Commencing Proceedings Notes

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 * laying of information by prosecutor (allegation communicated to magistrates' court) * ? 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: * Written Charge - charges Defendant with offence * Requisition - requires Defendant to attend at Magistrates Court to answer charge Duplicitous Charge * "duplicitous charge" - 2 offences charged * Prosecution may elect one charge to proceed with, or * 2 charges may be tried together as long as no objection * 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 * Wide powers to amend original charge * Generally discrepancies between charge and evidence adduced not grounds for objection * Prosecutor should seek to amend if substantial defect/variation - otherwise could lead to quashing conviction * 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 * Can be used instead of requisition - apply to Magistrate to issue * 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 * 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) * Generally used where Defendant fails to attend after requisition - "bench warrant" * 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 - * 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) * 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 - * Police Officer makes report of the incident to Police Process Dept * + Any evidence (eg. Witness Statement that willing to testify against Defendant) * Decision on whether to prosecute - consider evidence etc to decide which charge to prosecute 4. Prepare Information * Can be oral (go to Magistrates Court and tell Magistrate on oath what Defendant did) or written 5. Laying the Information * Written info delivered to apt Magistrates Court - "laid" when received by clerks office * Information for summary offence must be "laid" within 6 months of offence 6. Issue of summons * Judicial (not admin) decision - Magistrates/Magistrates' clerks must look at info laid and ask whether it justifies a summons * If info is prima facie valid, Magistrate will issue a summons (delivered to Magistrate in draft form with the info) * Summons sets out info against Defendant and states court date. 7. Serving the summons * Court and/or Police serve on Defendant as well as sending the summons * Likely inc: brief statement of facts and notice explaining how to plead guilty by post * 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. * If fails to attend, case may be proved in his absence if Prosecution can prove due service of the summons and any adjournment notices. * 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: * Must have power of arrest (reasonable suspicion + necessary) * Arrest must be justified, and * Arrest must be properly carried-out Power of Arrest s24 PACE - Police Power of Arrest * A PC may arrest a person who he has reasonable grounds to suspect has committed, is committing, or is about to commit an offence. * 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 * 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 * 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 * 1.2 - Right to liberty key principle of HRA - arrest is obvious and significant interference with that right * 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 * Defendant must be informed under arrest for it to be lawful (s28) * May use reasonable force to effect an arrest (s117) * 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. * 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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