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Refusing/failing to provide a roadside breath test
Refusing/failing to provide a specimen for analysis without reasonable cause
Rehabilitation of Offenders Act 1974
Released on licence
Remanded in custody
Reply to Defence
Reprimands and final warnings
Restraint Order (POCA)
Rights of audience
Right to silence
Royal Courts of Justice (RCJ)
Rape is an offence committed when:-
- A defendant intentionally penetrates the vagina, anus or mouth of another person with his penis;
- The other person does not consent to the penetration; and
- The defendant does not reasonably believe that the other person consents.
Rape is an indictable-only offence and carries a maximum sentence of life imprisonment.
Recklessness is a complex legal concept which may loosely be described as a state of mind that if established - and combined with a certain act - will make a defendant guilty of certain offences, regardless of whether there was any specific intent. Such offences are known as "crimes of basic intent".
Recklessness is the process of deliberately closing one's mind to the obvious risks of a certain action.
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 grass may break and is proceeding in any event.
"Crimes of basic intent" require intention or recklessness, as opposed to "crimes of specific intent" where only intention will suffice (e.g. murder).
Re-examination is the process (during a trial) of a party asking further questions of a witness he/she has called. Re-examination (which will be carried out by a lawyer if a party has one) follows on from examination-in-chief and cross-examination. Questions raised during re-examination should be limited to matters raised during cross-examination.
The purpose of re-examination is to give a witness the opportunity of setting straight any false impression that may have come about as a result of cross-examination.
Refusing/failing to provide a roadside breath test for analysis without reasonable cause is a summary-only offence that can result in fine being imposed. The court may also endorse a defendant's licence with penalty points or disqualify the driver for a period of time.
A police officer is entitled to request a test if he/she suspects an individual in control of a vehicle, driving or attempting to driver has:
- committed a moving traffic offence;
- consumed alcohol; or
- been involved in an accident.
In practice, if an individual fails to provide a roadside breath test or fails a roadside breath test, he/she is likely to be arrested and conveyed to a police station. At the police station an investigation will continue into whether a drink/drug-driving offence may have been committed (e.g. driving with excess alcohol or driving whilst unfit through drink or drugs), in addition to any failure to provide a roadside breath test. It is likely that the individual will be required to give specimen for analysis (normally a specimen of breath). If the individual fails or refuses to provide a specimen of breath for analysis [at the police station] a further and more serious offence may be committed.
Refusing/failing to provide a specimen for analysis without reasonable cause is a summary-only offence that can technically result in a custodial sentence being imposed, but will normally result in the imposition of a fine.
Refusing/failing to provide a specimen for analysis without reasonable cause is committed when an individual fails to provide a specimen (of breath, alcohol or blood) when requested by the police. The police are entitled to make such a request if they suspect a drink/drug-driving offence may have been committed (e.g. driving with excess alcohol or driving whilst unfit through drink or drugs).
If the breathing machine ("intoximeter") does not register a reading for two samples of breath the defendant can be found to have failed to provide a specimen unless he/she can satisfy the court that there was a reasonable excuse. For example, the defendant may assert that asthma prevented him/her from providing a sample or that the machine was faulty. In each case the burden will be on the defendant to establish the defence.
A defendant found guilty of failing to provide a specimen will face a mandatory driving disqualification for a period of at least a year. The period of disqualification may be reduced if the court offers the defendant the opportunity to take part in a driver rehabilitation course. The defendant must agree to attend such a course, pay for it and complete it. If successfully completed the defendant will be entitled up to have their period of disqualification reduced by up to 25%.
In extremely limited circumstances a defendant may be able to argue special reasons apply for not imposing a disqualification.
This offence relates to requests made at a police station as opposed to requests made at the roadside. Failure to provide a roadside breath test is a separate offence.
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... If asked "do you have any previous convictions?" he/she will simply be able to answer "no".
Certain professions (e.g. law, education, medicine, policing) are exempt from the Act and specifically require the disclosure of spent convictions.
The length of time after which convictions are deemed to be spent will depend on the length/type of sentence and/or disqualification the defendant receives and whether he/she is an adult or juvenile. This may be a matter of months or a number of years.
Anyone who is unclear about whether a conviction needs to be disclosed or not should take legal advice as failing to disclose an unspent conviction may result in dismissal from employment or even a prosecution. Conversely, employers are not allowed to take spent convictions into account when considering a job application.
It is important to remember that the Act will not apply to foreign jurisdictions where spent convictions will have to be disclosed unless there is a law of that jurisdiction says otherwise.
An individual released on licence is still technically serving a prison sentence until the term of imprisonment handed down has expired.
During the licence period the individual is expected to:-
- Be "well-behaved" and not commit any further offences or do anything that could put people in danger.
- Keep in touch with his/her probation officer and do what they ask him/her to do, including attending appointments punctually and behaving properly throughout.
- live at an address approved by his/her probation officer and allow him/her to visit the address.
- obtain permission before travelling outside the UK
- observe any curfew conditions
- observe any other conditions imposed by his/her probation officer.
If an individual breaches the terms of the licence then he/she is liable to be recalled to prison to serve the remainder of the sentence in custody.
If a defendant in criminal proceedings is refused bail then he will be held in custody (normally prison) until the outcome of the proceedings (unless a successful application for bail is made in the interim), subject to rules relating to custody time limits as set out below. This is known as being "remanded in custody".
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).
A Reply to Defence is a statement of case in civil proceedings that is filed/served after a Defence has been filed/served.
A Reply to Defence is normally optional (assuming there has been no counter-claim/"Part 20" claim) and will only need to be filed if the claimant wishes to allege facts in response to matters raised in the Defence that were not previously raised in the Particulars of Claim.
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).
A Reprimand or Final Warning is similar to a caution; however it may only be administered to a juvenile. It is an alternative method of disposing with a criminal offence (as opposed to a prosecution) and an attempt to keep a juvenile out of the criminal justice system.
A Reprimand or Warning is administered by the police, often following consultation with a Youth Offending Team. Reprimands and Warnings are not the same as a criminal conviction and carry no form of punishment as such. However, a Warning will result in the referral of the juvenile by the police to a Youth Offending Team, which will normally require the juvenile to participate in a rehabilitation programme. The intended purpose of a rehabilitation programme is to tackle the needs of the child and to attempt to prevent them from re-offending. A Reprimand or Warning may be referred to in court if the defendant is subsequently convicted of a separate offence.
A Reprimand or Final Warning may only be imposed if:-
- There is sufficient evidence to provide a realistic prospect of a conviction
- The juvenile suspect admits that he is guilty of the offence; and
- The police must be satisfied that it would not be in the public interest for the juvenile suspect to be prosecuted.
A Reprimand is likely to be administered for less serious matters (as opposed to a Warning or a charge), although a second Reprimand may be administered if sufficient time has passed and the juvenile has stayed out of trouble. A juvenile suspect who has previously received both a Reprimand and a Warning is unlikely to be offered a further warning, and will normally be charged (as will a juvenile suspect accused of a serious offence).
A Restraining Order is an order made in criminal proceedings that prohibits an individual from partaking in specified acts. These will normally be:
- Contacting one or more specified individuals;
- Visiting a specified place; or
- Engaging in specified acts.
The prohibitions will remain in place for a specified period of time, until further notice or until a successful application for the Order's variation/discharge.
A Restraining Order is similar in nature to a civil non-molestation order/injunction. It may be imposed on an individual following their conviction or acquittal for/of any criminal offence, providing the appropriate test is satisfied.
The test to be applied by the court is whether the order is necessary to protect the persons named in it from harassment or conduct that will put them in fear of violence.
The test to be applied by the court is whether the order is necessary to protect the persons named in it from harassment.
A Restraining Order may not be made where proceedings have been discontinued or withdrawn.
If an individual breaches a Restraining Order without reasonable excuse he/she will be committing an either-way offence. This can result in the imposition of a custodial sentence.
Notwithstanding an individual's right to oppose the imposition of a Restraining Order or subsequently apply to vary/discharge it, the imposition of such an Order in the magistrates' court may be appealed to the Crown Court.
Based on a freezing injunction (Mareva Order), a Restraint Order is an order obtained by the Prosecuting body on a without notice (ex-parte) basis in the Crown Court.
A typical order prohibits the defendant from dealing with or disposing of his assets or assets he/she controls. It may specify a particular set of assets or be limited to such assets, or a particular value. Frequently however, the order covers all of a defendant's assets (particularly when the extent of a defendant's assets is unknown).
Breaching the terms of a Restraint Order or assisting someone in breaching its terms is a contempt of court and can result in imprisonment, fine or the forfeit of assets.
A Restraint Order will normally be served on the defendant's bank at which point the banks are compelled to "freeze" the accounts of the defendant. A copy of the order will be served on the defendant.
A Restraint Order may also have a "disclosure requirement", requiring a defendant to file and serve an affidavit identifying his/her assets. It may also have a "repatriation requirement" requiring the defendant to bring any assets he/she holds overseas into the jurisdiction.
The purpose of a Restraint Order is to prevent the dissipation/concealment of assets and preserve them for prospective confiscation proceedings (in anticipation of a confiscation order being made after conviction).
A Restraint Order can now been obtained by the Prosecution pre-charge and even pre-arrest - providing an investigation is underway. The applications are made without notice as if a defendant was warned that an order was about to be made he/she may attempt to frustrate the process by concealing/moving their assets.
A defendant can apply for a Restraint Order to be discharged or varied, albeit that a Restraint Order will normally have a provision for a living allowance.
As with a freezing injunction (Mareva Order), receipt of a Restraint Order is often the first warning a defendant will have the he/she is about to be the subject of substantive proceedings.
A Restraint Order should not be confused with a "Restraining Order" which seeks to restrain an individuals (for example in the context of harassment proceedings) rather than assets.
In a criminal case, a retrial may take place in the following instances:-
- The failure of a jury to agree upon a verdict (a "hung jury")
- The failure of magistrates to agree upon a verdict
- When ordered by the Court of Appeal (normally after a conviction being quashed)
- After a "tainted acquittal" (e.g. where there has been jury tampering)
- After an irregularity in the original trial that resulted in the jury being discharged (a "mis-trial")
- In very limited circumstances, after an acquittal (only for certain serious offences when compelling new evidence comes to light)
Cases involving significant public interest factors in favour of prosecution are more likely to warrant a re-trial. Any application for a retrial will normally be made by the prosecution.
There is a presumption that the prosecution will seek a re-trial where a jury fails to agree on a verdict at the first trial. Where two juries fail to reach a verdict, the presumption is that the prosecution will not seek a third trial unless there are exceptional circumstances (normally evidence of jury tampering or fresh evidence).
A right of audience is the right for a lawyer to appear in a court on behalf of a party to the proceedings.
Generally, solicitors and barristers have rights of audience to appear before magistrates' courts and county courts, whereas only barristers can appear before higher courts (such as a crown court, High Court, Court of Appeal and Supreme Court). However, some solicitors (solicitor-advocates/higher court advocates) also have rights of audience in the higher courts.
The right to silence refers to the principle that a defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.
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.
The principle of the right to silence has been eroded considerably in recent years. A defendant who fails to offer an explanation when given the opportunity during a police interview may find that this is raised at trial and that the jury, district judge or magistrates is asked to draw an adverse inference from their silence.
Certain financial and regulatory investigatory bodies (e.g. the Serious Fraud Office, Serious Organised Crime Agency or the Financial Services Authority) have the power to require a person to answer questions. However, if a person is compelled in such a way, the prosecution cannot adduce such evidence in a trial against that individual.
Robbery is the offence of theft accompanied with violence or the threat of violence.
Robbery is indictable-only.
The Royal Courts of Justice is located on the Strand in Central London. It houses both the Court of Appeal and High Court.