Thursday 16 November 2006
PROCEEDING AGAINST THE SUSPECT
At the conclusion of an investigation, the police may:
release the suspect without charge;
offer a caution/conditional caution
release him on bail pending consideration of charge by the Crown Prosecution Service or subject to further investigation;
charge him where the offence is one of those listed below:
The decision to charge a suspect will be taken either by the police or by the CPS depending on the type of offence to be charged.
The police will charge the suspect where the defendant makes an early indication that he will plead guilty in the Magistrates’ Court except:
s20 wounding or grievous bodily harm
s47 abh
violent disorder: s2 POA 1986)
affray: s3 POA 1986;
offences of deception and handling stolen goods
The police will also charge the suspect with the following offences (whether an early plea is made or not):
Bail act offences
s5 POA 1986
Town Police Clauses Act 1847 offences
Vagrancy Act 1824 offences
Street Offences Act 1959
all summary offences punishable on conviction with a term of imprisonment of three months or less
any by-law offence; and
all motoring offences except:
cases involving death
dangerous driving
aggravated vehicle taking
allegations of TWOC unless suitable for an early disposal as a guilty plea in the magistrates’ court.
The CPS will decide the charge in the following offences:
all offences tried on indictment only
any offence triable on indictment due to the seriousness of the offence and/or the defendant’s previous convictions
offences under the Terrorism Act 2000
any other offence linked with terrorist activity
offences under any Official Secrets Acts
any offence involving any racial, religious or homophobic aggravation
any offences under the Sexual Offences Act 2003 committed by or upon any person under the age of 18
NOTE: I do not believe that it is worth trying to learn these lists.
In deciding whether to charge and the appropriate charge, the police or the CPS will apply the evidential and public interest tests under the Code for Crown Prosecutors: (i) there must be sufficient evidence to achieve a realistic prospect of a conviction and (ii) it is in the public interest for the suspect to be charged.
A CONDITIONAL CAUTION is governed by ss23-27 Criminal Justice Act 2003. A conditional caution is available where:
the suspect is 18 or over;
the suspect admits the offence to an authorised person; and
that, in the opinion of the relevant prosecutor, there is sufficient evidence to charge the suspect with the offence.
The police have no discretion to impose a conditional caution, which may only be given by a prosecutor even in those cases where it would have been open for the police to have charged the suspect.
In deciding whether a conditional caution is appropriate, regard should be had to the suspect’s criminal record and the seriousness of the present offence.
The conditional caution will usually be given at the police station but may also be administered at the offender’s home or at any other appropriate location. When the caution is administered, the offender is required to sign a document which contains:
details of the offence;
an admission by him that he committed the offence;
his consent to being given the conditional caution; and
an agreement to comply with the conditions attached to the caution.
The conditions attached to the caution must be:
proportionate to the offence;
achievable; and
proportionate.
The conditions should also be aimed at the offender’s rehabilitation and/or reparation. The rehabilitative element may require the offender to attend a drug or alcohol rehabilitation course or an anger management course. The reparative element might include repairing or making good any damage caused to property such as cleaning graffiti or simply apologising to the victim.
The time-limit for administering a conditional caution must not be too long, especially in connection with a summary offence where a prosecution would have to be commenced within six months of the commission date, if the offender fails to comply with the conditions of the caution.
If the suspect fails to comply with the conditions of the caution, he is liable to be prosecuted for the original offence. The conditional caution may be cited in any subsequent criminal proceedings.
DRUG TESTING AT THE POLICE STATION
s63B PACE 1984, as amended by s7 Drugs Act 2005, gives the police the power to demand a urine sample from a suspect on arrest or after charge in order to test for the presence of a Class A drug. The power to take a sample arises in connection with certain trigger offences under MDA 1971 and the Theft Act 1968.
In addition, s9 DA 2005 gives the police the power to require a person who has tested positive to undergo an initial assessment to ascertain whether the person has a propensity to misuse a Class A drug and that he would be suitable for treatment. Where the test shows the presence of a Class A drug, the information will be passed onto the court which must take it into account when making a bail decision under BA 1976. A failure to give a sample or to consent to undergo an initial assessment or follow-up treatment constitutes a criminal offence.
The testing procedure is currently being piloted at police stations in a number of police forces, including West Midlands.
We then turned to the courts & their personnel, beginning with the magistrates' court. Magistrates are either:
unpaid justices of the peace with no legal qualifications. Known as lay magistrates. There are approximately 30,000 active lay magistrates in England and Wales; or
District Judges appointed from amongst solicitors and barristers of at least seven years’ standing and paid a fixed salary.
Justices of the peace are appointed by the Lord Chancellor in the name of the Queen - s5 JUSTICES OF THE PEACE ACT 1997. In this the Lord Chancellor is advised by committees of magistrates in the various commission areas.
District Judges, who sit in the busy magistrates' court of London and in most cities and large towns, are appointed by the Queen on the advice of the Lord Chancellor, ss 11,16 JUSTICES OF THE PEACE ACT 1997. There can be up to 60 appointed to sit in the inner London courts and up to 40 can be appointed to sit outside London. Their work is also supplemented by a number of acting District Judges.
LAY MAGISTRATES may be removed from office by:
the Lord Chancellor under s5 JUSTICES OF THE PEACE ACT 1997 in “exceptional circumstances”, e.g. commission of serious crime; or
being placed on the “supplemental list” by the Lord Chancellor, where the magistrate is too infirm to sit or fails to attend court regularly – s7 JUSTICES OF THE PEACE ACT 1997. Where s7 applies, the magistrate retains the status of justice of the peace but may not exercise a judicial function; or
be subject to the compulsory retirement age of 70 and automatically placed on the supplemental list.
STIPENDIARY MAGISTRATES may be removed from office by:
the Lord Chancellor on the grounds of inability or misdemeanour; or
being subject to compulsory retirement at the age of 70, unless the Lord Chancellor gives special authority for them to continue for a limited period of up to two years.
Sitting in front of the lay magistrates is a magistrates’ clerk. Such clerks are appointed from amongst barristers and solicitors of at least five years’ standing or have worked for at least five years as assistants to a magistrates’ clerk. Each clerk is assisted by other court staff many of whom need not be legally qualified although assistants to the magistrates will invariably be legally qualified. The clerk and his staff are responsible for important areas of court administration such as issuing summonses and the collection of fines. Clerks and their assistants also sit in court to advise the Bench on points of law, evidence and procedure.
A justice of the peace is appointed to one of the commission areas in England and Wales and has jurisdiction only in that area. A justice of the peace is normally required to live in or within 10 miles of the commission area for which he acts. Commission areas are further divided into petty sessional divisions, and a Magistrates’ Court is located in each division. On appointment a justice of the peace is allocated to a particular petty sessional division and will normally sit only in the courts for that division.
District Judges are allocated to courts by the Lord Chancellor. Outside London they are also justices of the peace for the commission areas in which they are appointed to work.
Criminal proceedings are initiated by the process of the presentation of an information to a magistrate, alleging that the person named has committed a specified offence (later).
Section 50 CRIME AND DISORDER ACT 1998 provides that a defendant’s first appearance before a Magistrates’ Court may take the form of an administrative hearing where eligibility for legal aid may be made. The system applies to all cases other than where the defendant is charged with an indictable only offence and other related offences. A single magistrate/clerk can conduct the hearing.
Section 50(2) sets out the procedure:
the accused will be asked whether he wants legal aid;
if yes, his eligibility will be determined
if eligible, the necessary arrangements will be made.
It is simply a statutory footing for what was previously common practice.
When trying a case a Magistrates’ Court must be composed of at least two and no more than seven magistrates, it is normally three, although Birmingham magistrates often sit in two’s due to a lack of lay magistrates. A District Judge sits alone, except in a Youth Court, is empowered to sit alone and usually does so. The rules of natural justice means that a magistrate:
should have no direct pecuniary interest in the outcome of any case he is trying; and
he should have no other interest in a case before him which would cause a reasonable man to believe that bias might be present or which would create a real likelihood of bias – R v Altrincham Justices ex parte Pennington [1975] (a case involving the underweighing of carrots!); and
he should act fairly and be seen to act fairly.
A justice of the peace should not take any part in a contested summary trial if in the course of the same proceedings the justice has been informed during an earlier bail application that the accused has one or more previous convictions – s42 MCA 1980. It should be noted that the matter relates only to contested proceedings where the magistrate has earlier presided in the same proceedings and therefore simply because a magistrate has heard a regular offender’s case on an earlier occasion is no bar to the magistrate to continue to hear the matter.
At the outset of a case if it is obvious to a justice that he knows that the defendant has previous convictions which may lead to bias, or suggestion of bias, in the mind of an ordinary member of the public then the magistrate should not continue to hear the matter.
R v Downham Market Justices, ex parte Nudd [1989] – a chairman of the Bench presided over a court which dealt with a case concerning threats by the defendant to his, the chairman’s, wife. Within four weeks the defendant was next before the court charged with a drink-related driving offence. The Divisional Court held that that magistrate should not have adjudicated in the matter. In brief, where circumstances arise in which a fair-minded and reasonable person knowing all the relevant facts would have a suspicion that a fair trial was not possible the Divisional Court would interfere to set aside such an adjudication.
Section 49 and 50 CRIME AND DISORDER ACT 1998 make changes to Magistrates’ Court procedures:
s49(1): a single justice can:
extend bail
impose bail conditions
mark an information as withdrawn
request a PSR following a guilty plea
s49(3): a clerk cannot:
indicate the seriousness of an offence for a PSR
prohibit reporting restrictions
remand in custody for a medical report
The COURTS ACT 1971 created the Crown Court to deal with more serious criminal offences. The Crown Court is now largely governed by the SUPREME COURT ACT 1981. It has the following jurisdiction:
trials of offences triable either way committed for trial at the Crown Court, and indictable offences;
the sentencing of offenders committed for sentence by Magistrates’ Courts;
appeals against conviction by a Magistrates’ Court and/or against sentences imposed by magistrates; and
certain civil matters, largely concerning children, young persons and licensing matters; and
the issue of some search warrants e.g. special procedure material
The following types of judge preside over sittings of the Crown Court:
High Court judges (known as Puisne judges), who hear the most serious cases;
Circuit Judges, who are hill-time judges; and
Recorders and Assistant Recorders, who are part-time judicial officers.
Work is distributed amongst these different types of judge according to the Practice Direction (Crown Court: Allocation of Business) #2 [1998].
In a nutshell:
Class 1 offences – include murder, genocide, or treason under s1 OFFICIAL SECRETS ACT 1911). Just remember them as the former offences where the death penalty could be imposed.
Class 2 offences – include manslaughter, infanticide. child destruction, abortion, rape, sexual intercourse with a girl under 13, incest with a girl under 16, sedition, mutiny, piracy, incitement, attempt or conspiracy to commit any of the above offences)
Class 3 offences – all offences triable only on indictment other than those in Classes 1 and 2.
Class 4 offences – the remainder.
We will continue with this next week.
PROCEEDING AGAINST THE SUSPECT
At the conclusion of an investigation, the police may:
release the suspect without charge;
offer a caution/conditional caution
release him on bail pending consideration of charge by the Crown Prosecution Service or subject to further investigation;
charge him where the offence is one of those listed below:
The decision to charge a suspect will be taken either by the police or by the CPS depending on the type of offence to be charged.
The police will charge the suspect where the defendant makes an early indication that he will plead guilty in the Magistrates’ Court except:
s20 wounding or grievous bodily harm
s47 abh
violent disorder: s2 POA 1986)
affray: s3 POA 1986;
offences of deception and handling stolen goods
The police will also charge the suspect with the following offences (whether an early plea is made or not):
Bail act offences
s5 POA 1986
Town Police Clauses Act 1847 offences
Vagrancy Act 1824 offences
Street Offences Act 1959
all summary offences punishable on conviction with a term of imprisonment of three months or less
any by-law offence; and
all motoring offences except:
cases involving death
dangerous driving
aggravated vehicle taking
allegations of TWOC unless suitable for an early disposal as a guilty plea in the magistrates’ court.
The CPS will decide the charge in the following offences:
all offences tried on indictment only
any offence triable on indictment due to the seriousness of the offence and/or the defendant’s previous convictions
offences under the Terrorism Act 2000
any other offence linked with terrorist activity
offences under any Official Secrets Acts
any offence involving any racial, religious or homophobic aggravation
any offences under the Sexual Offences Act 2003 committed by or upon any person under the age of 18
NOTE: I do not believe that it is worth trying to learn these lists.
In deciding whether to charge and the appropriate charge, the police or the CPS will apply the evidential and public interest tests under the Code for Crown Prosecutors: (i) there must be sufficient evidence to achieve a realistic prospect of a conviction and (ii) it is in the public interest for the suspect to be charged.
A CONDITIONAL CAUTION is governed by ss23-27 Criminal Justice Act 2003. A conditional caution is available where:
the suspect is 18 or over;
the suspect admits the offence to an authorised person; and
that, in the opinion of the relevant prosecutor, there is sufficient evidence to charge the suspect with the offence.
The police have no discretion to impose a conditional caution, which may only be given by a prosecutor even in those cases where it would have been open for the police to have charged the suspect.
In deciding whether a conditional caution is appropriate, regard should be had to the suspect’s criminal record and the seriousness of the present offence.
The conditional caution will usually be given at the police station but may also be administered at the offender’s home or at any other appropriate location. When the caution is administered, the offender is required to sign a document which contains:
details of the offence;
an admission by him that he committed the offence;
his consent to being given the conditional caution; and
an agreement to comply with the conditions attached to the caution.
The conditions attached to the caution must be:
proportionate to the offence;
achievable; and
proportionate.
The conditions should also be aimed at the offender’s rehabilitation and/or reparation. The rehabilitative element may require the offender to attend a drug or alcohol rehabilitation course or an anger management course. The reparative element might include repairing or making good any damage caused to property such as cleaning graffiti or simply apologising to the victim.
The time-limit for administering a conditional caution must not be too long, especially in connection with a summary offence where a prosecution would have to be commenced within six months of the commission date, if the offender fails to comply with the conditions of the caution.
If the suspect fails to comply with the conditions of the caution, he is liable to be prosecuted for the original offence. The conditional caution may be cited in any subsequent criminal proceedings.
DRUG TESTING AT THE POLICE STATION
s63B PACE 1984, as amended by s7 Drugs Act 2005, gives the police the power to demand a urine sample from a suspect on arrest or after charge in order to test for the presence of a Class A drug. The power to take a sample arises in connection with certain trigger offences under MDA 1971 and the Theft Act 1968.
In addition, s9 DA 2005 gives the police the power to require a person who has tested positive to undergo an initial assessment to ascertain whether the person has a propensity to misuse a Class A drug and that he would be suitable for treatment. Where the test shows the presence of a Class A drug, the information will be passed onto the court which must take it into account when making a bail decision under BA 1976. A failure to give a sample or to consent to undergo an initial assessment or follow-up treatment constitutes a criminal offence.
The testing procedure is currently being piloted at police stations in a number of police forces, including West Midlands.
We then turned to the courts & their personnel, beginning with the magistrates' court. Magistrates are either:
unpaid justices of the peace with no legal qualifications. Known as lay magistrates. There are approximately 30,000 active lay magistrates in England and Wales; or
District Judges appointed from amongst solicitors and barristers of at least seven years’ standing and paid a fixed salary.
Justices of the peace are appointed by the Lord Chancellor in the name of the Queen - s5 JUSTICES OF THE PEACE ACT 1997. In this the Lord Chancellor is advised by committees of magistrates in the various commission areas.
District Judges, who sit in the busy magistrates' court of London and in most cities and large towns, are appointed by the Queen on the advice of the Lord Chancellor, ss 11,16 JUSTICES OF THE PEACE ACT 1997. There can be up to 60 appointed to sit in the inner London courts and up to 40 can be appointed to sit outside London. Their work is also supplemented by a number of acting District Judges.
LAY MAGISTRATES may be removed from office by:
the Lord Chancellor under s5 JUSTICES OF THE PEACE ACT 1997 in “exceptional circumstances”, e.g. commission of serious crime; or
being placed on the “supplemental list” by the Lord Chancellor, where the magistrate is too infirm to sit or fails to attend court regularly – s7 JUSTICES OF THE PEACE ACT 1997. Where s7 applies, the magistrate retains the status of justice of the peace but may not exercise a judicial function; or
be subject to the compulsory retirement age of 70 and automatically placed on the supplemental list.
STIPENDIARY MAGISTRATES may be removed from office by:
the Lord Chancellor on the grounds of inability or misdemeanour; or
being subject to compulsory retirement at the age of 70, unless the Lord Chancellor gives special authority for them to continue for a limited period of up to two years.
Sitting in front of the lay magistrates is a magistrates’ clerk. Such clerks are appointed from amongst barristers and solicitors of at least five years’ standing or have worked for at least five years as assistants to a magistrates’ clerk. Each clerk is assisted by other court staff many of whom need not be legally qualified although assistants to the magistrates will invariably be legally qualified. The clerk and his staff are responsible for important areas of court administration such as issuing summonses and the collection of fines. Clerks and their assistants also sit in court to advise the Bench on points of law, evidence and procedure.
A justice of the peace is appointed to one of the commission areas in England and Wales and has jurisdiction only in that area. A justice of the peace is normally required to live in or within 10 miles of the commission area for which he acts. Commission areas are further divided into petty sessional divisions, and a Magistrates’ Court is located in each division. On appointment a justice of the peace is allocated to a particular petty sessional division and will normally sit only in the courts for that division.
District Judges are allocated to courts by the Lord Chancellor. Outside London they are also justices of the peace for the commission areas in which they are appointed to work.
Criminal proceedings are initiated by the process of the presentation of an information to a magistrate, alleging that the person named has committed a specified offence (later).
Section 50 CRIME AND DISORDER ACT 1998 provides that a defendant’s first appearance before a Magistrates’ Court may take the form of an administrative hearing where eligibility for legal aid may be made. The system applies to all cases other than where the defendant is charged with an indictable only offence and other related offences. A single magistrate/clerk can conduct the hearing.
Section 50(2) sets out the procedure:
the accused will be asked whether he wants legal aid;
if yes, his eligibility will be determined
if eligible, the necessary arrangements will be made.
It is simply a statutory footing for what was previously common practice.
When trying a case a Magistrates’ Court must be composed of at least two and no more than seven magistrates, it is normally three, although Birmingham magistrates often sit in two’s due to a lack of lay magistrates. A District Judge sits alone, except in a Youth Court, is empowered to sit alone and usually does so. The rules of natural justice means that a magistrate:
should have no direct pecuniary interest in the outcome of any case he is trying; and
he should have no other interest in a case before him which would cause a reasonable man to believe that bias might be present or which would create a real likelihood of bias – R v Altrincham Justices ex parte Pennington [1975] (a case involving the underweighing of carrots!); and
he should act fairly and be seen to act fairly.
A justice of the peace should not take any part in a contested summary trial if in the course of the same proceedings the justice has been informed during an earlier bail application that the accused has one or more previous convictions – s42 MCA 1980. It should be noted that the matter relates only to contested proceedings where the magistrate has earlier presided in the same proceedings and therefore simply because a magistrate has heard a regular offender’s case on an earlier occasion is no bar to the magistrate to continue to hear the matter.
At the outset of a case if it is obvious to a justice that he knows that the defendant has previous convictions which may lead to bias, or suggestion of bias, in the mind of an ordinary member of the public then the magistrate should not continue to hear the matter.
R v Downham Market Justices, ex parte Nudd [1989] – a chairman of the Bench presided over a court which dealt with a case concerning threats by the defendant to his, the chairman’s, wife. Within four weeks the defendant was next before the court charged with a drink-related driving offence. The Divisional Court held that that magistrate should not have adjudicated in the matter. In brief, where circumstances arise in which a fair-minded and reasonable person knowing all the relevant facts would have a suspicion that a fair trial was not possible the Divisional Court would interfere to set aside such an adjudication.
Section 49 and 50 CRIME AND DISORDER ACT 1998 make changes to Magistrates’ Court procedures:
s49(1): a single justice can:
extend bail
impose bail conditions
mark an information as withdrawn
request a PSR following a guilty plea
s49(3): a clerk cannot:
indicate the seriousness of an offence for a PSR
prohibit reporting restrictions
remand in custody for a medical report
The COURTS ACT 1971 created the Crown Court to deal with more serious criminal offences. The Crown Court is now largely governed by the SUPREME COURT ACT 1981. It has the following jurisdiction:
trials of offences triable either way committed for trial at the Crown Court, and indictable offences;
the sentencing of offenders committed for sentence by Magistrates’ Courts;
appeals against conviction by a Magistrates’ Court and/or against sentences imposed by magistrates; and
certain civil matters, largely concerning children, young persons and licensing matters; and
the issue of some search warrants e.g. special procedure material
The following types of judge preside over sittings of the Crown Court:
High Court judges (known as Puisne judges), who hear the most serious cases;
Circuit Judges, who are hill-time judges; and
Recorders and Assistant Recorders, who are part-time judicial officers.
Work is distributed amongst these different types of judge according to the Practice Direction (Crown Court: Allocation of Business) #2 [1998].
In a nutshell:
Class 1 offences – include murder, genocide, or treason under s1 OFFICIAL SECRETS ACT 1911). Just remember them as the former offences where the death penalty could be imposed.
Class 2 offences – include manslaughter, infanticide. child destruction, abortion, rape, sexual intercourse with a girl under 13, incest with a girl under 16, sedition, mutiny, piracy, incitement, attempt or conspiracy to commit any of the above offences)
Class 3 offences – all offences triable only on indictment other than those in Classes 1 and 2.
Class 4 offences – the remainder.
We will continue with this next week.
posted by John Robotham at 7:10 AM
0 Comments:
Post a Comment
<< Home