#13602 - General Revision - Advanced Criminal Litigation

Advanced Criminal Litigation

Revision Notes

RTO = Road Traffic Offenders Act

Mags = Magistrates

Disqual. = Disqualification

G = Guilty

NG = Not Guilty

CrimPR = Criminal Procedure Rules

Code C = PACE Code C

D = Defendant

Overriding Objective: ‘that criminal cases be dealt with justly’ CrimPR 1.1(1)

Rule 3.3 Must assist the court in its duty to actively manage the case

Conduct:

Representing more than 1 client is a conduct issue for the solicitor NOT the police (Code C, para 6, Notes for Guidance 6G)

If acting for 2 clients and both have different versions of what happened you MUST refuse to act for BOTH clients. Inform the police you are withdrawing for ‘professional reasons’

Case Analysis:

What the prosecution must prove:

1. Who

2. What

3. When

4. Where

5. How

Think of it like a written charge on an indictment!

When assessing evidence go through each piece of evidence, not the elements of the offence

Dealing with issues with the Police:

D Description

E Explanation

A Action Required

L Likely consequences

Arrest:

• s24 PACE without warrant reasonable to believe D has committed an offence or has committed

• s24(4) Suspicion not enough

• s24(5) Reasons for arrest:

  • Ascertain name/address

  • Protection of

  • Investigation

• s28 Caution following Code C 10.3 (on arrest unless impractical)

• s30 Take to police station immediately or some other place for investigation

Police Station Arrival:

• s36 Custody Officer: (open and maintain a custody record)

  • Oral and written notice of free legal advice (s58(1))

  • Safeguard rights

  • Let someone know they have been arrested (s56(1))

  • Rights under Codes of Practice

• s37 duty to consider if there is sufficient evidence to charge or authority detention

• Rights to legal advice in interview may be withheld if authority given by superintendent, usual exception where any delay in interviewing would involve immediate risk of harm to someone or serious loss of or damage to property.

• Code C 1.1 duty to act in the interests of progressing the case

Attending the police station:

• Phone custody

• Phone client

• Check custody record

• Speak with investigating officer to obtain disclosure

• Obtain clients detailed account

• Provide detailed legal advice

• Activity defend the client during interview

• Make representations to the custody officer on bail or charge

Should attend when:

• Police ready to interview

• Client vulnerable

• Complainant of serious police misconduct

• Wants to speak to you in confidence

• Police wish to conduct ID procedure

When attending the station for a prisoner, that person MUST be informed you are their to see them Code C 6.15

Detention:

Custody Clock 24 hours from arrival at Station or if attended voluntarily then 24 hours from arrest

Must be necessary (evidence preservation), indictable offence, investigation conducted diligently and expeditiously

• s41 Supt. May extend

• s42 Extend to 36 hours (secure/preserve/obtain evidence)

• s43 Apply to Mags for up to 36 hours (grounds must be writing and given to D, D must be brought to Mags for hearing and is entitled to legal representation

• s44 permit any further application for any time up to 36 hours

• ABSOLUTE MAX. 4 days (96 hours)

Review Clock starts from time detention authorised

• After 6 hours Insp. or above review and opportunity to make representations

• Further review every 9 hours

Can be detained in the police post charge in order to be questioned about a separate offence. Same rights apply. Max. 3 days s128(7) Mags Court Act 1980

s56 right to have someone informed of arrest

s58 right to free and independent legal advice

N.B can be delayed by Supt. for up to 36 hours if indictable offence and must be confirmed in writing ASAP s58(7) (Code C 6.6)

Powers of Search:

• s8 procedure for obtaining a warrant from the Mags

• Reasonable grounds that an offence has been committed

• Evidence in premises of substantial value to case

• Admissible at court

• Not privileged or excluded

• Impractical to obtain D permission

• s17 search of premises connected with arrest (i.e when arrested at home)

• s23(b) permits search of area where arrested (so can include the house)

• s18 Search of premises occupied or controlled by D when D arrested away from home only when written authorisation by Insp. (s18(4)) Seize and retain if relevant s18(2)

• Can seize and retain property if relevant to the case s18(2)

• s54(3) PACE power to seize and retain personal effects and clothing (Code C 4.2)

• s54(1) & (2) PACE removal of property in custody (Code C 4.1)

Identification Procedure:

Used when ID is in dispute and there is available witnesses (Code D 3.12) or the investigating officer believes it may be helpful (Code D 3.13)

PACE Code D

• Video: Moving images with 8 other people (solicitor must agree to)

• ID Parade: at least 8 people

• If issues of appearance (tattoos etc.) then ask for masking

• Group: Seen inn a group of people

• Confrontation: meet directly

• Code D 3.14: D offered video ID or ID parade

• Should be video unless:

  • Not practicable

  • ID parade more practicable

• ID officer must NOT be associated with case

• Court Turnbull warning if W claims to ID D and D disputes tis identification claiming the witness is mistaken

Viewing procedure:

Attend before procedure starts

Where will the witnesses be kept? Separately? Contamination?

Solicitor to be present during the ID procedure

Ask witnesses questions to ensure no contamination

Code D Annex A

If 2 suspects being ID’ed then must be shown with at least 12 others Code D, Annex A, para 2

Fingerprints:

Taken with (in writing) or without consent s61 (Code D, para 4.2) if detained at police station for recordable offence or charged with or convicted of such offence.

May use reasonable force if no consent Code D para 4.6

Impression of Footwear

s61A with (in writing) or without consent. Reasonable force may be used Code D para 4.18

Samples:

Intimate samples on with authority of Insp. AND with consent in writing

Must have reasonable grounds for suspecting involvement in recordable offence

If no consent court can draw such inferences as appear proper s62(10)

Non-intimate samples taken with written consent. May be taken without consent if:

Not already had those samples taken

If being held on authority of the court and Insp. authorises

Already convicted of recordable offence

s64 allows police to retain for speculative searches if suspect subsequently convicted, otherwise must be destroyed

Burdens:

Pros: Evidential: admissible evidence to establish each element of the offence

Legal: beyond all reasonable doubt (Woolmington v DPP)

Defence:

Evidential: Burden to establish a defence

Legal: None generally. Burden on prosecution to disprove defence. Otherwise standard balance of probabilities.

Police Bail:

s47(3)(b) Before charge in order to obtain more information and investigate

s38(1)(a) bail denied because:

• Name/address not ascertained

• Reasonable ground will fail to appear

• Necessary to prevent commission of further offences

• Necessary to enable samples to be taken

• Necessary to prevent him caused physical injury or loss/damage to property to another

• To prevent inference with the administration of justice or with the investigation

• Necessary for own protection

s47(1A) Bail with conditions

Appear before Mags ASAP, if custody then no later than first sitting

s3A BA 76: 4 reasons for conditional bail

1. Failure to surrender

2. Commit offences

3. Interfering with witnesses or admin of justice

4. Own protection (welfare interests: juveniles only!) s5(d) BA ‘76

Rank of sergeant must have a belief that conditions ‘are necessary’

NOT available to police:

• Residence at bail hostel s3A(2) BA

• Force seeking of legal advice

• Force medical examination

Varying Conditions:

Request to custody officer s3A(4) BA

Apply to Mags s43B(1) MCA 1980; CrimPR 19.6

Court no power as to breach of conditions before charge.

Alternatives to charging:

• Informal Warning

• Penalty notice (fine)

• Formal Caution (not a conviction) Insp. Or above

• Conditional Caution (s22 CJA 2003) MUST have CPS approval

Remedies Against the Police

• Complaint to IPCC

• Criminal proceedings by CPS (usually after IPCC report)

• Civil Proceedings for damages against Chief Constable

• Article 5 ECHR

First Appearance:

Summary: No right to advance disclosure but usually get anyway

Either way: Pros must provide (CrimPR 21.3)

Allocation:

• Will Mags sentencing powers be enough? (s19(3) Mags Court Act 1980)

  • 6 months per offence (max. 12 months)

• Sentencing Council Allocation Guidelines

• Representations made by Prosecution and Defence

• Magistrates Court Sentencing Guidelines

• Does D agree to Mags having jurisdiction or want to take it to the Crown Court

• Send to Crown Court s51 Crime & Disorder Act 1998

Considerations:

• Cost

• Speed and Stress

• Sentencing

• Likelihood of conviction/Acquittal rate (jury sympathy)

• Evidence Procedure (Bad character, inferences etc.)

• Acquittal Rates: Mags 30% / Crown 40%

Court Bail: (Bail Act 1976)

• Right to bail s4

• s90 LASPO 2012 – bail not refused where no real prospect of custody

• Grounds: (para 2 Sch 1)

  • Fail to surrender

  • Commit an offence whilst on bail

  • Interfere with witnesses

• Factors: (Sch 1, Part 1, Para 9)

  • Name and seriousness of the offence

  • Character, previous convictions, associations and ties

  • Record of previous bail

  • Strength of evidence

• Appeal

  • Full application on same law and facts within 8 days

  • Further appeal on change of circumstances

Appeals to Crown Court: Crim PR 19.8

• Usually best to make 2 full applications to the Mags first

• Obtain a full argument certificate from the Mags

• Obtain hearing date

• Complete notice of application

• Give to CPS with 24 hours notice

• Attend

• CPS objections

• Applicant arguments

• Outcome

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