1. Overview of criminal procedure Flashcards
- Overview of criminal procedure
- The classification of offences (indictable, either-way and summary)
- The structure of the criminal courts in England and Wales
- The funding of criminal cases
- The importance and application of the Criminal Procedure Rules, in particular the overriding
objective and the case management functions of the court - Examinable material on the classification of offences will consist of definition of the classes of
offences and determining which class an offence is in. The relevant material is addressed in
paragraphs D6.1-6.4 of Blackstone’s Criminal Practice 2020. Students will be required to know the
classification of the following offences: theft, robbery, burglary, fraud, sexual assault, rape, common
assault, ABH, GBH/wounding contrary to sections 18 and 20 OAPA 1861, criminal damage and
possession, possession with intent and supply of Class A and B drugs. - Examinable material on the structure of the criminal courts in England and Wales will consist of the
structure of the Crown Court, categories of judge in the Crown Court, the role of justices in the
Crown Court, trial on indictment, appeals to the Crown Court, committal for sentence to the Crown
Court, summary offences in the Crown Court, bail in the Crown Court, magistrates’ courts,
magistrates and district judges in the magistrates’ courts, jurisdiction of magistrates’ courts,
jurisdiction of the Court of Appeal (Criminal Division) and appeals to the Supreme Court from the
Court of Appeal (Criminal Division). The relevant material is addressed in paragraphs D3.1, D3.2,
D3.4, the first paragraph of D3.10, D3.13-3.17, D3.19, D3.23, D26.1 and D30.3-30.4 of Blackstone’s
Criminal Practice 2020. - Examinable material on funding of criminal cases will consist of public funding and representation
orders. The relevant material is addressed in paragraphs D32.1, D32.6 and the first three subparagraphs (up to “It was wrong to apply hindsight.”) of D32.7 of Blackstone’s Criminal Practice
2020. - Examinable material on the importance and application of the Criminal Procedure Rules, the
overriding objective and the case management functions of the court will consist of the overriding
objective, the roles of the court and parties in case management, balancing efficiency and fairness,
case progression officers, practical case management and consequences of failure to abide by time
limits. The relevant material is addressed in paragraphs D4.3, D4.7-4.8, the first two subparagraphs of D4.9, D4.10-11, D4.13 and D4.14-4.16 of Blackstone’s Criminal Practice 2020.
Examinable material will also consist of the content of the following provisions of the Criminal
Procedure Rules: CrimPR rules 1.1-1.3, 3.2-3.3, 3.5, 3.9 and 3.11. Candidates will not be required
to memorise individual rule numbers.
.
- Examinable material on the classification of offences will consist of definition of the classes of offences and determining which class an offence is in. The
Criminal trials in England and Wales are either trials on indictment in the Crown Court or summary trials in a magistrates’ court. This section deals with (a) the classification of offences according to whether they: (i) must be tried on indictment, or (ii) may be tried either on indictment or summarily, or (iii) must be tried summarily; and (b) the procedure for determining the appropriate mode of trial in those cases where there is a choice.
Definition of the Classes of Offences
D6.2
There are, as regards mode of trial, three classes of offence — namely, (a) those triable only on indictment, (b) those triable only summarily, and (c) those triable either way: see the MCA 1980, ss. 17 to 25. These sections must be read in conjunction with sch. 1 to the Interpretation Act 1978.
Interpretation Act 1978, sch. 1
(a) ‘indictable offence’ means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;
(b) ‘summary offence’ means an offence which, if committed by an adult, is triable only summarily;
(c) ‘offence triable either way’ means an offence, other than an offence triable on indictment only by virtue of [s. 40] of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily;
and the terms ‘indictable’, ‘summary’ and ‘triable either way’, in their application to offences, are to be construed accordingly.
The Interpretation Act 1978 qualifies the above definitions with the rider that ‘references … to the way or ways in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates’ Courts Act 1980 on the mode of trial in a particular case’. The broad effect of s. 22 of the MCA 1980 is that offences under s. 1 of the Criminal Damage Act 1971 involving damage not exceeding the relevant sum (currently £5,000) must be dealt with as if they were triable only summarily (see D6.20).
D6.3
Where an Act contains the phrase ‘indictable offence’ without any further qualification, it must be understood to mean both those offences which, in the case of an adult, must be tried on indictment and those which (again in the case of an adult) carry the right to trial on indictment although they can be tried summarily with the agreement of the accused and of the magistrates. Summary offences, on the other hand, are entirely distinct from indictable offences and must always be tried summarily, unless s. 40 of the CJA 1988 applies. The reason for the Interpretation Act 1978 definitions referring each time to the possible mode of trial in the case of an adult is that special rules apply to the trial of children and young people, greatly restricting the use of trial on indictment (see s. 24 of the MCA 1980 and D24).
The CJA 1988, s. 40, enables certain specified summary offences to appear on an indictment if they are linked to an indictable offence for which the accused has been sent to the Crown Court for trial (see D11.17). Those offences include common assault; taking a motor vehicle without consent; driving whilst disqualified; and criminal damage where the value of the damage does not exceed £5,000 (and so the provisions of the MCA 1980, s. 22, apply: see D6.20). Moreover, under the CLA 1967, s. 6(3A), a jury can (by way of alternative verdict under s. 6(3)) convict an accused of a summary offence to which the CJA 1988, s. 40, applies, even if a count charging the offence is not included in the indictment (see D19.42).
Determining the Class of an Offence
D6.4
An offence is triable either way if either: (a) it is listed in the MCA 1980, sch. 1 (see D6.5) (the MCA 1980, s. 17, provides that, without prejudice to any other enactment by virtue of which an offence is triable either way, the offences listed in sch. 1 shall be so triable); or (b) the enactment creating the offence (where the offence is a statutory one) specifies one penalty on summary conviction and a different (invariably greater) penalty on conviction on indictment. If the statute provides for a maximum penalty imposable on summary conviction but does not provide for a penalty on conviction on indictment, the offence is summary. If the statute provides only for a penalty on conviction on indictment, the offence is triable only on indictment (unless the offence is listed in the MCA 1980, sch. 1). Common-law offences (i.e. offences not created by statute) are all indictable offences and are triable only on indictment unless listed in the MCA 1980, sch. 1.
Attempts are covered by the CAA 1981, s. 4(1)(c), the rule being — as it is for allegations of aiding and abetting — that the offence is triable either way only if the substantive offence is so triable.
The CAA 1981, s. 1(4), provides that s. 1 (which creates the offence of attempting to commit an offence) applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence. Section 4(1)(c) provides that a person guilty under s. 1 of attempting to commit an either-way offence is liable, on summary conviction, to any penalty that could have been imposed on summary conviction of that offence.
structure of the Crown Court
categories of judge in the Crown Court
the role of justices in the
Crown Court
, trial on indictment
, appeals to the Crown Court
, committal for sentence to the Crown
Court
summary offences in the Crown Court
bail in the Crown Court
magistrates’ courts
,
magistrates and district judges in the magistrates’ courts
jurisdiction of magistrates’ courts
,
jurisdiction of the Court of Appeal (Criminal Division) and appeals to the Supreme Court from the
Court of Appeal (Criminal Division)
D3.1
The criminal trial of an adult takes place either in the Crown Court or in a magistrates’ court. The criminal trial of a child or young person usually takes place in a special form of magistrates’ court, known as the youth court, but sometimes takes place in either the Crown Court or an ordinary magistrates’ court. The first part of this section describes the status, structure, judges and main heads of jurisdiction of the Crown Court and ordinary magistrates’ courts. Youth courts are described in D24.
, D3.2
Creation and Status
D3.2
The Crown Court was created by the Courts Act 1971, and replaced the former courts of assize and quarter sessions and a number of other criminal courts. The Crown Court derives its jurisdiction from the Senior Courts Act 1981. Its practice and procedure are prescribed, inter alia, by the CrimPR (see Supplement, R-1 et seq.).
The Crown Court is regarded as a single court. It follows that, although the Crown Court sits in many different locations and a case will normally be tried at a location near where the offence allegedly occurred, the trial may take place at any location of the Crown Court. The choice of location will depend on the nature of the offence charged (offences are divided into three classes, determining the level of judge who should preside), the convenience of the parties, the desirability of expediting the trial and any directions given by the presiding judge of the relevant circuit as to the locations to which the magistrates’ courts in the area of the circuit should normally send cases for trial. See CrimPD XIII for detailed guidance on listing, especially part E on allocation of business within the Crown Court (see Supplement, PD-120).
In status, the Crown Court occupies a somewhat ambiguous position. Like the High Court, it is a Senior Court and a superior court of record (Senior Courts Act 1981, s. 45(1)), with the same powers in relation to, e.g., contempt and enforcement of its orders as are possessed by the High Court (s. 45(4)). Furthermore, when it exercises its jurisdiction in relation to trials on indictment, appeals from its decisions lie only to the Court of Appeal (Criminal Division), just as appeals from the High Court go to the Court of Appeal (Civil Division). On the other hand, decisions of the Crown Court which do not relate to trial on indictment (e.g., a decision taken in respect of an appeal from a magistrates’ court) may be challenged in the High Court either by an appeal by way of case stated or by application for judicial review (see ss. 28(2) and 29(3) of the 1981 Act). Thus, for some purposes the Crown Court is treated as being on a par with the High Court, while for other purposes it is subject to the same supervisory jurisdiction that the High Court exercises in relation to magistrates’ courts.
,
D3.4
Senior Courts Act 1981, s. 8
(1) The jurisdiction of the Crown Court shall be exercisable by—
(a) any judge of the High Court; or
(b) any circuit judge, recorder, qualifying judge advocate or District Judge (Magistrates’ Courts); or
(c) subject to and in accordance with the provisions of sections 74 and 75(2), a judge of the High Court, circuit judge, recorder or qualifying judge advocate sitting with not more than four justices of the peace, and any such persons when exercising the jurisdiction of the Crown Court shall be judges of the Crown Court.
For ss. 74 and 75(2) (justices sitting in Crown Court), see D3.9. Section 8(1) must be read in conjunction with s. 24 (deputy circuit judges) — see D3.8.
There are thus three principal categories of Crown Court judge, namely High Court judges, circuit judges and recorders. All proceedings in the Crown Court must be heard before a single professional judge of the court except where there is provision for justices to sit with such a judge (s. 73(1)).
The Armed Forces Act 2011 amended s. 8(1)(b) to add any ‘qualifying judge advocate’ to the list of judges who can exercise the jurisdiction of the Crown Court; however, such judges will not have jurisdiction in relation to an appeal from a youth court (s. 8(1A)).
, the first paragraph of D3.10
When the Crown Court comprises a judge sitting with a justice or justices, the decision of the court may be by a majority (Senior Courts Act 1981, s. 73(3)). It follows that the justices may out-vote the professional judge, although if an even-numbered court is equally divided the professional judge has a casting vote (s. 73(3)). The principle that the justices participate equally with the judge in the decisions of the court applies not only to the determination of the appeal, but also to interlocutory decisions (e.g., about the admissibility of evidence). Thus, in Orpin [1975] QB 283, Lord Widgery CJ said (at p. 287) that the justices should be given an opportunity of taking part in the decision as to whether disputed evidence was admissible or not. It is up to the judge whether to retire for the purpose, or whether to consult with the justices briefly and informally on the bench. However, his lordship went on to say that, in matters of law, ‘the lay justices must take a ruling from the presiding judge in precisely the same way as the jury is required to take his ruling when the jury considers its verdict’.
, D3.13
The Crown Court has exclusive jurisdiction over trials on indictment (Senior Courts Act 1981, s. 46(1), which provides that ‘all proceedings on indictment shall be brought before the Crown Court’). This jurisdiction is not geographically restricted: ‘The jurisdiction of the Crown Court … shall include jurisdiction in proceedings on indictment for offences wherever committed …’ (s. 46(2), emphasis added). The effect of s. 46(2) is that, assuming the alleged offence is indictable and is an offence in respect of which the English criminal courts accept jurisdiction, the Crown Court will have jurisdiction to try the accused for it.
A person convicted by a magistrates’ court may, if he pleaded not guilty, appeal to the Crown Court against conviction and/or sentence; if he pleaded guilty, he may appeal only against sentence (MCA 1980, s. 108, and see D29.2 et seq.).
Various statutory provisions enable magistrates’ courts to commit an offender to the Crown Court to be sentenced. These are described fully at D23.29 et seq.
In certain circumstances the Crown Court may have jurisdiction to deal with certain summary offences, pursuant to the CJA 1988, s. 40 (see D11.17). Moreover, by virtue of the Courts Act 2003, s. 66, a Crown Court judge (whether a High Court judge, circuit judge, or recorder) may exercise the powers of a district judge (magistrates’ court). So, for example, it would be possible for a Crown Court judge in the Crown Court to deal with a summary offence that is linked with an indictable offence without the case having to go back to a magistrates’ court: under s. 66, the judge would be able to deal with the summary offence as if he were a magistrate (following the procedure that would be adopted in the magistrates’ court).
As well as being able to grant bail during the course of a trial on indictment or other proceedings before it, the Crown Court has jurisdiction, inter alia, to grant bail to a person: (a) who has been sent to it in custody for trial or sentence; (b) who is appealing to it from a magistrates’ court following the imposition of a custodial sentence by the justices; (c) who is appealing from it to the Court of Appeal and has been granted a certificate that the case is fit for appeal; or (d) who has been remanded in custody by a magistrates’ court following an argued bail application (Senior Courts Act 1981, s. 81). Bail is covered in detail in D7.
D3.19
Magistrates’ courts consist of justices of the peace. The great majority of justices are unpaid lay men or women; a minority are salaried district judges (magistrates’ courts) who are legally qualified. The bulk of the criminal jurisdiction of magistrates’ courts has to be exercised by a court consisting of at least two lay justices sitting in open court. However, district judges almost invariably sit alone. The law on justices and magistrates’ courts is contained principally in: (a) the Courts Act 2003 (appointment, removal etc. of justices and organisation of magistrates’ courts); (b) the MCA 1980 (jurisdiction and powers of the courts); and (c) the CrimPR (detailed practice and procedure).
The MCA 1980, s. 148(1), provides that ‘the expression “magistrates’ court” means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law’. Thus, whenever a justice or justices sit for the purpose of exercising their jurisdiction as justices they constitute a magistrates’ court. Where proceedings fall into a number of distinct stages (as when a magistrates’ court, after convicting an offender and imposing a fine, subsequently takes steps to enforce payment of the fine), the court for the later stage need not be constituted by the same justices as constituted the court on the first occasion, so long as both magistrates’ courts are acting in the same local justice area (s. 148(2)).
, D3.23
Jurisdiction
D3.23
Under the MCA 1980, s. 2(1), a magistrates’ court has jurisdiction to try any summary offence and (subject to the mode of trial procedure) any offence which is triable either way, irrespective of where the offence was committed. If the accused is convicted of a summary offence, the court may sentence him to anything up to the maximum penalty provided for by the statute creating the offence. A magistrates’ court may try an either-way offence allegedly committed by an adult if (a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and (b) the accused agrees (ss. 18 to 21); in the event of conviction, the court may impose a penalty of anything up to six months’ imprisonment and/or an unlimited fine (s. 32(1)). Where a magistrates’ court has convicted an adult of an either-way offence, it may commit him to the Crown Court for sentence if the court considers its powers of punishment to be inadequate (PCC(S)A 2000, s. 3).
A magistrates’ court may send someone accused of an indictable offence (whether triable only on indictment or triable either way) for trial in the Crown Court no matter where the offence was allegedly committed.
A youth court is a form of magistrates’ court and has jurisdiction to try children or young people for any offence (other than homicide and certain firearms offences), whether indictable or summary, although in certain circumstances the court may choose instead to send the child or young person to the Crown Court for trial (MCA 1980, s. 24).
D26.1
Statutory Bases
D26.1
The vast majority of appeals against conviction and sentence are disposed of by the Court of Appeal (Criminal Division) under its statutory jurisdiction. Section 15(2) of the Senior Courts Act 1981 enables the exercise of the statutory powers conferred under the following legislative provisions, amongst others:
Criminal Appeal Act 1968, ss. 1 and 2Jurisdiction to determine appeals against conviction on indictment.
Criminal Appeal Act 1968, ss. 9 and 11Jurisdiction to determine appeals against sentence passed following conviction on indictment.
Criminal Appeal Act 1968, ss. 10 and 11Jurisdiction to determine appeals against sentence passed on a committal for sentence.
Criminal Justice Act 1972, s. 36Jurisdiction to give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment.
Criminal Justice Act 1987, s. 9(11)–(14)Jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases.
Criminal Justice Act 1988, ss. 35 and 36Jurisdiction to increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only on indictment.
Criminal Appeal Act 1995, s. 9Jurisdiction to determine appeals on a reference by the CCRC.
There is no power for the Court of Appeal (Criminal Division) to hear an appeal against a refusal to make a football banning order (Boggild [2011] EWCA Crim 1928, [2012] 1 Cr App R (S) 81 (457): see E21.7).
D30.3
Sections 33 and 34 of the Criminal Appeal Act 1968 allow either the prosecution or defence to appeal a decision of the Court of Appeal to the Supreme Court, but only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the Supreme Court. In addition, the Court of Appeal must certify that the appeal involves a question concerning a point of law of general public importance. An application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision, or the date on which the court gives the reasons for its decision, whichever is later. Time begins to run on the day of the decision and not the day following the decision.
CrimPR part 43 (see Supplement, R-487 et seq.) governs the making of an application to the Court of Appeal for permission to appeal or refer a case to the Supreme Court. Form SC must be served on the Registrar and all the parties. The Supreme Court has no power to grant repre- sentation orders and an application for appropriate representation before the Supreme Court should be made to the Court of Appeal.
Where the Court of Appeal is of the view that the prospective appeal raises no point of law of public importance, it may decide so on the papers (Daines [1961] 1 All ER 290). A refusal to allow oral submissions will not amount to a violation of a person’s rights under the ECHR, Article 6 (Steele [2006] EWCA Crim 2000, [2007] 1 WLR 222). A refusal by the Court of Appeal to certify a question cannot be appealed. In Dunn [2010] EWCA Crim 1823, [2011] 1 WLR 958, the Court of Appeal concluded that the fact that whether an appeal that has failed before it raises a point of law of public importance is decided by the Court itself does not offend either Article 6 or Article 14 of the ECHR.
In Garwood [2017] EWCA Crim 59, [2017] 1 Cr App R 30 (451) the Court of Appeal consid- ered whether there is jurisdiction to grant a certificate in circumstances when leave to appeal against conviction and sentence has been refused by the Court of Appeal in the first place. As a matter of statutory construction, the Court decided that the Criminal Appeal Act 1968 pro- vided for an appeal to the Supreme Court only by appellants and not applicants. Therefore it was not open to the Court of Appeal to certify a question when an applicant had been refused leave to appeal to the Court of Appeal. The consequence of that first refusal is that applicants never attain the status of appellants. Moreover, the Court decided that the authorities of Stafford (1969) 53 Cr App R 1, Mealey (1974) 60 Cr App R 59, and Moulden [2004] EWCA Crim 2715, [2005] 1 Cr App R (S) 121 (691) and [2005] EWCA Crim 374, which had been decided to similar effect, were binding on the Court.
30.4
D30.4
If the Court of Appeal certifies a question but leave to appeal to the Supreme Court is refused, the party may apply for leave to the Supreme Court within 28 days of the day on which the Court of Appeal gives reasons for its refusal of leave.
If the Court of Appeal decides an appeal on one ground but leaves others undecided and the Supreme Court hears the appeal of that decision, the Supreme Court may either rule on those grounds as if it were the Court of Appeal or may remit them back to the Court of Appeal for its decision. In Mandair [1995] 1 AC 208, the House of Lords stated that the undecided grounds of appeal should be identified and written submissions should be made as to whether and how the House of Lords should dispose of them and the principle is equally applicable to appeals to the Supreme Court.
Practice Direction 12 of the Supreme Court Practice Directions provides comprehensive instruc- tion in respect of appeals to the Supreme Court concerning criminal proceedings.
D32.1
Introduction
D32.1
The primary source of the law on public funding in criminal matters is the LASPO 2012, as supplemented by various statutory instruments, and the standard crime contract 2017 issued by the Legal Aid Agency (LAA). The LASPO provisions apply to any advice and assistance, advocacy assistance or representation order dated on or after 1 April 2013. Any order dated before 1 April 2013 continues throughout the life of the case (which may include long delayed confiscation proceedings) under the previous law as set out in earlier editions of this work.
Grant of legal aid in criminal cases is, in all but a small minority of cases, authorised by the LAA and applications should be made electronically.
, D32.6
Applying for a Representation Order in a Magistrates’ Court and the Crown Court
D32.6
Section 17 of the LASPO 2012 provides for the determination of applications for a representation order in a magistrates’ court or Crown Court. Responsibility (save in exceptional circumstances) in the Crown Court for making that determination rests with the LAA. Application should be made electronically on form CRM14e.
Magistrates have no power to grant representation, save when considering an appeal against the refusal of representation. Representation is applied for using the prescribed form (CRM14) and submitting it to the LAA, along with any proof of means required for those who are not passported (form CRM15).
The Crown Court has very limited power to grant a representation order and may do so only on oral application under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013 No. 614). Regulation 6 states that a representation order may only be granted in proceedings:
(a) which are described in the LASPO 2012, s. 14(g) (contempt in the face of the court);
(b) which arise out of an alleged failure to comply with an order of the Crown Court and it appears to the court that there is no time to instruct a provider; or
(c) where the individual is brought before the court under the Senior Courts Act 1981, s. 81, in pursuance of a Crown Court warrant.
There is no means test for these applications. Any other order of the Crown Court will be invalid (Criminal Legal Aid (General) Regulations 2013, reg. 3). The Crown Court may consider appeals against the refusal of a representation order in those situations where the interests of justice merits test is not automatically met.
and the first three subparagraphs (up to “It was wrong to apply hindsight.”) of D32.7
D32.7
The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test ‘according to the interests of justice’ and an assessment of means.
Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 17
(2) In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account—
(a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his or her own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented.
In respect of proceedings in the Crown Court on indictment (Criminal Legal Aid (General) Regulations 2013, reg. 24(1)) or following a committal for sentence (reg. 19(2)), the interests of justice test is deemed met. Appeals to the Crown Court are not automatically covered (reg. 24(2)). In assessing whether the accused is likely to lose his liberty, regard must be had to the facts alleged by the prosecution, rather than the maximum penalty that could theoretically be imposed (Highgate Justices, ex parte Lewis [1977] Crim LR 611). So it is not enough that the offence carries a custodial sentence: the court must consider whether a custodial sentence might be imposed in the particular case. The LAA pays particular regard to sentencing guidelines and a defendant’s list of previous convictions. In Liverpool City Magistrates, ex parte McGhee [1993] Crim LR 609, the Divisional Court rejected the contention that what is now called an unpaid work requirement could be regarded as a sentence which deprives the accused of liberty. However, Rose LJ added that the list of criteria (in what is now the LASPO 2012, s. 17) is not exhaustive, and so the possibility of a community punishment order (now a community order with a relevant requirement) may be a factor in deciding whether to make a representation order.
In R (Punatar) v Horseferry Road Magistrates’ Court [2002] EWHC 1196 (Admin), an application for representation submitted at the end of court proceedings was refused because the prosecution substituted a charge for a non-imprisonable offence in place of an imprisonable one. The Divisional Court held that representation should have been granted due to the fact that when the solicitor decided to attend court the offence that was charged at that time merited representation. It was wrong to apply hindsight.
D4.3
The Overriding Objective
D4.3
Criminal Procedure Rules 2015, rr. 1.1 to 1.3
- 1—
(1) The overriding objective of this code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes—
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account—
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases. - 2—
(1) Each participant, in the conduct of each case, must—
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the court; and
(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule. - 3—
(1) The court must further the overriding objective in particular when—
(a) exercising any power given to it by legislation (including these Rules);
(b) applying any practice direction; or
(c) interpreting any rule or practice direction.
, D4.7
Case Management
D4.7
CrimPR 3.1 to 3.12 (see Supplement, R-7 et seq.) apply to the management of all cases in the magistrates’ courts and the Crown Court, including the Crown Court acting in its appellate capacity with respect to a magistrates’ court; CrimPR 3.13 to 3.26 apply, broadly, to Crown Court trials (r. 3.1). Part 3 operates together with CrimPD I (see Supplement, PD-2), which was significantly re-cast as part of the Better Case Management process.
-4.8
The Rationale
D4.8
CrimPR 3.2(1) lays down that the court must further the overriding objective (see D4.3) by ‘actively managing the case’. This aim underpinned the recommendations of the Auld report (especially at ch. 10, paras. 229 to 231), and was explicitly the aim of the CrimPR, as is demonstrated by the words of Lord Woolf CJ in March 2005:
Most importantly, they promote a culture change in criminal case management. They introduce new rules, written in plain English, that give courts explicit powers and responsibilities to manage cases effectively, and to reduce the numbers of ineffective hearings that cause distress to witnesses and inconvenience and expense to everyone.
The need for active case management is a theme that the Court of Appeal has emphasised in a series of decisions. For example, in Jisl [2004] EWCA Crim 696, Judge LJ stated (at [116]–[118]):
Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge’s duty. The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly …
Once the issue has been identified, in a case of any substance at all, (and this particular case was undoubtedly a case of substance and difficulty) the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice. To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems, as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court. Criticism is more likely to be addressed to those who ignore them.
The Leveson Review repeated (at para. 38) that case management:
… cannot be seen as a tick-box exercise … To that end, all parties must be required to comply with the Criminal Procedure Rules and to work to identify the issues so as to ensure that court time is deployed to maximum effectiveness and efficiency. In the event that a suitable disposal of the case cannot be agreed, this includes ensuring that the necessary evidence is served, disclosure has been undertaken, defence statements are case specific and address the issues, appropriate admissions and summaries are prepared, special measures and evidential issues resolved and witnesses are required only if truly necessary with availability known to the court so as to avoid an ineffective hearing.
, the first two subparagraphs of D4.9
The Court’s Role
D4.9
CrimPR 3.2(2) sets out a list of elements of active case management, based upon early identification of the issues and the setting of a procedural timetable.
As far as the conduct of the trial itself is concerned, the duty of the court is set out in r. 3.2(2)(e), which reflects the overriding objective of dealing with each case ‘efficiently and expeditiously’ (r. 1.1(2)(e)). It states that the court must further the overriding objective by ‘ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way’. In addition, r. 3.2(2)(f) charges the court with the duty of ‘discouraging delay’. The court’s obligations have now been supplemented by r. 3.9(3)(a), which requires the court to take steps to encourage and facilitate the attendance of witnesses. CrimPR 3.13 to 3.26 encourage case management at pre-trial hearings, and especially preparatory hearings (addressed further at D15.39).
, D4.10
Balancing Efficiency and Fairness
D4.10
Achieving effective case management must be tempered by the imperatives of justice, as outlined in CrimPR 1.1. This was emphasised by the Administrative Court in S v DPP [2006] EWHC 1207 (Admin), and illustrated by the approach in R (Drinkwater) v Solihull Magistrates’ Court [2012] EWHC 765 (Admin), where it was stressed that the decision to proceed with a trial in the absence of the accused was not to be made solely for reasons of expedition. Moreover, the court’s power does not extend to the quashing of properly preferred indictments or otherwise using the overriding objective to challenge established legal principles (B (F) [2010] EWCA Crim 1857, [2011] 1 WLR 844, and see also H (S) [2010] EWCA Crim 1931, [2011] 1 Cr App R 14 (182)).
In Salt [2015] EWCA Crim 662, [2015] 1 WLR 4905 the Court of Appeal identified relevant factors in relation to whether failures of disclosure could justify a stay of the proceedings. Those factors will also be relevant to the balance required in enforcing compliance with case management directions. They included the gravity of the charges, whether victims would be denied justice, the necessity for proper attention to be paid to compliance, the nature and materiality of the failures on both sides, the waste of court resources and the availability of other sanctions.
D4.11
D4.11
Case Management Directions CrimPR 3.5 and 3.9 give the court detailed case management powers and duties, including the power and duty to give directions, which can be varied in accordance with rr. 3.6 and 3.8. CrimPR 3.9(7) makes specific reference to the measures required, such as a ground rules meeting, in cases where an intermediary is to be used. CrimPR 3.10 deals with readiness for trial (or appeal), while r. 3.11 allows the court to require a party to take various steps to help it manage the trial (or appeal). Again, the powers involved in this latter set of provisions (e.g., to identify ‘any point of law that could affect the conduct of the trial or appeal’: see r. 3.11(c)(viii)) in essence reflect the statutory provisions introduced by the CJA 2003 in relation to disclosure (see the CPIA 1996, s. 6A, and D9.29).
, D4.13
The Role of the Parties
D4.13
CrimPR 3.2, which lays down the duty of the court, is supplemented by r. 3.3, which fixes the parties with a corresponding duty. These duties were reinforced in the Leveson Review, where it was said (at para. 33) that ‘the Criminal Procedure Rules should place a duty of direct engagement between identified representatives who have case ownership responsibilities’ (see also D4.8).
To a large extent, the duty on the defence to help identify the ‘real issues’ is already to be found in the statutory provisions relating to disclosure (see D9.29, where detail of the duties in question is to be found). In this regard see R (DPP) v Chorley Magistrates’ Court [2006] EWHC 1795 (Admin), where Thomas LJ made clear the importance of co-operation from those defending in narrowing the issues:
If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty.
The courts have since shown themselves ready to act to identify the issues early and to deny the defence any advantage from failing to do so. For example:
(a) In R (Lawson) v Staff ord Magistrates’ Court [2007] EWHC 2490 (Admin) the Divisional Court held that where a defendant identified two purportedly crucial issues for the first time during closing argument, the magistrates were entitled to adjourn the trial in order to allow the prosecution to adduce further evidence (see also Writtle v DPP [2009] EWHC 236 (Admin), [2009] RTR 28 (369)).
(b) In Penner [2010] EWCA Crim 1155 the Court of Appeal observed that it was crucial for counsel to carefully examine and identify the case issues at an early stage pre-trial. Moreover, where a new issue arose at trial, it was counsel’s duty to draw the matter to the attention of the judge rather than attempting to ambush the prosecution by a submission of no case to answer.
In Boardman [2015] EWCA Crim 175, [2015] 1 Cr App R 33 (504) and Salt [2015] EWCA Crim 662, [2015] 1 WLR 4905, the Court of Appeal stressed that the prosecution could not expect that a failure to comply with deadlines for service of evidence or compliance with disclosure would not pass without judicial sanction (as to the consequences of failures in disclosure, see the discussion of Salt at D9.28).
However, the limits to the scope of a case management order which required disclosure of details of defence witnesses, and the implications for litigation privilege and legal professional privilege, were demonstrated in R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin), [2008] 1 WLR 2001. The court at first instance had made an order requiring disclosure of the details of witnesses that an accused intended to call. The Divisional Court found that, although contemporary principles as to the proper conduct in litigation accorded greater weight to the dictates of good case management, they could not of themselves usurp a litigant’s historic right not to disclose information until he presented it from the protection of litigation privilege or legal professional privilege.
and D4.14
Case Progression Officers
D4.14
CrimPR 3.4 requires each of the parties, and the court, to appoint a case progression officer at the commencement of proceedings, and to inform the other participants of how to contact that person. The case progression officer is thereafter responsible for progressing the case. It is his responsibility to ensure that party’s compliance with court directions, and to alert other parties to anything which may interfere with the smooth progress of the case. Communication between those responsible for case progression (court and parties) is encouraged to be electronic, with resolution of any issues that arise by the court without the necessity of a hearing. In this regard CrimPD I, para. 3A.24, states: ‘As far as possible, case progression should be managed without a hearing in the courtroom, using electronic communication in accordance with CrimPR 3.5(2)(d)’.
Practical Case Management
D4.15
CrimPR 3.1 to 3.12 are supplemented by CrimPD I, paras. 3A.1 to 3A.28 (see Supplement PD-3), and the forms to be used for case management purposes, set out in the CrimPD, annex D.
The CrimPD stress the necessity of active case management at pre-trial hearings in order to reduce the number of ineffective and cracked trials, and the delays that occur within trials, with an emphasis on early and effective communication between the parties. To that end, they address the early identification of guilty pleas (para. 3A.4) and the completion of a Preparation for Effective Trial form while the case is still in the magistrates’ court and the allegation is contested (para. 3A.12), and plea and trial preparation hearings (PTPH) (para. 3A.16). In the context of the latter, para. 3A.20 flags the need for preparation by all, in particular by reference to the matters set out in CrimPR 3.5. Paragraph 3A.21 stresses the importance of avoiding other pre-trial hearings thereafter, but identifies the circumstances in which such hearings, and particular case progression hearings (addressed at para. 3A.24) should occur. PTPH are addressed at D15.47.
Issues of case management that are addressed in more detail elsewhere in this work include the following:
(a) the Better Case Management process, involving early guilty plea hearings and PTPH (see D15.41);
(b) the provisions relating to issues of disclosure (see D9);
(c) the provisions relating to preparatory hearings (see D15.51).
-4.16
Failure to Abide by Time-limits
D4.16
An important aspect of the exercise of the court’s case management powers is the consequences of any failure of the parties to comply with time-limits imposed by the CrimPR. The proper approach to be adopted appears to be that identified in Musone [2007] EWCA Crim 1237, [2007] 1 WLR 2467, where the Court of Appeal was concerned with whether the trial judge had correctly rejected the attempt by one accused to adduce evidence of the previous bad character of the other at a late stage — so late as to be in breach of the time-limit for service of a notice of an application to adduce such evidence (see also F13.71).
The Court observed that the trial judge was entitled to exclude such evidence where he concluded that the applicant was deliberately manipulating the process so as to prevent the co-accused from dealing with the evidence properly. Their lordships went on to make clear that it would be rare for a judge to exclude evidence of substantial probative value just because the time-limits had not been complied with, but it would be proper to do so where such exclusion was the only means to ensure fairness.
The same approach was also adopted in cases such as R (Robinson) v Sutton Coldfield Magistrates’ Court [2006] EWHC 307 (Admin), [2006] 2 Cr App R 13 (208) and Delay [2006] EWCA Crim 1110, namely that the court should consider whether the other parties have been prejudiced by the late notice of the application, and the reasons for the delay, before deciding whether evidence should be excluded as a consequence of the breach of the rules.
Although these cases all relate to notice of a bad character application, the same approach has been taken in relation to the consequences of failures to comply with the rules in other areas (R (Robinson) v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin)). See also Ensor [2009] EWCA Crim 2519, [2010] 1 Cr App R 18 (255), where the failure of the defence to comply with the notice requirements for expert evidence resulted in the exclusion of that evidence. It should, however, be noted that:
(a) r. 3.8(1)(a) allows the court to extend a time-limit set by the CrimPR even after it has expired, and
(b) the test for whether to exclude evidence or to refuse an application because of non-compliance with the CrimPR involves consideration of whether any party has been prejudiced by that failure (see, e.g., Culhane [2006] EWCA Crim 1053).
CrimPR rules 1.1-1.3
The overriding objective 1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes― (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account― (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected, and (iv) the needs of other cases.
The duty of the participants in a criminal case 1.2.—(1) Each participant, in the conduct of each case, must― (a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective. (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.
The application by the court of the overriding objective 1.3. The court must further the overriding objective in particular when― (a) exercising any power given to it by legislation (including these Rules); (b) applying any practice direction; or (c) interpreting any rule or practice direction
, 3.2-
The duty of the court
3.2.—(1) The court must further the overriding objective by actively managing the case. (2) Active case management includes― (a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way; (f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (g) encouraging the participants to co-operate in the progression of the case; and (h) making use of technology. (3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible. (4) Where appropriate live links are available, making use of technology for the purposes of this rule includes directing the use of such facilities, whether an application for such a direction is made or not― (a) for the conduct of a pre-trial hearing, including a pre-trial case management hearing; (b) for the defendant’s attendance at such a hearing― (i) where the defendant is in custody, or where the defendant is not in custody and wants to attend by live link, but (ii) only if the court is satisfied that the defendant can participate effectively by such means, having regard to all the circumstances including whether the defendant is represented or not; and (c) for receiving evidence under one of the powers to which the rules in Part 18 apply (Measures to assist a witness or defendant to give evidence). (5) Where appropriate telephone facilities are available, making use of technology for the purposes of this rule includes directing the use of such facilities, whether an application for such a direction is made or not, for the conduct of a pre-trial case management hearing― (a) if telephone facilities are more convenient for that purpose than live links; (b) unless at that hearing the court expects to take the defendant’s plea; and (c) only if― (i) the defendant is represented, or (ii) exceptionally, the court is satisfied that the defendant can participate effectively by such means without a representative.
3.3,
The duty of the parties
3.3.—(1) Each party must― (a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and (b) apply for a direction if needed to further the overriding objective. (2) Active assistance for the purposes of this rule includes― (a) at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing; (b) after that, communication between the parties and with the court officer until the conclusion of the case; (c) by such communication establishing, among other things― (i) whether the defendant is likely to plead guilty or not guilty, (ii) what is agreed and what is likely to be disputed, (iii) what information, or other material, is required by one party of another, and why, and (iv) what is to be done, by whom, and when (without or if necessary with a direction); (d) reporting on that communication to the court― (i) at the first hearing, and (ii) after that, as directed by the court; and (e) alerting the court to any reason why― (i) a direction should not be made in any of the circumstances listed in rule 3.2(4) or (5) (The duty of the court: use of live link or telephone facilities), or (ii) such a direction should be varied or revoked.
3.5, 3.9 and 3.11. Candidates will not be required
to memorise individual rule numbers.
The court’s case management powers
3.5.—(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules. (2) In particular, the court may― (a) nominate a judge, magistrate or justices’ legal adviser to manage the case; (b) give a direction on its own initiative or on application by a party; (c) ask or allow a party to propose a direction; (d) receive applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and conduct a hearing by live link, telephone or other such electronic means; (e) give a direction― (i) at a hearing, in public or in private, or (ii) without a hearing; (f) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (g) shorten or extend (even after it has expired) a time limit fixed by a direction; (h) require that issues in the case should be― (i) identified in writing, (ii) determined separately, and decide in what order they will be determined; and (i) specify the consequences of failing to comply with a direction. (3) A magistrates’ court may give a direction that will apply in the Crown Court if the case is to continue there. (4) The Crown Court may give a direction that will apply in a magistrates’ court if the case is to continue there. (5) Any power to give a direction under this Part includes a power to vary or revoke that direction. (6) If a party fails to comply with a rule or a direction, the court may— (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and (c) impose such other sanction as may be appropriate.
Case preparation and progression
3.9.—(1) At every hearing, if a case cannot be concluded there and then the court must give directions so that it can be concluded at the next hearing or as soon as possible after that. (2) At every hearing the court must, where relevant― (a) if the defendant is absent, decide whether to proceed nonetheless; (b) take the defendant’s plea (unless already done) or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty; (c) set, follow or revise a timetable for the progress of the case, which may include a timetable for any hearing including the trial or (in the Crown Court) the appeal; (d) in giving directions, ensure continuity in relation to the court and to the parties’ representatives where that is appropriate and practicable; and (e) where a direction has not been complied with, find out why, identify who was responsible, and take appropriate action. (3) In order to prepare for the trial, the court must take every reasonable step― (a) to encourage and to facilitate the attendance of witnesses when they are needed; and (b) to facilitate the participation of any person, including the defendant. (4) Facilitating the participation of the defendant includes finding out whether the defendant needs interpretation because― (a) the defendant does not speak or understand English; or (b) the defendant has a hearing or speech impediment. (5) Where the defendant needs interpretation― (a) the court officer must arrange for interpretation to be provided at every hearing which the defendant is due to attend; (b) interpretation may be by an intermediary where the defendant has a speech impediment, without the need for a defendant’s evidence direction; (c) on application or on its own initiative, the court may require a written translation to be provided for the defendant of any document or part of a document, unless― (i) translation of that document, or part, is not needed to explain the case against the defendant, or (ii) the defendant agrees to do without and the court is satisfied that the agreement is clear and voluntary and that the defendant has had legal advice or otherwise understands the consequences; (d) on application by the defendant, the court must give any direction which the court thinks appropriate, including a direction for interpretation by a different interpreter, where― (i) no interpretation is provided, (ii) no translation is ordered or provided in response to a previous application by the defendant, or (iii) the defendant complains about the quality of interpretation or of any translation. (6) Facilitating the participation of any person includes giving directions for the appropriate treatment and questioning of a witness or the defendant, especially where the court directs that such questioning is to be conducted through an intermediary. (7) Where directions for appropriate treatment and questioning are required, the court must― (a) invite representations by the parties and by any intermediary; and (b) set ground rules for the conduct of the questioning, which rules may include― (i) a direction relieving a party of any duty to put that party’s case to a witness or a defendant in its entirety, (ii) directions about the manner of questioning, (iii) directions about the duration of questioning, (iv) if necessary, directions about the questions that may or may not be asked, (v) where there is more than one defendant, the allocation among them of the topics about which a witness may be asked, and (vi) directions about the use of models, plans, body maps or similar aids to help communicate a question or an answer.
Conduct of a trial or an appeal
3.11. In order to manage a trial or an appeal, the court— (a) must establish, with the active assistance of the parties, what are the disputed issues; (b) must consider setting a timetable that— (i) takes account of those issues and of any timetable proposed by a party, and (ii) may limit the duration of any stage of the hearing; (c) may require a party to identify— (i) which witnesses that party wants to give evidence in person, (ii) the order in which that party wants those witnesses to give their evidence, (iii) whether that party requires an order compelling the attendance of a witness, (iv) what arrangements are desirable to facilitate the giving of evidence by a witness, (v) what arrangements are desirable to facilitate the participation of any other person, including the defendant, (vi) what written evidence that party intends to introduce, (vii) what other material, if any, that person intends to make available to the court in the presentation of the case, and (viii) whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and (d) may limit— (i) the examination, cross-examination or re-examination of a witness, and (ii) the duration of any stage of the hearing.
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