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Criminal Procedure & Evidence

Criminal procedure refers to the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge and results in the conviction or acquittal of the defendant.

Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, is required, for example, in the 46 countries that are members of the Council of Europe, under Article 6 of the European Convention on Human Rights, and it is included in other human rights documents. However, in practice it operates somewhat differently in different countries.

Similarly, all such jurisdictions allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense (which is in some countries called a "court-appointed lawyer").

Gibraltar Judicial System

The judicial system in Gibraltar is based on the adversarial system of law and follows the three tiers of English legal principles - statute, common law and rules of equity. As in most countries, the legislature, in the form of the Gibraltar Parliament, passes all laws. Most laws, which take the form of local Acts, are applied by the application of English Law Act. European Community Law is also applicable in Gibraltar. Relevant EU directives are transposed into local legislation.

Applying the Criminal Procedure and Evidence Act

A) Generally

• The court must further the Overriding Objective of the Rules by actively managing each case [Crim PR 3.2(1)].

• The parties must actively assist the court in this without being asked [Crim PR 3.3(a)]. But at every hearing, including at trial, it is the personal responsibility of the Magistrates or Judge actively to manage the case [Crim PR 3.2].

• Unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time [Crim PR 3.2(2)(f)].

B) The first hearing: taking the plea

• At every hearing (however early):

• Unless it has been done already, the court must take the defendant’s plea [CP&E s.140) This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid.

If the plea really cannot be taken, or if the alleged offence is indictable only, the court must find out what the plea is likely to be (CP&E s 140)

C) If the plea is ‘guilty’

The court should pass sentence on the same day, if at all possible (unless committing for sentence).

If information about the defendant is needed from the Probation Service, it may be that a report prepared for earlier proceedings will be sufficient or a ‘fast delivery’ report (oral or written) may be prepared that day, depending on local arrangements.

If a “Newton’ hearing is needed, the court, with the active assistance of the parties, must identify the disputed issue [Crim PR 3.2(2)(a); 3.3(a)] and if possible, determine it there and then or, if it really cannot be decided, give directions specifically relating to that disputed issue to ensure that the next hearing is the last.

1 It is important to note that all participants in criminal cases, including Magistrates, Judges, and Justices’ Clerks must follow and apply the Criminal Procedure Rules. The Rules are not mere guidance. Compliance is compulsory. The word “must” in the Rules means must.

2 The expression ‘court’ means the Magistrates’ Court, the Supreme Court or the criminal division of the court of appeal. (s.2 (1) CP&E)

3. Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.

D) If the plea is ‘not guilty’

• The key to effective case management is the early identification by the court of the relevant disputed issues [Crim PR 3.2(2)(a)]. From the start, the parties must identify those issues and tell the court what they are [Crim PR 3.3(a)]. If the parties do not tell the court, the court must require them to do so.

• The relevant disputed issues must be explicitly identified and the case must be managed by the court to ensure that the ‘live’ evidence at trial is confined to those issues.

• The parties must complete the prescribed case progression form [Crim PR 3.11; Consolidated Practice Direction V.56.2] and the court must rigorously consider each entry on the form in order to comply with its duty actively to manage the case by making properly informed directions specific to each case.

• Only those witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend. The court must take responsibility for this (and not simply leave it to the parties) in order to comply with the Overriding Objective of the Rules [Crim PR 1.1(2)(d), (e)].

• The court’s directions must include a timetable for the progress of the case (which can include a timetable for the trial itself) [Crim PR 3.8(2)(c)].

• The time estimate for the trial should be made by considering, individually, how long each ‘live’ witness will take having regard to the relevant disputed issue(s).

E) The parties’ obligations to prepare for trial include:

• Getting witnesses to court [Crim PR 3.9(3)(a)].

• Making arrangements for the efficient presentation of written evidence/other material [Crim PR 3.10).

• Promptly warning the court and other parties of any problems [Crim PR 3.9(3)].
F) At trial

Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore [Crim PR 3.11].

The court may require the parties to provide:

• A timed, ‘batting order’ of live witnesses [Crim PR 3.11]

Details of any admissions/written evidence/other material to be adduced [Crim PR 3.11]

Click on the link below for the Criminal procedure and Evidence Act

Criminal Procedure Rules UK

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