POLICE PROSECUTOR TRAINING

Transcription

1 Training Brief POLICE PROSECUTOR TRAINING

2 Training Brief B B

3 Version History Course Title Creator(s) Police Prosecutor Training Dan Suter Version Date Reviewed By Summary 1.0 Nov 2010 PAGE 3

4 - 4 - Aims & Objectives AIMS OF COURSE 1. To discuss the roles of a prosecutor. Why did you become a prosecutor? Who do you work for? What skills do you need as a prosecutor? Why does a prosecutor need to consider issues such as ethics and fairness? 2. To discuss the principles by which you make your decisions. What do you consider when you are proceeding with an offence against a defendant with? What do you base your decision on? Have your decisions ever been challenged? How do you justify your decisions? Would it assist you if the public/defendant/court knew the framework by which you made your decisions? 3. Discuss the theory of case analysis and case preparation Initial case analysis - Evidence - Public Interest - Liaise re evidence 4. Case study of Mr Yellow and Mr Green PAGE 4

5 - 5 - Aims & Objectives 5. Case Study of Lindsay Parker 6. Evidence Are more statements required to prove your case? Witness and victim care. What are the hurdles to ensuring witness attendance and possible solutions? Equality Exhibits (Discussion) Protecting the integrity of exhibits Forensics (General Discussion if appropriate) 7. Bail use case study of Mr Yellow and Mr Green 8. Disclosure use Case Study of Mr Yellow How do you respond to the defence? 9. Adjournment use Case Study of Mr Green! How do you oppose any application to the court? 10. Acceptance of guilty pleas Case Study of Mr Yellow PAGE 5

6 - 6 - Aims & Objectives What should you consider when the defendant offers pleas to some but not all charges?! Why is a basis of plea from the defendant important? 11. Role of the Prosecutor in the sentencing process What is the role of the Prosecutor? Is a Newton Hearing appropriate 12. Proceeds of Crime Have you considered restraint? Have you considered a forfeiture order pursuant to section 29 or 30 of the Misuse of Drugs Act?!! Do you liaise with a Financial Intelligence Officer on all lifestyle offences and acquisitive offences?!!!!!!!! PAGE 6

7 - 7 - Aims & Objectives By the end of the course, delegates will: 1. Know the role of the prosecutor at all stages for the first stages of a case. 2. Be aware of the principles by which a prosecutor makes their decisions. 3. Have improved knowledge of how to review, analyse and present cases for a bail application! 4. Better awareness of witness care and handling of exhibits 5. How to manage a common disclosure issue 6. How to oppose adjournments! 7. How to accept guilty pleas and role in the sentencing process! PAGE 7

8 - 8 - Introduction to Prosecuting summary of programme 09:00 Welcome; Domestics 09:10 Introductions; Aims & Objectives 09:20 Role of the prosecutor 09:45 Principles by which you make your decisions 10:15 Case analysis and preparation (Theory) 10:30 Case analysis and preparation (Initial case analysis) 11:00 Case Study of Mr Yellow and Mr Green 11:45 Break 12:00 Case Study of Lindsay Parker 12:45 Bail and Case Study of Mr Yellow and Mr Green 13:30 Lunch 14:00 Witness Care/exhibits and forensics 14:30 Disclosure Case Study of Mr Yellow 15:00 Adjournments Case Study of Mr Green 15:30 Accepting Guilty Pleas and Role in sentencing Case Study of Mr Yellow 16:00 Proceeds of Crime 16:30 Close and de-brief PAGE 8

9 - 9 - Introduction to Prosecuting detailed programme Introduction My Experience Slide 2 Go through Aims Session 1 Role Of The Prosecutor METHODOLOGY Working either in groups of two or three, or as a plenary group ask delegates to imagine that they are explaining their role as a prosecutor to an unqualified person on a street. What do they think the role of the prosecutor is? What skills do they need? Who does a prosecutor work for? Go around the group and ask for examples Slide 3 What is the role of the prosecutor? Advise case/ liaise with police Guide police Assess evidence weed out weak cases/strengthen weak cases PAGE 9

10 Making decisions in a timely manner so as to ensure best use of resources Determine whether charge is correct. Advocacy Bring cases to court Representing prosecuting agency to outside community Identifying and meeting needs of witnesses Suggesting what we need to carry out our role Provide an efficient and effective service Contributing to an improved Criminal Justice System. Slide 4 The word sought at this stage is justice. Tease it from the group if it is not forthcoming. How is that achieved? Understanding the facts of each case. PAGE 10

11 Slide 5 - Ask the group for whom we are doing justice. Ensure that all of the following are included: Victim Public / Community Defendant Witness Slide 6 - Also ask the group to consider these questions. Ensure that the italicised points are covered. How do we get there? Based on the facts of each case Where do we start? Understanding the facts therefore JUSTICE Slide 7 What skills do you need to be an effective prosecutor? Again in plenary discuss qualities needed to be an effective prosecutor (contentious I know) Strong moral compass Scrupulously fair PAGE 11

12 Objective Passionate Empathetic Incorruptible Strong sense of what society expects (litmus test for society) v the strict application of the law discuss potential conflicts, etc. Who do you work for? Discussion in plenary or smaller groups as to who delegates prosecute for? Who ultimately pays your salary? Who are they employed to protect? Discussion re unjust laws- unfair laws? Session 2 The Principles By Which You Make Your Decisions METHODOLOGY Again, in smaller groups or in plenary, discuss how the prosecutors reach decisions. PAGE 12

13 Is there clear guidance on decision making processes and the purpose of the session is to compare the decision making made by the delegates and facilitate a discussion on whether the decisions made are robust and fair. Reference and comparison will be made with the Code for Crown Prosecutors but care must be taken to ensure that the session does not turn into a lecture on the benefits of the Code. Facilitation is the key here. Slide 8 - Suggested questions and discussion subjects:- What decisions do you have to make? What principles do you employ to make those decisions? If challenged in court, how do you justify the decision you make? Have you had any of your decisions questioned/challenged? How do you justify the decision you took? Are the public aware of the principles that you employ to make your decisions? Are the Judiciary aware of the legal basis upon which you make decisions? Do you have the power to discontinue a case? Discuss Section 50 of the Constitution do you discuss with the DPP before withdrawing entering a nolle? PAGE 13

14 Session 3 Theory of Case Analysis and Case Preparation METHODOLOGY Initial Case Analysis Slide 9 Again, in smaller groups or plenary, discuss how they initially analyse a case, are they satisfied that there is enough evidence to provide a realistic prospect of conviction? Is the evidence you have reliable? Can it be used? Is/should public interest be considered? Do you/should you guide the police investigating? Notes on Evidence that I will consider Likely issues Presentation of evidence Is there evidence which may support or detract from the reliability of a confession/admission? What explanation has the defendant given? Is the court likely to find that credible in light of the evidence as a whole? Will the identity of the defendant be questioned? Is the evidence about this strong enough? PAGE 14

15 Is the witness s background likely to weaken the prosecution case? Does the witness have a motive? Previous convictions? Accuracy or credibility of a witness. Is there any other evidence which could detract from or support the witness s account of events? Do you wish to pursue any of the above via other lines of enquiry or other witnesses? Prosecutors may or may not be required to consider, or be aware of the consideration of public interest. Care should be taken to avoid a lecture on the system in the UK, however general discussion on consideration of the public interest will help to raise awareness that it is (and should be) relevant. Discussion on public interest could be discussed by way of providing a scenario for discussion: Defendant has been awaiting a decision on charge for throwing stones at a window for over a year. The defendant denied that he threw stones and the case relies upon the account of a witness who cannot now be located. The defendant has no prior convictions and is aged 15. Slide 10 - Discuss Liaison with Investigator (understanding chain of command) Working with investigator from an early stage helps to focus and direct the case and avoid delay. Ensuring all lines of enquiry have been pursued. Ensuring best evidence obtained. PAGE 15

16 Building professional relationships between agencies. Discuss tape recording of interviews would this be fairer for presentation of evidence Fairness What rights does a defendant have? What rights should a defendant have? Legal representation Requirement for an interpreter/adult present How can you ensure that the information you receive from an interview is accurate? Contemporaneous records Storing contemporaneous records Tape recording Discuss liaison with the office of the DPP on advice for matters when not sure of what to do. Slide 11 Introduce Code for Prosecutors briefly already one in existence? Two stage test p 12 of Code para 7.5 Evidential Stage and p Public Interest Stage PAGE 16

17 Session 4 Mr Yellow and Mr Green As a group discuss case analysis and (without a general discussion) refer to the use of a Code and an evidential test and how this may assist. Remembering the role and ethics of the prosecutor stress not the duty of the prosecutor to obtain a conviction at all costs must present a case on the basis of evidence which is cogent and credible. Outline Reasonable prospect of conviction remembering points to consider in initial case analysis in Slide 9: Likely issues Joint possession/knowledge/proceeds of crime Presentation of evidence surveillance evidence, expert re paraphernalia, drug valuation Is there evidence which may support or detract from the reliability of a confession/admission? telephone evidence What explanation has the defendant given? Is the court likely to find that credible in light of the evidence as a whole? Note and telephone evidence Is the witness s background likely to weaken the prosecution case? Does the witness have a motive? Previous convictions? - Money Do you wish to pursue any of the above via other lines of enquiry or other witnesses? Forensic tests, financial investigation PAGE 17

18 So matter charged but you still have to prosecute you have done your initial case analysis now what to determine if there is a reasonable prospect of conviction. Many cases straightforward i.e Mr Yellow for PWITS Discuss the ISSUES re joint possession and knowledge for Mr Green Mr Greens account the evidence does not support an innocent explanation Slide Discuss PWITS further evidence FI, valuation re Note, see end of Form 1 Conspiracy? See section reflects seriousness? post conviction orders i.e criminal forfeiture s30 of Misuse of Drugs Act and section 20 of Money Laundering (Prevention) Act Enables clearer presentation of the case? BREAK PAGE 18

19 Session 5 The public interest stage Slide 14 In 1951, Lord Shawcross, who was Attorney General, made the classic statement on public interest, which has been supported by Attorneys General ever since: "It has never been the rule in this country I hope it never will be that suspected criminal offences must automatically be the subject of prosecution". (House of Commons Debates, volume 483, column 681, 29 January 1951.) METHODOLOGY Lindsay Parker As a group discuss the use of the Code and the Evidential Stage Consider with the delegates case study of Lindsay Parker and public interest stage. RPOC satisfied and evidence does cause any concern. However is it in the public interest apology ( see ); no loss as can not opened and injury to security guard minimal (see ); suffering from serious ill health and unlikely to be repeated (see ); and court likely to only impose a nominal penalty. However the offence was committed against a person serving the public (see ); the suspect does have a previous conviction (see ) is the previous conviction relevant as so old? This type of behaviour should not be tolerated even by a 70 year old (see ) PAGE 19

20 As 7.11 states not a matter of adding up the number of factors on each side must decide on the facts and circumstances of the case. It is quite possible that one factor may outweigh a number of other factors. On the facts of this case there is unlikely to be a repetition as the suspect is in ill health. Furthermore any penalty is likely to be nominal by the court. The previous conviction is so old that not relevant. However what if the conviction was in the last two years (see ) more likely that offence will be repeated (see ) What if LP was a local councillor is she in a position of trust? should she be treated differently to any other suspect? she didn t take advantage of this position (as stated for a position of trust at ) therefore she should be treated the same as any other person remembering the ethics and role of a prosecutor and the decision making process the Code therefore allows the prosecutor to justify this decision so as not to undermine the criminal justice system. Session 6 Evidence Case Summary Provide example Demonstrates professional and prepared PAGE 20

21 Exhibits and Forensics If time permits, and it is appropriate, you may wish to have broad discussion on exhibits and /or forensics. For the purpose of this discussion it is worth baring in mind the context in which the discussion will take place. Is there continuity of exhibits, and if exhibits are kept, there is no concept of keeping samples of exhibits are photo s taken of larger exhibits? Do you need to produce for PI? Slide 15 Do you need to produce? The production of chattels or physical objects is not required in order to render parole evidence as to their nature admissible (Hocking v Ahlquist [1944] K.B. 120, DC.) Security and health issues Defence can inspect: R v Uxbridge Justices ex p Sofaer and Another 85 Cr. App. R 367 samples/photographs Would you produce the boat if drugs seized on it? Slide 16 My analysis of the law Slide 17 Continuity so important Why is there a need for continuity and to keep good notes? PAGE 21

22 How to protect the integrity of exhibits (perhaps not now but securing forensic possibilities for the future) Witness and Victim Care Again, in smaller groups or plenary, discuss witness and victim care and how to ensure the attendance of witnesses and victims in court. A lack of forensic capability inevitably leads to a heavy reliance upon witnesses. A lack of witness care will reduce the chances of witnesses attending hearings and lead to ineffective trails and delay. Due to the continued existence of preliminary hearings, victims and witnesses can be required to attend multiple hearings before the trial even commences. A lack of available special measures may make such attendances extremely intimidating. Is there was facility to keep victims and defendants separate, even in the most serious cases. Trials may not be listed at times which are suitable to witnesses, and witnesses will have to wait in the same areas as defendants and their families. The key issue to draw out in this session is why witnesses or victims do not attend hearings and how that can be addressed. You will aim to instil a sense of empathy in prosecutors. How would they like to be treated if they were a witness? Despite the vast array of measures taken in the UK to ensure victim and witness care and the special measures available to us, we are still not able to ensure that all of our witnesses attend court. It is also be important in this session to discuss issues of equality and fairness, treating all witnesses and victims with dignity and respect. PAGE 22

23 Slide 18 Notes on Witness and Victim Care Are all witnesses and victims treated with dignity and respect? Keeping witnesses and victims informed of the progress of a case. Are witnesses and victims aware of what will happen in court? Are witnesses and victims aware of what will happen if they are asked to give evidence/cross examined? Were witnesses/victims made aware of the outcome of a case? If a guilty plea is accepted, is this explained to the witness/victim? Does the witness/victim have a support person to speak to if they have questions or fears? Protection of witnesses/victims who have been threatened or feel intimidated Slide 19 one solution for Belize Session 7 Bail Slide 20 Importance of bail In plenary discuss the case study of Mr Yellow and Mr Green PAGE 23

24 Slide 21 Discuss an application for bail: Slide 22 Procedure do defence apply for bail or do you apply for a remand in custody No real statutory guidance Indictable Procedure Act granting bail after committal, amount of surety - Criminal Justice Acts limitation of bail for certain offences For Mr Yellow the exceptions in the Criminal Justice Act would apply Slide 23 Mr Green But generally a remand in custody should be applied for on the following grounds 1 : (a) The nature of the accusation. The advocate should make reference to the fact that the matter is prosecuted as a Serious Organised Crime and therefore there is a risk the defendant would abscond to avoid justice. This can be further supported by the next ground; (b) The nature of the evidence in support. Whilst in Hurnam v The State PC Appeal No. 53 of 2004 the Privy Council made it clear that nature and seriousness of the prosecution are not the essential determinant of whether bail will be granted they are still important issues to consider as it can be submitted that there is a substantial risk the defendant will fail 1 Archbold Criminal Pleading: Evidence and Procedure 38 th Edn, p 87 PAGE 24

25 to surrender if the evidence is strong and then a greater liklihood of conviction; (c) The severity of the punishment after conviction. Often in prosecutions of Serious Organised Crime the sentences of imprisonment are extensive. In those circumstances there would be an incentive for the defendant to abscond. In addition consider: (a) The risk of the defendant committing offences whilst on bail. The advocate should review the defendant s previous convictions and determine if there have been any previous offences committed on bail. The advocate should refer to Gentry (1955) 31 Cr App R 195: where there was a refusal to grant bail in circumstances where the defendant had a bad criminal record. In addition the advocate should refer to R v Wharton [1955] Crim LR 56 and Beneby v Commissioner of Police No 28 of 1995 (unreported - Bahamas) when further offences of a similar type had been committed while on bail or thre was credible evidence that the defendant was likely to abscond, bail was reasonably withheld (b) Interference with course of justice and witnesses (R v Barthelmy (1852) 169 ER 636). If there are witnesses to an offence involving Serious Organised Crime known to the defendant or prosecution accomplice evidence then the advocate should submit that there is a real risk of interference.; (c) Failing to surrender. The submissions that can be made are outlined above and the advocate should refer to the fact that there are no possible conditions that can avert the risk of failing to surrender due to the strength of the evidence and the likely outcome of a trial (Re Robinson LJ QB 286) PAGE 25

26 If any conditions of bail are applied for by the defence consider: (a) Is the surety independent or indemnified by the accused; (b) Has the defendant a fixed abode; (c) Has the defendant ties to the community such as family and employment; (d) A doorstep condition may be appropriate where it is proportionate, and necessary to enforce a curfew or a residence condition R (CPS) v Chorley Justices [2002] EWHC 2162! Admin; (e) Whether surrender of passport, informing of intention to leave the jurisdiction and reporting to the local police station can avert the risk of failing to surrender (Re Robinson (1854) 23 LJ QB 286); (f) Some bail conditions, for example a condition to report to a Police Station at designated intervals, might be superficially appealing but be of little or no effect in averting the risk contemplated. For example, the interval between reporting times may be insufficient to prevent a defendant absconding. In cases of Serious Organised Crime the conditions ought not to be recommended. Constitution Section 5 (5) and (6) trial within a reasonable time: PAGE 26

27 Views of the Police/Charging Officer/Investigating Officer: o In all cases you will consider recommendations made by the Police who charged the defendant relating to bail. Where practicable, if you disagree with the Police view on bail, you will consult with the Police regarding the course of action you propose. Further, you should consider whether consultation needs to take place at a more senior level. View of the victim: o When dealing with bail hearings in court, prosecutors should ensure that the victim's view is considered. Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving 'vulnerable' and 'intimidated' victims and witnesses. Session 8 Disclosure refer to case study Reasonable lines of enquiry Investigators and prosecutors should consider whether all reasonable lines of enquiries have been pursued, whether these point towards or away from the suspect. If they are not pursued then the defence may attack the credibility of officers when giving evidence for not having completed their job properly. This in turn distracts from the facts of the prosecution case and the strength of the evidence. Therefore check if there are disciplinary proceedings PAGE 27

28 Slide 24 Rigorous application of Disclosure Prosecutors must ensure that the disclosure regime is scrupulously followed, and in particular to ensure that only material that might arguably assist the defence (or undermine the prosecution) is disclosed 2 (R v Ward (Judith Theresa) [1993] 2 All E.R. 577 ) No duty to disclose statements that are not helpful to the defence (Hall v R [1997] UKPC 223, PC); Disclosure may be made when disciplinary proceedings against officers are pending (Glenroy Bishop v The State [2000] 60 WIR 370 The Trinidad and Tobago Court of Appeal) but apply the test in Krishna Persad and Ramsingh Jairam v The State PC (2001) 58 WIR 433 PC, of whether it is necessary to do so to secure a fair trial. Therefore do not disclose if: o The disciplinary matter is mere complaint or speculation; o The prosecution do not need to conduct investigations searching for evidence for the defence that is not a reasonable line of enquiry R v Brown [1997] 3 All ER769, HL; o Non-material matters. These may include allegations that did not result in disciplinary action; PAGE 28

29 Session 9 Adjournments Refer to Case Study Slide 25 It is also good practice that throughout the proceedings the prosecution should ensure that a record of all documentation disclosed to the defence is maintained. It is important that the prosecution is in a strong position to meet any criticism of the disclosure process. There should be a rigorous approach to adjournments to avoid the defence delaying matters and Court time being wasted. A defendant is not entitled to repeated adjournments to secure the right to legal representation (Robinson v R (1985) 32 WIR 330, PC). Although a defendant should not be denied a reasonable application for an adjournment for time to retain counsel to prepare his case and to secure witnesses attendance (Willoughby, Reeves and Goddard v R (1996) 54 WIR 57; Dunkley and Robinson v R (1994) 45 WIR 318, PC), the advocate should objectively analyse the grounds for an adjournment and oppose any application that is repeated or would cause an unreasonable delay in the interests of justice. The Court should consider, both the interests of the defendant in getting the matter dealt with and the interests of the public that criminal charges should be adjudicated upon and the guilty convicted as well as the innocent acquitted. With more serious charges the public interest that there will be a trial will carry greater weight (CPS v Picton (2006) 170 JP 567). PAGE 29

30 Sessions 10/11 Acceptance of Guilty Pleas Case Study METHODOLOGY Ask the delegates to consider the case study how would you decide if acceptable. Code p20 para 12.1 only admitting part of the crime not money laundering Consider the public interest. The offence is aggravated as a commercial supply therefore the offer is not acceptable. Consistent decision making assists the prosecutor to ensure that a just result is achieved reflecting the seriousness of the criminality. Slide 26 May need a Newton Hearing 12.4 and If the court decides a Newton Hearing is necessary make sure the prosecutor is prepared for this. Prosecutors Role in the Sentencing Process See p24 para 15 of the Code When the court proceeds to sentence the prosecutor is in a position to perform the responsibilities required. PAGE 30

31 Therefore the prosecutor must be prepared and have access to all relevant matters. For example in this case knowledge of the facts of the antecedents (if recent). Proper preparation can ensure the court arrives at the just result which can prevent unnecessary appeals Plea and sentence document and the UK experience. Session 12 Proceeds of Crime Remember always to be aware of especially in drug matters and acquisitive crime Slide 27 In Magistrates Court? Apply and money back into the system if successful END of WORKSHOP Draw to a conclusion the principles of how important and skilful the role of the prosecutor is. The need for clear ethics, appropriate decision making, application of the law, good working relationship with the Police and fairness to the suspect, defendant, witnesses and victims. PAGE 31