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Flashcards in LG2 Deck (55):
1

Criminal Procedure Rules 2015, rule 1.1:

(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes:
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when
bail and sentence are considered; and
(g) dealing with the case in ways that take into account
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.

2

PACE 1984, Code D3 (identification by witnesses):

Contrast:
cases when the suspect’s identity is not known, and
cases when the suspect is known and available;

Methods include:
video identification,
identification parades,
group identification;
showing photographs.

Dock’ identifications - not good in court - i.e. "do you see the person who assaulted you in court today?"

Can't influence the witness.

3

Three methods of commencement:

- Prosecutions by ‘relevant’ prosecutors (e.g. CPS): written charge (setting out the offence with which D is charged) & requisition (requiring D to appear before a magistrates' court), issued by the prosecutor: CJA 2003, s 29.

- Private prosecutions: the prosecutor ‘lays an information’ (i.e. communicates the allegation to a magistrates’ court)
 the court issues a summons requiring D to appear before it.

4

Rule 7.3:
Criminal Procedure rules explain what a written charge must contain:

(1) An allegation of an offence in an information or charge must contain
(a) a statement of the offence that—
(i) describes the offence in ordinary language, and
(ii) identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

5

Arresting - PACE 1984 s 24:



a police officer may arrest (without a warrant):
anyone who is about to commit an offence/whom he has reasonable grounds for suspecting to be about to commit an offence;
anyone who is in the act of committing an offence/whom he has reasonable grounds for suspecting to be committing an offence;
if he has reasonable grounds for suspecting that an offence has been committed, anyone whom he has reasonable grounds to suspect of being guilty of it;
if an offence has been committed, anyone who is guilty of the offence/whom he has reasonable grounds for suspecting to be guilty of it.
BUT, there must also be reasonable grounds for believing that arrest is ‘necessary’.

6

MCA 1980, s 1:

A magistrate can issue an arrest warrant (written information substantiated on oath).

7

PACE 1984, s 117:

Permits use of reasonable force.

8

An arrest can be valid even if...

...an offence hasn't actually been committed.

9

When is an arrest necessary? (must have reasonable grounds and be necessary)
PACE 1984, s 24(5):

Arrest must be necessary to:
Ascertain the suspect’s (real) name/address;
Prevent the suspect injuring himself/another;
Prevent the suspect injuring himself;
Prevent the suspect causing loss of/damage to property, etc.;
Protect a child/vulnerable person from the suspect;
Allow a prompt and effective investigation;
Prevent a prosecution being hindered by the suspect’s disappearance.
See also PACE Code G.

10

What are reasonable grounds for suspecting X committed offence?

Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911 - two elements have to be satisfied:
- honest (i.e. actual) belief;
- based on reasonable grounds (the decision must be one which, objectively reviewed afterwards according to the information known to the officer at the time, is held to have been made on reasonable grounds).

11

PACE 1984, s 24A:
A person other than a police officer may arrest:

Anyone who is in the act of committing an indictable offence;
- anyone he has reasonable grounds for suspecting to be committing an indictable offence;
- where an indictable offence has been committed, anyone who is guilty of the offence/whom he has reasonable grounds for suspecting to be guilty of it.

It must not be reasonably practicable for a police officer to make the arrest instead.

Arrest must be necessary to prevent the suspect: (different from police arrest)

- causing physical injury to himself or any other person;
- suffering physical injury;
- causing loss of or damage to property; or
- making off before a police officer can assume responsibility for him.

12

Power of citizen's arrest - what if there is no offence:

Can be sued - depends on the offence being committed and the person being the perpetrator.

The offence must be an indictable offence for citizen's arrest.

13

Indictable offence

o offences which are ‘triable either way’ (offences which may be tried either in a magistrates’ court or in the Crown Court), and

o offences which are ‘indictable-only’ (offences which can be tried only in the Crown Court).

14

Summary offences:

Summary offences: these are offences which can be tried only in a magistrates’ court;

15

After arrest:

The suspect must either be granted ‘street bail’, or

be taken to a ‘designated’ police station (i.e. one with custody facilities);

16

On arrival at the police station, the suspect is taken before the custody officer (sergeant);

The custody officer can authorise detention for questioning if the criteria PACE s37 (2) are satisfied:

Detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him”: s 37(2).
If detention without charge is not authorised, the custody officer may release the suspect (unconditionally or on police bail), e.g. for further enquiries to be made.

17

Interviewing suspects:

Code C PACE 1984

Code C10.1: A person whom there are grounds to suspect of an offence must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them.

“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” (C10.5).

Code C11: rules on the conduct of interviews and recording of interviews

18

Caution must be administered as soon as they are a suspect

I.e. even if they were a witness, but seem to be a suspect - as soon as the "flava" of the questions changes they must be cautioned

19

PACE 1984 s 58

Right to consult a solicitor privately.

Delay in the exercise of that right may be authorised for up to 36 hours:
by a Superintendent (in charge of police station)
if the offence is indictable, and
there are reasonable grounds for believing that allowing immediate access to a solicitor would lead to:
- interference with evidence - connected with an indictable offence;
- interference with/injury to other persons;
- alerting of other suspects; or
- hindrance to the recovery of - the proceeds of offence.

The concern must relate to the particular solicitor the suspect wants to see: R v Samuel [1988] QB 615.

20

Denying access to sol

Must be for THAT solicitor specifically. Police would not allow them to see that one, but would give them details of the duty solicitor.

21

How is a suspect charged with an offence?

- (Usually after interview): the suspect may be charged, and then either granted police bail or kept in custody (but CPS advice on the appropriate charge(s) must be sought first except for minor offences); or

- the suspect may be released on police bail while CPS decide whether to charge (if so, CPS may use the written charge and requisition procedure or the suspect may be charged by the police when he returns to the police station to answer his police bail).

22

When call Def in instead of "suspect"?

Once charged and at - i.e. Mags court.

23

Non-compliance by police - sanctions include possible exclusion at trial of:

Confessions, under PACE s 76 (where there is ‘oppression’, or the circumstances make a confession ‘unreliable’);

Any prosecution evidence, under PACE s 78 (where it would be ‘unfair’ to admit the evidence).

24

What happens after charge by the police?

The suspect must be granted police bail, unless any of the grounds for withholding bail, under s 38 PACE are satisfied:

s 38 PACE:

- doubts as to his identity, or
reasonable grounds for believing:
- he will fail to appear in court to answer to bail;
- detention is necessary to prevent him from committing an offence;
- detention is necessary to prevent him from interfering with administration of justice or with the investigation of an offence(s);
- detention is necessary for his own protection.

25

EITHER-WAY OFFENCES: MODE OF TRIAL/ALLOCATION

Two stages:
“Plea before venue”
Mode of trial/allocation

26

Step one: indication of plea (“plea before venue”) - (MCA 1980, s 17A):

If "intend" to plead guilty, are regarded as having pleaded guilty -

How does D intend to plead?

“Guilty” D is regarded as having pleaded guilty; the court proceeds to the sentencing stage;
“Not guilty”/no indication  determination of mode of trial/allocation under MCA 1980, ss 18-23 (step two).

27

Step 2:

Follows Not Guilty indication at plea before venue:

Prosecution representations;
Defence representations;
The court decides whether the case is ‘suitable’ for summary trial;

28

Sentencing Council Allocation Guidelines (stat duty to do so)

- Either-way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient;
- The court should assess the likely sentence in light of the facts alleged by the prosecution case, taking into account all aspects of the case, including those advanced by the defence.
- Note the power to commit for sentence under PCC(S)A 2000 s 3, if the magistrates’ sentencing powers are inadequate.

29

1 either way offence? Mags

2 either way?

Mags can give 6 months

Mags can aggregate the sentence.

Is that power adequate assuming D is found guilty?

30

Allocation decision:

If the magistrates decide the case is not suitable for summary trial (they ‘decline jurisdiction’), D is sent to the Crown Court for trial (under the Crime and Disorder Act 1998, s 51);

If deemed suitable?


If the magistrates decide the case is suitable for summary trial: D is asked whether he consents to summary trial;
Before answering, D can seek an indication of sentence (whether custodial or not) that would be passed if he consents to summary trial and pleads guilty;
If an indication is given and D wants to change plea, the PBV procedure is repeated and D indicates a guilty plea (and the court then proceeds to the sentencing stage)
If D does not consent to summary trial, the case is sent to the Crown Court for trial.

31

Rule 2 (6) Criminal Procedure Rules

i.e. if 2 Ds, one elects CC, the one who would have agreed Mags Ct will go to CC for trial.

Rule 9.2(6): Where the court on the same occasion deals with two or more Ds charged jointly with an offence that can be tried in the Crown Court, the court must explain that, if it sends one of them to the Crown Court for trial, then it must also send any other D who is charged with the same offence, or with a related offence, to which he indicated a not guilty plea, even if the court by then has decided to allocate that other D for magistrates’ court trial.

32

Criminal Procedure Rule 9.2(7):

Where the court on the same occasion deals with two or more Ds charged jointly with an offence that can be tried in the Crown Court, has allocated any of them to a magistrates’ court for trial, and then sends another one of them to the Crown Court for trial, the court must deal again with each one whom, on that occasion, it has allocated for magistrates’ court trial.

33

Presence of D

D must be present unless:
PBV (MCA 1980, s 17B):
D is legally represented, the court considers that, by reason of D’s disorderly conduct before the court it is not practicable for proceedings to be conducted in his presence, and the court considers that it should proceed in D’s absence.

34

Mode of Trial ss 18, 23:

The court considers that, by reason of D’s disorderly conduct before the court, it is not practicable for the proceedings to be conducted in his presence; or
D is legally represented, the representative signifies to the court D’s consent to the proceedings being conducted in his absence, and the court is satisfied that there is good reason for proceeding in D’s absence.

35

What the advantages and disadvantages of trial in a magistrates’ courts and the Crown Court?

CC trial?

Crown Court trial:
Higher chance of acquittal;
Better for points of law, especially admissibility of evidence (since triers of law and fact are split), but note magistrates’ power to make binding pre-trial rulings under the MCA 1980, s 8A;
Prosecution witness statements are served on defence (but the defence can obtain these anyway);
Risk of a higher sentence if convicted.

36

Mags Court Trial?

Magistrates’ court trial:
Lower chance of acquittal (e.g. magistrates are said to be more likely to believe the police, and become ‘case-hardened’);
Trial is shorter, less formal (and cheaper – relevant if D is not legally aided);
Limit on sentence: 6 months for one either-way offence (12 months aggregate for two or more either-way offences) BUT magistrates can commit for sentence under PCC(S)A 2000, s 3, if they think their powers are insufficient.

37

CPS figures 2014-15

Mags: of defendants pleading not guilty, 57% were convicted and 43% were acquitted.
Crown Ct: of defendants pleading not guilty, 51% were convicted and 49% were acquitted.
Allocation decision: 97% of either-way cases were sent for trial because magistrates declined jurisdiction; 3% went to Crown Court because the defendant chose trial on indictment.

38

MCA 1980 s 22: Criminal damage

If the value involved (i.e. cost of repair/replacement) does not exceed £5,000, the case must be tried summarily.
If it is a series of offences of the same/similar character, and the total value of the damage does not exceed £5,000, the case must be tried summarily.
If the value involved exceeds £5,000, the court must determine mode of trial in the ordinary way (so D can elect Crown Court trial).
The court is not required to hear evidence when assessing value (R v Canterbury JJ ex p Klisiak [1982] QB 398).

39

MCA 1980, s 22A: Low-value shoplifting

‘Low-value’ shoplifting is triable only summarily.
Low value = the value of the stolen goods does not exceed £200.

BUT where a person accused of low-value shoplifting appears before the court, before the summary trial of the offence begins, the court must give the person the opportunity of electing to be tried by the Crown Court for the offence;
- if he elects to be so tried, the case must be sent to the Crown Court for trial.

Theft: D can choose whatever court as theft gives right to CC trial.

40

Disclosure:

‘Initial details’ of the prosecution case;
Prosecution disclosure to D of the evidence they intend to use against him;
Criminal Procedure and Investigations Act 1996:
Prosecution disclosure to D of ‘unused material’ (which they do not intend to use against him);
Disclosure by the defence to the prosecution;
Sanctions in the case of non-compliance;
Material held by third parties;
The procedure where ‘public interest immunity’ is raised.

41

1. Initial Details of the prosecution case.

Disclosure:

Criminal Procedure Rules 2015, Part 8, applies in all cases.

(TO BE UPDATED):

No later than the beginning of the day of the first hearing, the prosecution must serve on the court and, if he so requests, on D ‘initial details’ of their case.

If D is in custody:
- a summary of the circumstances of the offence, and
- D’s criminal record (if any)

If D is on bail:
- a summary of the circumstances of the offence,
- any account given by D interview,
- any written witness statement that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
- D’s criminal record (if any), and
- any available statement of the effect of the offence on a victim, a victim’s family or others.

42

Does D receive the witness statements of the prosecution witnesses?

Yes:
- Crown Court trial: prosecution witness statements are disclosed to D when the case is sent to the Crown Court for trial;
- Magistrates’ court trials: As a matter of good practice, D should receive the prosecution witness statements before the trial.

43

What about material the prosecution do not intend to use?

"reasonably consider capable" - i.e. objective.

Criminal Procedure and Investigations Act 1996, s 3:
The prosecution must disclose to D any ‘unused’ material which might reasonably be considered capable of:
- undermining the case for the prosecution against the accused, or
- assisting the case for the accused.
The prosecution are under a continuing duty to review their disclosure obligations: CPIA 1996, s 7A.

After the prosecution have complied with s 7A, D can apply to court to order further disclosure: CPIA 1996, s 8.

See also the Attorney-General’s Guidelines on Disclosure (2013).

44

What might undermine the prosecution case/assist the defence case?

A-G’s Guidelines, para 6: this includes material that may:
- be useful ! to D in cross-examination, or
- support submissions that could lead to the exclusion of evidence, or to a stay of proceedings; or
- suggest an explanation, or partial explanation, of the D’s actions;
- have a bearing on scientific or medical evidence in the case.

45

Material should also be disclosed if it might go to the credibility of a prosecution witness

- relevant previous convictions have to be disclosed (HM Advocate v Murtagh [2009] UKPC 36).

46

What do the defence have to disclose?

Provision of a defence statement to the prosecution is:
mandatory in a Crown Court trial (CPIA s 5);
voluntary in a magistrates’ court trial (CPIA s 6).

47

The defence statement must (s 6A CPIA):

- set out the nature of the defence (including any particular defences on which D intends to rely);
- identify the matters of fact on which D takes issue with the prosecution;
- explain why D takes issue with the prosecution on those matters;
- give particulars of the matters of fact on which D intends to rely for the purposes of his defence;
- indicate any point of law D wishes to take (including admissibility of evidence/abuse of process), and any authority on which he intends to rely;
- give full particulars of any alibi (including the name, address and date of birth of any alibi witnesses).

48

Defence statements (cont’d)

6E

Section 6E:
the defence statement is deemed (unless the contrary is proved) to be given with the authority of D;
the judge may allow the jury to see the defence statement.

49

Defence statements d C

Section 6C: D must give the prosecution notice of the name, address and date of birth of each proposed defence witness (or any information D's possession which might be of material assistance in identifying or finding any such proposed witness if those details are not known to D.
See also the Code of Practice, s 21A.

Don’t confuse the ‘defence statement’ with witness statements or with D’s ‘proof of evidence’!

50

When must the defence provide the defence statement?

Mags

CC

Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (S.I. 2011/209).
For s 5 (compulsory disclosure), s 6 (voluntary disclosure) and s 6C (notification of intention to call defence witnesses):

Magistrates’ court cases: 14 days from the day on which the prosecutor complies (or purports to comply) with s 3.

Crown Court cases: 28 days from the day on which the prosecutor complies (or purports to comply) with s 3.
The court may extend the relevant period but only
on an application by D made within the relevant period,
if satisfied that it would be unreasonable to require him to comply within the relevant period.

51

What happens if the defence fail to comply?

Adverse comment may be made, and adverse inferences may be drawn against D where:
- No statement is given (where one is mandatory);
- The statement given late;
- The statement sets out inconsistent defences;
- D relies at trial on a defence not mentioned in his defence statement;
- D relies at trial on an alibi without having given full particulars in his defence statement.
- See CPIA 1996, s 11.
-R (Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin): there is no power to exclude defence evidence;
- R v Rochford [2010] EWCA Crim 1928: failure to comply is not contempt of court.

52

What about material that is not in the possession of the prosecution?

Third party disclosure is achievable by seeking a witness order:
Criminal Procedure (Attendance of Witnesses) Act 1965 (Crown Court), or
MCA 1980, s 97 (magistrates’ courts).

53

What if the prosecution claim Public Interest Immunity?

R v H v important for public interest immunity.

R v H [2004] UKHL 3; [2004] 2 AC 134:
Might the material which the prosecution seek to withhold either weaken P’s case or strengthen D’s case?
No: disclosure should not be ordered;
Yes: full disclosure should (subject to PII) be ordered.


Is there a real risk of serious prejudice to an important public interest if full disclosure of the material is ordered?
No: full disclosure should be ordered;
Yes: can D's interest be protected without disclosure or can disclosure be ordered to an extent/in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? (E.g. provision of documents in edited or anonymised form);

54

R v H
If limited disclosure...

Appointment of "special counsel"

If limited disclosure may render the trial process unfair to D, fuller disclosure should be ordered even if this then leads/may lead to P discontinuing the case in order to avoid having to make that disclosure;

Appointment of ‘special counsel’ may be necessary to ensure that P’s contentions are tested and D’s interests are protected.

55

Public Interest Immunity - procedure

CrimPR, Rule 15.3(6): The court must determine the application at a hearing which (a) must be in private, unless the court otherwise directs; and (b) if the court so directs, may take place, wholly or in part, in D’s absence.

Three possibilities (cf. R v Davis [1993] 1 WLR 613):
- The prosecution apply on notice; D is present at the hearing and can make representations; OR
- The prosecution apply on notice, but D is not present at the hearing; OR
- The prosecution apply and D is not informed of the application.