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Case Stated / Appeal by way of Case Stated
Cash detention and forfeiture
Causing death by careless or inconsiderate driving
Causing death by dangerous driving
Causing death by driving when unlicensed, uninsured or disqualified
Civil Procedure Rules (CPR)
Civil Recovery Order
Code for Crown Prosecutors
Committal for Sentence
Common Assault/Common Assault and Battery
Confiscation Enforcement Proceedings
Conspiracy to defraud
Contempt of Court
Counter-claim/"Part 20" Claim
Court of Appeal
Criminal Cases Review
Criminal Procedure Rules (CrPR)
Crown Court Bail Application
Crown Prosecution Service (CPS)
Custody Time Limits
Case law is the term used to describe previous decisions of the High Court and appellate courts (known as authorities) that bind future decisions of lower courts on legal principle (known as "stare decisis").
Case law seeks to plug the gaps between statute laws by interpreting the law and clarifying how it should be applied in certain circumstances. Statute law is interpreted by the courts whose decisions are then binding on courts of the same and lesser jurisdiction.
For example, if after hearing an appeal the Court of Appeal or Supreme Court decided that a certain arrangement did not constitute a criminal "conspiracy", then that decision (authority) may be cited in the Crown Court in the future (it being a lower court) and if the situation was analogous then the Crown Court should be bound by the principle of the authority (known as the ratio).
An authority is binding on all courts beneath the decision-making court. Therefore, if the Supreme Court (the highest court in the land) decided a principle, the Court of Appeal could not go against the same principle in a future decision. It would have to be satisfied it was dealing with a different principle.
Of course, this is not an exact science and it is not unusual for parties to engage in legal argument with each side citing a different authority. A party may argue that an authority applies or it may attempt to distinguish it on the facts (i.e. argue that it is not analogous). This in turn may produce an appeal of its own if one party thinks the judge made the wrong decision. This may produce a new authority offering further clarification on the law. Over hundreds of years a tapestry of authorities has been evolved to deal with a plethora of situations.
The logic behind case law is the principle of "certainty"; that two individuals in the same situation should be treated in the same way by the judicial system.
Statute law always prevails over case law and the process of passing a new statute may reverse years of case law.
Case Stated is the process of the Magistrates' Court or Crown Court asking the Administrative Court whether a decision it has made was wrong in law or beyond its jurisdiction. Proceedings are instigated, by a party to the proceedings (i.e. the prosecutor or the defendant) applying to the justices/clerk of the Magistrates' Court/Crown Court to "state a case" for the opinion of the Administrative Court on the question of law or jurisdiction involved.
Such an application must take place at the outcome of proceedings. There is a strict time limit on making such an application.
The Administrative Court may confirm that the decision of the Magistrates' Court was a proper one; or, if not, it may substitute any order, sentence or conviction made by the Magistrates' Court.
Making an application for a case to be stated will prevent a defendant from subsequently appealing the decision of the Magistrates' Court to the Crown Court (which may or may not be the more appropriate way of challenging the decision of the Magistrates' Court).
There is considerable overlap between case stated proceedings and judicial review proceedings.
Under the Proceeds of Crime Act 2002, a police officer is able to seize cash that he/she has reasonable grounds for suspecting (a) to have been obtained through unlawful conduct or (b) to be intended for use in unlawful conduct. "Unlawful conduct" is conduct that constitutes an offence (or would if it had occurred within the jurisdiction of England and Wales). The cash seized must be over a certain amount (currently £1,000).
The police are normally only able to hold cash for 48 hours. After this time they must make an application to the Magistrates' Court for continued detention of the cash. The Magistrates' Court may order its detention for up to three months if it is satisfied that there are reasonable grounds for the officer's suspicion and that the continued detention is justified for the purposes of investigating its origin or intended use. Further applications may be made for periods of detention lasting up to three months, up to a total of two years.
The police may apply to the Magistrates' Court for the cash to be forfeited. The court will order the cash to be forfeited if it is satisfied that it was obtained through unlawful conduct or was intended by any person for use in unlawful conduct.
A defendant who has had cash seized may apply to the Magistrates' Court for the cash to be returned. The court will order the cash to be returned it is satisfied that the cash was not obtained through unlawful conduct and was not intended by any person for use in unlawful conduct.
Cash detention and forfeiture proceedings are civil proceedings and in relation to both applications for the forfeiture of the cash and the detention of the cash, parties need only prove their case on the "balance of probabilities" - i.e. that their position is more likely than not to be the correct one.
There is no requirement for the defendant to be the subject of criminal proceedings.
Causing death by careless or inconsiderate driving is an either-way motoring offence that will often result in a custodial sentence being imposed. The court is also obligated to disqualify the driver for at least one year.
Causing death by careless or inconsiderate driving is committed when the defendant's driving falls below the standard expected of a reasonable, prudent and competent driver in all the circumstances of the case and it results in another's death.
Examples of where driving is careless or inconsiderate may be alleged include driving too close the vehicle in front, jumping a red light, changing a CD, undertaking, driving whilst reading a map, applying make-up, lighting a cigarette and pulling out in front of another vehicle.
It is not necessary for the prosecution to prove that the defendant intended to drive in such away or was reckless as to whether they drove in such a way; it will be sufficient to show that (on an objective basis) that the driving was below the necessary standard and thus negligence/inexperience could result in a conviction.
An aggravated form of the offence "Causing Death by Careless Driving when under the influence of Drink or Drugs or having failed either to provide a specimen for analysis or to permit analysis of a blood sample" is indictable-only and carries a considerably more substantial maximum prison term.
If the way a driver is driving falls far below the minimum acceptable standard expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous then he/she may face the more serious allegation of causing death by dangerous driving.
Causing death by dangerous driving is an indictable-only motoring offence that will normally result in a substantial custodial sentence being imposed. Disqualification for a period of at least two years is mandatory (as is an extended re-test upon the expiration of the disqualification).
Causing death by dangerous driving is made out if the way a driver is driving falls far below the minimum acceptable standard expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous; and the driving causes another's death.
Examples of where dangerous driving may be alleged include racing, ignoring road signs, aggressive driving/overtaking, driving when unfit, driving when a vehicle has a dangerous fault/unsafe load.
It is not necessary for the prosecution to prove that the defendant intended to drive in such away or was reckless as to whether they drove in such a way; it will be sufficient to show that (on an objective basis) that the driving was far below the necessary standard and it was obviously dangerous, thus negligence/inexperience could result in a conviction.
Causing death by driving when unlicensed, uninsured or disqualified is an either-way motoring offence that can often result in a custodial sentence being imposed. The court is also required to disqualify the driver for at least one year.
Unlike the other death by driving offences, offence is not linked to the standard or quality of driving on the part of the defendant. Culpability arises from the defendant driving a vehicle on road when by law he is not allowed to do so.
A caution is alternative method of disposing with a criminal offence (as opposed to a prosecution).
A caution is administered by the police, but normally on the advice of the Crown Prosecution Service. A caution is not the same as a criminal conviction and carries no form of punishment. A caution may be referred to in court if the defendant is subsequently convicted of a separate offence.
A caution may only be imposed if:-
- There is sufficient evidence to charge the suspect;
- The suspect admits that he is guilty of the offence; and
- The suspect agrees to be cautioned and confirms he/she is aware that the caution may be referred to if they are convicted of a later offence.
A suspect who has previously received a caution is unlikely to be offered a further caution, and will normally be charged.
Whilst originally introduced as a way of dealing with juveniles, cautions can now only be given to adult offenders. In particular, cautions are often offered to the elderly, the unwell or individuals with other mitigating circumstances. However, whether a caution is offered or not will ultimately depend on the seriousness of the offence as well as other factors.
Instead of being cautioned, juveniles may now be the subject of a reprimand or final warning.
A charge is a formal accusation of one or more offences (normally made by the police) against a suspect. After charge a suspect becomes a "defendant" and will be bailed to attend a court hearing or held in custody until the next available court sitting.
A charging order is an order of the court placing a 'charge' on the judgment debtor's property, such as a house, a piece of land, stocks or shares. The charge will be the amount of money the judgment creditor owes. The charging order will not automatically recover money for a judgment creditor (it does not force the judgment debtor to sell the property), but it may safeguard the asset for enforcement in the future.
A charging order on a property means that when the property is sold, the charge has usually to be paid first before any of the proceeds of the sale can be given to the judgment debtor.
Any existing charges on the property (such as mortgages) will be paid first.
Civil law (also known as "private law") concerns individuals enforcing private rights against one another.
Civil law will normally involve Party A asking Party B to:
- do something;
- refrain from doing something; or
- to pay compensation ("damages") to correct something Party B has done or omitted to do (e.g. where Party B has been negligent).
If the matter cannot be agreed between the parties, a claim may be issued in court for judicial determination of the matter. The purpose of the court will be to try and put the wrong right; not to punish the individual who committed the wrong (as in the case of criminal law).
Unlike in criminal law (where the state decide whether to prosecute), whether individuals pursue civil remedies is entirely a matter for them.
Introduced in 1999, the Civil Procedure Rules (CPR) set out how matters in the civil courts should proceed and stipulate how the parties to litigation should conduct themselves. They are regularly updated.
The rules are broken into a number of "Parts" each dealing with different aspects of civil procedure. Parts are supplemented by "Practice Directions".
The purpose of the Civil Procedure Rules is to make legal proceedings cheaper, quicker, and easier for everyone to understand.
A Civil Recovery Order is a mechanism by which the state (currently through the Serious Organised Crime Agency [SOCA]) can take civil proceedings in the High Court to recover property that they believe has been obtained through criminal conduct or with money obtained through criminal conduct.
Such an action is against the property itself and it is not necessary for criminal proceedings to be in place. To succeed in recovering the property, SOCA only need to prove their case on the "balance of probabilities".
SOCA will often obtain a property freezing order (similar to a freezing injunction/Mareva order) on the property (following a without notice/ex-parte application) prior to the commencement of the substantive proceedings in order to prevent the individual from dealing with the subject assets.
"Claim" is the general term now given to a civil law suit.
A Claimant (previously known as a "plaintiff") will issue a claim at court seeking a remedy against one or more defendants. For example, a claim may seek damages for negligence or an order that a defendant fulfil their obligations under a contract.
A Claimant (previously known as a "plaintiff") is an individual who brings a court claim seeking a remedy against one or more defendants.
A claim form is a document completed by a claimant and issued at court that sets out the basis of a civil claim against a defendant.
A claim form should contain or attach detailed "particulars of claim"; if not it should indicate that these will follow.
The Code for Crown Prosecutors (which can be found in full on the CPS website) is the prescribed basis upon which the CPS (and other Crown agencies acting a prosecutor) decides whether a suspect should be charged and, if so with which offences. It also deals with the role of the Crown in the conduct of a prosecution.
The "Full Test" is split into two parts - "the evidential test" and the "public interest test" and stipulates various factors which should be considered when determining whether both tests have been met.
For the "evidential test" to be met, the prosecutor must be satisfied that the quality of evidence is such that there is a 'realistic prospect of conviction'.
Notwithstanding the evidential test being met, a prospective prosecution may fail the "public interest test" if there is a persuasive argument against prosecution (e.g. the disproportionate impact a conviction for a minor offence may have on a suspect's career). The Code sets out various factors, although for serious offences it will nearly always be in the public interest for a suspect to be prosecuted.
Both the "evidential test" and "public interest test" must be met for a prosecution to take place. The prosecutor has a duty to apply the test prior to charge and to review the matter (to ensure both tests remain met) if the circumstances of the case change.
The "Threshold Test" is a temporary test that is applied when the full test is not yet met, but the prosecutor is proposing that the suspect be kept in custody. Where a prosecutor makes a charging decision in accordance with the Threshold Test, the case must be reviewed in accordance with the Full Test as soon as reasonably practicable, taking into account the progress of the investigation.
A skilled solicitor may be able to convince a prosecutor to discontinue a matter against a defendant (after charge and even a court appearance) or alternatively that there be an alternative disposal (such as a caution). This is done by making representations (normally written) that one or both of the tests are not met.
A defendant is committed to the Crown Court for sentence when he/she has been convicted of an either-way offence in the Magistrates' Court (either following a guilty plea or a trial) and the magistrates or District Judge do not think their sentencing powers are sufficient given the circumstances of the offence.
The procedure is not available for summary-only offences, which can only be dealt with in the magistrates' court or indictable-only offences, which must be sent to the Crown Court prior to a defendant entering a plea.
A committal hearing is a hearing that takes place in the Magistrates' Court on either-way matters where the defendant has elected a Crown Court trial or the Magistrates' Court has declined jurisdiction to deal with the matter.
The purpose of the hearing is to determine whether there is a "prima facie" case to answer, as against a defendant.
The term "prima facie" means "on the face of it". In this context, this refers to the prosecution papers served (the committal papers), i.e. is there a case to answer on the papers served? If the papers contain evidence that the alleged offence was committed then there is a case to answer. For the purpose of a committal hearing, the prosecution's evidence is assumed to be true and the defendant cannot introduce his own evidence in rebuttal.
If there is a case to answer then the defendant will be committed to stand trial at the Crown Court and a Plea and Case Management Hearing fixed. Such a hearing will normally take place around six weeks later.
If there is not a case to answer the case should be discharged. An example of this would be a defendant who is charged with assault occasioning actual bodily harm/ABH where there is no evidence put forward in the papers of any injury.
In reality, committal papers are often not served until several minutes before the committal hearing (at court). The solicitor or barrister representing the defendant therefore needs to consider the papers promptly. If he or she is satisfied there is a case to answer then this will be conceded and the hearing will only last a few minutes (and the defendant will be committed). If he or she is unsatisfied they will normally ask the court to set the matter down for a "contested committal" at a later date when the papers will be read through and the defects highlighted.
The process is designed to act as a filter to prevent flawed prosecutions from reaching the Crown Court.
"Common Assault" and "battery" are both summary-only offences which can carry a custodial sentence. They are now prescribed in statute.
An "assault" is committed when a defendant intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.
A "battery" is committed when a person intentionally or recklessly applies unlawful force to another.
Technically, nearly all offences charged will be a "battery" (which may or may not be accompanied by an assault), but such offences are often referred to as common assault nonetheless.
An assault/battery that causes injury is a separate offence known as an assault occasioning actual bodily harm (ABH). An assault/battery that causes very serious injury is known as unlawful wounding/inflicting grievous bodily harm (GBH).
Replacing a number of different kinds of community orders, a generic community order is a punishment handed down at sentence where the court deems the matter too serious for a fine to be imposed, but not serious enough to merit custody (taking into account the circumstances of the offence and any mitigation). A judge is able to choose different elements to make up a bespoke community order which is relevant to that particular offender and the offence(s) for which they have been convicted. For example, a community order may have a requirement that an individual undertake 100 hours of compulsory unpaid work.
The range of requirements available with a generic community order are:
- Compulsory (unpaid) work;
- Participation in any specified activities;
- Programmes aimed at changing offending behaviour;
- Prohibition from certain activities;
- Exclusion from certain areas;
- Residence requirement;
- Mental health treatment (with consent of the offender);
- Drug treatment and testing (with consent of the offender);
- Alcohol treatment (with consent of the offender);
- Community orders will be organised by the Probation Service.
If an individual breaches the requirements of a community order he/she risks being resentenced for the original offence(s). This can result in a custodial sentence being imposed.
In the context of criminal proceedings, a complainant is an individual who makes an allegation (normally to the police) of criminal behaviour that will trigger an investigation.
It is common when sentencing a defendant for more than one offence for a judge to impose two custodial sentences to run concurrently. This means he/she will serve both sentences at the same time. For instance, an individual convicted of two counts of burglary may receive a two-year prison sentence on the first count and a two-year prison sentence on the second count - to run concurrently. The total length of his/her sentence is therefore two years.
Conversely, a consecutive sentence is where a defendant is convicted of two counts and required to serve two sentences back to back. For example, a judge may impose a sentence of two years for a burglary and six months for a theft, to be served consecutively. The total length of the sentence is two and a half years.
Concurrent sentences are far more common.
The actual length of time served will depend on a number of factors.
A conditional caution is a form of caution.
Conditions will be attached to the administering of the caution. These will be rehabilitative (e.g. attending a substance abuse course) and/or reparative (e.g. cleaning up graffiti).
If an offender accepts a conditional caution and he/she subsequently breaches the conditions then they can be prosecuted for the original offence. A caution may only be imposed if:-
- There is sufficient evidence to charge the suspect;
- A specified prosecutor (such as the Crown Prosecution Service) authorises a conditional caution;
- The suspect admits that he is guilty of the offence;
- The suspect consents to a conditional caution and its conditions; and
- The suspect confirms he/she is aware of the consequence of non-compliance (i.e. prosecution)
Whether a conditional caution should be given (as opposed to a prosecution or a simple caution) will depend of whether the prosecutor considers that the conditions will be an appropriate and effective means of addressing an offender's behaviour or making reparation for the effects of the offence on the victim/community.
Conditional Discharge is a mechanism whereby a court discharges itself from the obligation to sentence provided that the offender does not re-offend within a specified period of time (usually twelve months, but potentially up to three years).
If the offender does re-offend in the prescribed time period then he/she is liable to be resentenced for the original offence (in addition to the new offence).
Confiscation Enforcement Proceedings are instigated in the Magistrates' Court where a convicted defendant has failed to satisfy a confiscation order.
Ultimately the Magistrates' Court can trigger the default sentence and commit the defendant to custody. The length of the default sentence would have already been determined at the same time the confiscation order was made.
A Magistrates' Court has no power to set aside or vary the confiscation order (such an application must be made in the Crown Court), but it can assess the defendant's liquid means and provide some ancillary relief (e.g. allow for the outstanding amount and interest to be repaid in instalments).
In exceptional circumstances (e.g. extreme delay on the part of the prosecution/confiscation enforcement unit of Her Majesty's Court Service or serious ill-health on the part of the defendant) it may be possible to apply for a stay of the enforcement proceedings.
A confiscation order is an order that a convicted defendant hand over the benefit of their criminal conduct to the state (providing it does not exceed the level of their available assets).
If a confiscation order is not paid within the required time period the defendant is liable to serve a sentence of imprisonment in default (a "default sentence").
If a defendant has been convicted of an offence it is possible that the prosecution will ask the court to instigate confiscation proceedings, with a view to a confiscation order being made against the defendant.
In some cases, the prosecution will have already obtained a restraint order over the defendant's assets in anticipation of a confiscation order being made post-conviction.
The prosecution will attempt to show that a defendant has received a financial benefit (expressed as a figure) as a result of the particular criminal conduct for which he/she been convicted, or in limited circumstances, from their "general criminal conduct". This figure will be the subject of a confiscation order unless it can be shown that the level of a defendant's available assets is a lower figure, in which case the confiscation order will be capped at the level of a defendant's available assets.
Both parties will exchange statements (supported by evidence) setting out what they believe are the relevant benefit and available assets figures. If figures cannot be agreed then the matter is set down for a confiscation hearing at which a determination will be made. This hearing will normally take place before the trial judge in the Crown Court with the judge making the determination.
Once a confiscation order has been made, the defendant will be required to pay the specified amount within a certain time period. At the time of making the confiscation order the judge will also determine the length of the “default sentence” the defendant should serve in prison in the event of him/her failing to pay the confiscation order in time. If the default sentence is triggered, it is served in addition to any sentence the defendant has received for the substantive matter. The length of a default sentence will depend largely on the level of the confiscation order. It is not unusual for it to be longer than the sentence a defendant receives for the substantive matter.
In certain circumstances (for example where a defendant has been convicted of a qualifying offence such as drug trafficking), confiscation proceedings look further than the benefit from the substantive offence on the basis that the defendant is said to have a "criminal lifestyle". In these circumstances, a defendant's benefit will include two elements: benefit accrued as a result of particular criminal conduct relating to the offence for which he/she was convicted and benefit accrued from his/her "general criminal conduct". In assessing, the benefit accrued from a defendant's general criminal conduct the prosecution are able to rely on a set of statutory assumptions that state, amongst other things, that any income the defendant has received during a period of years preceding the offence has derived from his/her general criminal conduct unless the defendant can prove its legitimacy (a reversal of the burden of proof).
Needless to say, if a defendant is found to have a criminal lifestyle, the stakes are considerably higher and the original sentence may even become academic compared to the potential default sentence that could be imposed if the defendant cannot satisfy the court of the legitimacy of their income over the preceding years.
In the context of civil proceedings, a consent order is an order whereby the terms have been agreed by the parties and the court has simply sealed (or rubber-stamped) the order.
A consent order is a common method of avoiding a hearing (and the associated costs) where agreement has been reached as a result of negotiation between the parties.
A conspiracy is an agreement between two or more people to engage in an activity that would constitute an offence (or would do were it not for the fact it were impossible).
Common offences charged as conspiracies include conspiracy to rob, conspiracy to fraudulently evade excise duty, conspiracy to murder and the common law offence of conspiracy to defraud.
The prosecution only need to prove the agreement and not the conduct and thus this is an offence that is commonly charged where there is not sufficient evidence to charge for the conduct alone.
All conspiracy offences are indictable-only.
The offence of "conspiracy to defraud" is defined as two or more people (not all of whom will necessarily be known) agreeing to embark on a course of conduct which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve a fraud against a third party. The effect of the intended fraud would be to deprive the third party of something which is theirs or to which he/she would/might be entitled.
As with any conspiracy, the burden of proof is on the prosecution only to prove there was an agreement in place (in this case to defraud) and that the defendant was a party to it.
Despite the recent review of the law relating to fraud, this offence was not dealt with in the consolidating Fraud Act 2006. Nonetheless, it remains a popular choice for prosecutors.
Conspiracy to defraud is an indictable-only offence.
The court has an inherent jurisdiction to deal with acts or behaviour which is intended to frustrate or devalue its proceedings. Contempt of Court is summarily punishable by imprisonment. Examples include failing to comply with court orders such as a summons to give evidence or verbal or physical abuse of a judge or other member of court staff.
Contempt of court is behaviour that prejudices, impedes or interferes with the judicial process/administration of justice.
There are two types of contempt: civil and criminal.
Breaching a court order is contempt of court and can result in the party in contempt being fined or imprisoned. Strictly speaking breach of an order a civil contempt matter, but it is criminal in nature.
Criminal contempt covers a variety of acts of misconduct inside or outside court, such as interrupting proceedings, refusing to answer questions in court or publishing material that may prejudice a jury or witness.
A contract is a binding legal agreement between two parties.
For a contract to exist there needs to be:-
- An offer and acceptance with all terms agreed
- An intention to create a legal relationship
"Certainty of terms" is required for a contract to be formed. If a party does not accept all the terms of an offer and proposes a variation to an offer, this will not create a contract, but will be construed as a counter-offer.
"Consideration" is required under a contract. This is where Party A does something in consideration of something Party B doing something. For example Party A will paint a wall for Party B and Party B will pay Party A cash for doing it. If Party A has to paint a wall and there is no obligation for B to do anything there is no consideration and can be no contract.
The final ingredient for a contract is "an intention to create a legal relationship". This will normally be self-evident. A court will not enforce agreement that was clearly not meant to be a legally enforceable one, for example a casual agreement between family members (e.g. a sibling taking out the rubbish in consideration for an extra helping of dessert).
With some notable exceptions (e.g. the sale/disposition of land), a contract does not need to be in writing. For instance, it may be formed orally or by the action of putting a coin in a slot. However, it will normally be easier to evidence a written contract and the agreed terms.
Aside from express terms (those agreed between the contracting parties), terms can be implied into contract by statute law or by other means (such as an implied term under the Sales of Goods Act 1979 that a product sold be "fit for purpose"). Statute law or case law may also render some terms unenforceable (such as the exclusion of liability for death under the Unfair Contract Terms Act 1977).
"Breach of contract" is a common cause of action in the civil courts, in which parties seek to enforce terms under a contract or sue for damages for a party's failure to honour such terms.
If a defendant is found guilty of an offence he/she receive a conviction for that offence. The conviction will be recorded and the convicted defendant will then be sentenced.
A record is kept of an individual's previous convictions and this may be referred to when a defendant is sentenced for any subsequent offences. Previous convictions can also sometimes also be adduced as bad character evidence in any subsequent trial.
After a certain time some (but not all) convictions are deemed to be "spent" under the Rehabilitation of Offenders Act 1974. This will mean that the defendant is not required to disclose any such previous convictions when applying for a job etc.
However, certain professions are exempt from this provision and specifically require the disclosure of spent convictions.
A copyright gives exclusive permission to the owner of a work to print and publish that work. In the UK, civil and criminal liability for breaching copyright is dealt with under the Copyright Designs and Patents Act 1988.
Corporate manslaughter is an indictable-only criminal offence for which only corporations and a limited number of other organisations can be prosecuted.
To be found guilty of corporate manslaughter an organisation must be found to have managed or organised its activities in a way which:-
- causes a person's death; and
- amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased.
During a corporate manslaughter trial, a jury will be asked to consider the health and safety "culture" and arrangements of the defendant organisation. This will include considering breaches of health and safety legislation, whether the organisation has taken account of any appropriate health and safety guidance and the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such serious management failure or have produced tolerance of it.
Sentences include unlimited fines, remedial orders and publicity orders. A remedial order will require the organisation to take steps to remedy any management failure that led to a death.
The court can also impose an order requiring the organisation to publicise that it has been convicted of the offence, giving the details, the amount of any fine imposed and the terms of any remedial order made.
The term "costs" is generally used in legal proceedings to refer to the legal costs of each party.
In civil proceedings, costs are normally said to "follow the event". For example, if a claimant brings a claim against a defendant and is successful he will not only be awarded damages and/or any other relief, but also costs (i.e. the defendant is ordered to pay legal costs the claimant has incurred in bringing the claim). Conversely, if a misguided claim fails then the claimant should normally be ordered to pay any costs the defendant has reasonably incurred in defending the claim. The logic of this rule is that successful parties should not be out of pocket. It also deters parties from advancing frivolous cases.
This principle can also relate to an interim application. For example, if a misguided application for summary judgment fails then the court is likely to order the claimant to pay the defendant's costs of defending it.
The issue of costs can considerably raise the stakes in legal proceedings. Legal costs can be very high and if a party is ordered to pay the other's side's costs - on top of paying for their own - this can be crippling to a party (and may even exceed the level of damages at stake). Costs are therefore a very important tactical consideration in any civil case. Settlement discussions are of great importance and there are adverse cost consequences of not accepting an offer that is not subsequently bettered at trial (e.g. if Party A offers to settle for £15K, Party B rejects it and goes on to trial, a court may order Party B to pay Party A's costs from the point of offer if the court orders damages in the sum of less than £15K).
This is a very simplified introduction to an important element of civil litigation. There a numerous orders than can be made in relation to costs (e.g. for non-compliance with protocols) and in some instances costs are not normally recoverable from the losing party (e.g. in the small claims court and various tribunals). Even if an order for costs is made, the paying party will often be able to challenge the level of costs (by arguing the costs were unreasonably incurred). This in itself can create "satellite litigation".
In criminal cases, a convicted defendant may be ordered to pay the costs of the prosecution (or a contribution to them). An acquitted defendant (who was not the subject of legal aid) may be entitled to an order that his defence costs be paid from "central funds" (i.e. the state), but such an order might not be made where a court considers a defendant has "brought the prosecution on himself".
A counter-claim is a claim made by a defendant in response to the claimant’s claim. It is made at the time of filing a Defence.
An example of where a counter-claim may occur is set out here:-
Party A pays Party B (a builder) to undertake some specified renovation work. Party A is not happy with the work Party B does, refuses to pay him and sues him for the cost of paying another builder to put the job right. Party B defends the claim stating he did the work as specified. In addition to this, Party B makes a counter-claim for his unpaid fees.
Another example would be the reverse of these facts (i.e. the builder sues first for unpaid fees).
A counter-claim against an individual other than the claimant requires an application to the court (unlike a counter-claim against the claimant).
If a counter-claim/"Part 20" claim has been made by the defendant, the claimant will normally incorporate a Defence to the counter-claim/"Part 20" claim into a Reply to Defence (and if he is the target of the counter-claim/"Part 20" claim he must file a Defence to it or risk judgment-in-default).
County Courts hear a variety of civil, family and bankruptcy matters.
There are currently 216 county courts in England and Wales. Hearings are presided over by a circuit judge or district judge (civil).
High value or complex matters tend to be dealt with in the High Court
The venue at which justice is administered and judicial rulings are made on the law and how it should be applied to the circumstances of a case.
The Court of Appeal, which sits in London at the Royal Courts of Justice on the Strand, consists of two divisions: the civil division and the criminal division.
The Court of Appeal hears appeals from the High Court, Crown Court, County Court and a variety of appeal tribunals (including the Employment Appeal Tribunal, the Immigration Appeal Tribunal and the Lands Tribunal).
The Criminal Cases Review Commission (CCRC) is a public body that independently investigates possible miscarriages of justice.
The Criminal Cases Review Commission assesses whether convictions or sentences should be referred to the Court of Appeal.
Referrals by the The Criminal Cases Review Commission will normally only be considered after the appeal process has been exhausted by a defendant.
Appeals are heard by senior judges known as Lords and Ladies Justices of Appeal. There are approximately 40 of such judges.
A defendant is guilty of the offence criminal damage if, without lawful excuse, he/she destroys or damages any property belonging to another, intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged.
A defendant will not be guilty of criminal damage if he/she-
- had permission or believed he/she had permission;
- believed he/she would have had permission to destroy or damage the property had the person entitled to give permission known of the circumstances; or
- believed the property was in immediate need of protection and the destruction or damage was caused as a consequence of his/her efforts to protect the property.
Criminal damage is a crime of basic intent. The offence may occur when the defendant caused damage to another's property and the defendant intended it or where the defendant didn't intend it as such, but was reckless as to whether it would occur. For example, an individual throwing a ball against a window may not intend to break the grass, but he/she knows that the glass may break and is proceeding in any event.
Criminal damage is an either-way offence if the value of the property destroyed/damaged is over £5,000; otherwise it is a summary-only offence.
Related offences include criminal damage with intent to endanger life, arson, racially/religiously motivated criminal damage, threatening to cause criminal damage and possessing items with intent to cause criminal damage (e.g. matches and petrol).
Criminal law is the law the state (referred to as "the Crown") - and occasionally private individuals/institutions (see "private prosecutions")- uses to take legal action (in the form of a prosecution) against an individual (known as a defendant), for the benefit of the state as a whole. For example, it is in everyone's interests (and not just the victims) for a murderer, rapist or burglar to be punished/deterred from repeating such activities.
Criminal law differs to civil law, which concerns individuals enforcing private rights against other individuals. Again unlike civil law, criminal law is fundamentally concerned with punishing convicted defendants rather than compensating complainants/victims.
A convicted defendant is said to have a "criminal lifestyle" in the context of confiscation proceedings if one of several circumstances apply, the most common one being that he/she has been convicted of a qualifying offence (such as drug trafficking).
If a defendant is found to have a criminal lifestyle confiscation proceedings look further than the benefit from the substantive offence. In these circumstances, a defendant's benefit will include two elements: benefit accrued as a result of particular criminal conduct relating to the offence for which he/she was convicted and benefit accrued from his/her "general criminal conduct". In assessing, the benefit accrued from a defendant's general criminal conduct the prosecution are able to rely on a set of statutory assumptions that state, amongst other things, that any income the defendant has received during a period of years preceding the offence has derived from his/her general criminal conduct unless the defendant can prove its legitimacy (a reversal of the burden of proof).
Needless to say, if a defendant is found to have a criminal lifestyle, the stakes are considerably higher and the original sentence may even become academic compared to the potential default sentence that could be imposed if the defendant cannot satisfy the court of the legitimacy of their income over the preceding years.
Introduced in 2005, the Criminal Procedure Rules (CPR) set out how matters in the criminal courts should proceed. They are regularly updated.
The rules are broken into a number of "Parts" each dealing with different aspects of criminal procedure.
The purpose of the Criminal Procedure Rules is to ensure that criminal cases are dealt with "justly". This is defined in the Rules as:-
(a) acquitting the innocent and convicting the guilty
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account:-
(h) the gravity of the offence alleged,(ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected, and(iv) the needs of other cases.
Cross-examination is the process (during a trial) of a party asking questions of a witness called by the other side. Cross-examination (which will be carried out by a lawyer if a party has one) follows on from examination-in-chief, albeit it need not be restricted to matters raised during examination-in-chief.
If a witness is not cross-examined this amounts to an acceptance of his/her version of events.
The Crown Court holds criminal jury trials and also appeals from the Magistrates' Court.
There are 77 Crown Courts in the English and Welsh jurisdiction. The jury trials heard will be either serious indictable-only offences or either-way offences where a defendant has elected to be tried by a jury.
A Judge will preside over the trial and make any interim legal decisions (e.g. admissibility of hearsay or bad character evidence). At the end of a trial he/she will sum up the evidence and direct the jury on the law in relation to the appropriate offences/defences. It is then for the jury to determine whether the defendant is factually guilty of the offence(s) based on the evidence they have heard.
If a defendant is found guilty it is the Judge who passes sentence/makes any ancillary orders.
The Crown Court is more formal venue than the Magistrates' Court and (depending on the offence) Judges' sentencing powers can be significantly greater.
Trials will normally be conducted by barristers, although some solicitors (known as solicitor-advocates) are also able to appear in the Crown Court.
An appeal against a Crown Court conviction or sentence is made to the Court of Appeal and should be made within 28 days of the relevant decision.
A defendant remanded in custody (whether by the Magistrates' Court or Crown Court) is entitled to make a Crown Court bail application upon giving the prosecution and the Crown Court twenty-four hours written notice.
A defendant will not be produced in court for such an application (unless he is already due in court for another purpose), which can be made by a barrister or solicitor.
If a Crown Court bail application is unsuccessful a defendant is not entitled to make a further application unless there is a material change in circumstances (e.g. in the case of a defendant facing several counts, serious counts against him are dropped leaving only minor counts on the indictment).
In very limited circumstances, a defendant can apply to the Administrative Court for permission to judicially review a bail decision. To succeed an individual would have to do more than persuade the Administrative Court that the Crown Court had made the wrong decision; they would have to show that the decision was unlawful (i.e. the Crown Court had no power to refuse bail) or entirely irrational.
The Crown Prosecution Service (CPS) is the government body responsible for prosecuting most offences. They act as lawyers for the police and will advise the police on whether a suspect should be charged and with what offence(s). In making such decisions the CPS are required to follow the Code for Crown Prosecutors.
Following charge the CPS will prepare the case for prosecution and present the case in court.
The CPS has many different regional branches and comprises case workers, administrative staff, solicitors and solicitor-advocates. Crown Court trials are also briefed out to barristers.
The CPS is headed by the Director of Public Prosecutions, who in turn answers to the Attorney-General.
The CPS is often referred to as the "Crown" and "the prosecution", although strictly speaking these terms are not always synonymous.
The term custody, in the context of criminal proceedings, refers to incarceration/imprisonment.
If a suspect is charged with an offence and refused police bail then he/she is likely to be held in custody in a police cell ("policy custody"). This will only be until the defendant can be produced before a court.
A convicted defendant or a defendant refused court bail ("remanded into custody"), will normally be incarcerated in a prison.
There are currently 139 prisons across England and Wales. There are four categories of prison: category A, B, C and D. Category A has the highest security level, whilst class D has the lowest. Category D prisons are "open prisons" and prisoners are sometime able to leave during the day to work in the local community and even have home leave. A convicted offender will normally be sent to the local Category B prison where after time they will be "categorised" and sent to the appropriate prison (if the one they are at is not appropriate). Defendant on remand are normally held in "closed" prisons (i.e. Category A, B or C).
Individuals under the age of 21 are sent to Young Offenders Institutions, Juvenile Prisons, Secure Training Centres or Local Authority Secure Children's Homes (depending on their age/other factors).
Regardless of whether he was refused bail, 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 (conditional or unconditional).