Crim PR Flashcards

Question

Is the public excluded from the adult magistrates court when a youth is appearing there as a defendant?

Answer 1

No unless they are sitting in chambers

Answer 2

No unless they are sitting in chambers

Answer 3

Under 16 (Unless and to the extent that is court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case.) * If the accused is aged 16 or 17 the court may require a parent or guardian to attend. 'Guardian' is defined as anyone who 'has for the time being the care of the child or young person' (s.107 CYPA 1933). 'Parent' includes an adoptive parent. * If the youth is under the care of the local authority their representative must (or may) attend court instead of, or sometimes in addition to, the parent.

Answer 4

1) lawyer and witnesses remain seated 2) Lawyers are not robed 3) The youth sits in a chair in the dock and usually their parent or guardian sits next to the youth and lawyers may sit next to their client 4) Rather than communicating via the solicitor, magistrates prefer to talk directly with the defendants and their parents 5) Justices who sit on youth court benches are specially trained 6) The youth and youth witness are addressed by their first names 7) If the youth or youth witness needs to take an oath this will be 'to promise' to tell the truth, as opposed 'to swear' as in adult magistrates court 8) language used differently - eg: 'finding of guilt' is a conviction and 'order made on a finding of guilt' is a sentence

Answer 5

Unless and to the extent that is court is satisfied that it would be reasonable to require such attendance, having regard to the circumstances of the case.

Answer 6

If the accused is aged 16 or 17.

Answer 7

Anyone who has for the time being care of the child or young person

Answer 8

If the youth is under the care of the local authority their representative must (or may) attend court instead of, or sometimes in addition to, the parent.

Answer 9

Proceedings are more informal than the adult magistrates and Crown Court.

Answer 10

As a vulnerable suspect

Answer 11

Same protection under PACE as adults BUT With additional safeguards (Appropriate Adults)

Answer 12

An Appropriate Adult is someone who attends the police station to look after the welfare of the suspect.

Answer 13

No Anyone that is considered a vulnerable suspect.

Answer 14

'Anyone who appears to be under 18, in the absence of clear evidence that they are older, be treated as a juvenile.'

Answer 15

That were there is any doubt, a precautionary approach must be adopted by the custody officer and the police must treat the detainee as a juvenile, any disputes as to age will be for a court to determine if the suspect is charged with an offence.

Answer 16

* The person responsible for the juvenile’s welfare **must be informed as soon as practicable** that the juvenile has been arrested, why he has been arrested and where he is being detained. * The AA, who may or may not be the same person who has responsibility for the welfare of the child, must also be contacted. The AA must be informed of the grounds for the juvenile’s detention and the whereabouts of the juvenile and must be asked to attend the police station.

Answer 17

must be informed as soon as practicable

Answer 18

1) Juvenile has been arrested 2) Why the juvenile has been arrested and 3) Where the juvenile is being detained

Answer 19

1) Grounds for the juvenile's detention 2) Whereabouts of the Juvenile and 3) Asked to attend the police station

Answer 20

1) Parent, guardian or anyone else with parental responsibility 2) a social worker or 3) any other responsible adult who is not a police officer must be independent of the police as their role is to safeguard the person’s rights and entitlements.

Answer 21

Anyone who is: 1) suspected of the involvement of the offence 2) The victim 3) A witness 4) Involved in the investigation 5) Have received admissions prior to attending to act as the Appropriate Adult 6) A solicitor or independent custody visitor who is present at the police station and acting that capacity 7) An estranged parent if the juvenile specifically objects to it

Answer 22

YOT may have individuals available to as an Appropriate Adult, if necessary or there may be groups of trained volunteers available to carry out the role.

Answer 23

No AND Another appropriate adult should be appointed in the interest of justice

Answer 24

The relative, if practicable Their wishes should, if practicable, be respected.

Answer 25

* Must have an appropriate adult in the police station if you under 18 and in court if you are between 16 and 17 you don’t need to have a parent with you * It is important that the AA understands their role in the interview. * The AA is not expected to simply act as an observer. 1) Advise the juvenile being questioned 2) observe whether the interview is being conducted properly and fairly and 3) Facilitate communication with the juvenile being interviewed

Answer 26

The AA's presence is to help the juvenile cope with the demands of the custody and questioning and to appreciate the seriousness of the situation

Answer 27

No *The detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult's absence if they want.

Answer 28

Yes AA has the right to consult the custody record

Answer 29

Yes The AA has the right to consult the juvenile in private at any time

Answer 30

No There is no duty of confidentiality owed by an AA

Answer 31

AA should be present when the juvenile is: 1) being read their rights 2) being strip searched or subjected to an intimate search 3) being interviewed 4) attending identification procedures or 5) being charged

Answer 32

No Unless 1) authorised by a superintendent or above and 2) only if they believe delay will have certain consequences and is satisfied that the interview would not significantly harm the juvenile's physical or mental state.

Answer 33

Yes If a juvenile is cautioned in the absence of an appropriate adult, the caution MUST be repeated in the AA's presence

Answer 34

The consent of the juvenile' parent/guardian + Juvenile's consent (unless under 14)

Answer 35

Yes If the juvenile is under 14, the consent of their parent alone is sufficient

Answer 36

1) No further action 2) Community resolution 3) youth caution 4) youth conditional caution 5) charge

Answer 37

In their 'own interests'

Answer 38

In the local authority accommodation

Answer 39

Unless: 1) It is impracticable for the custody officer to do so i.e physically impossible or 2) in the case of a youth aged 12-17, no secure accommodation is available and other local authority accommodation would not be adequate to protect the public from serious harm

Answer 40

No The local authority are NOT under a duty to provide secure accommodation whenever the request is received under s.38 (6) PACE

Answer 41

Yes The youth can be detained in police custody

Answer 42

Yes The youth can be detained in police custody

Answer 43

A formal out-of-court disposal, without the need to prosecute them as set out in the crime and disorder act it is the final step before prosecution.

Answer 44

The Youth Offending Team

Answer 45

To reduce the risk of further offending by the youth and serve as a proportionate response to the crime committed.

Answer 46

Youth cautions can be used for any offence that the statutory criteria are satisfied: 1) the police are satisfied that there is sufficient evidence to charge the youth with an offence 2) the youth admits the offence to the police 3) the police do not consider that the youth should be prosecuted or given a youth conditional caution for the offence.

Answer 47

No Needs the authority of the CPS

Answer 48

Overarching guideline - sentencing children and young people

Answer 49

1) The principle aim of the youth justice system 2) the welfare of the child or young adult 3) the age of the child or young person (chronological, developmental, and emotional) which requires a different approach to that which would be adopted in relation to the age of an adult 4) the seriousness of the offence which is determined in the same way as for adults by assessing the culpability and harm 5) the likelihood of further offences being committed and 6) the extent of harm likely to result from those further offences

Answer 50

There is a discretionary power to make a 1) a parental bind over or 2) impose a parenting order

Answer 51

if it would be desirable in the interest of preventing the commission of further offences + the offender is 16 or 17

Answer 52

Punishable by fine

Answer 53

The CPS will conduct the prosecution in the magistrates court

Answer 54

Is the age of the offender at the date of conviction

Answer 55

1) if there have been 3 finding of guilt in the past 12 months for imprisonable offences of a comparable nature then the court could certainly justify classing the child or young person as a persistent offender or 2) a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be persistent offender even if no previous convictions

Answer 56

Yes a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be persistent offender even if no previous convictions

Answer 57

Some sentence can only be imposed on children and young people if they are deemed a persistent offender.

Answer 58

3 powers: 1) Youth is convicted of a 'grave crime' offence under s.249 and the court considers a Crown Court should have power to deal with the offender by imposing a sentence of detention under s.250 SA (i.e. a sentence in excess of 2 years' detention is required) 2) Committal for sentence of dangerous young offenders 3) Committal for sentence for related offences

Answer 59

To prevent re-offending by children and young people

Answer 60

1) Detention and Training orders 2) Referral orders and 3) Youth rehabilitation orders

Answer 61

1) Youth Rehabilitation order 2) Referral orders 3) Reparation orders and 4) Orders against parents (binding over/parenting order)

Answer 62

No statutory minimum

Answer 63

The court must be satisfied that the offence is 'serious enough' to warrant it . (Unless the court imposes a intensive supervision and surveillance requirement or a fostering requirement =Custodial threshold) *Although the offence does not have to be imprisonable.

Answer 64

No The court must be satisfied that the offence is 'serious enough' to warrant it . *Although the offence does not have to be imprisonable.

Answer 65

YROs can be used a number of times

Answer 66

1) activity requirement; 2) supervision requirement; 3) unpaid work requirement 4) programme requirement; 5) attendance centre requirement; 6) prohibited activity requirement; 7) curfew requirement; 8) exclusion requirement; 9) electronic monitoring requirement; 10) residence requirement; 11) local authority residence requirement; 12) fostering requirement; 13) mental health treatment requirement; 14) drug treatment requirement; 15) intoxicating substance requirement; 16) education requirement; and 17) intensive supervision and surveillance requirement.

Answer 67

1) Unpaid work requirement 2) residence requirement

Answer 68

16 or 17 years old on the date of conviction

Answer 69

16 or 17 years old on the date of conviction

Answer 70

1) Intensive supervision and surveillance requirement 2) fostering requirement *Custody threshold: 'is so serious...'

Answer 71

1) Offence is imprisonable 2) the custody threshold has been passed = is so serious... 3) 15 and over (under 15 they must be deemed a persistent offender)

Answer 72

15 and over or Under 15 BUT MUST be deemed a persistent offender

Answer 73

1) Offence is imprisonable 2)The custody threshold has been passed = is so serious 3) 15 and over (under 15 they must be deemed a persistent offender)

Answer 74

15 and over or Under 15 BUT MUST be deemed a persistent offender

Answer 75

A referral order requires an offender to attend each of the meeting of a youth offender panel established for the offender by a youth offending team and to comply, for a particular period with a programme of behaviour to be agreed between the offender and the panel (essentially, they form of a contract)

Answer 76

a community order (non-custodial) Unless court imposes intensive supervision and surveillance requirement or fostering requirement = Custodial sentence

Answer 77

Community disposal and fines (non-custodial)

Answer 78

A referral order is spent when it is discharged, which leaves the youth with a clean slate.

Answer 79

If the compulsory referral order conditions are satisfied: 1) where the young offender has not previously been convicted of an offence and 2) the young offender pleads guilty to an imprisonable offence and any other offence being delt with by the court at the same time (connected offences)

Answer 80

1) If the sentence is fixed by law or 2) The court propose to impose a: - Custodial sentence or - Hospital order or - Absolute discharge or - Conditional discharge

Answer 81

An offender MAY receive a referral order: 1) On their second (or later) conviction and/or 2) If the offender pleads guilty to the offence or a connected offence being delt with by the court *Connected offence can NOT be punishable by imprisonment

Answer 82

Where: 1) The sentence is fixed by law or 2) The court feels that an absolute or conditional charge is justified or 3) The court is proposing to make a hospital order or 4) The court considers that custody is the only correct disposal

Answer 83

They may be referred back to the youth court. The youth court may 1) revoke their referral order and deal with the youth in any manner in which he could have been dealt with for the offence or 2) order the young offender to pay a fine or 3) extend the length of the contract period.

Answer 84

They may be referred back to the youth court. The youth court may 1) revoke their referral order and deal with the youth in any manner in which he could have been dealt with for the offence or 2) order the young offender to pay a fine or 3) extend the length of the contract period.

Answer 85

The following options are available to the court: 1) Take no action and allow the order to continue in its original form 2) Impose a fine ( up to 2,500) and allow the order to continue in its original form) 3) amend the terms of the order or 4) revoke the order and resentence the child or young person

Answer 86

A Detention and Training Order - only custoldial sentence availible to the Youth court

Answer 87

where the an offence is 'so serious that neither a fine alone nor a community sentence can be justified' + Child or young person has been convicted of an offence which is punishable by imprisonment in the case of an adult | Should be a last resort

Answer 88

No UNLESS they are a persistent offender

Answer 89

24 months ( 2 years)

Answer 90

up to an aggregate of 24 months (2 years)

Answer 91

1) Circumstances 2) Age and 3) Maturity of child or young person

Answer 92

Youth and Crown Court

Answer 93

First half of DTO: spent in secure youth detention Second Half of DTO: in community supervision

Answer 94

The supervision is seen by the Youth Offending Teams

Answer 95

No The second half is overseen by the Youth Offending Teams

Answer 96

When considering the relevant offence guidelines, the court may feel it appropriate to apply a sentence broadly with the region of - Half to two thirds of the adult sentence to those aged 15 -17 and - Allow a greater reduction for those aged under 15

Answer 97

Is when a child or young person is found guilty of a grave crime and neither a community or detention training order is suitable

Answer 98

Crown Court (Cases are sent to trail in Crown Court or committed for sentence only) (Youth Court can NOT impose a grave crime, bec its more than 2 years)

Answer 99

A custodial sentence, If a child or young person is found to be dangerous, they can be sentenced to extended detention or detention for life

Answer 100

A custodial MADATORY sentence for any child or young person found guilty of committing a murder. Minimum term 12 years

Answer 101

Custodial sentence, for those aged between 18 -21

Answer 102

Summary trial and indictable only offence

Answer 103

Youths will be delt with summarily even for indictable offences

Answer 104

Before the Youth Court - even if it is an indictable-only offence

Answer 105

1) Youth is jointly charged with adult 2) The youth is charged with aiding and abetting an adult to commit an offence 3) An adult is charged with and abetting a youth to commit an offence 4) Youth is charged with an offence that arises out of the same circumstances as, or is connected with, an offence that an adult is charged with

Answer 106

1) Is the maximum offence of 14 years of imprisonment? 1 (a): No = cant be a grave crime 1(b): Yes = Requirement 2 2) Youth is likely to get a sentence of more than 2 years? 2 (a): No = can't be a grave crime 2 (b): Yes = grave crime

Answer 107

1) Youth court 2) Adult magistrates' court 3) Crown Court

Answer 108

1) Youth court 2) Adult magistrates' court 3) Crown Court

Answer 109

Crown court

Answer 110

1) Youth Court 2) Adult magistrates' court

Answer 111

1) Youth Court 2) Adult magistrates' court

Answer 112

1) Youth Court 2) Crown Court

Answer 113

1) Youth Court 2) Crown Court

Answer 114

1) Youth Court 2) Crown Court

Answer 115

1) Youth Court 2) Adult magistrates' court 3) Crown Court

Answer 116

1) Youth Court 2) Adult magistrates court

Answer 117

1) Crown Court

Answer 118

1) Crown Court

Answer 119

2) Crown Court

Answer 120

1) Crown Court

Answer 121

Generally they cant but if : 1) on appeal or 2) an exception

Answer 122

* For any child or young person aged under 16 appearing before court, there is a statutory requirement that parents/guardians attend all stages of proceedings unless deemed unreasonable. * Additionally, the court has a duty to make a parental bind over or impose a parenting order, if it would be desirable in the interest of preventing the commission of further offences.

Answer 123

* These fall within the community orders band. Before a YRO can be passed the court must be satisfied that the offence is “serious enough” to warrant it although the offence does not have to be imprisonable. * Courts are able to select from a wide range of sentences and tailor interventions to suit the particular offender. YROs can be used a number of times.

Answer 124

* When considering the relevant offence guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15–17 and allow a greater reduction for those aged under 15.

Answer 125

* If the youth is charged with homicide, firearms with mandatory three year minimum sentence, served with a notice in serious fraud or child case or charged with a specified offence and meets the dangerous criteria they will ALWAYS be sent to the Crown Court. * If the adult is sent to the Crown Court for a trial and the youth is to be tried on the same matter then the magistrates' court will have to consider whether it is in the interests of justice (IOJ) for the child or young person and the adult to be tried jointly.

Answer 126

 **whether separate trials will cause injustice to witnesses or to the case as a whole** (consideration should be given to the provisions of sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999);  t**he age of the child or young person**; the younger the child or young person, the greater the desirability that the child or young person be tried in the youth court;  the **age gap between the child or young person and the adult**; a substantial gap in age militates in favour of the child or young person being tried in the youth court;  the **lack of maturity** of the child or young person;  the** relative culpability** of the child or young person compared with the adult and whether the alleged role played by the child or young person was minor; and/or  the **lack of previous findings of guilt** on the part of the child or young person. * The prosecution and defence make representations as to whether it is in the interests of justice to send the youth to the Crown Court or not.

Answer 127

* If the court decides that the youth should be tried with the adult, the youth’s case will be sent to the Crown Court for a Plea and Trial Preparation Hearing, alongside the adult. * Once a youth is lawfully before the Crown Court for trial there is no power to remit the youth back to the youth court for trial even if the adult with whom the youth was sent pleads guilty (R v W (a minor)) v Leeds Crown Court [2012] 1 Cr App R 162). This means that the youth would face trial alone in the Crown Court. * If the adult and youth have been sent to the Crown Court for trial then it will take place before a judge and jury in the usual way. * Once the trial has been concluded and the child or young person is found guilty the court must remit the case to the youth court, unless it would be undesirable to do so. * The only exception to this is where the offence is homicide. * In considering whether remittal is undesirable a court should balance the need for expertise in the sentencing of children and young people with the benefits of the sentence being imposed by the court which determined guilt given that the judge who heard the trial will reserve sentencing of the adult (if convicted)

Answer 128

* -First appearance: Mags court * Not a grave crime * PBV for adult: Court takes a plea from the adult * If adult pleads not guilty, court makes a decision on ‘adult allocation’ * If court accepts jurisdiction and youth pleads not guilty both will be tried in magistrates’ court. * If court declines jurisdiction or adult elects, court will apply the ‘interests of justice’ test * If IOJ test met, youth sent to CC for trial with the adult * If test not met, youth will be tried in the youth court * If either adult or youth pleads guilty then each dealt with separately according to usual principles

Answer 129

* Offence IS grave crime * Take plea for youth. * If youth pleads not guilty court asks: should a sentence substantially in excess of 2 years be available. * If ‘two year’ test met, youth sent to CC for trial. * PBV for adult > if adult pleads not guilty, sent for trial to CC with the youth. * If ‘two year’ test not met do PBV for adult. * If adult pleads not guilty and is sent to CC for trial then apply IOJ test. If IOJ test met, youth sent to CC for trial with the adult. If not met remit to youth court for trial. * If adult pleads not guilty and remains in the Mags Ct for trial then youth remains in Mags C for trial with the adult. * If adult pleads guilty then each dealt with separately according to usual principles. Youth remitted to youth court for trial

Answer 130

* Offence IS grave crime * Take plea for youth. * If youth pleads guilty court asks, 'should a sentence substantially in excess of two years be available?' * If ‘two year’ test met, youth committed to CC for sentence * If ‘two year’ test not met youth sentenced or remitted to youth court for sentence. * PBV for adult > dealt with accordingly

Answer 131

* Does D meeting dangerous criteria – YES – then send to Crown Court – PBV for Adult * If NO then is it a GRAVE CRIME? – YES – Should sentence of substantially more that 2 years be available? – YES – NG plea send to Crown/G plea commit to Crown for sentence – PBV for adult * Otherwise on Guilty plea remit to YC for sentence. For NG plea go to PBV for adult. If adult is G then remit to YC for trial/Adult NG then joint trial in MC or is it in IOJ to send to Crown Court with adult.

Answer 132

First appearance: Mags court * Adult will be sent to Crown Court. * If youth charged with homicide etc send to Crown Court. * If youth charged with grave crime and the 'two year' test is met then send to Crown Court for trial with adult if NG or commit for sentence if G. * If not a grave crime or 'two year' test not met is the youth pleading G or NG? * If G then sentence or remit to youth court for sentence. * If NG then apply IOJ test. * If IOJ test met, youth sent to CC for trial with the adult * If test not met, youth will be tried in the youth court

Answer 133

* Meet dangerous criteria – YES – then SEND to Crown * NO – then is it a grave crime? YES – then will sentence be substantially in excess of 2 years? YES – NG then send to Crown/G then commit to Crown. * If sentence not in excess of 2 years then if NG plea consider IOJ to send to Crown for trial with adult. Otherwise remit to YC for trial or sentence.

Answer 134

Generally:  First hearing- takes place before the youth court  Plea- is taken on the first hearing and no plea before venue/ mode of trial procedure takes place  Trial- the presumption is trial will take place in the youth court except in homicide and certain firearm offences  Sentencing- in the youth court.

Answer 135

 First hearing- when a youth will have their first hearing before an adult magistrates court (e.g. when jointly charged with an adult)  PBV/ Mode of trial procedure- circumstances when this takes place (e.g. ‘grave crimes’)  Trial- circumstances when a youth must or may be tried in the adult magistrates’ court or the Crown Court  Sentencing- when a youth must or may be committed to the Crown Court for sentence.

Answer 136

 The youth is jointly charged with an adult;  The youth is charged with aiding and abetting an adult to commit an offence;  An adult is charged with aiding and abetting a youth to commit an offence;  The youth is charged with an offence that arises out of the same circumstances as, or is connected with, an offence that an adult is charged with. * Other than where a youth becomes an adult during the course of proceedings (ie after the first hearing) there are no circumstances whereby an adult can appear before the Youth Court.

Answer 137

* The court must ask the youth to enter a plea on the first occasion. If a request to adjourn the hearing is made and granted the case will be adjourned for the shortest possible time. * If the youth enters a guilty plea the court should endeavour to pass sentence on the same day but may need to adjourn for the preparation of a pre-sentence report. * If the youth enters a not guilty plea the parties will be asked to complete a case management form and directions will be made for the future management of the case, just as in the adult magistrates’ court.

Answer 138

* Most youths are tried in the youth court, notwithstanding the seriousness of the offence. This presumption applies even in the case of indictable only offences (s.24 MCA 1980) except homicide and certain firearms offences. * A youth will only be tried in the adult magistrates' court where they are jointly charged with an adult. * A youth has no right of election to the Crown Court when charged with an either-way offence.

Answer 139

* Youth charged with homicide (murder or manslaughter); * Youth charged with certain firearms offences or offences of minding a weapon under s28(3) VCRA 2006, where, if convicted, the youth would be subject to a mandatory minimum sentence under s.311 Sentencing Act (SA) 2020; * Youth charged with an offence to which s.249 SA 2020 applies and the youth court has determined that, if convicted, a sentence beyond its powers should be available (thus it is a 'grave crime'); * Youth charged with a specified offence under s.306 SA 2020 and it appears to the court that if the youth is found guilty or pleads guilty the criteria for imposing an extended sentence under s.254 SA 2020 will be necessary ('dangerous offender'); * Youth jointly charged with an adult who has been sent to the Crown Court and it is in the interests of justice to send the youth to the Crown Court for trial.

Answer 140

* Generally there will be no plea before venue / mode of trial in the youth court. However, it applies in the following circumstances:  Youth charged with an offence capable of being a 'grave crime' under s.249 SA 2020;  Youth jointly charged with an adult with an either-way or indictable only offence.

Answer 141

 Any offence that in the case of an adult carries 14 years or more imprisonment; * E.g. rape, robbery (maximum sentence is life), residential dwelling burglary (maximum sentence is 14 years)  Offences under ss.3, 13, 25 and 26 of the Sexual Offences Act 2003.

Answer 142

The youth is asked to indicate a plea. If the indication is not guilty the youth court must consider whether, if convicted of the offence, it ‘ought to be possible’ (s.51A(3)(b) CDA 1998) to impose a sentence under s.250 SA 2020. If they consider it should be, then they must send the youth to the Crown Court for trial. In other words they are considering whether their maximum sentencing powers of two years’ detention would be sufficient. The youth’s previous convictions can be taken into account at this stage. * The procedure for deciding whether s.250 SA 2020 applies can be thought as a two stage test, whether it is a guilty or not guilty indication:  Is it an offence capable of being a grave crime? ie is it one to which s.249 applies? If yes, then:  Is the appropriate sentence one of over two year’s detention? * Where a youth is charged with multiple offences and s.249 SA 2020 applies to one or some of the offences, but not all of them, the court can consider the combined seriousness of all the offences when determining whether s.250 SA 2020 applies.

Answer 143

youths, especially those under 15, should be tried in the youth court wherever possible Crown Court being ‘reserved for the most serious cases’.

Answer 144

* Section 51A(2) and (3)(d) of the Crime and Disorder Act 1998 provides for youths who are considered dangerous to be sent to the Crown Court. This applies where:  The offence is a specified offence within the meaning of s.306 SA 2020; and  It appears to the court that, if he is found guilty, the criteria for the imposition of a sentence of extended detention under s.254 SA 2020would be met. * If both are met then the youth must be sent directly to the Crown Court for trial. There is no plea before venue or mode of trial procedure. * Any related offences may also be sent. * The criteria for imposing a sentence of extended detention for youths under s.254 SA 2020are similar to adults, but not quite the same. They are:  The youth is convicted of a specified offence (as per s.306 SA 2020);  The court considers there is a significant risk of serious harm to the public from the youth committing further specified offences; and  The offence warrants the equivalent determinate sentence of at least four years. * An extended sentence, as in the case of an adult, is made up of an appropriate custodial term plus an extended licence period. Also as in the case of adults, s.308 SA 2020 details the factors to be taken into account by the court when assessing dangerousness. * The Sentencing Children and Young People: Definitive guideline makes it clear that the power to send youths to the Crown Court for trial under the dangerousness provisions should be rarely used. This is not least because there will often not be sufficient information about the offence in order to be able to make a fully informed decision. * If jurisdiction is retained and further information comes to light during or after the trial which leads the court to conclude, on conviction, that the youth should be sentenced under the dangerousness provisions, they have the power to commit to the Crown Court for sentence under s.17 SA 2020.

Answer 145

Custodial and non-custodial sentences

Answer 146

1) The punishment of offenders 2) The reduction of crime (including its reduction by deterrence) 3) The reform and rehabilitation of offenders 4) The protection of the public and 5) the making of reparation by offenders to persons affected by their offences. *The purposes are given equal weight though in particular cases some may be more important than others.

Answer 147

1. The availability of certain sentences & 2. The limits to the powers of the Magistrates and Youth courts.

Answer 148

By assessing the seriousness of the case before it, by refereeing to the sentencing guidelines.

Answer 149

Where necessary and appropriate

Answer 150

Yes *D can only be sentenced in the magistrate court

Answer 151

No * Cant be sent to the crown court for sentence

Answer 152

Yes *Can only be sentenced in the Magistrates' Court

Answer 153

No *Cant be sent to the Crown Court for sentence

Answer 154

Yes, if committed for sentence

Answer 155

Yes, but may commit for sentence to the Crown Court.

Answer 156

Yes, if committed for sentence.

Answer 157

Yes but may commit for sentence to the Crown Court.

Answer 158

No. Once a matter has been sent to the Crown Court, it cannot be sent back to the magistrates' court for sentence.

Answer 159

Yes, D will be sentenced by the Crown Court.

Answer 160

Yes, D must be sentenced by the Crown Court

Answer 161

No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.

Answer 162

No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.

Answer 163

Yes. D must be sentenced by the Crown Court

Answer 164

When D pleads guilty but takes issue with the facts asserted by the prosecution.

Answer 165

1) Defence enter a guilty plea but in a written basis, the prosecution would indicate whether they viewed the basis as acceptable. if accepted 2) The court will then proceed to consider whether this basis is an acceptable one and 3) the court will consider whether or not a newton hearing is required.

Answer 166

Where a D pleads guilty on a basis that will make a material difference to sentence, the court must hold a newton hearing to decide the factual basis upon which it should pass sentence

Answer 167

A Newton hearing is presided over by magistrates or a District Judge much like a regular trail.

Answer 168

In the Crown Court it takes place without a jury, and the Crown Court Judge acts as the arbiter of both law and facts.

Answer 169

In a Newton hearing in the Crown Court.

Answer 170

In a Newton hearing.

Answer 171

Yes, there is no jury

Answer 172

Prosecution makes an opening speech and calls evidence in the usual way and their witness can be cross-examined by the defence. D is able to give evidence and call witnesses if they so wish. Both parties are entitled to address the judge by way of a closing speech. At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.

Answer 173

At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.

Answer 174

To prove their version of facts beyond reasonable doubt.

Answer 175

Beyond reasonable doubt

Answer 176

D will be sentenced on the prosecution version if the facts. + D will lose some of the credit they receive for pleading guilty = decrease the reduction

Answer 177

D will be sentenced on the defence version of the facts as set out in their basis of plea.

Answer 178

If the total sentence should be and arrive at one that is just and proportionate, by considering whether 1) Consecutive Or 2) Concurrent sentences are more appropriate in the circumstances

Answer 179

It will usually be appropriate to pass concurrent sentences for each.

Answer 180

Consecutive sentences are likely to be passed.

Answer 181

up to 6 months?

Answer 182

A deferred sentence allows this time for D to prove to the court that they have either 'changed' or that the offence was an absolute 'one-off' and thus allowing the ability to present to the court at the end of the deferral period in a much better light, and often receive a lighter sentence as a result.

Answer 183

When the magistrates' court defers sentence for a period, at the end of which they commit to the Crown Court for sentence, the Crown Court then has the option of deferring for a further 6 months.

Answer 184

Step 1: is the offence an either way? Yes Step 2: has the magistrate court accepted jurisdiction in the allocation process? Yes Step 3: D can ask for indication of what their sentence would be were they to remain in the magistrate court and plead guilty Step 4: IF the court gives indication, the court will only indicate if the sentence if custodial or a non-custodial sentence Step 5: D pleads guilty in magistrate court = step 4 is binding

Answer 185

No, only optional

Answer 186

whether the sentence would be custodial or non-custodial.

Answer 187

No, the indication of sentence is only binding if D pleads guilty.

Answer 188

Step 1: Asked for indication before the jury return with their verdict at any stage of their proceedings or before the PTPH? Yes Step 2: Did D must: - Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court. - Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence. = D can ask for indication Step 4: Judge will decide whether to give an indication of sentence or not

Answer 189

Either a) before the PTPH or b) at any stage of the proceeding before the jury return their verdict

Answer 190

Did D must: - Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court. - Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence. = D can ask for indication

Answer 191

No. The giving of an indication is discretionary and it remains the decision of the judge whether to give one or not.

Answer 192

By considering: 1) Culpability (D's culpability in committing the offence) & 2) Harm (which the offence i) caused, ii) was intended to cause, or iii) might foreseeably have caused

Answer 193

The blameworthiness

Answer 194

With reference to: 1) the offenders role 2) the level of intention and/or 3) premeditation and the extent and sophistication of planning.

Answer 195

No For example: the intention to cause serious harm is necessary element in section 18 OPA. what would increase culpability might be how the injuries were inflicted e.g with a weapon.

Answer 196

An assessment of the damaged caused to the V

Answer 197

S. 230 SA 2020: The court must NOT pass a custodial sentence unless it is of the opinion that a) the offence or b) the combination of the offence and one or more offences associated with it, was SO SERIOUS that neither a fine alone nor a community sentence can be justified for the offence

Answer 198

S. 204 SA 2020: (2) The court must NOT make a community order unless it is of the opinion that a) the offence or b) the combination of the offence and one or more offences associated with it, was SERIOUS ENOUGH to warrant the making of such an order.

Answer 199

Unless..... So serious....

Answer 200

Unless... was serious enough...

Answer 201

Yes Every Court MUST follow any sentencing guidelines which are relevant to the offender's case

Answer 202

Unless the court is satisfied that it would be contrary to the interests of justice to do so.

Answer 203

The General guideline: overarching principle Crown Court might also refer to Court of appeal judgements to look at how sentences have been reached for similar cases.

Answer 204

The General guideline with Offence specific guideline

Answer 205

1) Prosecution: open facts make submissions & applications 2) Defence mitigate 3) Judge passes sentence

Answer 206

The duties of a prosecutor extend to reminding the court of the following: 1) any previous convictions 2) any ancillary orders that the prosecution seeks (e.g cots, compensation, restraining order) 3) Any relevant sentencing guidelines 4) any general sentencing issues necessary to ensure that a lawful sentence is passed (e.g the mandatory minimum sentence provisions) 5) any victim impact statement which has been produced.

Answer 207

To tell the court or to suggest to the court what the ultimate sentence may be

Answer 208

General Duty: to ensure that a lawful sentence is passed

Answer 209

Legal representative must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court.

Answer 210

At the Plea & Trail preparation hearing or even at the time of sending.

Answer 211

The case will ordinarily be adjourned for a period for this to happen.

Answer 212

The report is to assist the court in determining the most suitable method of dealing with an offender. Probation input is needed before a community order can be imposed or asses D's suitability for any programmes. The probation officer will meet D and discuss the offence and D's attitude towards it.

Answer 213

Probation input is needed before a community order can be imposed or asses D's suitability for any programmes.

Answer 214

The probation officer will meet D and discuss the offence and D's attitude towards it.

Answer 215

S. 30 SA 2020 A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so.

Answer 216

It must receive evidence from 2 medical practitioners stating that in their opinion D is suffering from a mental disorder.

Answer 217

The Code confirms: 1) Determine offence seriousness 2) Consider aggravating factors (both statutory and other non-statutory matters) 3) Consider mitigating factors (those reducing seriousness) 4) Consider any assistance given to the prosecution 5) consider the appropriate reduction for any guilty plea 6) consider totality 7) Appropriate ancillary orders must be considered

Answer 218

For most offence, the sentencing guideline set out the appropriate range of sentence base on: 1. Greater culpability and greater harm 2. Greater culpability and lesser harm or greater harm and lesser culpability 3. Lesser culpability and lesser harm Highest level offence category would be 1, the lowest 3 and the middle category is 2.

Answer 219

The judge will have a starting point and range of sentence.

Answer 220

Based on the category of the offence.

Answer 221

The court will consider aggravating and mitigating factors which will then result in an upward or downward adjustment from the starting point.

Answer 222

Previous conviction(s), particularly where a pattern of repeat offending is disclosed Offence committed whilst on bail for other offences Offence was racially or religiously aggravated Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim's disability ( or presumed disability) Commission of an offence while under the influence of alcohol or drugs Planning of an offence Offenders operating in groups or gangs 'Professional' offending Commission of the offence for financial gain (where this is not inherent in the offence itself) High level of profit from the offence An attempt to conceal or dispose of evidence Failure to respond to previous sentences Offence committed whilst on licence Offence motivated by hostility towards a minority group, or a member or members of it Use of a weapon to frighten or injure victim Multiple victims Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence An especially serious physical or psychological effect on the victim, even if unintended Victim is particularly vulnerable Deliberate targeting of vulnerable victim(s) An intention to commit more serious harm than actually resulted from the offence Location of the offence (for example, in an isolated place) A sustained assault or repeated assaults on the same victim Offence is committed against those working in the public sector or providing a service to the public Presence of others eg relatives, especially children or partner of the victim Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence) Abuse of a position of trust Abuse of power

Answer 223

- A greater degree of provocation than normally expected - Mental illness or disability - Youth or age, where it affects the responsibility of the individual D - The fact that the offender played only a minor role in the offence - Good Character and/or lack of previous conviction - Any personal mitigation

Answer 224

D are given 'credit' or a discount on their sentence if they plead guilty

Answer 225

When the guilty plea was entered

Answer 226

Either by: a) Entering a guilty plea to a summary only or either way offence at the first hearing or b) where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D's defence team will contact the Crown Court to arrange for this to happen imminently.

Answer 227

Entering a guilty plea to a summary only or either way offence at the first hearing

Answer 228

where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D's defence team will contact the Crown Court to arrange for this to happen imminently.

Answer 229

1) Explain to D in non-technical language the sentence that has been passed 2) Identify the sentencing guidelines that it followed or why it decided not to follow guidelines that exist. 3) Explain why D passes the custody threshold if a custodial sentence is passed 4) Explain what credit has been given for a guilty plea and why it is at that level 5) Set out any particular aggravating and mitigating factors that the court considered in arriving at sentence

Answer 230

Non-custodial sentence

Answer 231

Non-custodial sentence

Answer 232

Non- custodial sentence

Answer 233

Non-custodial sentence

Answer 234

Non-custodial sentence

Answer 235

Where a person is bound over by a court to 'keep the peace' for a sum of money that they forfeit if they fail to do so.

Answer 236

Magistrate court & Crown Court

Answer 237

Imposed on someone, instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case

Answer 238

S.79 SA 2020 Is the lowest form of sentence available. It is in effect no punishment at all since there is nothing D must do or not do to comply with it.

Answer 239

It is usually imposed to reflect: - either the triviality of an offence, -the circumstances in which an offender came to be prosecuted or -special factors relating to the offender.

Answer 240

Magistrate court & Crown Court

Answer 241

S.80 SA 2020: A discharge bit with a condition attached to it. The condition is that if D commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The specified period must be no more than 3 years!

Answer 242

The specified period must be no more than 3 years!

Answer 243

Magistrate court & The Crown Court

Answer 244

Magistrate court & Crown Court

Answer 245

Crown Court: any amount with no upper limit Magistrate court: fines are set on a standard scale from level 1 (200) to level 5 (unlimited)

Answer 246

A fine is a financial penalty that requires D to pay a certain sum of money to the court on conviction.

Answer 247

The amount is due immediately and can only be paid in instalments with the agreement of the court

Answer 248

They may be brought back to the magistrate court (irrespective of which court issues the fine and as a last resort D can be sentenced to a period of imprisonment.

Answer 249

- On conviction (guilty plea or verdict ) of any offence unless specifically prohibited by statute. - alongside any other sentence (except for a hospital order) or - alongside a discharge (conditional or absolute) when sentencing for a single offence.

Answer 250

Yes There is no general prohibition on doing so, it is generally accepted however as undesirable to combine a fine with imprisonment.

Answer 251

Yes, They can enquire in person or through their advocate. By asking D to fill in a means form in which they set out their income and outgoing.

Answer 252

Is a sentence that requires D to comply with one or more requirements to punish and/or rehabilitate a D in the community.

Answer 253

s.204 Sentencing Act 2020 The court must not make a community order unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was SERIOUS ENOUGH to warrant making of such an order.

Answer 254

The offender must be 1. Over 18 and 2. The offence must be punishable with imprisonments.

Answer 255

The defendant or the Probation service may apply for the order to be discharged.

Answer 256

a pre-sentence report, unless the court thinks its unnecessary to do so (obvious that a requirement is suitable)

Answer 257

1. Unpaid Work Requirement 2. Rehabilitation Activity Requirement 3. Programme Requirement 4. Prohibited Activity Requirements 5. Curfew Requirement 6. Exclusion Requirement 7. Foreign Travel Prohibition Requirement 8. Mental Health Treatment Requirement 9. Residence Requirements 10. Drug Rehabilitation Requirement 11. Alcohol Treatment Requirement 12. Alcohol abstinence and Monitoring Requirement 13. Attendance Centre Requirement 14. Electronic Monitoring Requirement.

Answer 258

The court must impose at least one of the requirements

Answer 259

1. The maximum length of a community order is three years. 2. A community order must have have at least one requirement, including a punitive element unless a fines is imposed or there are exceptional circumstances that would make it unjust 3. Multiple requirements must be compatible with one another. 4. Requirement/s must avoid conflict with the offender's religious belief and/or inference with the offender's times of work and/or education 5. The court may have regard to any period spent on remand or qualifying electrical monitored curfew when determining the restrictions/s on liberty which such a sentence imposes.

Answer 260

The offender must be warned that their failure is unacceptable

Answer 261

Breach proceedings must be instituted against the offender

Answer 262

1) Offender will be brought back before the court and have the breach put to them. 2) Offender either a) Deny breach or b) Admit breach 3) a) Deny breach: the court will hold a trial as to whether there was a failure without reasonable excuse. if there was a breach then 3 (b) apply. b) Admit breach: The court must deal with them in one of the following ways: - By amending the order to make it onerous - By fining the offender up to £2,500 - By revoking the Community order and re-sentencing the offender for the offence in respect of which the order was made. (court applies this then the court must take into account the extent to which the offender has complied with the order)

Answer 263

In one of the ways set out in Sch 10 SA 2020: 1) By amending the order to make it onerous 2) By fining the offender up to £2,500 3) By revoking the Community order and re-sentencing the offender for the offence in respect of which the order was made. (court applies this then the court must take into account the extent to which the offender has complied with the order)

Answer 264

The extent to which the offender has complied with the order.

Answer 265

Yes, the court is able to extend the period of the community order by up to 6 months beyond the usual 3 year limit if necessary.

Answer 266

The court is able to extend once only, by up to 6 months beyond the usual 3 year limit if necessary.

Answer 267

The court has the power to impose a custodial sentence not exceeding 6 months, even in respect of an offence which was not an offence punishable with imprisonment

Answer 268

1) Determinate custodial sentences 2) Suspended Determinate Custodial Sentences 3) Minimum Sentences for Certain offences 4) Extended determinate sentences (EDS) 5) Mandatory life sentence for murder 6) Other Statutory life sentences

Answer 269

Must not be passed unless the court is satisfied that the offence/s are so serious that neither a fine nor a Community order can be justified.

Answer 270

Through the sentencing guidelines

Answer 271

A prison sentence for a defined period of time. - Spend usually half of it in prison and then the rest of the sentence on licence  Whilst on licence need to follow the restrictions the court imposes on you and not commit another offence – still have part of the sentence that you did not spend in prison

Answer 272

Both the magistrate and the Crown Court.

Answer 273

Court can impose a maximum of: 1) 6 months for summary only offence 2) 6 months for a single either way offence or 3) 12 months for 2 or more either way offences. *Subject to the statutory maximum below

Answer 274

Unlimited powers of imprisonment subject to the statutory maximum for each offence.

Answer 275

No, they must follow the statute

Answer 276

Yes, the court must follow statute.

Answer 277

1) Sentences for multiple offences and 2) whether sentences should run consecutively or concurrently.

Answer 278

Yes, That period is automatically counted towards their sentence

Answer 279

This is administrated by the Home Office once the defendant is serving

Answer 280

No, the court must expressly state that the time under curfew counts.

Answer 281

At least 9 hours

Answer 282

Each day on bail is calculated as equal to half a day serving a prison sentence and rounded up to the nearest whole number.

Answer 283

No, any days upon which the curfew was breached does not count towards this calculation

Answer 284

A custodial sentence

Answer 285

A custodial sentence

Answer 286

1) Offence crosses the custody threshold BUT 2) D fulfil certain criteria

Answer 287

May suspend any determinate custodial sentence of between 14 days and 6 months

Answer 288

The crown court may suspend any determinate custodial sentence of between 14 days and 2 years

Answer 289

1) The custodial term How long a custodial term they would have received but for it being suspended. 2) The operational period How long the custodial term is suspended for. This must be between six months and two years. 3) The supervision period How long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period.

Answer 290

How long a custodial term they would have received but for it being suspended

Answer 291

How long the defendant must be supervised for. This must be between 6 months and 2 years.

Answer 292

This must be between 6 months and 2 years.

Answer 293

How ling the defendant must be supervised by the Probation Service. (This is optional)

Answer 294

Between 6 months and 2 years and equal to or shorter than the operation period.

Answer 295

They may not serve the sentence of imprisonment

Answer 296

D would have breached the suspended sentence then D must be, warned of their first breach and if they commit another breach within 12 months of a warning = breach proceedings will then be instituted.

Answer 297

D would have breached the suspended sentence then D must be, warned of their first breach and if they commit another breach within 12 months of a warning = breach proceedings will then be instituted.

Answer 298

A custodial sentence

Answer 299

For some serious offences, statute prescribes a minimum sentences that must be imposed unless there are exceptional circumstances.

Answer 300

1) 3rd Class A trafficking drug offence: 7 years imprisonment 2) 3rd domestic burglary: 3 years 3) Certain firearms offences: 5 years 4) 2nd offence of possessing a weapon: 6 months 5) Threatening with a weapon: 6 months

Answer 301

(a) The defendant must have committed three Class A drug trafficking offences. (b) They must chronologically have occurred in this order: (i) Commission of offence 1 (ii) Conviction (plea/verdict of guilty) of offence 1 (iii) Commission of offence 2 (iv) Conviction (plea/verdict of guilty) of offence 2 (v) Commission of offence 3 (vi) Conviction (plea/verdict of guilty) of offence 3

Answer 302

7 years unless, it would be unjust to do so.

Answer 303

Yes The reduction must be such that the final sentence is at least 80% of the minimum seven-year term. unless the court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

Answer 304

The reduction must be such that the final sentence is at least 80% of the minimum seven-year term. unless the court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

Answer 305

The court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

Answer 306

Yes, For burglary, all of the qualifying offences must be domestic burglaries

Answer 307

Defendants are often sentences for more than one burglary offence at a time. A defendant may therefore commit: 1) 12 domestic burglaries and be convicted of those. One of those will count as commission 1 and conviction 1. 2) 18 further domestic burglaries after the first 12, which will count as commission 2 and conviction 2. 3) 20 further domestic burglaries which will count as commission 3 and conviction 3. However, given these are minimum terms the court is, of course, at liberty to pass a longer sentence than the three years…

Answer 308

20% reduction on a guilty plea

Answer 309

EDS is imposed in certain types of case and where the court has found that the offender is dangerous.

Answer 310

Specified violent, sexual or terrorism offences

Answer 311

Yes, as an extended licence period is required to protect the public from risk of harm.

Answer 312

No, the licence period only.

Answer 313

A custodial sentence

Answer 314

The extension period must— (a)be at least 1 year, and (b)not exceed— (i)5 years in the case of a specified violent offence; (ii)8 years in the case of a specified sexual offence or a specified terrorism offence.

Answer 315

No The overall term of an EDS imposed CANNOT exceed the maximum term permitted for the offence

Answer 316

Yes, A prisoner serving an EDs be eligible to apply for parole at the 2/3 point of the custodial term and must be released at the end of the custodial period.

Answer 317

Where D is convicted of murder.

Answer 318

No The court has no discretion to pass any other sentence.

Answer 319

A custodial sentence

Answer 320

1) On sentence: Court will fix a minimum term 2) Minimum term expired = D can apply for release to the Parole Board 3) Parole Board decides as to when D is released 4) If released D remains on licence for life.

Answer 321

The Parole Board

Answer 322

The Parole Board

Answer 323

The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The Judge will decide which starting point applies and then adjust it based on the aggravating and mitigating factors present.

Answer 324

For most serious cases of murder, which means that their crime was so serious that they will never be released from prision.

Answer 325

15 years 25 years and 30 years

Answer 326

For offenders who are considered dangerous or who are convicted of a second, very serious offence = may be sentenced to imprisonment for life

Answer 327

Life for dangerous offenders Where an offender is: 1) convicted of an offence set out in Schedule 19 of the Sentencing Code; and 2) the court is of the view that the offender is dangerous; and 3) the offence justifies a life sentence.

Answer 328

Where an offender is: 1) convicted of an offence set out in Schedule 15 of the Sentencing Code; and 2) both the sentence condition and the previous conviction condition are satisfied; 3) unless it would be unjust to impose a life sentence.

Answer 329

A custodial sentence

Answer 330

The Crown Court

Answer 331

- s.224 SA 2020: A magistrates’ court does not have power to impose imprisonment …for more than 12 months in respect of an offence triable either way. 6 months for summary

Answer 332

- When sentencing for more than one offence, a court must consider what the total sentence should be and arrive at one that is just and proportionate.

Answer 333

- The starting point to determine seriousness is to consider culpability and harm.

Answer 334

- The Code confirms the approach the court should take as:  Determine offence seriousness (i.e. harm and culpability).  Consider aggravating factors (i.e. those increasing seriousness), both statutory (e.g. previous relevant convictions, on bail, racial, religious, disability or sexual aggravation) and other non-statutory matters (e.g. alcohol, abuse of power, breach of trust).  Consider mitigating factors (i.e. those reducing seriousness), e.g. those relating to the offence, such as provocation or excessive self-defence; and those relating to the offender, such as positive good character, offender’s vulnerability, mental health, remorse or other personal mitigation.  Consider any assistance given to the prosecution.  Consider the appropriate reduction for any guilty plea.  Consider totality.  Appropriate ancillary orders must be considered e.g. compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts Charge.

Answer 335

A concurrent sentence means that the custodial terms are deemed to be served at the same time. A consecutive sentence means that one custodial sentence will start after the other one has finished. Consecutive sentences will not generally be imposed where matters of fact arise out of the same incident A concurrent sentence may also be imposed even if they do not arise out of the same incident if the sentencing court applies the totality principle

Answer 336

The penultimate stage in the sentencing process is for the defendant to have an opportunity to present mitigation before the sentencing court then considers and imposes its sentence. This entitlement is recognised in the Criminal Procedure Rules (r 25.16(6)) and in practice is one of the most frequent and important functions of defence advocates. The plea in mitigation usually just involves a speech by the defence advocate, but it can also include the calling of character witnesses on behalf of the defendant or introducing character letters to speak of the defendant’s generally good character.

Answer 337

Although there is no law or procedural rules on this, the structure of a plea in mitigation may be divided into four parts: (a) The likely sentence – the defendant’s solicitor may begin by identifying the likely sentence. (b) The offence – the defendant’s solicitor could then address the circumstances of the offence, minimising the impact of any aggravating factors and stressing the importance of any mitigating factors that are present. (c) The offender – after dealing with the offence, the defendant’s solicitor could then emphasise any personal mitigation which the defendant may have. (d) The suggested sentence – the plea in mitigation should conclude with the defendant’s solicitor suggesting to the court the type of sentence which he considers it would be most appropriate for the court to impose.

Answer 338

The power for the magistrate court to rectify mistake. Section 142 of the Magistrate Court Act, gives the magistrate court power to vary a sentence or set aside a conviction if it is in the interest of justice to do so narrow power - not intended as an alternative avenue for the defendant to re-argue their case and is most likely to be appropriate (and to succeed) where all parties agree that a mistake was made

Answer 339

- Mistakes in Law and Procedure, whether at trial, or sentencing - where all parties agree that a mistake was made

Answer 340

if it is in the interest of justice to do so.

Answer 341

The defendant or the court can make an amendment under this provision of their own violation.

Answer 342

can be heard by: - the same magistrates who convicted the defendant BUT - if the conviction is set aside the case will be re-tried by a different bench

Answer 343

It will be re-tried by a different bench

Answer 344

1) Appeal to the Crown Court, by way of rehearing - if D complains there was an error of fact or fact and law; 2) Appeal to the High Court, by way of case stated - if D complains there was an error of law or the magistrates’ acted in excess of jurisdiction or 3) Application to the High Court for Judicial review of the decision making an application for judicial review if D alleges unfairness, bias or procedural irregularity

Answer 345

R V Hereford Magistrates' Court ex p Rowlands a) Where the defendant complains that the magistrates made an error of fact or mixed fact and law, the defendant should appeal to the Crown Court. b)Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction, the defendant should appeal by way of case stated. (High Court) c) Where the defendant alleges unfairness, bias or procedural irregularity the defendant should apply for judicial review of the decision. (High Court)

Answer 346

No, It is an automatic right that does not require leave.

Answer 347

The defendant should appeal to the Crown Court.

Answer 348

1) if D pleaded guilty, against a sentence or 2) if D pleaded not guilty and was found guilty after a trial, against the conviction or sentence.

Answer 349

Yes, if the conviction is upheld, the Crown Court can pass any sentence that the magistrates' court could have passed. This includes sentencing a more severe sentence than the original sentence.

Answer 350

No, an appeal against sentence is the only option, unless D can demonstrate that their plea was equivocal

Answer 351

An appeal against sentence is the only option, unless D can demonstrate that their plea was equivocal

Answer 352

A notice of appeal must be served on the magistrates court and prosecution

Answer 353

Within 15 business days of sentence

Answer 354

Within 15 business days of sentence

Answer 355

Served on the magistrates court and prosecution.

Answer 356

Part 34 of the Criminal Procedure Rules state: 1) The conviction, sentence, order or decision which the appellant wishes to appeal, including the court date of this. 2) Summarise the issues 3) State whether the magistrates' court has been asked to reconsider its decision (Under s. 142 MCA 1980) or why this is not applicable 4) List the parties on whom the appeal notice has been served

Answer 357

It must be accompanied by an application for an extension of time with reasons for the delay.

Answer 358

By way of a re-hearing

Answer 359

The same as the original trial: - Speeches, witnesses giving live evidence and any relevant submission...

Answer 360

No, parties are not limited to the evidence called during the original trial

Answer 361

No, Written charge which the appellant was convicted cannot be amend by the Crown Court.

Answer 362

A judge in the Crown Court and 2 lay magistrates.

Answer 363

Yes, if the hearing of the appeal might otherwise be unreasonably delayed.

Answer 364

The hearing proceeds as if it is the original sentence hearing, with the facts presented and mitigation heard.

Answer 365

In the magistrates court

Answer 366

Yes, Appellant may apply for bail from the Crown Court

Answer 367

Yes, the appellant may abandon their appeal at any time

Answer 368

Crown Court has no power to vary the magistrates decision

Answer 369

Appellant should give notice in writing to: 1) The magistrates court, 2) The crown court and 3) The prosecution.

Answer 370

The appeal is treated as abandoned

Answer 371

The appeal will go ahead

Answer 372

Need permission from the Crown Court, to abandon.

Answer 373

S. 48 (2) of the Senior Courts Act 1981: it can: 1) Confirm, reverse or vary the decision appealed against or any part of it 2) Remit the matter with its opinion to the magistrate 3) Make any other order which the court think is just, so long as they exercise only the power the magistrate can have.

Answer 374

No The reasons do not involve a formal re-examination of the magistrates decision. | BUT THEY DO NEED TO GIVE REASONS

Answer 375

No The magistrate sentence is not formally re-examine. The appeal panel will consider whether, in light of all they have heard, the sentence imposed by the magistrates was correct. * Sentence can be both increased and reduced.

Answer 376

Whether, in light of all they have heard, the sentence imposed by the magistrates was correct.

Answer 377

Cost can be awarded against the appellant but in practice this usually occurs only where the notice of abandonment is served within 24 hours of appeal hearing or on the day itself.

Answer 378

A successful appellant may be awarded a defence costs order.

Answer 379

An unsuccessful appellant may be required to pay the prosecution's costs.

Answer 380

This is a form of appeal to the High Court on the basis that the decision made by the magistrate court was wrong in law or in excess of jurisdiction. * The final “case stated” will be agreed by all parties and will include a summary of the evidence heard at trial, legal arguments on the disputed decision and the details of the decision itself. For this reason this is not the appropriate route of appeal where a matter of fact is disputed.

Answer 381

* If the defendant is unhappy with the decision of the magistrates’ court the first step to consider is whether the magistrates have made an error which they themselves can correct. SLIP RULE

Answer 382

case stated or judicial review.

Answer 383

 If the defendant pleaded guilty, an appeal against sentence is the only option, unless the defendant can demonstrate that their plea was equivocal.

Answer 384

* Notice of appeal must be lodged within 15 business days of sentence, irrespective of whether the appeal is against conviction or sentence. The notice of appeal must be served on the magistrates’ court and the prosecution. It must specify the following (CrimPR Pt 34.3):  The conviction, sentence, order or decision which the appellant wishes to appeal, including the court and date of this.  Summarise the issues.  State whether the magistrates' court has been asked to reconsider its decision (under s.142 MCA 1980) or why this is not applicable.  List the parties on whom the appeal notice has been served.

Answer 385

* The appeal is by way of a re-hearing. * A conviction appeal will proceed in precisely the same way as the original trial, with speeches, witnesses giving live evidence and any relevant submissions. * Parties are not limited to the evidence that was called during the trial. * Importantly, the information (the written charge on which the appellant was convicted) cannot be amended by the Crown Court. * The appeal will be heard by a judge of the Crown Court and two lay magistrates. * Exceptionally, the court can proceed with just one lay justice if the hearing of the appeal might otherwise be unreasonably delayed. At a sentence appeal the hearing proceeds as if it is the original sentence hearing, with the facts presented and mitigation heard.

Answer 386

* Bail pending appeal can be applied for in the magistrates' court (s.113 MCA 1980). If refused an appellant may apply for bail from the Crown Court. Under the Bail Act 1976there is no right to bail pending appeal.

Answer 387

* The appeal is heard by the Divisional Court of the Queen’s Bench division of the High Court. The court will comprise at least two judges, usually three. No evidence is heard, it is based on legal submissions by the parties.

Answer 388

 The deadline is 21 days from the date of the decision sought to be appealed, save that: where sentence is adjourned following conviction the date of decision is deemed to be the date of sentence, even where conviction is being appealed.

Answer 389

 Magistrates can refuse to state a case if it is considered vexatious.  Bail pending appeal can be granted by the magistrates or, if refused, the High Court.  If you appeal by way of case stated you lose your right to appeal to the Crown Court under section 108.  If you appeal to the Crown Court under section 108 and the Crown Court uphold the decision of the magistrates, you can appeal by way of case stated from the Crown Court.  The powers of the Divisional Court are that it may reverse, affirm or amend the magistrates’ court decision; remit the case with an opinion or make any other order as it sees fit.  An appeal from the High Court in relation to an appeal by way of case stated is direct to the Supreme Court.

Answer 390

 Both the prosecution and defence can apply for judicial review.  The proceedings should have been concluded before an application is made, although a decision to prosecute can be subject to review.  Applications for judicial review must be lodged promptly and in any event within three months after the grounds arose. A failure to lodge promptly can lead to the application being rejected even when lodged within three months.  Only the High Court has power to grant bail to an applicant for judicial review.  A decision made by the Crown Court on appeal from the magistrates’ court can be subject to judicial review. Where it concerns an error of law it should be by way of case stated (Gloucester Crown Court ex party Chester [1998] COD 365).  Where an exercise of discretion is involved the standard is 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).  An appeal from the High Court in relation to a judicial review is direct to the Supreme Court

Answer 391

 The normal route where it is alleged that there has been a misdirection or an error of law is by way of case stated;  It would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;  However, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;  Judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices.

Answer 392

* The Crown Court has its own version of the 'slip rule’ although it only applies to sentences and other orders, such as a driving ban or compensation. * Section 385 Sentencing Act 2020 empowers a judge to vary or rescind a sentence (or other order) within 56 days of it being made. The judge who passed sentence must be the judge who makes the variation. It can be used following sentence on an appeal from the magistrates' court, however, in this instance the lay magistrates do not need to attend the slip rule hearing.  Can make a sentence go up as well as down * The use of the slip rule is not limited to amending the length of the sentence or correcting minor technical errors, but permits amending the type of sentence or requirements attached to a community based sentence.

Answer 393

 Appeals against conviction on indictment;  Appeals against sentence passed following conviction on indictment;  Appeals against sentence passed on committal for sentence; * d)References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary; * e)References by the Attorney-General for opinions on points of law following acquittal on indictment; * f) References by the Criminal Cases Review Commission; * g)Prosecution appeals against terminatory rulings; * h)Appeals against rulings made at preparatory hearings in serious fraud cases.

Answer 394

* Leave is required to appeal to the Court of Appeal. Appellants from the Crown Court need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before a 2 judge court (sentence appeals) or a 3 judge court (conviction appeals). If leave if refused by the single judge a party may renew an application for leave orally before the relevant panel

Answer 395

* The Notice of Appeal (Form NG) must, since October 2018, be served on the Registrar of the Criminal Division of the Court of Appeal. The notice must be served within 28 days of the conviction, in conviction appeals, and within 28 days of sentence, in sentence appeals. This time limit can be extended - the extension must be applied for when serving Form NG, giving reasons for the delay. Whether to permit this is a matter of the Court’s discretion. In practice, if the Court finds merit in the grounds of appeal they are likely to allow the extension in order to prevent injustice.  Clock starts ticking from conviction when appealing against conviction – when the sentence is given doesn’t matter  Clock starts ticking from the day of sentence for appeal of sentence

Answer 396

* Does the trial Judge certify the case as fit for appeal? If so, no need for leave from CoA. (Only certified in very exceptional cases) * If not, notice of appeal must be sent to the Crown Court within 28 days of the conviction or sentence (whichever is being appealed) * On receipt the Registrar will either: (1) Send to the Single Judge; or (2) Refer directly to the full CoA. If leave is refused by either, appellant has 10 business days to renew application for leave before the full CoA. * If leave is granted the matter is listed for appeal before: (1) A 2 Judge Court for sentence appeals (2) A 3 Judge Court for conviction appeals

Answer 397

* Counsel should advise promptly. * Oral advice should be given immediately after conviction/sentence. * If there are no grounds a negative advice should be prepared and sent to the defendant’s solicitors. * If there are grounds, they should be clearly and precisely drafted and sent to the defendant's solicitors. * Counsel must draft an Advice, setting out their advice on the merits of an appeal and Grounds, setting out the proposed grounds on which they advise an appeal has merit. * The Advice and Grounds should be drafted as one document. It should identify any transcripts which are necessary. In practice this is done by keeping good notes and keeping track of dates and times of any rulings during the trial. This enables the Registrar to obtain the transcripts to assist the single judge and enable counsel to 'perfect' their grounds (see later). Counsel should also provide a list of authorities, if they seek to rely upon any. * Counsel should only draft grounds which are reasonable, have some real prospect of success and that they are prepared to argue before the court. Unmeritorious appeals risk a 'loss of time' order (see later) and counsel's positive advice does not guarantee protection from this. * Once the Advice and Grounds have been received by the solicitor they should be sent to the defendant for approval. Form NG can be signed by the solicitor on the defendant’s behalf, if they have instructions to do so. Form NG will be sent to the Registrar, along with counsel's Advice and Grounds. The Crown Court will send the relevant papers from their file to the Court of Appeal along with the defence appeal documents. This enables the Registrar to confirm what happened at the lower court eg what sentence has been recorded and when the appellant was convicted.

Answer 398

* In exceptional cases the trial judge may certify the case as 'fit for appeal'. This is unusual as it would require the judge to consider that they had made an error. It is certainly not a routine application at the end of a trial that you have lost. * If a certificate is granted, then leave is not required but counsel do have to comply with the appeal procedure in the usual way.

Answer 399

* When transcripts are received counsel will be sent a copy and invited to 'perfect' grounds within 14 days ie adding references to the transcripts to support the arguments advanced or reconsidering the grounds and perhaps amending / deleting or advancing new ones considering the transcripts. * If counsel does not wish to perfect, they should notify the Registrar. * Perfected grounds should be in a fresh document and clearly marked as such. * If counsel decides that the appeal is no longer arguable, counsel should advise the appellant’s solicitors of this in writing. This advice should not be sent to the Registrar but the Registrar should be informed.

Answer 400

* The Registrar may direct that the prosecution serve a response to assist the single judge on Form RN. * The single judge may also order that a Respondent's Notice be obtained if it was not previously ordered by the Registrar. * It may be directed, for example, where there is an issue regarding public interest immunity or where there is criticism of the trial judge. A response may be invited in other cases, such as complex fraud or serious sexual offences.

Answer 401

* Usually the application, including any bail application, will be considered by the Court of Appeal on the papers alone, without oral argument, by one judge sitting alone. The single judge will consider the merits of the application for leave and come to a decision, giving reasons. The single judge may:  grant the application wholly or in part;  refuse the application;  refer it to the full Court of Appeal without granting leave.

Answer 402

* If leave is refused by the single judge, or granted on some grounds but not others, the appellant can renew the application for leave to appeal. The appellant must serve the relevant form on the Court of Appeal within 10 business days of receipt of the notification of the single judge’s decision. This can be extended in a similar way to the application for leave. A renewed application for leave to appeal will be heard orally by the full court of 2 or 3 judges. No representation order is available but counsel may appear either privately or on a pro bono basis. If they intend to do so they must notify the court in writing as soon as possible. * Notification of the single judge’s decision is on Form SJ. It may indicate that the single judge found the application to be wholly without merit and that the full court should consider a ‘loss of time order’ if the application is renewed.

Answer 403

* Rather than sending a case to the single judge, the Registrar can refer a case to the full court instead, effectively bypassing the single judge and asking the full court to decide the application for leave. * This power is used where:  there is an unlawful sentence which must be amended; or  there is a novel point of law. * It may also be used where the matter requires expedition eg a seriously ill or elderly appellant. * The single judge may also refer to the full court if the single judge identifies an issue requiring the full court’s attention.

Answer 404

* Common grounds for an appeal against conviction include, but are by no means limited to:  Wrongful admission / exclusion of evidence;  Wrongful rejection of a submission of no case to answer;  Wrongful withdrawal of issues from the jury;  Misdirection on law / facts in the course of summing up;  Conduct of the trial judge;  Inconsistent jury verdicts;  Fresh evidence;  Defects in the Indictment;  Conduct of lawyers. * Common grounds for an appeal against sentence include:  Wrong in law;  Wrong in principle;  Manifestly excessive;  Legitimate expectation;  Judge fails to take account of relevant matters;  Judge takes account of improper considerations;  Unjustified disparity between co-defendants or a failure to distinguish between offenders.

Answer 405

* It is perfectly proper for a defendant to appeal a conviction to the Court of Appeal even where the defendant pleaded guilty to the charge in the Crown Court. It is open to the court to rule a plea as a nullity and quash the conviction. The most common such ground is if the guilty plea was entered following a legal ruling by the trial judge which left no option but to plead guilty. If that ruling is itself appealed and held to be incorrect the resultant guilty plea will be quashed.

Answer 406

* The Registrar or single judge will usually grant a representation order for junior counsel when leave is granted. If work is necessary it may be extended to cover a solicitor. The Registrar will send a brief to counsel. * The respondent is not usually represented at a sentence appeal but will be on a conviction appeal. * A summary to assist the court will be prepared by a Criminal Appeal Office Lawyer. * A skeleton must be served where the appeal notice does not sufficiently outline the grounds. In practice, a skeleton is most commonly needed in cases involving a novel point of law or complex issues are raised which require additional input from counsel. If skeletons are to be served the appellant must serve theirs 21 days prior to the hearing and the respondent 14 days before the hearing, unless otherwise directed. Authorities are to be used sparingly and must be justified. * As a general rule, the appellant is entitled to be present, if the appellant wishes, at the hearing of the appeal. There are some exceptions if the appellant is in custody, whereby the court’s permission is required. You will find them at s.22 Criminal Appeal Act 1968 if you are interested.

Answer 407

* If leave is granted (on paper or at an oral hearing) the court must proceed to consider the merits of the appeal.  In an appeal against conviction the court can allow an appeal only if they think that the conviction is unsafe (s.2 Criminal Appeal Act 1968). * E.g does the fresh evidence make it unsafe? o VERY HIGH BAR  In an appeal against sentence the appeal can be allowed if the court thinks the defendant should have been sentenced differently (s.11(3) Criminal Appeal Act 1968).

Answer 408

* Conviction  Quash the conviction.  If it appears to the court that the interests of justice so require they may order the appellant to be retried.  The court may also substitute a verdict of guilty for an alternative offence if: * the jury would have been able to convict of the alternative offence at trial; and * the jury must have been satisfied of facts which proved him guilty of the offence.  The sentence may need to be amended to reflect this. * Sentence  Quash any sentence or order which is the subject of the appeal; and  In place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and  They must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below. * Loss of time order  The Court of Appeal can direct that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the appellant's sentence. This is known as a ‘loss of time’ order.  This may be imposed where the application is considered to be wholly without merit. It can be made by the single judge considering the paper application for leave, but this is unusual in practice. It is most likely to be made by the full court following refusal of a renewed application for leave, especially, but not only, where the single judge has marked the appropriate box on Form SJ (described previously). * Fresh evidence  Section 23 of the Criminal Appeal Act 1968 allows the Court of Appeal to admit evidence on appeal, including evidence which was not called at the original proceedings - this applies to sentence appeals but is more likely to be used with conviction appeals.  The section states that the Court of Appeal may, if they think it necessary or expedient in the interests of justice: * order the production of any document, exhibit or thing connected with the proceedings if it is necessary for the determination of the case; * order any witness to attend for examination (regardless of whether they were called in the original proceedings); * receive any evidence which was not adduced in the proceedings from which the appeal lies.  In considering whether to receive any evidence the court will have regard to the following, as per s.23(2). This is not an exhaustive list: * Whether the evidence appears to be capable of belief; * Whether it appears that the evidence may afford any ground for allowing the appeal; * Whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of an appeal; * Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.  The provision means that jurors and legal representatives (subject to waiver of privilege) can be compelled to attend and give evidence on appeal. Furthermore, it applies equally to the respondent (ie the prosecution) who can therefore call new evidence, except where its purpose is to argue a new basis for conviction.

Answer 409

* 28 days * To registrar * Leave grounds * Single judge to grant leave  If single judge refuses they can renew application * But be aware if you do this there is possibility of a loss of time order * Full court * Submissions made in court * Judges decide whether to grant appeal

Answer 410

* Reference on a point of law following acquittal  The Attorney-General (AG) may ask for the opinion of the Court of Appeal on a point of law where the defendant was acquitted following trial on indictment. This does not affect the acquittal – the acquittal stands whatever the Court of Appeal’s decision.  The power is intended to clarify the law. However, the defendant is entitled to be represented at the hearing.  The Court of Appeal can refer to the Supreme Court if it sees fit or where either party requests this.

Answer 411

* Prosecution cannot appeal against an acquittal but they can appeal through the Attorney-General if they believe a sentence is too lenient

Answer 412

* The Attorney General (AG) may refer a case to the Court of Appeal where the AG considers the sentence imposed to be ‘unduly lenient’. The AG can only refer cases for offences which are triable only on indictment or specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006. * It is a matter for the AG to consider whether leave should be sought for a reference and the time limit to do so is 28 days. If leave is granted the Court of Appeal will proceed according to the facts before the sentencing judge. * A sentence can be increased under the reference procedure if it is found to be ‘unduly lenient’. Some discount will, however, be given for 'double jeopardy’. This means compensating a defendant for having to wait before knowing if their sentence will be increased.  Recongition that you are going through this process twice

Answer 413

* The Criminal Cases Review Commission (CCRC) is an independent body created by the Criminal Appeal Act 1995. It has the power to refer, at any time, any conviction on indictment or sentence to the Court of Appeal or to the Crown Court if the conviction/sentence is a summary one. The question the CCRC asks itself is whether there is a real possibility that the Court of Appeal will quash the original conviction or sentence. If the CCRC chooses to make such a reference it is usually only in respect of an argument or information not available in the court of first instance or on appeal, save for where exceptional circumstances exist.

Answer 414

* There are three main requirements for such an appeal to take place.  The ruling must be made before summing up;  An acquittal agreement must be given by the prosecution;  This means that the prosecution must give an assurance to the court and the defendant that if leave to appeal is refused and the appeal abandoned before it is decided by the Court of Appeal, the defendant will be acquitted on that count(s).  The ruling must not be appealable to the Court of Appeal by other means.

Answer 415

* There are various ways to proceed where an appeal may be appropriate. * a)Prosecution counsel should notify the judge that they wish to appeal immediately; or * b)Ask for a short adjournment if they want to speak to the CPS lawyer; * Any adjournment will usually be until the next business day, when notification must be given; * d)Thereafter, counsel should serve written notice of appeal on the court, Registrar and defendant; * e)The prosecution has five business days to serve written notice in non-expedited cases or the next business day in an expedited appeal case. Expedited cases will be dealt with by the Court of Appeal in a matter of days without the need for the jury to be discharged. * Alternatively, the prosecutor can apply orally to the trial judge for leave to appeal: * The trial judge will hear representations from the defence on the same day as the application unless it is in the interests of justice to allow further time for them to respond; * The trial judge will decide if there is a real prospect of success on appeal. * The prosecution has a second chance if their application to the trial judge fails in that they can still lodge notice of appeal and proceed to the Court of Appeal. * Some examples of rulings which would be appealable under this section are: * Staying proceedings as an abuse of the court's process; * Rulings of no case to answer; * Evidential ruling which leaves the prosecution with no evidence to offer.

Answer 416

* A preparatory hearing is a form of case management hearing held in long, complex or fraud cases. * There is a power for both prosecution and defence to appeal rulings made at these hearings, to the Court of Appeal. * Practice point: it is worth being aware that this power exists.

Answer 417

 * Circuit Judges- referred to as 'Your Honour'. They wear a violet and black robe and a red tippet (sash) over their left shoulder;  * Recorders- referred to as 'Your Honour'. Recorders are barristers or solicitors who sit as part-time judges. They wear black robes; and  * High Court Judges- referred to as 'My Lord, My Lady'. Occasionally, the most serious Crown Court cases are heard by High Court Judges who are distinguished by their red robes, hence often being referred to as 'red' judges.

Answer 418

o The judge:  * is the arbiter of the law.  * makes rulings about the admissibility of evidence (in the absence of the jury).  * directs the jury about matters of law (e.g. explaining what has to be proved and who by).  * can direct a jury to find a defendant not guilty (for example following a successful submission of no case to answer) but cannot direct a jury to find a defendant guilty. o The jury:  * is the sole decider/ arbiter of facts.  * decides whether the defendant is guilty.  * must accept and apply the judge’s directions about the law.  * must reach its decision only based on the evidence it hears in court. It will: * * determine whether, and to what extent, the evidence is to be believed; and * * decide whether to draw inferences from the evidence or from a defendant's silence.

Answer 419

o (1) Legal arguments o (2) Jury selection and swearing in the jury o (3) Judge’s preliminary instructions to the jury o (4) Prosecution opening speech o (5) Defence identify matters in issue o (6) Prosecution evidence o (7) Conclusion of the prosecution case o (8) Submission of no case to answer o (9) Right to give evidence and adverse inferences o (10) Defence opening speech o (11) Defence evidence o (12) Legal discussions o (13) Closing speeches o (14) Judge’s summing up o (15) Jury bailiffs sworn and jury retire o (16) Verdict

Answer 420

o Sometimes pre-trial hearings before the trial judge take place specifically for the purpose of dealing with legal arguments. o In practice, however, many legal arguments take place on the first day (or first few days) of trial. o Legal arguments in the Crown Court can be heard before or after the jury are sworn. o Sometimes pre-trial hearings before the trial judge take place specifically for the purpose of dealing with legal arguments. o In practice, however, many legal arguments take place on the first day (or first few days) of trial. o Legal arguments in the Crown Court can be heard before or after the jury are sworn.

Answer 421

o Where a voir dire is required, this still takes place in the absence of the jury, since it is a procedure for the judge to resolve a factual dispute which is relevant to a legal argument. o In practice, when a legal representative says to the judge that 'a matter of law' has arisen, the judge will take this as the cue to ask the jury to briefly retire whilst the legal argument is dealt with. o Common legal arguments dealt with just prior to the commencement of a jury trial in the Crown Court are:  * applications relating to bad character;  * hearsay applications;  * applications to exclude evidence under section 76 or78 Police and Criminal Evidence Act 1984; and  * abuse of process applications.

Answer 422

o Twelve jurors are required to start a Crown Court trial. A ‘jury panel’ of about 16 people go into court from which the 12 will be chosen at random. As each juror is called from the panel they will take their place in the jury box. When the jury box is full but before each juror takes the jury oath or affirmation, the defendant is told by the court clerk that they have the right to object to any juror. Each jury member is then sworn.

Answer 423

o The judge will tell the jury that the evidence upon which they must decide the case is the evidence that will be presented to them in court and they must not discuss it with anyone else who may have a view but will not have heard the evidence. o The judge will also explain that matters of law are for the judge alone, so if any legal applications are made during the trial the jury will be asked to leave court while they are dealt with.

Answer 424

o In the Crown Court, the prosecution opening speech is focused on the facts and issues in the case, namely on what the case is about, what the areas of dispute are and why the prosecution says the defendant is guilty of the offence or offences with which the defendant is charged. o The prosecutor will tell the jury what counts the defendant faces. o The prosecutor should avoid the use of overly emotive language.

Answer 425

o To help the jury to understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are (i.e. what precisely is in dispute).

Answer 426

o At the end of the prosecution evidence, on the defendant’s application or on its own initiative, the judge may direct the jury to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but must not do so unless the prosecutor has had an opportunity to make representations. | often referred to as a 'half time' submission

Answer 427

 The court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict R v Galbraith test - may need to know the name of this case  '(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case; (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ...'

Answer 428

o After the prosecution has closed its case the judge will ask the defendant's legal representative in the presence of the jury if the defendant is going to give evidence. o If the answer is yes, the case will proceed. o If the answer is no the judge will ask, 'Have you advised your client that the stage has now been reached at which the defendant may give evidence and, if the defendant chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from the defendant’s failure to do so?' o If the legal representative says the defendant has been so advised the case can proceed; if the defendant has not been so advised the case will be adjourned briefly for the advice to be given. o There is no obligation on the defendant to give evidence, but failure to do so can result in adverse inferences being drawn pursuant to s 35 Criminal Justice and Public Order Act 1994 (key legislation). o The final decision as to whether or not to give evidence is for the defendant to take, but the defence advocate should advise the defendant and, should the defendant decide not to give evidence, it should be recorded in writing that the defendant has received advice and has decided freely not to testify.

Answer 429

o When the prosecution case has ended, or following a rejected submission of no case to answer, the defence case will start. The defence do have the right to make an opening speech at this stage but only if one or more defence witnesses, other than the defendant in person, will be called to give factual (as opposed to merely character) evidence. o Even though there is a right to a defence opening speech, it is rarely used.

Answer 430

o If the defendant is represented and the defendant chooses to give evidence, the defence advocate will call the defendant and take the defendant through evidence in chief. o The defendant will then be cross-examined by any other defendants and the prosecution. o Any other defence witnesses will be examined in chief, cross-examined and re-examined in the same order as the defendant.

Answer 431

o When the defence case is closed it is common practice for the jury to be sent out in order to allow the judge and the prosecution and defence advocates an opportunity to consider those matters of law which should be raised during the judge's summing up. o This allows submissions to be made on all the legal matters that have arisen in the course of the trial and which will form part of the judge's directions on law to the jury. This is a convenient way of ensuring, so far as possible, that any problems are ironed out prior to speeches and the summing up and, therefore, that an appeal is less likely in the event of a conviction.

Answer 432

o The prosecution can make a closing speech where the defendant is legally represented, or has called at least one defence witness (other than the defendant in person) to give factual evidence, or where the court otherwise so permits. o The prosecution closing speech is always first. The defence is always entitled to make a closing speech which will follow that of the prosecution.

Answer 433

o After closing speeches have been delivered by the prosecution and defence, the judge will sum the case up to the jury. o The summing-up falls into two parts: the law and the facts. This means that the judge will deal with all necessary legal directions and then move on to sum up the prosecution and defence cases. o Both prosecution and defence advocates should be alert to errors in the summing-up and draw them to the judge’s attention at its close so that corrections can be made. o In summing up the case to a jury, the judge will deal with the following:  * burden and standard of proof  * the ingredients of the offence and any defences  * a written route to verdict  * other legal directions relevant to the case  * electing a foreman  * unanimity  * separate considerations of counts and defendants if needed * To assist the jury to focus on the issues during retirement, the judge should provide: o * a reminder of the issues; o * a summary of the nature of the evidence relating to each issue; o * a balanced account of the points raised by the parties; and o * any outstanding directions. * It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.

Answer 434

o The judge will tell the jury to appoint a foreman (a person of any gender) to deliver the jury's verdict in due course.

Answer 435

o Just before the jury bailiffs are sworn and the jury retire to consider their verdict, the jury will be told that they may have heard of majority verdicts, but the only verdict the judge can accept is a unanimous verdict. o The judge will go on to say that if the time should come when a majority verdict can be accepted from them, the judge will call the jury back into court and give them a further direction.

Answer 436

o The jury bailiffs swear/affirm to keep the jury 'in some private and convenient place' and not to allow anyone to speak to them or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict. o The jury bailiffs are court ushers who become jury bailiffs once they take the jury bailiff's oath/affirmation. o The jury will go to their retirement room to deliberate on their verdict. o They are entitled to ask questions of the judge by giving a note to the jury bailiff who will pass it to the judge. The judge may give further directions during retirement.

Answer 437

o The Juries Act (JA) 1974 permits a majority verdict to be given by a jury after they have deliberated for at least 2 hours although in practice the minimum period is 2 hours and 10 minutes as required in the Criminal Practice Direction VI Trial 26Q Majority Verdicts. This is to take account of any time not spent deliberating, such as getting to the jury room and electing a foreman. o A majority verdict should not be accepted unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case. o As such, what is reasonable will be different in every case and in long and complex cases involving multiple defendants the jury could be out for many days before any thought is given to their receiving a majority direction.

Answer 438

o Once the jury have reached a verdict they will inform the jury bailiff. o The court will reassemble and the foreman will be asked to stand. o If the jury have not received a majority direction the court clerk will ask the foreman if the jury have reached a verdict on which they are all agreed. If the answer is yes, the clerk will ask 'What is your verdict?' and the foreman will reply 'Guilty' or 'Not guilty'.

Answer 439

o In certain circumstances the jury can convict of a lesser offence which is an alternative to a count on the indictment.

Answer 440

o A defendant who is found guilty will either be sentenced immediately or, if reports are required to assist with sentencing, such as a pre-sentence report or a psychiatric report, the case will be adjourned for sentence to a later date. o It is common practice for the judge, whether a defendant is acquitted or convicted, to thank the jury for carrying out their public duty.

Answer 441

o A defendant who is acquitted will be entitled to be discharged. o The defendant will therefore be free to leave so long as no further matters facing the defendant are before the court.

Answer 442

· the opinion is given in relation to commonplace occurrences about which the witness's perception appears relevant and proper; or · if the witness is an expert.

Answer 443

· Against self-incrimination- witnesses (other than the D in this context) have rights to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves.

Answer 444

· All the direct communication between lawyer and client is confidential unless the client chooses to waive this.

Answer 445

* Communications with third parties will be privileged in the case of litigation but not general advice.

Answer 446

- Not competent for prosecution - Competent on D’s own behalf or for a co-defendant - Not compellable for prosecution - Cannot be compelled to give evidence on D’s own behalf

Answer 447

Age is not the determining factor of whether a child is competent; the only test is whether the child can (1) understand questions, and (2) can give comprehensible answers. The test is the same for those operating with a disorder or disability. - If competent, these witnesses are compellable.

Answer 448

- competent for any party. Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie for the defence) but only for the prosecution if the offence charged against their partner is (PACE s 80): · Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence) · Assault on, or injury, or threat of injury, to a child under 16 · A sexual offence against someone under the age of 16 · Attempts, conspiring, aiding and abetting any of the above

Answer 449

competent so long as they understand the solemnity of taking the oath or affirmation. If competent they are compellable.

Answer 450

whether the witness is permitted to give evidence to the court.

Answer 451

* The jury is not obliged to accept expert evidence, even if it is not contradicted. In every case where there is an opinion that has not been directly contradicted, the judge has to decide how to sum the case up to the jury and, if there is other evidence that tends to a conclusion which is not the conclusion of the expert, the jury would still be empowered to prefer the alternative conclusion. Only in cases where the expert's opinion and all the other evidence leads inevitably to only one conclusion should the jury be directed to accept the opinion as correct.

Answer 452

* As a general rule, all witnesses must either take an oath before giving evidence, or make an affirmation The only real exception where evidence may be received unsworn is in the case of children and those of 'unsound mind'. In these cases, the courts can receive evidence, but it would be wrong to make the witness take the oath. The test for children and those with unsound mind is whether they 'have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath, * Refusal to take an oath or affirmation can be punished as a contempt of court.

Answer 453

where victim can give their own account

Answer 454

questions should be non-leading. * Evidence adduced from a leading question may be considered to be inadmissible or to carry less weight. * The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.

Answer 455

a witness known to have evidence that could assist the prosecution then indicates they are not going to give that evidence in court. * NEED TO ASK THE COURT FOR PERMISSION TO TREAT THEM AS A HOSTILE WITNESS * If the witness is then called to give evidence and gives an account inconsistent with their original statement to the point the Judge forms the view the witness is not “desirous of telling the truth”, the party calling that witness may apply to the Judge to treat them as hostile. A party is free to cross examine a hostile witness and put their previous statement to them as the truth of the matter. * Any inconsistent statement presented to a witness can be used to prove the truth of its contents notwithstanding that the statement was (or might have been) deemed as inadmissible hearsay before the witness contradicted it in evidence.

Answer 456

advocates may ask leading questions

Answer 457

· In any case, if matters are raised in cross-examination which could not reasonably have been covered in examination in chief, then the party calling the witness may ask further questions after the cross-examination in re-examination. · These questions should follow the same rules as examination in chief – namely no leading questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary.

Answer 458

Leading questions are questions which are suggestive of the answer.

Answer 459

 All summary trials take place before a 'bench' of at least two, but usually three, lay magistrates (also known as 'justices of the peace') or before a single District Judge. * District Judges are professional lawyers. Rather than sitting as part of a bench of three, a District Judge usually sits alone. * Lay magistrates are not professional lawyers; they are unpaid volunteers. They receive training to assist them with the law and procedure in the court but also have a court legal adviser to help them.

Answer 460

 The authorised court officer will provide assistance to justices of the peace with both the relevant law and procedure when required during the summary trial process. The authorised court officer takes no part in deciding upon the verdict in a summary trial. The authorised court officer must be present during a trial judged by a bench of lay magistrates but is not required to be present in a summary trial presided over by a District Judge.

Answer 461

 Legal arguments would be heard before the trial starts  Prosecution opening speech  Defence identify matters in issue  Prosecution evidence  Conclusion of the prosecution case  Submission of no case to answer  Right to give evidence and adverse inferences  Defence evidence  Prosecution closing speech  Defence closing speech  Legal advice  Magistrates/ district judge retire to consider verdict  Verdict  Judges of fact and law

Answer 462

* In a summary trial the magistrates or District Judge are the judges of both fact and law.

Answer 463

* In the magistrates' court, the magistrates usually have a discretion as to when to determine questions of admissibility. * As such, they can rule on an s.78 application when it arises or hear all the evidence (including the disputed evidence relating to the legal argument) before ruling on admissibility.

Answer 464

* Prosecution summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute.

Answer 465

* Where the magistrates or District Judge feel it would assist them to understand the case and resolve any issue, they are entitled to ask the defence (i.e. the defence representative or the defendant in person if unrepresented) to identify concisely what is in issue in the case (i.e. what is in dispute, CrimPR r.24.3(3)(b)). This is particularly helpful in summary trials because, unlike in cases that are sent to the Crown Court, there is no requirement for a defence statement.

Answer 466

* Having opened its case, the prosecution will present its evidence to the court.  Evidence can be presented by: * calling witnesses; * reading witness statements under s.9 Criminal Justice Act (‘CJA’) 1967 when the * evidence of that witness is not in dispute or where the prosecution have made a successful application to read a witness statement or part of it under the hearsay provisions; * reading admissions under s.10 CJA 1967 i.e. facts which are agreed by the prosecution and defence.

Answer 467

* Defendant must be informed of:  the right to give evidence, and  the potential effect of not doing so at all, or of refusing to answer a question while doing so.

Answer 468

 Like prosecution evidence, defence evidence can be given by witnesses live from the witness box in court; alternatively, where the evidence is agreed by the prosecution, evidence can be read from witness statements or presented in the form of written admissions.  It is also open to the defence to apply to read witness statements under the hearsay provisions of the Criminal Justice Act 2003, see the hearsay elements for more detail.  Witnesses will be examined in chief, cross-examined and re-examined in the same order as the defendant.

Answer 469

* The first closing speech they will hear is from the prosecution, but the prosecution is only entitled to make a closing speech where:  the defendant is represented; or  whether or not he is represented, the defendant has introduced evidence other than their own. o As such, the prosecution cannot make a closing speech in a case involving an unrepresented defendant who does not rely on any evidence other than what the defendant in person says in the witness box.

Answer 470

* After the prosecution closing speech (if there is one) the defendant's legal representative will make a closing speech on behalf of the defendant. * The defence are always entitled to make a closing speech.

Answer 471

* Before retiring to consider their verdict, the legal adviser will advise the lay magistrates in open court on any matters of law that are required. * When a District Judge is hearing the case, even if an authorised court officer was present, there would rarely be any need for such advice to be given.

Answer 472

* After receiving any legal advice the magistrates will retire to consider their verdict. * If the magistrates require assistance from the authorised court officer after retirement they should request this in open court. If any legal advice is given to the magistrates other than in open court the authorised court officer should inform them this advice is only provisional; the authorised court officer should then repeat the substance of the advice in open court to allow representations from the prosecution and defence.

Answer 473

* The magistrates/District Judge will announce the verdict in open court. * Where there is disagreement amongst three lay magistrates the view of the majority prevails; however, if only two magistrates were able to hear the case and they are evenly divided, they must adjourn the case for a rehearing before a new bench. * Guilty – Duty to give reasons * If the magistrates/District Judge convict a defendant sufficient reasons must be given to explain the decision.

Answer 474

Magistrates should be addressed as 'Your Worship(s)' or 'Sir' or 'Madam'.

Answer 475

When referring to an opposing advocate it is courteous to refer to them as ‘my friend’ or, if the other advocate is a barrister, ‘my learned friend’.

Answer 476

On entering or leaving court, it is customary to bow to the judge or magistrates (in fact this is linked to the Royal Coat of Arms which will usually be positioned behind where they sit and recognises that justice stems from the Crown and that the law courts are part of the Royal Court). Similarly, all those in court will be required to stand up when the judge or magistrates enter or leave the court. Another important feature of being a criminal advocate is that when you address the court or are examining witnesses, the default position is that you are required to stand up if the proceedings are taking place in open court, which most criminal proceedings are. However, there are now a number of occasions when advocate will usually remain seated: * when representing a juvenile client in the youth court; * where a defendant appears via videolink from prison; * where a witness appears via secure link, normally because of special measures (see 10.7); * where witnesses are located far from court (especially police officers) and need to give evidence via videolink; * where an advocate has requested to appear over videolink (the court videolink facility is called CVP or Cloud Video Platform); * when making a bail appeal before a judge in chambers in the Crown Court (see Chapter 7). Finally, you should not eat food when in court and any electronic devices such as mobile phones or tablets must be turned off (or placed on silent mode). You would be committing an offence and also be in contempt of court if you were to take pictures, video or audio record court proceedings.

Answer 477

A solicitor representing a defendant at a trial before the magistrates is under a duty to say on behalf of their client what that client would properly say, were they to have the necessary skills and knowledge to do this. In other words, it is the duty of the defence solicitor to act in their client’s best interests and to ensure that the prosecution discharges the onus placed upon it to prove the defendant’s guilt. Therefore, even if a client admits their guilt to the solicitor, it would still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor considered that case to be weak. The defendant’s solicitor nevertheless is required to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice (Principle 1 SRA Code of Conduct), and also remains under an overriding duty not to mislead the court (under Standard 2 of the SRA Code of Conduct). They cannot therefore say anything in their client’s defence which they know to be untrue. The defendant’s solicitor also owes a duty of confidentiality to their client (under Standard 6.3 of the SRA Code of Conduct). This means that if the defendant’s solicitor has to cease to act for their client, the defence solicitor must not tell the court why they are ceasing to act. A defence solicitor who withdraws from acting in such circumstances will tell the court that they are no longer able to act for their client for ‘professional reasons’.

Answer 478

Prior to the trial, the defendant’s solicitor must tell their client what is likely to happen at the trial. If the client is to give evidence in their own defence, it is a sensible step to supply the client with a copy of their witness statement, so that they can read it before the trial commences. The client will not be able to refer to their witness statement when giving evidence, but it is useful for them to be able to refresh their memory as to what they first told their solicitor about the offence. The defendant’s solicitor should be careful, however, not to ‘coach’ their client (or indeed any other defence witness). Advocates in the magistrates’ court or Crown Court (whether representing the prosecution or the defence) should not rehearse or coach witnesses in relation to their evidence, or in the way in which that evidence should be given.

Answer 479

vailable to assist witnesses (other than the defendant) who might otherwise have difficulty in giving evidence in criminal proceedings, or who might be reluctant to do so

Answer 480

(a) children aged under 18; (b) those suffering from a mental or physical disorder, or having a disability or impairment that is likely to affect their evidence; (c) those whose evidence is likely to be affected by their fear or distress at giving evidence in the proceedings; (d) complainants in sexual offences; (e) those who are witnesses in specified gun and knife crimes (YJCEA 1999, Sch 1A).

Answer 481

Witnesses who are alleged to be the victims of sexual offences will automatically be considered eligible for special measures under (c) above when giving evidence, unless the witness tells the court that he or she does not want such assistance. In all other cases, it is for the court to determine whether a witness falls into any of these categories.

Answer 482

a witness who is fearful about having to give evidence at trial may, with the leave of the court, have their written statement read out to the court rather than having to attend court in person to give oral evidence. If leave is granted, the defendant will be deprived of the opportunity to cross- examine the witness on their account. Thus, before giving leave, the trial judge should assess whether the fears of the witness may be allayed by the use of special measures to enable the witness to give evidence. If special measures are used, the defendant will not then be deprived of the opportunity to cross- examine the witness.

Answer 483

(a) screens, to ensure that the witness does not see the defendant; (b) allowing a witness to give evidence from outside the court by live television link, and where appropriate, allowing a witness supporter to accompany the witness whilst giving evidence; (c) clearing people from the court so evidence can be given in private; (d) in a Crown Court case, the judge and barristers removing their wigs and gowns; (e) allowing a witness to be examined in chief before the trial and a video recording of that examination- in- chief to be shown at trial; (f) allowing a witness to be cross- examined (and re- examined) before the trial and a video recording of this to be shown at trial; (g) allowing an approved intermediary (such as an interpreter or speech therapist) to help a witness communicate when giving evidence at the court; and (h) allowing a witness to use communication aids, such as sign language or a hearing loop.

Answer 484

Where special measures are employed, s 32 of the 1999 Act obligates the trial judge to warn the jury that the fact that special measures have been used should not in any way prejudice them against the defendant or give rise to any suggestion that the defendant has behaved in any way improperly towards the witness.

Answer 485

Although a defendant is not eligible to take advantage of these special measure provisions, s 33A of the 1999 Act allows a defendant whose ability to participate effectively as a witness in court is compromised by reason of their mental disorder, impaired intellectual ability or social functioning, to give evidence by video link.

Answer 486

he burden of proof remains with the prosecution throughout a criminal trial. This explains why the prosecution must always present their case first and why they must persuade the court beyond a reasonable doubt of the defendant’s guilt.

Answer 487

In all criminal cases, the prosecution will bear the legal burden (sometimes also referred to as the persuasive burden) of proving the defendant’s guilt. The standard of proof that the prosecution needs to satisfy in order to do this is to prove beyond a reasonable doubt that the defendant is guilty of the offence with which they have been charged. In other words, the magistrates or jury should convict the defendant only if they are sure of guilt Occasionally the legal burden of proof will also fall upon the defendant. An example of this is the defendant who pleads not guilty and raises the defence of insanity or duress. A defendant pleading either defence is required to prove those facts. In cases where the defendant bears the legal burden of proof, the standard of proof that is required is proof on the balance of probabilities. This is the lower standard of proof that also applies in civil trials and simply means ‘more probable than not’. A defendant who raises a specific defence (for example, a defendant who claims they have an alibi, or were acting in self- defence), does not have the burden of proving that defence – they only have what is called an evidential burden to raise it. The burden of disproving this then rests with the prosecution (as part of the requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt) to satisfy the magistrates or the jury that the defence is not true

Answer 488

At trial, the prosecution will present their case first. At the conclusion of its case, the prosecution must have presented sufficient evidence to the court to justify a finding of guilt and to show that the defendant has a case to answer (this is before the defendant has adduced any evidence). If the prosecution fails to do this, the defendant’s solicitor (or counsel) will be entitled to make a submission of no case to answer, and to ask the court to dismiss the case. In such circumstances it is said that the prosecution has not discharged their evidential burden

Answer 489

The defendant is not obliged to place any evidence before the court to show that they are innocent. However, a defendant who is raising a specific defence (for example, alibi or reasonable self- defence) must place some evidence of that defence before the court if they want the magistrates or jury to consider that defence when deciding the verdict. This is the evidential burden that the defendant bears. It is relatively simple for the defendant to satisfy such a burden. All the defendant needs to do is to enter the witness box and give details of this defence. The onus will then fall on the CPS, as part of its legal burden, to prove beyond a reasonable doubt that the defence which has been raised is not true.

Answer 490

· relevant- 'logically probative' of a fact in issue – ie does the evidence tend to prove or disprove a fact in issue; · not subject to an exclusionary rule of evidence; and · not so poor-quality evidence, that no one could reasonably put any reliance (weight).

Answer 491

o The facts in issue are the facts that any party needs to prove in order to prove its case.

Answer 492

· agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9; · agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and · a judge or a jury to take 'judicial notice' of the fact.

Answer 493

* Real evidence- simply means objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin. * Direct evidence v circumstantial evidence- the other way in which it is important to classify evidence is according to whether it is 'direct evidence', namely evidence that a witness gives of having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue where the defendant was at midnight) witness 1 saw the defendant at the station at midnight (direct oral evidence) and a train ticket found in the defendant's pocket showing a train ticket for a train arriving just before midnight at the station (circumstantial real evidence). * A view- occasionally juries can visit a scene of a crime, or leave court to view an object that cannot be brought into court. This is called a 'view'. Their observations become evidence in the case.

Answer 494

· s.78 PACE- for prosecution evidence wrongly obtained or obtained through ‘significant and substantial’ breach(es) of PACE. The admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. · the common law- when 'the probative value of the evidence is outweighed by its prejudicial effect'. o Inclusionary rule- Where the evidence is of a type that can’t be admitted without an inclusionary rule: · Does the inclusionary rule apply? · Does the legislation make any provision to exclude evidence that would otherwise pass through the exclusionary rule

Answer 495

* Is the evidence relevant? * If no, the evidence is inadmissible * If yes, the evidence relevant, so proceed to the next question. * Is the evidence of a special character? * (eg hearsay or bad character which requires an inclusionary rule) * If no, ask: does an exclusionary discretion apply (s.78 or common law)? * If no, the evidence is admissible * If yes, the evidence is inadmissible * If yes, proceed to the next question * Does the inclusionary rule allow for admission of the evidence? * If no, it is inadmissible * If yes, proceed to the next question * Does an exclusionary provision within the statutory framework for the ‘special character’ apply? * If no, proceed to the next question * If yes, the evidence is inadmissible * Does an exclusionary discretion apply (s.78 or common law)? * If no, the evidence is admissible * If yes, the evidence is inadmissible

Answer 496

Bad character evidence

Answer 497

 'In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, **the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.**'

Answer 498

 Searches without proper authority  Interviewing witnesses without cautioning them properly first  Denying access to a solicitor  Oppression or tricks in interview  Not following proper procedures in identification cases needing parades etc

Answer 499

common law might apply where s.78 does not is in the case of police eavesdropping. There is nothing in PACE to declare that secretly eavesdropping on conversations is against the Codes of Practice, so s.78 is not likely to be of much assistance. However, it may be that the officer was only able to hear snatches of a conversation, and was unable to put it into context, and was not able to see the facial expressions etc. that are a part of communication. In those circumstances the probative value of the evidence would not be very good, and the tribunal of fact might be tempted to put more weight on the evidence than it properly merits – ie the probative value is outweighed by the prejudicial effect of admitting the evidence; notwithstanding the lawfulness of the way in which it was gathered.

Answer 500

* Application for dismissal- for cases sent to Crown Court. A pre-trial application made after evidence is served and before arraignment. Same test as submission of no case to answer (Galbraith). * Submission of no case to answer- only available during trial at the close of the prosecution case Galbraith test. * Application under s.78 Police and Criminal Evidence Act 1984 (PACE)-the main provision used for excluding evidence. May be used only to exclude prosecution evidence. * Application to exclude a confession- s.76 PACE. The main provision for excluding confessions. Often used in conjunction with s.78 PACE. * Application to exclude evidence under the common law- s.82(3) PACE. May be used only to exclude prosecution evidence. * Abuse of process application- an application to stay the indictment where either (1) the defendant cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.

Answer 501

o An application for dismissal is a pre-trial application to have the charges against a defendant dismissed. o Such an application can be made:  only after a defendant is sent by the magistrates' court for trial to the Crown Court;  only after the defendant has been served with the evidence relating to the offence; and  only before the defendant is arraigned (ie the offence is put to D and D pleads guilty or not guilty). o The application is made to a Crown Court Judge and if the defendant wishes to make an oral application D must give written notice of D’s intention to do so.

Answer 502

 'The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment ...) ... if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’  This amounts to the same test to be applied where the defence make a submission of no case to answer, as set out in the case of R v Galbraith [1981] 73 Cr App R 124, CA, namely that the judge should stop the case: * where there is no evidence that the crime has been committed by the defendant; or * where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

Answer 503

* Section 78 only applies to 'evidence on which the prosecution proposes to rely' so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

Answer 504

o Sometimes there is an issue of unfairness or impropriety so fundamental that for the trial to continue would be an abuse of the process of the court. Such cases often go beyond applications to exclude evidence; rather, they go to the heart of whether or not a case should be allowed to continue. In such cases the defence

Answer 505

Lord Nicholls went on to set out guidelines for trial judges when deciding whether or not to stay proceedings for an abuse of process: (1) The nature of the investigation – the more intrusive the investigation, the harder the courts should scrutinise it. (2) The nature of the offence. Certain offences can only be committed in a covert way such as drug trafficking and therefore police can only crack them in a covert way. (3) The nature of the police involvement. For example, how they behaved, how persistent they were in trying to persuade the defendant to take part in the offence, for example did they behave like a ‘normal customer’ might and no more. 4) The defendant’s criminal record – usually this would not be relevant unless there was evidence of recent similar involvement. (5) The level and extent of supervision of the undercover officers.

Answer 506

A s.78 application should be made before the evidence to which objection is taken is adduced. A voir dire will be necessary where there is a dispute on the facts between the defence and the prosecution.

Answer 507

This could include situations in which evidence was obtained in breach of the European Convention on Human Rights or the provisions of PACE (or the Codes of Practice issued under PACE). o To this end s.78 has been used variously to exclude evidence obtained where: · the "fundamental right" of access to legal advice has been improperly denied; · where waiver of the right of access to legal advice was not voluntary, informed or unequivocal; · where there has been a failure to caution a suspect before questioning; · where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect; · where identification procedures have not been followed.

Answer 508

* An application under s.78 PACE can be made: * before the trial; * at the commencement of the trial; or * just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

Answer 509

a judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn. On the other hand, where the application relates to a matter of less significance the judge may direct that the matter is dealt with at a convenient moment during the trial itself. If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced. * Where the point of law is clear from the case papers or becomes clear following initial disclosure, the defence should include the point of law in the Defence Statement together with any authorities relied upon (s.6A(1)(d) Criminal Procedure and Investigations Act (CPIA) 1996). * In practice, the defence representative will often draft a skeleton argument in support of D’s application and the prosecution will draft a skeleton argument opposing it. * Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation Hearings (PTPH), as to when a s.78 application will be heard. * Similar directions will be given when dealing with case management at the magistrates' court.

Answer 510

* s.82(1) PACE – ‘"confession", includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’

Answer 511

There are two main ways under s.76 to challenge a confession: · under s.76(2)(a)- 'oppression’; or · under s.76(2)(b)- 'anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’.

Answer 512

· Burden of proof is on the prosecution once these claims are raised by the defence

Answer 513

· unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’). · mixed statements (those which are partly inculpatory and partly exculpatory, such as 'I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker. · depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words. o Wholly exculpatory statements ('It was nothing to do with me') do not fall within the definition of a confession.

Answer 514

s.76 does not automatically come into play to challenge confessions. Rather, it only operates where 'it is represented to the court' by the defence that s.76(2)(a) or (b) apply. However, even where there is no defence challenge, s.76(3) provides that the court itself can require the prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or**(b).**

Answer 515

o 'Oppression' is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3. o What might be oppressive to one person might not be oppressive to another, so it is legitimate to consider the character and attributes of the accused. o Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), the prosecution must prove beyond reasonable doubt that it was not so obtained. o If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true. o If, however, the judge is satisfied beyond reasonable doubt that the confession was not obtained by oppression (and is therefore admissible), this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable. Of course, it would then be for the jury to decide for themselves whether to rely upon the alleged confession or not

Answer 516

o Section 76(2)(b) provides that: · where it is represented to the court that · the confession was or may have been obtained in consequence of anything said or done · which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof · the court shall not allow the confession to be given in evidence against him · except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

Answer 517

· First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police. · Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances. · Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way.

Answer 518

* a promise, inducement or trick. * an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult * must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).

Answer 519

o Deprivation of sleep o Failure to caution o Denial of access to legal advice

Answer 520

the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done

Answer 521

o Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—  '(a) of any facts discovered as a result of the confession; or  where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.'

Answer 522

o Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence. If, for example, the police locate the body of a murder victim following the confession of a defendant, even if that confession is excluded under s.76(2)(a) or**(b)**, the fact of the discovery of the body in that place is still admissible under s.76(4)(a). There is, therefore, no rule excluding the 'fruit of the poisoned tree'. o However, in these circumstances it would not be open to the prosecution to suggest that the body was discovered by reason of something said by the defendant (eg 'Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.'). To do so would be to circumvent the exclusion of the confession itself. o This rule is contained in s.76(5) PACE:  'Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.'

Answer 523

o Section 76(4)(b) concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.

Answer 524

* Burden of proof is not on the prosecution – court must decide that breaches were so significant and substantial. · For the defence to raise but the burden is not specifically on the defence but in effect it is on the defence

Answer 525

o It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78.

Answer 526

* The burden of proving the elements of the offence is always on the prosecution.

Answer 527

* A legal burden- is simply the requirement to prove an element of your case to a prescribed standard. The standard varies between prosecution and defence:

Answer 528

· The standard to which prosecution proof is put is always to convince the jury of guilt “so that they are sure” which means the same as 'beyond reasonable doubt’.

Answer 529

· The standard for almost everything that the defence has to prove is the ‘balance of probabilities’.

Answer 530

where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury.

Answer 531

self-defence This is a very special and rare breed, where the judge requires some evidence to be raised in order to put the issue before the jury, but where there is no actual standard of proof required. The courts simply require that the defence raise 'some' evidence to 'pass the judge' that the defendant did act in self-defence. If the judge is content, then the prosecution is on notice that to prove that the use of force was lawful, it has to disprove self-defence. The burden was always upon the prosecution to prove that the force was unlawful, so in a way nothing has changed, except that we now know that proving that the force was unlawful requires proof that the force was not in self-defence.

Answer 532

* It is very important to understand that if the defence simply challenges the prosecution case and asserts that the prosecution is wrong, this does not create any burden on the defence. * The defence can call evidence and make positive assertions such as 'it was not me', 'you are lying' and 'your view was not good', and none of these mean that a burden has passed to the defence. It is simply that the defence is engaging and contesting issues that the prosecution has to prove. * There are relatively few examples of where the law puts a burden on the defence, and it is reserved for cases where an active defence is being run, such as automatism, insanity and diminished responsibility.

Answer 533

a confession made by a defendant prior to trial will be admissible in evidence at trial by virtue of s 76(1) of PACE 1984: In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. This means that a confession will be admissible at trial to prove the truth of its contents (ie to prove the defendant’s guilt) and is therefore also an exception to the hearsay rule.a confession made by a defendant prior to trial will be admissible in evidence at trial by virtue of s 76(1) of PACE 1984: In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. This means that a confession will be admissible at trial to prove the truth of its contents (ie to prove the defendant’s guilt) and is therefore also an exception to the hearsay rule.

Answer 534

- what a judge should say to a jury when a case depends wholly or substantially on disputed identification evidence.

Answer 535

the judge will withdraw the case from the jury and direct the jury to acquit the defendant o If the judge decides that the evidence given by the witness at trial is strong enough to be left to the jury or is weak but supported by some other evidence, then the trial will proceed. During summing up, the judge will explain to the jury that they must decide whether D was the person seen by the witness. At this stage the judge will give the jury a specific Turnbull warning- a direction in relation to how they should assess the weight of the identification evidence.

Answer 536

A Turnbull direction should be given when the case against the accused depends 'wholly or substantially' on the correctness of the visual identification. o A Turnbull direction should be given even in cases of alleged recognition; many times someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong.

Answer 537

- instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing ones. o Caution the jury - direct the jury to examine the circumstances in which the identification by each witness came to be made. - remind the jury of any specific weaknesses in the identification evidence.

Answer 538

o If presence at the scene is admitted but the defendant disputes their role in an incident, then it is likely that a Turnbull direction will not be required.

Answer 539

o Judges are also required to examine the state of identification evidence at the close of the prosecution case and to stop the case if it is poor and unsupported. o In cases of visual identification, the judge must answer two principal questions: · What is the quality of the identification evidence? · Is there other evidence to support the correctness of the identification? o In assessing the quality of the identification evidence, the judge will need to consider lighting, distance, length of time of observation and qualities relating to the witness themselves, such as their eyesight. | ADVOKATE

Answer 540

· A- Amount of time under observation- How long did the witness have the accused in view? · D- Distance- What was the distance between the witness and the accused? · V- Visibility- What was the visibility like at the time? · K- Known or seen before- Had the witness ever seen the accuses before? If so, where and when? · A- Any reason to remember- Did the witness have any special reason for remembering the accused? · T-Time lapse- How long has elapsed between the witness seeing the accused and the ID procedure being held? · E- Error or material discrepancy- Are the any errors or material discrepancies between the first description given by the witness and the actual appearance of the accused? | ADVOKATE

Answer 541

* Identification of the defendant by a witness for the first time in court * A trial judge retains a discretion to permit a dock identification. In considering this, the judge will need to consider whether such a course of conduct will jeopardise the fairness of the accused's trial. For example, in a case of alleged recognition, the judge may be of the view that it would not be unjust to allow a dock identification.

Answer 542

 D disputes the identification evidence; and the identification evidence is wholly or substantially the only evidence implicating D.

Answer 543

o * Advance notification: any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that.  Timings for when arguments should be sent o * Timing: In a magistrates' court, any application under s.76 should be dealt with as a preliminary issue. o * Voir dire: where the application is under s.76 or boths.76 & s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates' court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.

Answer 544

o * Advance notification: generally at the PTPH, the judge is likely to order, when the defence is to serve a skeleton argument in support of any s.76/78arguments, when the prosecution serve a response and when the arguments will be heard. o * Timing: the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury). o * Voir dire: required where the application is made under s.76 (or both s.76 and s.78) and the evidence founding the application is in dispute.

Answer 545

o 'References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—  has to do with the alleged facts of the offence with which the defendant is charged, or  is evidence of misconduct in connection with the investigation or prosecution of that offence.' o 'Misconduct' is defined in s.112 CJA 2003 as 'the commission of an offence or other reprehensible behaviour’. o 'Reprehensible behaviour' is not further defined in the Act, though there is case law on the issue. 'Reprehensible' connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered in law bad character. It is well established that evidence of membership of a gang is evidence of reprehensible behaviour. * Bad character may be shown in lots of different ways: previous convictions, witness evidence, agreed facts and acquittals for example.

Answer 546

must go through a gateway to be admissible o S.100(1) sets out the gateways for non-defendant bad character Criminal Justice Act 2003 o S.101(1) sets out the gateways for defendant bad character Criminal Justice Act 2003

Answer 547

o has to do with the alleged facts of the offence with which the defendant is charged; or o is committed in connection with the investigation or prosecution of that offence.

Answer 548

* Previous convictions in the UK * Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character. * Cautions * Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted * Agreed facts that amount to reprehensible behaviour o E.g. member of a gang * Witness evidence of a reputation for reprehensible behaviour o E.g. seen someone do bad behaviour in the past like abuse

Answer 549

· Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted. · The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences.

Answer 550

· Section 98 CJA 2003 specifically excludes evidence of misconduct which:  Has to do with the alleged facts of the offence with which the defendant is charged; or  Is committed in connection with the investigation or prosecution of that offence.

Answer 551

· Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character).  If it is in the facts of the investigation don’t need to worry about gateways · If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b).

Answer 552

· Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant or another, evidence of that conduct will fall outside s.98.

Answer 553

 s.101(1)(a)- all parties agree * all parties to the proceedings agree to the evidence being admissible’ * no need to make an application to the court for leave to adduce evidence through this gateway. * no formal requirements as to the recording of the agreement or how it is reached. A tacit agreement is enough.  s.101(1)(b)- D chooses to adduce evidence * allows defendants to introduce evidence of their own bad character. o Could be used that the crime they have been charged with is not a crime they usually admit o Could be important explanatory info * 'Section 101(1)(b) "the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it".' * There are a number of reasons why D may wish to do so. Reasons include: * To come clean about an old conviction in order to receive a modified good character direction * To show that D has never been convicted of an offence of the type with which D is now charged * To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence * To show why police officers might have a bias against D * Leave of the court is not required to adduce evidence through this gateway.  s.101(1)(c)- important explanatory evidence (s.102) * 'it is important explanatory evidence’. 'Important explanatory evidence' is defined in s.102 CJA 2003 thus: o '(a) For the purposes of section 101(1)(c) evidence is important explanatory evidence if—  without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and  its value for understanding the case as a whole is substantial.' * This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial. * Often the evidence will be to show the previous relationship between people involved in the trial without which it would not be possible to understand the narrative put forward by the prosecution. * Leave of the court is required to adduce evidence through this gateway.  s.101(1)(d)- relevant to an important matter between in issue between D and P * 'it is relevant to an important matter in issue between the defendant and the prosecution'. * Section 112 says that 'important matter' means a matter of substantial importance in the context of the case as a whole. * Section 103 further explains the meaning of s.101(1)(d): o THIS IS HOW S.101(d) CAN BE PROVEN o '(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include— o the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; o the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect. o (2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— * MAY – these are not exclusive - examples  an offence of the same description as the * THIS MEANS THE EXACT SAME CRIME  one with which he is charged, or  an offence of the same category as the one with which he is charged. * ONLY THEFT ACT – BURGLARY, ROBBERY, THEFT AND CHILD SEX OFFENCES o (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. o (4) For the purposes of subsection (2)—  two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;  two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. o (5) Only prosecution evidence is admissible under section 101(1)(d).' o IF THE FACTS DO NOT SATISFY THIS USE HANSON · s.103(1)  -(a) Propensity to commit offences of type charged  Offence of the same description written in charge or indictment (s.103(4)(b))  Offence of the same category prescribed by order of Secretary of State (s.103(4)(a)) i. (b) Propensity to be untruthful  s.101(1)(e)- probative value between D and Co Def (s.104)  s.101(1)(f)- correct a false impression (s.105)  s.101(1)(g)- D attacks another’s character (s.106) · Defence can argue relevant safeguards to exclude- s.101(3) and s.103(3).

Answer 554

· a)Agreement · b)Blurts it out · c)Context · d)Done it before · e)'E did it · f) False impression · g)Gets at the witness | ABCDEFG

Answer 555

· R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:  Does the defendant's history establish a propensity to commit offences of the kind charged?  Does that propensity make it more likely that the defendant committed the offence charged?  Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them (s.103(3))? * No minimum but wouldn’t always rely on one unless it is unusual features or behaviour  In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))? no minimum number of previous convictions required to establish a propensity

Answer 556

· Where the facts of previous convictions are so unusual as to constitute a "signature" of the offender's mode of offending, the propensity itself is likely to be very powerful evidence against the defendant. In the pre-2003 case law these were termed "striking similarity" cases and based on the principle of “similar fact evidence”.

Answer 557

· Also in R v Hanson the court held that a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a propensity where: o There was a plea of not guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved; or o The way in which the offence was committed involved being untruthful, e.g. fraud by false representation. · In practice this means that while burglary is categorised as a dishonesty offence, it does not logically follow that each and every burglar is untruthful. A person can commit a burglary and go onto admit it in interview and plead guilty, in such circumstances, it would incorrect to describe their behaviour as general untruthful.

Answer 558

· Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. Therefore a gateway is required to allow cross-admissibility of evidence of one offence as evidence of the other. The most likely gateway to fulfil this function is s.101(1)(d).

Answer 559

· The judge is to determine whether evidence is capable of establishing a propensity. · If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show the propensity that is asserted. · Leave of the court is required to admit evidence through this gateway.* Section 101(1)(e): Important matter in issue between the defendant and a co-defendant

Answer 560

· Section 101(1)(e): 'it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant'. · Section 104 CJA 2003 states:  '1 Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence.  2 Only evidence— * which is to be (or has been) adduced by the co-defendant, or * which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).' · Note that the fairness test in s.101(3) CJA 2003 does not apply to s.101(1)(e). Also, because by definition evidence that comes in through this gateway is not prosecution evidence, s.78 PACE Act 1984 does not apply to it. Therefore it is very hard for a defendant (D1) to exclude evidence of D1’s bad character where it is a co-defendant rather than the prosecution that seeks to adduce it. · While the propensity of the co-accused to commit offences of the type charged is not itself an issue between the co-defendants, evidence of such a propensity becomes admissible where one of them asserts that they have no such propensity, in which case the other defendant can adduce evidence of a propensity. · The effect of s.104 is that evidence of the co-defendant's propensity to be untruthful is only admissible where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence. · Leave of the court is required to admit evidence through this gateway.

Answer 561

· Section 101(1)(f): 'it is evidence to correct a false impression given by the defendant'. · Section 105 states:  '(1) For the purposes of section 101(1)(f): * the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant; * evidence to correct such an impression is evidence which has probative value in correcting it.  (2) A defendant is treated as being responsible for the making of an assertion if: * the assertion is made by the defendant in the proceedings (whether or not in evidence given by him), * the assertion was made by the defendant: o on being questioned under caution, before charge, about the offence with which he is charged, or o on being charged with the offence or officially informed that he might be prosecuted for it, o and evidence of the assertion is given in the proceedings, o the assertion is made by a witness called by the defendant, o the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or o the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings. * (3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it. * (4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression. * (5) In subsection (4) 'conduct' includes appearance or dress. * (6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression. * (7) Only prosecution evidence is admissible under section 101(1)(f).' · Leave of the court is required to admit evidence through this gateway.  It is possible for s.101(1)(f) to have an effect even where it is the prosecution that adduces the evidence that creates a false impression.  For example, where the defendant says in police interview, 'I have never acted dishonestly', and the prosecution adduces evidence of what was said in the interview as part of the prosecution case, s.101(1)(f) allows the prosecution to adduce evidence of previous convictions for offences of dishonesty to correct the false impression given in interview.

Answer 562

· Section 101(1)(g): 'the defendant has made an attack on another person's character'. · Section 106 says:  '1 For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if: * he adduces evidence attacking the other person's character, * he … asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or * evidence is given of an imputation about the other person made by the defendant— o on being questioned under caution, before charge, about the offence with which he is charged, or o on being charged with the offence or officially informed that he might be prosecuted for it.  2 In subsection (1) 'evidence attacking the other person's character' means evidence to the effect that the other person: * has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or * has behaved, or is disposed to behave, in a reprehensible way; * and "imputation about the other person" means an assertion to that effect.  3 Only prosecution evidence is admissible under section 101(1)(g).'  Note that this gateway can be used to admit evidence of dishonesty, not just of a propensity to be untruthful, as is the case where evidence is admitted thorough the s.101(1)(d) gateway.  The reason is that the purpose of the s.101(1)(g) is to allow the jury to assess how likely it is that the attack on the other person's character is true. In assessing this, the jury are entitled to know the character of the person who makes the allegation.  This subsection is triggered where an attack is made on any person, living or dead. It is also unimportant whether the person whose character has been attacked is or is not a witness in the case.  Leave of the court is required to admit evidence through this gateway.  The fairness test in s.101(3) CJA 2003 applies to this gateway.

Answer 563

· It should be made clear to the jury that the weight to be placed on evidence of bad character that has been adduced during the trial is a matter for them. · The jury must be warned not to place too much reliance on bad character evidence. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. The jury should be directed that:  they should not conclude that the defendant was guilty or untruthful merely because D had previous convictions; and  a propensity is not enough to show that the defendant committed the offence alleged in this case. · The significance of bad character evidence should be assessed in the light of all the evidence in the case. · Where an allegation of conduct that did not result in a conviction is relied on as evidence of propensity and it is disputed, the jury should be directed that they should not rely on it unless they are sure that it is true.

Answer 564

 s.100(1)(a)- important explanatory evidence. Court to give leave.  s.100(1)(b)- substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole. Court to give leave.  s.100(1)(c)- Agreement of the parties. Admissible without leave of the court.

Answer 565

· Evidence under s.100 can be adduced by any party. · Leave of the court is required unless all parties agree to the admission of the evidence

Answer 566

· The definition of 'important explanatory evidence’ (s.100(2)) is the same as the one given in s.102 in relation to defendant bad character evidence: o without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and o its value for understanding the case as a whole is substantial. · The same considerations apply.

Answer 567

· Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole · 'Matter in issue' can refer to either credibility or a disputed fact. Although there is no specific reference to propensity as a possible matter in issue as we have seen in s.103, propensity can be a matter in issue for the purposes of s.100. The effect of this is that a defendant can adduce evidence of another person's propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence. · The inclusion of the word 'substantial' in the subsection indicates that in order to be admissible, the evidence must be capable of having an impact on the way in which the jury could assess the evidence of a witness or the case as a whole. Whether the misconduct of a non-defendant has substantial probative value depends on the nature, number and age of the instances of misconduct. So recent misconduct is likely to have greater probative value than misconduct long ago. Where it is alleged that the non-defendant committed the offence charged, the similarity of the past misconduct to the facts of the offence charged will be important.

Answer 568

o s.78 PACE- prosecution evidence only o s.101(3) CJA 2003- discretion to exclude applies to defendant’s bad character under these gateways only:  s.101(1)(d)- relevant to an important matter in issue between D and P  s.101(1)(g)- D attacked another person’s character  s.101(1)(d) and s.103(3)- offences may be excluded by length of time since conviction or for any other reason it would be unjust to admit the evidence. o s.107- stopping the case where evidence is contaminated o s.110- requires the court to give reasons in open court on bad character rulings o proof of convictions under ss.73- 75 PACE o the procedure for adducing and opposing the introduction of bad character evidence- defendant and non-defendant

Answer 569

 ‘The court ***must* not admit evidence under subsection (1)(d) or (g**) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence w**ould have such an adverse effect on the fairness of the proceedings that the court ought not to admit it**.’

Answer 570

· Section 73: Proving convictions and acquittals  Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, s.73 provides that the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.  The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.

Answer 571

 Section 74 provides that where a person is proved to have been convicted of an offence by any court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved. * The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person.  Section 75 makes various documents including the information, charge sheet and/or indictment admissible as evidence of the facts on which the conviction was based.

Answer 572

* Notices, applications and responses · Rule 21.2 requires that a party wishing to adduce bad character evidence must, in the case of:  non-defendant bad character evidence, make an application under rule 21.3; or  defendant bad character, give notice under rule 21.4. * Time Limit · Rules 21.2 and 21.4: Defendant bad character · Prosecution Evidence  Magistrates’ court- Not more than 20 business days after the defendant pleads not guilty  Crown Court- Not more than 10 business days after the defendant pleads not guilty · Co-Defendant’s Evidence o As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based * Response * Not more than 10 business days after service of the notice * Contents * Prosecution Evidence and Co-Defendant’s Evidence * Set out the facts of the misconduct on which that party relies; * Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and * Explain why the evidence is admissible. * Response · In the application explain, as applicable- o Which, if any, facts of the misconduct set out in the notice that party disputes; o What, if any, facts of the misconduct that party admits instead; o Why the evidence is not admissible; o Why it would be unfair to admit the evidence; and o Any other objection to the notice. * Rules 21.2 and 21.3: Non-defendant bad character * Time Limit * Magistrates’ court and Crown Court * As soon as reasonably practicable; and * In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant) * Response * Not more than 10 business days after service of the application * Contents * Magistrates’ court and Crown Court * Set out the facts of the misconduct on which that party relies; * Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and * Explain why the evidence is admissible. * Response * In the notice explain, as applicable- * Which, if any, facts of the misconduct set out in the application that party disputes; * What, if any, facts of the misconduct that party admits instead; * Why the evidence is not admissible; and * Any other objection to the application.

Answer 573

· The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury. · The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired. · In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that becomes admissible through the other gateways in s.101 is likely to do so 'on the hoof' as a result of something said or done in the course of the trial. In those circumstances the application is likely to be made orally.

Answer 574

· A statement made out of court (either in writing or orally) and repeated in court to prove the truth of that statement

Answer 575

· The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule. However, section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1).

Answer 576

· Does the evidence fall within the definition of hearsay evidence? If the answer to this question is 'yes', then it is prima facie inadmissible. · Does it fall within one of the exceptions to the general exclusionary rule? - Use the three part test in R v Twist [2011] to determine whether a communication is hearsay. - The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.

Answer 577

* A WRITTEN STATEMENT IS HEARSAY BECAUSE IT IS A STATEMENT MADE OUTSIDE OF COURT – HEARSAY IF THE PERSON IS NOT THERE TO GIVE THE EVIDENCE IN COURT!!!! * If someone is repeating what someone else said in court it is hearsay if the truthfulness of its contents is to be relied upon!!!!! · E.g. witness – D told me the man was acting crazy so he had to defend himself – hearsay · E.g. ‘I remained silent becayse my solicitor told me they recived no disclpsure’ – not hearsay

Answer 578

· any provision of this Chapter or any other statutory provision makes it admissible, · any rule of law preserved by section 118 makes it admissible, · all parties to the proceedings agree to it being admissible, or · the court is satisfied that it is in the interests of justice for it to be admissible.’

Answer 579

- A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. - A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-- o to cause another person to believe the matter, or o to cause another person to act or a machine to operate on the basis that the matter is as stated.'

Answer 580

* Private diary- It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything. * CCTV- section 115(2) contains the words '... made by a person ...’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input. * Questions- Where there is no statement of a matter, eg where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise. * * To show the effect of words- In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore where a defendant wants to reveal solicitor’s advice to show why a "no comment" interview was given, that evidence is not hearsay. * Legally significant words- Where the words spoken have significance as a matter of law, they are not hearsay. Therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of "brothel". * Falsehoods- It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true. Therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Answer 581

· the witness is unavailable (s.116); · it is a business document (s.117)- however, the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and**(7)**) · it is in the interests of justice to admit it (s.114(1)(d)). - Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE).

Answer 582

* Very often evidence of words spoken out of court will be admissible as original evidence. In many cases the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true. If that is the case, the evidence is not hearsay because it is not being admitted as 'evidence of any matter stated’.

Answer 583

· oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, · the person who made the statement (the relevant person) is identified to the court's satisfaction, and · any of the five conditions mentioned in subsection (2) is satisfied. * The conditions are: · that the relevant person is dead; · that the relevant person is unfit to be a witness because of his bodily or mental condition; · that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; · that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; · that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.' * Section 116 requires that the maker of the statement is identified, so it cannot be used to introduce anonymous hearsay. It does not allow in evidence that would have been inadmissible in live evidence, such as evidence of bad character that is not admissible through one of the gateways in ss.100 or 101.

Answer 584

* Unfitness of a person to be a witness because of their bodily or mental condition refers not to their fitness to physically attend court, but to their ability to give evidence once there. There is no requirement that the condition that makes a person unfit should be a medical condition. The trauma of having been the victim of a sexual assault can qualify.

Answer 585

· In deciding whether it is reasonably practicable for the witness to attend or whether steps taken to find the witness were reasonably practicable, the court has to consider the normal steps taken to secure the attendance of a witness. Cost is a relevant factor and it has to be balanced against the importance of the evidence that the witness would give. Subsection 116(2)(c) should be read as referring to the impracticability of securing the attendance of the witness either in person or by videolink.

Answer 586

· For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. · Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard: - to the statement's contents, - to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), - in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person, and - to any other relevant circumstances.' * There is no requirement that the fear that is felt by the witness should have been caused by the defendant. * It is very important that when police officers seek to persuade a witness to attend court to give evidence, they do not give the witness any assurance that their witness statement can be read to the court if they are afraid to attend. This would provide the witness with an obvious incentive to say that they are in fear. * The court has to be satisfied to the criminal standard that the witness does not give evidence through fear. A causative link between the fear and the failure to give evidence must be established.

Answer 587

intimidation of a witness by a defendant is either clearly proved or the court believes to a high degree of probability that that is the case, the defendant cannot complain that the right to a fair trial has been infringed on the basis that the defence was not able to cross-examine the witness. See also s.116(5) of the CJA 2003.

Answer 588

* The CJA 2003, s.117 reads (in part): * '(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if: · oral evidence given in the proceedings would be admissible as evidence of that matter, · the requirements of subsection (2) are satisfied… * The requirements of this subsection are satisfied if: · the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office, · the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and · each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. * The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.' * The wording of s.117(2)(a) is wide enough to ensure that the section covers a lot of documents that are not in any sense business documents. * It covers, for example: · medical records; and · any statement written down by a police officer in the course of duty.

Answer 589

* Subsections (4) and**(5)** of s.117 require that for those documents to be admissible, either: · one of the five conditions mentioned in s.116 is satisfied; or · the person who supplied the information contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since the information was supplied and all other circumstances). · The question of whether or not a document was prepared for the purposes of pending or contemplated criminal proceedings will usually be easy to answer once the circumstances in which the document was made are known. · Generally all witness statements and all entries in police notebooks made in the course of an investigation into an alleged offence will fall within the definition.

Answer 590

· its contents; · the source of the information contained in it; · the way in which or the circumstances in which the information was supplied or received; or · the way in which or the circumstances in which the document concerned was created or received.

Answer 591

* When considering whether to admit or exclude evidence through the gateways created by ss.116 and 117, the court should take into account the factors listed in s.114(2) that are relevant to decisions on admission of evidence in the interests of justice.

Answer 592

* CJA 2003, s.114(1)(d) allows the admission of hearsay evidence where the court is satisfied that it is in the interests of justice to admit it. * Section 114(2) requires the court when deciding whether it is in the interests of justice to admit evidence of the following (and anything else it considers relevant): · How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case · What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a) · How important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole · The circumstances in which the statement was made · How reliable the maker of the statement appears to be · How reliable the evidence of the making of the statement appears to be · Whether oral evidence of the matter stated can be given and, if not, why it cannot · The amount of difficulty involved in challenging the statement · The extent to which that difficulty would be likely to prejudice the party facing it · The application of s.114(1)(d) should be approached with caution. It is not intended to be a way of getting round the failure of a particular piece of evidence to fit into any of the other exceptions to the exclusionary rule. · For example, an attempt to use s.114(1)(d) failed in a case where a witness was reluctant to come to court to give evidence because she did not want to relive the trauma of the sexual assaults that would have been the subject of her evidence. The Court of Appeal held that the prosecution was trying to circumvent s.116, which does not recognise that reason for admitting hearsay evidence. · Section 114(1)(d) certainly cannot be used to repair failings on the part of the party seeking to adduce the evidence. · Where the Crown has failed to take reasonable steps to find a witness or to secure the witness’s attendance, so that s.116(2)(c) or**(d)** cannot be used, they cannot fall back on s.114(1)(d) and say that the evidence should be admitted in the interests of justice.

Answer 593

· a business document etc and the court is satisfied that the statement’s reliability is doubtful (s.117(6) and**(7)**); · by stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence (s.125); · it is superfluous (s.126); · it is unfair prosecution evidence (s.78 PACE).

Answer 594

· public information; · evidence of reputation; · res gestae; · confessions; · statements in furtherance of common enterprise; and · body of expertise.

Answer 595

· Published works dealing with matters of a public nature such as dictionaries and maps; · public documents such as public registers; and · records such as court records and public treaties. * Also, a person may give evidence of their age and the place of their birth despite the fact that they will have been told these things by someone else.

Answer 596

* The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.

Answer 597

* Section 118 also preserves the common law rule that a statement is admissible as evidence of any matter stated if: · The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded; · The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or · The statement relates to a physical sensation or a mental state (such as intention or emotion). * Where res gestae evidence is admitted, it must be made clear to the jury that they must be satisfied that there was no mistake on the part of the witnesses as to what had been said to them. They must be satisfied that there was no concoction on the part of the maker of the statement. Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them. * In domestic violence cases the res gestae exception provides the prosecution with an alternative to s.116(2)(e) as a way of admitting the evidence of a complainant who does not give evidence at trial. What is said by the complainant in a 999 call or to officers immediately after the alleged incident will usually be admissible as res gestae evidence. The latter is becoming much more important and reliable as a source of evidence now that most officers have body-worn cameras that record both audio and video. The prosecutor can play the footage from the body-worn device as evidence both of the demeanour of the complainant straight after the incident as of the truth of what the complainant says.

Answer 598

* The common law rule that an expert witness may draw on a body of expertise is preserved. Without this rule, it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributed to the field.

Answer 599

* Section 119 CJA 2003 provides that: · a previous inconsistent statement that a witness admits to having made; or · a previous inconsistent statement that the witness is proved to have made · is admissible as evidence of the matter stated. * This is an exception to the rule against hearsay. It was introduced by the CJA 2003. Prior to the Act, previous inconsistent statements were evidence only of inconsistency.

Answer 600

* Sections 120(2) and 120(4) make admissible as evidence of any matter stated, previous consistent statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence. * Again, this is an exception to the rule against hearsay and was a novelty in the Act, before which such evidence was only evidence that the statements had been made. * An example of an oral hearsay statement would be that a witness (‘X’) testifies to what Y said. In contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y.

Answer 601

* CJA 2003, s.121 provides that a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless: · Either of the statements is admissible under ss.117, 119 or 120; · All parties to the proceedings so agree; or · The court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. * The effect of the rule is that multiple hearsay is never allowed through any of the exceptions in s.116 or through any of the preserved common law exceptions in s.118.

Answer 602

* The jury must be reminded that a hearsay statement that has been admitted at the trial was not given on oath and that it was not tested in cross-examination. * The risks of relying on hearsay evidence should be pointed out and the jury should be warned to scrutinise it with particular care. * Where the court has concerns about the quality of a particular piece of hearsay evidence, the attention of the jury should be drawn to the limitations on the usefulness of that piece of evidence.

Answer 603

In the context of disputed visual identification evidence, such a situation may occur if the police breach the rules for holding an identification procedure contained in Code D of the Codes of Practice, that we looked at earlier in Chapter 2. For example: (a) at a video identification procedure, the police may breach the requirement that the other images shown to the witness must resemble the suspect in age, general appearance and position in life (Code D, Annex A, para 2); (b) at an identification parade, the police may breach the requirement that the witnesses attending the parade are segregated both from each other and from the suspect before and after the parade (Code D, Annex B, para 14); (c) a breach of the Codes of Practice will occur if, whilst the defendant was detained at the police station, the police failed to hold an identification procedure when such a procedure should have been held pursuant to para 3.12 of Code D

Answer 604

Special guidelines apply when a witness who gives evidence for the CPS visually identifies the defendant as the person who committed the crime, and the defendant disputes that identification. The guidelines were laid down in the case of R v Turnbull [1977] QB 224. A witness will identify the defendant as the person who committed the offence if: (a) the witness picks out the defendant informally; or (b) the witness identifies the defendant at a formal identification procedure at the police station; or (c) the witness claims to recognise the defendant as someone previously known to them. Such a witness is known as a ‘Turnbull witness’. In all three cases, the Turnbull guidelines will apply only if the defendant disputes the visual identification made by the witness.

Answer 605

If the judge considers the quality of the original sighting made by the eyewitness to be good, when the judge sums up the case to the jury before they retire to consider their verdict, the judge will point out to them the dangers of relying on identification evidence, and the special need for caution when such evidence is relied on. The judge will tell the jury that it is very easy for an honest witness to be mistaken as to identity, and will direct the jury to examine closely the circumstances of the original sighting and take into account the factors listed above when considering the quality of the identification evidence. This is usually referred to as a ‘Turnbull warning’.

Answer 606

If the judge considers the quality of the initial sighting by the eyewitness to be poor, but this identification evidence is supported by other evidence, a ‘Turnbull warning’ similar to that described above should be given to the jury. The judge will again point out the dangers of relying on identification evidence and the special need for caution when the jury are considering such evidence. The judge will also draw to the specific attention of the jury the weaknesses in the identification evidence which has been given. Supporting evidence means some other evidence which suggests that the identification made by the witness is reliable. The judge will normally warn the jury about the dangers of convicting on the basis of the identification evidence alone and tell the jury to look for other supporting evidence. The jury will be directed to what other evidence may amount to supporting evidence. Examples of supporting evidence include: (a) a confession made by the defendant; (b) other evidence placing the defendant at the scene of the offence (such as fingerprints or DNA evidence); (c) in a theft case, stolen property being found in the defendant’s possession; (d) adverse inferences being drawn from the defendant’s silence when questioned at the police station (see later in this chapter).

Answer 607

If the judge considers the identification evidence to be of poor quality, and it is not supported by any other prosecution evidence, the judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant. This will normally follow a submission of no case to answer being made by the defendant’s advocate.

Answer 608

If the identification evidence given by the eyewitness is either good or poor, but supported by other evidence called by the CPS, the defendant’s solicitor is unlikely to make a submission of no case to answer. They will instead address the Turnbull guidelines in their closing speech to the magistrates, and will point out that, however strong it might appear, identification evidence from an eyewitness is notoriously unreliable and the magistrates should exercise caution when considering such evidence. The defendant’s solicitor will also point out any weaknesses in the identification evidence that has been given.

Answer 609

means a court is likely to draw a negative conclusion

Answer 610

Anyone who is arrested on suspicion of having committed a criminal offence has a right to remain silent when interviewed at the police station. However, a court is likely to draw a negative conclusion from the defendant’s silence when interviewed at the police station. In other words, the court may hold a defendant’s silence against them. The usual inference that the jury or magistrates will draw is one of recent fabrication, namely that the defendant remained silent when interviewed by the police because they had no adequate explanation for their conduct, and that they fabricated the facts which make up their defence at trial after being charged by the police. Alternatively, the court may draw an inference that, even though the defendant did not fabricate this defence after leaving the police station, the defendant did not put the defence forward when interviewed by the police because they did not believe it would stand up to further investigation by the police.

Answer 611

A defendant will not be convicted of an offence if the only evidence against them is an adverse inference

Answer 612

Section 34 allows the court or jury to draw an adverse inference from a defendant’s silence when the defendant was being questioned or charged at the police station. Section 34 provides: (1) Where in any proceedings against a person for an offence, evidence is given that the accused: (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact … being a fact, which in the circumstances existing at the time the accused could reasonably have been expected to mention … the court or jury … may draw such inferences from the failure as appear proper.

Answer 613

(a) the interview had to be an interview under caution; (b) the defendant had to fail to mention any fact later relied on in his defence at trial; (c) the failure to mention this fact had to occur before the defendant was charged; (d) the questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and (e) the fact which the defendant failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.

Answer 614

A solicitor advising a client at a police station will often advise a client that rather than answering questions in interview, the client should instead hand to the police a written statement, which the solicitor will prepare on the client’s behalf. The advantage of this is that it allows the client’s version of events to be set out in a clear and logical way. This is particularly useful for a client whom the solicitor feels may not come across well in interview (for example, a client who is distressed, emotional or tired). as long as a written statement which is handed to the police contains all the facts which a defendant later relies on in their defence at court, the court will not be able to draw an adverse inference under s 34 if, having handed in the statement, the defendant then refuses to answer questions from the police based on the contents of that written statement.

Answer 615

(a) Level of disclosure given by the police – although the police are not under a general duty to disclose to the suspect’s solicitor all the details of the evidence which they have obtained against the suspect, the courts have held that if the absence of meaningful disclosure means that a solicitor is unable properly to advise their client, this may amount to a good reason for advising the client to remain silent (R v Argent [1997] 2 Cr App R 27; R v Roble [1997] Crim LR 449). (b) Nature of the case – if the material the police have is particularly complex, or relates to events which occurred a long time ago, the solicitor may advise their client to remain silent when it would not be sensible to give an immediate response to the police (R v Roble (see above); R v Howell [2003] Crim LR 405). (c) Personal circumstances of the suspect – if the solicitor considers the suspect to be suffering from some form of ill health, the suspect is mentally disordered or vulnerable, is excessively tired or is otherwise confused, shocked or intoxicated, the solicitor would be justified in advising the suspect to remain silent (R v Howell, above).

Answer 616

A defendant who at trial claims that the only reason for their silence when interviewed by the police was as a result of legal advice they received from their solicitor will not automatically prevent the court from drawing an adverse inference if they subsequently raise in their defence a fact which they failed to mention at the police station. he ultimate question for the court or jury under s 34 was whether the facts relied on at trial **were facts which the defendant could reasonably have been expected to mention in police interview**. If they were not, then no adverse inference could be drawn. If the court or jury considered that the defendant genuinely relied on the advice they had received from their solicitor, that would not necessarily be the end of the matter because it still might not have been reasonable for them to rely on the advice, or the advice might not have been the true explanation for this silence

Answer 617

Section 36 provides: (1) Where: (a) a person is arrested by a constable, and there is: (i) on his person; or (ii) in or on his clothing or footwear; or (iii) otherwise in his possession; or (iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and (b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and (c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and (d) the person fails or refuses to do so, then … the court or jury … may draw such inferences from the failure or refusal as appear proper. Another important difference from s 34 is that inferences may be drawn under s 36 only if the police officer requesting the explanation for the object, substance or mark has told the suspect certain specified matters before requesting the explanation (this is referred to as a ‘special caution’). The suspect must be told: (a) what the offence under investigation is; (b) what fact the suspect is being asked to account for; (c) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question; (d) that a court may draw an adverse inference from failure to comply with the request; and (e) that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial (PACE 1984, Code C, para 10.11).

Answer 618

Section 37 allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed. As with s 36, there is some overlap between ss 34 and 37, but whilst s 34 will apply only if a defendant raises a fact which they failed to mention at the police station, in their defence at trial, s 37 will operate irrespective of any defence put forward. It may apply even if no defence is raised at trial, because the inference arises from the defendant’s failure to account for their presence at a particular place at or about the time of the offence at the time of interview. The inference which is likely to be drawn in such circumstances is that the defendant has no explanation for their presence at that particular place at or about the time the offence was committed, or no explanation that would have stood up to police questioning. So as with s 36, inferences may be drawn under s 37 only if a suspect has been given the ‘special caution’.

Answer 619

Unless at trial a defendant makes a successful submission of no case to answer at the end of the prosecution case, the defendant will then have the opportunity to put their case before the court. A defendant is not obligated to give evidence on their own behalf at trial. Neither is a defendant obligated to raise any facts in their own defence. The defendant is entitled to remain silent at trial (Criminal Evidence Act 1898, s 1(1)) and simply argue that the CPS has failed to prove guilt beyond a reasonable doubt. Since the defendant will not be raising any facts in his defence at trial which he did not mention in the police station, no adverse inferences may be drawn under s 34. However, a defendant who fails to give evidence on his own behalf at trial may be subject to an adverse inference being drawn by the court or jury under s 35 of the CJPOA 1994. The effect of s 35 is that, if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross- examination.

Answer 620

The prosecution will seek to adduce evidence of a defendant’s previous convictions under gateway (d) to demonstrate that: (a) the defendant has a propensity to commit offences of the kind charged; or (b) the defendant has a propensity to be untruthful. Previous convictions showing a propensity to commit offences of the kind charged will be convictions for offences of the same description or category, or convictions for offences where there is a significant factual similarity between the previous conviction and the current offence. Previous convictions showing a propensity to be untruthful will be convictions for specific offences where a lie has been told (eg fraud by false representation or perjury), or offences where the defendant pleaded not guilty but was convicted following a trial. Offences of dishonesty (such as theft) will not generally show a propensity to be untruthful. The defendant’s solicitor may seek to challenge the admissibility of previous convictions which the prosecution seeks to admit under gateway (d) in two ways: (a) Arguing that the previous convictions do not actually demonstrate the relevant propensity and so do not satisfy gateway (d). For example: (i) How many convictions does the defendant have? One conviction is unlikely to show a propensity. (ii) If the previous convictions are being adduced to show a propensity to commit offences of the same kind: – do the factual circumstances of the previous convictions differ from the facts of the current offence; – would it be unjust to rely on them given the time which has elapsed since they occurred (s 103(3)); or – does the propensity make it no more likely that the defendant is guilty of the offence? (iii) If the previous convictions are being adduced to show a propensity to be untruthful, is it not suggested that the defendant’s case is in any way untruthful? (b) If the previous convictions do show the relevant propensity, can the court be persuaded to exercise its power under s 101(3) to exclude the convictions? Arguments that may be raised include: (i) Would the convictions be more prejudicial than probative? Is there a danger that the defendant would be convicted on the basis of their previous convictions alone, due either to the extent or to the nature of such convictions? (ii) Are the convictions being used to support a prosecution case that is otherwise weak? (iii) Are the previous convictions spent?

Answer 621

The court does, however, retain a discretionary power under s 78 of PACE 1984 to exclude evidence on which the prosecution propose to rely if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. In R v Highton & Others [2005] EWCA Crim 1985, the Court of Appeal held that judges should apply the provisions of s 78 when making rulings as to the use of evidence of bad character, and exclude evidence where it would be appropriate to do so under s 78 (so in reality this will apply to bad character evidence which the prosecution seek to adduce under gateways (c) and (f)). Stopping contaminated case Section 107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character. Section 107 does not apply to trials in the magistrates’ court

Answer 622

Article 6 of the ECHR provides that anyone charged with a criminal offence is entitled to a ‘fair’ hearing. The appellate courts have held, on several occasions, that the discretion given to a trial judge to exclude evidence under s 78 where the admission of that evidence would otherwise lead to unfairness, ensures that a defendant will receive a fair trial. Similarly, in cases such as Khan v United Kingdom [2000] Crim LR 684, the European Court of Human Rights has stated repeatedly that the key question to be answered when determining whether the defendant’s rights under Article 6 have been breached is whether the proceedings as a whole were fair. The width of the discretion given to the trial judge by s 78 should ensure that proceedings are conducted in a manner which is fair to the defendant.