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Warrant |
A
public prosecutor may "lay an information" for the purpose of obtaining
the issue of a warrant under section 1 of the Magistrates' Courts Act
1980.
In which case the case will normally be referred to (for example) as R v
Doe [The crown against Doe]. |
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Summons |
A
person who is not a public prosecutor may "lay an information" for the
purpose of obtaining the issue of a summons or warrant.
In which case the case will normally be referred to (for example) as John
v Doe [Prosecutor's name v Doe, the prosecutor may be a police officer or
a private citizen. This reference will be found in cases involving
young offenders, the elderly, or where the police - for some other reason
- decided not to arrest, e.g.
Fisher v Bell, or
Anderton v Ryan [1985] HL] |
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Charge |
A
person may be charged with an offence whilst he is in custody. |
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Crown Prosecution Service decides the charge
- Statutory Charging |
The Criminal Justice Act 2003 changes the charging of offenders.
Only in minor cases will the police make the charging decision, this is
now done by the Crown Prosecution Service.
This charging regime has been adopted in many areas and will implemented
nationwide by April 2007. |
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The pre-trial stage |
In criminal cases, this
usually means the role of the police and the Crown Prosecution Service.
The police have enormous
powers over individuals and communities, consequently statute (Police and
Criminal Evidence Act 1984) and the courts firmly control the way they conduct
themselves.
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Evidence |
The courts will only allow
the police to use admissible evidence, properly obtained and presented,
and decisions of the police are subject to judicial review, either before
proceedings start or during a trial.
Therefore, at the
pre-trial stage the police activity is constrained either by applicable
laws or in the knowledge that the courts may later hold their actions to
be unlawful.
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The Crown Prosecution
Service (CPS) |
The CPS is also subject to
procedural checks and balances, most obvious in their Code of Practice for Crown
Prosecutors. There is also a requirement that both parties disclose
information to prevent being 'ambushed' during the trial. “Litigation is
not a game”.
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The right to silence
- nemo tenetin ipsum accusare (no one may be compelled to betray himself)
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Viscount Sankey in
Woolmington v DPP
(1935) HL said: “Throughout the web of
the English Criminal Law one golden thread is always to be seen, that it is the
duty of the prosecution to prove the prisoner's guilt…”
The right not to be
required to incriminate oneself is enshrined in the presumption of innocence.
The so called “right to silence” is nothing new, what is new is the drawing of
adverse inferences because a suspect has not answered questions.
The ‘new’
rules appear to have political origins in anti-terrorism efforts and an attempt
on the life of the Northern Ireland Secretary (Tom King). The government of the
day not only refused to follow the recommendations of two Royal Commissions
against such change but also declined to incorporate the modest protections
recommended by a Home Office Working Group.
Right to silence
Criminal Justice and Public Order Act (HORS 199)
Problems with the right to silence.
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The Royal Commission on
Criminal Justice 1993
recommended retention of the right of silence but proposed limitations on the
defendant’s right to elect jury trial.
The Criminal Justice and Public
Order Act 1994 followed and made important changes to the right of silence.
The accused’s failure during police questioning to mention facts, which are
later relied upon at trial, or the accused’s failure to testify at court, may
now be the subject of comment at trial. The court may draw appropriate
inferences. It is arguable that an attempt to do justice to stop the guilty
going free it has had the opposite effect. In the two years, 1997-1998 thirteen
appeals involving adverse inferences have been quashed.
(Winters,; Henwortt; Birchall; Moshaid; Nickolson; Pointer; Gayle; Hart and
McLean; McGarry; Abdullah; Mountford; Barrett). |
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Search for the truth |
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Search for the truth |
Michael Mansfield QC in
his book “Presumed Guilty” argues that we should replace accusatorial system, up
to the time of trial, with an inquisitorial system to ensure that the judge
properly supervises the investigation of crime by the police, thereby seeking
the truth rather than allowing the prosecution merely to secure a conviction.
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Search for the truth |
The Criminal Justice Act 2003 has as one of its objectives to make
a trial "a search for the truth", by requiring disclosure, allowing the prosecution
to appeal, allowing double
jeopardy, permitting courts to hear evidence of bad character and by
allowing hearsay evidence in criminal cases. (More
here)
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Disclosure of
evidence |
Before disclosure of
evidence became compulsory, it was not uncommon for the defence to hijack the
prosecution with an unexpected defence. Alternatively, a case would have
to be adjourned because the defence would have been unable to prepare for the
evidence they did not know was going to be used against them.
In addition, the
prosecution will frequently not use all the evidence in its possession (“unused
evidence”) if the prosecution does not wish to use it, the assumption is that it
may help the defence case and so they should hand it over to them, (disclosure).
“In return”, the defence
must outline the type of defence they intend to employ, thereby creating a level
playing field in the cause of justice.
The duty of prosecutors to
make “unused material” available to the defence in criminal cases is set out in
the Criminal Procedure and Investigations Act 1996, and the Criminal Justice
Act 2003. The Acts recognises that the duty of disclosure must accommodate
the need to protect sensitive information the disclosure of which could damage
important aspects of the public interest, such as national security.
If disclosure would cause
real damage to the public interest by, for example, compromising the identity of
an informant or a sensitive investigative technique, the prosecutor may apply to
the judge for authority to withhold the material. Such applications take
the form of a claim for public interest immunity (PII) - often erroneously
referred to as "gagging orders".
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Perverting the
course of justice |
Any interference in the
investigation of a criminal trial, for example lying to the police, creating
false alibis, or destroying evidence gives rise to a charge of perverting the
course of justice. The partner of Ian Huntley - who murdered two girls -
Maxine Carr discovered this to her cost.
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Double jeopardy |
Normally, in order to
bring certainty to criminal litigation, once a court has found a defendant
guilty the prosecution's involvement in those facts must end.
Similarly, once a defendant is acquitted the matter is finalised (unless
there is a point of law involved).
There is one exception to the rule that
a person cannot be tried again (known as the "Double Jeopardy Rule")
and that is for serious offences where new and compelling evidence comes
to light after the trial and it is in the public interest to prosecute.
Such a new trial can only proceed with the authority of the Court of
Appeal and details can be found in that section,
here. |
