Criminal Litigation Issues - Essay Example

?Globalization Module Module Number: Academic Year: Seminar Essay Question: Criminal Litigation Number: Question To Client Nicholas, Dear Client, REF: FIRST HEARING SET FOR MAY 17, 2013. This letter is to inform you of the first hearing of your case, set for May 17, 2013, and what is reasonable for you to do on the day of the first hearing. As it is the tradition of the criminal justice system, the hearing will be before a Magistrate Judge, who will have to issue a verdict on whether there are reasonable grounds that you committed the offense (broke the windows), whether it is within the jurisdiction of the court to hear and determine the case, and whether the evidence available shows there is a Probable Cause that you committed the criminal offense. Following your arrest by the police on suspicion of having committed the felony, you, like any other suspect have a right to a first hearing. You should be aware of the fact that the first hearing is intended to protect you as a suspected criminal, from unreasonable seizure and detention. Basically, the hearing will be carried out to establish whether there is adequate proof to support your full trial. At the initial hearing, various procedural measures may be explored to ascertain whether the police acted within the law during the initial stages of the criminal justice process. Owing to the less seriousness of the offense, you may be notified of the felony, informed of the right to legal representation and the legal requirement as to remain silent. The court may caution you against breaching the gag order, and proclaim that your statements may be admissible in court as evidence against you. You may also receive advice on how to secure a bail, especially now that the source of funding for your defence has already been found. Under English legal tradition, a plea is normally entered and the bail set at the initial appearance, so this case shall not an exception. The case scheduled for hearing at the Magistrate’s Court after committal shall entail the plea and modalities on how the case will be managed. In most cases, the hearing takes place in every suit in the Court, and is driven by the requirement to ensure that all important procedures have been followed, in order to enable the court to ready itself for trial. The Magistrate will be expected to act in a managerial manner in order to inject a sense of understanding among the parties concerned so that the case may move on smoothly. The Magistrate shall preside over the entry of names of the witnesses into the court records. Additionally, the Prosecution papers and exhibits shall be unveiled for the first time on that day. Any official admissions, or legal provisions or issues related with the acceptability of the evidence may come out during the first hearing of your case. The court shall then receive information about the proposed timeline of the trial. These issues are usually handled as a set of questions, which the attorney who has been assigned for you shall fill on your behalf. Meanwhile, the Magistrate will provide directions on how to best deal with the case in fair, expeditious, and efficient manner by ordering the entry of a plea. In light of thus, you will be required to participate. If you plead guilty, the trial process may begin immediately, especially if the advocate whom we have assigned to lead your defence does not seek for an adjournment. If you plead not guilty, then it shall be incumbent upon the prosecution and defence to furnish the court with any important issues that will support the expending of the case. Not guilty plea A not guilty plea comes to be when a defendant neither pleads guilty nor enters a no contest plea. The not guilty option earns a defendant adequate time to acquire legal advice if he or she does not have one already. When the case comes up for hearing on May 17, 2013, please plead not guilty when the judge formally makes the request to determine the direction which you want the case to take. In the event that you fail to elect any plea because you do not want to answer to the charges or because you have not appeared before the court, the judge will prefer a not-guilty plea on your behalf. Procedurally, the not-guilty plea will precede attempts to compose a trial bench, including fixing the date for the commencement of the trial. It is important to understand that by electing a not guilty plea, you will be contesting the felony charges that the prosecution aims to level against you during trial. There are several reasons why we have advised that you should choose a not guilty plea in this case; the option favours the legal strategy that your defence counsel is preparing to deploy to exonerate you from the charges. A blameless defendant may opt to enter this plea so as to have the chance of having their case heard and determined before a court, but a guilty plea will shorten the trial process to your disadvantage. Suppose you are a guilty defendant, the rules also allow you to submit a not guilty plea, sometimes premised upon the fact that you are disputing the nature of the charges being confirmed. As a defendant, you may also elect a not guilty plea by virtue of having strong evidence to disprove the criminal charges. In this case, you are advised to make a not guilty plea on the general grounds that any defendant who disputes charges tabled before him or her, basically prepares the stage for a legal battle in court, which they might win depending on the exonerating evidence the defence tables before the court. This happens whether or not a criminal suspect is guilty. You should take cue from convicted criminals, who, despite the strength of incriminating evidence against them, have chosen the not guilty plea to allow their defence counsel(s) the fullness of time to argue their case. Depending on the direction of the case, your attorney may withdraw a not guilty plea when the trial is underway in exchange for a smaller offense with a lesser sentence. Question # 2 Laws R Us LLP Chelmbridge. To Mr Malcolm Baxter Address, 42 Cavendish Road Chelmbridge. Telephone: 8646845736 Dear Client, REF: LEGAL ADVICE Under Police and Criminal Evidence Act 1984 and The Pace Codes, the officers have a clearly spelt mandate guiding what their mandate. Discrimination law is applicable in various police operations, and as such, it is illegal for a police officer to act in a prejudicial manner based on one’s age, sex, gender roles, motherhood, ethnicity, religion or belief, and or sexual orientation1. In this case, the police acted in a discriminatory manner by saying that your supposed visit to the Chicken-U-Like, a joint that is frequented by gays implied that you deserved to be taunted, mocked, and or assaulted by members of the gay community. In light of this, the police violated the Sex Discrimination Act 1975 (c. 65), which provides for equal treatment of persons irrespective of their sexual orientation. A suit brought up against the duty officer could succeed on discrimination grounds. The police are required by law to stop and seek an explanation from person(s) whom they suspect of having committed or are in the process of committing a crime2. In this case, you are on record as having been stopped by the two police officers, who instead of asking for your account on the criminal issue, went ahead to arrest you. They openly rebutted your effort to explain yourself regarding the incident. This was unlawful on the part of the police regardless of the seriousness of the crime, which they suspected you of having committed3. A mere personal account from you and a request to accompany them to the police station to record a statement would do. Again, this is a clear case of professional misconduct by the two police officers. By contrast, the police officers acted within the law to carry out a stop and search on your person, because their actions were done on grounds of “probable cause4.” The robbery claims that they were pursuing against you are categorized in law as meeting the thresholds of a “violent incident” which had supposedly taken place. The PACE Act allows the police act and indeed they acted without necessarily looking for reasonable grounds for suspicion of criminal conduct. The two arresting offers failed also to follow the legal procedure of arrest in your case. For instance, they did not furnish you with any information about their power to carry out a stop and search on your person. Additionally, they failed to inform you about your rights, their individual names and information about the police station from where they are attached, the grounds for the search, and what exhibits they thought they might get on your person upon the search. Upon your search they discovered a knife, however. Legally, though, the knife is immaterial in this case, because there is no evidence linking its use with the alleged robbery incident. They acted outside the law to seize the knife. As part of your rights as a suspect, you were entitled to all of the above treatment options except for an arrest warrant, provided the police officers had adequate proof to show that they could not secure one early enough to apprehend you for the alleged robbery offense. They failed this test. Use of force The law requires police officers to employ reasonable force in a stop and search exercise if there is reasonable cause to act that way, but exhaust persuasion of a person suspected of a criminal offense to co-operate with them. In your case, P.C. Bloggs and P.S Karen Harris did not persuade you to cooperate with them. Instead, they demonstrated excessive and unnecessary force by spraying you with CS gas in the face, before dragging you into the police car. Unfortunately, the situation did not warrant such excessive use of force5. Another instance where a breach of PACE Act came to be was when the officers chose to apprehend you without exploring the practicality or otherwise of issuing summons. Moreover, they could only arrest you if: the officers did not know, and could not obtain your name; they thought you had given an inaccurate identity; you had given a vague or false address or ; the arrest was vital to prevent you from inflicting physical harm to yourself or others, you could execute a tort against public civility. Unfortunately, the factors causing your arrest did not meet any of the above conditions. Therefore, you may seek redress for unfair arrest by police. While in detention At the police station, you were denied fundamental rights of a suspect. For instance, the police neither informed you about nor gave you an opportunity to enjoy your right to inform your kin or a friend about the arrest. The only exception for being denied the chance to communicate with your close relations was when a police officer of the title of superintendent or his or her senior authorises a delay. Additionally, in order to authorise a postponement of the right, a superintendent or a senior officer ought to be contented that reasonable grounds exist as to believe that if you had been allowed to inform someone about your apprehending, the action would: interfere with the evidence; impair the ability of law enforcement agency to retrieve an item; result in other suspected offenders being forewarned; or impair retrieval of the returns arising from drug-related crimes. In this case, your scenario did not meet any of these conditions6, besides the officers in charge were of lower ranks – a constable and a sergeant. The officers also denied you the right to familiarise yourself with the police codes of practice, which could have enabled you to ask, on a point of strength, for water to clean out your CS contaminated face7. The right to access an attorney is fundamental in almost all criminal cases, but can be postponed in some very serious cases. In this case, you were denied the services of an attorney early enough merely on grounds that he was away. Legally, an attorney was supposed to be on duty during your arrest to help you with the case8. Legal advice Legal advice is another imperative right for criminal suspects while one is in custody, especially on serious criminal charges. In light of this, you were entitled to free legal counsel from Mr Halibut, the duty solicitor. This free legal advice is no pegged upon a suspect’s financial status; therefore, Mr Halibut’s demand for ?1,000 as legal fees falls flat in the face of the law. In contrast, you were entitled to professional legal advice by an attorney in person, on two grounds: firstly, you are facing allegations of a serious offence of robbery; and, the police intended to interrogate you. In view of the right to legal counsel, it was unreasonable on the part of the police to insist on interviewing you without the mandatory presence of a lawyer merely on the basis of ‘saving time.’ The belated coming of Mr Halibut to your ‘assistance’ was also done in bad faith. Specifically, the police denied you the right to elect your own attorney from the Criminal Defence Service (CDS), who would act on your behalf free of charge and more efficiently9. Mr Halibut deviated from the professional codes of practice by denying you the chance to talk with him privately before answering any questions from the police10. You stated categorically that during the interview, he openly supported the questioning officer in forcing you to admit to the charges levelled against you without any prior investigation to support the claims of the robbery offense. In legal terms, Mr Halibut is guilty of breaching the attorney–client privilege11. This is legal doctrine that would have protected certain discussions between Mr Halibut and yourself by keeping those communications away from the third party’s reach12. As it is normally the case, the lack of confidentiality between the two of you substantially weakened your morale and impeded your ability to make detailed and frank disclosures to Mr Halibut. Now, Mr Halibut or any other attorney who may take up the case will not be able to offer sincere advice and proper representation in court because of compromised statements. Complaints Owing to the provisions of PACE Act and police codes of practice, you may make a successful complaint against the individual police officers and Mr Halibut, provided you have adequate evidence to prove your case against them. With proof of professional misconduct, the behaviour of the state officers can be impeached on grounds of professional misconduct. In the event that you prove before the court handling your case that the law enforcement officers have acquired evidence by violating various rules in the code of practice, the judges may disallow the evidence presented by the police for the robbery case. Alternatively, you may exploit the internal mechanisms for registering complaints within the police service, in order to make formal charges against P.C Bloggs and P.S. Karen Harris for their personal misconduct. If you wish to pursue a complaint, you ought to get more advice from an attorney, and or a knowledgeable adviser working at a Citizens Advice Bureau13. Alternatively, a Member of Parliament or an attorney can make a formal complaint on behalf of you. Although, the local police agencies are mandated to deliberate on most of such complaints, these complaints are weightier and really deserve the audience and investigation by IPCC. The weight of the complaints is especially true considering the fact that your unfair treatment went beyond the conduct of the arresting officers only14. Additionally, the police’s insistence on your admission of the alleged robbery offense charges and the scant investigations to ascertain the truth, really warrant action by a superior organization. In a nutshell, throughout the initial stages of the criminal justice process, beginning with an arrest, people are entitled to certain statutory rights including the right to be arrested with a valid arrest warrant; treatment with minimum force during arrest if they cooperate; right to remain silent; right to an attorney; right to fair treatment; right to be informed about individual rights, and; right to access humanitarian services. In your case, these fundamental rights were technically denied. In light of this, I would recommend that you pursue these claims in court, because it is the only institution that can dismiss part of or the entire evidence presented by the police against you and acquit you of the criminal charges. Yours faithfully, C/o Laws R Us LLP Bibliography Almer, Christian, and Goeschl, Timo, ‘The political economy of the environmental criminal justice system: a production function approach’ (2011) 148 PC 611-630 Arfken, Cynthia L., Said, Manal, and Owens, Darlene, ‘Racial and Ethnic Differences in Reported Criminal Justice Referral at Treatment Admission’ (2012) 44 JPD 428-433 Betley, David, English Criminal Justice in the 19th Century (1st edn Continuum International Publishing Group, London 1998) 101-123 Blumstein, Alfred, and Larson, Richard, ‘Models of a total criminal justice system’ (1969) 17 OR 199-232 Ebbesen, Ebbe B., and Konecni, Vladimir J., ‘Criticisms of the Criminal Justice System: A Decision Making Analysis’ (1985) 3 BSL177-194 Hartry, Allison S., ‘Gendering Crimmigration: The Intersection of Gender, Immigration, and the Criminal Justice System’ (2012) 27 BJGLJ 1-27 Hirschel et al, Criminal Justice in England and the United States (2nd edn Jones & Barnett Learning, London) 111-119 Hosetter, John, A History of Criminal Justice in England and Wales (1st edn Waterside, London 2009) 43-89 Laurie Lee, I Can’t Stay Long (1st edn Penguin, London 1977) 52 Munro, Jim L., ‘Five Pieces in Penology: Towards a Theory of Criminal Justice Administration: A General Systems Perspective’ (1971) 31 PAR 621-631 Philip Plowden, Judith Gowland and Joanne Clough, Criminal Litigation in Practice (14th edn Northumbria Law Press, Northumbria 2012) Ringhoff, Daniel, Rapp, Lisa, and Robst, John, ‘The Criminalization Hypothesis: Practice and Policy Implications for Persons with Serious Mental Illness in the Criminal Justice System’ (2012) 8 PMH 1-19 Shannon, David, and Tornqvist, Nina, ‘Lost in Translation. 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