Jump to definitions:
Abuse of process
Acceptable Behaviour Contracts (ABC)
Acknowledgment of Service
Anti-Social Behaviour Order (ASBO)
Appeals from the Court of Appeal
Appeals from the Crown Court
Appeals from the Magistrates' Court
Application to Dismiss
Assault by penetration
An absolute discharge is the most lenient sentence a court can pass.
A defendant subject to an absolute discharge will not receive any kind of punishment.
An absolute discharge tends only to be passed in exceptional circumstances where the court thinks that, whilst technically an offence may have been committed, the defendant is morally blameless.
Abuse of Process is a legal doctrine vesting a court with the inherent jurisdiction to stay proceedings which are being conducted unfairly. The conduct will be said to be "an abuse of the court's process". This will normally relate the conduct of a party being unfair on the other party and/or brining the justice system into disrepute.
An example of an "abuse of process" in the civil context is bringing litigation for an ulterior motive. This may also be the case in the criminal context. In either case, a party may ask the court to stay the proceedings as an abuse of the court's process.
In criminal proceedings, the test of whether an abuse of process has occurred will be:-
-whether the defendant can have a fair trial; and-whether it is fair to try the defendant.
If the prosecution has acted in bad faith (e.g. destroyed/withheld evidence), even if the act was not necessarily prejudicial to the defendant it may be arguable that an abuse has occurred nonetheless under the second part of the test (i.e. to try the defendant in the circumstances would be unfair as it would bring the criminal justice system into disrepute).
The threshold for a case being stayed for an abuse of process is high, but nonetheless the ability to make such an application acts is an important safeguard.
An Acceptable Behaviour Contract (ABC) is an informal written "agreement" between an individual and the police or a local authority. It is intended to encourage an individual to recognise the effects of his/her alleged anti-social behaviour and to discourage it from reoccurring.
Acceptable Behaviour Contracts are usually used with young people but they can also be used for adults. The document will consist of a list of anti-social acts that the individual agrees not to undertake and outlines the potential consequences if the contract is breached.
Acceptable Behaviour Contracts usually last for six months but can be renewed if both parties agree. The terms of such agreements can be negotiated between the parties.
Acceptable Behaviour Contracts are not legally binding, but may be cited in court as evidence in Anti-Social Behaviour Order (ASBO) applications or other proceedings.
The implementation of an Acceptable Behaviour Contract may be an alternative means of disposing of a prosecution or a prospective application for an Anti-Social Behaviour Order (ASBO).
An "Acknowledgment of Service" is a form contained within the "Response Pack" that should be provided to a defendant when he/she is served with a claim in civil proceedings.
The document should include the defendant's address and be signed by the defendant or his/her solicitor. It should be lodged with the court and served on the claimant.
Once an Acknowledgment of Service has been lodged a defendant has 28 days from the date the claim form was served, or 28 days from the date Particulars of Claim were/are served (if the claimant indicated on the claim form that Particulars of Claim would follow) to file/serve a Defence.
A defendant has 14 days after the service of a claim form or 14 days from the service of Particulars of Claim (if the claimant indicated on the claim form that Particulars of Claim would follow) to file an Acknowledgment of Service. If a defendant fails to file a Defence or an Acknowledgment of Service within this time period then the claimant may make an apply for a judgment-in-default.
An Acknowledgment of Service can also be used to indicate that a defendant intends to makes an application to challenge the court's jurisdiction, but again such an application should follow and be lodged/served within 28 days of the date the claim form was served, or 28 days from the service of Particulars of Claim (if the claimant indicated on the claim form that Particulars of Claim would follow).
Lodging an Acknowledgment of Service allows a defendant to protect himself/herself from a judgment-in-default and buys them some time to draft a Defence and/or enter into settlement discussions with the claimant.
An acquittal is a judgment by the judge or jury that a defendant is not guilty of an offence. If a defendant is acquitted of all offences that are the subject of proceedings, the proceedings will immediately come to an end.
Acquittal is generally a bar to further prosecution for the same matter (the "double jeopardy" rule). However, recent changes in the law mean that in certain circumstances (principally where compelling and fresh evidence has come to light) a defendant acquitted of certain serious offences can be retried.
The suspension of a court hearing until a later time/date.
Also known as the Divisional Court, the Administrative Court deals with various matters of administrative and public law.
The bulk of the work undertaken by the Administrative Court is judicial reviews of decisions made by public bodies. However, the Administrative Courts also deals with other kinds of hearings such as statutory appeals against the decision of a regulatory body, writs of habeas corpus and "case stated" applications.
The Administrative Court sits in the Royal Courts of Justice in London and also in regional centres.
Administrative/Public law in the legal discipline concerned with ensuring that the state and public bodies act within the law, follow correct procedure and do not abuse their power.
Arguably the most prominent method of challenging the decision of a public body is to issue judicial review proceedings. These are court proceedings in which a judge is asked to review the lawfulness of the decision.
The issue of whether a particular item of evidence should be allowed to be considered in a trial.
In a Crown Court trial when an issue of admissibility comes up (if it hasn't already been determined pre-trial) it is common for the jury to be asked to leave the room so that legal argument can take place in their absence. This argument will take place before the judge, normally with both parties making submissions. If the judge rules the evidence is admissible then the party wishing to introduce it may do so when the jury is back in the room. If the judge rules the evidence is inadmissible then it should not be introduced and the jury should be none the wiser.
In Magistrates' Court trials the matter is somewhat more artificial. This is because unless the matter has been determined pre-trial by a different bench of magistrates (or district judge), even if the evidence is ruled inadmissible because the magistrates/district judge rule on both issues of law and fact, the "cat is out the bag" so to speak.
Common arguments over admissibility in Crown Court trials are the inclusion of bad character or hearsay evidence where there is often a legal argument as to whether the material is more prejudicial or probative.
In the context of a criminal trial, the prosecution may invite the court to draw an adverse inference where a defendant has failed to put forward a defence or answer certain or any questions earlier in the proceedings (such as during a police interview or within a Defence Case Statement).
In the Crown Court, if the judge is satisfied that an adverse inference can be drawn he/she should carefully make the appropriate direction to the jury. For instance, where a defendant has failed to answer a particular question, an adverse inference of this may be that the defendant has no answer to the question or not one that would stand up to cross-examination.
One of the purposes of adverse inferences is to try and discourage the defendant fabricating a defence later in the day, the logic being that if he/she is not guilty of the offence he/she should be able to put forward his/her position then and there during a police interview.
There is a fundamental conflict between the right to silence and adverse inferences. The burden of proof is on the prosecution and it is not sufficient to bring a prosecution with no evidence and simply say the defendant is guilty as a result of not explaining himself/herself during a police interview. There are therefore a number of safeguards in place to try and prevent adverse inferences being drawn unless appropriate (in addition to an appropriate direction being given by the judge). Nevertheless, the risk of an adverse inference being drawn at a later trial is something that a suspect at a police station will have to consider very carefully with their solicitor prior to giving a "no-comment" police interview.
An affidavit is a type of witness statement that is required to be signed and sworn (or affirmed) as being true in the presence of a "commissioner for oaths".
"Commissioner for oaths" includes practicing solicitors, barristers, notaries, licensed conveyancers and legal executives. However, an affidavit should not be taken by a lawyer who has prepared the document, is acting in the case or has an interest in the outcome.
Whether an affidavit or a regular witness statement is required will depend on the type of proceedings and the purpose of the document.
Any documents attached to an affidavit will also need to be sworn (or affirmed). These documents are known as exhibits and will have a cover-sheet indicating such.
An individual requiring an affidavit to be sworn can attend any firm of solicitors (an appointment is not normally required providing a solicitor or legal executive is available) and have it taken (and any exhibits) for a small fee.
An individual who knowingly makes a false affidavit is liable to be found in contempt of court and may also faces charges of perjury and/or perverting the course of justice.
Alibi is a defence in criminal proceedings that involves the defendant asserting he/she was not in the place where an offence was alleged to have been committed.
In the context of criminal proceedings, the term "alternative disposal" is used to describe methods of diverting a matter from a prosecution.
Methods of alternative disposal include: a caution, a fixed penalty notice, reprimands and final warnings, conditional cautions, acceptable behaviour contracts, penalty notices for disorder, bindovers and sometimes undertakings.
An alternative method of disposal may be proposed or negotiated as an alternative to charge or after charge.
An Anti-Social Behaviour Order (ASBO) is a civil court order made against a defendant who has been found to have engaged in anti-social activity. An Order can only be made if it is deemed necessary to prevent the reoccurrence of the anti-social activity.
An Anti-Social Behaviour Order can be imposed in one of three ways: as an ancillary order to a sentence following a criminal conviction (often referred to as a "bolt-on ASBO"), following a substantive civil application by the police or local authority (made in the Magistrates' Court) or in the context of related civil proceedings.
An Anti-Social Behaviour Order will prohibit the defendant from undertaking certain prescribed acts (which will depend on the individual circumstances of the case) for a period of time.
Whilst an application for Anti-Social Behaviour Order is a type of civil procedure, breaching an Order is a criminal offence that can result in the imposition of a prison sentence.
The making of an Anti-Social Behaviour Order can be appealed or reviewed in different ways depending on the context in which it was made. The defendant has an absolute right of appeal to the Crown Court against any Order made in the Magistrates' Court (providing it is made in sufficient time); such an appeal will be a "de novo" rehearing of the case.
An appeal is the process of taking proceedings to a higher court/tribunal with a view to rectifying a perceived incorrect decision.
In some instances permission will be required to appeal; this will need to be obtained either from the court/tribunal whose decision is being challenged or the court/tribunal it is intended will hear the appeal. This is commonly known as obtaining "leave to appeal".
Depending on the type of proceedings, a right of appeal may exist only on a point of law or there may be a "de novo" right of appeal (in effect a rehearing).
If an appeal is allowed in part or whole, an appellate court can substitute its own decision in place of the original decision.
Appeals from the Court of Appeal are made to the Supreme Court and can only be made on a point of law. Appeals from the criminal division of the Court of Appeal must also be exceptional cases of general public importance.
It is necessary to obtain the permission from the Court of Appeal (following the full hearing of an unsuccessful appeal) or the Supreme Court for such an appeal to be heard.
If the permission has been refused to appeal the decision of a lower court to the Court of Appeal then there is no provision for appealing that decision to the Supreme Court.
Appeals from the Crown Court are made to the Court of Appeal (Criminal Division).
The two most common types of appeals are appeals against conviction and appeals against sentence, although it is possible to appeal other decisions such as confiscation orders.
Unlike Appeals from the Magistrates' Court, an appeal from the Crown Court against a conviction is not a rehearing of the matter, rather a consideration of whether the conviction is "safe". This will not normally include decisions of fact made by the jury, but rather errors in law (such as misdirections from the judge or where the law has been incorrectly applied). Only in rare circumstances will fresh evidence be allowed (for instance, where it was unavailable to the parties at the beginning of a trial).
An appeal against sentence can be made on the basis that the sentence was "manifestly excessive" or wrong in law.
Permission to appeal either conviction or sentence must be made within 28 days of the decision, although the Court of Appeal has a discretion to hear appeals out of time if it is satisfied there is a good reason why it should.
The first stage of the appeal is the "leave" (permission) stage, where a Single judge will decide on paper whether there is enough merit in the appeal to justify an oral hearing before the full court. If an appeal is refused at this stage an appellant can ask for a "renewal hearing" before the full court. If the full court considers a "renewed appeal" to be entirely without merit it has the power to order costs against the appellant and, in theory, to order that any time served in prison up until the hearing of the appeal not count toward the appellant's sentence.
The hearing of an appeal is before three Court of Appeal judges.
The prosecution cannot appeal against a acquittal as such (it can ask for clarification on the law, but this will not reverse an acquittal). The prosecution can however appeal against a terminating ruling (e.g. where a judge stays a case on the grounds of abuse of process or allows an application to dismiss). The prosecution can also appeal against certain other decisions, including against a sentence on the basis that it was too lenient. This is known as "An Attorney-General's Reference".
If an appeal against conviction is allowed then the Court of Appeal will quash the conviction and either order the Defendant's acquittal or a retrial. If an appeal against sentence is allowed, the Court of Appeal will simply substitute a new sentence.
In certain circumstances, an appeal from the Court of Appeal can be made to the Supreme Court.
A defendant may appeal against any conviction or sentence imposed in the Magistrates' Court.
Unlike an appeal from the Crown Court (where a defendant cannot appeal on the basis that the jury made a wrong decision regarding the facts), an individual has an absolute right of appeal.
An appeal must be lodged at the Magistrates' Court within 21 days of the relevant decision.
An appeal from the Magistrates' Court will be heard in the Crown Court, normally by a single Crown Court judge who will often be assisted by one or more Magistrates/Lay Justices (as part of their ongoing training).
An appeal against conviction is "de novo" in that it is a rehearing of the original case, rather than an examination of specific grounds of appeal.
If a defendant is unsuccessful, the Crown Court has the power to increase the original sentence as well as ordering the defendant to pay costs. This is to deter defendants from making spurious appeals and wasting the court/prosecutor's time/money.
An Appellant is a party bringing an appeal.
"Appellate courts" is the term used to describe the higher courts that hear appeals from the courts beneath them. The highest domestic appellate court is the Supreme Court (having replaced the House of Lords in 2009). Appellate courts are tasked with interpreting the law and clarifying how it should be applied in certain circumstances. Accordingly, the appellate courts are instrumental in developing case law.
An Applicant is a party making an application.
An application, in the context of court proceedings, will be made by one of the parties to the court. It may concern any number of matters, but essentially it will be asking the court to sanction something or other (e.g. the setting a side of a judgment made in default, the granting of bail or the imposition of a freezing order).
An application will be either be agreed or opposed by the other party (or parties).In civil proceeding where the outcome of application is agreed between the parties the matter can normally be resolved by the agreeing/signing of a consent order which will be sent to the court to be sealed.
Likewise, in criminal matters, a court may determine that where an outcome of an application has been agreed by the parties (for example, the adjournment of a hearing date or the variation of a bail address) can be dealt with administratively and without the need for a court hearing.
If an application is contested then a court hearing will normally take place. In civil proceedings a "return date" will be set for this after the paper application has been issued at court and any fee paid.
A party that does not agree to request from the other side, forcing a court hearing, risks being ordered to pay the other side's costs of going to court and making the application. This is less common in criminal proceedings (largely due to the prevalence of legal aid for defendants), but not unheard of, particularly where the judge deems the refusal to agree the subject of the application to have been unreasonable (and thus that the hearing has been a waste of time and money).
It is normally a requirement to give the other side sufficient notice of the application (i.e. provide them with a written notice and evidence in support a number of days before the hearing). The precise requirements will depend on the type of application. However, some applications can be made without any notice being given to the other party. These are known as "without notice" or "ex-parte" applications. Examples include applications for Mareva orders/freezing injunctions and restraint orders, where to give any notice of an application might defeat its purpose (i.e. the prevention of the dissipation of assets).
Some applications can be determined by a judge on paper without the need for a court hearing (e.g. an application for permission (or "leave") to appeal.
An application to dismiss is an application made by a defendant in the Crown Court that one or more counts against him/her should be dismissed. Such an application is made in respect of indictable-only offences where there has been no committal hearing and thus no chance for the defence to argue that there is no "case to answer". Such an application must normally be made within a certain period of time of the matter having been sent to the Crown Court.
An application to dismiss should succeed and the judge should dismiss a count if it appears that the evidence against the defendant would not be sufficient for a jury to properly convict him/her.
This is not a type of "terminating ruling", such as where a case is dismissed halfway through a trial following a ruling that there is "no case to answer".
Assault by penetration is an indictable-only sexual offence.
Assault by penetration is committed if a person (A):-
- intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else;
- the penetration is sexual;
- B does not consent to the penetration; and
- A does not reasonably believe that B consents.
The maximum sentence for a defendant convicted of such an offence is life imprisonment.