Please enable JavaScript.
Coggle requires JavaScript to display documents.
TRIAL, SENTENCING, APPEALS - Coggle Diagram
TRIAL
-
EXAMINATION OF WITNESS
Oaths and affirmationsTake an oath before giving evidence / make an affirmation = no differenceEXCEPT for children and those of unsound mind
- test = if they have sufficient appreciation of solemnity of occasion + of particular responsibility to tell truth involved in taking oath
Examination in chief1. Form of questioning = non-leading2. Memory refreshing = hearsay used in court i:
- statement may be read out if contents are agreed
- witness can ask to 'refresh their memory' from their statement by reading it
- In cross-examination on a previous inconsistent statement
3. Hostile witnesses = witness w evidence that could assist prosecution BUT not giving it at court
- If witness called to give evidence + gives an account inconsistent with OG statement > party may apply to the Judge to treat them as hostile = free to cross examine + previous statement put to them as truth of matter
4. The use of previous consistent statements
- NOT admissible to elicit evidence that witness made earlier consistent allegations
EXCEPT where one needs to consider if earlier consistent statement can be used to prove statement itself is true OR only prove consistency of person who made the earlier statement:
a. Res gestae = statement made as an immediate reaction to a crime being committed against the statement maker > admissible
b. Statements made by suspects on accusation by the police > admissible, whether they are confessional / denials of guilt
c. Complaints > if testifies earlier complaint = admisisble
d. Rebuttal of 'recent fabrication' allegation = if witness is challenged > permitted to prove that this is not the case
Cross-examinationAdvocates may ask leading questions > contain factual statements that indicate what answer advocate wants witness to make
- Applies to factual challenges, where advocate has to promote alternative case to one expressed by witness, and to imputations on witness's character done plainly to the witness's face
- Witnesses give facts not opinions
Previous inconsistent statements
- courts do not admit into evidence a police witness statement BUT original statement can be produced to witness to challenge discrepancy as OG is closer to offence so more likely to be true
Restrictions on cross-examination = judge can determine if a matter has been sufficiently exploredFinality on collateral matters
- Final UNLESS witness was biased > defence can then admit evidence to rebut
Re-examination = if matters raised in cross-examination not covered in examination in chief > party calling witness may ask further questions in re-examination.
SUMMARY TRIAL
Prosecution open case + carries evidential and legal burden of proving the case beyond reasonable doubt
1. Legal arguments = magistrates have a discretion as to when to determine questions of admissibility
2. Prosecution opening speech = summarise the prosecution case, concisely identifying the relevant law
3. Defence identify matters in issue
4. Prosecution evidence = witness / witness statements / reading admissions
5. Submission of no case to answer = defendant’s application > court may acquit on ground that prosecution evidence is insufficient for conviction
6. Right to give evidence and adverse inferences = Defendant must be informed of: right to give evidence, and potential effect of not doing so at all, or of refusing to answer a question while doing so
7. Defence evidence
8. Prosecution closing speech
9. Defence closing speech
10. Legal advice = legal adviser will advise the magistrates in open court on any matters of law that are required
11. Magistrates retire to consider verdict
12. Verdict = if disagreed > majority +if guilty > sufficient reasons given
TRIAL IN THE CROWN COURT
Only necessary when the defendant pleads 'not guilty,'
1. Legal arguments = pre-trial hearings before the trial judge take place > e.g. Voir dire2. Jury selection and swearing in the jury3. Judge’s preliminary instructions to the jury = judge will tell evidence upon which they must decide case is evidence that will be presented to them in court + must not discuss it 4. Prosecution opening speech = focused on the facts and issues in the case5. Defence identify matters in issue6. Prosecution evidence = witness / witness statements / recorded interview + cross exam7. Conclusion of the prosecution case8. Submission of no case to answer = defendant’s application > court may acquit on ground that prosecution evidence is insufficient for conviction9. Defendant's right to give evidence or not10. Defence opening speech 11. Defence evidence = cross-examined12. Legal discussions = jury to be sent out to allow judge + prosecution + defence opportunity to consider matters of law which should be raised during the judge's summing up.13. Closing speeches = first prosecution then defence14. The judge's summing up = summing-up falls into two parts: the law (judge will give the jury directions on the law which they must accept) and the facts (jury reach their own conclusions on the evidence)
To assist the jury to focus on the issues during retirement, the judge should provide:
- reminder of the issues / summary of the nature of the evidence relating to each issue / balanced account of the points raised by the parties / outstanding directions
- Only verdict judge can accept is a unanimous + judge will tell the jury to appoint a foreman
15. Jury bailiffs sworn and jury retires = majority verdict ONLY given by a jury after they have deliberated for at least 2 hours > not accepted unless it appears to court that jury have had reasonable time for deliberation 16. Verdict = by foreman
- Guilty > sentenced immediately or case will be adjourned
- Not guilty = acquitted + discharged
SENTENCING
NON-CUSTODIAL SENTENCES
1. Bind over- In magistrates' court / Crown Court
- Imposed on someone instead of them entering a guilty plea / being tried for an offence.
- Also imposed following an acquittal / on a witness in a case
- Person can be bound over by a court to 'keep the peace' for a sum of money that they forfeit if they fail to do so.
2. Absolute discharge- Lowest sentence available to magistrates' court and the Crown Court.
- Usually imposed to reflect either triviality of offence / circumstances where offender was prosecuted / special factors relating to the offender.
- It is no punishment at all > defendant must do nothing
3. Conditional discharge- In magistrates' court / Crown Court
- Discharge (no actual punishment) with a condition attached to it
- Condition = if defendant commits another offence during period specified > MAY be re-sentenced for original offence + sentenced for new offence.
- The specified period must be no more than 3 years.
4. Fines- In magistrates' court / Crown Court
- Financial penalty that requires a defendant to pay a certain sum to court on conviction (guilty plea / verdict) unless specifically prohibited by statute > due immediately (instalments must be agreed by court
- Can be imposed alongside other sentence except for a hospital order OR alongside a discharge > usually not alongside imprisonment
5. Community Order- In magistrates' court / Crown Court
- Requires defendant to comply with 1 or more requirements to punish and/or rehabilitate a defendant in the community
- Offender must be over 18 + offence punishable with imprisonment + maximum length is 3 years
- Must have at least 1 requirement, including a punitive element unless a fine is imposed
Community Order requirements
- Unpaid work requirement
- Rehabilitation activity requirement
- Programme requirement
- Prohibited Activity requirement
- Curfew requirement
- Exclusion requirement - Not enter a specific area or keep away from a particular person
- Residence requirement
- Foreign travel prohibition requirement
- Mental health treatment requirement
- Drug rehab requirement
- Alcohol treatment requirement
- Alcohol abstinence and monitoring requirement
- Attendance centre requirement
- Electronic monitoring requirement
IF BREACHED
- If an offender fails without reasonable excuse = must be warned that failure is unacceptable + if fail again > proceedings instituted
- In proceedings >
1. offender admits OR court finds that there was a breach following a denial they can:
- amend order to make it more onerous
- fine offender up to £2,500
- revoke Community Order + re-sentencing offender for offence in respect of which order was made
2. offender denies > court holds trial to determine if there was failure without reasonable cause
6. Forfeiture / deprivation of property
7. Disqualification
8. Restitution and resotarion
9. Orders for offenders under 18
10. Compensation orders
The sentencing code
Sentences can be: custodial and non-custodialSentencing happens once a defendant is convicted by entering a guilty plea / found guilty after a trial
- The magistrates’ court, youth court and Crown Court are all courts of first instance with powers of sentence
Powers of the courts1. Summary only offences
- If defendant pleads guilty in magistrates’ = only sentenced in MC
- If defendant pleads not guilty to in magistrates’ = if found guilty after trial > sentenced magistrates’ court NOT Crown Court2. Either-way offences
- If defendant pleads guilty in magistrates’ = sentenced in magistrates’ OR sent to Crown Court
- If defendant pleads guilty in Crown Court = sentenced in the Crown Court
- If defendant pleads not-guilty in magistrates’ court = if case stays in magistrates’ for trial could be sentenced in > magistrates’ OR sent to Crown Court
- If defendant pleads not-guilty in magistrates’ = if case sent to Crown Court for trial / defendant elects Crown Court > sentenced in Crown Court3. Indictable only
- defendant charged with indictable only offence sent to Crown Court + plead guilty at PTPH > once sent to Crown Court cannot be sent back to magistrates’ + sentenced in Crown Court.
Basis of sentence1. Defence draft written basis of plea and pass to prosecution who decides if acceptable
- IF ACCEPTABLE to prosecution = judge decides if acceptable
- IF ACCEPTABLE to judge > sentence on defence basis
- IF NOT ACCEPTABLE to judge > hold Newton hearing
2. Defence draft written basis of plea and pass to prosecution who decides if acceptable
- IF NOT ACCEPTABLE to prosecution = judge decides if absurd
- IF ABSURD to judge > sentence on prosecution basis
- IF NOT ABSURD to judge > will it make a material difference to sentence
- IF NO material difference > sentence on defence basis
- IF material difference > hold Newton hearing
Newton HearingsHelps court decide factual basis upon which it should pass sentenceMagistrates' court = presided over by magistrates / District Judge Crown Court = takes place without a juryProcedure
- Prosecution makes opening speech + calls evidence + witnesses can be cross-examined by the defence
- Defendant can give evidence + call witnesses if they wish
- Court decides if prosecution has proved its version of the facts beyond reasonable doubt.
- If YES = defendant sentenced on those facts.
- If NO = defendant sentenced on defence facts set out in plea
Deferring sentence- Court can defer sentence for up to 6 months BUT cannot be extended UNLESS magistrates' court defers it for a period + at the end commit to Crown Court for sentence = Crown Court can defer for further 6 monthsIndications of sentence1. Magistrates’ court
- Either-way + court has accepted jurisdiction > D entitled ask for indication of sentence if remain in magistrates’ court + plead guilty
- Court does not have to give an indication of sentence BUT if does > can only say if sentence would be custodial / non-custodial sentence
2. Crown Court – Goodyear indication
- D can ask for indication before the PTPH / any stage of proceedings before the jury return their verdict
- Before asking D must: accept prosecution facts / written basis of plea must be agreed by the parties and the court AND Give clear instructions to their counsel that they want indication
- Indication is discretionary
DETERMINING SENTENCE
Seriousness
Court must determine seriousness of offence. by considering:
- offender’s culpability (role / level of intention / premeditation)
- any harm which the offence (i) caused, (ii) was intended to cause, (iii) might foreseeably caused.
Custodial sentence ordered if:
- offence OR combination of offences was so serious that neither a fine / community sentence can be justified
Community order ordered if:
- offence OR combination of offences was serious enough to warrant making of such an order
Every court MUST follow sentencing guidelines relevant to offender's case UNLESS contrary to the interests of justice to do so
Sentencing hearing1. Prosecution > opens facts + makes submissions
- previous convictions
- relevant sentencing guidelines
- victim impact statement
- ancillary orders
- general sentencing issues
2. Defence > mitigate by putting forward info consistent with instructions + duties not to mislead court
- May ask for a pre-sentence report to assist court in determining suitable method of dealing with an offender + obtain before passing a custodial / community sentence
3. Judge > passes sentence
Determining sentence:a. Category = Greater culpability and greater harm / Greater culpability and lesser harm, or greater harm and lesser culpability / Lesser culpability and lesser harmb. Aggravating and mitigating factors =
- Aggravating factors: more seriousness such as prev convictions / abuse of power / breach of trust
- Mitigating factors: less seriousness such mental illness / youth / self-defence / good character4. Give credit for a guilty plea > discretion
- Guilty plea at first stage of proceedings – max 1/3
- Guilty plea after the first stage of proceedings – max ¼
- Guilty plea on the day of trial – sliding scale with max 1/105. Consider totality of multiple offences = When sentencing for < 1 offence > court must consider what total sentence should be + arrive at one that is just and proportionate
- IF same facts = concurrent
- IF different facts = consecutive
6. Pass sentence = Explain to the defendant / Identify the sentencing guidelines / Explain why the defendant passes the custody threshold / if credit has been given / any particular aggravating and mitigating factors
CUSTODIAL SENTENCES
Most imprisonable offences carry discretionary custodial sentences which can only be passed if court is satisfied that offence is so serious that neither fine / Community Order can be justified
- IF imposed must be for shortest possible period to reflect purpose of sentence
1. Determinate custodial sentence (immediate imprisonment)- Sentence for a defined period of time e.g. 6 weeks
- If defendant is sentenced to a period of imprisonment for more than one offence > court must consider (totality) whether to make sentences concurrent / consecutive to each other
- The magistrates' court can impose a maximum of: 6 months for a summary only offence / single either way offence; or 12 months for two or more either way offences
- The Crown Court has unlimited powers of imprisonment subject to the statutory maximum for each offence
- If a defendant has been remanded in custody for any period prior to sentence, then that period is automatically counted towards their sentence
2. Suspended determinate custodial sentences
- Must be for offending that crosses custody threshold but defendant does not go into immediate custody + if they fulfil certain criteria, they can avoid prison entirely
- Magistrates' court may suspend any determinate custodial sentence of between 14 days and 6 months.
- Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years
If you commit any offence during the operational period = some of all of your suspended sentence can be activated.A suspended sentence has three elements to it:
1. Custodial term: How long a custodial term they would have received but for it being suspended.
2. Operational period: How long custodial term is suspended for. This must be between six months and two years.
3. Supervision period: How long defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period.
3. Minimum sentences for certain offencesThird Class A drugs offence
- Only Crown Court has jurisdiction to impose sentence
- Defendant must have committed 3 Class A drug trafficking offences in order (offence > conviction x3) > If convicted of offence 3, court must pass a minimum custodial sentence of 7 years unless it would be unjust to do so BUT If defendant enters a guilty plea at 1st opportunity reduction must be such that final sentence is at least 80% of minimum 7 year term
Third domestic burglary
- Only Crown Court has jurisdiction to impose sentence
- 3 year sentence + all burglaries must be domestic burglaries, i.e. place burgled was a dwellingOther minim sentences
- 5 years for certain firearms offences
- 6 months for a second offence of possessing a weapon
- 6 months for threatening with a weapon.
4. Extended determinate sentence- Only Crown Court has jurisdiction to impose sentence
- Imposed in certain types of cases (specified violent, sexual or terrorism offences) + if offender is dangerous
- Extension period must: be at least 1 year AND not exceed 5 years for specified violent offence OR 8 years for specified sexual offence or a specified terrorism offence
- overall term of EDS cannot exceed the maximum term permitted for the offence
- Prisoner eligible to apply for parole at 2/3 point of custodial term + must be released at end of custodial period
5. Mandatory life sentence for murder- Only Crown Court has jurisdiction to impose sentence
IF defendant is convicted of murder court must pass a mandatory life sentence > no discretion to pass any other sentence
- On sentence > court will fix a minimum term + once expired defendant can apply for release to the Parole Board who has discretion
6. Statutory life sentences
- Given to offenders who are dangerous / convicted of a second, very serious offence + only Crown Court has jurisdiction to impose sentence
Life for dangerous offenders - where an offender is:
- convicted of an offence set out in Schedule 19 of the Sentencing Code + court believes offender is dangerous + offence justifies a life sentence
Life for second listed offence - where an offender is:
- convicted of an offence set out in Schedule 15 of the Sentencing Code + both sentence condition and previous conviction condition are satisfied unless unjust to impose a life sentence
-
-
-