Friday 15 February 2008

Magistrate's vs Crown Court

What will be taken into account by the Magistrates when deciding whether they can deal with an either way offence?

Under s19 Magistrates’ Courts Act 1980 the Magistrates will take into account the following matters:

  • The nature of the case
  • Whether the circumstances make the offence one of a serious character
  • Whether the punishment available to the Magistrates would be adequate
  • Any other circumstances which appear to the court to make the case more suitable to be tried one way or another
  • Representations made by the prosecution and defence

Advantages and disadvantages of being tried by the Crown Court

Advantages of being tried in the Crown Court:

  • Lower Conviction rate (juries more likely to acquit than Magistrates).
  • More appropriate procedure for dealing with voir dire hearings.
  • Availability of non means tested legal aid. Although to be eligible for legal aid the defendant still has to pass the interests of justice test. However, the defendant must be advised about the risks of a Recovery of Defence Costs Order (RDCO) should he be convicted.

Disadvantages of being tried in the Crown Court:

  • The Magistrates would deal with things more quickly.
  • The Magistrates is less formal and therefore less stressful.
  • If the defendant is convicted he will be ordered to pay prosecution costs which are higher in the Crown Court. In addition, he may be ordered to pay something towards his defence costs. Such defence costs will not be ordered in the Magistrates Court.
  • The Magistrates have lower sentencing powers (maximum of 6 months custody unless sentencing for 2 or more either way offences in which case the overall maximum is extended to 12 months).
  • The defence are not obliged to serve a Defence Statement in the Magistrates’ Court (s6 Criminal Procedure and Investigations Act 1996).

Application for Bail

Q. Who has a right to bail under S4 Bail Act 1976?

Under s4 there is a presumption that bail should be granted to all defendants up until they are convicted – unless there are grounds for refusing bail.

Q. What are the 3 most common grounds for refusing bail?

The grounds for refusing bail are found in Schedule 1 Part 1 of the Bail Act. The 3 most common grounds for refusing bail are:

  • That the defendant will fail to surrender to custody
  • That the defendant will commit further offences whilst on bail
  • That the defendant will interfere with witnesses or with the course of justice

Q.What factors will be taken into consideration when deciding whether one or more of the grounds exist(s) for refusing bail?

Schedule 1 Part 1 Paragraph 9 sets out the factors to be taken into account by the court when considering if a ground exists for refusing bail. These are:

  • The nature and seriousness of the offence and probable sentence.
  • The defendant’s character, past history, associations and community ties.
  • The defendant’s previous bail record.
  • The strength of the evidence.
  • Any other relevant matter.

Q. If bail is refused at the first hearing can further applications be made, when and to whom?

If the defendant is remanded in custody at the first hearing he will be brought back before the court within 8 days. You can then make a further fully argued application for bail. If bail is refused again then the Magistrates will not hear a further bail application unless there is some change in the circumstances of the defendant. However, the Magistrates Court will issue a “certificate of full argument”. This will enable you to make an application to a Crown Court judge in chambers.

Thursday 14 February 2008

What constitutes a fair Interview?

The police must not abuse their position of trust by conducting an interview in an “oppressive” manner (Code C para 11.3).
Oppression is partially defined by s76(8) PACE 1984 to mean torture, inhuman or degrading treatment and the use or threat of violence. And under s76 (2) (a) can be excluded.

Inducement to confess: Code C para 11.5 makes it clear no interviewer shall indicate an action the police will take if the person makes a statement or refuses to do either.

What are the risks associated with remaining silent?
As suspect has a right to silence and can not be compelled to answer questions. However if he is charged and then advances a defence at trial, there is a danger the court may draw an adverse inference against his silence under s34 CJPOA 1994. As well as the suspect failing to account for objects found on his person (s36 CJPOA) or failing to account for his presence at a particular place (s37 CJPOA).

Unlawfully obtained evidence: in a ‘questionable’ manner (including: confessions) are at a courts discretion to exclude both at common law and under s78 PACE 1984. Common law: provided the evidence is relevant and reliable its admission is not generally regarded as prejudicing the defendant’s right to a fair trial.
S18 allows the court the power to exclude evidence where it would have an adverse effect ion the fairness of proceedings.

Confession Evidence: Where a suspect makes a statement of an incriminating nature in interview, the interview is said to constitute a confession. S82 (1) PACE 1984 defines a confession.
Due to the pressure of an interview it’s possible for a suspect to confess for reasons other than the truth. For this reason the law makes specific provisions for the admissibility of confession evidence. The main provision is contained in s76 PACE and furthermore the admissibility of a confession can also be challenged under s78 PACE if its admission would have an adverse effect on the fairness of proceedings.

Wednesday 13 February 2008

Stop and Search before Arrest

A person may be stopped and searched in a public place or in a place to which the public has access where

  1. The officer reasonably suspects the person is in possession of
  2. Stolen articles or
  3. Prohibited articles

Searching the suspect after arrest: with the suspects consent or under s32 PACE where the officer:

  • Has reasonable grounds for believing the suspect may present a danger to himself or others, or
  • Has concealed anything on him he might use to escape from custody.
  • Has concealed on him evidence which might be related to an offence.

Searching of Premises after Arrest

  • Search with the suspects consent.
  • Search with a warrant in connection with an indictable offence s8 PACE 1984.
  • Search the premises at which the suspect is arrested s32 PACE 1984.
  • Search premises owned/controlled by the suspect, s18 PACE 1984.
  • Preserved powers of entry e.g. s23 Misuse of Drugs Act 1971.

Police Officer Arrest Without a Warrant

S24 PACE 1984 where a police officer has reasonable grounds for suspecting that the person:

  • Is about to commit an offence or
  • Is committing an offence or
  • Has committed an offence and
  • It is necessary to arrest the individual for any of the following reasons (s24 (5)):
    • To enable the person name to be ascertained or has reasonable grounds for doubting the name given by the person.
    • To enable the persons address to be ascertained.
    • To prevent the person in question from causing injury to himself or another, causing loss or damage to property, committing an offence against public decency.
  • To protect a child or vulnerable person from the person or
  • To allow the prompt and effective investigation of the offence of the conduct of the person.
  • To prevent the prosecution from being hindered by the disappearance of the person in question.

Checklist for a lawful Arrest

  • There must be legal/factual grounds for the arrest (s24 PACE 1984).
  • The person must be cautioned: “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".
  • The person must be informed of the reason for his arrest.
  • The person should be taken to a designated police station as soon as is reasonable practicable.

Hearsay Evidence (Part 2)

Hearsay is any statement made on an earlier out-of-court occasion which is being adduced in court to prove the truth of facts asserted in that earlier out of court statement.

S9 CJA 1967 is the exception to the rule of hearsay. S9 permits a witness written statement to be read to the court without the witness attending trial where:

  • The statement is signed by the maker; and
  • Contains a declaration in specified words as to the statement of truth.
  • The statement has been served on the opposing party
  • Within 7 days the opposing party has not objected to the statement being submitted as hearsay.

If however objection is taken the court has no power to over-rule. Therefore the statement is usually agreed upon by the opposing side as there will be no opportunity to cross-examine.

S114 CJA 2003 provides ‘a statement not made in oral evidence in proceedings is admissible as evidence of any matter stated, if it comes within one of the four exceptions laid out in s114 (1)(a)-(d).

The Unavailable witness (s116) is admissible where:

  • The person could have given oral evidence if h attended court.
  • The person who made the statement is identified to the courts satisfaction.
  • The person making the statement had the requisite capability.

S116 CJA 2003 permits a statement to be admitted where the witness is unable to attend court because:

  • The witness is dead/unfit due to bodily or mental condition (s116 (2)(a) and (b)).
  • Witness is outside the UK and not reasonably practical for him to attend (s116 (2)(c)).
  • Witness can not be found (s116(2) (d)).
That through fear the witness does not give evidence. Under s116 it is immaterial if the hearsay statement is made orally or written. Once the conditions have been met the evidence is admitted.

Tuesday 12 February 2008

Part 36 Offers

A Part 36 Offer is an attempt to set out terms which will bring the litigation to a conclusion without going to court. An offer to settle the action is made with provision for payment of costs.

You generally have 21 days after the offer was made in which to give notification of acceptance. You do not need the courts consent to accept unless the offer was made 21 days before the start of trial. Accepting a Part 36 offer after the 21 days will result in the client suffering unfavourable costs consequences.

Requirements of a Part 36 Offer

  • Be in writing
  • State, it’s intended to have the consequences of Part 36.
  • Specify a period of no less than 21 days within to accept and the Defendant will be liable for the Claimants costs (rule 36.10).
  • State if it relates to whole or part of the claim.
  • State does it take into account any counterclaim.

You can use form N242A to make the offer. However once court proceedings have started this form must be used in making an offer.

Consequences of Acceptance/Refusal of Part 36

Depends on the outcome of the litigation.

  • Upon acceptance (prior to proceedings at court) the parties have a binding settlement upon which either party can rely.
  • If proceedings have been commenced and an offer is made, the sum must be paid within 14 days unless the parties agree otherwise in writing, failing which the claimant can enter judgement for unpaid amount.
  • If a claim is not accepted, and the Claimant goes on to do better than the proposal put forward in the Offer the Defendants may be penalised by order of the Court.
  • The Claimant loses her case; the general principle is that the loser will pay the winners costs. Thus the claimant will pay the defendants reasonable costs as well as covering her own.
  • Claimant wins but does not obtain judgement as advantageous as offer: The loser pays the winners costs.
  • Claimant wins and obtains judgement greater than offer (CPR 36.14): The loser pays the winners costs, the defendant will pay interest on any sum awarded at a rate not exceeding 10% above basic rate for some/all of the period. The defendant pays the claimants costs on the indemnity basis from the date of expiry of the Relevant Period.

Practical Considerations

The earlier a Part 36 offer is made, the greater the financial consequences. Clearly the spirit of the Overriding Objective should be considered. Placing such pressure upon the defendant should save expense, assist a more expeditious conclusion and above all protect the client's interests on the question of costs. However, the quantification of the damages must be accurate and the timing of the offer correct. Or even put pressure on the defendant to make the Part 36 offer

Monday 4 February 2008

Criminal Litigation: Evidence (Part 1)

Both the law governing the use of corroborative or supporting evidence and the application of the ‘Turnbull Guidelines’ in cases including disputed evidence of eye witness identification, ensure that the court reaches its verdict on the basis of ‘reliable’ evidence.

Corroborative evidence is evidence which supports or confirms other evidence in the case. Evidence that needs to be corroborated is generally considered unreliable.

Where witness evidence is questionable in some respect, a corroboration warning might e called for. This alerts the jury/magistrates of the dangers of relying solely on the evidence of that particular witness and the need for evidence supporting what the witness said.

Encountered in two situations:

  • Corroborative evidence required as a matter of law: there are few examples e.g. Perjury (s13 Perjury Act 1911), treason (s1 Treason Act 1795), Speeding (s89 (2) Road Traffic Regulation Act 1984).
  • A corroborative warning is entirely discretionary and will depend on the facts and circumstances (R v Makanjuola).

The requirements for corroborative evidence are laid out in R v Baskerville (1916), which states:

  1. The evidence should be admissible in its own right.
  2. It must be independent of the evidence to be corroborated.
  3. It must implicate the accused in a material way with the crime charged.

The Turnbull Guidelines are important in trial where the defendant claims to be the victim of mistaken identity. Disputed evidence of eye-witness identification is treated with caution in order to avoid a miscarriage of justice.

The guidelines require:

  1. The judge to make a qualitative assessment of the evidence of identification.
  2. If the evidence is poor and unsupported he must direct an acquittal.
  3. If the evidence is poor but supported or the evidence of identification is good the judge can leave it to the jury but must stress the need for caution.
  4. Where the evidence is poor but supported the judge must point out the evidence that is capable of providing the support.

The judge must explain why there is a special need for caution associated with such evidence. He should invite the jury to consider the circumstances in which the identification of the defendant was made and point out any weaknesses i.e. failure to make a positive Id, breach of code D or inconsistencies between witnesses.

Failure to give a Turnbull Warning will provide the defendant with grounds for appeal.

Opinion Evidence in criminal proceedings is inadmissible with two exceptions:

  1. Facts personally perceived by the witness. The witness giving evidence of opinion which he has personal knowledge and experience that does not require expertise or training.
  2. Expert witnesses may give his opinion on an issue that goes beyond the ordinary competence of the court.

Duties of an expert are set out in the Criminal Procedure Rules Part 33:

  • An expert must give unbiased opinion on matters.
  • This duty overrides any obligation to the person from whom he receives instructions or is paid.
  • The duty includes an obligation to inform all parties & the court of his opinion if it changes from the report.

Procedure for admitting expert evidence are contain in s81 PACE 1984 and Part 24 and 33 Crim PR.

Where either party proposes to rely on expert evidence it must provide the other party with a written statement of any findings or opinion including any test, calculation or procedure used to base his opinion.

If the defendant obtains an unfavourable report, the defence are under no obligation to disclose it as it is protected by legal professional privilege.