Criminal Law. Mark Thomas

       Figure 1.2 Process of the criminal justice system

For our purposes, we shall focus on classification of offences and sentencing, as these considerations will feature when discussing the substantive criminal offences.

       1.7.1.1 Charge

      Following the alleged commission of the offence and any investigation thereafter, if there is sufficient evidence against the individual suspected of committing the offence, that individual will be ‘charged’. The decision to charge a suspect rests, largely, with the CPS. In order for a suspect to be charged, the ‘Full Code Test’ must be satisfied. The Full Code Test is provided under section 4 of the Code for Crown Prosecutors and is set out in two parts. The Code states that the individual or body considering a charge must be satisfied that:

      (a) there is sufficient evidence to provide for a realistic prospect of conviction (known as the evidential stage); and

      (b)it is in the public interest to prosecute (known as the public interest stage).

      If the relevant officer is content that the Full Code Test has been met, he or she may proceed to charge the suspect with an offence. See the fascinating case of SXH v CPS [2017] UKSC 30 in which the Supreme Court had to consider whether it was a breach of Article 8 of the ECHR (right to private life) to prosecute an individual for a criminal offence.

       1.7.1.2 Classification of offences

      In charging an individual with an offence, it is essential to understand how criminal offences are classified in England and Wales. Such classification is generally provided by the statute creating the offence by way of the description of the nature of the penalty on conviction. Three types of classification can be identified:

      (a) Summary-only offences: These are the least serious of the three classes of offences and are triable only in the magistrates’ court.

      (b) Either-way offences: Either-way offences may be tried either in the magistrates’ court or in the Crown Court. Where an either-way offence is tried in the magistrates’ court, it is tried as a summary offence, and where tried in the Crown Court, it is tried as an indictable offence.

      (c) Indictable-only offences: These are the most serious of the three classes of offences and are triable only in the Crown Court with a jury.

      Examples of such offences are provided in Table 1.3.

       Table 1.3Understanding the classification of offences

       1.7.1.3 Conviction and sentencing

      Following trial, whether in the magistrates’ court or the Crown Court, it will then be the responsibility of the jury or magistrates to return their verdict. Should the verdict be one of not guilty, the defendant is acquitted and is free to go. Should the verdict be one of guilty, the defendant is convicted and sentence must be passed.

      For the principles of sentencing and the types of sentences available to the courts, see 1.7.3.

       1.7.2 Evidence

      The law of evidence refers to the materials which may be produced in open court to prove that the defendant has, or has not, committed the offence in question. Although in theory (ie in the substantive law), a defendant may appear to be liable for a criminal offence, whether such liability is proven in practice will ultimately depend on the evidence available, the use of that evidence and how the arbiters of fact treat that particular evidence. For a thorough account of the law of evidence, see Doak, McGourlay and Thomas, Evidence: Law and Context, 5th edn (Routledge, 2018).

       1.7.2.1 Principles of evidence

      The rules of evidence are predicated on a number of core principles that apply to most forms of evidence. These core principles are detailed in Table 1.4.

       Table 1.4Core principles of evidence

Core principle	Explanation
Admissibility	The admissibility of evidence is a matter for the arbiter of law, ie the judge or magistrates. In R v Terry [1996] 2 SCR 207 (Canada) it was held that evidence will be admissible if: (a)it is relevant; (b)such that a jury, properly warned about any defects it might have, could place some weight on it; and (c)it is not excluded by any rule of law.
Relevance	The relevance of evidence is also a matter to be determined by the arbiter of law. According to Lord Simon in DPP v Kilbourne [1973] AC 729, evidence is relevant if ‘it is logically probative or disprobative of some matter which requires proof’. This essentially means that if the evidence goes to prove or disprove a particular matter in issue between the parties, it is considered as being relevant.
Weight	The weight of the evidence is a matter for the arbiters of fact; it is their role to determine how much weight they wish to afford to a particular piece of evidence. Like relevance, weight is a question of degree and ultimately depends on how the arbiters of fact view the usefulness of the evidence. At one end of the spectrum, the evidence may be of little probative value, being so weak that it is described as ‘insufficient evidence’, whereas, at the other end, it may be virtually conclusive of the facts Скачать книгу В начало < 16 17 18 19 20 21 22 23 24 25 > В конец e-mail: [email protected]