Part A Criminal Process Exam

• The Criminal Process


  1. The decision to charge a suspect with a criminal offence

  2. Funding a criminal case (including "Legal Aid")

  3. The Allocation procedure for 'either way' offences

  4. Sentencing a convicted person

  
• Decision to charge


  Custody officer also decides when to charge a person, this can be in conjunction with the crown prosecution service. If it is a more serious offence then often the crown prosecution service will be referred.
• When to detain?


  1. If there is sufficient evidence to charge, then the suspect must be charged or released: s.37(7) PACE 1984

  2. If there is not sufficient evidence to charge, then the person must be released unless the custody officer has reasonable grounds to believe that his detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him: s.37(2)PACE 1984
• Crown Prosecution Service (CPS) involvement at charging stage


  To advise on whether to charge and the level of charge. This can cause significant delays.
• Questions relating to the offence cannot normally be put once the suspect has been charged (PACE 1984, Code C, 16.5)
• Suspect must be cautioned at charge
• Inference under s.34 CJ&POA 1994


  Can arise from a failure to put forward defence facts when charged. A written statement tendered at charge following a no comment interview may avoid s.34 inferences by putting in defence facts but avoiding any questioning.
• CPS apply the "full code" test


  • Evidential test - is there sufficient evidence for a realistic prospect of conviction?
  • Public interest test - is prosecution in the public interest?
• Alternatives to charge


  • No further action (NFA)
  • The informal warning
  • The "Formal" or "Police" Caution
  • Conditional Caution
  • Penalty Notice for Disorder (PND)
  • Community Resolution
  • Restorative Justice
• Getting the accused to the court

  1. The most common way is for the police to charge the suspect at the police station (usually) on advice from the CPS

  2. Time limit for summary only offences - charge ("information") must be laid within 6 months of date of commission of offence: s.127 Magistrates' Courts Act 1980

  3. No time limit on prosecution for either way or indictable only offences
• Funding


  1. Funding application usually applied for in advance of the hearing

  2. Allocation determination (for either way offences)

  3. Adjournment and setting date for next hearing

  4. Disclosure issues - there needs to be exchange of information between the parties
• Public Funding


  • Administered by the Legal Aid Agency (LAA)
  • Provided for by Article 6(3) ECHR which states that defendants who do not have sufficient means to pay for legal assistance should receive this free from charge when in the interests of justice
  • 3 types: Police Station Advice and Assistance, Advice and Assistance (pre charge), Representation Order (so called "Legal Aid")
• Merits test for Representation Order


  Based on the interests of justice, looking at whether representing someone who can't afford their own legal representation would be in the interests of justice
• Means test for Representation Order


  Determines if a client qualifies for legal aid to cover some or all of their defence costs, taking into account income, deducting tax, national insurance, housing costs, childcare costs and an adjusted annual living allowance
• For Crown Court trials, applicants with a household disposable income of £37,500 or more are ineligible for legal aid
• Passporting


  Clients will automatically pass the means test if they are under 18, in receipt of certain benefits, or have already passed the Interests of Justice test for Magistrates' Court trials
• Allocation


  1. Prosecution outlines facts of the case and defendant's previous convictions, makes representations regarding venue

  2. Defence outlines their case and makes representations regarding venue

  3. Magistrates consider whether their sentencing powers for the offence are adequate with reference to relevant allocation / sentencing guidelines

  4. Magistrates decide whether the case is suitable for summary trial or should be sent to Crown Court

  
• Magistrates' maximum sentencing powers

  6 months for a single either way offence (max 12 months for two or more either way offences)
• If magistrates determine the case is unsuitable for summary trial, the case is sent to Crown Court under s.51 Crime and Disorder Act 1998
• If magistrates determine the case to be suitable for summary trial, the defendant has a right to elect trial by jury
• Advantages of summary trial

  • Quicker
  • Cheaper
  • Less stressful/less formal
  • Fewer press/less publicity
  • Limited sentencing powers
• Disadvantages of summary trial


  • Magistrates may become 'case hardened'
  • Higher conviction rates
  • Magistrates are lay people with no specific legal knowledge
  • Less time to prepare defence case
  • No effective voir dire procedure for evidence
  • Can commit to Crown for sentence
• Advantages of trial on indictment

  • Higher acquittal rates
  • Juries less 'case hardened'
  • Voir dire procedures
  • Expert judge gives reasoned direction on law
  • Longer time for defence to prepare
• Disadvantages of trial on indictment


  • Slower / more stressful / more formal
  • More expensive
  • Duty of defence disclosure
  • Higher powers of punishment
  • More press / publicity
• Sentencing Act 2020


  • Created a "Sentencing Code" consolidating existing sentencing provisions
  • Applies to anyone convicted of an offence after 1st December 2020
• Purposes of sentencing


  • Punishment of offenders
  • Reduction of crime (including deterrence)
  • Reform and rehabilitation of offenders
  • Protection of the public
  • Making of reparation by offenders to persons affected by their offences
• Examples of sentencing purposes


  • Punishment - custody, fines
  • Reduction of crime - deterrence
  • Reform/rehabilitation - community punishment
  • Protection of the public - extended sentences, Sexual Harm Prevention Orders
  • Reparation - compensation, meeting with victims
• Crown Court has unlimited sentencing powers
• Statutory aims of sentencing


  • Punishment
  • Reduction of crime
  • Reform/rehabilitation
  • Protection of the public
  • Reparation by offenders to persons affected by their offences
• Any sentence passed by a criminal court in England and Wales must satisfy at least one of the statutory aims of sentencing
• Punishment methods


  • Custody
  • Fines
• Reduction of crime


  Including deterrence
• Reform/rehabilitation


  Consider the role of community punishment (Community Orders). May involve meeting between victim and offender
• Protection of the public


  Extended sentences for specified violent or sexual offences; Sexual Harm Prevention Orders
• Reparation


  Compensation, Meeting with victims
• Courts' powers


  • Crown Court - up to maximum statutory or common law sentence and unlimited fines
  • Magistrates' Court - Max 6 months custody for "either way" offences, Unlimited fines for most offences
• Fines


  Normally income based so the more you have the more you pay, but certain offences will have a cap
• Seriousness of offence


  Determined by offender's culpability and the harm caused, intended or foreseeably caused
• Statutory aggravating factors


  • Offence committed whilst on bail
  • Previous convictions
  • Hostility (racial, religious, disability, sexual orientation, transgender)
• Reduction in sentence for guilty plea


  Max one third for plea at earliest opportunity, one quarter after first stage, one tenth on first day of trial