Preliminaries To Prosecution Flashcards
1
Q
what are police powers?
A
Police powers include arrest, detention, questioning and interrogation ,entry and search of possessions, personal search and the taking of samples, procedures for identification and largely governed by PACE Act 1984, associated with PACE codes of practice
2
Q
what happens if police powers are not done in accordance with PACE?
A
If they are not done in accordance with pace then it can give rise for the evidence which is gathered to become inadmissible in court.
3
Q
when is use of force by the police allowed?
A
S. 117 PACE act 1984 allows reasonable force to be used by a constable in the exercise of a police power where necessary, for:
- stop and search
- entry and search of premises
- arrest
- detention of person at police station
- intimate search of person detained
- search of a person
- fingerprinting without consent
- use of force in connection with visual identification
- taking intimate sample
- prevention of crime
4
Q
the degree of force which is allowed by the police?
A
- the force which is used have to be necessary and reasonable in the circumstances
- to determine whether the force is reasonable, court takes into account all the circumstances in the situation.
- Degree and nature of force used, gravity of the situation
- Preventing the harm by other means
- The fact that the force used has resulted in a serious injury does not amount to unreasonable force.
- Use of excessive force will not render the use of force unreasonable
5
Q
police use of handcuffs
A
- Only to be used where it is reasonable and necessary to prevent an escape
- Prevent the violent breach of the peace of a prisoner
- Same rule applied when handcuffs are used in court
- Where handcuffs are unlawful, it is classified as a trespass to person
6
Q
can the lawfulness of an arrest be challenged?
A
- If the lawfulness of an arrest is challenged, it is for that arresting officer to prove that the arrest was made in good faith
- The burden of proof of the lawful arrest is on the police, if arrest was lawful, proving excessive force is on the complainant
7
Q
what is an arrest?
A
There is no set definition
The loose definition is that where someone is under suspicion of committing a crime, their movements are restricted and they are under compulsion.
8
Q
what happens if an officer takes hold of someones arm whist considering an arrest?
A
this amounts to a trespass to the person
9
Q
what happens if an officer, without or before an arrest, restrains a person to a confined space, such as a cell, and therefore restricted their movements completely?
A
this amounts to unlawful imprisonment.
10
Q
An arrest to motivate or to further investigate into a serious offence is…
A
…not unlawful
11
Q
No assumption that an arrest will be followed by…
A
…a charge
12
Q
Where the officer knows there is no possibility of a charge being made, then arrest will be…
A
…unlawful
13
Q
what happens if a complainant removes or withdraws a complaint to the police?
A
Officer may still arrest even if complainant removes or withdraws a complaint, in the hope officer will obtain a confession
14
Q
what are the formalities when arresting someone?
A
- An arrest is unlawful unless the person is informed as soon as it is practicable that they are arrested and on what basis.
- Even if an arrest was obvious, officer still needs to communicate on what basis the arrest is made
- Person has to be told in simple, non-technical language. All considering the circumstances of the arrest
- When and where the alleged offence happened needs to be communicated when arrested
- Person must be cautioned at the time of the arrest or as soon as it is practicable
- Failure to caution does not render the arrest unlawful but it can give grounds to have evidence excluded
- All must be recorded by the officer’s notebook
- Record must be made at the time of the arrest or if impracticable at the time as soon as it is practicable to do so.
- Must also be attached in custody record
15
Q
what actions are to be taken following an arrest?
A
- Constable needs to take the person to a designated police station as soon as practicable after the arrest.
- If a constable finds no other reason to continue the arrest and no bail, then they must release person.
- Exceptional circumstances provide situations where person may not be taken to designated police station
16
Q
police bail following arrest
A
- Arrested person may be released on police bail instead of being taken into custody
- Constable has to think it is necessary and proportionate to release individual on police bail in consideration to the circumstances
- Has to be confirmed by a custody officer
- Police bail may have conditions attached, like the surrender of a passport or curfew. These can be varied.
17
Q
is a suspect has been arrested and the police suspect they have committed a further offence, what must the police do?
A
further arrest that suspect for the additional offence.
18
Q
A constable may arrest without a warrant—
A
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
19
Q
If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom…
A
…he has reasonable grounds to suspect of being guilty of it.
20
Q
If an offence has been committed, a constable may arrest without a warrant—
A
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
21
Q
for a lawful arrest, what does it mean for a constable to have reasons for the arrest?
A
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction of the highway;
(d)to protect a child or other vulnerable person from the person in question;
(e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f)to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
21
Q
arrest for breach of the peace
A
Both police and civilian have the power to arrest for breach of the peace
Criteria
- Breach of peace is committed in persons presence
- Person arresting thinks breach of peace will happen immediately
- Breach of peace has occurred or arresting person thinks it has occurred.
Reasonable belief is objective test
22
Q
can the crown court issue an arrest warrant?
A
yes. if the defendant fails to attend court and has been bailed to do so.
23
Q
Magistrates power to issue an arrest warrant
A
magistrates can issue an arrest warrant:
- when the offence is indictable
- when the offence is imprisonable
- when the person’s address must be insufficiently established for a summons to be served; or
- when the individual has failed to appear after summons
24
Custody officer:
- Must be of a rank of at least sergeant
- Custody officer ensures that the person is held in accordance with Code C
- Detention for longer than 6 hours the person should be taken to designated police station
25
Custody Records:
- Opened and done as soon as practicable when the person has arrived at the police station
- All records of the persons arrest and length of detention is recorded here
A separate custody record must be opened as soon as practicable for each detainee whether a person is brought to the police station under arrest, or arrested at the police station, or surrenders voluntarily at the police station, or surrenders to bail at the police station. All information required to be recorded under must be recorded on the custody record.
Basic information to be recorded must include:
* the requirement to inform the person of the reason for his arrest;
* the circumstances of the arrest;
* why the arrest was necessary; and
* any comments made by the arrested person.
26
right to notification.
- Arrested individual has the right to have someone notified upon their arrest
- This can be a friend, relative etc
- To be to be as soon as practicable
- The detainee can request this every time he/she is moved to a different station
- Detainee has 2 alternatives if the first one does not reply
- All at public expense
- Custody officer has discretion to allow further attempts if necessary
- Custody officer should provide local volunteers for when detainee needs advice
27
right to legal advice
- Everyone is entitled to legal advice when held in custody, this is a human right
- This does not apply even if the custody time period is about to run out and no legal advice is available, the person detained must be released if the time runs out
- Detainee should be told about right to consult solicitor when they are brought to the station
- Should be done before interview, or re-interview, when custody time period is being updated etc.
28
what must a custody officer do if they suspect that an individual is a child or vulnerable person?
treat them as such until proven otherwise
29
role of an Appropriate adult:
- Make sure police are acting properly and fairly
- Still subject to legal privilege
- Appropriate adult must be present unless delay would significantly hinder the evidence, other people or the case at hand
- That must be authorised by a Superintendent or above
- Appropriate adult for a person who is aged 14-18 can give consent, otherwise any child below 14 needs a parent or guardian to give consent for strip searches
30
relevant time for detention time limits - hospital
- Relevant time does not count time spent and travelling to and from the hospital
- Person who is hospitalised shall not be questioned without consent from doctor
- Person is still entitled to solicitor if questioned in these circumstances
- It involves psychiatric and psychological treatment in hospital
31
In the circumstances where interviews can be conducted elsewhere other than a police station, once the risk has been averted...
... the interviewing must cease in these circumstances and be conducted in a police station
32
special warnings
In addition to the caution, where a suspect is interviewed at a police station or other authorised place of detention following arrest and:
a) is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in the place where the arrest took place; or
b) to account for his or her presence at the place where the arrest took place,
a special warning must be given. Inferences cannot be drawn if the warning is not given. The requirement to give a special warning does not apply where the person who has requested a solicitor is interviewed without having been given an opportunity to consult the solicitor, since inferences from refusal or failure to account cannot be drawn as a result.
33
reminding suspect of access to legal advice
officer must always remind suspect of access to solicitor. This does not apply when they have representation which is delayed
34
where must an interview take place?
designated police station
35
what is an interview?
questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences
36
what must happen for a suspect to be interviewed?
individual needs to be cautioned
37
when is a caution not necessary to interview?
(a)solely to establish identify or ownership of a vehicle;
(b)to obtain information in accordance with a statutory requirement, (note that the statutory drink-driving procedure is not an interview)
(c)in furtherance of the proper and effective conduct of a search (although if questioning goes further, e.g., to establish whether drugs found were intended to be supplied to another, a caution will be necessary
(d)to seek verification of a written record of comments made by the person outside an interview.
38
information that should be given to the suspect
before an interview takes place, the suspect and their solicitor (if they have one) should be given all sufficient information for them to understand what offence they are suspected to have committed and why.
39
what is the caution, verbatim?
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.
40
consequences of failing to give caution
Failure to administer a caution in circumstances where it is required is a significant and substantial breach of Code C, although it will not necessarily result in exclusion of evidence of the interview
41
does the caution have to be given word for word?
Minor deviation from these words is permissible provided that the sense of the caution is preserved.
42
cautions which have to be translated
Where an interpreter is used, the fact that the caution is not perfectly translated will not render it invalid provided that the essential features are adequately conveyed to the suspect. If it appears that the suspect does not understand the caution, the person giving it should explain it in his or her own words
43
conducting an interview
being rude, discourteous and bad language and raised voices are not allowed.
44
what happens if a suspect is intoxicated
interview cannot be conducted unless a Superintendent says so
45
what is a significant statement?
significant statement is a statement given to the police officer any time after caution which is an admission of guilt etc
46
what is significant silence?
significant silence is where the accused refuses to answer a question which is allowable to draw an inference from
47
pocket notebook
The nature and circumstances of the offence leading to the arrest, the reason(s) why the arrest was necessary, the giving of the caution, and anything said by the arrested person at the time of the arrest must be recorded by the arresting officer in their pocket notebook or other method used for recording information.
If the person arrested is subsequently detained at the police station, those details must be attached to, or recorded in, the custody records
48
are hypothetical questions allowed for police interview?
Yes.
49
process of being at police station
The detainee:
* Will see the custody officer who must authorise their continued detention.
* Will be informed of their rights.
* Will have certain non-intimate samples taken.
* May see the appropriate healthcare professional, if necessary.
* Will speak to a legal representative, if the detainee requests.
* Will be interviewed.
* May be:
- released under investigation or on police bail, after the interview; or
- charged and released on police bail to appear at the magistrates’ court at a later date; or
- charged and remanded in police custody to appear at the magistrates’ court the following day.
50
recordings for interview
The general rule is that all interviews must be contemporaneously recorded.
Interviews under caution for any indictable offence must be audio recorded.
An exception exists to the general rule. The interview can be recorded in writing where:
* it relates to some minor offences;
* the person has not been arrested; and
* it takes place other than at a police station.
51
fitness for interview
Generally, no person should be interviewed if they are unable to:
* appreciate the significance of the questions asked and their answers; or
* understand what is happening because of the effects of drink, drugs or any illness, ailment or condition.
52
when solicitors may intervene during police interview
* information or evidence is referred to or produced that was not disclosed before the interview;
* clarification on any matter is required at any time;
* there is inappropriate questioning (see below);
* there is inappropriate behaviour;
* further advice to the client is needed;
* a break is required; or
* the circumstances require.
53
inappropriate interviewing techniques
* Misrepresenting information, such as upgrading responses, misrepresenting key items of information or inaccurate summarising;
* Hypothetical questions;
* Repetitive questioning; or
* Disruptive listening, such as not listening to your client's response, or assuming knowledge of your client's response before your client answers or finishes their answer.
54
is there a right to disclosure for a police interview?
No. however, there are exceptions for:
- custody records
- significant statement
55
what rights do suspects have when detained?
* the right to consult privately with a solicitor and that free independent legal advice is available;
* The right to have someone informed of their arrest; and
* The right to consult the Codes of Practice (COP).
56
how is it confirmed that the suspects rights have been read to them upon arrival at the police station
be in the custody record
57
when should a suspect be reminded of their right to a solicitor?
* the commencement or recommencement of an interview;
* being asked to provide an intimate sample;
* an intimate drug search;
* an identification parade or video identification procedure.
* If legal advice is declined, that should be noted on the custody record.
* Where legal advice is sought, it must be provided as soon as is practicable.
* Police should usually await the arrival of a solicitor/ legal representative before beginning an interview.
* Nothing should be done to dissuade the suspect from obtaining legal advice.
* If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice.
58
how can a suspect consult three solicitor?
- in person
- on telephone
- in writing
59
can the right to eagle advice be delayed?
Yes.
* the person must be in detention for an indictable offence; and
* the authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of superintendent; and
* the superintendent has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
o interference with/harm to evidence connected with an indictable offence;
o interference with/harm to others;
o alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
o hinder the recovery of property obtained in consequence of the commission of such an offence.
60
how long can a right to legal advice be delayed?
up to 36 hours
61
what must officers do if they are delaying a suspects right to legal advice?
Where the grounds are authorised they must be recorded and the suspect must be informed.
62
what restrictions are imposed when a suspect has been delayed their right to legal advice?
restrictions on drawing adverse inferences.
63
situations where a delay in the right to legal advice may be imposed/used
The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct i.e. they have obtained property which they might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of the Proceeds of Crime Act 2002 (‘POCA’).
Authority to delay may only be given if there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to the consequences mentioned previously. But although this suggests that, on rare occasions, the police might be justified in delaying access to a named solicitor if the grounds can be made out, this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor.
64
can a right to have someone notified of your arrest be delayed?
Yes. for the same reasons for delaying right to legal advice
65
when must an appropriate adult be present with a suspect?
- suspect is under the age of 18
- suspect is mentally disordered or otherwise mentally vulnerable;
- anyone whom an officer has been told in good faith may be mentally disordered or otherwise mentally vulnerable.
66
for someone aged below 18, who can act as an appropriate adult?
a parent; or
a guardian; or
in the case of a young person looked after under the Children Act 1989:
- a representative of the care authority or voluntary organisation; or
- a social worker.
Failing these, any person aged 18 or over who is not a police officer or police employee suffices.
67
for someone who has a mental disability, who can act as an appropriate adult?
* a parent; or
* a guardian; or
* a relative; or
* someone who has experience in dealing with such persons.
The appropriate adult must be 18 or over and must not be a police officer or police employee.
68
who cannot be an appropriate adult?
A solicitor/ legal representative attending the police station for the suspect should not act as the appropriate adult.
A person cannot act as an appropriate adult if they are:
a) suspected of involvement in the offence;
b) the victim of, or a witness to, the offence;
c) involved in the investigation;
d) a person who has received admissions from the person detained before acting as appropriate adult;
e) of low IQ and unable to appreciate the gravity of the situation; or
f) an estranged parent whom an arrested juvenile does wish to attend and specifically objects to.
69
what is the role of an appropriate adult?
a) ensure that the detained person understands what is happening and why;
b) support, advise and assist the detained person;
c) observe whether the police are acting properly and fairly and to intervene if they are not;
d) assist with communication between the detained person and the police; and
e) ensure that the detained person understands their rights and that those rights are protected and respected.
f) An appropriate adult can request a solicitor/ legal representative on behalf of the person detained, though the person detained does not have to see the solicitor if they do not want to.
70
when can a right to an appropriate adult be delayed?
* interference with or harm to evidence connected with an offence;
* interference with or physical harm to other people;
* serious loss of or damage to property;
* alerting other suspects not yet arrested; or
* hindering the recovery of property obtained in consequence of commission of the offence.
71
right for an interpreter
Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter.
72
where may a right for an interpreter be delayed?
where authorisation is given by an officer of the rank of superintendent or above who is satisfied that delaying the interview will lead to:
* interference with, or harm to, evidence; or
* interference with or physical harm to other people; or
* serious loss of, or damage to, property.
73
conditions pf detention
* so far as practicable, not more than one detainee should be detained in each cell;
* cells must be adequately heated, cleaned and ventilated;
* bedding must be supplied;
* toilet and washing facilities made available;
* if a detainee’s clothes have been removed, replacement clothing of a reasonable standard shall be provided; and
* two light meals and one main meal should be provided every twenty-four hours.
74
when will the suspect be handed to the custody officer
as soon as they arrive
75
what conditions must the custody officer satisfy to be the custody officer
must be a rank of at least a sergeant
must be unrelated to the process of the investigation
76
can the custody officer our be carried out by someone else?
Yes. If the custody officer is not available, their role may performed by another officer, though that officer must not normally be involved in the investigation of an offence for which the person is in detention.
77
what happens when the suspect has been handed to the custody officer on arrival after arrest
The reason for arrest must be explained to the custody officer, who can then authorise detention of the person arrested. The custody officer must order the release of the person detained if the custody officer becomes aware that the grounds for detaining the person have ceased to exist. A person can only be detained at the police station on the authority of the custody officer, and may be released only on the custody officer’s authority.
78
custody officer: determining whether to proceed
The custody officer will firstly determine whether or not there is sufficient evidence to proceed to charge the detainee. If not, then the arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:
* secure or preserve evidence; or
* obtain such evidence by questioning.
If there are grounds to detain, the custody officer will then:
* authorise detention of the suspect;
* open a custody record;
* inform the detainee of the reason for their arrest;
* inform the detainee of the reason for their detention; and
* advise the detainee of their rights.
79
custody officer: Welfare of the detainee
The custody officer is responsible for the welfare of each detainee. Additional duties include:
* Conducting a risk assessment procedure for each detainee.
* Making special arrangements, if necessary, for detainees who may be physically or mentally incapacitated.
* Arranging for interpreters to be present, where appropriate.
* Dealing with a detainee’s property.
* Contacting healthcare professionals, if needed.
80
custody officer: Codes of Practice
The role of the custody officer is a vital one. The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of the Codes of Practice. Custody officers are well aware that if there are any procedural flaws in the detention process, the result might be the subsequent exclusion of evidence and that ultimately it is they who can be held accountable
81
reviews of detention
Reviews of detention must be carried out during the detention of a suspect. The review officer must be satisfied that the detention is still necessary. They must therefore consider whether the grounds for the detention, as authorised by the custody officer, still exist. The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.
The first review of the suspect’s detention will take place not more than six hours after the suspect's detention was first authorised by the custody officer and then periodically every nine hours thereafter.
At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.
82
maximum amount of time someone can be held in custody before being charged initially.
24 hours from the 'relevant time'
83
relevant time for detention
the relevant time begins at the moment the suspect arrives at the police station. The relevant time is indicated on the custody record.
84
can the detention time extend beyond 24 hours?
yes. up to 36 hours.
subject to the following conditions:
* an officer of at least the rank of superintendent must authorise the continued detention;
* the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning;
* the offence must be an indictable offence; and
* the investigation must be being conducted diligently and expeditiously.
* authorisation to extend must be given before the expiry of the initial 24 hours but after the second review has occurred;
* the grounds for the extension must be explained to the suspect and noted in the custody record; and
* the suspect and/or the suspect’s solicitor should be allowed an opportunity to make representations.
85
can the detention time be extended beyond 36 hours?
yes.
If the police want to detain beyond 36 hours then they must apply to the magistrates’ court for a warrant of further detention.
The warrant may authorise continued detention for a further 36 hours on a first application and 36 hours (up to a maximum of 96 hours) on a second application.
The same criteria apply and stipulate that:
* the magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;
* the offence must be an indictable offence; and
* the investigation is being conducted diligently and expeditiously.
86
Crown Prosecution Service (CPS)
- CPS take over form police and decide legal questions to charge and to press charges
- DPP is the head of CPS
- CPS does not act on the behalf of the police, it takes over the prosecutions started by the police
87
Director of Public Prosecutions
- Take over the conduct of all criminal proceedings instituted by or on the behalf of the police force, other then, specified proceedings
(Specified proceedings include criminal damage which does not exceed £5000 and low value shop lifting (Does not exceed £200))
- DPP is to institute the conduct of criminal proceedings in any caser where it deems DPP to be appropriate to do so either on account of importance or difficulty
- DPP is to take over the conduct of all binding-over proceedings instituted on the behalf of the police force and NCA
- DPP to have conduct over extradition proceedings
- DPP to advise police forces to the extent DPP finds it appropriate to do so on all matters relating to the criminal offences
- DPP to appear as the prosecution when directed to the court to do so on:
- Appeals from high court to supreme court
- Appeals from crown to CoA (Criminal Division) and thence Supreme Court
- Appeals to the crown court from Mags to deal with contempt of court
- DPP is to deal with application of criminal behaviour orders and to apply for discharge or variation of those orders
- Discharge duties under POCA
- DPP to discharge any other duty it deems appropriate to do so.
88
Crown Prosecutors
- DPP’s powers can be exercised by the CPS without express instructions from DPP.
- Thus, the DPP’s powers to take over the conduct of privately commenced prosecutions and to serve a notice discontinuing a prosecution are, in practice, exercised by Crown Prosecutors rather than the DPP personally.
- Section 10 Prosecution of offences act 1985 requires the DPP to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied by them in: (a) determining whether proceedings for an offence should be instituted or (if already instituted) continued; (b) determining what charge(s) should be preferred; and (c) considering what representations should be made to a magistrates’ court about mode of trial.
- CPS can appoint associate prosecutors and other persons which are to be instructed by the CPS
- Outside barristers are known as agents who have been given permission to act in accordance with their CPS lawyers/reviewing lawyer
- Associate prosecutors: CPS staff that are not legally qualified but can conduct bail applications and conduct trials which are summary and non-imprisonable only. Can also do preventative civil orders too.
89
what are the three forms of commencing a prosecution?
* arrest and charge;
* written charge and requisition; and
* laying an information.
90
what is the most common way of commencing a prosecution
Arrest and charge
91
when may a suspect be charged?
The charge may come:
* at the end of the period of detention at the police station after an arrest;
* after a period of police bail when the suspect re-attends the police station; or
* after a period on police bail while the CPS decides what the appropriate charge, if any, is.
92
what is Released Under Investigation
where the suspect is not released on police bail but released anyway, and the police are still investigating into the matter
93
what happens if someone is not charged within the time period of detention
they should be released on police bail if it is deemed necessary and proportionate and only valid for 28 days.
94
is there a time limit for a charge for an indictable offence?
No.
95
is there a time limit for a charge of a summary only offence?
yes.
s.127(1) Magistrates' Courts Act 1980 provides that where the alleged offence is ‘summary only', a magistrates' court shall not try an information or hear a complaint unless the information was laid or the complaint made within six months of the date of the alleged offence.
96
if there is a dispute of a charge being brought within the time limit, who has the burden of proof?
the prosecution. to prove that the charge was correctly brought in time. this is to the criminal standard.
97
how may a first appearance of an accused be secured before the Magistrates Court?
(a)The accused may be arrested and, after the police have sought advice from the CPS, charged by the police (the details of the offence(s) will appear on a charge sheet).
(b)The accused may be arrested and then granted police bail while the CPS decide whether there is sufficient evidence to justify a charge; the CPS may then start a prosecution by using the ‘written charge and requisition’ procedure.
(c)The accused may be arrested and then be granted police bail, subject to a requirement of returning to the police station on a specified date; during the intervening period the CPS decide whether there is sufficient evidence to justify a charge and, if so, when the accused returns to the police station, the police will charge the accused with the offence(s) specified by the CPS.
(d)The accused may be served with a written charge and requisition without first having been arrested.
(e)An application may be made to a magistrates’ court for the issue of a summons (or an arrest warrant) requiring the accused to attend before it (this process is sometimes referred to as ‘laying an information’). A prosecutor who is not a ‘relevant prosecutor’ for these purposes cannot use the written charge and requisition process but must instead apply for the issue of a summons by the magistrates’ court.
98
who can use "written charge and requisition"?
Public Prosecutors, which include:
- Police force
- Director of SFO
- DPP (CPS)
- Director General of NCA
- The (A-G) (not yet in force)
- A person specified by the secretary of state in an order under the CJA 2003
- Health and Safety Executive
- Driver and Vehicle Standards Agency
- Environment Agency.
99
what is a Written Charge and Requisition?
A public prosecutor may commence proceedings by issuing a written charge charging a person with an offence. There is no requirement that the person charged has been arrested when this method of commencement is used. At the same time the public prosecutor issues a requisition, which requires the person charged to attend a magistrates' court. The charge and requisition must be served on the person charged and on the magistrates' court at which that person is to attend
100
what is Laying an Information?
the prosecutor to serve an information alleging an offence on a magistrates' court. The court will then issue a summons or an arrest warrant requiring the accused to attend.
Prosecutor who wants to issue a summons must make an application which is written or oral which is documented. They must set out the allegations, any time limits. The time limit must be clearly stated and clearly stated it has not been passed. It will not suffice that it was obvious to be within the time limit
101
What is the only method available for private prosecutions?
Laying an Information.
102
after Laying an Information, what may the Justice of the Peace do?
- issue a summons directing the individual to answer information; or
- issue a warrant to arrest that person and bring them to the magistrates.
103
do either way offences have a time limit?
yes. they ma be specified by statute.
104
what must a Written Charge or Information contain?
* a statement of the offence which describes the offence in ordinary language;
* a reference to the statutory provision that creates the offence (if it is a statutory offence); and
* sufficient particulars of the conduct complained of for the accused to know what is alleged.
105
What must a Summons contain?
- contain a notice setting out when and where the accused is required to attend court; and
- specify each offence in respect of which it has been issued.
- identify the issuing court.
106
What must a requisition contain?
- contain a notice setting out when and where the accused is required to attend court; and
- specify each offence in respect of which it has been issued.
- identify the person under whose authority it was issued.
