA, CHIS and IPA
What is intrusive surveillance?
Covert surveillance carried out in relation to anything taking place on any residential premises or private vehicle and involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device, e.g cameras or listening devices in a vehicle or house.
95
RIPA, CHIS and IPA
Authorisation of a CHIS needs to be necessary on which grounds?
(a) In the interests of national security;
(b) For the purpose of preventing or detecting crime or of preventing disorder;
(c) In the interests of the economic well-being of the United Kingdom;
(d) In the interests of public safety;
(e) For the purpose of protecting public health;
(f) For the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
(g) For any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
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Authorisation: Ordinary CHIS
Minimum rank:
Method:
Length:
Minimum rank: Superintendent
Method: In writing
Length: 12 months beginning on the day authorisation is given.
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Authorisation: Urgent CHIS
Minimum rank:
Method:
Length:
Minimum rank: Inspector
Method: Inspector in writing, Superintendent in writing OR oral.
Length: 72 hours beginning at the time authorisation was given.
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Authorisation: Ordinary Relevant Source (Undercover Officers)
Minimum rank:
Method:
Length:
Minimum rank: ACC/ Commander
Method: In writing
Length: 12 months beginning on the day authorisation is given.
99
Authorisation: Urgent Relevant Source (Undercover Officers)
Minimum rank:
Method:
Length:
Minimum rank: Superintendent
Method: In writing
Length: 72 hours beginning at the time authorisation was given.
100
Authorisation: Juvenile/ Vulnerable CHIS
Minimum rank:
Method:
Length:
Minimum rank: ACC/ Commander
Method: In writing
Length: 4 months beginning on the day authorisation is given.
101
Authorisation: Ordinary Directed Surveillance
Minimum rank:
Method:
Length:
Minimum rank: Superintendent
Method: Writing
Length: 3 months
102
Authorisation: Urgent Directed Surveillance
Minimum rank:
Method:
Length:
Minimum rank: Inspector
Method: Method: Inspector in writing, Superintendent in writing OR oral.
Length: 72 hours
103
Authorisation: Ordinary Intrusive Surveillance
Minimum rank:
Method:
Length:
Minimum rank: Chief Constable/ Commissioner or Deputy
Method: Writing
Length: 3 months (starts when approved by surveillance commissioner)
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Authorisation: Urgent Intrusive Surveillance
Minimum rank:
Method:
Length:
Minimum rank: Chief Constable/ Commissioner or Deputy
Method: Writing/ Oral
Length: 72 hours (provided notice is given to surveillance commissioner)
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Why can a CHIS be used?
The designated person must believe that CHIS activity is necessary for the following reasons...
s29 The Regulation of Investigatory Powers Act 2000
C rime and Disorder Prevention
H ealth and Tax
I nterests of National Security
S pecified by Secretary of State
and authorisation is proportionate to what is sought to be achieved.
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What are the grounds for authorising Intrusive Surveillance?
Only 3 which qualify this very intrusive means of surveillance...
(a) In the interests of national security;
(b) For the purpose of preventing or detecting serious crime or of preventing disorder;
(c) In the interests of the economic well-being of the United Kingdom;
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Disclosure - Preparation of Material for Prosecutor
Anticipated Guilty Pleas at Magistrates' Court
- If accused is charged with summary or either way that is likely to remain in the magistrates court, and he is considered likely to plead guilty, a schedule or streamlined disclosure certificate is not required.
- If contrary to this expectation, the accused pleads not guilty then the disclosure must ensure that the streamlined disclosure certificate is prepared and submitted as soon as reasonably practicable.
108
Disclosure - Preparation of Material for Prosecutor
Anticipated Not Guilty Pleas at Magistrates' Court
- If accused is charged with summary or either way that is likely to remain in the magistrates court, and he is considered likely to plead not guilty, a streamlined disclosure certificate must be completed.
109
Disclosure - Preparation of Material for Prosecutor
Material which may assist the defence
In every case irrespective of the anticipated plea, if there is material known to the disclosure officer that might assist the defence with the early preparation of their case or at a bail hearing the material MUST be disclosed to the prosecutor.
110
Disclosure - Preparation of Material for Prosecutor
Crown Court – The disclosure officer must ensure that a schedule is prepared in which circumstances?
- The accused is charged with an offence which is triable only on indictment.
- The accused is charged with an offence which is triable either way, and it is considered that the case is likely to be tried on indictment.
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Disclosure - Preparation of Material for Prosecutor
What is sensitive material?
Material which the disclosure officer believes is not in the public interest to disclose.
112
Disclosure - Preparation of Material for Prosecutor
What must happen with any material which is believed to be sensitive?
Either must be listed on a schedule of sensitive material or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it should be revealed to the prosecutor separately.
This will be appropriate only where compromising the material would likely lead directly to loss or life or threaten national security.
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Disclosure - Subsequent Action by Disclosure Officer
Section 7A imposes what continuing duty upon the prosecutor?
To disclose material which satisfies the test for disclosure (subject to public interest considerations).
Any new material coming to light should be treated in the same way as earlier material
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Disclosure - Subsequent Action by Disclosure Officer
The duty on the defence to make disclosure only arises at what stage?
AFTER the prosecution has made the initial disclosure.
This duty falls into two categories:
- Compulsory
- Involuntary
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Disclosure - Subsequent Action by Disclosure Officer
What should a defence statement include?
- Should set out the nature of the defendant's defence, including any particular defences or matters of fact on which he/she intends to rely.
- Details of alibi
116
Disclosure - Subsequent Action by Disclosure Officer
Once a defence statement has been provided, the prosecution must disclose any material that:
- Might be reasonably expected to assist the accused defence, and
- Has not already been disclosed.
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Disclosure - Subsequent Action by Disclosure Officer
What is the time period for the defence statement?
Once the prosecution has made the initial disclosure, the defence have 14 days (summary proceedings) or 28 days (Crown Court proceedings) where the accused must give:
- a compulsory defence statement (s5)
- a voluntary defence statement (s6)
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Breach of Bail Travel Condition
Criminal offence where a person who pre-charge release on bail is subject to...
Travel restriction conditions fails to comply with that condition without reasonable cause.
ONLY relates to those arrested on suspicion of committing TERRORIST OFFENCE as per s41 of the Counter-Terrorism Act 2008
- Membership of proscribed organisations
- Fundraising or encouraging terrorist acts.
119
Police Bail
S38 PACE: when an adult suspect is charged at a police station, the CO MUST order his release from detention, either on bail or without bail (presumption is in favour of bail).
UNLESS…
1. Suspect is charged with MURDER. Decision for Crown Court Judge.
2. Grounds exist justifying continued detention (as set out in Sch 1 Bail Act 1976) (keep them in custody?)
3. Section 25 Criminal Justice and Public Order Act 1994 applied (No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences).
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Police Bail
What is Section 25 Criminal Justice and Public Order Act 1994?
1. Accused has a previous conviction for one of...
- Murder
- Attempted Murder
- Manslaughter
- Serious Sexual Offences (& attempts)
2. Currently charged/ convicted of another one of the above.
3. No Bail goes to Jail UNLESS there are exceptional circumstances.
Notes:
- Burden of proof on D to prove why they should get bail, the balance of probabilities).
- Manslaughter- must have been sentenced to imprisonment or if a child, long term detention. A conviction also includes a finding of not guilty by insanity.
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Police Bail
Grounds for Refusing Police Bail
S38 PACE: where any of the following grounds apply (but only if there is no valid alternatives, e.g conditions):
- Name or address cannot be ascertained
- Risk of absconding
- Interferences with Administration of Justice
- Commission of further offences
- Risk of Injury to Another
- Own protection
- Welfare of Juvenile
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Police Bail
Grounds for Refusing Police Bail
How is someones risk of absconding established?
Strength of evidence against accused
Character (background/ associations)
Accessed records re bail
Nature and seriousness of offence
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Police Bail
What conditions can be imposed?
```
Passport surrendered
Attend police station periodically
No contact with victim/ witness
Curfew imposed
Residences (live and sleep in certain place)
Entry to certain area/ building is restricted
Address change must be notified
Surety/ Security provided
```
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Police Bail
What conditions cannot be imposed?
What conditions cannot be imposed?
Electronic monitoring of child/ young person
Attend an interview with a legal adviser
Make himself available for enquiries/ report
The requirement to reside in a bail hostel
125
Police Bail
Juveniles Refused Police Bail
Under s38 the CO must make arrangements for a juvenile refused police bail to be transferred into care of local authority pending their next court appearance.
Exceptions
The CO certifies impracticable (e.g heavy snow)
Juveniles that are 12 or over and pose a serious risk of harm to the public, and there is no secure accommodation available in the local authority.
Death or serious personal injury
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Remands in Police Custody
What does s128 of the Magistrates Court Act state?
Magistrates remand a person to police custody for a period not exceeding 3 days
24 hours for a juvenile under 18.
127
Police Bail
Fail to Appear at Court
S7 Bail Act 1976 Power of arrest
A person on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable—
a) If the constable has reasonable grounds for believing that that person is not likly to surrender to custody;
b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or
c) In a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.
