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
“ 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
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
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
Police must have
reasonable grounds for suspecting D
Is about to commit
an offence (any offence)
THE ARREST must also be necessary
C hild or vulnerable person needs protecting
O bstruction of the highway is taking place
P hysical injury to someone (or is likely)
L oss or damage to property
A ddress not given or is unsatisfactory
N ame not given or is unsatisfactory
Castorina v Chief Constable of Surrey  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
gives an ordinary citizen the power to arrest anyone who they have reasonable grounds for suspecting
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 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 Charge Plea before Venue Plea Not Guilty - Guilty Not Guilty Case presented Witnesses for Defence & Prosecution and Cross Examined Magistrates decision Not Guilty with reasons Free to go Guilty with reasons To Crown Court Guilty Facts of case presented by CPS Mitigation Additional Information Reports? Magistrates sentence with reasons NB. Credit must be given for an early guilty plea which will reduce the sentence.
BAIL Bail 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
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
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.
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?
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.
Most Domestic Burglaries.
Cases involving large amounts of money.
Cases involving large amounts of drugs .
AS Level Law Mode 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
greater chance of conviction
lower possible sentence
less effective legal representation
case resolved quicker
Disadvantages Advantages Magistrates’ Court
AS Level Law
higher possible sentence – judge 3x more likely to impose immediate custodial sentence, and sentence on average 2 ½x longer than magistrates
greater chance of acquittal
time on remand (more privileges) counts as time served
better legal representation
Disadvantages Advantages Crown Court
AS Level Law Youth 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 Law Crown Court trial
guilty plea – judge alone; not guilty plea – judge and jury
proceedings very formal – order generally as follows:
Jury sworn in
prosecution opening speech
AS Level Law
defence opening speech
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
Visa and travel restrictions
Higher insurance premiums
The judges “role” in a criminal case
To summarise the evidence, but the jury alone must decide the facts
To direct the jury on the law
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
“ 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
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
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
Normally it sets a tariff
Judges are required to consider any appropriate guidelines when sentencing
Levels of punishment
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
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
Can be made up of up to 12 elements – tailored to suit the offender
These can include things like drug treatment and testing, supervision (probation) anger management, unpaid work, reparation
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
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).
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
Must only be given if the offender poses a risk 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 public and deter 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)
Advantages and Disadvantages of different forms of sentences
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
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
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)
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.
Criminal Justice Act 2003 introduced new punishments
Custody plus – This is a community sentence but if you break it you go to prison
Custody minus – a short term in prison, followed by a community sentence on release
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
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 warning
Where a reprimand is given, usually for a first offence, any re-offending will lead to a final warning
The offender will be referred to a youth offending team and required to take rehabilitation
If a final warning is broken the young offender will be charged
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.