WORKSHOP 1 – Criminal Procedure/Police Investigation
1) Police Arrest – Caution
• Section 24 PACE – suspect can only be arrested if they have committed an offence or were about to commit an offence or if the police have reasonable grounds to believe that they would do
• Code C Par 10.1/10.3/10.4 – Suspect must be cautioned on arrest, or if this is impracticable, before they are questioned at police station. This will be, “you do not have to say anything, but it may harm your defence if you do not….”
• Adverse inferences – may be drawn from suspect’s failure to speak (below).
• Section 30(1A) PACE – After the caution the suspect should be taken straight to the police station
2) At Police Station – First Arrived
• Code C par 2.1A – after arrest, suspect must first be taken to the custody officer as soon as practicable, who will read suspect their rights
• s.54/53 PACE – The CO must make a record of the items suspect has on them and may seize these and for investigation.
• Code C Par 3.4 – The CO will then open a custody record which will contain:-
(a) Details of suspect
(b) the reason for their arrest
(c) why they have been detained
(d) the suspects response
(e) the time they were told they could have free legal advice
(f) and the time the advice came
• Section 37 PACE – The CO will then decide if there is enough evidence to charge the suspect. If there is not, the accused can be detained without charge if he has reasonable grounds to believe that it is necessary to detain suspect to preserve evidence relating to offence or if suspect needs questioning.
Time Action Law
24 hrs The suspect should be released after 24 hours after they were brought to police station unless a magistrate or higher ranking officer authorises it s.40
6hrs after Reviewed within 6 hours by a senior officer or inspector and a review officer should consider whether the detention is appropriate. s.40
9 hrs after There should be another review, Subsequent reviews should then be made every 9 hours after the first review S.40
24 hrs in total a suspect cannot be kept detained for more than 24 hours unless they are charged, but may do if a superintendant authorises such. s.41
36 hrs a suspect can only be detained if they have reasonable grounds to believe that the detention is required to obtain, secure and preserve evidence it is indictable or triable either way offence and the investigation is being carried out diligently and expeditiously s.42
More than 36 hrs allows the suspect to be held for more than 36 hours if the police apply to the magistrates court for a warrant of detention if detention is required to obtain, secure and preserve evidence it is indictable or triable either way offence and the investigation is being carried out diligently and expeditiously s.43
More than the above detention can be justified for another period of 36 hours by application to the magistrates court again but the court must be happy that this is justified s.44
• Code C Para 8 – Whilst in detention the suspect must:
(a) Have a heated cell which has light and is ventilated
(b) Bedding must be clean and reasonable
(c) Must have adequate washing a toilet facilities
(d) Must be offered 2 light meals and one main meal in a 24 hour period
(e) Should be offered light outside exercise daily (if appropriate)
3) At Police Station – Attending Solicitor
• Section 58 PACE – person detained in custody has right to free legal advice “as soon as practicable”. This right can be delayed for 36 hours by superintendant if he thinks it will lead to others connected with offence being alerted or lead to evidence being destroyed.
• After telephoning custody officer and speaking to client to conform he wants him to attend, the solicitor should attend and speak to:-
(a) custody officer – to establish basis of detention and next steps…
(b) investigating officer – to ascertain evidence against suspect…
(c) client – to give advice (requires case analysis) based on the disclosure he has been provided with and prepare client for interview.
(A) Disclosure
• The solicitor will want “disclosure” of evidence against D from investigating officer. The police can provide some evidence, but not all. The solicitor should then adopt the D.E.A.L strategy.
(B) Case Analysis
• What must the prosecution prove? – substantive law
• What evidence do prosecution have? – from the disclosure of the investigating officer.
• What is the clients defence?
• What Evidence is there to support that defence?
4) At Police Station – Police Interview
(A) CODE C
• Par 6.6a – suspect should not be interviewed until received legal advice (with limited exceptions).
• Par 11.1 – interview must take place at police station once person has been charged.
• Par 12.3 – suspect must be in a fit state (assessed by custody officer and investigating officer).
• Par 11.18 – should not be interviewed if at time of interview he is suffering from effects of drugs so unable to understand the significance of questions.
• Par 11.4 – Police must put to D any previous silence he has made.
• Para 11.5 – should not intimidate witness or use threatening behaviour (raise voice, etc).
• Par 11.5 – police should not offer inducements for D to admit guilt.
• Para 12.2 – if interview is conducted in 24 hour period suspect should be given at least 8 hours rest.
• Para 12.8 – there should be short refreshment breaks every two hours.
• D can stop interview at any time to get further legal advice.
• D should be cautioned at start of interview (either normal or special).
(B) SHOULD ‘D’ ANSWER QUESTIONS?
Ultimately, it is client’s decision on whether they should remain silent, but solicitor should advice on the pro’s and con’s:-
Reasons for remaining silent Reasons for not remaining silent
Avoids self incrimination Suspect maybe released
Case is to complex Adverse inferences
Offence happened a long time ago Can put their case on record early
Circumstances of suspect – vulnerable. May reduce sentence (mitigation).
Low level of disclosure by police – hard to anticipate questions. Police Ambush – leading to them shocking client with information they have at interview.
• As an alternative to remaining silent and answering questions client could hand in a Written statement instead. This will stop any adverse inferences being drawn at trial so long as it is a full record of all the facts/defences (nothing further raised at trial).
(C) ADVERSE INFERENCES
• A suspect cannot be convicted purely on an adverse inference – s.38(3)CJPOA.
• R v Beckles – D cannot rely on fact that he was acting under solicitor instructions to avoid adverse inferences being made from silence.
• Suspect has a right to silence during questioning but adverse inferences may be drawn from this:-
1) SECTION 34 – “where defendant, when questioned under caution, fails to mention facts relied on in his defence which he could reasonably been expected to mention”.
S.34 only applies if D was under caution and it was reasonable to expect D to mention fact. In assessing “reasonable” take into account time of day, age, experience, mental health (r vArgent)
The inference that can be drawn is that D has fabricated the story.
2) SECTION 36 – “where D, when arrested, fails to account for objects, substances or marks in his possession and the officer reasonably believes that these are attributable to participation in offence”.
This applies irrespective of defence at trial.
Code C par 10.11 – officer must give the suspect a special caution which further warns the suspect that an adverse inference maybe drawn from his silence.
Inference is that D has no explanation for object/substance/mark being there.
3) SECTION 37 – “Where D, following arrest, fails to account for presence at a particular place and the officer believes that his presence is attributable to D’s participation in offence”.
This applies regardless of any defence put forward.
Again a special caution should be given to the suspect.
(D) CONFESSIONS – Refer below
• Section 76(2) PACE – an alleged confession must be excluded if this was obtained by:-
(a) Oppression –
(b) Unreliability – words, conduct of police render confession unreliable.
• Code C – they are there to ensure defence cannot claim confession was obtained by the above.
5) At Police Station – Identification Procedure
• Code D par 3.12 – this procedure only used where a suspect denies that a witness has positively identified them and it is practical to do so and serves a purpose. There are four types of procedure:-
Procedure Formalities
- Video identification
Code D-Annex A:-
• Witness shown moving image of suspect and 8 others who resemble him (ie, height, weight) and who are in same position.
• They must first be shown to the suspect and he can object to them.
• Police must conceal distinctive features (ie tattoos, scars)
• Witness must not talk about the procedure with any other witnesses
• Before the procedure takes place the solicitor should be given the first description of the witness (Code D 3.1).
Identification Parades Code D-Annex B:-
• Witness is shown suspect with 8 others who resemble him (ie, height, weight) in a line up.
• Police must conceal distinctive features.
• Witness must not talk about the procedure with any other witnesses
• Witnesses shall be brought in 1 at a time and must look at the people in the line twice
• Witness can ask the person to adopt any posture.
• Colour photograph must be taken (par 23).
• Before the procedure takes place the solicitor should be given the first description of the witness.
• Only authorised persons should be present.
Group Identification Code D-Annex C:-
• Witness sees suspect in an informal place (shopping centre, bus station, etc).
• This should be use if the above are not suitable
Confrontation Code D-Annex D:-
• Face to face with the suspect and asked “is this the person”
• Witness must be warned that this may not be the person they saw
• Code D par 3.11 – No officer involved in investigation of case may take part in procedure. Identification officer is responsible for procedure and must explain to suspect:-
(a) The purpose of procedure to be used
(b) Suspects entitlement to free legal advice
(c) Procedure to be followed
(d) If suspect refuses to the I.D procedure taking place this must be noted.
• Code D par 3.14 – video identification procedure or identification parade will first be offered to suspect.
6) At Police Station – BAIL
• Once Charged – the CO must decide whether to release on bail or remand in custody.
• Section 38(1) – If they decide to deny bail, they must base decision on one of following:-
o Suspects name and address cannot be ascertained.
o CO has reasonable grounds to believe suspect will not answer bail;
o CO has reasonable grounds to believe suspect may commit another offence whilst on bail;
o May interfere with witnesses, etc.
• Section 47(1A) – The CO may attach conditions to the bail if they are necessary to prevent suspect from failing to surrender to custody, to prevent suspect from committing another offence, interfering with witnesses and for suspects own protection.
• Conditions attached – include to reside at a certain address, to not contact witnesses, not to enter certain places at certain times, to observe a curfew.
• If a suspect is denied bail they must be brought before the magistrates as soon as practicable and no later than the first court hearing after they have been charged – s.46(2).
• If a suspect is granted bail they must be brought before the magistrates at the first court sitting (or as soon as practicable if this cannot be accommodated) – s.46(3A).
WORKSHOP 2 – Choice of venue, grounds for opposing/requesting bail
1) Criminal Procedure Rules 2005
• Overriding Objective – that cases are dealt with justly (acquitting the innocent & dealing with both parties fairly). This must be adhered by each participant in the case (solicitor, judge, witness, etc).
2) Solicitors role before the case comes to Court
• FUNDING – defendant must submit form CDS 14/15 to the LSC. The defendant must satisfy two tests:-
(a) Interest of Just Test – must be in interest of justice for D to receive public funding. The court will consider a number of factors.
(b) Means test – D’s finances must be such that he is unable to pay for own legal costs.
• STATEMENT FROM CLIENT – including personal details, details of charge, details of circumstances, previous convictions, his version of events, bail considerations, intended plea.
• OBTAINING DISCLOSURE FROM CPS – including witness statements, transcript of interviews, previous convictions, etc:-
(a) Summary Offence – CPS under no obligation to disclose
(b) Either-way Offence – CPS must provide “advance disclosure” of above documents.
• ADVISING CLIENT ON PLEA – The solicitor should discuss any evidence disclosed by the CPS with the client and take a note of any disputed points. He should update the case analysis so that he can weigh up the strengths and weaknesses of the client’s case. It is only after doing this can solicitor advise on plea.
3) First hearing – Plea Before Venue Hearing
• Upon hearing his charge from court clerk, the defendant may indicate how he intends to plea if the case where to go to trial. The choice he makes will have different effect depending on offence:-
(a) Summary Offence
o Guilty – magistrates will sentence immediately or adjourn for reports
o Not guilty – a date will be fixed for trial and case management directions will be given.
(b) Either way Offence
o Guilty – Magistrates Court will sentence if their sentencing powers are adequate. Their maximum sentence is 6 months. If not they will send to Crown Court.
o Not guilty/makes no plea – Mode of Trial – used to decide which court to use…
(c) Indictable offence – case must be sent to crown court (s.51(1) Crime and Disorder Act 1998
• MODE OF TRIAL – To determine what court will hear the case two stages must be passed:-
- STAGE 1 – Which Court is more appropriate?
Both side will address the Court on which venue they consider to be most appropriate. The magistrates will consider:-
• Nature and seriousness of the offence – does it require punishment
• Whether there sentencing powers are adequate
• Any other circumstances
… when coming to their decision.
Mode of Trial Guidelines [2002] – These contain both general considerations for the Court when making their decision and specific considerations for specific offences (e.g. burglary, theft, handling, etc)
- STAGE 2 – If Magistrates consider that it is appropriate for case to be heard by them, the defendant will then be given the opportunity to decide whether to go to Crown Court or stay with Magistrates. If defendant:-
(a) Elects for magistrates – Magistrates will set a date for trial/issue case management directions
(b) Elects for Crown Court – the case will be adjourned for a committal hearing.
4) Solicitor Must Advise on Which Court?
Solicitor should outline pro’s and con’s to each court to client to help him reach a decisions:-
For Crown court For magistrates court
Greater chance of acquittal Limited sentencing powers (but can send to crown court for sentencing)
Challenge admissibility of prosecution evidence Speed
More time to prepare for case Less stress
Higher sentences Less prosecution/defence costs
Defence statement No obligation to serve a defence statement
Jury
5) Magistrates Court/Crown Court Bail – When Will it be Granted?
Section 4 Bail Act 1976 – A suspect has the right to be granted bail. This is the starting point.
Schedule 1 Bail Act 1974 – for bail not to be granted prosecution must convince court that there are “substantial” grounds for believing that if defendant is released on bail he will:-
(a) Fail to surrender custody
(b) Commit an offence whilst on bail
(c) Interfere with witness or obstruct course of justice.
• Court may also refuse bail if it is for the defendants own protection, the defendant is already in custody or it has not been practicable to obtain required information.
• In deciding whether to refuse bail, court should consider:-
(a) the seriousness of the offence (what sentence is likely)
(b) the defendants character, antecedents, associations, community ties
(c) behaviour on previous bail and
(d) the strength of the evidence
• Section 3(6)BA – Court may grant bail with such conditions as are necessary in order to secure D’s attendant/make sure he does not commit another offence (e.g. sureties, security, reporting to police station, residence, curfew, restrictions etc).
• DEFENCE – must then counter-argue the prosecutions grounds and factors and offer any reasonable conditions that could be attached to the bail. This could be supported by evidence (employer, drug programme, etc).
• These consideration on bail are considered every time a court hearing is adjourned and the defendant is being remanded in custody.
• A defendant may appeal the decision to refuse bail to the Crown Court.
WORKSHOP 3 – Getting to Crown Court, evidence, section 78, defence statement
1) Getting To The Crown Court
(A) INDICTABLE ONLY OFFENCE
• Following the preliminary hearing at the Magistrates, the case will be referred to a “Plea & Case Management” Hearing with “Standard Case Management” directions being set to comply with before this.
(B) EITHER-WAY OFFENCES
• If D pleads not guilty at the “plea before venue” he will be tried before Crown Court if Magistrates Decline Jurisdiction or if D so elects.
• However, before case goes to Crown Court a “Committal Hearing” to decide if there is a case for defendant to answer. This will either be held:-
(a) Committal Hearing without consideration of Evidence – where there clearly is a case to answer.
(b) Committal Hearing with consideration of evidence – where D’s solicitor consider there is no case to answer.
2) Plea & Case Management Hearing
• Defendant will enter a plea – sometimes there will be plea bargaining where the defendant will admit to some counts and get let off with other. The judge will give an indication of the likely sentence the suspect will have is they enter a guilty plea.
(a) Guilty Plea – The judge will sentence or adjourn before sentencing.
(b) Not Guilty Plea – the court will hear submissions from each side to determine what further directions are needed before trial. The judge will then fix date for trial.
3) Advance Disclosure of Prosecution Evidence
• Prosecution have a duty in all criminal cases to :
- Notify the defence of the evidence they wish to rely upon; and
- To make available to defence the evidence which they do not seek to rely upon (unused material), which are capable of undermining/assisting D’s case. This only applies when:-
a. The suspect makes a not guilty plea,
b. The offence is sent from the magistrates to the crown court
c. When the suspect is charged with an indictable offence and is sent to the crown court
• This duty must be exercised:-
- Summary offences – there is no duty, but they should disclose their evidence so the defence have sufficient time to prepare their defence
- Either way offences – there is a duty, this should be given before the plea before venue and allocation hearings or if being transferred between the magistrates and the crown court disclosure should be between this time.
- Indictable – the prosecution must supply all evidence that they seek to rely upon.
• If the prosecution do not hold any material that will undermine the defence case they must provide a written statement that they do not have such evidence. Some evidence may be excluded if it is sensitive and it may be excluded from the court (security, identity of police informants, etc).
• s.8(2) CPIA – The defence may apply to the court for the prosecution to disclose information which should have been disclosed
• S.7A CPIA – This duty is ongoing (must send D documents throughout case).
4) Advance Disclosure of Defence Evidence
• Section 5/6 Criminal Procedure Investigation Act – The defence must simple disclose a defence statement to the prosecution:-
(a) If the case is to be heard in the magistrate’s court – there is no duty to provide a statement but the defence can decide whether to submit one.
(b) In the case is to be heard in the Crown Court or for indictable offences – the statement must be sent CPS & court 14 days after the prosecution make their disclosure.
• The defence statement must be in writing, state their defence, indicate matters of fact which they ate going to take issue and why they are going to rely on that fact and state any point of law that they may seek to rely upon (admissibility of evidence) s.5&s.6 CPIA
•
• s.11 CPIA – The jury can draw adverse inferences from the defence’s failure to submit a statement or if there are any faults (late service, incomplete, inconsistent).
• s.6DC/D CPIA – defendant msut serve notice on CPS and Court for any witness/experts they intend to rely on.
5) Burden & Standard of Proof
Burden of Proof
Standard of ProofProsecution The ‘evidential burden’ lies with prosecution throughout the case.
They must produce evidence in support of every part of the offence that D has been charged with.
If they fail to do this D could submit an application of no case to answer.
When defence is presenting their case, prosecution still have burden to persuade court that evidence not reliable (no defence). Woolmington v DPP – prosecution must prove D’s guilt beyond all reasonable doubt.
Defence They do not have evidential burden unless they raise a defence, then they will have a burden of proving the defence exists.
The standard of proof is less than the prosecution as it is “on the balance of probabilities”.
6) Forms Of Evidence
(A) Witnesses
• These can be witnesses as to fact or expert witnesses. The difference being expert witnesses can give opinion evidence so long as it is within their expertise.
Competence CompellableDefendant X
S.35 CJPO – However, adverse inferences can be drawn from D’s failure to testify if there is a case to answer
Co defendant (tried together) X X
Defendants Spouse X
Other Witnesses
(B) Documentary Evidence
• E.G. transcripts from D’s interview and photographs so long as they have been authenticated by witness.
(C) Real Evidence
• E.G. stolen goods, weapons and drugs.
7) Exclusion of evidence that was improperly obtained
• SECTION 78 PACE – The court may refuse to allow prosecution evidence if, having regard to the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it,
• The Court is looking at whether the evidence is reliable. This allows prosecution evidence to be excluded when there has been breaches of PACE or CODES (code D).
• The court will consider the character of the defendant when deciding on affect these breach will have on “fairness” (repeat offender not unfair if not read out his rights).
• If Court refuses to use this discretion under s.78, the only other hope of getting evidence excluded is under the Turnball Guidelines.
• TURNBALL – These guidelines apply where there is disputed visual identification evidence where:
o The suspect disputes the ID evidence
o The suspect disputes being at the scene
o The suspect admits being at the scene but does not admit the crime
• The judge must look at the circumstances surrounding the initial sighting (when offence was committed) and decide how reliable this was. He is deciding on the quality of the evidence paying regard to:
A – Amount of time observed
D – Distance
V – Visibility
O – Observation
K – Known or seen before
A – Any reason to remember him
T – Time lapse
E – Error or discrepancy
• The judge must then look to see if there is any supporting evidence such as:
o Confession
o DNA
o Fingerprint evidence
o Adverse inference
o Testimony of another witness of refusal to take part in an ID procedure.
• Poor I.D Evidence/Unsupported – Court must direct the jury to acquit.
• Good/Poor I.D evidence/Supported – Court must warn jury of dangers of mistaken identity and set out the facts which support and undermine the evidence. Warn jury not to convict purely on evidence.
Deciding On Admissibility of Evidence
Magistrates Crown Court
The Magistrates will decide whether the evidence should be omitted at hearing and same magistrates will be deciding on guilt.
The court will consider this evidence in a viore dire in the absence of the jury.
WORKSHOP 4 – Hearsay, Confession & Bad Character Evidence
1) HEARSAY EVIDENCE
“an oral or written statement, made outside of the court, which is repeated in the court, that aims to prove the truth of the matter in statement”
• For Example – A witness repeating something which they where told by another person OR A statement being read out at trial of a person who is not attending court
• GENERAL RULE – Hearsay is inadmissible because it is unreliable and witness cannot be cross-examined. However, there are exceptions to this rule:-
(A) EXCEPTIONS
• Part 34 Crim PR – A party intending to rely on hearsay must notify other party of this intention.
• s.114 CJA 2003 – allows the following to be exceptions to the hearsay rule:
a) Res Gestae – where statement is so closely associated with events in question that they form part of the transaction itself. It is impossible that the statement was concocted.
b) Confessions – (refer below) – A confession made by a defendant prior to his trial will be admissible in evidence at trial insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section (s.76(1) PACE). But may be challenged by the defence.
c) Witness unavailable to attend court – witness statement is admissible as evidence as long as the witness is unable to attend because they are dead, unwell, untraceable, outside of the UK and it is unreasonable to secure their attendance or it is unsafe for them to attend court (s.116 CJA).
d) Business documents – can be admitted if the document has been created for the purpose of criminal proceedings/investigations (e.g. accounts, receipts) – (s.117 CJA)
• S.125 CJA – Court must direct jury to acquit defendant if prosecution case is based wholly or partly on hearsay evidence and it is so unconvincing that conviction would be unsafe.
• S.126 CJA – allows the court to exclude hearsay if admitting it would be a waste of time substantially outweighs the case for admitting it.
(B) ADMITTING HEARSAY
• 34.2 – Crim PR – If the defence or prosecution wish to admit hearsay they must:
Party Magistrates Crown Court
Prosecution They must send a notice to court and defence of their intention to adduce hearsay evidence at trial when they disclose unused material – if the defendant wishes to oppose this they must send notice to the court and prosecution within 14 days of receiving the notice They must send a notice to court and defence of their intention to adduce hearsay evidence at trial 14 days after the committal hearing (TEW) or 14 days after they serve the case papers (Indictable –if the defendant wishes to oppose this they must send notice to the court and prosecution within 14 days of receiving the notice
Defence They must send a notice to court and prosecution of their intention to adduce hearsay evidence at trial 14 days after the prosecution disclose unused material – if the prosecution wishes to oppose this they must send notice to the court and defence within 14 days of receiving the notice They must send a notice to court and prosecution of their intention to adduce hearsay evidence at trial 14 days after the prosecution disclose unused material – if the prosecution wishes to oppose this they must send notice to the court and defence within 14 days of receiving the notice
• The court will decide on the admissibility at the plea hearing, case management hearing or pre-trial hearing to decide on the admissibility of the evidence.
2) CHALLENGING CONFESSION EVIDENCE
• Section 82(1) PACE – a confession is “a statement which is wholly or partly adverse to its maker”
s 76A(1) PACE – Where two co-defendants are pleading not guilty and are tried jointly, one defendant can adduce in evidence the fact that a co-defendant has made a confession.
• Confessions are an exception to hearsay rule (s.118(1)) and so are admissible. However, they can be very damaging to the maker and so can be challenged on a number of grounds:-
1) S.76 PACE – A defendant may challenge the admissibility of his confession at trial by arguing either:
(a) that he did not make the confession at all, and that the person to whom he made the alleged confession was either mistaken as to what he heard or has fabricated evidence of the confession
(b) that he did make the confession, but only for reasons other than the fact that he was actually guilty of having committed the offence.
s.76(2) – this could involve arguing that confession was obtained through either:-
(a) OPPRESSION – The police must have acted improperly (breach code C), by using violence, swearing, intimidation to get the confession out of the defendant. Subjective test.
(b) UNRELIABLE – The police need not have acted improperly, but must have said or done something which makes it unreliable. This may be due to the defendants won personal attributes.
It is for the prosecution to prove to the court beyond reasonable doubt that the evidence was not obtained in the above ways.
The defendant must show that if he was allowed legal advice, or was induced he would not have confessed etc.
2) S.78 PACE – Court has discretion to exclude such evidence if it would have an adverse affect on the fairness of the proceedings to admit it. It applies when:
The suspect accepts making the confession but there was substantial and significant breach of PACE or the CODES when obtaining it.
Suspect accepts making confession but had ulterior motive (had to get out of police station).
The suspect denies making the confession as the Police have breached Code C (e.g. by not authenticating statement)
3) ADMISIBILITY OF BAD CHARACTER EVIDENCE
• Section 98 CJA 2003 – Reference to “bad character” is reference to “misconduct on his behalf”
• Section 112 – misconduct includes the commission of an offence or other reprehensible behaviour.
• Section 101 – A suspect’s bad character is admissible BUT only through one of the GATEWAYS:-
(A) GATEWAY D (S.101(1)(d))
The Bad Character evidence is relevant to an important matter in issue between the defendant and the prosecution
• The bad character evidence may:-
(a) Show that D has the propensity to commit offences of the kind charged and will help prosecution prove guilt.
The previous offence msut be of same description and category of current offence (sexual offences/theft).
R v Hanson Gilmore & Pickstone – The propensity must make it more likely that D committed the offence and it must be just to rely on previous convictions having regard to the overriding objective. The fewer the number of previous convictions the less likely propensity is to be established.
(b) Show that D has the propensity to be untruthful
This can only be used if it has been suggested by the prosecution in current case that the defendant is being untruthful.
The previous conviction must show propensity to be untruthful (not merely dishonest). Such as previous convictions perjury, deception, etc. Can also raise fact that D pleaded not guilty to previous offence and was convicted as his version not believed.
(B) GATEWAY G (S.101(1)(g))
The defendant has made an attack on another persons character
• The attack does not have to be on a party to the proceedings. Examples of such attacks include:-
(a) Alleging that someone has fabricated story
(b) Alleging that someone else committed offence
(c) Alleging that someone else committed any offence
(d) Alleging that someone else has previous convictions
(e) Raising self defence you are saying that a witness is lying.
• The advocate representing defendant should be careful when cross-examining prosecution witnesses.
• R v Ball – evidence of previous convictions allowed when D called V a “slag” in rape case.
NOTE – The defendant must counter-argue the prosecution submissions that the evidence should be admitted under above gateways. Upon hearing such arguments, the court should not admit the evidence if it appears that this would have an adverse affect on the fairness of proceedings (This is mandatory (compare with s.78 PACE) – s.101(3)CJA.
They will take into account matters such as spent convictions, how long ago they were, the likelihood of jury convicting on this evidence alone, the strength of prosecution case, etc.
WORKSHOP 5 – Trial, Questioning, Plea in Mitigation & Sentencing
1) Sentencing
• Section 142 CJA 2003 – Five main aims of sentencing:-
(a) punish,
(b) reduce crime,
(c) reform and rehabilitation
(d) protect the public
• Section 174 CJA – court must give reasons as to why the sentence has been given.
• Seriousness of offence – determined by looking at:-
(a) Circumstances of offence – hitting victim several times rather than just once.
(b) Associated offences – whether D committed other offences at same time
(c) Previous Convictions – similar offences to current offence.
(d) Offending whilst on bail
(e) Offences aggravated by discrimination – age, sex, religion, race.
• Types of sentences – There are many sentences that can be given depending on seriousness:-
1) Custody
2) Community sentence (s.148 CJA), such as
(a) Unpaid work
(b) Activity requirement
(c) Programme requirement
(d) Curfew
(e) Residence
(f) Exclusion from an area
(g) Rehabilitation for drugs and alcohol
(h) Treatment for mental health, drugs and alcohol
3) Fine – there are different levels of fines ranging in seriousness:-
(a) Level 1 – £200;
(b) Level 2 – £500;
(c) Level 3 – £1,000;
(d) Level 4 – £2,500;
(e) Level 5 – £5,000.
S.164 says that the fine must reflect the seriousness of the offence but should bear in mind the means form. There are different levels for the magistrates and the crown court can impose any amount of fine it wishes to (s.163).
4) Discharge – can be both absolute and conditional. Condition is usually that D does not commit another offence within certain period.
• The court may make ancillary orders such as compensation, forfeiture, confiscation, destruction, costs.
• Section 179 – if court breaches community order he will receive warning and if he breaches this again within 12 months the court will take control and could impose more onerous requirements, re-sentence the defendant (even with custodial sentence).
(A) WHAT THE COURT WILL CONSIDER WHEN SENTENCING
a) Sentencing Guideline Council (SGC) – provide guidelines on matters such as reduction for guilty plea, assessment of seriousness, allocation in courts and sentences for specific types of offence (only limited at the moment). These are useful for solicitor to predict likely sentence and potential mitigating factors.
b) Reduction in Sentence for Guilty Plea (s.144 CJA 2003) – the SCG guidelines suggest the following reductions:-
c) They will then consider the aggravating and mitigating factors (s.143)
Aggravating
Mitigating
- offences that are planned or premeditated; 1. defendant has acted on impulse;
- offenders operating in groups or gangs; 2. defendant has experienced a greater degree of provocation than normally expected;
- the deliberate targeting of vulnerable groups 3. defendants suffering from mental illness
- offences committed under drink or drugs. 4. if the defendant is particularly young or old
- the use of a weapon. 5. defendant played only a minor role
- deliberate and gratuitous violence or damage to property, beyond that 6. defendants who were motivated by genuine fear;
- offences abuse of a position of trust; 7. defendants made reparation to their victim.
d) They will consider pre-sentence report – this is a good source of mitigation.
e) The Culpability of the defendant (s.143(1)) – what the defendants intention was and the harm that was caused or that may have been caused. This is used to decide the “seriousness” (above).
f) The totality principle – Court will take account of offence committed by D and any associated offence and will sentence based on the full picture.
g) Magistrates must decide whether they have adequate sentencing powers – the magistrates can only pass a sentence of 6 months imprisonment.
h) Good Character of Defendant – This will usually be given in the evidence of the police officer who conducted the interview with the defendant. Extra witnesses may also be called. This can be used to show D’s credibility as witness and lack of propensity to commit offence charged.
2) Pre-Sentence Report
• s.158 CJA – these are used to assist the court in determining best way to deal with offender. They will contain details of offence, D’s attitude (remorse), D’s history/background, assessment of risk to public and a indication of which sentence officer feels will be most appropriate.
• s. 156(3) – the court will only obtain and consider a re-sentence report when deciding if custody threshold has been passed or whether threshold for imposing community order has been passed.
3) Plea In Mitigation – Defendants Solicitor
• In preparation for the plea in mitigation, the defendant’s solicitor will refer to the Sentencing Guideline Council and Magistrates Guidelines and the “pre-sentence report” and speak with client about his findings on likely sentence and details of any factors that may be used in the mitigation.
• Objective – to persuade the court to be lenient when sentencing the defendant.
• Structure – may be divided into four parts:-
- Starting Point – they should look at the sentencing guidelines – for the magistrates and the sentencing guideline council to see the starting sentence. They are aiming to get a sentence that is less than this.
- Then they should look at the offence – and try to minimise the aggravating factors and stress any mitigating factors. The Magistrates Guidelines list the possible aggravating and mitigating factors for various offences.
- Then they should look at the offender – emphasis any personal mitigation defendant may have:-
(a) Age
(b) Health
(c) Co-operation with police/early plea
(d) Voluntary compensation to victim
(e) Remorse
(f) Character
(g) Family Circumstances.
- Then suggest a sentence – what they feel is appropriate in all the circumstances. This should be lower than starting point sentence but should be realistic.
Case Analysis
• This is very important in deciding what must be proved to convict you client.
• How strong is the prosecution evidence in proving:
a. Who
b. What
c. When
d. Where
e. How
• There are four questions which must be asked in order to assess the strengths and weaknesses of the defence and prosecution case:
- What must the prosecution prove (who has burden)?
• What elements of the offence must the prosecution prove? They must adduce evidence to prove each material part of their case and they must prove this beyond reasonable doubt.
• If the prosecution cannot do this the defence may submit that they have no case to answer.
- What evidence do the prosecution have against suspect?
• How strong is the prosecution evidence in proving – who, what, where, when and how?
• What does each witness prove
• Is the evidence circumstantial, documentary, oral, hearsay, opinion, real evidence etc.
• See if the evidence is corroborated
- What is the suspect’s defence
• Do they deny all involvement, alibi, provocation, self defence?
- What evidence supports that defence (who has the burden)?
• This is usually the defendants witness statement
• The defence just have to raise the defence, it is the prosecution who must prove that this is untrue.
• However, Diminished responsibility and Insanity require the defence to prove this.
