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Bad character evidence
Bail
On the balance of probabilities
Barrister
Benefit
Beyond a reasonable doubt
Bind Over
Blackmail
Burden of Proof
Burglary

Bad character evidence

Bad character evidence (in the context of criminal proceedings) is evidence of, or of a disposition towards, misconduct. "Misconduct" means the commission of an offence or other ‘reprehensible conduct’.

There are often legal arguments about the admissibility of bad character evidence. In the Crown Court the prosecution may argue before a judge that bad character evidence should be allowed to be adduced (i.e. the jury alerted to its existence). For example, if the defendant in a rape case has a string of previous convictions for sexual offences there is an argument that the jury should know about these as they are evidence of the defendant having a propensity to commit the type of offence that is being tried. Likewise, if a defendant has previously been been found guilty after a trial then it may be argued that he/she has a propensity to be untruthful (the same could not be said if he had pleaded guilty) and that therefore the jury should know about this. The counter-argument is that evidence of bad character is more prejudicial than probative as it can divert the jury's attention from other evidential issues in the case before them.

Strictly speaking bad character evidence is not limited to previous convictions and the term can even include acquittals.

In Magistrates' Court trials arguments over the admissibility of bad character evidence are somewhat more artificial. This is because unless the matter of admissibility 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.

Bail

Bail is the release of a defendant (or, in the context of an investigation, a suspect) until the date of a later court hearing (or, in the case of an investigation, attendance at a police station).

As a defendant is presumed innocent until proven guilty there is normally a presumption in favour of bail being granted prior to trial. However, this will not apply if the defendant has being charged with a specified serious offence (the list includes murder and rape) and already has a previous conviction for a specified serious offence.

In the context of court proceedings, bail may be withheld and a defendant remanded into custody if the court believes there are substantial grounds for believing the defendant might:-

  • Fail to surrender to the court (at the next hearing)
  • Interfere with a witness or otherwise obstruct the course of justice; or
  • Commit further offences

The grounds upon which such a belief/beliefs is/are founded must taken into consideration the following factors:-

  • The nature and seriousness of the offence (and likely sentence)
  • The character, antecedents, associations and community ties of the defendant
  • The defendant's previous record of being on bail
  • The strength of evidence in the case

A defendant may also be kept in custody for his own protection.

Initially only two applications for bail may be made in the Magistrates' Court (and at the second hearing the court does not need to hear arguments as to fact or law it has already heard). After this point, a bail application may only be made if the solicitor or barrister is able to raise a new argument on the facts or law.

A defendant has a right to appeal a bail decision to the Crown Court. This is known as a Crown Court Bail Application (formerly known as "Judge in Chambers Bail Application).

In the Crown Court, only one bail application may be made, unless there is a "change in circumstances".

The prosecution can also appeal a bail decision to the Crown Court, albeit there are strict procedures to follow (including immediate notice of the application).

In limited circumstances a defendant may ask the Administrative Court to judicially review a bail decision of the Crown Court. This will be where the decision can be argued to be irrational, procedurally improper or unlawful.

If a defendant is granted bail it will be either unconditionally or conditionally. Common conditions of bail include:-

  • Not to contact prosecution witnesses;
  • To reside at a particular address
  • To surrender passport (and not to apply for travel documents)
  • That a security (a sum of money) be lodged with the court
  • That a third-party act as a surety
  • To observe a curfew (sometimes monitored by a tag)
  • To report to a police station daily or weekly
  • Not to enter a certain area

If a defendant breaches a condition of his bail he is liable to be arrested and brought before the court. The bail position will be reconsidered and he/she may have more stringent conditions imposed or be remanded into custody.

Failure to surrender to bail (i.e. attending the next court hearing and on time) is an offence that can result in a custodial sentence. It will also weaken a defendant's chances of being granted bail in the future.

Regardless of the bail position, a defendant may only be kept in custody for a certain length of time before he/she is brought to trial. This is known as the "custody time limit". The prosecution may apply to the court for an extension of this time, but will have to show that there is sufficient cause to do this and that it has acted with all due diligence and expedition. If it fails to do this the defendant will be released on bail.

On the balance of probabilities

"On the balance of probabilities" is the standard of proof a party is required to establish to prove their case in civil proceedings. It means that the party's asserted position is more likely than not to be the correct one. Therefore, if the court believes that there is a greater than 50% chance that the claimant's case is made out then the claimant has discharged his/her burden of proof and should succeed in his/her claim. This differs from criminal proceedings where the burden of proof is on the prosecution to prove their case beyond a reasonable doubt.

Sometimes a defendant in criminal proceedings is required to discharge his case to this standard in respect of certain defences or applications.

Barrister

A barrister is a lawyer who acts as an advocate and provides specialist advice on cases. With some exceptions, barristers are not allowed to receive instructions direct from an individual and thus a solicitor will deal with the management/conduct of litigation and instruct/brief a barrister to undertake the advocacy element.

Until recently comparatively recently only barristers had a right of audience in the Crown Court, High Court, Court of Appeal and House of Lords (now Supreme Court), but now solicitor-advocates (also known as higher courts advocates) may also hold such a right.

All barristers area members of one of four Inns of Court and the General Council of the Bar of England and Wales. They are regulated by the Bar Standards Board.

Benefit

In the context of confiscation proceedings, the benefit is the figure the defendant is said to have accrued from his particular criminal conduct and, in if he/she is found to have a criminal lifestyle, his general criminal conduct.

The prosecution will conduct a confiscation investigation and a financial investigator will put together a statement (a "Prosecutor's Statement") together with evidence setting out how the defendant has benefited from his/her criminal conduct (along with what he/she considers to be the defendant's available assets). A figure representing the total value of the defendant's benefit will be put forward.

The defendant will have the opportunity to file a statement in response, together with supporting evidence. If the level of benefit cannot be agreed between the parties a determination will be made by a judge in the Crown Court (normally the trial judge) along with a determination as to the defendant's available assets. The level of the confiscation order will be the defendant's benefit, providing it does not exceed the value of the available assets.

If the defendant's benefit does exceed the value of the available assets the confiscation order will be made in the sum of the available assets.

Beyond a reasonable doubt

"Beyond a reasonable doubt" is the standard of the proof the prosecution are required to reach to discharge their burden of proof in criminal prosecutions.
Essentially, a defendant should be acquitted if there is a doubt as to their guilt and such a doubt is reasonable.

Bind Over

A bind over is a promise to a court by a defendant in criminal proceedings to "keep the peace" in a specified sum in return for which the underlying criminal proceedings are dismissed. It is limited by time and if the defendant is brought before the court within the period having breached the peace, then the sum becomes payable.

A bind over is not a criminal conviction.

Blackmail

Blackmail is an indictable-only offence that can carry a lengthy custodial sentence.
A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any "unwarranted demand with menaces".

This will normally mean that the defendant threatens to do something if the complainant does not (a) do something or (b) refrain from doing something. For example, a defendant might say to the complainant, "unless you give me £500 I will tell your boss that you weren't actually sick yesterday" of "If you see John again I am going to post those naked pictures of you on the internet".

The nature of the act/omission required by the demand is irrelevant (e.g. it could be "don't got to the pub on Friday" or "marry my sister") as is whether the defendant actually intended to carry out any action threatened arising from non-compliance with the demand (i.e. a defendant will still be liable if the threat is a bluff).

An unwarranted demand with menaces will include circumstances where the defendant believes that a demand reasonable per se, but that the use of menaces with the demand is not the proper means for reinforcing the demand. This will include using illegitimate means to cover legitimate debts (e.g. suggesting that some heavies will be coming round if a debt is not paid within a week).

Burden of Proof

The burden of proof is the obligation of the party bringing court proceedings to prove their case to the requisite standard.

Normally, the burden of proof is on the party making the assertion. For instance, in a criminal prosecution it will be for the prosecution to satisfy the court that offence was committed rather than for the defendant to prove it wasn't - albeit there may be cases where a defendant running a positive defence will need to establish the defence to the requisite standard.

The standard of proof in criminal matters is "beyond a reasonable doubt", i.e. the prosecution must prove beyond a reasonable doubt that the offence was committed. In civil cases, the standard of proof is normally a lower one, that being the "balance of probabilities" (i.e more likely than not).

Burglary

There are two offences of burglary:

  1. Entering any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm, or do unlawful damage to the building or anything in it; or
  2. Having entered a building or part of a building as a trespasser, stealing or attempting to steal anything in the building, or inflicting or attempting to inflict grievous bodily harm on any person in the building.

Burglary is normally an either-way offence. However, it will be indictable-only offence where:-

  1. it involves the commission or intention to commit an indictable only offence (such as inflicting grievous bodily harm)
  2. violence is used or threatened; or
  3. the defendant is facing a mandatory minimum term of imprisonment under the "three strikes rule".

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