A Level Law

Pre-arrest powers - Stop and Search

• ask questions, but people not obliged to answer (e.g. Rice v Connolly 1966)

• PACE s.1 - stop and search on reasonable suspicion (RS) for stolen property, or prohibited items (i.e. offensive weapons, items intended for use in theft or deception, or criminal damage

• other statutory powers - e.g. Misuse of Drugs Act 1971, s.23

• Reasonable suspicion is defined in Code A of the PACE Codes of Practice

Code A

• “Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind”

• 2.3 Reasonable suspicion can sometimes exist …. stemming from the behaviour of a person. For example, if an officer encounters someone on the street at night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried.

• 2.4 However, reasonable suspicion should normally be linked to accurate and current intelligence or information, such as information describing an article being carried, a suspected offender, or a person who has been seen carrying a type of article known to have been stolen recently from premises in the area.

• 2.6 Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search a person.

Conduct of searches

• officer must give name and station

• must state purpose of search and legal grounds for the search

• must inform person of right to written record

• only remove coat, jacket, gloves in public

(PACE, s.2)

• can use reasonable force (PACE, s.117)

Arrest Arrest begins when a person is told they are under arrest, or when the police officer’s words or actions suggest a person is under arrest ( Murray v Ministry

of Defence 1988)

But is it lawful?

Legal grounds - S24

• Reasonable suspicion• Arrest necessary?

Must follow correct procedure

S28 A person must be told on arrest they are under arrest and the grounds for that arrest

PACE Code C a person must be cautioned on arrest or as soon as practicable

S30 they must be taken to a police station immediately or as soon as is practicable

Arrest S24

Police must havereasonable grounds for

suspecting D

• Has committed• Is committing• Is about to commit

an offence (any offence)

THE ARREST must also be necessary

• Child or vulnerable person needs protecting

• Obstruction of the highway is taking place

• Physical injury to someone (or is likely)

• Loss or damage to property

• Address not given or is unsatisfactory

• Name not given or is unsatisfactory

Castorina v Chief Constable of Surrey [1988] CA

• A company was burgled

• The managing director told the police the documents taken would be useful to someone with a grudge.

• Police arrested a recently dismissed employee, with no previous convictions, who the managing director didn’t suspect

• This was enough to constitute reasonable suspicion

S24

gives an ordinary citizen the power to arrest anyone who they have reasonable grounds for suspecting

• Has committed• Is committing

An offence, BUT ONLY IF an offence WAS BEING

committed, or WAS ACTUALLY COMMITTED (R v Self1992)

R v Self 1992

• Left the shop without paying for a chocolate bar

• Arrested by the store detective

• He was acquitted, the Jury believed him when he said he meant to pay

• That meant there was no theft!

• That made the arrest unlawful, as no crime was being committed

Suspects rights in detention

• Sc 56 PACE - the right to inform someone of suspects detention (can be delayed by up to 36 hrs under the CJPOA 2001 - serious offence)

• Sc 58 – entitlement to see a solicitor which cab be delayed by up to 36 hrs (serious offence)

• Young persons aged 17 or under are entitled to have with them an appropriate adultappropriate adult throughout their questioning (Code C)

Rest breaks, exercise, food and sleep

• All suspects will be entitled to the above at regular intervals if detention is prolonged

A Case in the Magistrates’

Court

Summons or Arrest

ChargePlea before Venue

Plea

Not Guilty - Guilty Not Guilty

Case presented

Witnesses for Defence & Prosecution

and Cross Examined

Magistrates decision

Not Guiltywith reasons

Free to go

Guiltywith reasons

To Crown Court

Guilty

Facts of casepresented by CPS

Mitigation

Additional Information

Reports?

Magistrates sentencewith reasons

NB. Credit must be given for an early guilty plea which will reduce the sentence.

BAILBAILBail is a formal direction that a person is to attend court at a given time on a specific date. There are two types:-

UNCONDITIONAL BAIL: There are no restrictions placed on the individual, however if s/he does not return to court as directed s/he may be fined or imprisoned or both.

CONDITIONAL BAIL: There are restrictions placed on the individual such as residence, curfew, not to contact specified people, not to go to certain places, report to the police etc. If this bail is breached individual is arrested and s/he may not be given bail again.

If an individual does not attend court as directed Magistrates can issue an arrest warrant with or without bail.

• bail applications are dealt with during the Early Administrative Hearing at the magistrates’ court

• Bail Act 1976 – generally a right to bail, no matter how serious the offence• magistrates can only refuse bail where there are substantial grounds to believe the defendant will: not surrender to bail

commit an offence

interfere with witnesses

BAIL

•factors to be considered:

nature and seriousness of the offence

defendant’s past criminal record

defendant’s ties with the community

defendant’s past record of surrendering to bail

• bail can also be refused if necessary for the defendant’s own safety or welfare

• bail can be unconditional or conditions attached, e.g.

report to police

reside at a specified address

abide by a curfew

• bail refused? – defendant can renew application or appeal• bail granted? – prosecution can appeal if offence punishable by at least 5 years imprisonment – Bail (Amendment) Act 1993

• where defendant is charged with a serious offence and has a previous conviction for such an offence, bail only granted in exceptional circumstances –Crime and Disorder Act 1998)

Under S19 Criminal Justice Act 2003 if an alleged offender is 18 or over; and •has tested positive for Class A drugs and •been charged with possession or intent to supply or the offence they’ve been charged with is linked to misuse of drugs Then they will be refused bail unless they agree to drug treatment and testing

Police Bail

• Governed by S30 of PACE 1984 (as amended)• Note that police powers to impose conditions are

very similar, but not identical to court powers to impose conditions.

• Specifically, the police may not impose a condition to reside at a bail hostel, to attend an interview with a legal adviser, nor require the suspect to make him or herself available for inquiries and reports.

Street Bail

• S4 Criminal Justice Act 2003 amended S30 of PACE to enable police officers to grant “street bail” to a person under arrest

• Saves police and the suspect time, instead of the arrested persn being taken to the polcie station, they can be given bail to attend the police station at a later date

• From March 2007 a police officer may attach conditions to street bail (Police and Justice Act 2006 )

• BUT they cannot impose security or surety, or to reside in bail hostel as conditions

What Do Magistrates Deal With? What Do Magistrates Deal With?

• Everyone who commits a crime will appear before a Bench of Magistrates.

• 96% of all cases remain in the Magistrates’ Court.

• Cases are: INDICTABLE – must go to Crown Court; EITHER WAY – may be tried in either court; SUMMARY – must stay in the Magistrates Court

• Some cases automatically go straight to the Crown Court.

• Murder.• Rape.• Most Domestic Burglaries.• Assault/Wounding.• Cases involving large amounts of money.

• Cases involving large amounts of drugs.

AS Level LawMode of Trial

• summary trial before District Judge or bench of three lay magistrates

• indictable offences now ‘sent forthwith’ from magistrates’ court to Crown Court

• either-way offences - magistrates proceed to ‘plea before venue’:

if defendant indicates guilty plea, he loses right to Crown Court trial and magistrates dispose of case summarily (Criminal Procedure and Investigation Act 1996)

AS Level Law

can include committal to Crown Court for sentence if magistrates believe their powers (max. 6 months for single offence and/or max. fine of £5,000) are inadequate

if defendant indicates not guilty plea, magistrates must determine venue, though defendant can elect Crown Court trial

AS Level Law

Magistrates’ Court

Advantages Disadvantages

case resolved quicker less effective legal representation

lower possible sentence

greater chance of conviction

AS Level Law

Crown Court

Advantages Disadvantages better legal representation

delays

greater chance of acquittal

higher possible sentence – judge 3x more likely to impose immediate custodial sentence, and sentence on average 2½x longer than magistrates

time on remand (more privileges) counts as time served

AS Level LawYouth Courts

• defendants aged between 10-17 tried by magistrates sitting as a Youth Court (except most serious offences)• magistrates receive special training and sit as a mixed bench

• hearings less formal and held in private with reporting restrictions

• idea is to keep young offenders away from adult offenders and maximise possibility of reform

AS Level LawCrown Court trial

• guilty plea – judge alone; not guilty plea – judge and jury

• proceedings very formal – order generally as follows:

indictment read Jury sworn in prosecution opening speech

prosecution witnesses

AS Level Law

defence opening speech

defence witnesses

prosecution closing speech

defence closing speech

judge sums up and directs jury

jury retires to reach verdict

What are the Consequences after court ?

• Loss of job• Public shame• Criminal record• Visa and travel restrictions• Higher insurance premiums

The judges “role” in a criminal case

1. To summarise the evidence, but the jury alone must decide the facts

2. To direct the jury on the law

3. To apply the appropriate sentence

The justice dilemma

• Siamese twins Pete and Dave have different personalities but share the same body.

• If Pete commits a serious assault on Ben against the wishes of Dave, how should Pete be punished?

Aims of sentencing

Aims of sentencing

Retribution“Just Deserts”

Deterrence

Reparation

Incapacitation

Rehabilitation

Utilitarian theories

THE PAST (CRIME) THE FUTURE

Aims of sentencing

• Retribution – the offender gets what they deserve to match their crime!

• Deterrence – to instil “fear”

• Incapacitation – make it impossible for them to commit crimes

• Rehabilitation – “curing” the offender

• Reparation – paying back the victim / society

Punishment and Sentencing•The judge determines sentence

•Sentences vary from minimum to maximum limits

•Judges have a lot of discretion (hence controversies over lenient or too harsh sentences)

•The severity of the punishment is a reflection of the seriousness of the crime

•Punishment is meant to:

•Deter , Be just, Reform the offender, Protect the Deter , Be just, Reform the offender, Protect the

publicpublic

Justice and Sentencing

• Does the type of sentence a person gets equate with justice ?

• Should the victims of crime be given a voice?

• Should society be given a voice?

• Is Consistency important with sentencing?

Deciding which sentence to give

•Judges can choose any sentence up to statutory maximum i.e. the tariff

•Judge will look at relevant factors, including previous record, age, mental state, remorse, amount of harm etc

•Judge can decide whether 2 or more offences will run consecutively or concurrently

Court Initial Assessment of Serious

Report on Offender requested

Preparation of the report by probation service, Looks at:-

1) Analysis of the Offence

2) Assessment of the Offender’s Background

3) Personal Details of the offender

4) Offenders Current Situation

5) Risks Identified

6) Report Conclusions with a recommendation about sentence

Judge makes his decision based on the above report

Aggravating and mitigating factors

• S143 – each previous conviction is an aggravating factor, and if committed whilst on bail

• S146 sexual orientation, disability, racially motivated

• S144 reduced sentence for a guilty plea,– early guilty plea 30% reduction

• S156 – pre sentence report must be sought before imposing custody – which will contain a risk assessment of whether the offender is likely to re- offend and poses a risk to the public

The Sentencing Guidelines Council

• http://www.sentencing-guidelines.gov.uk/

• The council is responsible for taking comments from the Sentencing Advisory Panel (a voluntary body) and then issues guidelines to the courts on sentencing

• It was set up in 2000, to ensure greater consistency• It

• Normally it sets a tariff

• Judges are required to consider any appropriate guidelines when sentencing

Levels of punishment

Discharge

•Absolute

•Conditional

fines

Community Order e.g

Custody

http://news.bbc.co.uk/1/hi/england/cambridgeshire/6281001.stm

http://news.bbc.co.uk/1/hi/england/beds/bucks/herts/4399832.stm

Types of Criminal Sanction

•Imprisonment, but note early release

•Suspended sentences

•Absolute and conditional discharges

•Fines – used in ¾ of all offences and 30% of all indictable offences

•Fixed penalty fines introduced in 2001 for persons found drunk and disorderly

Types of Criminal Sanction (2)•A Community Order Community Order

•Can be made up of up to 12 elementsup to 12 elements – tailored to suit the offender

•These can include These can include things like drug treatment and drug treatment and testing, supervision (probation) anger testing, supervision (probation) anger management, unpaid work, reparationmanagement, unpaid work, reparation

•http://www.cjsonline.org/offender/community_sentencing/

See the links on the left on the website above for extra info on each requirement

Types of Criminal Sanction (3)•Drug Treatment Orders

•Curfew Orders which limit offender’s movements between 2- 12 hrs/day for up to 6 months

•Tagging

In the first six months of 2002 an average of 608 tagging orders a month were handed down by the courts, compared with 435 in 2001 and 383 in 2000, according to figures released on Friday (Nov 2002).

Custodial sentences

• Mandatory life sentence (minimum of 14 yrs before eligible for release) – murder only

• Discretionary life sentence (this is down to the judge and sets a sentence to be served before eligible for release)

• Minimum sentences for certain crimes (e.g. third burglary conviction will get a minimum of three years unless there are exceptional circumstances )

• Offenders serve half the sentence before eligible for release if sentence is less than 4 yrs; two thirds the sentence if more than 4 yrs

Custodial sentences

• Must only be given if the offender poses a risk to public safetyrisk to public safety or if the offender already has similar or the same convictions

• Is rarely given for a first offence unless the above applies

• Are meant to protect the publicprotect the public and deterdeter the offender and others from offending

Sentencing in the Crown Court

Sentencing figures (Crown court)

Sentencing figures (Crown court)

Sentencing statistics (Magistrates court)

Sentencing figures (Magistrates court)

FINES

• Low levels of re-offending in offenders given fines

• Evidence suggests people given fines are less likely to re-offend than those given other types of sentences – but is this conclusive evidence that fines act as an effective deterrent – or does it say more about the types of people that are given fines – hardly likely to reoffend anyway???

• there are high rates of non payment – can result in people being imprisoned for non payment of fines, where the original crime was very minor

Community Orders

• Can keep D away from the criminal influence of prison

• Home Office research reports that 90% of those given Community Orders found the practical help and support given useful

• However reconviction rates are disappointing• How effectively are offenders monitored by the

probation service when they are in the community?

• Tagging costs £4,000 a year, prison £24,000 a year

• However tagging does not change attitudes, and may not have any rehabilitative or long term deterrent effect

• Tagging might be abused, instead of being used as an alternative to prison, it may be used as an alternative to lesser sentences such as fines

• http://news.bbc.co.uk/1/hi/uk_politics/6038926.stm

Tagged offenders went on to kill• More than 1,000 violent

crimes, including five killings, have been committed by prisoners released early with electronic tags, it has emerged.

• Home Office figures show tagged offenders have committed one murder and four manslaughters, among other crimes, since the scheme began in 1999.

PRISON• Most certain way of protecting the public• Prison population increased over last 10 years, crime

has fallen• However 60% of male prisoners re-offend within 2 years

of release• Stigma – hard for those who have been to prison to get a

job• Loss of family• Little deterrent effect on so called “impulse crimes”• May have effect on planned crime, but this is dependent

on high detection rates• See prisons in the UK• http://news.bbc.co.uk/1/hi/in_depth/uk/2006/prisons/defa

ult.stm

• The Home Office found that released prisoners were less than half as likely to re-offend if they were helped to find and keep a job. 

• Prisoners themselves cite finding a job, alongside a home and a stable relationship as the three most important factors in preventing them from re-offending.

• The number of prisoners employed in work in prisons in England and Wales in 2003 was 10,000

• The prison population has risen • from 47,000 in 1994 to over 75,000 in 2005, so

the availability of work has effectively declined in real terms.

• HOW DOES A YOUNG PERSON VISIT THEIR MUM IN PRISON?

• First, they would need to find an adult willing to accompany them on the visit. Prison rules say young people must be with an adult - even to see their own mother.

• They would then need to call the prison to book the visit. Unfortunately the booking lines are often poorly staffed and open at inconvenient times, meaning it can take hours - or in some cases days - to get through to the prison.

• Their mother will be imprisoned in one of the 19 woman\'s prisons scattered across the country, meaning they could face a round trip of several hours to visit her.

• Almost 6,000 children have a mother in prison.

• Nearly all of them will have been forced to leave their family home and will now be living with relatives or friends.

• Sadly, around 12 per cent will be put into care, foster homes or are adopted.

• 45% of prisoners lose contact with their family while in prison.

• Prisoners who maintain contact with their family whilst inside are up to six times less likely to re-offend upon release (SEU: Reducing Re-offending by Ex-prisoners 2002)

Deterrent sentences• R v Amos 2002• Patricia Amos, who is 43

and a mother of five, was sentenced to 60 days in prison, Oxfordshire, for not ensuring two of her daughters regularly attended school.

• It is believed to be the first time magistrates have passed such a sentence on a parent whose children are missing school.

• http://news.bbc.co.uk/1/hi/england/1984502.stm

• http://www.howardleague.org/

Criminal Justice Act 2003 introduced new punishments

• Custody plusCustody plus – This is a community sentence but if you break it you go to prison

• Custody minusCustody minus – a short term in prison, followed by a community sentence on release

• Intermittent custody – Intermittent custody – this was an idea that an offender could serve a prison sentence on weekends, allowing them to keep their job and stay with their family in the week – but this proved too expensive and controversial when they tried it out so it has never been introduced

YOUTH PUNISHMENT

Crime and Disorder Act 1998•Replaces repeat cautions for young offenders

•Police must respond to an offence, short of prosecution, by issuing a reprimand or final reprimand or final warningwarning

•Where a reprimand is given, usually for a first offence, any re-offending will lead to a final warningfinal warning

•The offender will be referred to a youth offending youth offending teamteam and required to take rehabilitation

•If a final warning is broken the young offender will be charged

Referral orders

• Used for the majority of young people appearing before the Court for the first time and pleading guilty.

• The Court will decide on the

• Length of the Order - between 3 and 12 months, depending on the seriousness of the offence.

• Young person will have a meeting with a Young Offender Panel which will be held at a local venue.

• parents, guardian or a member of the Local Authority will also be required to attend the panel meeting.

• The Panel is made up of one social worker and two volunteers from the community

• Discuss the offence with the young offender• A “contract” will normally be agreed between the young

offender and the panel, • It may include reparation as the victim will be invited to

attend panel meetings to discuss how the crime affected them, and the contract could include how the offender is to pay them back or compensate them

• It will also include a personal programme of behavior to ensure that the young person avoids re-offending.

• What could be in the personal programme• “First: it must contain something which will help you to

stay out of trouble: what the Y.O.T. should do to enable you to get on with your life and enjoy life without offending. This could be to do with alcohol or drugs or any other influence which could lead you into more offending. It could also be about education, training or employment or your friends or how you use your spare time. The pieces of work which the Y.O.T. delivers to are called interventions – these interventions are designed to help you to avoid offending in the future.

• Second: the contract must state what you should do to make up for your offence – your reparation. It may be direct to the victim or may be indirect work for the benefit of the community. If it is indirect, then the contract must state how many hours reparation should last for. If, for instance, your contract is for a period of six months and your reparation is set at 16 hours, then you have to complete a full 16 hours unpaid work within the six month period.”

• non compliance with the Referral Order - meeting with panel

• If no reasonable explanation for non compliance, the panel must referral you to the Court.

• Court may revoke the Order and pass another sentence.