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Commencing Proceedings Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Commencing Proceedings notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

COMMENCING CRIMINAL PROCEEDINGS Three methods of commencement:

1. Public prosecutions (e.g. by CPS):

* written charge (setting out offence with which Defendant is charged) &

* requisition (requiring Defendant to appear before magistrates' court),

* issued by prosecutor: s29 CJA 2003.

2. Private prosecutions

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laying of information by prosecutor (allegation communicated to magistrates' court)

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? issue of summons by court.

3. Arrest ? charge. Written Requisition & Charge Method of securing Defendant's attendance at Magistrates Court Aim: Speed up process as matter does not have to first go before clerk or justice. "Public prosecutor" (s29(5) CJA'03) - Director of Public Prosecution/Attorney-General/Secretary of State/Police force /person authorised to institute criminal proceedings Charge without involvement of CPS - only available for summary and either-way offences when guilty plea expected. Public Prosecutor issues 2 docs:

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Written Charge - charges Defendant with offence

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Requisition - requires Defendant to attend at Magistrates Court to answer charge

Duplicitous Charge

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"duplicitous charge" - 2 offences charged

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Prosecution may elect one charge to proceed with, or

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2 charges may be tried together as long as no objection

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If objection - try separately
* unless Magistrates of opinion that defences are so connected that the interests of justice best served by a single trial
* If Magistrates decide to separate trials - debarred from hearing cases.

Amendment

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Wide powers to amend original charge

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Generally discrepancies between charge and evidence adduced not grounds for objection

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Prosecutor should seek to amend if substantial defect/variation - otherwise could lead to quashing conviction

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May amend charge (even to different offence) up to 6 months after issue - if:

* offence arose from same incident as in charge, and
* amendment in the interests of justice. Warrant of Arrest

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Can be used instead of requisition - apply to Magistrate to issue

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Information in warrant:
* Name of court
* Name and address of Defendant
* Offence alleged
* Signature of Magistrate (clerk not sufficient)
* If backed for bail - any conditions

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Only available if:
* information in writing,
* offence imprisonable (or Defendant is Juvenile and resides at unknown address), and
* proceedings to take place before a Magistrate (not clerk)

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Generally used where Defendant fails to attend after requisition - "bench warrant"

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May "back for bail" if think failure to attend due to error
* conditions for bail after arrest endorsed on back of warrant,
* if conditions met, Defendant released on bail. Laying of Information & Summons

Stages:

1. Speak to suspect - Police Officer cautions and then speaks to Defendant

2. Warn of Prosecution -

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if Police Officer considers that evidence against Defendant is sufficient to justify criminal proceedings, warns Defendant that he will be reported and consideration given to prosecuting him for certain offence(s)

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Pre-condition of conviction for certain traffic offences that Defendant given warning of prosecution orally or in writing (within 14 days)

3. Decision to prosecute -

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Police Officer makes report of the incident to Police Process Dept

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+ Any evidence (eg. Witness Statement that willing to testify against Defendant)

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Decision on whether to prosecute - consider evidence etc to decide which charge to prosecute

4. Prepare Information

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Can be oral (go to Magistrates Court and tell Magistrate on oath what Defendant did) or written

5. Laying the Information

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Written info delivered to apt Magistrates Court - "laid" when received by clerks office

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Information for summary offence must be "laid" within 6 months of offence

6. Issue of summons

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Judicial (not admin) decision - Magistrates/Magistrates' clerks must look at info laid and ask whether it justifies a summons

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If info is prima facie valid, Magistrate will issue a summons (delivered to Magistrate in draft form with the info)

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Summons sets out info against Defendant and states court date.

7. Serving the summons

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Court and/or Police serve on Defendant as well as sending the summons

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Likely inc: brief statement of facts and notice explaining how to plead guilty by post

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Defendant will be asked if intends to plead NG - if so, will be advised to attend Court on date of contested hearing, which he will be notified of.

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If fails to attend, case may be proved in his absence if Prosecution can prove due service of the summons and any adjournment notices.

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After judgment, may have to adjourn for sentence, if Defendant fails to attend for sentencing hearing, Magistrates may issue a warrant. ARREST (WITHOUT WARRANT) - CHARGE

ARREST Arrest: "the beginning of imprisonment" Requirements:

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Must have power of arrest (reasonable suspicion + necessary)

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Arrest must be justified, and

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Arrest must be properly carried-out

Power of Arrest s24 PACE - Police Power of Arrest

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A PC may arrest a person who he has reasonable grounds to suspect has committed, is committing, or is about to commit an offence.

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PC must have reasonable grounds for believing the arrest is necessary for ((5)):
* to enable name of person to be ascertained (ie. haven't given name or given a name and PC has reasonable grounds for believing it to be false)
* to enable person's address to be ascertained,
* to prevent the person: causing physical injury to himself/another, suffering physical injury, committing a public decency offence or causing an unlawful obstruction of the highway,
* to protect a child/vulnerable person from that person,
* to allow a prompt and effective investigation of the offence or of the person's conduct, or
* to prevent hinderance to the prosecution of the offence by the disappearance of that

person. s24A PACE - Citizens' Power of Arrest

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A citizen may arrest a person:
* who is in the act of committing an indictable offence, or
* on reasonable suspicion that the person has committed an indictable offence
# Justification: if can show that somebody (not necessarily arrestee) actually committed the offence suspected.
* Cannot arrest on suspicion that person is about to commit an offence

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The arrest must be necessary to prevent the person:
* causing physical injury to himself or another,
* suffering physical injury,
* causing loss or damage to property, or
* making off before a constable can assume responsibility for him

Justifying Arrest: PACE Code G

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1.2 - Right to liberty key principle of HRA - arrest is obvious and significant interference with that right

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1.3 - Use of power must be fully justified
* Should consider whether the necessary objectives could be met by other, less intrusive means,
# Not necessary for arrest to be only option - but must be practical and sensible option
* Must never arrest simply because can
* Must exercise power in non-discriminatory and proportionate manner

Effecting the Arrest

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Defendant must be informed under arrest for it to be lawful (s28)

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May use reasonable force to effect an arrest (s117)

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3 methods:
* Inform under arrest,
* Physically seize and inform under arrest as soon as practicable,
* Combination of words and conduct - make clear officer will, if necessary, use force to prevent the person from leaving.

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Requirements:
* Defendant must be told reason for arrest (even if obvs) -
# entitled to opportunity to explain any misunderstanding or call another person to Police Officer's attention
# reason given must be valid - if not, arrest unlawful even if there is a valid reason (which was not given)

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