Defence Barrister Chris Kessling

How does the criminal justice system really work? From the police station, to trial, sentence and all the way to appeals, criminal barrister Chris Kessling takes you through the world of the criminal courts in England & Wales.

Using real case examples, this podcast will enable you to navigate the criminal courts yourself and fully understand how they operate in practice.

If you are accused of a crime, are a victim of crime, or are going to court as a witness - if you want to know the details of what to expect at trial, sentencing or the appeals process - this weekly podcast will bring the whole court system to life.

Backed up by the hugely popular Defence-Barrister.co.uk website, the criminal justice system will never have been made so clear.

Episode 1 coming 31 January 2024!

This episode starts with a crime, or an allegation of a crime, and moves through the process of arrest and detention at the police station. You will discover what the law really says about arrest and what rights are afforded to citizens who are detained and taken into police custody. What rights do they really have? How long can a suspect be kept in custody without charge? What does the right to legal advice really mean and how can it help? How might the police abuse those rights? Why might a suspect stay silent and, if they do, what are the consequences? And meet Aidan, Bianca & Conor and why they are about to face questioning for a serious allegation of wounding with intent, the allegation that will take one or more of them on a journey through the criminal justice system in England & Wales and all the way to trial by jury, sentence and appeal. 

Throughout this podcast I have referred to legislation, cases and relevant Codes of Conduct. Please refer to the links in the notes to access this information yourself.

For additional detailed reading on many aspects of what is covered throughout this series of podcasts, please go to Defence-Barrister.co.uk

See podcast notes for links to cases, statutes and codes of practice referred to in this podcast. You can also find these notes at https://www.defence-barrister.co.uk/defence-barrister-podcast

What does the offence of wounding with intent really mean in law, and how do lawyers analyse the actus reus (guilty act) and the mens rea (guilty mind) of an offence? How are the prosecution able to rely on a law that came into existence over 150 years ago? You may be surprised!

What is meant by Joint Enterprise? How do the prosecution seek to impose blame on suspects who were not those who actually committed the ultimate act of violence, whether it be a shooting, stabbing or an attack with a bottle used as a weapon? Find out the answer here.

And what approach will Aidan, Bianca and Conor take in the Police interview after having the benefit of legal advice? Will they answer questions or choose to make ‘no comment’?

After that, will they be charged and, if not, can they still be held by the Police? Or must they be released either on bail (with or without conditions) or ‘under investigation’?

How do the prosecution go about deciding whether a suspect should be charged? We look at the two-stage ‘Full Code’ test and also how threshold charging decisions are made in urgent cases.

Finally, will Aidan, Bianca and Conor be charged and, if so, what charge will they face? The final decision might surprise you.

Episode 3 - Murder

In Episode 3 we continue on our journey through the criminal justice system in England & Wales, with our suspects Aidan, Bianca and Conor no longer facing an allegation of Wounding with Intent, but instead facing a charge of murder, which upon conviction carries a mandatory life sentence.

The definition of murder is the unlawful killing with malice aforethought by a sane person of another human being.

What is ‘unlawful’ killing and can killing another human being ever be lawful?

What if there are multiple causes of death? When can a defendant be said to have caused a death and when do other factors break the link between the act of a defendant and the eventual outcome? We look at multiple real case examples for the answer.

And what of the mens rea (or guilty mind) which must be proved for a defendant to be found guilty of murder? What if death was a wholly unintended consequence? Find the answer in this episode.

Even if a defendant is proved to have killed another human being with the requisite intent, are there any further defences open to them? We look at what are known as ‘partial defences’ (which reduce murder to manslaughter) of diminished responsibility and loss of control.

Will Aidan, Bianca and Conor, or any one of them, be charged with murder and, if so, what will happen to them? Will they go home or will the police keep them in custody until their first appearance in court. In this episode, we take our final step before entering the criminal courts.

Thank you for listening and I hope you enjoy this episode.

Throughout this podcast I have referred to legislation, cases and relevant guidance. Please refer to the links in the notes below to access this information yourself.

NOTES

Murder -

s.1 of the Law Reform (Year and a Day Rule) Act 1996 - Abolition of the ‘year and a day rule’ for murder https://www.legislation.gov.uk/ukpga/1996/19/section/1

Robert Konrad Blaue [1975] EWCA Crim 3 - Causation (refusal of blood transfusion)
https://www.bailii.org/ew/cases/EWCA/Crim/1975/3.html

Berlinah Wallace [2018] EWCA Crim 690 - Causation (voluntary euthanasia)
https://www.bailii.org/ew/cases/EWCA/Crim/2018/690.html

s. 58 of the Criminal Justice Act 2003 (prosecution appeal against trial judge’s rulings) https://www.legislation.gov.uk/ukpga/2003/44/section/58

s. 29 of the Offences Against the Persons Act 1861 (throwing corrosive fluid on a person, with intent to do grievous bodily harm) https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/29

R v Berlinah Wallace, Bristol Crown Court, 23 May 2018 - Sentencing Remarks https://www.judiciary.uk/wp-content/uploads/2018/05/r-v-wallace-sentencing-1.pdf

Cheshire [1991] 93 Cr. App. R. 251 - Causation - Full judgment not publicly available, but Wikipedia contains a helpful summary https://en.wikipedia.org/wiki/R_v_Cheshire

Partial defences to murder -

Diminished Responsibility (under s.2 of the Homicide Act 1957) https://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/2 AS AMENDED BY s.52 of the Coroners and Justice Act 2009 https://www.legislation.gov.uk/ukpga/2009/25/section/52 (S.2 on the gov.uk website is not updated, so look at s.52 instead)

R -v- Valdo Calocane, Nottingham Crown Court, 25 January 2024 - Sentencing remarks (Diminished Responsibility) https://www.judiciary.uk/wp-content/uploads/2024/01/Calocane-sentencing-remarks.pdf

Loss of Control (under sections 54 and 55 of the Coroners and Justice Act 2009) https://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/1/crossheading/partial-defence-to-murder-loss-of-control

Killing as part of a Suicide Pact (under s.4 of the Homicide Act 1957) https://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/4

Helpful further reading -

The Crown Court Compendium (Guidance for Judges in Crown Court Trials) - https://www.judiciary.uk/wp-content/uploads/2023/06/Crown-Court-Compendium-Part-I.pdf

Charge and following charge -

s.38 of the Police and Criminal Evide

In Episode 4 we follow the defendants Aidan, Bianca and Conor - now charged with murder - to the magistrates’ court for their first court appearance.

Introducing the magistrates’ court and the Crown Court, what types (or classifications) of offences do they deal with? What is a summary offence, an either-way offence and an indictable-only offence?

Who are the judges in the magistrates’ court and Crown Court? Introducing magistrates, District Judges, Recorders, Circuit Judges and High Court Judges.

Do all cases start in the magistrates and, if so, why? When can a defendant elect trial by jury, and when can a defendant be compelled to go to the Crown Court for trial or sentence?

What are courts’ sentencing powers and how do they decide what sentence is likely to be passed?

And how does the magistrates’ court deal with defendants charged with murder? Aidan, Bianca and Conor are about to find out.

We introduce the first procedural steps towards Crown Court trial, the provision of information about the prosecution case and the early requirements to provide defendants with unused material, i.e. information favourable to the defence and inimical to the prosecution.

In Episode 4 we take another step closer to trial.

Thank you for listening and I hope you enjoy this episode.

Throughout this podcast I have referred to legislation, cases and relevant guidance. Please refer to the links in the notes below to access this information yourself.

PODCAST NOTES

Justices’ Legal Adviser -

Criminal Procedure Rule 2.12 - Role of Justices’ Legal Adviser https://www.legislation.gov.uk/uksi/2020/759/rule/2.12

CRIMINAL PRACTICE DIRECTIONS 2015 VI - Role of Justices’ Legal Adviser https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/924047/crim-practice-directions-VI-trial-2015.pdf

Judges -

What do I call a judge? Judiciary.uk https://www.judiciary.uk/guidance-and-resources/what-do-i-call-a-judge

Individual Offences -

s.22A of the Magistrates’ Courts Act 1980 - Low value shoplifting can be tried before a jury
https://www.legislation.gov.uk/ukpga/1980/43/section/22A

s.187 Online Safety Act 2023 - new offence created in s.66A Sexual Offences Act 2003 of Sending etc photograph or film of genitals https://www.legislation.gov.uk/ukpga/2023/50/section/187/enacted

Allocation -

s.17A of the Magistrates’ Courts Act 1980 - ‘Plea before Venue’ procedure https://www.legislation.gov.uk/ukpga/1980/43/section/17A

S.18 Magistrates’ Courts Act 1980 - Allocation (‘mode of trial’) Hearing
https://www.legislation.gov.uk/ukpga/1980/43/section/18

Allocation Guideline - Determining whether cases should be dealt with by a magistrates’ court or the Crown Court https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/allocation/

Sentencing Guidelines -

Sentencing Guidelines - Common Offences
https://www.sentencingcouncil.org.uk/outlines/

S.14 Sentencing Act 2020 (the Sentencing Code) - Committal for Sentence https://www.legislation.gov.uk/ukpga/2020/17/section/14

GBH Sentencing Guideline https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/inflicting-grievous-bodily-harm-unlawful-wounding-racially-or-religiously-aggravated-gbh-unlawful-wounding/

Criminal Procedure Rules Part 8, rule 8.2(1)(a) - Advance Disclosure of Prosecution Case / Initial Details https://www.legislation.gov.uk/uksi/2020/759/rule/8.2/made

Advance Disclosure of the Prosecution Case -

Criminal Procedure Rules Part 8, rule 8.3 - meaning and content of ‘Initial Details’
https://www.legislation.gov.uk/uksi/2020/759/rule/8.3/made

Prosecution Disclosure of Unused Material -

Attorney General’s Guidelines on Disclosure (For investigators, prosecutors and defence practitioners) - Common Law Duty of Disclosure (paragraphs 78 and 79)
https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure

Bail in Murder Cases -

s. 115 Coro

Barristers and solicitors are the principal criminal lawyers in the criminal justice system. How do they work together and individually, what are the similarities and what sets them apart?

As Aidan, Bianca and Conor arrive at the Crown Court, they meet their barristers Gabriella Hadden for Aidan, Henry Irwin for Bianca, and Ivy Jewell for Conor.

It’s now time for the bail application in the Crown Court. What is the test for granting bail in standard criminal cases, and is the test any different for murder?

Hear the bail application take place and find out whether our three defendants are remanded in custody or on bail. And what is it that Conor says to Bianca at the end of this episode? It might just give you a taste of things to come.

For all three defendants, we march on towards trial.


Thank you for listening and I hope you enjoy this episode.

Throughout this podcast I have referred to information and various pieces of legislation. Please refer to the links in the notes below to access this information yourself.

NOTES

Barristers -
Direct Access Barristers https://www.defence-barrister.co.uk/direct-public-access-barristers

Bail -
s.4 of the Bail Act 1976 https://www.legislation.gov.uk/ukpga/1976/63/section/4

Schedule 1 of the Bail Act 1976 https://www.legislation.gov.uk/ukpga/1976/63/schedule/1

s.51 of the Criminal Justice and Public Order Act 1994 - Witness Intimidation (s.51(1)) and Taking Revenge (s.51(2)) https://www.legislation.gov.uk/ukpga/1994/33/section/51

s.25 of the Criminal Justice and Public Order Act 1994 - No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences https://www.legislation.gov.uk/ukpga/1994/33/section/25

ADDITIONAL READING - DEFENCE-BARRISTER.CO.UK
For additional detailed reading on many aspects of what is covered throughout this series, please go to Defence-Barrister.co.uk https://www.defence-barrister.co.uk written by Chris Kessling, Criminal Barrister.

PLEASE NOTE:
It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

Thank you for your understanding.

CONTACT
Email: podcast@defence-barrister.co.uk
X https://twitter.com/defencebar
Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence. https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/