Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
Civil law is concerned with the relationship between natural and/or legal persons within a community’s jurisdiction. This means that civil law governs obligations that arise as a result of the existing relationship between two parties. These relationships arise either voluntarily, through contract, or by operation of the common law or statute in the law of tort.
Civil court procedures are called claims or actions and are predominantly commenced by the aggrieved claimant who seeks compensation for loss or damage suffered due to the negligence of the other party, the defendant. This negligence constitutes a breach of the obligation that occurs either by virtue of an act or omission. The onus of establishing that damages are payable rests with the claimant and is to be proven to a standard of ‘balance of probabilities’. The purpose of the awarding of damages is restitution, which means that the claimant is to be recompensed to a point that places them back into the position that they would have been in had the defendant not been negligent. Civil law is a creature of the Roman Law.
Criminal law, on the other hand, is concerned with the relationship between individuals and the community itself. This means that criminal law governs the regulation of society by specifying prohibited acts and omissions in the common law and statute.
The Criminal Court procedure is a criminal prosecution that is raised by the Crown Prosecution Service, who are civil servants of the State. Unlike for civil procedures, the purpose of the criminal law is to punish the defendant, and, depending on the level of the crime, this is done by either a fine, imprisonment or a community service order. In accordance with Article 6(2) of the European Convention of Human Rights and Fundamental Freedoms, there is a presumption of innocence until proven guilty. This therefore means that the onus of proving that the defendant is guilty rests with the Crown Prosecution and the standard of proof is the far higher ‘beyond all reasonable doubt’ standard. Within establishing at least a prima facie case, which is the point where the evidence presented will give rise to entitlement for a jury to find the defendant guilty, there will be an acquittal due to there being ‘no case to answer.’
According to Dine and Gobert, there are two ways of classifying a crime. The first is to identify the conceptual and generic components of a crime. This objective approach is then complimented by the subjective analysis of individual crimes and identifying its constituent elements. Both methods are to be utilised together in order to classify crimes effectively.
The former approach was adopted by Glanville Williams, who defined the generic crime as:
‘an act that is capable of being followed by criminal proceedings.’
This definition does however miss the point entirely, whereby there is no mention in this definition of the identification of the act that is capable of constituting a crime. Therefore, the proper way of conceptualising the crime is to identify the motivations that provide insight for society to render the act or omission illegal. This entails the presence of a moral stance that society has adopted. Acts that are controversial on this point will question the relevance of the criminality over morals that are out of date or misguided. John Stuart Mill writes in ‘On Liberty’ of the notion of victimless crimes, whereby acts such as the possession of illegal narcotics and, prior to 1969,the prohibition of homosexual acts are products of a paternal society that affronts the liberty of individuals.
For whatever reason, once the need for illegality is established it isthe combination of the existence of a law and the attachment ofsanction that will classify the act as crime.
There are three classifications of criminal offence. The first isthe summary offence and are the least serious of crimes. An examplewould be driving without insurance in accordance with the Road TrafficAct 1988. The second classification is that of offences that aretriable on indictment alone. These are the most serious crimes andwould involve theft or murder. The third category is that of offencesthat are triable either way and would include theft. These threeclassifications are triable in different courts. Summary offences aredealt with in the magistrates’ court and indictable offences are heardin the Crown Court. The nature of the way in which an either way crimewas committed will determine whether it is summary or triable onindictment.
As well as classifying the crime in terms of its seriousness and thecourt for which it is triable, another method of identifying how acrime is classified is to look to the relevant statute and determinefrom the wording whether it is triable summarily, on indictment orboth. For either way crimes, two sets of penalties are often specified.
A summary motoring offence By virtue of the fact that this is not aserious offence and is most likely a strict liability, regulatoryoffence, this summary driving offence will be heard by the MagistratesCourt.
The offence of theft
We would have to look to the seriousness of the actual offencecommitted in order to ascertain how the offence was committed as thisis an either-way crime. If this was, for example, an internationalfraud scam involving millions of pounds sterling, the crime would betriable on indictment and would be heard in the Crown Court. If on theother hand, the theft was that of a mere pounds, this would constitutea summary offence that is triable in the Magistrates Court.
The offence of murder
This crime is extremely serious and is therefore triable on indictmentonly. The trial will therefore be heard in the Crown Court at firstinstance.
There are two types of magistrate. The first is the lay magistratewho is not legally trained but will hear cases on a panel of three andwill be given legal advice by a lawyer. The second is theprofessionally trained judge who has the power to hear a case on hisown as opposed to being on a panel of three.
The main limitation on powers of the magistrate is that of the extent of sentence that they are allowed to pass.
The justice clerk is the stated qualified lawyer whose role is to givelegal advice to the panel of three lay magistrates during the trialproceedings.
The Crown Court
Regardless of whether a defendant pleads guilty to an offence or not, aright exists to appeal to the Crown Court. From the Magistrates Court,this would constitute an appeal against conviction and is a re-analysisof the facts as opposed to the law. Unless the defendant pleadedguilty, there is generally a re-hearing of evidence before the judgeand between two and four magistrates. The proceedings are witnessed butthere is no jury.
The High Court An offender may make an appeal to the High Court ifthere is an assertion that the magistrates erred, not on the facts, buton a point of law. The appeal is generally heard by two or more judgestogether and this would constitute a Divisional Court of the High Courtknown as the Queen’s Bench Division. This division ma reverse, amend oraffirm the decision of the Magistrate’s Court or remit the case to themwith instructions to reconsider in light of clarifications of the lawthat have been held as the outcome of the High Court appeal. As theHigh Court appeal is always on a point of law, there is no re-hearingas this is associated with the facts alone.
On appeal against conviction, the Crown Court has the ability to varysentence but can only increase it up to the maximum that is permittedof the Magistrate’s Court. The High Court may reverse, affirm, amend orremit to the Magistrates. In fact, the Court may make any order,concerning the law as it sees fit and is constrained only by precedenceand the sentencing limitations of the High Court in general. The Houseof Lords will hear an appeal where the High Court deems the point oflaw in question to be of general public importance. The powers here areonly in conjunction with precedence but a larger panel of law lordsthan those of the previous leading case will provide the House of Lordsto overturn the old law. The High Court or the House of Lords itselfmust also give leave (permission) before an appeal can be heard by theHouse of Lords. The Constitutional Reform Act 2003 has provided for theCreation of the Supreme Court of England and Wales, which will takeover the judicial role of the House of Lords thereby physicallyseparating the functions of the House of Lords as a legislative andjudicial power, albeit in different departments. This statute is yet tocome into force.
If the defendant cannot afford a lawyer, one will be provided for themand this is a public funded assistance that is provided in accordancewith s 58(1) of PACE 1984.
The Independent Police Complaints Commission
This organisation (IPCC) came into being on 1st April 2004, whichreplaced the Police Complaints Authority (PCA) and forms part of thePolice Reform Act 2002. The aim of the IPCC is to instil a greaternational confidence in the police force. Therefore, the role of theIPCC is the independent investigation, management and supervision ofcompliant investigations . It is stated in the home page to thisorganisation that the workload will not be great in the initial stagesas only very few serious cases are eligible for independentinvestigation and that the large majority of cases will be investigatedby the Professional Standards Departments under the IPCC. Further tothe changes that are to occur, Special Constables and police staff arenow under the jurisdiction of the IPCC and are answerable to them.
The parameters for arrest
In accordance with the Police and Criminal Evidence Act (PACE) 1984, s25(1) states that the constable must have reasonable grounds for thesuspecting that an offence is being committed or attempted by the’relevant person’ and that, in his belief the servicing of a summons isnot practical due to the circumstances of the arrest. The relevantperson is described under PACE, s 25(2) as the individual for whom theconstable has reasonable grounds to suspect the committal or at leastthe attempt of the crime was carried out by them. Further arrestconditions states that the name of the relevant person is unknown andis not readily ascertainable , there are doubts as to their real name ,there is no real evidence of a conclusive address and arrest is deemednecessary by the constable for the purpose of preventing physical harmor injury or damage to property , public decency or obstruction of thehighway.
It is clear that the provisions are very much geared towards the favourof the opinion of the constable. The reasonable belief of committal ofan offence or attempt arose as a result of the identification of astolen vehicle which contained traffic cones. The car is being drivenby Lynn who was recognised as having been arrested on prior charges oftheft of traffic cones and warning signs. These observations are ampleto satisfy the conditions for arrest as set out under s 25(1) PACE1984. Lynn, as the driver, is clearly the relevant person under s 25(2)PACE 1984.
The parameters for the search
Entry and search after arrest are dealt with in s 18 of the PACE, 1984.Again the constable is given the discretion of ascertaining whetherthere are reasonable grounds for entering the premises that areoccupied or controlled by a person under arrest for an arrestableoffence. The reasonable grounds must be that there is suspicion of thepresence of items at the premises that are not subject to legalprivilege and relate the offence at hand or another connected offence .
Here the suspicion was as a result of PC Khan’s knowledge of thesuspect that educated PC Tate into suspecting that the flat wouldcontain more stolen items, which constitutes reasonable grounds.
The parameters for seizure of articles alleged to have been stolen
S 18(2) of PACE 1984 also states that a constable has the permission toseize and retain anything for which the search is conducted under s18(1). This clearly wide police power that is only constrained by thefact that the items seized have to have been evidence of the crime thatis not subject to legal privilege. This is clearly the case for themyriad of cones and signs that were found in the premises.
Who can act as a custody officer, his duties in relation to suspects brought in for questioning.
In accordance with s 36(2) of PACE, 1984, a custody officer is someonewho is appointed by the chief officer of the police for thejurisdiction of the police station or by another officer who has beendelegated the power of appointment by the chief officer himself . Thecustody officer must also be at least of the rank of sergeant but wherehe is absent an officer of any rank may perform the role but this doesnot include any officer who is involved in the investigation of theoffence . This means that PC Tate and PC Khan may not take on this rolewhere Lynn is concerned.
The duties of the custody officer before charge are set out under s 37of the PACE 1984. Where a person is arrested for an offence without awarrant , it is the job of the custody officer to ascertain whether hehas sufficient evidence before him to carry on with a charge . Thisenables the custody officer to detain the suspect in order to ascertainwhether there is enough evidence for the charge. If there is not enoughevidence, the person arrested is then released without bail but if theofficer has reasonable grounds for believing that detention withoutcharge is necessary in order to preserve evidence for the offence forwhich the suspect is under arrest, he may detain the suspect . If theofficer believes that he has enough evidence to charge, he may do soand is only required to take this action subject to his own reasonablebelief of enough evidence .
Rights to take samples of hair, saliva and blood during detention
According to s 58 of the Criminal Justice and Public Order Act 1994,sample taking is split up into two categories, namely intimate andnon-intimate.
An intimate sample consists of blood, semen, fluid, urine, saliva,pubic hair or a non-oral swab. All of the above, excepting urine areonly by law to be taken by a doctor, registered nurse or registeredhealth professional. In addition, such sampling may only ensue if anofficer of at least the rank of inspector authorises it and the suspectconsents. The hair sample, as a non-intimate sample, requires only theconsent of the suspect, Lynn and no doctor needs to be present unlessthe sample is a pubic hair.
Steps that the police must take to allow Lynn access to legaladvice. Implications for a future trial where access to legal advice isdenied.
Access to legal advice is provided under s 58 of PACE. If arrested, aperson in detention may privately consult a solicitor at any time andis entitled to receive this legal advice as soon as is reasonablypracticable after making the initial request or at least within 36hours . Section 58(6) states that a delay is only permitted where theperson arrested is held for a serious arrestable offence and that anofficer of at least the rank of superintendent has authorised it andthe authorisation of delay must be given the weight of havingreasonable grounds , namely that, at the time of the request for legaladvice that exercise of the right would lead to interference with orharm to evidence connected with the serious offence , will lead to thealerting of others involved or will hinder the recovery of propertyobtained due to the offence . S 58(8A) also states that the delay ofproviding legal advice is justified where there is a reasonable groundfor belief that the criminal conduct has benefited the person detainedand that recovery of the property that is the benefit will be hinderedby the provision of legal advice .
Any failure to provide legal advice that does not fall under theheading of PACE 1984 will inevitably result in a breach of Article 6(2)of the European Convention on Fundamental Rights and Freedoms, whichstates that everyone has the right to a fair trial. An unfair trialwould not be possible and would have to be halted immediately.
The time limits on detention of a suspect for questioning.Implications of this nature if Lynn had been arrested on suspicion ofcausing the owner of the stolen car life-threatening injuries when shetook the vehicle.
S 41(1) of PACE sets out the time limits on the period of detentionwithout charge. This stands at 24 hours. Provision for the extension ofthis period is provided for under s 42 where there can be authorisationfor extension of the detention period. This may occur where a policeofficer of the rank of superintendent or above believes that the crimecommitted was a serious arrestable offence and the investigation isbeing carried out expertly and diligently . This extension may be for aperiod of up to 36 hours from the relevant date. The seriousness ofcausing life threatening injuries would in this instance be enough toallow the superintendent to have belief of reasonable grounds thatextension of the detention period is required.
Procedures that the police must adopt for witness identification using video
The PACE code of practice must be adhered to in order to ensurejustice. The latest version of this code dates from the year 1995 andstate the procedures and rules for all aspects of the investigation.The key words within the code are ‘fairness’ and ‘openness’. Withregard to witness identification using video, Code D of the 1995 Codeof Practice which is the identification of suspects by the witnessusing a video under paragraph 3.5 of the Code. This paragraph statesthat Annex A of the Code D is to be applied as the correct procedure.Firstly the responsibility of obtaining the video is the responsibilityof an identification officer . The set of images in the video mustcontain the suspect and at least eight other individuals who resembleone another in terms of, among other things, race, gender, age andheight . The video must also show that the individuals are carrying outthe same sequence of movements . If however this is not practicable,reasons for this must be provided . Everyone in the video is to beidentified by a number , and officers must have their badges concealedshould they appear on the film . Further to this, the suspect lawyer oran appropriate adult must have an opportunity to see the video , andthe suspect is to be made aware of the details of the description thathas identified him .
The procedure for viewing is that only one viewer is permitted at atime and there is also to be no discussion of the contents of the videowith the witness . The witness is required to see the images at leasttwice and will then be asked if they can identify the suspect bystating their number . At no point is the witness to be directed tomake a particular decision .
These images must be kept secure and a record of who has seen it and conduct of the video identification is to be maintained .
When a suspect can be fingerprinted without his consent.
Fingerprints can be collected from anyone over ten years of age withoutconsent and without a court order where any of the followingcircumstances have occurred in accordance with the original PACE lawand s 9 of the Criminal Justice and Police Act 2001 which amends s 61of PACE 1984 the following are applicable:
Where the suspect has been detained after arrest or charged or informedthat they will be prosecuted for a recordable offence and thefingerprints have not already been taken.
Where the fingerprints were taken before but were not of a complete set or were not to a high standard of quality
Where there has been conviction of a recordable offence or caution andthe suspect is detained under the Crime and Disorder Act 1998 for arecordable offence.
Where the suspect receives bail and answers this or where the policeofficer has reasonable belief that the original fingerprints were ofanother individual or where the suspect claims to be someone else.
At first instance the case can only be heard by either the MagistratesCourt or the Crown Court. The former may hear the less serious summaryoffences and the latter may hear the more serious offences that aretriable by indictment. In this current case the charge at hand is thatof burglary which, by virtue of s 9(3) of the Theft Act, is deemed tobe an indictable offence and can therefore only be heard in the CrownCourt. Even if the act of threatening violence is not satisfied as aperpetration of grievous bodily harm, the lesser crime of theft isstated under s 7 of the 1968 Act as being indictable.
As an either way offence, the magistrates have the ability to decidewhich court is more suitable for the offender, which straight awaymeans that there will be an immediate decision as to the maximumpenalty due to restrictions on sentencing powers between themagistrates for summary offences and the Crown Court for indictableoffences.
When deciding whether to go to trial to either the magistrates or theCrown Court, the nature of the offence and the level of seriousnesswill be taken into consideration. This will however only occur wherethe defendant states that they are not guilty or they refuse to plea’plea before venue’. The decision as to which court is the ‘venue’ or’mode of trial’ part of proceedings. Here the magistrates consider theseriousness of the offence, and this is serious as it will haverepercussions on the expected maximum sentence due to the vastdifference in sentencing powers between the two courts. Othercircumstances will be taken into consideration as are seen fit. In thecurrent case the previous convictions would be taken into account indeciding that the lenient sentencing powers of the magistrates willprove to be inadequate for this repeat offender.
As stated above, following the summons to make a first appearance tothe magistrates’ court and this is where the ‘plea before venue’ willtake place and then the ‘mode of trial’ is decided. In accordance withthe Criminal Disorder Act 1998, when dealing with an offence that istriable only by indictment, the first court appearance is at themagistrates’ court and then MUST at this first hearing be sent straightto the Crown Court for trial. Here is where the magistrates will setthe date of the first Crown Court hearing. In the meantime, theprosecution will serve the details of the case against the defendant,which will also include witness statements. It is also possible, wherethe defendant believes that the case against him is weak, to apply tothe Crown Court Judge for the charge to be dismissed. The outcome ofthis rests with the responsibility of the judge. If there is however acase to answer, the case will go to trial.
However, prior to this there will be a plea and directions hearing(PDH) and if the plea is that of not guilty, the proceedings willcontinue to the next stage, which is the trial itself and will be inthe form of trial by judge and jury.
The magistrate’s court trials do not have a jury but will hear thecase as a panel of three lay magistrates who are not legally trained.Legal advice is therefore provided in the form of a Law Clerk who is aqualified solicitor. The other option is for the magistrate to be aDistrict Judge who is actually legally trained. Unlike the laymagistrates, the District Judge will hear the case alone and, in orderto secure a conviction he must be persuaded prima facie beyond allreasonable doubt that the case has been proven in favour of theprosecution.
In contrast, the Crown Court trial is heard by a legally qualifiedjudge and jury. It is the job of the jury and not the judge to decidethe outcome of the case based on the facts. The role of the judge is todirect the jury on the law and here he will inform the jury of therequirement for a prima facie case beyond all reasonable doubt in orderto secure the conviction. Due to the important role of the jury, issuesof admissible evidence will be scrutinised by the judge without thepresence of the jury. At the end of the hearing the judge will directthe jury on the applicable law that must be utilised in determining theoutcome of the case.
How proceedings in the Youth Court differ from those in the Magistrate’s Court for adults.
The Youth Court is a magistrate’s court for young people and isrecognised as such in accordance with s 45 of the Children and YoungPersons Act 1933 (as amended) and the Magistrate Court (Children andYoung Persons) Rules 1992. Parents of offenders under the age of 16 areexpected to attend trial and for offenders that are 16 and 17 yearsold, the requirement for parental attendance can occur under s 34A ofthe 1933 Act. The chid will be explained the charge and its nature insimple terms under r 6 of the 1992 Rules, that are suitable for thechild’s age group. Where the child then enters the plea under r 7 ofthe 1992 Rule, every effort ms made to ensure that the plea isunqualified as was done in the case of R v Blandford Justices ex p G(infant) .
During the trial, where the child is unrepresented the parent isallowed to assist the child in cross-examination. Where clearconfessions are made by the child the court will ask further questionsto ensure that the child is actually making a confession. This is donefor the purpose of clarity and is carried out by an experiencedchairman or legal advisor as was done in the case of Simms v Moore .
Where it is decided by the magistrates that there is a case to answerthe child is told under r 9 of the 1992 Rules that he or she mustaddress the court or give evidence and any that any failure to do sowill result in inferences being drawn from this silence as stated unders 35 of the Criminal Justice and Public Order Act 1994.
Definition of primary disclosure
Which documents must be handed over by the prosecution to the defence?
Primary Disclosure is the obligation to disclose materials to the otherside. In terms of the old law under Part 5 of the Criminal Procedureand Investigations Act 1996 (CPIA), there was a duty to disclose alldocuments that:
“In the prosecutor’s opinion might undermine the case against the accused ”
The new rules, in accordance with s 32 of the Criminal Justice Act2003, have replaced this overly objective stance and there is now anobjective notion of what:
“Might reasonably be considered capable of undermining the case against the accused.”
Further to this, the primary disclosure obligation applies not only to documentation but to material also which:
“Might reasonably be considered capable (of)…assisting the case for the accused.”
The disclosure obligations of the defence
The defence must produce a defence statement to the prosecution inaccordance with s 5(5) of the CIPA 1996. However, further to this, aco-accused or the court may direct that the said co-accused be givenaccess to the defence statement
The defence statement must contain the nature of the offence in generalterms and matters with which the defendant takes issue. There must alsobe a statement of the nature of the defence, including matters of factand points of law that the defence intends to utilise and why. Thiswould also include complaints regarding the admissibility of evidenceand the authority for this. The statement must also include an alibinotice and the date of birth of supporting witnesses. The time limitfor the submission of the defence statement is 14 days after theinitial primary disclosure of the prosecution. Where a defencestatement is presented prior to the commencement of the 14 day period,a further updated statement falls due or an official statement ofunchanged status must be submitted to the prosecution.
How non-sensitive unused material is dealt with during the file preparation process.
The Crown Prosecution Service is duty bound to disclose to the defenceany unused evidence. The CIPA 1996 has created the above mentionedsubjective duty to make this primary disclosure of all previouslyundisclosed material which, in the prosecution’s view, damages the casefor the defence. This same obligation is now objectively assessed asshown above under s 32 of the CJA 2003. Following the release of thedefence statement the prosecution must then make a secondary disclosureof all previously undisclosed material that are reasonably expected toassist the case for the defence. Failure to do this will result in abreach of Article 6(2) of the European Convention on Human Rights andFundamental Freedoms, which provides for the right to a fair trial.
Un-used non-sensitive material is disclosed in the form of a scheduleof unused, non-sensitive material by the prosecutor to the defenceduring the process of secondary disclosure as soon as is reasonablypracticable after the plea of not guilty is entered or within sevendays of a committal taking place under the CIPA 1996. This takes placeat this time in the exchanges of disclosure documents in the filepreparation process as it follows the prosecution’s scrutiny of thedefence statement and allows the prosecution to re-consider anyundisclosed material, which is then assessed objectively using theabove stated test under s 32 of the CJA 2003, which is that theevidence might reasonably be considered capable of assisting the casefor the accused.
Principles of Criminal Liability
The meaning of intention
Intention constitutes the mens rea or mental element of the criminalact that is represented by the intention of the assailant. There areseveral ways of constructing this depending on the requirements forsatisfaction of the crime. In general intention means that thererequires foresight of the consequences as opposed to a direct desirefor the specific outcome . In Moloney intention was constituted byfirst ascertaining whether the crime was a natural consequence of theact of the defendant and also, whether such a consequence was foreseenby the defendant. This was worked in the case of R v Hancock andShankland where Lord Scarman declared that for a crime such as murder,mens rea could not be constituted from mere foresight but that specificintent to kill or inflict serious bodily harm was the only trueconstruction. Further to this, in order to ascertain intention, theprobability of the result occurring has to also be taken intoconsideration. This was all tied together in R v Niedrick where LordLane CJ stated that the greater the probability of an outcome, the morelikely the consequence is foreseen, ergo, the greater the likelihood ofthe intent. This connection of the constituent steps to ascertainintent have been upheld in R v Woolin .
The intention of John Kerr and the meaning of recklessness
It is crucial to understand that the question is asking whetherthere was an intention to endanger the life of Bess Monk. From asubjective point of view, it is clear from the interview that, despiteJohn’s ambiguous answers, he states that the fall down the stairs wasan accident. The determination of intention will be ascertained by theassessment method of recklessness as either subjective or objective.However before delving into this it is important to note thatrecklessness itself is having regard to the consequences of an actwhich the assailant either disregards or is unaware of.
The ‘subjective recklessness’ construction derives from the judgementin R v Cunningham where Byrne J stated that the word ‘maliciously’,which is also found in s 20 of the Offences Against the Person Act 1961includes a foresight of the consequence that occurred or intended f
Related ServicesView all
DMCA / Removal Request
If you are the original writer of this essay and no longer wish to have the essay published on the UK Essays website then please: